Group Legal Services Association
Solo, Small Firm, and General Practice Section
2016 Joint Spring Meeting
May 11-14, 2016, Key West, Florida
______________________________________
Treasure Finders: The Last Spanish Galleon
______________________________________
Saturday, May 14
10:45 am – 11:45 am
Salon A-1
Presenter: David Paul Horan, Horan, Wallace & Higgins, LLP, Key West, FL
DAVID PAUL HORAN
Born in Rome, Georgia, October 14, 1942, David Paul Horan was admitted to the
Florida Bar in 1972 (1972 graduate of Florida State University (J.D.)) and the Colorado
Bar in 1995. He is licensed in five United States District Courts of Appeal and the
United States Supreme Court (1981). In 1966 he took over running Gulfstream Diving
School in Destin Florida where he taught scuba diving. He remains an Emeritus
Instruction for Padi International. As Senior/Managing Partner of Horan, Wallace &
Higgins, LLP, in Key West, Florida he has enjoyed the diversity of the practice of law.
Mr. Horan was appointed to and served on the Florida Keys National Marine
Sanctuary Advisory Council by the Governor of Florida. He continues to fight against
over regulation and the rising cost and scope of government.
Mr. Horan specializes in complex federal and state litigation and has represented
the commercial fishing industry as well as the sport fishermen and diving interests. He
represents most of the modern United States salvors of historic shipwrecks. He
originated and won the seven year battle by Mel Fisher/Treasure Salvors, Inc., against
the United States and the State of Florida (oral argument was in the US Supreme
Court). He originated and won the three year case by Mel Fisher/Cobb Coin Company,
Inc. against the State of Florida over federal rights to salvage the numerous Spanish
galleons sunk along Florida’s southeast coast in July 1715. He successfully originated
and completed litigation over the ownership of historic United States’ aircraft in
international and Canadian waters.
3/29/2016
Treasure Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907 - Dist. Court, SD Florida 1976 - Google Scholar
408 F.Supp. 907 (1976)
TREASURE SALVORS, INC., a corporation, and Armada Research Corp., a corporation,
Plaintiffs,
v. The Unidentified Wrecked and ABANDONED SAILING VESSEL, Her Tackle, Armament, Apparel
and Cargo Located within 2500 Yards of a Point at Coordinates 24° 31.5' North Latitude and 82°
20' West Longitude, Said Sailing Vessel is BELIEVED TO BE THE NUESTRA SENORA DE
ATOCHA, Defendant.
No. 75-1416-Civ-WM.
United States District Court, S. D. Florida.
February 3, 1976.
As Amended February 4, 1976.
908
*908 David Paul Horan, Key West, Fla., and Joshua M. Morse, III, Tallahassee, Fla., for plaintiffs.
Bruce C. Rashkow, Michael W. Reed, Attys., Dept. of Justice, Washington, D. C., Robert W. Rust, U. S. Atty., Miami, Fla.,
for defendant.
ORDER OF SUMMARY JUDGMENT
MEHRTENS, Senior District Judge.
This cause came before the Court upon Plaintiff's Motion For Summary Judgment. The Defendant/Intervenor, the United
States of America, has submitted an opposing memorandum of law. The sole issue to be resolved by this Court is
whether the provisions of the Antiquities Act, 16 U.S.C. §§ 432, 433, or of the Abandoned Property Act, 40 U.S.C. § 310,
are applicable to the salvage of a ship wreck discovered on the continental shelf outside the territorial waters of the
United States.
909
Plaintiff brought this action for possession and confirmation of title against all persons as to an unidentified, wrecked and
abandoned vessel, thought to be the "Nuestra Senora de Atocha," which sank in or about the year 1622 while en route
from the Spanish Indes to Spain. The United States has answered *909 and counterclaimed, seeking title to the vessel
on the basis of the statutes cited above. It is undisputed that the site of the wreck is on the continental shelf but outside
the territorial waters of the United States.
Plaintiff asserts that, where a vessel has been abandoned, the finder in possession becomes the owner of the vessel.
Such a claim is properly within the scope of a salvage action. Broere v. Two Thousand One Hundred Thirty Three Dol.,
72 F.Supp. 115 (E.D.N.Y. 1947). General principles of maritime and international law dictate that an abandonment
constitutes a repudiation of ownership, and that a party taking possession under salvage operations may be considered
a finder under the doctrine of "animus revertendi," i. e., the owner has no intention of returning. Wiggins v. 1100 Tons,
More Or Less, Of Italian Marble, 186 F.Supp. 452, 456 (E.D.Va. 1960). Ownership in the vessel would then vest in the
finder by operation of law. Rickard v. Pringle, 293 F.Supp. 981, 984 (E.D.N.Y.1968), citing Wiggins, supra, and 1 C.J.S.
Abandonment § 9, p. 18. Thus, those beginning a salvage service as to an abandoned vessel are entitled to sole
possession of the property. See Rickard v. Pringle, supra, at 985, citing The John Gilpin, Fed.Cas.No. 7,345 (S.D.N.Y.),
and Brady v. The Steamship African Queen, 179 F.Supp. 321, 323 (E.D.Va.1960).
The United States counters the impact of the foregoing principles with the contention that objects of antiquity recovered
by persons subject to the jurisdiction of the United States are taken in the name of the sovereign and are the property of
https://scholar.google.com/scholar_case?q=%22408+F.Supp+907%22+Salvors&hl=en&as_sdt=400006&case=18292525670755680528&scilh=0
1/3
3/29/2016
Treasure Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907 - Dist. Court, SD Florida 1976 - Google Scholar
the people of this country as a whole, not the finders alone. The foundation of this argument is the concept of the
sovereign prerogative, a common law notion derived from the right of the King of England to objects recovered from the
sea by his subjects. The government submits that the sovereign prerogative applicable to the facts of this case was
legislatively asserted by Congress through the enactment of 16 U.S.C. §§ 432, 433, and 40 U.S.C. § 310. It is clear that,
under the American rule, the legislature must manifest a specific intent to appropriate derelict property. United States v.
Tyndale, 116 F. 820 (1st Cir. 1902); Thompson v. United States, 62 Ct.Cl. 516 (1926).
As to the government's claim based upon the Abandoned Property Act, 40 U.S.C. § 310, the Court finds that the
interpretation of the act reflected in the case of Russell v. Forty Bales Cotton, 21 Fed.Cas.No.12,154 (S.D.Fla.1872), is
persuasive.[1] In Russell, the court discussed at length the claim of ownership of derelicts by the United States under the
doctrine of sovereign prerogative as opposed to the rule of the law of nations that a finder is entitled to possession and
control against the whole world except the original owner. The court admitted that derelict property whose owner is
unknown belongs to the finder or to the sovereign if the laws give to the sovereign a right to the property. The task before
the Court in Russell then, was to determine whether such abandoned property "ought to come to the United States" as
contemplated by 40 U.S.C. § 310.
Having examined the history of the Abandoned Property Act, the court in Russell determined that the phrase "ought to
come to the United States," refers to abandoned or derelict property strewn about the country and its harbors during the
Civil War, the rationale being that such property had a relationship to the naval and military operations of the United
States or its enemy. The court concluded that the United States, not having specifically provided by statute for the
exercise of its sovereign prerogative, could not claim the proceeds of the derelict in question since it was not a product of
the conflict between the states.
910
*910 There is yet another flaw which is fatal to the government's reliance on 16 U.S.C. §§ 432, 433 and 40 U.S.C. § 310.
The Antiquities Act applies to any object of antiquity "situate on lands owned or controlled by the Government of the
United States." The Abandoned Property Act embraces property "within the jurisdiction of the United States." This Court
finds that the property of the wreck involved in this case is neither within the jurisdiction of the United States nor owned
or controlled by our government.
As previously stated, the parties agree that the wreck is located on the outer continental shelf of the United States. The
government maintains that the effect of 43 U.S.C. § 1332 et seq. is to bring the abandoned vessel in this case within the
jurisdiction of the United States and thus within the purview of 40 U.S.C. § 310 and 16 U.S.C. §§ 432, 433.[2] However,
this statute merely asserts jurisdiction over the minerals in and under the continental shelf. Guess v. Read, 290 F.2d 622
(5th Cir. 1961), cert. den. 368 U.S. 957, 82 S.Ct. 394, 7 L.Ed.2d 388. It is significant that 43 U.S.C. § 1332(b) preserves
the character of the water above the outer continental shelf as high seas.
The government's jurisdictional assertion is further discounted by paragraph one of Article 2 of the Convention On The
Continental Shelf,[3] which states that a coastal state exercises sovereign rights over the continental shelf "for the
purpose of exploring it and exploiting its natural resources." In its report, the International Law Commission made the
following comments in reference to the proposed Convention On The Continental Shelf:
"It is clearly understood that the rights in question do not cover objects such as wrecked ships and their
cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil.[4]
It appears, then, that the Convention does not change the law of salvage as it applies to res derelictae, even though the
recovery of such property might involve contact with the seabed or removal of sand and other materials. If, for the
purposes of argument, the Court accepted the government's position that 43 U.S.C. § 1332 brings the abandoned
property within the jurisdiction of the United States, then the inconsistent language of the Convention On The
Continental Shelf nullifies the jurisdictional effect of 43 U.S.C. § 1332, at least in the context of the facts of this case. The
Geneva Convention On The Continental Shelf supersedes any incompatible terminology of the Outer Continental Shelf
Lands Act. United States v. Ray, 423 F.2d 16 (5th Cir. 1970). In this light, the United States has no basis for asserting its
sovereign rights in sunken treasure (which, of course, is not a natural resource) found on the outer continental shelf.
https://scholar.google.com/scholar_case?q=%22408+F.Supp+907%22+Salvors&hl=en&as_sdt=400006&case=18292525670755680528&scilh=0
2/3
3/29/2016
Treasure Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907 - Dist. Court, SD Florida 1976 - Google Scholar
Indeed, this is the conclusion reached by an attorney with the appellate section of the Land and Natural Resources
Division of the Department of Justice in 1969.[5]
The conclusion reached above also disposes of the government's argument that the United States does have jurisdiction
911
to restrict the activities of its *911 citizens and corporations even though they may be conducted extraterritorially. This
contention may well be true but is not particularly relevant in the circumstances of this case. First of all, 16 U.S.C. §§ 432,
433 and 40 U.S.C. § 310 apply to property within the jurisdiction of the United States or upon lands owned or controlled
by the United States. The ship wreck in this cause does not fall within either category. Secondly, a review of the
regulations drafted to supplement 16 U.S.C. §§ 432, 433 indicates that the term "lands" is used in its narrow sense and
does not include the outer continental shelf.[6] Thirdly, to the extent that 16 U.S.C. § 433 attempts to restrict personal
activity and to impose criminal sanctions for non-compliance, the statute has been held to be unconstitutionally vague.
United States v. Diaz, 499 F.2d 113 (9th Cir. 1974). It should also be noted that an extension of jurisdiction for purposes
of controlling the exploitation of the mineral resources of the continental shelf is not necessarily an extension of
sovereignty. A ruling to the contrary might well provoke an international controversy.
In summary, the Court concludes that Congress has not exercised its sovereign prerogative to the extent necessary to
justify a claim to an abandoned vessel located on the outer continental shelf. Under the facts of this case, possession
and title are rightfully conferred upon the finder of the res derelictae. Accordingly, it is
Ordered and adjudged that summary judgment is hereby entered in favor of plaintiffs and against the United States.
Plaintiffs shall have 20 days in which to submit to this Court a final decree consistent with the foregoing opinion.
Done and ordered at Miami, Florida, this 2nd day of February, 1976.
[1] The statute involved in Russell was 16 Stat. 380 (1870), the predecessor of 40 U.S.C. § 310 and similar in all pertinent respects.
[2] 43 U.S.C. § 1332 reads as follows:
"(a) It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United
States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter.
(b) This subchapter shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf
and the right to navigation and fishing therein shall not be affected."
[3] Convention On The Continental Shelf, U. N. Doc. A/Conf. 13/L.55.
[4] U. N. General Assembly Official Records, Eleventh Session, Supplement No. 9 (A/3159), p. 42.
[5] Robert M. Perry, "Sovereign Rights In Sunken Treasures," Land and Natural Resource Division Journal, Vol. 7, No. 3, March, 1969.
[6] See 43 C.F.R. § 3.1 et seq.
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=%22408+F.Supp+907%22+Salvors&hl=en&as_sdt=400006&case=18292525670755680528&scilh=0
3/3
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
459 F.Supp. 507 (1978)
TREASURE SALVORS, INC., a corporation, and Armada Research Corp., a corporation,
Plaintiffs,
v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, her tackle, armament,
apparel and cargo located within 2500 yards of a point at coordinates 24.31.5' north latitude
and 82.50 west longitude, said SAILING VESSEL is believed to be the NUESTRA SENORA de
ATOCHA, Defendant.
No. 75-1416-Civ-WM.
United States District Court, S. D. Florida.
August 21, 1978.
510
509
508
*508 *509 *510 David P. Horan, Key West, Fla., for plaintiffs.
Robert L. Shevin, Atty. Gen., by Bernard S. McLendon, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla.,
for defendant.
ORDER
MEMORANDUM INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF
LAW
MEHRTENS, Senior District Judge.
INTRODUCTORY STATEMENT AND CONCLUSIONS OF LAW
511
This proceeding follows the receipt of the mandate from the United States Court of Appeals in Treasure Salvors, Inc. v.
Unidentified Wrecked and Abandoned Sailing Vessel, Nuestra Senora de Atocha, etc., 5 Cir., 569 F.2d 330 (C.A. 5th
1978), which affirmed, with certain modifications, the judgment of this Court determining the ownership of salvaged
articles from the ship Atocha. In order to effectuate the mandate of the Fifth Circuit, and carry out the judgment of this
Court, a warrant for arrest *511 was issued to seize certain salvaged articles in the possession of the Division of
Archives, History and Records Management, Department of State, State of Florida, hereinafter, Division of Archives. The
Division of Archives obtained a temporary stay of the warrant from the Fifth Circuit. Subsequently, the Court of Appeals
dissolved the stay and allowed execution of the warrant. Pursuant to the warrant of arrest, the property in question was
seized and is now in control and possession of this Court.
The Florida Division of Archives has challenged the jurisdiction of this Court and, subject to such objection, claims it is
entitled to the property in question for various reasons, principally based upon a purported contract between the Division
and Treasure Salvors.
For the reasons that follow, this Court holds: it had jurisdiction to issue the warrant of arrest and seize the property in
question; the Division of Archives is bound by the earlier judgment of this Court; Treasure Salvors, under the judgment of
this Court, as affirmed by the Fifth Circuit, is the owner of the property and entitled to possession; the claims of the
Division of Archives to be the owner of the property, and to be accordingly entitled to the possession of such, are wholly
without merit; and the present proceedings are not barred by the Eleventh Amendment to the Constitution of the United
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
1/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
States nor by the Doctrine of Sovereign Immunity.
Before proceeding with this memorandum's discussion of the facts and reasons in support of the Court's conclusions,
prepared to satisfy the requirements of Federal Rule of Civil Procedure 52, it may be helpful to place these proceedings
in proper perspective, in particular the role of the agents and employees of the State of Florida, Division of Archives.
The Atocha was lost at sea because of a hurricane in 1622. Spain initially located the wreck and attempted salvage,
recovering two cannons. But due to various perils of the sea the wreck was shortly thereafter lost and remained lost for
over three centuries.
[T]hen, in 1971, after an arduous search aided by survivors' accounts of the 1622 wrecks, and an
expenditure of more than $2 million, plaintiffs located the Atocha. Plaintiffs have retrieved gold, silver,
artifacts, and armament valued at $6 million. Their costs have included four lives, among them the son
and daughter-in-law of Melvin Fisher, plaintiffs' president and leader of the expedition. 569 F.2d at 333.
As grave as the perils of sea are and were, the gravest perils to the treasure itself came not from the sea but from two
unlikely sources. Agents of two governments, Florida and the United States, who have the highest responsibility to
protect rights and property of citizens, claimed the treasure as belonging to the United States and Florida.
The finding of a great treasure from the days of the Spanish Main is not a cherished dream of only the United States and
Florida citizens; countless people from other lands have shared such thoughts. It would amaze and surprise most
citizens of this country, when their dream, at the greatest of costs, was realized, that agents of respective governments
would, on the most flimsy of grounds, lay claim to the treasure. As previously determined by this Court, the wreck site is
outside the territorial boundaries of the United States and Florida, and under provisions of applicable treaties, which are
the supreme law of the land, no claim can be made on the basis of sovereign ownership. This Court and the Fifth Circuit
rejected a sovereign prerogative argument of the United States that all treasure found by its citizens anywhere in the
world belonged to the United States as the American "Crown."
512
The zeal of the United States in claiming the salvaged articles of the Atocha has been exceeded by the agents of the
State of Florida. Although occasionally state employees are faulted for failure to protect state property, certainly this does
not apply to the personnel of the Division of Archives who, in their unstinting efforts to claim *512 property belonging to
Treasure Salvors, have reacted as though Treasure Salvors were attempting to steal the old Capital Building as well as
the great Seal of the State.
The ship Atocha's association with Florida is tangential at best and certainly is not integral to the heritage and
development of the State. The ship was bound on a voyage from Havana to Cadiz when the storm of 1622 drove it close
to, but outside of, the boundaries of the later State of Florida. Its cargo was not connected or associated with the Florida
peninsula. Nevertheless, agents from the Division of Archives have persisted in wrongfully attempting to lay claim to the
salvage recovered by Treasure Salvors or an interest therein. The Division of Archives did not find the Atocha or its
cargo, and there is no basis in fact for suggesting that the Division ever could have located it, much less recovered it.
Merely because agents of the State covet the treasure, does not give the agents the right to take it in the name of the
State. It is ironic that the agents of the State are able to use resources of the State to deprive Treasure Salvors of what it
justly and rightfully owns, especially when the record reflects that Treasure Salvors was willing at one time to donate a
portion of the salvaged articles to the State.
After presentation of evidence and argument before this Court, both the Division of Archives and Treasure Salvors filed
extensive briefs. The Court agrees substantially with the reasons and arguments of Treasure Salvors.
THE DIVISION OF ARCHIVES IS IN PRIVITY AND BOUND BY JUDGMENT OF
THIS COURT AS AFFIRMED BY THE FIFTH CIRCUIT
In resolving the jurisdictional issues and the arguments advanced by the Florida Division of Archives, it is significant that
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
2/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
the present proceeding is not a new independent action, but concerns an appropriate issuance of an ancillary warrant of
arrest in a pending admiralty case over which this Court's jurisdiction is not questioned and where such ancillary warrant
is necessary to carry out the judgment of this Court and the Fifth Circuit. Because of the importance of the nature of this
proceeding and the relevancy of certain facts to the jurisdictional issues concerning the Eleventh Amendment and
sovereign immunity, the discussion of those issues will be made at the conclusion of this memorandum.
If the Division of Archives is in privity there is no question that it would be bound by the judgment and its argument
against jurisdiction would be of no avail. The Fifth Circuit ruled:
To summarize, the district court properly adjudicated title to all those objects within its territorial jurisdiction
and to those objects without its territory as between plaintiffs and the United States. In affirming the district
court, we do not approve that portion of its order which may be construed as a holding that plaintiffs have
exclusive title to, and the right to immediate and sole possession of, the vessel and cargo as to other
claimants, if any there be, who are not parties or privies to this litigation. (Emphasis added) 569 F.2d at
335-336.
The crux of the Division of Archives' argument on the jurisdiction of this Court to issue the ancillary warrant of arrest is the
assumption that it is not in privity nor bound by the judgment. The Division of Archives contends, in reference to the
issuance of the warrant filed in this Court:
The State of Florida was not at any time a party to this proceeding and had no interest whatsoever therein
. . . The State of Florida was not a party on appeal. In affirming the District Court, this Court expressly
ruled:
We do not approve that portion of its Order which may be construed as holding that plaintiffs have
exclusive title to, and the right to immediate and sole possession of the vessel and cargo as to other
claimants, if any there be, who are not parties or privies to the litigation. Division of Archives' Reply to the
Order to Show Cause, P. 3.
513
*513 By the above argument, the Division of Archives fully recognizes that, if it is bound by the judgment, its argument on
lack of jurisdiction necessarily fails. The record reflects an involvement by the Division of Archives with the United States,
together with a bypassing of an opportunity to intervene, which warrants a holding that the Division is and should be
bound.
The Division of Archives did not intervene in the proceeding below, though it had an absolute right to do so. The Division
of Archives had a contract with Treasure Salvors regarding the disposition of the treasure and a dispute arose
concerning this contract. This dispute as to the terms and rights under the contract arose before Treasure Salvors and
the United States went to court to settle the ownership of the treasure. The Division of Archives had notice of the initiation
of the suit, and at times thereafter knew of and participated in the litigation of the suit. Being thus involved in the progress
of the suit, the Division of Archives was fully aware that this suit was an in rem proceeding brought to settle, for all the
world, the ownership rights to the treasure. Furthermore, the Division of Archives was content to sit back and rely on the
federal government to represent and protect its interests, which were now in repudiation of its earlier dealings with
Treasure Salvors.
The interest of the Division of Archives was intertwined and interwoven with that of the parties to the extent that Division
of Archives had a right to intervene under general principles of admiralty law in reference to the in rem proceedings, and
a right, as well, under Rule 24. The conduct of the Division of Archives is important and lends significance to its failure to
intervene. Under threats of arrest, the Division of Archives coerced the acceptance of a salvage contract under which it
gave nothing but a site mistakenly claimed as state submerged lands.
The Division of Archives had the right under the purported contract to divide the salvage, giving 75 percent to Treasure
Salvors and retaining 25 percent at a time of its choosing. The contract had various forfeiture provisions under which the
Division of Archives could claim the entire treasure. Although repeated requests were made to divide the salvage
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
3/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
recovered, the Division of Archives refused. This refusal was in bad faith as part of a scheme by the Division to deprive
Treasure Salvors of all salvaged treasure. After the Special Master in United States v. Florida, 420 U.S. 531, 95 S.Ct.
1162, 43 L.Ed.2d 375 (1975), determined that Florida boundaries did not in fact encompass the wreck site, and
immediately after oral arguments in the Supreme Court, the Division of Archives knew its contract claim was invalid;
therefore, it proceeded to immediately divide the treasure and take its purported share.
Based upon the decision of the United States Supreme Court, Treasure Salvors notified the Division of Archives that the
salvage contract was a nullity. Frustrated in its desire to obtain the entire treasure under the initial contract, the Division
of Archives then encouraged the United States to claim the entire treasure. The Division of Archives' plan was to work
out an arrangement with the United States over division of treasure to the total exclusion of Treasure Salvors. To that end
it did all it could to assist the United States in the litigation and relied upon the United States to prevail and to protect the
interests of the Division of Archives.
After the United States' claim (as urged and supported by the Division of Archives in its dealings) was determined to be
without merit by this Court and the Fifth Circuit, the Division of Archives attempted to paint itself as a total stranger to the
litigation. It ill behooves the Division of Archives to play such a fast and loose game with courts. For all practical
purposes, the Division of Archives was a party in fact, although not technically in name, to the litigation. Under all
concepts of fairness, it should be treated as a party and be bound by the decree — as indeed the cases so hold.
514
There is no question, given the contract claim regarding rights to the treasure, that the Division of Archives had a right to
*514 intervene under Rule 24(a) of the Federal Rules of Civil Procedure. The Division of Archives certainly had "an
interest relating to the property or transaction which is the subject of the action" and was "so situated that the disposition
of the action may as a practical matter impair or impede [the Division of Archives'] ability to protect that interest, unless
the applicant's interest is adequately represented by existing parties." Rule 24(a)(2) F.R.Civ.P. In an analogous case to
the instant suit, the Fifth Circuit made it clear that Rule 24(a) was to be interpreted broadly to give it full, practical effect.
Atlantis Development Corp. v. United States, 379 F.2d 818 (C.A. 5th 1967). As the Court noted, intervention involves
competing interests:
[o]n the one hand, there is the private suitor's interests in having his own lawsuit subject to no one else's
direction or meddling. On the other hand, however, is the great public interest, especially in these
explosive days of ever-increasing dockets, of having a disposition at a single time of as much of the
controversy to as many of the parties as is fairly possible consistent with due process. Id. at 824.
Considering the Division of Archives' contract, the in rem nature of the proceeding, and the practical reading of the rule
on intervention, the Division of Archives undoubtedly could have intervened had it so desired.
It is important to understand that the Division of Archives was aware that its rights were in jeopardy and purposely chose
to rely on the federal government rather than to intervene. The Division of Archives knew of the suit from its initiation and
chose to cooperate with the federal government rather than assert its own rights. During the course of the litigation, the
Division of Archives engaged in several activities with the federal government. The Division of Archives negotiated with
the federal government to obtain an antiquities permit. Had the United States prevailed in the suit, the Division of
Archives would have received an antiquities permit from the Department of the Interior for the wreck site. Furthermore, an
attorney for the Florida Secretary of State (the agency which administers the Division of Archives) worked with the
federal government on the case, and the Division of Archives engaged in preliminary negotiations regarding disposition
of the treasure should the federal government win. The Division of Archives made the purposeful choice to cooperate
with the federal government in prosecuting the case, and generally relied on the United States to protect its interest.
With the case decided differently than the Division of Archives desired, it now wishes to assert the interest which it
should have protected by intervening in the initial suit. The policies underlying res judicata dictate that the Division of
Archives should be bound by the previous judgment. James & Hazard, in their text on Civil Procedure discuss a variety
of circumstances where one not officially a party to an action may nonetheless be bound by a court's decree. In order to
give effect to the principles of finality embodied in the doctrine of res judicata, courts may invoke equitable preclusion
where a nonparty has been aware of the initial litigation and failed to intervene to protect its interests. James & Hazard,
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
4/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
Civil Procedure § 11.31 (1977).
A party who purposely fails to intervene is bound under the law of this Circuit. In Aerojet-General Corp. v. Askew, 511
F.2d 710 (C.A. 5th 1975), the plaintiff sought specific performance of a contract, asserting a right to buy various lands
from a state agency. The Court held for the plaintiff. Subsequently, a Florida government unit (Dade County) came
forward to halt conveyance of the land asserting that a state statute gave it absolute prior right to buy the land. The state
had not utilized this argument in the original suit, nor had the local agency intervened, although well aware of the
litigation. The Court held that the county was bound by the judgment.
In Aerojet, the local government contended that the district court should not have held it bound since it was not a party to
the original suit. The Fifth Circuit responded:
515
*515 Under the federal law of res judicata, a person may be bound by a judgment even though not a party
if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative.
(Citations omitted).
. . . . .
The question whether a party's interests in a case are virtually representative of the interests of a nonparty
is one of fact for the trial court. See Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 5 Cir. 1968,
405 F.2d 958, 961. We find no reason to overturn the District Court's determination that Dade County "was
in such close relationship to the parties to the first lawsuit before this Court, that its interests or the
interests of those which it represents, were represented in that proceeding." D.C., 366 F.Supp. at 910.
Aerojet-General Corp. v. Askew, 511 F.2d 710, 719-20 (C.A. 5th 1975).
Because the Division of Archives cooperated with the federal government, relying on it to protect the Division of Archives'
interests, it should be bound by the judgment and not permitted to ask the court to consider matters which could and
should have been settled before.
The theory that a nonparty's failure to intervene should result in the decree being conclusive against that nonparty has
been suggested in the United States Supreme Court. Justice Harlan in Provident Tradesmens Bank & Trust Co. v.
Patterson, 390 U.S. 102, 114, 88 S.Ct. 733, 740, 19 L.Ed.2d 936 (1968), stated that:
It might be argued that Dutcher should be bound by the previous decision because, although technically
a nonparty, he had purposely bypassed an adequate opportunity to intervene.
Furthermore, this concept of equitable preclusion has been applied in admiralty cases. In Cummins Diesel Michigan, Inc.
v. The Falcon, 305 F.2d 721 (C.A. 7th 1962), a nonparty was held bound by a previous judgment where that nonparty
had notice and an opportunity to intervene but failed to do so. Cummins involved an action in admiralty where plaintiff
filed a libel in rem against a vessel, "The Falcon." Various claimants filed appearances and claimed interests and liens
against the vessel. Later, one Holcomb, asserted that the court had no authority to determine the ownership of the
vessel. Holcomb, however, had been given actual as well as constructive notice of the previous proceedings. Answering
Holcomb's contention that the court had no authority to determine the ownership of the vessel, the court said:
This, however, did not create an issue between appellant and Holcomb, who had an opportunity to
intervene and assert any claim to ownership. This he failed or refused to do and, in our view, the decree is
binding upon him the same as on all other parties who were in default. Id. at 723 [Emphasis added].
The United States Supreme Court has held that there may be times when the opportunity to intervene may be enough to
bind a person not a party. Moore, 1B Federal Practice ¶ 0.411 p. 94 (1977, 78 Supp.). In Penn-Central Merger and N. &
W. Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968), numerous plaintiffs challenged the finding of the
Interstate Commerce Commission in connection with a proposed railroad merger. These actions arose in district courts
in several states, and all were continued in deference to the New York Federal District Court. All plaintiffs were free to
join the New York proceedings, but some chose to rely on others to represent their interests. Subsequently, these
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
5/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
plaintiffs who had foregone their opportunity to intervene attempted to go forward with their complaints. On the issue of
whether these plaintiffs should be bound, the Supreme Court said:
[They] had an adequate opportunity to join in the litigation in that court following the stay of proceedings in
the Middle District of Pennsylvania. As we noted, all district courts in which actions to review the
Commission's finding or for injunctive relief were filed continued their proceedings in deference to the
516
New York court. All parties with standing to challenge the Commission's action might *516 have joined in
the New York proceedings. In these circumstances, it necessarily follows that the decision of the New York
court which, with certain exceptions, we have affirmed, precludes further judicial review or adjudication of
the issues upon which it passes. Id. at 505-506, 88 S.Ct. at 612.
The foregoing cases clearly establish the principle that one who has an opportunity to intervene is bound by a judgment
affecting his rights where he could have intervened but failed to do so to protect his interests. The facts establish the
Division of Archives was fully aware of the preceding suit, consulted with the United States while they prosecuted the
case and indeed negotiated with the federal government about securing a portion of the treasure. Since the Division of
Archives had the opportunity but failed to intervene, instead relying on the United States to further its interests, it should
now be bound by the judgment rendered previously against the United States.
In addition to being bound because of failing to intervene to protect its interests rather than relying on the United States,
the Division of Archives is bound because of its participation in the previous litigation. Professor Moore discusses
situations where nonparties may be bound by previous judgments. Moore, 1B Federal Practice ¶ 0.411[6] p. 1552
(1974):
If a non-party who thus participates in litigation has an interest sufficiently close to the matter in litigation,
and has adequate opportunity to litigate in support of or in defense against the cause of action on which
the suit is based, the policies underlying the doctrine of judicial finality require that the participating nonparty should be bound by the resulting judgment to the same extent as though he were a party to the
action. Id. at 1552.
This policy of binding nonparties who have notice of and participate in the prosecution of previous litigation has been
upheld by the United States Supreme Court. Souffront v. Compagnie des Sucreries, 217 U.S. 475, 30 S.Ct. 608, 54 L.Ed.
846 (1910). In Souffront, the Supreme Court said:
The case is within the principle that one who . . . assists in the prosecution or defense of an action in aid of
some interest of his own, and who does this openly, to the knowledge of the opposing party, is as much
bound by the judgment . . . as he would be if he had been a party to the record. Id. at 487, 30 S.Ct. at 612.
The record shows that the Division of Archives knew of the suit and consulted with the federal government in the
prosecution of the suit. Furthermore, the Division of Archives had an interest at stake in the previous action (an interest
very similar to that of the United States) and worked with the United States, counting on the United States as a named
party to represent its interest. Testimony shows that the Division of Archives had even preliminarily negotiated division of
the artifacts which the United States sought to recover.
The Division of Archives was in privity with the federal government. Privity is a policy concept varying with appropriate
circumstances. With regard to the principle of judicial finality Moore suggests that privity is to be found not so much in the
fact that a party is acting as the representative of a nonparty, but rather that the nonparty's participation justifies holding
him bound by the judgment. Moore, 1B Federal Practice ¶ 0.411[6] p. 1553 (1974). If a nonparty sits on the sidelines
monitoring litigation, assisting in the suit, and at all times has the ability to intervene to protect its interest, it would offend
the theory of judicial finality not to hold that nonparty bound by the judgment.
In order to be bound, the participating nonparty must have more than a mere academic interest in the outcome of the
litigation. Moore outlines three types of interests which have been held sufficient to invoke res judicata effect. See Moore,
1B Federal Practice ¶ 0.411[6] pp. 1555, 1558, 1559 (1974). While one of these interests would be sufficient, Moore
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
6/18
3/29/2016
517
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
points out that *517 they often overlap, and a case will have characteristics of two or more of these interests. Id. at 1563.
The first type of interest is "[a] legal right, interest or duty dependent wholly or in part on the cause of action before the
court for adjudication." Id. at 1555. Under this rule, a grantee who cooperates in a title suit between a third party and his
grantor is bound when the grantee acquired his interest before the suit was instituted. Souffront v. Compagnie des
Sucreries, supra. Similarly, a lessee who participated as a nonparty in defending a condemnation suit was held bound
by a judgment of condemnation. Sparks v. Gallagher, 114 Okl. 103, 243 P. 228 (1925).
The second kind of interest which justifies binding a participating nonparty is "a proprietary right that will be affected
favorably or detrimentally by the outcome of the litigation." Moore, 1B Federal Practice ¶ 0.411[6] p. 1558 (1974). In
Hyman v. Regenstein, 258 F.2d 502 (C.A. 5th 1958), Hyman was an inventor and former employee of Regenstein's
corporation, Velsicol. While employed at Velsicol, Hyman purportedly signed an agreement to assign all inventions and
patents over to Velsicol. Subsequently, Hyman quit Velsicol and started his own corporation utilizing some of the
inventions developed at Velsicol. Velsicol sued Julius Hyman & Co., and the Supreme Court of Colorado enjoined
further use of the inventions finding the agreement to assign valid. Julius Hyman & Co. v. Velsicol Corp., 123 Colo. 563,
233 P.2d 977 (1951); cert. denied 342 U.S. 870, 72 S.Ct. 113, 96 L.Ed. 654 (1951). Later Hyman sued Regenstein for
damages for loss of profits on the inventions. The United States Court of Appeals for the Fifth Circuit held that the
previous suit barred Hyman from contesting the validity of the agreement to assign. That issue had already been
decided, and though Hyman had been sued in his corporate rather than individual capacity, he was aware of and
involved in the previous litigation, and thus was bound by that judgment.
The idea of binding a participating nonparty is not novel in the Fifth Circuit. Before the Hyman case, Co-op Cab Co. v.
Settle, 171 F.2d 40 (C.C.A. 5th 1948), held a nonparty bound. In Co-op, the city of Athens, Georgia had denied permits to
operate a taxi business to Co-op's competitors. The competitors sought judicial aid in obtaining the permits. The city
defended with Co-op assisting as a nonparty. The trial court held that the permits must issue, and the Georgia Supreme
Court affirmed. Thereafter Co-op entered the picture as a party and attempted to enjoin the issuance of the permits. In
affirming the district court's decision, the Fifth Circuit adopted the trial judge's language:
I think the plaintiff, Co-Op Cab Company, is bound by the decree in the [previous] proceeding. It is true
that it was not a formal party in the case, but it had full knowledge, and an active interest in the litigation. It
furnished and paid its own counsel to defend the defendant City. The issues here could have been raised
in the proceeding.
. . . . .
It may fairly be said that Co-Op, in substance, adopted the State Court litigation for the protection of its
contract and franchise, and relied on sustaining the City's refusal to grant Settle a franchise. I think Co-Op
is bound by the consequences. Id. at 42.
A third type of interest which has been held sufficient to bind a nonparty "exists when the nonparty has some legal right,
interest or duty dependent on a question of fact or mixed fact and law that is in issue in the suit." Moore, 1B Federal
Practice ¶ 0.411[6] p. 1559 (1974). After describing some cases which take a somewhat narrow view, Moore explains his
position:
But a different, and we are inclined to believe better, view, adopted by the Restatement of Judgments,
518
[See Restatement of Judgments (1942) § 84] is that an interest in the determination of a question of fact or
of mixed fact and law, with reference to the same subject matter or transaction, is a sufficient interest *518
to bring a participating nonparty within the scope of the judgment's conclusive force. And the Restatement
position receives support from cases in some areas. Id. at 1562. For a list of cases see n. 25.
Furthermore, Moore finds that some cases will qualify for the use of res judicata because all three types of interests are
involved. Id. at 1563. A common example is a patent infringement suit. Judge Brown explained the concept in the case of
Bros., Inc. v. W. E. Grace Mfg. Co., 261 F.2d 428 (C.A. 5th 1958). The Division of Archives comes under all three of the
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
7/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
interests described by Moore. The Division of Archives had a proprietary right that was affected by the litigation's
outcome. Also, the Division of Archives' interest depended to an extent on questions of fact or mixed law and fact
questions in issue in the previous suit. Having stood on the sidelines and advised the federal government in its
prosecution of the case (in fact even admitting that the General Counsel for the Secretary of State worked with the United
States in presenting its case), the Division of Archives cannot now be allowed to escape the conclusive effects of that
judgment.
In addition to having an appropriate interest in the litigation, a nonparty, to be bound, must have a requisite degree of
participation in the suit. Moore, 1B Federal Practice ¶ 0.411[6] p. 1564 (1974).
Generally speaking, the rule as to participating non-parties requires that the non-party have control, or at
least joint control of the prosecution or defense of the suit . . . The non-party's control, however, need not
be absolute: joint control by non-parties, or in conjunction with a party, is sufficient. Id. at 1564, 1566
[citing numerous cases].
Logically, the requirement of control is based on the need to insure that the nonparty truly had his day in court before
involving the binding effect of the prior judgment. Where a nonparty participated in the progress of the suit, was at all
times aware of the interests being adjudicated, and had the opportunity to intervene, less control should be necessary to
invoke the res judicata effect of the judgment. Though the Division of Archives did not control every aspect of the case,
their attorney worked with the federal government; and the state and federal government cooperated in negotiations
regarding the disposition of the Atocha, its cargo, etc. The Division purposely relied on the United States to protect its
interests in the hope of obtaining a share without having to come into the litigation to assert its own claim. Being content
to accept the representation of the federal government, and cooperate with the United States behind the scenes, the
Division of Archives should be considered to have participated sufficiently to be bound as a nonparty. As the earlier
discussion pointed out, the failure to intervene should render the Division bound regardless of the amount of the
participation. The extent of the state's entanglement with and reliance on the federal government in this case simply
serves to highlight the fact that equitable principles call for the Division to be bound.
ANCILLARY PROCESS AUTHORIZED TO ARREST SALVAGED ARTICLES
PERTAINING TO RES THAT HAD BEEN REMOVED FROM THE SOUTHERN
DISTRICT.
In the alternative, even if the Division of Archives were not bound by the prior judgment, this Court had jurisdiction to
issue the warrant of arrest and seize the salvaged articles in question.
After receipt of the mandate, ancillary process was issued in reference to certain articles of salvage. The warrant for
arrest to obtain the property in question is authorized by Supplemental Admiralty Rule C(5). The Division of Archives has
attempted to block service of the writ. The Court of Appeals for the Fifth Circuit refused to issue a Writ of Prohibition
against the service of such writ. The Fifth Circuit in denying the Petition for Reconsideration and Clarification stated:
519
The question of the jurisdiction of the District Court for the Southern District of Florida is for that Court to
determine *519 in the first instance on the basis of such record as may be developed in that Court.
The Division of Archives had taken the position before the Fifth Circuit that as a matter of law this Court could have no
possible jurisdiction to issue the warrant for arrest in question under Admiralty Rules C(3) and the Platoro Limited, Inc. v.
Unidentified Remains of a Vessel, 508 F.2d 1113 (5th Cir. 1975). Under the facts in this record, jurisdiction to issue
warrant for arrest exists. The key fact is that this Court did acquire valid in rem jurisdiction and in personam jurisdiction in
reference to the res situated within the Southern District and is merely seeking by ancillary process to recover a portion
of salvaged articles that have been removed from the Southern District. In the instant case the warrant for arrest was
ancillary in aid of the Court's unquestioned jurisdiction over the res previously arrested and seized within the Southern
District. Further, Fed.R.Civ.P. 4(f) provides that all service of process, except subpoenas, by a Federal District Court is co-
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
8/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
extensive with the state in which it is sitting. Under Supplemental Admiralty Rule A, the Rules of Civil Procedure apply
except where "inconsistent with these supplemental rules." Division of Archives contends that the warrant for arrest
cannot issue to seize property in the Northern District because Supplemental Admiralty Rule E(3) limits the service of
process under Admiralty Rule C(3) to the district. There is no such limitation, however, on ancillary process under Rule
C(5).
The Division of Archives' interpretation is not warranted under the rules and is not consistent with the Platoro decision
nor with the decision of the Fifth Circuit in the present proceedings. Indeed, in Platoro, the Court recognized in rem
jurisdiction could be acquired and, thus, the process could be issued, when the res was accidentally, fraudulently, or
improperly removed from the District. 508 F.2d at 1116. The holding in Platoro is applicable only if no portion of the res
had been validly arrested within the Southern District of Florida and if no other basis for the exceptions existed. The facts
in Platoro differ markedly from the case at bar. Platoro involved the problem of invoking original in rem jurisdiction when
no portion of the res was present in the district when the suit was filed. In contrast, the issue before this court centers on
ancillary jurisdiction, since original jurisdiction has been established as stated. In Platoro, the plaintiffs had removed the
salvage from the district. In the present case, the Division, rather than Treasure Salvors, removed the articles of salvage
from the Southern District. The Court finds this removal was improper and was accomplished pursuant to an invalid
contract with Treasure Salvors. The Division then insisted on wrongfully detaining those portions of the res over which
this Court had ancillary jurisdiction.
Professor Moore notes:
Moreover, to the extent a decree in rem may be said to effect all the normal incidents of the arrested res, it
may be necessary to give extra territorial effect to ancillary process to enable the court to bring within its
control all property its decree will affect. It would seem that the verdict is not yet in on whether Rule E(3)
prevents issuance of ancillary process beyond the geographic boundaries of the district in which a major
portion of that res is physically located. 7A Moore's Federal Practice ¶ C.15 p. 700.10.
520
If the verdict is not in, it is now. The use of ancillary process to protect and perfect an existing in rem jurisdiction over
articles removed to another district is proper. A contrary result would produce a multiplicity of lawsuits and conflicting
judgments, for it then would be necessary even though one federal district court had in rem jurisdiction, to institute new
and separate proceedings in every district where a portion of the res has been removed — hardly a desirable goal.
Persuasive, if not controlling, authority for utilization of the ancillary process to obtain in rem jurisdiction over some
articles beyond the Court's boundaries, predicated on existence of a substantial portion of the res within such district, is
the Fifth Circuit's opinion in this case. The Fifth Circuit *520 was well aware that although a substantial portion of the
vessel's cargo was within the jurisdiction of the district court, it was not possible to physically bring all of the res within the
district.
Initially we note that for all practical purposes it was impossible to bring the entire remains of the vessel
and her cargo within the territorial jurisdiction of the court. Thousands of items retrieved from the wreck
site were brought into the district, but the bulk of the wreck lies buried under tons of sand in international
waters. The district court did everything within its power to have the marshal arrest the vessel and bring it
within the custody of the court. Thus, there is little danger that the res, against which any claims might be
satisfied, will escape an in rem decree against it. 569 F.2d at 335.
Upholding jurisdiction in the instant case will be fully in accord with the admonition given by the Fifth Circuit:
These decisions evidence the common concern of the courts with finding the most practical and
efficacious means of resolving the disputes before them. An interest in rendering justice rather than an
automatistic reliance upon rigid legalisms characterizes each of them. It is with these examples before us
that we turn to an examination of the merits of the government's jurisdictional challenge. 569 F.2d at 334.
The validity of ancillary process outside the district is supported by the case of The Joseph Gorham, 13 F.Cas. 1136
(D.Conn. 1843). In Gorham, a ship was arrested in the Southern District of New York. Later, the ship was improperly
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
9/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
removed to the District of Connecticut. The federal court for the Southern District of New York petitioned the federal court
for the District of Connecticut to arrest the vessel and return it to New York. The federal court in Connecticut complied
with the request, noting that the right to possession properly belonged to the court in New York, and the marshal for that
court "[may] have followed [the ship] any where and retaken her." Id. at 1140. Similarly, although this court has not
petitioned the Northern District to arrest the res in the possession of the Division, the marshal for this district, pursuant to
Gorham, could have come to the Northern District and effected the arrest himself.
With regard to process, the case of The Phebe, 19 F.Cas. 426 (D.Maine 1837) is also instructive. The Phebe involved a
challenge to the court's jurisdiction to issue process against the purchaser of a ship at a marshal's sale. The court stated
that:
Process in rem is founded on a right in the thing, jus in re, and the object of the process is to obtain the
thing itself . . It is not, therefore, a valid objection to the issuing the process asked for, that the person
against whom it is asked is neither a party in the cause nor an officer of the court. It is a process that lies
against any person who by any means, whether under color of legal process from some other tribunal or
without it, has obtained the possession of that which is in the legal custody of the court. Id. at 427.
The Division has obtained the possession of property which is in the legal custody of this Court. The property in question
is part of the entire vessel over which this Court has complete jurisdiction, regardless of whether the property was
removed from the vessel prior to the vessel's arrest. The George Prescott, 10 F.Cas. 222 (E.D.N.Y. 1865); The Joseph
Warner, 32 F.Supp. 532 (D.Mass.1939). Consequently, the warrant for the arrest of the property in the Northern District is
a valid exercise of ancillary process in aid of existing jurisdiction, and, as such, the warrant should be executed.
The language of Rule C(5) governing ancillary process seems perfectly clear and applicable:
In any action in rem in which process has been served as provided in this rule, if any part of the property
that is the subject of the action has not been brought within the control of the court because it has been
removed . . . The court may, on motion, order . . . to show cause why it should not be delivered into the
custody of the marshal . . .
521
*521 The provisions of Rule C(5) were followed to the letter. This Court denied the Division of Archives' motion on the
show cause.
The upholding of jurisdiction is also fully in accord with the provision of 28 U.S.C. § 1692 regarding property in different
districts:
In proceedings in a district court where a receiver is appointed for property, real, personal, or mixed,
situated in different districts, process may issue and be executed in any such district as if the property lay
wholly within one district, but orders affecting the property shall be entered of record in each of such
districts.
In the alternative, even if the Division of Archives were not bound by the previous decree, this Court holds it acquired in
rem jurisdiction over the articles of salvage in question through proper issuance of the ancillary warrant of arrest.
DIVISION OF ARCHIVES' CLAIM TO PROPERTY WITHOUT MERIT
The portion of the res seized under the warrant of arrest was comprised of articles of salvage recovered from a wreck site
located outside the jurisdiction of the State of Florida and on lands not owned or possessed by the State of Florida.
Section 267.061(1)(b), Florida Statutes, which purports to vest title in the State does not apply since the property was not
on "sovereignty lands of the State." The Division of Archives has no right nor interest in such property other than what
might exist under an ultra vires contract between the Division and Treasure Salvors. Contrary to the Division of Archives'
argument, the Supreme Court in United States v. Florida, 420 U.S. 531, 95 S.Ct. 1162, 43 L.Ed.2d 375 (1975), did not
modify nor change the State of Florida's seaward boundary but merely defined it as it was and is. Nevertheless, the
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
10/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
Division persists in arguing that the State's jurisdiction extends beyond the sovereign territorial waters of the United
States for purposes of salvage. This Court rejects as specious a claim that the State for purposes of salvage has greater
extraterritorial rights than the United States. The argument of Florida also would be in contravention to the Convention
on the Outer Continental Shelf. April 29, 1958, 15 U.S.T. 471 (1964) T.I.A.S. No. 5578, 499 U.N.T.S. 31. The report of the
International Law Commission written in conjunction with the Convention states:
It is clearly understood that the rights in question do not cover objects such as wrecked ships and their
cargos (including bullion) lying on the seabed or covered by the sand of the subsoil. 11 U.S. GAOR,
Supp. 9 at 42, U.N. Doc A/3159 (1956).
The territorial rights and limits of the United States were determined by the Fifth Circuit in this case. 569 F.2d 330 supra.
The Division of Archives has offered no creditable factual evidence to support its novel theories. This Court finds the
wreck site of the Atocha from which the salvage articles in question were recovered was outside of Florida's jurisdiction.
Although the Division of Archives should have intervened earlier, at the stage where the Court acquired in rem
jurisdiction over the present articles of salvage, the Division of Archives had the option to decide whether or not it would
claim an interest in the property. The Division chose to assert on the merits, a claim to the property. Under the judgment
of this Court, as affirmed by the Fifth Circuit, Treasure Salvors has a valid claim to the property seized, unless the State
asserts and establishes a superior claim.
522
Since the state asserts a claim in this proceeding to the property, it necessarily waives any Eleventh Amendment
objections. Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883); Gunter v. Atlantic Coast Line Railroad, 200
U.S. 273 (1906); Gardner v. State of New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504 (1947). See discussion of the
Eleventh Amendment and Sovereign Immunity, infra. The Division of Archives obviously cannot ride both horses; it
cannot properly assert a claim to ownership of the property and, simultaneously assert immunity under the Eleventh
Amendment. These Supreme Court cases hold that when a state voluntarily *522 places itself in the position of a suitor, it
is deemed to have laid aside its sovereignty and to have assumed the status of an ordinary suitor so far as concerns any
matters properly defensive.
In Langley v. Irons Land and Development Co., 94 Fla. 1010, 114 So. 769, 771-72 (1927), which remains the principal
Florida case on invalidation of contract as a result of mistake, the Florida Supreme Court adopted the following
statements from 4 Ruling Case Law 506:
The jurisdiction of equity to decree the cancellation of an instrument because at the time of its execution
the parties, or even one of them, labored under a mistake of fact, is well recognized; and the rule is the
same whether the instrument relates to an executory agreement, or one that has been executed . . . [T]he
authorities are practically unanimous in holding that the mistake must not result from the want of that
degree of care and diligence which would be exercised by persons of reasonable prudence under the
same circumstances, or equity will not relieve against it. Moreover, a mistake such as will entitle one to
cancellation must be material to the transaction and affect the substance thereof, rather than a mere
incident or the inducement for entering into it.
In this regard, the general maritime law, controlling here is on all fours with that of Florida. See Norris, supra § 167; The
Alert, 56 F. 721 (S.D.N.Y.1893); The Clotilde, Fed.Cas. 2903 (D.Me.1872) (contract declared invalid for mutual mistake).
Under maritime law, a misstatement of fact by one of the parties will result in the contract being set aside. The
Clandeboye, 70 F. 631 (C.C.A. 4th 1895).
The coercive acts of the Division of Archives in threatening arrest and confiscation voids the contract under the general
maritime law. Crary v. The El Dorado, Fed.Cas. 3362 (S.D.N.Y.1856). Contracts entered into because of compulsion, or
inequality of bargaining position may be set aside. Norris, supra §§ 169, 170.
Even without the compulsion and coercion on the part of the Division of Archives, in the present case, a mutual mistake
of material fact — the location of the wreck site within Florida waters — provided each party's motivation to contract. Had
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
11/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
the parties known that, in fact, the property did not lay upon state sovereignty lands there would have been no reason to
contract regarding salvage operations. In addition, prior to the litigation to determine the boundary of the State, neither
party exercising reasonable diligence could have avoided the mistake of fact. The contract was therefore invalid from the
time of its execution, and the fact that it has been partially performed is of no consequence.
In addition to mutual mistake of material fact, the contract between the Division of Archives and Treasure Salvors is
invalid for lack or failure of consideration. See Marks v. Fields, 160 Fla. 789, 36 So.2d 612 (1948); Jones v. McCallum, 21
Fla. 392 (1885). The contract between the parties dated December 3, 1974, included in Exhibit 1, recites that the State of
Florida owns the land on which the wreck is located (page 1 of contract) and further recites that the State owns the wreck
and all materials found therein (page 2 of contract). In consideration of Treasure Salvors' payment of $1,200.00 and
covenants to salvage the sunken property, the Division of Archives conveyed to Treasure Salvors the salvage right to the
property. The Division of Archives agreed to convey, at the completion of the salvage operation, 75 percent of the
material salvaged.
There was at the very least a failure of consideration on the part of the Division under the statute on which the Division
relies. Section 267.061(1)(b), Florida Statutes, provides:
523
It is further declared to be the public policy of the state that all treasure trove, artifacts and such objects
having intrinsic or historical and archeological value which have been abandoned on state-owned lands
or state-owned sovereignty submerged lands shall belong to the state with the title thereto vested in the
division *523 of archives, history, and records management of the department of state for the purpose of
administration and protection. [Emphasis added].
Section 267.031(5), Florida Statutes, authorizes the Division of Archives to enter into contracts which are "necessary,
expedient, or incidental to the performance of its duties or the execution of its powers under this chapter."
Since the property was never actually located on Florida sovereignty submerged lands, the property did not belong to
the State and, as a result, the Division lacked all authority to enter a contract conveying salvage rights. Additionally,
since the property was not owned by the State, because not located on sovereignty submerged lands, the Division was
without authority to promise, as consideration for the contract, 75 percent of the property recovered. An early Florida
case which is still applicable adequately expresses the controlling legal maxim:
The law aptly terms as agreement to do an act or to pay money . . . where there is no consideration for it a
nudum pactum . . . a promise without legal support, which the law will not enforce . . . Jones v. McCallum,
21 Fla. 392, 395 (1885).
The contract at issue here must be deemed invalid. Aside from the coercion shown, the contract was entered into on the
basis of mutual mistake of a material fact and suffers from a complete lack or failure of consideration.
Rescission of the contract is a maritime remedy and courts have discretion in its application. Before rescission may be
granted, it must appear that the parties can be restored to the positions they held prior to formation of the contract. If
restoration of the status quo is not possible, rescission should not be granted. See McDonald v. Sanders, 103 Fla. 93,
137 So. 122, 126 (1931); Glass v. Craig, 83 Fla. 408, 91 So. 332, 336 (1922). But the fact that a contract is partially
executed will not operate as a bar to rescission of the contract if rescission is otherwise warranted. Langley v. Irons Land
Development Co., 94 Fla. 1010, 114 So. 769, 771 (1927).
Under facts of the present case the parties can easily be restored to their prior positions by distribution of the property in
the possession of this Court to Treasure Salvors.
The right to rescission has not been waived by Treasure Salvors. In Rood Co. v. Board of Public Instruction, 102 So.2d
139 (Fla.1958), the plaintiff was seeking rescission, on the basis of mistake, of a contract for sale of land and a deed
executed pursuant to the contract. The court stated that the right to rescission may be waived if, after acquiring
knowledge of the mistake, the party seeking rescission either "remains silent when he should speak or in any manner
recognizes the contract as binding upon him, ratifies or accepts the benefits thereof . . ." Id. at 141. Treasure Salvors did
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
12/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
not remain silent after learning of the mistake, nor did it thereafter recognize the contract as binding upon either party.
Instead, it notified the Division of Archives of the Supreme Court decision, suggested that the contract was null and void,
removed the state agent from its vessel and, on July 19, 1975, formally declared the contract null and void.
Further, the maritime courts require of all parties to a maritime contract the utmost good faith before they can assert rights
under the contract. Coercion and compulsion are evidence of bad faith. The acts of the State, contrary to the interests of
Treasure Salvors, who it now claims was their agent, are egregious acts of bad faith amounting to collusion to defeat the
claims of a person standing in a fiduciary relationship to the State. See Norris, Law of Salvage, Ch. VIII, Misconduct of
Salvors (1958). The maritime law allows the forfeiture of all salvage claims for acts of extreme bad faith of the nature
outlined above. The action of the Division, in seeking to obtain an interest from the United States, constituted a
524
repudiation by the Division of its contract with Treasure Salvors. In occupying a mutually inconsistent position *524 in its
dealings with the United States and with Treasure Salvors, the Division did not act in good faith towards Treasure
Salvors' rights. The Division performed no salvage service of value.
Additionally, the contract is invalid because the states cannot constitutionally alter general admiralty and maritime
jurisdiction and congressional acts thereunder. The Fifth Circuit in its decision in this case stated:
. . . although at least one state court has invoked English common law to award ownership of a sunken
vessel to the sovereign, the "American rule" vesting title in the finder has been widely recognized by
courts and writers. (Citations omitted). We accept the "American rule" as it has been uniformly
pronounced in the courts of this nation for over a century. Treasure Salvors v. Unidentified Wrecked, etc.,
569 F.2d 330, 343 (1978).
By this pronouncement, the Fifth Circuit puts into perspective the State's claim to wrecked and abandoned vessels such
as the one in the case at bar.
Norris observes:
It is the policy of the general maritime law to encourage the salvaging of derelict marine property on, and
in, navigable waters. The presumption by a state of title of possession to abandoned marine property on
navigable waters raises the serious constitutional question of the interference by a state of what is
essentially a federal problem. Norris, Law of Salvage, Section 157, p. 137 (1974 Cumulative
Supplement).
We are concerned with substantive maritime law that has been the subject of innumerable federal statutes, rules and
regulations. The power of Congress to enact substantive maritime law was initially considered conferred by the
Commerce Clause, e. g., The Daniel Ball, 10 Wall. (77 U.S.) 557, 564, 19 L.Ed. 999 (1871); The Robert W. Parsons, 191
U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73 (1903). Later opinions firmly establish that the source of the Congress's power was the
Admiralty grant itself, as supplemented by the Necessary and Proper Clause, as Justice Bradley said in Butler v. Boston
and S. S. S. Co., 130 U.S. 527, 9 S.Ct. 612, 619, 32 L.Ed. 1017 (1889):
[A]s the constitution extends the judicial power of the United States to "all cases of admiralty and maritime
jurisdiction," and as this jurisdiction is held to be exclusive, the power of legislation on the same subject
must necessarily be in the national legislature, and not in the state legislatures. (Emphasis added).
Accord: In re Garnett, 141 U.S. 1, 11 S.Ct. 840, 35 L.Ed. 631 (1891).
The insistence of the State that a finder of a wrecked and abandoned vessel not only does not get title but that it has the
right or authority to prohibit salvage or, if granted, to regulate salvage is in direct conflict with substantive maritime law.
Chapter 267, Florida Statutes, cannot be used to alter or prejudice the rights of a finder or salvager under applicable
maritime law. For the State to insist that Chapter 267, Florida Statutes, governs the rights of a finder or salvager would
lead to unconstitutionality of acts taken in such reliance.
This Court finds that Ch. 267.061 Fla.Stat. is not applicable to the articles of salvage in question. Because of the Division
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
13/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
of Archives' insistence that the statute does control, the Court further finds that under the provision of that chapter, the
Division still would not be entitled to prevail in this action for the several reasons previously stated. In the alternative, Ch.
267.061 Fla.Stat. is unconstitutional based upon the holding in United States v. Diaz, 499 F.2d 113 (9th Cir. 1974) noted
with apparent approval of the Fifth Circuit in this case. 569 F.2d at 340. The Diaz case held the federal statute 16 U.S.C.
§ 433 concerning objects of antiquity situated on land owned and controlled by the Government of the United States to
be unconstitutionally vague:
525
Nowhere here do we find any definition of such terms as "ruin" or "monument" (whether historic or
prehistoric) or "object of antiquity." The statute does not *525 limit itself to Indian reservations or to Indian
relics. Hobbyists who explore the desert and its ghost towns for arrowheads and antique bottles could
arguably find themselves within the Act's proscriptions. 499 F.2d at 114.
. . . . .
In our judgment the statute, by use of undefined terms of uncommon usage, is fatally vague in violation of
the due process clause of the Constitution. 499 F.2d at 115.
The court relied upon Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), and Grayned v.
City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
The Florida statute claims ownership of such items as artifacts, objects of antiquity, monuments, memorials, treasure
trove, shipwrecks, etc., and is substantially identical to the Federal Act. In only one instance does the Florida Act attempt
definition, and this definition is confusing. Treasure trove is defined as "gold, silver bullion, jewelry, pottery, ceramics,
antique tools and fittings, ancient weapons, etc." The meaning of treasure trove at common law would not include
articles of salvage.
Treasure trove is a name given by the early common law to any gold or silver, plate or bullion, found
concealed in the earth, or in a house or other private place, but not lying on the ground, the owner of the
discovered treasure being unknown. Livermore v. White, 74 Me. 452, 456 (1883), Sovern v. Yoran, 16
Ore. 269, 20 P. 100, 8 Am.St.Rept. 293 (1888) (Emphasis added.)
. . . [i]t is essential to the character of treasure trove that it shall have been concealed by the owner for
safekeeping. 1 Am.Jur.2d p. 6. Perry, Sovereign Rights in Sunken Treasure, Land and Natural Resources
Division Journal, U.S. Dept. of Justice, Vol. 7, No. 3, p. 89, 1969. (Emphasis added).
The extent of control over which the Division of Archives claims in reference to maritime salvage operations also raises a
serious question of interference with the jurisdiction of the federal courts in admiralty and maritime matters.
No legislation is valid if it contravenes an essential purpose expressed by Act of Congress or works material prejudice to
characteristic features of general maritime law, or interferes with proper harmony and uniformity of that law in its
international and interstate relations. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917),
Clyde S. S. Co. v. Walker, 244 U.S. 255, 37 S.Ct. 545, 61 L.Ed. 1116 (1917). No state has power to abolish the well
recognized maritime rule concerning measure or recovery and substitute, therefore the full indemnity rule of the common
law. See Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). The entire subject of
maritime law including its substantive as well as its procedural features is under federal control. "The Congress thus has
paramount power to determine the maritime law which shall prevail throughout the country." Detroit Trust Co. v. Barlum
S. S. Co., 293 U.S. 21, 43, 55 S.Ct. 31, 38, 79 L.Ed. 176 (1934).
There can be no doubt that the attempt by the Division of Archives, under the extremely vague terms of Chapter 267,
Florida Statutes, to alter general maritime law is a new and unprecedented concept. Chapter 267 and its administrative
interpretation in Chapter 1A-0.01 through 1A-31, Florida Administrative Code, seeks to completely govern search,
salvage and the ultimate division of recovered items. Section 1A-31.09, Florida Administrative Code, goes so far as to
claim all items recovered and then leaving to the Division of Archives the complete control of any division with the
finder/salvor. The application of Chapter 267, Florida Statutes to wrecked and abandoned vessels is beyond the state's
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
14/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
power as it is maritime in nature.
By Section 9, Judiciary Act of 1789, 1 Stat. 76, 77, the District Courts of the United States were given "exclusive original
526
cognizance of all civil cases of admiralty and maritime jurisdiction; . . . saving *526 to suitors, in all cases, the right of a
common law remedy, where the common law is competent to give it" and this grant has been continued. 28 U.S.C. §
1333. There can be no doubt that Congress has acted to regulate salvage. The Salvage Act of 1912, 37 Stat. 242 (1912)
46 U.S.C. §§ 727-31.
The claim of the Division to the salvage articles based on the purported contract with Treasure Salvors is without merit.
The claim of the Division for a salvage award is denied by the reasons previously set forth.
NEITHER ELEVENTH AMENDMENT NOR SOVEREIGN IMMUNITY BAR
PRESENT PROCEEDINGS
The Division of Archives has urged in this Court and in the Fifth Circuit, on its application for stay and prohibition, that the
present proceeding is precluded by the Eleventh Amendment to the Federal Constitution. Although the amendment
when applicable can certainly bar an action against the State, the amendment is not violated under the structure of the
present proceedings. As noted previously, the Division of Archives had the choice to claim an interest in the res in this
proceeding. Since the Division of Archives chose to assert such a claim on the merits, it necessarily waived the Eleventh
Amendment as to its claim. The situation is directly analogous to a state filing a claim to a res under the jurisdiction of the
Federal Bankruptcy Court. Gardner v. State of New Jersey, 329 U.S. 565, 573-74, 67 S.Ct. 467, 472, 91 L.Ed. 504 (1947);
It is traditional bankruptcy law that he who invokes the aid of the bankruptcy court by offering a proof of
claim and demanding its allowance must abide the consequences of that procedure. Wiswall v. Campbell,
93 U.S. 347, 351, 23 L.Ed. 923 (1876). If the claimant is a State, the procedure of proof and allowance is
not transmitted into a suit against the State because the court entertains objections to the claim. The State
is seeking something from the debtor. No judgment is sought against the State. The whole process of
proof, allowance, and distribution is, shortly speaking, an adjudication of interests claimed in a res. It is
none the less such because the claim is rejected in toto, reduced in part, given a priority inferior to that
claimed, or satisfied in some way other than payment in cash. When the State becomes the actor and files
a claim against the fund it waives any immunity which it otherwise might have had respecting the
adjudication of the claim. See Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882, 883, 27 L.Ed. 780
(1883); Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284-289, 26 S.Ct. 252, 256-258, 50 L.Ed. 447
(1906); Missouri v. Fiske, 290 U.S. 18, 24, 25, 54 S.Ct. 18, 20, 78 L.Ed. 145 (1933).
The admiralty proceedings before the Court following the supplemental process can be resolved on the basis of the
presentation and determination of the validity of the Division of Archives' claim. Other than determining that the Division
of Archives' claim to the property is without merit, it is not necessary for this Court to adjudicate a claim by any of the
parties against the State of Florida. Accordingly, any separate claims against the Division of Archives are dismissed
without prejudice.
In this case, the Court on April 6, 1978, after receipt of mandate, issued the ancillary warrant of arrest to aid and carry out
the judgment of this Court as affirmed by the Fifth Circuit. The Motion for the warrant correctly stated that "the State of
Florida and said L. Ross Morrell and James McBeth were privy to this litigation," and asserted facts reflecting that the
warrant was in reference to this Court's existing jurisdiction as affirmed by the Fifth Circuit. The State of Florida obtained
an emergency stay of the warrant from a circuit judge of the Fifth Circuit on April 12, 1978. It is significant to note that the
warrant was not issued in response to Treasure Salvors' Supplemental Complaint for Declaratory Judgment and Other
Relief which was filed April 17, 1978.
527
In both this Court and the Fifth Circuit, the Division of Archives relies on In re *527 State of New York, 256 U.S. 490, 41
S.Ct. 588, 65 L.Ed. 1057 (1921), which upheld the immunity of a state to an in personam suit in Admiralty under the
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
15/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
Eleventh Amendment. The present proceedings, however, are in rem as the result of the issuance of ancillary warrant of
arrest and are governed by holdings In re State of New York (the Queen City), 256 U.S. 503, 41 S.Ct. 592, 65 L.Ed. 1063
(1921) and In re Muir, 254 U.S. 522, 41 S.Ct. 185, 65 L.Ed. 383 (1921).
The Queen City case was a libel in rem, "to recover damages alleged to have been sustained through the death of
deceased by drowning due to the negligent operation of the Queen City . . .." 256 U.S. at 508, 41 S.Ct. at 592. The
Supreme Court after accepting as a jurisdictional fact that the Queen City was the "property of the state of New York"
ruled that the State was exempt from the in rem proceeding against the vessel because it was "public property of a state
used and employed for public and governmental purposes." 256 U.S. at 511, 41 S.Ct. at 593. The Court ruled that since
the state's ownership of the vessel had been duly accepted in the proceedings below, the ownership now could not be
contested. It is significant that the issue of ownership was treated as a jurisdictional fact for the Court to first determine as
a prerequisite in determining the exemption. The Supreme Court distinguished In re Muir where the Court had refused to
issue a Writ of Prohibition against an in rem proceeding because the ownership of the vessel (British Government) was
not clear under the record. The Supreme Court noted:
[I]t is apparent that the status of the Gleneden, [the ship which may have been in British service] . . . is at
best doubtful and uncertain, both as matter of fact and in point of law. The jurisdiction of that court is
correspondingly in doubt, for it turns on the status of the vessel. The suit is still in the interlocutory stage.
The court may take up again the question of its jurisdiction. If it does, the inquiry may proceed on other
lines and the facts may be brought out more fully than before. 254 U.S. at 533, 41 S.Ct. at 188.
The Fifth Circuit in this case denied the Writ of Prohibition noting that the question of jurisdiction was first to be
developed in this Court. As a jurisdictional fact this Court finds the Division of Archives is not and never was the owner of
the ship Atocha, her tackle, apparel, cargo, etc. This Court finds as fact that the Division of Archives is not and never was
the rightful owner of the articles of salvage from the ship Atocha that were seized by the ancillary warrant of arrest and
which have been improperly removed and held by the Division of Archives; that the Division of Archives is not the owner
of any right or interest in such property based upon the purported and invalid contract with Treasure Salvors; and that the
Division of Archives was wrongfully withholding a portion of the res of the Atocha over which this Court was properly
exercising in rem jurisdiction.
There is no Eleventh Amendment bar to the mere arrest of articles of salvage unless the state is the owner. If the state is
not the owner, the court may proceed. It is axiomatic that the federal courts have jurisdiction to determine jurisdiction; e.
g., United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). This would of necessity
require judicial determination of a state's immunity from jurisdiction. As reflected by the Supreme Court cases involving
the Eleventh Amendment, the determination of the immunity question is a jurisdictional matter within the province of the
courts; it is not both a self-proclaimed and self-determined ukase of the state.
528
The present admiralty proceeding thus involves a portion of the salvaged articles pertaining to a res that previously was
properly brought before the jurisdiction of this Court. The Division of Archives' argument in reality is predicated upon a
different situation: in essence the state argues that Treasure Salvors could not institute an independent action against
the Division of Archives seeking a judgment for the value of the articles wrongfully taken by the Division *528 of
Archives. Perhaps the short answer to the Division of Archives' contention is that, even if this hypothetical situation were
the case, under a controlling precedent of the Florida Supreme Court, sovereign immunity would not necessarily bar
such action. As Justice Terrell ruled for the Florida Supreme Court in State Road Department of Florida v. Tharp, 146 Fla.
745, 1 So.2d 868 (1949):
Immunity of the State from suit does not afford relief against an unconstitutional statute or against a duty
imposed on a State officer by statute, nor does it afford a State officer relief for trespassing on the rights of
an individual even if he assumes to act under legal authority. It will not relieve the State against any illegal
act for depriving a citizen of his property; neither will it be permitted as a plea to defeat the recovery of
land or other property wrongfully taken by the State through its officers and held in the name of the State.
It will not be permitted as a City of refuge for a State agency which appropriates private property before
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
16/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
the value has been fixed and paid. 1 So.2d at 869.
The Eleventh Amendment is a shield to protect the fiscal integrity of the State. It is not a sword whereby agents of the
State can take and appropriate the property and lives of its citizens without due process. The public policy of Florida, as
held by the State's highest Court, does not tolerate misguided State employees trampling upon the basic constitutional
rights of its citizens and then covering up such wrong-doings under a guise of sovereign immunity. Although the State
must act through its agents, the wrongful activities of the employees of the Division of Archives are not immune. The
Court finds that the agents for the Division of Archives wrongfully, and in violation of basic due process rights under
Federal and Florida law, deprived Treasure Salvors of its property.
Although unnecessary to the resolution of the application of the Eleventh Amendment to the present suit, there are
additional and alternative reasons that would restrict the broad and general application of the Eleventh Amendment to
admiralty proceedings as urged by the Division of Archives. The Division of Archives has the power to contract and, as
testified by the Deputy Secretary of State, has the power to sue and be sued. If the Deputy Secretary of State is correct,
this would arguably constitute a waiver of immunity to contract actions.
The State Constitution authorizes the legislature to waive sovereign immunity. Fla.Const. art. 10 § 13. The legislature
has waived immunity and specifically authorized suits to quiet title where the state claims an interest or lien and the
plaintiff seeks to execute or foreclose a lien. Section 69.041, Florida Statutes. A suit to quiet title and to establish and
foreclose a salvage lien is such a suit. Since the Division of Archives has no title to the property in suit, its claim at most,
is a lien arising under the contract. The Division of Archives then claims, under the contract of salvage, that it is entitled to
the articles of salvage, since the contract was partially executed. But a contract does not vest title in and of itself. Under
maritime law the most that a contract for salvage vests in the parties to a salvage contract is a maritime lien.
Further, the legislature has authorized suits to establish claims to abandoned property. Chapters 716 and 717, Florida
Statutes. Sections 716.07 and 717.22 specifically authorize suits to establish claims to abandoned property. This
authorization is not limited to the state courts, but even if it were, such a limitation would be void and an intrusion by the
State into an exclusive Federal domain, i. e., admiralty, where the claim is based upon the general maritime law.
529
The Division of Archives claims title under Section 267.061, Florida Statutes, purporting to vest title in the Department of
Archives. This section is inapplicable because this Court and the Fifth Circuit already established that the property in
question was found outside the territorial boundaries of the State and not on State sovereign lands. See Treasure
Salvors v. *529 Unidentified Wrecked, etc., 569 F.2d 330, 333 (C.A. 5th 1978). Hence, any claims the State has must of
necessity fall under Chapter 716 or 717, Florida Statutes.
The State could not create a state court remedy that would apply to the pure admiralty right to award salvage service:
The admiralty courts have exclusive jurisdiction in cases of salvage . . . based on the elements of a
salvage service . . . common law courts can assess damages based upon contract, but cannot make a
salvage award in the nature of a bounty for meritorious service rendered and to encourage others to do
likewise. Norris, The Law of Salvage § 14 (1958).
Hence, the administrative claim provisions of Chapters 716 and 717 are inoperative in this purely maritime case and this
Court has jurisdiction to proceed to adjudicate title to the property now in the hands of the substitute custodian though
the effect will be to adjudicate the claim the Division of Archives has made to the property. This Court finds the Division of
Archives has no title, the inchoate lien under the salvage contract is abrogated, and Treasure Salvors' title, as originally
adjudicated, is confirmed.
In addition, this is not a suit to recover a money judgment from the State prohibited by Edelman v. Jordan, 415 U.S. 651,
94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) and Ford Motor Company v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347,
89 L.Ed. 389 (1945). Instead, Treasure Salvors here seeks to recover a portion of the property they own by virtue of
discovery and possession on the Outer Continental Shelf. If the Division of Archives were allowed to retain this property,
its officials would be acting outside the scope of their authority under state law since the state statutes under which they
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
17/18
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 459 F. Supp. 507 - Dist. Court, SD Florida 1978 - Google Scholar
claim do not apply outside the State's territory. The rationale of Home Tel. & Tel. v. Los Angeles, 227 U.S. 278, 33 S.Ct.
312, 57 L.Ed. 510 (1913) prohibits this result since to allow such action would be to deprive Treasure Salvors of their
property without due process in violation of the Fourteenth Amendment to the Constitution of the United States.
The State of Florida by engaging in a salvage operation outside of state boundaries, and outside the boundaries of the
United States of America, in an exclusive area of maritime jurisdiction, submitted any claims that it might have to the
jurisdiction of this admiralty court, a court of exclusive jurisdiction in in rem admiralty proceedings. This action constituted
a further waiver of sovereign immunity within the holding of Parden v. Terminal Railway of Alabama State Docks
Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). While Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347,
39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), may
seem to limit Parden, the rationale of those cases does not apply here. First, as previously noted, this is not a suit to
recover a money judgment from the state but rather an ancillary action by Treasure Salvors to bring within the jurisdiction
of the court property adjudicated to be its property as against the United States and others in privity with it. Second, the
limit mentioned in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), does not apply here because
there is no need for the "threshold fact of congressional authorization" to allow the plaintiff in this action to bring a suit in
reference to a state's maritime activity in international waters. The Constitution of the United States, Art. 3, Sec. 2, has
been interpreted to include a grant to the courts to declare the general maritime law and to supplement it — a true
legislative role. Hence, there is judicial authorization of a legislative nature giving express authorization to Treasure
Salvors and others similarly situated to assert a maritime claim just as explicit as the legislative grant in Parden.
For these reasons, and principally in reference to the discussion of Gardner v. State of New Jersey, 329 U.S. 565, 67
530
S.Ct. 467, 91 L.Ed. 504 (1947); In re State of New York (Queen City), 256 U.S. 503, 41 S.Ct. 592, 65 L.Ed. 1063 (1921);
In re Muir, 254 U.S. 522, 41 S.Ct. 185, 65 L.Ed. 383 (1921); and State *530 Road Department of Florida v. Tharp, 146
Fla. 745, 1 So.2d 868 (1949), this Court holds that neither the Eleventh Amendment nor sovereign immunity deprive this
Court of jurisdiction in its present proceedings.
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=459+F.Supp.+507&hl=en&as_sdt=400006&case=16330059143628239511&scilh=0
18/18
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
546 F.Supp. 919 (1981)
TREASURE SALVORS, INC., a corporation, and Armada Research Corp., a corporation,
Plaintiffs,
v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, " NUESTRA SENORA DE
ATOCHA," et al., and Olin Frick, John Gasque, William Riley, et al., Defendants.
No. 75-1416-Civ-SMA.
United States District Court, S. D. Florida, Key West Division.
July 2, 1981.
920
*920 David Paul Horan, Key West, Fla., for plaintiffs.
Reginald M. Hayden, Hayden & Milliken, Miami, Fla., for defendants.
921
*921 MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND
CONCLUSIONS OF LAW
ARONOVITZ, District Judge.
A modern-day odyssey of the sea has again unfolded in the United States District Court, Southern District of Florida, at
Key West, Florida, between opposing salvors and/or treasure hunters seeking to possess the wealth of Midas in a
scenario of true life so spectacular as to relegate the sea tales of Herman Melville and the glamour of a Hollywood
production to miniscule insignificance.
This battle over a shallow-water wreck site off the Keys and shoals of the Florida coastline has the drama associated
with the high seas and involves the exercise of admiralty and maritime jurisdiction by this Court.
Procedural Posture
In the initial chapter of this continuing saga, on June 13, 1975, Treasure Salvors, Inc. and Armada Research Corp. filed
this in rem and quasi-in rem (on in personam principles) action in the United States District Court for the Southern District
of Florida, seeking possession and confirmation of their title to the remains of an ancient shipwreck they had discovered,
believed to be the Nuestra Senora de Atocha, or alternatively an award for salvage services. The United States
intervened, counterclaiming for title to the vessel under the provisions of the Antiquities Act, 16 U.S.C. §§ 432 and 433,
and the Abandoned Property Act, 40 U.S.C. § 310. The late Honorable William O. Mehrtens, Senior United States District
Judge, entered summary judgment in favor of Treasure Salvors as against the United States, and also decreed that
Treasure Salvors had sole title and right of possession to the vessel and its cargo "wherever the same may be found" (as
against all claimants). See Treasure Salvors v. Abandoned Sailing Vessel, 408 F.Supp. 907 (S.D. Fla.1976). The Fifth
Circuit affirmed insofar as the ruling resolved the competing claims of Treasure Salvors and the United States, but
refused to approve that portion of the ruling which held that Treasure Salvors was entitled to sole and exclusive title and
possession as "to other claimants, if any there be, who are not parties or privies to this litigation." Treasure Salvors v.
Unidentified Wrecked, etc., 569 F.2d 330 (5th Cir. 1978) (Treasure Salvors I).
In a second and subsequent proceeding herein, Treasure Salvors and the State of Florida, Division of Archives, were
opposing parties. In the belief that the Atocha lay on submerged land owned by Florida, Treasure Salvors had entered
into a series of annual contracts with the State of Florida whereby Treasure Salvors was allowed to conduct salvage
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
1/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
operations on the Atocha site with the State of Florida to receive 25% of the property recovered. During 1975, the U.S.
Supreme Court rendered an opinion in U.S. v. Florida, 420 U.S. 531, 95 S.Ct. 1162, 43 L.Ed.2d 375 (1975), and
subsequently U.S. v. Florida, 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976). According to the Fifth Circuit in
Treasure Salvors II, infra, at p. 1350, "In U.S. v. Florida, however, the Supreme Court held that [Florida's] ownership claim
was without merit and that the lands never belonged to Florida."; and again in Treasure Salvors III, infra, at p. 563, "In
1975, the Supreme Court rejected Florida's claim to ownership of that portion of the continental shelf where the remains
of the Atocha rest, United States v. Florida, 420 U.S. 531, 95 S.Ct. 1162, 43 L.Ed.2d 375 (1975)." Judge Mehrtens
thereafter rendered judgment in favor of Treasure Salvors and against the State of Florida. Again the Fifth Circuit upheld
the decision on the grounds that the contract between Treasure Salvors and Florida was invalid due to mutual mistake
and a failure of consideration.[1] Treasure Salvors v. Unidentified Wrecked, etc., 459 F.Supp. 507 (S.D.Fla.1978), aff'd
922
621 F.2d 1340 (5th Cir. 1980), cert. granted 451 U.S. 982, 101 *922 S.Ct. 2312, 68 L.Ed.2d 838 (1981) (Treasure Salvors
II). This matter remains pending on certiorari review in the United States Supreme Court.
The dispute presently before the Court is between Treasure Salvors and another Key West based treasure salvor group.
Treasure Salvors initially defined the location of the wreck in terms of a circle having a radius of 2500 yards from a point
at 24°31.5' North Latitude and 82°50' West Longitude, where a large anchor believed to have come from the Atocha had
been found. This description of the location was amended by Treasure Salvors on two subsequent occasions, the last
amendment describing an area encompassing an axis from the initial point to a second point at coordinates 24°30' North
Latitude and 82°15' West Longitude, where a second anchor, also believed to have come from the Atocha, was found, a
distance alleged to be 9,750 yards from point to point, extending 2500 yards on each side of the axis. At the same time
that this latter amendment was filed, Treasure Salvors sought and obtained a Temporary Restraining Order, claiming that
Olin Frick, John Gasque, William Riley and the Masters of the motor vessels "Juniper" and "Seeker", rival salvors, were
wrongfully interfering with Treasure Salvors' possession and salvage of the Atocha by conducting salvage operations of
their own within 1500 yards of the point at which the second anchor was found and that threatening shots had been fired
from aboard the Juniper. Judge Mehrtens subsequently issued a preliminary injunction, which prohibited the defendants
from interfering with the search and salvage operations of Treasure Salvors and from searching for or salvaging within
the area extending 2500 yards to either side of a line drawn between the two points where the anchors were found, that
is, the points described in the amendment. Defendants appealed that Order.
The Fifth Circuit, after concluding that it had jurisdiction to review the Order issuing the preliminary injunction, held that
the District Court did have jurisdiction to resolve the dispute between these parties. Treasure Salvors v. Unidentified
Wrecked, etc., 640 F.2d 560 (5th Cir. 1981) (Treasure Salvors III). The Court found that 28 U.S.C. § 1333, which grants
federal courts jurisdiction over all cases involving admiralty or maritime claims, provided subject matter jurisdiction over
the competing salvage claims of the parties, despite the fact that the remains of the Atocha lie outside the territorial
waters of the United States. Id. at 566. The Court further found that the District Court had in personam jurisdiction over
the defendants and that since the salvor's claim was not one against the vessel, the fact that the Atocha lay outside the
territorial waters of the United States was irrelevant. Accordingly, the Fifth Circuit stated that the district court was "fully
competent to adjudicate the dispute." Id. at 568.
Having concluded that the Order Granting Preliminary Injunction was appealable and that the district court had
jurisdiction to enter the Order, the Fifth Circuit addressed the propriety of the preliminary injunction under the criteria set
out in, e. g., Canal Authority of the State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974). In attempting this review,
however, the panel felt hindered by the fact that the decision to issue the preliminary injunction had apparently been
based on evidence adduced at previous hearings of which the district court had taken judicial notice, rather than
evidence adduced at the hearing on the preliminary injunction, and that these prior proceedings had not been included
in the record on appeal by the parties. Because of these deficiencies, the panel stated it was unable to determine what
factors persuaded the district court that the Canal Authority prerequisites had been established. Thereupon, the Fifth
Circuit concluded:
In light of these circumstances, we decline to conclude that the district judge, who had the benefit of much
greater familiarity with the factual problems presented by the case than we have in view of the state of the
923
record in this case, abused his discretion in entering this injunction. However, given the exceptional *923
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
2/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
nature of this injunction, and the burdens it places on the defendants, we think that the merits of this
dispute should be resolved as quickly as possible. For this reason, we modify the district court's
preliminary injunction to provide that it shall expire no later than 90 days following the issuance of our
mandate. Thus, the parties to the dispute and the district court should arrange for a final hearing on the
merits of this controversy during that period.
Pursuant to the directions of the Fifth Circuit panel in Treasure Salvors III, a Final Hearing on Petitioners' Request for a
Permanent Injunction was held over a four-day period. At the hearing, the Court received testimony and numerous
exhibits in evidence, viewed a 47-minute National Geographic Society film on the Atocha search, saw more than 100
photo slides and heard testimony thereon, and had the benefit of counsel's oral argument as well as extensive
memoranda of law. After considering all the aforegoing and the applicable law, and being otherwise fully advised in the
premises, the Court sets forth herein its Findings of Fact and Conclusions of Law.
Background
The Tierra Firme Flota, consisting of 28 ships, sailed from Havana, Cuba on September 4, 1622. Included among the
galleons were the Nuestra Senora de Atocha and the Santa Margarita. The fleet was bound for Spain with cargo of gold
and silver bullion, specie, tobacco, copper ore and indigo. In the Florida Straits the fleet encountered a hurricane which
stripped masts, sails and rigging. One group of ships, including the Atocha and the Santa Margarita, were scattered and
those two vessels were believed to have sunk within one (1) marine league or three (3) nautical miles of each other in
the area now generally referred to as the Marquesas Keys.
When the Atocha left Havana she had as part of her cargo over 1 million pesos of registered bullion and specie aboard.
She carried 901 silver ingots, 250,827 silver coins, 161 gold bullion pieces, 582 copper planks, some 350 chests of
indigo, and 25 tons of tobacco in her registered cargo. The current value has been variously estimated at between 50
million and 200 million dollars.
A Spanish salvage effort was launched in 1622 as a result of which the hull of the Atocha was located in about 55 feet of
water intact with her mizzen mast projecting above water. The salvage party used the Marquesas Keys as the base of its
salvage operations naming them after the Marques of Cadereita who personally directed the search from the salvage
camp. Only minor recovery of items and articles occurred before a second hurricane intruded, resulting in a breakup of
the hull, a dispersal and removal of the surface buoys and a resultant loss of the site of the sunken ship. Several other
salvage attempts occurred in the mid 1600's and although somewhat successful with regard to some items recovered
from the Santa Margarita, results were unproductive in attempting to locate the Atocha.
In the mid 1960's, substantial efforts were renewed to locate the Atocha but this search by a number of treasure hunters
occurred in the middle Keys and in the vicinity of Matecumbe Key, many miles away. It was unproductive until, as later
referred to herein, Dr. Eugene Lyons, working for Treasure Salvors, unearthed a clue in the Archives of the Indies in
Seville, Spain, and first focused Mel Fisher and Treasure Salvors to the search near the Marquesas Keys.
Site Location
924
The so-called injuncted area overlaps the site concerning which the State of Florida had granted to Treasure Salvors
exploration rights (site 8MO141). The injuncted area lies 9.25 miles west, southwest of the Marquesas Keys. The latter
Keys are approximately 40 miles west of Key West, Florida, and approximately 35 miles east of Dry Tortugas. The
injuncted area lies wholly within the contiguous sea zone. The territorial sea extends in an arc 3 miles west of the
westernmost land of Marquesas *924 Key. Thereafter, the contiguous zone extends seaward for an additional 9 miles,
together comprising what is familiarly referred to as the twelve-mile zone (limit). See Plaintiffs' Exhibit 8 and Defendants'
Exhibit 5.
The so-called injuncted area consists of approximately 13.3 square miles in the Gulf of Mexico.[2] This is the area
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
3/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
described in the Temporary Restraining Order (December 11, 1979) and in the Preliminary Injunction (January 7, 1980)
as the area extending 2500 yards to either side of a line drawn between two points, the first located at 24°31.5' North
Latitude and 82°20' West Longitude, the second point located at 24°30' North Latitude and 82°15' West Longitude. State
of Florida site 8MO141 embraced approximately 18 square miles. See Plaintiffs' Exhibit 10 for a more detailed site
description, page 22.
According to the Constitution of the State of Florida (F.S.A.Const. Art. 2, § 1), the boundaries of the State of Florida
include an area set forth as follows:
[I]n a southerly direction along the edge of the Gulfstream or along a line three geographic miles from the
Atlantic coastline and three leagues distant from the Gulf of Mexico coastline, whichever is greater, to and
through the Straits of Florida and westerly, including the Florida reefs, to a point due south of and three
leagues from the southernmost point of the Marquesas Keys; thence westerly along a straight line to a
point due south of and three leagues from Loggerhead Key, the westernmost of the Dry Tortugas Islands;
thence westerly, northerly and easterly along the arc of a curve three leagues distant from Loggerhead
Key to a point due north of Loggerhead Key; thence northeast along a straight line to a point three
leagues from the coastline of Florida; ...
Within this definition the Marquesas Keys are Florida territory, subject to the declaration by the United States of the
Marquesas Keys as a wildlife refuge[3] by virtue of which the United States claims jurisdiction over the uplands above
the mean high water mark constituting the Marquesas Keys, i. e., effectively the entire Marquesas Keys.
Is It The Atocha?
In addressing this question it is first necessary to treat briefly the differences existing between shallow-water wreck sites
and deep-water wreck sites. Most frequently the thought process is directed towards wrecks such as the Titantic and the
Andria Dorea, which are of relatively recent origin and lie in hundreds of feet of water substantially intact with hull and
super-structure at a single site. In sharp contrast, a shallow-water wreck site found off the coast of Florida lies in or on the
continental shelf, in or on shoals or keys, on bedrock or covered by many feet of overburden such as sand, mud or
seagrass. The waters are relatively shallow and lend themselves to scuba diving and modern techniques of recovery.
925
In some shallow-water wrecks the hull or significant portion of a lost vessel has been found, but research has brought
recognition that over 350 years a wooden galleon disintegrates, is dispersed and passed along the shoals and shallow
waters, driven by the hurricanes that visit the area, the currents and natural phenomena, which would result in
substantial dispersal or "scatter" of the wreck site. Actually, this dispersal usually takes the form of a corridor from which
quantities of artifacts are found, including ballast and cargo, as well as pieces of wood, metal fasteners, hooks, anchors
and other artifacts of ship and cargo. It may well be *925 that a given wreck over a 350 year period can produce more
than one scatter pattern over thousands of yards each, and therefore more than one corridor caused by the travel left
from initial impact, subsequent dispersals and later impact areas.
This difference between shallow-water and deep-water wrecks explains the difficulties encountered in pinpointing a
specific location for salvage and would require, even with advanced, modern technology, a sufficient area of salvage
and search as well as a time span to allow retrieval from a primary impact or deposit area, which may cover square miles
of the sea.
From within the injuncted area plaintiffs have recovered several silver ingots. Three (3) of these ingots were compared
with entries in the manifest and registry of the Atocha. They corresponded in tally number, weight and silver fineness to
entries on the registry. One (1) of the three (3) bars also has inscribed upon it the same shipping mark as that written in
the margin of the registry document for the bar matching that design on the registry of the Atocha.
Nine (9) bronze cannons were found within the injuncted area in July, 1975, and all have been recovered. Four (4) of
these cannons bear foundry weight numbers inscribed on the breech molding or on the vent field and those numbers
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
4/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
tally with weight numbers of four (4) guns assigned to the Atocha and listed in the "Guard Fleet" artillery for that ship ("Agi
Indiferente General 1144"), Plaintiffs' Exhibit 11. All told, more than 20,000 artifacts have been recovered in and around
the injuncted area from 1971 to date, including thirty-four (34) muskets and arquebusses, forty-four (44) swords, fifteen
(15) daggers, eight-hundred fifty (850) body sherds, fifteen (15) vessel rims (olive jar assemblage), tin-glaze
earthenware, gold necklaces, more than six thousand (6000) silver coins, and ballast stones. The present value of the
recovered artifacts is $8,000,000.00. The search has resulted in a present day recovery by plaintiffs of an estimated
aggregate 5% of the artifacts of ship and cargo. Approximately 3% of the silver coins have been recovered.
Using a confluence of factors for identification purposes, including the matching of certain items to the ship's manifest,
but also established archeological techniques to date the eras of time during which the various artifacts such as the
swords, the sherds, the silver coins and other items are dated, has resulted in what is solid evidence attesting that the
wreck site area contains the remains of the Atocha and that some, if not all, of the artifacts derive from the Atocha through
recovery from the scatter pattern emanating from her shallow-water resting site. Whether or not a significant portion of
the hull or super-structure exists after 350 years of exposure to the elements is problematic. However, even defendants
believe that a significant portion of the hull remains intact and will be found beneath the 15 to 20 feet of sand. The
plaintiffs agree. This general agreement is strengthened by the fact that in 1980, at a location approximately three (3)
miles east of the injuncted area, parallel thereto and in an obvious scatter zone pattern, an 8 × 14' section of the superstructure or hull of a sister ship of the Atocha, namely the Santa Margarita, has been found and identified even more
precisely than the evidence of identification available as to the Atocha. See the photo-mosaic of the remains of the Santa
Margarita, Plaintiffs' Exhibit # 20.
The Salving/Search Effort
926
From 1971 to date, Plaintiffs have expended approximately $7.1 million dollars in salvaging and search operations for
the Atocha in and about the injuncted area. The 1980 budget alone was $1,100,000.00. This has included, at varying
times, as many as seven (7) vessels in operation, sixty (60) personnel, and the digging of hundreds of excavation sites.
Plaintiffs have placed hundreds of surface and sub-surface buoys and have established grid lines criss-crossing the
bottom over many square miles to form a basis for directing salvage and excavation of finds and further activity. The use
of surface buoys and bottom grid lines has extended from an area of a radius of 500 meters from the original point of
discovery *926 of the first anchor in the injuncted area and beyond in various directions an additional 800 to 1200
meters. The bottom grid lines and surface buoys have been renewed from time to time in selected zones. They have
been serviced and some replaced at varying times. Four (4) theodolite towers have been placed in the area to aid in
survey and location. Sonar scan devices have been used throughout that time frame. Scores, if not hundreds, of aerial
reconnaissance photos have been taken in the wreck site area and satellite photos have been scanned for leads. One of
the seven (7) vessels (Arbutus) used by plaintiffs has been anchored on site within the injuncted area continuously since
1975. From testimony adduced, the recovery efforts have continued and persisted in varying intensity at all times from
1971 to date, and the recovery of more than 20,000 artifacts attests to the success of those efforts.
Convincing testimony established a continuing presence of Treasure Salvors through its agents and employees and its
vessels within the injuncted area, and further established that at no time has it ever abandoned the recovery efforts as
relates to the Atocha. Treasure Salvors has met its burden of proof to establish "occupancy" of the injuncted area and
particularly the area in and around the first anchor site. It has taken possession and exercised dominion and control over
the artifacts it has recovered and the general area of its salvage and search operations. Its presence has not been
transitory. At minimum, Treasure Salvors has taken constructive possession of the wreck site as the nature and situation
permit. Eads v. Brazelton, 22 Ark. 499 (1861); Treasure Salvors III, pg. 572.
Equities
As noted above, this Court has found that Treasure Salvors has expended considerable sums of money and dedicated
vessels and manpower, as well as substantial equipment and efforts, to establish possession and control of the
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
5/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
injuncted area and the wreck site. It was the first to do so, at least according to testimony before this Court. Its presence
has been continuous.
The law protects not only the title generally acquired by one who finds lost or abandoned property but also the right of
the person who discovers such property and who is actively and ably engaged in reducing it to possession, to complete
this project without interference from another. Treasure Salvors III, pg. 572. It is clear from the evidence that prior to 1971,
Treasure Salvors and many other interested salvors in the recovery of the Atocha had explored sites in the Atlantic
Ocean, off the Florida Keys, in the Bay of Florida, along the Gulf of Mexico boundary of the Florida Keys, including
Matecumbe Key. However, it is equally clear and convincing from the evidence before this Court that Mel Fisher and
Treasure Salvors made the first major, primary effort to direct their attention to exploration in the Marquesas Keys area as
a result of Dr. Lyons' discovery in the Archives of the Indies in Seville, Spain. On a trial and error basis, Treasure Salvors
spent many months and years in areas east, as well as west, of the Marquesas. During that time it finally isolated a
promising, productive and responsive area now delineated as the injuncted area, as the likely recovery site of the
Atocha. For all intent and purposes, Treasure Salvors and/or Mel Fisher has acquired the rights of first finder of lost or
abandoned property, has been and is actively and ably engaged in reducing it to possession. It is engaged in a
salvaging operation coupled with the discovery procedure that goes with a "finds" situation which has developed over
350 years through the formation of the scatter pattern corridor of the shallow-water wreck of the Atocha.
927
As it relates to the rights of these defendants in these proceedings, this Court finds as a matter of fact and law that the
current efforts of the defendants commencing in December, 1979, to salvage or seek the Atocha within the injuncted
area, arises from information and/or facts made known to these defendants by the plaintiffs. The defendants engaged in
a contract salvage operation for the plaintiffs in 1976, to raise *927 from the bottom several cannons recovered from the
Atocha site. They therefore learned the pin-pointed area from information divulged to fulfill defendants' contract with
plaintiffs. Likewise, admittedly these defendants knew that plaintiffs claimed the Atocha was within the subject area
because two contracts introduced into evidence, namely, Plaintiffs' Exhibits 2A and 2B, clearly established that
defendants had knowledge that the Atocha was the alleged subject of the salvage operations of the plaintiffs within the
injuncted area.
Equally as important is the finding herewith made that these defendants neither had the capability to, nor did they
historically cultivate information to direct them to the site in the Marquesas Keys. They relied solely on information
divulged to them by plaintiffs and learned from onsite salvage operations for plaintiffs. Quite to the contrary, the evidence
is conclusive that the plaintiffs did engage in systematic search elsewhere for the Atocha prompted by historical review
and archeological study, which ultimately lead to the information which produced the current site. The equities, therefore,
in this respect are completely with the plaintiffs and against the defendants. To permit the defendants indiscriminately to
compete with plaintiffs and without protection to the first finder, would constitute unjust enrichment of the defendants. As
Judge Mehrtens held in his Order of Summary Judgment dated February 2, 1976:
Plaintiff asserts that, where a vessel has been abandoned, the finder in possession becomes the owner of
the vessel. Such a claim is properly within the scope of a salvage action. Broere v. Two Thousand One
Hundred Thirty Three Dol., 72 F.Supp. 115 (E.D.N.Y.1947). General principles of maritime and
international law dictate that an abandonment constitutes a repudiation of ownership, and that a party
taking possession under salvage operations may be considered a finder under the doctrine of "animus
revertendi," i. e., the owner has no intention of returning. Wiggins v. 1100 Tons, More Or Less, Of Italian
Marble, 186 F.Supp. 452, 456 (E.D.Va.1960). Ownership in the vessel would then vest in the finder by
operation of law. Rickard v. Pringle, 293 F.Supp. 981, 984 (E.D.N.Y.1968), citing Wiggins, supra, and 1
C.J.S. Abandonment § 9, p.18. Thus, those beginning a salvage service as to an abandoned vessel are
entitled to sole possession of the property. See Rickard v. Pringle, supra, at 985, citing The John Gilpin,
Fed.Cas.No. 7,345 (S.D.N.Y.), and Brady v. The Steamship African Queen, 179 F.Supp. 321, 323
(E.D.Va.1960).
It is well recognized in this Circuit that three elements must be established in order to present a salvage claim:
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
6/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
(1) A marine peril;
(2) Service voluntarily rendered when not required as a pre-existing duty; and
(3) Success, in whole or in part, of recovery of the imperilled property.
Legnos v. M/V Olga Jacob, 498 F.2d 666, 669 (5th Cir. 1974). The activities of Treasure Salvors with respect to the wreck
of the Atocha satisfy all these elements and therefore is a salvage operation within the meaning of the law. A marine
peril "includes more than the threat of storm, fire or piracy to a vessel in navigation." Treasure Salvors I, p. 337. The
concept of marine peril also includes a vessel which is discovered after being long lost but is "still in peril of being lost
through actions of the elements." Id. Accord, Platoro Ltd., Inc. v. Unidentified Remains, etc., 614 F.2d 1051 (5th Cir.
1980).
Archeological Impact
928
The uncontroverted evidence shows that plaintiffs have exhibited a keen awareness of the historic and archeological
importance attributed in general to old wreck sites, but specifically to the Atocha and Santa Margarita sites. Over the
course of the years plaintiffs have associated at least one archeologist and/or associates, a historian and assistants, for
the purpose of being present and recording finds of artifacts, the locations, the condition of the artifacts, the *928 listing
thereof, the taking of preservative steps and restorative efforts and protection of the public in viewing archeological finds.
This has included substantial expenditures for such historical and archeological services, the providing of working space
for archeological personnel with storage facilities such as wet storage tanks, laboratories, chemicals and supplies (see
Plaintiff's Exhibit 17 and the testimony of R. D. Matthewson, Archeologist). Very substantial efforts have been maintained
and strict control measures introduced to preserve the public interest in the protection of the historic and archeological
values associated with the finding of the Atocha and the Santa Margarita. These efforts constitute a significant equity
favoring the plaintiffs in the relief sought, because it is quite apparent that the defendants have no comparable capability,
nor have defendants sought to achieve such a capability. Testimony was adduced tending to establish that to allow
competing salvors to criss-cross their own paths through the wreck site area could result in substantial disturbance of the
historical and archeological capabilities by preventing chronological, comprehensive mapping, studying, preserving
through photographs and otherwise, the full value of the corridor. This would diminish the capabilities of the
archeologists to recreate with authenticity the full spectrum of life, represented by the wrecks and the wreck sites in the
early 17th century.
Archeologist Matthewson expressed the intertwined relationship of search, salvage and archeology as follows: (Tr. p.
624)
Search is very much part of the salvage efforts. I cannot really understand what happened to a shipwreck
without digging, without salvage. Search, salvage, ongoing research, archeological mapping is all part
and parcel of a whole operation.
Jurisdiction
This Court has jurisdiction over the subject matter pursuant to the Constitution of the United States, Article III, Section 2,
Clause 1, 28 U.S.C. § 1333, and Rule 9(h) Fed.R.Civ.P., as a case involving an admiralty and maritime claim. Claims
arising out of salvage operations are unquestionably within the admiralty jurisdiction of the federal courts. "The subject
matter jurisdiction thus granted is not limited to causes of action arising from acts or occurrences on the territorial waters
of the United States." Treasure Salvors III, pp. 566-67.
This Court has in personam jurisdiction of both sides to this controversy who are before the Court by virtue of process
duly served and issues thereon raised. Both sides concede in personam jurisdiction although this would not in itself vest
jurisdiction. The Fifth Circuit held in Treasure Salvors III, at p. 566:
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
7/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
The district court has jurisdiction to adjudicate the dispute between Treasure Salvors and the Frick group
because it has perfected its in personam jurisdiction over the parties to this dispute and because it has
jurisdiction over the subject matter of the controversy pursuant to 28 U.S.C. § 1333.
Whether or not this Court has jurisdiction in rem is a more complex question. Upon the answer to this question, however,
does not necessarily rest the jurisdiction of this Court to consider or grant injunctive relief exercised over the parties in
personam. And as the Fifth Circuit stated in Treasure Salvors I, at p. 334:
However, as commentators have noted, the Supreme Court appears to favor the position that the
presence of the res within the district is not an absolute prerequisite to the court's jurisdiction.
See also footnote 4 in same Opinion. Both Judge Mehrtens and this Court have characterized the plaintiffs' pending
action as a proceeding in rem or quasi-in rem (founded upon in personam principles). There are several persuasive
factors:
929
(a) More than 20,000 artifacts have been located in and around the injuncted area, have been recovered, and at one
time, or now, have been, or are within the Southern District of Florida. This constitutes about 5% of vessel and cargo. It is
a significant recovery of portions of the vessel. The Court has physical possession of significant *929 items attributable to
the injuncted area wreck site.
(b) Through the substitute custodians appointed by this Court who are in physical presence and control at the injuncted
area by vessels, divers, equipment and otherwise, it can be said that this Court has the injuncted area wreck site in
custodia legis. See Treasure Salvors I, fn. 5, p. 335.
(c) The injuncted area wreck site lies wholly and exclusively within the waters of the contiguous zone. It is in the Gulf of
Mexico. Portions of the injuncted area may lie within three (3) marine leagues of the Marquesas Keys. See U.S. v.
Florida, supra. Under the Convention on the Territorial Seas and the Contiguous Zone the coastal State has certain
customs, fiscal, immigration and sanitary regulation authority within the contiguous zone. See Treasure Salvors I, fn. 14,
p. 338; U.S. v. Gunnar Williams, et al., 617 F.2d 1063, 1096 (5th Cir. 1980), wherein the Fifth Circuit pointed out that the
contiguous zone should be considered the functional equivalent of the border. The United States has search and
seizure prerogatives therein as well, certainly over American flag vessels. The contiguous zone therefore affords an area
of limited U.S. jurisdiction.
(d) There is actual possession and occupation of the wreck and wreck site to the extent practicable, and certainly
constructive possession of the wreck by operation of law. At the least, the Court has qualified in rem jurisdiction.
This Court has jurisdiction over that portion of the wreck within its territorial jurisdiction and a reasonable likelihood
exists that other portions constituting a significant additional salvaging result will be within the territorial jurisdiction of
this Court. Consequently, as a result of the aforegoing factors, and quasi-in rem jurisdiction on in personam principles,
this Court has, at least, qualified jurisdiction in rem at this time, which is likely to ripen into full in rem jurisdiction.
Injunctive Relief
It is apparent that the plaintiffs have established that they will be irreparably harmed if the temporary injunction is not
extended. The plaintiffs' financial investment, their efforts represented by vessels, personnel, equipment and work within
the injuncted site, support their claim. Even loss of life has contributed to their equities. As "finders" they have
established their rights. More than that, they have protected their find by diligent exercise of salvaging efforts. To allow
others at this time to come in and reap the benefits that are bestowed upon a finder and/or salvagor in these
circumstances would constitute irreparable harm and injury for which there would be no adequate remedy at law. In
terms of the public interest, the dedicated archeological and historic efforts by the plaintiffs in preservation of the wreck
sites, unqualifiedly suggests that the public can best be served by allowing these plaintiffs to continue their efforts further.
[4]
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
8/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
The troublesome aspect of granting the relief sought arises not from defendants' argument that the sea is vast and that
finders are keepers and that no one should be prevented from treasure hunting on the high seas. This poses the
question of how one goes about seeking an exclusive right to search and salvage an area of the high seas lying within
930
the contiguous zone. This injunctive action, however, is more limited. *930 It relates only to the rights of these opposing
parties.
The answer is found in the principles of admiralty and maritime law which merge the rights of a finder and a salvor and
give rise to the type of protection which the plaintiffs seek herein against these defendants. The difficulty lies not so much
in recognizing under maritime law, the equities of the situation, but in the fashioning of relief in a manner which does not
do violence to freedom of navigation and travel on the high seas and the other basic rights of the world at large to use
and travel the high seas. The question provides its own solution. It resolves itself into determining a reasonable area for
use by the finders and/or salvors for a reasonable time as against these defendants. This should be under
circumstances wherein possession, dominion and control are asserted and maintained.
What then is a reasonable area? The testimony in this trial indicates that 50 to 60 square miles would more likely
produce full and productive results. Such an area may have actually been searched by plaintiffs, but it has not been
requested, nor is it the size of the present injuncted area. The injuncted area is 13.3 square miles, or 9,750 yards in
length by 5,000 square yards in width. What does the State of Florida grant in terms of exploratory rights relating to
wrecks within the sovereign land jurisdiction of that State? Well, site 8MO141 was approximately 18 square miles in
area. Again, for what length of time would the State contract with salvor? Annual contracts (renewable). Translating all
factors and considering the evidence as it applies to the injuncted area this Court finds that the present injuncted area is
adequate, fair and reasonable in terms of size; that it affords the plaintiffs an adequate and reasonable area within which
their already acquired rights may be pursued as against these defendants. This does not necessarily mean that in every
instance wherein such type of relief is sought that the injuncted area should constitute a tract of 13.3 square miles.
Rather, it is this Court's finding based upon the evidence before it, that the nature of the shallow-water wreck, its scatter
patterns, the production resulting from search of the areas, and the likelihood of the area required for success is the area
represented by the present injunctive site of 13.3 square miles.
931
Should the injunction be made permanent? Should anyone receive a permanent right to keep someone else out of an
area of the high seas lying within the contiguous zone forever? The answer is no. But this does not prevent relief from
being granted after considering all of the factors that may be applied to the answer to this temporal question. When
considered in light of the fact that hurricane seasons exist and occur normally over the course of several months
embracing the injuncted area and that sea conditions during some winter months are at times stormy and not as
conducive to salvaging operations as during other periods of time, it would appear then an extension of the existing
temporary injunction for an additional eighteen (18) months would be fair and reasonable. This would give the plaintiffs
an opportunity to pursue their endeavors, which have been earned and are deserving. On the other hand, it would afford
an opportunity to the plaintiffs and defendants to return to this Court to review whether or not plaintiffs have diligently
maintained their rights to seek a continuance of the injunction. Although the trial on the merits has been held, and
notwithstanding the request for a permanent injunction, it is within the sound judicial discretion of this Court to grant the
relief requested in the form of an extension for a limited period of time as herein set forth. Winston Research Corp. v.
Minnesota Mining and Manufacturing Co., 350 F.2d 134 (9th Cir. 1965). "Appropriate relief ... is to be determined on a
case-by-case basis ... with relief tailored in each instance to the needs of the particular situation." U.S. v. Jamestown
Center-in-the-Grove Apartments, 557 F.2d 1079, 1080 (5th Cir. 1977). "Furthermore framing an injunction appropriate to
the facts of a particular case is a matter peculiarly within the discretion of *931 the district judge." J. M. Fields of
Anderson, Inc. v. Kroger Co., 330 F.2d 686, 687 (5th Cir. 1964); Gore v. Turner, 563 F.2d 159 (5th Cir. 1977).
Accordingly, a Final Order will issue under even date herewith granting an extension of the present Injunction within the
framework of the present injuncted area for an additional period of Eighteen (18) Months herefrom.
FINAL ORDER
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
9/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
Upon the basis of the evidence adduced at a Final Hearing herein and pursuant to and in accordance with the
Memorandum Opinion of this Court issued under even date herewith, which includes the Findings of Fact and
Conclusions of Law of the Court, it is thereupon
ORDERED AND ADJUDGED that the existing Injunction heretofore termed a Preliminary Injunction issued under date of
January 7, 1980, by the late Honorable William O. Mehrtens, Senior United States District Judge, be and the same is
hereby EXTENDED for a period of Eighteen (18) Months from the date hereof and shall encompass the area described
therein. It is
FURTHER ORDERED AND ADJUDGED that during said extended term of the Injunction OLAN FRICK, JOHN GASQUE,
WILLIAM RILEY, and the Masters of the Motor Vessels "JUNIPER" and "SEAKER" shall not interfere with the search and
salvage activities of the Plaintiff corporations nor search for nor recover objects from within 2500 yards to either side of
two points and the line drawn between them, the first point being located at 24°31.5' N. Latitude and 82°20' W.
Longitude, the second point being located at 24°30' N. Latitude and 82°15' W. Longitude until further Order of this Court.
It is
FURTHER ORDERED AND ADJUDGED that Plaintiffs shall recover from Defendants their costs as provided by law, to
be assessed by the Clerk of this Court in accordance with a Bill of Costs form to be filed herein.
ORDER
Under date of July 2, 1981 (docket entry # 168), this Court issued its MEMORANDUM OPINION CONTAINING FINDINGS
OF FACT AND CONCLUSIONS OF LAW in this matter. At page 924, this Court stated as follows in the Memorandum
Opinion:
"The so-called injuncted area consists of approximately 13.3 square miles in the Gulf of Mexico."
Again, at page 924 of the said Memorandum Opinion, this Court stated:
"The [injuncted area wreck site] is in the Gulf of Mexico."
It is now apparent to the Court that under ruling of the United States Supreme Court in U. S. v. Florida, 420 U.S. 531, 95
S.Ct. 1162, 43 L.Ed.2d 375 (1975), and subsequently in U. S. v. Florida, 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388
(1976), and the Report of the Special Master, Albert B. Maris, filed as part of the record in that case on February 19,
1974, that in fact, the injuncted area does not lie within the Gulf of Mexico but rests entirely within the contiguous sea
zone of the Atlantic Ocean (although close to its boundary with the Gulf of Mexico).
The aforegoing change does not in any way alter the Memorandum Opinion nor any of its Findings of Fact or
Conclusions of Law and, thereupon the Memorandum Opinion, including Findings of Fact and Conclusions of Law is
hereby Ratified, Affirmed and Approved with the modification herein noted.
[1] The District Judge and the Fifth Circuit further held that since they had found that Florida lacked an ownership interest in the artifacts,
that Florida's asserted Eleventh Amendment rights were without merit. Treasure Salvors II, p. 1345.
[2] See Defendants' Exhibit 5 and testimony at Tr. 115,116. Although this is the figure computed by Defendants in the said exhibit and their
testimony, it appears that the injuncted area may cover approximately 15.5 square miles. However, both sides in these proceedings seem
to accede to the 13.3 square mile area as the accepted injuncted site dimensions. The disparity in area may be caused by the fact that the
actual straight line distance between the two points of the axis (anchors) is less than 9,750 yards as alleged by Plaintiffs.
[3] See 16 U.S.C. §§ 668dd, 668ee.
[4] Both sides adduced considerable testimony describing incidents in which the opposing salvors would confront each other under
circumstances wherein a "face-off" has been narrowly averted. These incidents occurred in December, 1979, and in March, 1980, in the
injuncted area. In the first instance a salvo of gunshots were fired into the air as a warning by the defendants. There were no contempt
proceedings pending before the Court which would necessitate a determination as to whether or not the incidents constituted a violation
of the injunctive order. Suffice it to say, the testimony established clearly the inherent dangers of these opposing salvage groups
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
10/11
3/29/2016
Treasure Salvors v. UNIDENTIFIED, ETC., VESSEL, 546 F. Supp. 919 - Dist. Court, SD Florida 1981 - Google Scholar
confronting each other in an area which represented the injuncted area in size. The necessity to avoid such confrontations is an equitable
factor when considering the irreparable harm to the plaintiffs. It therefore affords a basis of an additional factor mitigating in favor of the
type of relief herein granted.
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=546+F.Supp+919&hl=en&as_sdt=400006&case=10865249488607914596&scilh=0
11/11
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
556 F.Supp. 1319 (1983)
TREASURE SALVORS, INC., a Florida corporation, Plaintiff, v. The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL, et al., Defendant. Robert JORDAN, Plaintiff, v. The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL, et al., Defendant.
Nos. 79-1381-Civ-JLK, 80-1205-Civ-JLK.
United States District Court, S.D. Florida.
January 18, 1983.
1321 *1320 *1321 David Paul Horan, Key West, Fla., for plaintiff.
1320
Michael T. Callahan and Ronald W. Brooks, Brooks, Callahan & Phillips, Tallahassee, Fla., Gerhardt Schreiber, Linwood
Anderson, Smathers & Thompson, Miami, Fla., for defendant.
MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND
CONCLUSIONS OF LAW
JAMES LAWRENCE KING, District Judge.
The ultimate fate of the SANTA MARGARITA, a royal galleon of the Spanish Tierra Firme Flota of 1622, is the subject of
this opinion.
As this magnificent six hundred thirty ton galleon cleared Havana Harbor on Sunday, September 4, 1622, she carried
one hundred eighty-eight persons on board, one hundred forty-three of whom sailed to a rendezvous with death in the
tragedy to follow.
The SANTA MARGARITA also carried a treasure of gold and silver ingots, bars, disks, coins, chains and precious jewelry
of such magnitude as to be almost beyond the imagination of modern man.
1322 *1322 1. FINDINGS OF FACT
THE SHIPWRECK
The drama that unfolded during the trial of this case commenced on a clear and beautiful day 360 years ago. Dr. Eugene
Lyon[1] described it thusly in The Search for the Atocha:[1]
"Sunday, September 4, 1622. Slowly and majestically, flying all their flags, the ships of the combined fleets passed one
at a time by El Morro at the Havana harbor entrance. With Guard Fleet galleons and escorts, Tierra Firme vessels and
small craft, twenty-eight ships filed out into the open sea. They sailed a good six weeks behind schedule.
"At dawning the day had been so serene, so clear, that Lorenzo Vernal and the other pilots had unanimously
recommended that the fleet sail. If the morning before the conjunction of September were so fair, what possible danger
could the next day bring? When he heard the pilot's recommendation, the Marquis of Cadereita felt reassurance, but still
he hesitated. At last, the decision had to be made; he determined that the fleet had to sail. Too much was at stake, at
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
1/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
home and abroad, to do otherwise. At seven in the morning, the Marquis had given the order to weigh anchor.
"It took more than an hour for all the ships in the unwieldy convoy to clear the port and form into sailing order. Then the
Guard Fleet capitana led off on a north-north-west course. As almiranta of the Tierra Firme ships, the Atocha brought up
the rear of its fleet. Having gotten safely offshore by midafternoon, the fleet then tacked to the eastward of Havana to
enable the ships to sail easily northward with the wind to the lower Florida Keys. There, where the current was strongest,
the fleet would enter the Gulf Stream, which would boost them strongly homeward.
"At sunset, Lorenzo Vernal estimated that the fleet had reached a point thirty miles to the northeast of Havana.
Accordingly, he ordered a turn to the northward. Although the wind had changed little in strength or direction since
morning, Vernal knew the weather had altered. The strikingly lovely deep-red sunset was disquieting in itself; its vivid
colors were reflected in a thin veil of cirrus clouds that had overspread the sky. And Vernal saw how the sunset tint lit a
towering bank of cumulus piled high in the southeast. At dusk a stronger breeze began to blow.
"Through a night of steadily rising wind, the fleet held its course. Toward dawn on Monday the ships entered the center of
the Gulf Stream current. The tossing motion of the vessels brought discomfort, then uneasiness, then wholesale
seasickness to many passengers and crewmen of the fleets. Early morning disclosed that a strong northeast wind was
raking the opposite-flowing current of the Gulf Stream, raising vicious cross-seas.
"The ships reduced sail to weather the storm. Seamen went aloft to bring down the topmasts and reduce the windage
there. All objects on deck were strongly secured and hatch covers firmly lashed down. As the morning passed, the day
darkened and the weather worsened. The wind rose to a whole gale. The height of seas around the convoy mounted to
more than ten feet, and flying spray torn from wavetops by the shrieking wind obscured the horizon. Visibility fell until
pilots and lookouts on the ships could scarcely make out the vessels on the convoy's edge.
"Now the ATOCHA'S waist was almost continuously awash, as great seas swept around the overloaded ship. The pilot
ordered the mainsail lowered so that the ship could go forward more easily under foresail alone. The sailors who
struggled to comply with the order clung to the mainyard, battling lashing canvas, as the extreme ends of the yard dipped
regularly into the boiling sea. What most disturbed the men at work, however, was what they had seen near the ship's
stern: the fins and the upper bodies of two great gray sharks, following the ATOCHA through the storm.
1323 *1323 "Even with reduced sail area, the ship plunged wildly and became increasingly difficult to control. The helmsman
could no longer steer properly, so the whipstaff was disconnected and the tiller lashed in place. At each heavy blow of
the sea the ATOCHA'S hull shuddered and her masts creaked in their steps. Crashes below told of shifting cargoes and
broken wine and olive jars.
"By the end of the long afternoon, many of the ships in the convoy had lost their mainmasts. Some had no steerage-way
whatsoever, for their rudders had been shattered by huge following seas. One small ship, the BUEN JEUSE, had lost
both masts and rudder; she fell farther and farther behind the other vessels and was finally lost to sight. Watchers aboard
the ATOCHA saw the little NUESTRA SENORA DE LA CONSOLACION struggling along under a close-reefed foresail.
To their horror, they saw the small craft suddenly capsize and vanish into the angry ocean. The could launch no boat in
the wild seas, nor could they turn their own ship to go to the aid of those on the stricken vessel. The gnawing feeling
grew among those on the ATOCHA that the same fate might well await them all.
"Long before sundown the world grew dark, and the chief pilot Vernal lit the Guard Fleet capitana's stern lantern. He
could not tell at that point if any other ships survived to follow the lantern's gleam; as far as he could see, the capitana
now sailed alone. Any protective sense of being in convoy had now gone, and each ship stall afloat struggled in its own
lonely battle against the hurricane.
"Aboard the SANTA MARGARITA, silvermaster Gutierre de Espinosa called his aide, Aguirre, to his cabin. Bracing
against the plunging motion of the ship, Espinosa opened his official trunk and asked Aguirre to help him take out some
treasure. The two men removed eight gold disks and six gold bars, three small gold pieces, a silver bar, and some
silverware; they placed it in Espinosa's personal sea chest. The silvermaster then locked the chest and bound it with
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
2/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
rope. He had made his own private preparations for disaster.
"Meanwhile, below decks in the SANTA MARGARITA, Captain Bernardino de Lugo shouted for silence; frightened cries
and groans of dispair faded, then died. Holding for support to a ringbolt, the captain motioned to the pale cleric beside
him, and told his men that Chaplain Ortiz was ready to begin confessing them. He added that the two Jesuit priests
aboard were in the cabins above, taking the confessions of the officers and passengers; they would also come to the
gun deck to help there when they were through. Even greater than his dread of drowning at sea was a Spaniard's fear of
dying in a state of sin. That could mean the loss of his soul for all eternity. The men crowded forward.
* * *
"By the time the wind shifted to the south, both capitanas and nineteen other vessels of the combined fleets had passed
to the west of the Tortugas and thus out of danger of grounding. Five unlucky ships — Vargas' ship the ROSARIO, the
fleet patache (tender), the Portuguese slaver, the SANTA MARGARITA, and the ATOCHA, playthings of the wind — were
swept irresistibly toward the Keys. A small Cuban coast-guard vessel was also caught up in the ill-fated group.
"To Spanish mariners, Florida was an evil name. Scores of shipwrecks dotted the esa bottom along its costs and in the
Keys. In the isolated area that lay ahead of the six ships, Spain's writ scarcely ran. For more than fifty years, expeditions
sent there from the Spanish capital at Saint Augustine had never succeeded in making lasting settlement. Sailors lost in
the Keys had to run a double gauntlet: if they survived the ruin of their ship, they still had to face the untamed ferocity of
the Keys Indians, who often killed shipwrecked men.
"The first light of dawn on Tuesday, September 6, revealed an awesome sight. As the Spanish ships came into more
shallow waters, the seas became even steeper. The few men left on deck beheld a sea covered with huge rollers, their
1324 fifteen-foot crests *1324 whitened by the gusting wind. Lookouts on the three westernmost of the ships saw vaguely
ahead the outline of low islands — the Tortugas. The sailors heaved over their anchors to halt the ship's onward course
to disaster. One by one their anchor lines broke, and the ROSARIO, the slave ship, and the fleet patache were grounded,
wrecked in the shallows, battered by incoming storm waves.
"Meanwhile, forty miles to the east, the SANTA MARGARITA and the ATOCA approached a place where the trough of
each passing wave bared the reef in a welter of foam.
"Only the stump of the MARGARITA'S mainmast remained; her rudder was gone and her foresail had blown away. When
soundings showed rapidly shoaling water, three seamen crept forward to set a scrap of canvas on the foremast and
attempted to claw back away from the reefs ahead. The makeshift sail blew out. When their anchors began to drag, the
crew was helpless. The ship was pushed inevitably toward the place of danger. At seven in the morning, the SANTA
MARGARITA surged across the reef on the crest of a wave. As the ship swept on, Captain de Lugo looked to the east.
There to his astonishment, he saw the hull of another crippled galleon. It was the ATOCHA.
* * *
"Fifty-five feet deep, off a wide shoal west of a stormswept circle of mangrove islands, lay NUESTRA SENORA DE
ATOCHA. With her, frozen in time, lay seventeenth-century Spain.
"The southern sky had cleared. Except for fitful gusts, the wind had dropped, and the afternoon sun burned down fiercely
on the place of disaster. With nightmare clarity, it revealed a churned and littered sea, its surface heaving with the refuse
of shipwreck. The little merchant ship SANTA CRUZ had weathered the hurricane; it picked its way through floating
planks and spars in the waters off the great sandbank. The small ship was already crowded with sixty-eight survivors of
the SANTA MARGARITA, including Captain de Lugo and twenty of his men. Shortly after the sinking of the ATOCHA, the
MARGARITA had grounded against the sandbar. By midmorning, battered by the waves, the ship had begun to break
up. Only those who could keep a hold on floating wreckage had survived. Gutierre de Espinosa and all the passengers
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
3/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
had perished. One hundred forty-three persons had drowned."
SPANISH SALVAGE OF THE SANTA MARGARITA
The Spanish governor lost no time in commissioning Gaspar de Vargas to find and salvage the lost ships. Vargas sailed
September 16, 1622 with five vessels for the lower Florida Keys. He found the wrecked galleons SANTA MARGARITA
and ATOCHA lying six and ten miles respectively southeast of a low circle of wind wracked mangrove islands later to be
named "Keys of the Marquis." A subsequent hurricane on October 5, 1622 and the 55 foot depth of the wreck site
prevented meaningful salvage.
In 1624 an influential Havana politician, Francisco Nunez Melian, obtained a royal contract to search for and salvage the
galleons and by June 1626, Melian's crew, in a bronze diving bell, found the main ballast pile of the SANTA
MARGARITA.
Melian's salvors brought up 199 silver ingots, more than 30,000 silver coins, silverware and slabs of rough copper. After
retreating to avoid hostile Dutch ships, Melian later returned to the keys, and salvaged an additional 151 silver bars,
great masses of blackened silver pieces of eight, a large anchor, eight bronze cannon, copper slabs and silverware. Of
the total of 350 silver ingots, 67 were discovered to be contraband not listed on official manifests. Nearly 20% of all
treasure during this phase of salvage was contraband.
Salvage auditor Juan de Chaves later told of arduous salvage work in perilous currents under a pitiless sun, amid
occasional heavy squalls. One diver, Juan Martinez, died at the wreck site in August of that year.
1325 *1325 The 1627 diving season began less auspiciously. On Thursday, June 10, the salvors reached the wreck site just
after dawn. They moored their longboat securely as morning light turned dark waters translucent blue, and set to work.
By the salvage master's hand-held sundial it was eight o'clock when lookouts shouted "Sail! Sail!"
The Dutch enemy had reached the Marquesas. Cutting their mooring lines, the Spaniards fled over the quicksands into
shallow water where the Dutch could not follow. The Spanish salvors escaped to Havana, and treasure salvage was
discontinued for that year. The following year 37 more silver ingots and 3,000 coins were recovered.
Before the 1629 season could begin, Francisco Nunez Melian was appointed governor at Caracas, and left the salvage
of SANTA MARGARITA and the search for the ATOCHA to other, less successful, hands. In 1644, while Melian was
reviewing his troops, his horse reared and he was killed. An audit of his accounts of the SANTA MARGARITA salvage
was sent to Spain to repose finally in the Archive of the Indies.
The Spaniards' efforts in salvaging the vessels during the 17th Century were only partially successful and were finally
abandoned through the passage of time. An immense fortune continues to rest upon the ocean floor a few miles off the
coast of Florida, covered by the shifting sands and mud of the southern reaches of the Gulf of Mexico.
MODERN SALVAGE
All but forgotten, the remains of the 1622 Golden Galleons were subjected to the process of nature which eroded the
structure of the vessels and diminished the possibility that the unsalvaged portions of her fabulous cargo would
ultimately be returned to the mainstream of commerce. Although identified as a "wrecked vessel", the SANTA
MARGARITA is more accurately termed a wreck site, for what the teredos and the passage of time have left for salvage is
cargo scattered on and under an expanse of ocean floor. Remarkably, a substantial section of ribs and planking of this
once great ship has somehow survived the passage of time and the ravages of the sea to be recovered. The timbers are
of white oak, from the north of Spain and not found in the Caribbean.
In 1968, 324 years after Melian's death, the plaintiff, TREASURE SALVORS, INC., and its President, Mr. Mel Fisher
embarked on a modern search for the lost galleons of the 1622 Fleet. Working with Mr. Fisher was Dr. Eugene Lyon, a
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
4/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
Colonial Spanish Historian hired by the plaintiff corporation to research in the Archives of the Indies in Seville Spain. By
1971 Fisher and his group had followed the leads provided by Dr. Lyon from the SANTA MARGARITA'S salvage audit
and had located a great anchor from the NUESTRA SENORA DE ATOCHA. Over the next nine (9) years, Fisher's
company, TREASURE SALVORS, INC. incurred great expense in its lengthy legal battles to protect and retain finds from
the ATOCHA. Mel Fisher and his wife, Dolores, suffered personal tragedy in the loss of their son and daughter-in-law at
sea during the salvage of these lost galleons of the 1622 Tierra Firme Fleet. These legal battles are extensively
documented. The litigation against the United States for title to the NUESTRA SENORA DE ATOCHA is reported at 569
F.2d 330 (5th Cir.1978) hereinafter referred to as Treasure Salvors I. The litigation against the State of Florida with regard
to portions of the salvage, is reported at 621 F.2d 1340 (5th Cir.1980) hereinafter referred to as Treasure Salvors II.
Competing salvors appeared on the scene and commenced to observe the ongoing salvage activities of the Fisher
organization at the ATOCHA site. Fearful that others would find SANTA MARGARITA before him, Mr. Fisher decided to
increase the pace of the search by adding more men and equipment.
The documentary evidence of the MARGARITA'S location was less than precise with Bernardino de Lugo's statement
1326 placing the MARGARITA one league west of ATOCHA or just over three nautical miles *1326 away. Mr. Jack Haskins, a
modern salvor and skilled researcher had told Dr. Lyon about an ancient letter he had discovered written by Captain
Aguilar Y Guzman, stating that the MARGARITA lay to the east of the ATOCHA.
Emphasizing the contradiction, Mel Fisher's searchers had recorded magnetometer contacts both east and west of the
ATOCHA wreck site in earlier searches. Mr. Fisher ordered continued exploration in both east and west areas. Urgency
impelled him, for he feared that rivals might reach the SANTA MARGARITA first.
On March 13, 1979, Case No. 79-1381-Civ-WM and No. 79-1382-Civ-WM were filed in the United States District Court
for the Southern District of Florida. The original wreck site description in Case No. 79-1381-Civ-WM was west of the
ATOCHA wreck site. The original site description in Case No. 79-1382-Civ-WM was southeast of the ATOCHA wreck site.
Both of the cases were filed on the available information and belief that the SANTA MARGARITA was either three miles
east, or three miles west, of the ATOCHA wreck site and upon the remote sensing data which had previously been
gathered showing the existence of shipwrecks in both locations.
A well-financed competitor had moved in and begun operations near where Fisher was recovering the scattered
remnants of the ATOCHA. In a hauntingly similar reenactment of the Dutch against Melian's men, three and one-half
centuries earlier, five shots were fired by the competitor and (in a subsequent incident) the competing vessels almost ran
down a TREASURE SALVORS vessel, the Virgilona. The history of these modern-day pirates is reported at 640 F.2d 560
(5th Cir.1981) hereinafter referred to as Treasure Salvors III. On July 2, 1981, the Honorable Sidney M. Aronovitz issued
a preliminary injunction protecting the right of TREASURE SALVORS to exclusive possession and control of the
extensive wrecksite of the NUESTRA SENORA DE ATOCHA.
In January of 1980, Fisher called a meeting at Commander Cryer's house for the purpose of sharing the information
gained from years of ocean searching and research in Spanish archives. All of the Treasure Salvors captains and other
principals of the company attended for the purpose of pooling their knowledge in the search for the SANTA MARGARITA.
Those present heard Dr. Lyon describe the Spanish Archival evidence gathered over years of research. Captain Robert
JORDAN was present and participated in the meeting. At this meeting archival documents were shown to JORDAN and
copies were later given to him. He subsequently was furnished a number of confidential company documents reflecting
magnetometer readings, maps and charts of the search area. At the conclusion of the meeting JORDAN, archeologist
Duncan Matthewson, salvors/photographers Don Kincaid and Pat Cline, and Melvin Fisher all marked on a map their
best estimates of where they thought the MARGARITA lay.
In early February of 1980, Melvin A. Fisher, on behalf of the plaintiff, TREASURE SALVORS, INC., submitted a proposed
contract to JORDAN, who over a period of days consulted with advisors (including Mr. Finley Ricard) and altered the
contract prior to its execution. The contract, executed February 5, 1980, was signed by Captain JORDAN and by
TREASURE SALVORS, INC. through its President, Melvin A. Fisher.
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
5/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
In addition to affording Mr. JORDAN the privilege of working the wrecks claimed by TREASURE SALVORS, the contract
provided that he was to receive food, fuel, and lubricants for the M/V Castillian and $100.00 for each work day of four (4)
hours or more at the wrecksites for Mr. JORDAN'S labor and the use of his vessel.
TREASURE SALVORS made payment to Mr. JORDAN under the Agreement and, in addition, provided him $50.00 extra
per work day at the wrecksites. Mr. Kincaid gratuitously provided winches valued at $1,500.00 for Mr. JORDAN'S vessel
to better stabilize it at anchorage and TREASURE SALVORS loaned Mr. JORDAN an extra radio. Mr. Finley Ricard (a
1327 financial *1327 backer of Mr. JORDAN in other salvage ventures) provided other money for operation, dive equipment,
detection gear and the cost of having the M/V Castillian hauled out and repaired when the crankshaft was damaged
during the course of salvage operations in March, 1980.
To do the magnetometer work that was required, Captain JORDAN was provided an extremely expensive, one-of-a-kind,
prototype precision, proton flux-gate magnetometer developed exclusively for TREASURE SALVORS by Faye Field.
During the search carried out pursuant to the February 5, 1980 contract, this magnetometer provided by TREASURE
SALVORS was used by Captain JORDAN on board his salvage vessel, The Castillian.
Winter weather in the Keys, often stormy, was cooperative in 1980. After a few days of fruitless magnetometer search
west of the ATOCHA site, JORDAN took the Castillian to the eastern area where, at the edge of a wide sand bar, the
instrument registered a concentration of electronic targets. JORDAN positioned his craft and found a small grapnel
anchor, and then a very important discovery: a six foot diameter copper cooking caldron. Thereafter three small colonial
anchors were found.
Don Kincaid, another employee of Treasure Salvors and a marine photographer who had first found the ATOCHA
treasure, came aboard Castillian to help direct the search as salvage director. Following an electronic trail northward the
crew found ballast stones covering the sea floor, Spanish pottery, indigo, and a clump of four encrusted silver coins.
For nearly a year, Case No. 79-1381-Civ-WM and No. 79-1382-Civ-WM had lain dormant with no process having been
served on a defendant vessel and no substantive litigation in rem or in personam having been pursued. After finding and
salving the anchors, copper pot and other artifacts, TREASURE SALVORS, on the 10th day of March 1980, amended the
defendant vessel's described location under Case No. 79-1381-Civ-WM to an area being within 3,000 yards of
coordinates located at N. Latitude 24 degrees 33.3 minutes and W. Longitude 82 degrees 17.0 minutes.
A witness testified that it was at this point that many of the participants started to believe that they had, at long last, found
the SANTA MARGARITA. The coins found in March had been taken into the Marquesa's anchorage and, after cleaning,
discovered to be Spanish pieces of eight, minted in the 1621 period of the reign of Phillip III — the same vintage as those
from the ATOCHA. The shipwreck, however, appeared different from the ATOCHA in at least one respect; much of the
material lay exposed on the bottom.
On April 4, 1980, in the shallow water along rocky outcrops northwest of the first finds, Castillian divers suddenly found
three large heavy gold bars. One bar was more than eleven inches long and weighed over five pounds. The treasure
was brought into Key West and delivered to TREASURE SALVORS, Inc. by Captain JORDAN where joyous divers broke
out magnums of champagne and used one of the gold bars as a swizzle stick. Captain JORDAN entered into his log that
the first gold of the MARGARITA had come to the surface.
TREASURE SALVORS, Inc., at approximately 10:00 a.m. April 4, 1980, caused the portions of the defendant vessel that
had been salvaged to be arrested pursuant to admiralty law by a Deputy United States Marshal. This arrest of April 4,
1980, gave the United States District Court for the Southern District of Florida, in rem jurisdiction over the ongoing
salvage of the defendant vessel. The court finds that Captain JORDAN was present in Key West on April 4, 1980 and
had knowledge of the action taken by TREASURE SALVORS to effect the arrest, by the U.S. Marshal, of the articles
salvaged.
After the discovery of the gold, Captain JORDAN became dissatisfied with the terms of his contract and consulted Mr.
Fisher, President of TREASURE SALVORS to obtain a better division of the salvage. Mr. Fisher discussed this request
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
6/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
with the Board of Directors of TREASURE SALVORS, INC. where it was denied.
1328 *1328 On May 5, 1980 a second amendment to the wrecksite description was applied for by TREASURE SALVORS.
This Court's order of May 12, 1980 allowed the amendment to the pleadings. The amendment of the wrecksite
description of May 5, 1980 was based on site salvage data that was being originated on a daily basis not only by the
Castillian, but also by the TREASURE SALVOR vessels, Virgilona and Swordfish.
On April 12th, two more gold bars were found. Pot shards, bones and lead sheathing came up as the salvage
progressed. Except at slack tide, vicious currents ran across the wrecksite, making, as the 17th Century Spaniards had
earlier observed, "___ the diving task very difficult." On May 9th, the Castillian turned in to TREASURE SALVORS a rich
variety of artifacts: broken pottery, hundreds of clumped and single silver coins, and an eleven pound ship's bell, silver
plates, a sword, and a fragmented mariner's astrolab.
A few days after the Castillian's May 9th find, Mel Fisher's son Kane dove on the site and found six silver ingots evenly
spaced in two rows resting directly on bedrock. That was not all that met his eyes in the clear green water: he saw a
great section of the remains of a wooden ship. It was twenty-three feet long with the ribs and planking capped by ballast
stones and a conglomerate of incrusted artifacts.
Working the surrounding area, divers uncovered a gold bar, two more large (and one small) silver bars, silver bowls; an
ink well and sand shaker, a candle stick and plate, and a silver spur. A one hundred and five pound mass of silver coins
was brought to the surface still welded into the shape of the wooden chest that had long ago rotted away. One especially
precious prize was a diamond cut emerald set in a gold ring. Beneath the green stone floated a seawater bubble forced
in by the pressure of years beneath the ocean.
Dr. Lyon compared the markings on the silver ingots with those listed on the SANTA MARGARITA'S manifest. Five of the
silver bars matched. The centuries dropped away as Dr. Lyon found Ingot No. 4718 and the true significance of this
modern day saga was brought into focus. Dr. Lyon's research established that the silver bar had been shipped at
Portobelo, intended for Seville and the Brotherhood of the Holy Cross by the drowned merchant, Gaspar de Rojas. Cut
into the blackened surface of the bar were Rojas's RX mark and S topped with a Jerusalem cross. Five of the other bars
had markings and numbers identical to the manifest. The sunken vessel was unmistakably the SANTA MARGARITA!
THE TROUBLE WITH TREASURE
Captain JORDAN'S first-mate in March and April of 1980 was Mr. Craig Boyd. Captain JORDAN told Mr. Boyd he was
dissatisfied with the February 5th contract between himself and TREASURE SALVORS, Inc. and that he was thinking of
breaking the contract. Mr. Boyd advised Captain JORDAN to comply with the contract.
In May 1980, Captain JORDAN consulted attorneys regarding his rights under the employment contract and his
entitlement to a larger share of the treasure being recovered from the SANTA MARGARITA. Up to this point in time, all of
the salvaged artifacts and treasure had been brought by Captain JORDAN to the TREASURE SALVORS dock in Key
West, Florida and delivered to the court appointed substitute custodian (TREASURE SALVORS, Inc.).
On May 21, 1980, Captain JORDAN'S attorneys filed suit in the United States District Court for the Southern District of
Florida (80-1205-Civ-SMA), claiming salvage rights to the treasure. This suit was consolidated for discovery and trial
with the pending case previously filed by TREASURE SALVORS and Mr. Fisher (79-1381-Civ-JLK). After signing the
complaint on May 21st, the intervening claimant, ROBERT JORDAN, returned to Key West and loaded the Castillian with
supplies and fuel charging the fuel to TREASURE SALVORS and requesting and receiving a TREASURE SALVORS'
1329 check to pay for the groceries for the upcoming trip. On May 23, 1980, the Castillian set sail from *1329 Key West
carrying on board, Robert LeClair and Frank Moody, Jr. who were employees of TREASURE SALVORS. Mr. Robert
LeClair had received orders from Melvin Fisher, to keep watch over JORDAN'S activities.
In addition to the proton magnetometer on board the Castillian was a marine Radio Telephone provided to JORDAN by
TREASURE SALVORS, INC.
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
7/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
Near the center of the SANTA MARGARITA site on May 25th, Castillian's divers hit a bonanza. Their excitement built as
they recovered eleven large gold bars, four smaller ones, and a magnificent ten pound gold disk. In total fifty pounds of
gold bullion was recovered. They also found five gold two-escudo coins, six small silver bars or disks, two ingots of
Cuban copper, a quartzite stone cannonball, and 581 silver coins. The historical significance and uniqueness of the
artifacts and items of treasure make valuation difficult. Many of the items are priceless. Trial testimony ranged from
estimates of six to thirteen million dollars of treasure yielded so far from the grave of the SANTA MARGARITA.
On the evening of May 25, 1980, R.D. LeClair was prohibited by Captain JORDAN from using the radio telephone to
inform TREASURE SALVORS, of the finds. However, Captain JORDAN used the radio telephone to call his wife, with
whom he had arranged a secret code in order to prevent the court's substitute custodian, TREASURE SALVORS, or
anyone else, from learning about the salvage recoveries. The secret code worked and arrangements were made to have
the bonanza arrested under the newly filed in rem action. Robert Jordan vs. The Wrecked and Unidentified Sailing
Vessel, et al., No. 80-1205-Civ-SMA.
On May 26th, the Castillian's captain pulled her anchors and left the wrecksite. Captain JORDAN paused briefly at Key
West Harbor, making another call on the radio telephone to find out whether he should turn the treasure over to the
court's duly appointed substitute custodian (Treasure Salvors) or continue up the Florida Keys and meet with his
personal advisors and financial backers. He chose to do the latter. Next, Captain JORDAN turned the Castillian into
Hawk Channel and proceeded easterly up the Keys to Summerland Key, approximately thirty miles east of Key West.
During the trip up the keys he disclosed to R.D. LeClair that he intended having a "confrontation" with his employer,
TREASURE SALVORS and its President, Melvin Fisher.
Upon arriving south of Summerland Key, the Castillian was met by a smaller boat piloted by financial backer and
advisor, Finley Riccard. After coming to the dock at Finley Riccard's house, the TREASURE SALVORS', employees,
Moody and LeClair, were told that they should not attempt to contact TREASURE SALVORS. Soon thereafter, Captain
JORDAN'S attorneys arrived at the Riccard house. Photographs were taken of the salvaged treasure and a celebration
ensued.
While the Castillian, laden with treasure, remained the night of May 26th tied up to the dock at Finley Riccard's house,
TREASURE SALVORS' representatives made several calls to the Riccard residence in an attempt to find out whether
treasure had been discovered and why the Castillian and her crew had disappeared. No information was given to Mr.
Fisher or his representatives. The next morning, Captain JORDAN took the Castillian back out into Hawk Channel to a
point where it was hidden from view from the mainland. The treasure was still aboard. When Deputy United States
Marshal, Peter Craig, arrived at Summerland Key, the Castillian was at anchor at Hawk Channel, and he had to be
ferried out to the larger boat. When the marshal went on board to carry out the in rem arrest under Case No. 80-1205Civ-SMA, the deputy marshal was not told that he was arresting MARGARITA treasure or that the treasure he was
arresting was from the same lost vessel that he had executed in rem warrants upon earlier (April 4, 1980).
1330 *1330 After the marshal's arrest of the treasure out on the water, Captain JORDAN brought the Castillian in (for a second
time) to the dock at Finley Riccard's house. The TREASURE SALVORS' divers LeClair and Moody were told that they
could now contact their employer, TREASURE SALVORS and they were allowed to leave the premises of the Riccard
estate.
Prior to the voyage of May 23rd through May 26th, 1980, intervening claimant, JORDAN, had regularly turned over
objects of salvage to the court's duly appointed substitute custodian, TREASURE SALVORS and he knew prior to May
21, 1980 that TREASURE SALVORS had filed an in rem action which claimed the defendant vessel.
The activities described above provoked a flurry of intense litigation. The late Judge William O. Mehrtens issued an
ancillary warrant approving the transfer of the gold and silver to TREASURE SALVORS as the court's legal custodian
and at the same time, Captain JORDAN'S case was transferred from Judge Aronovitz to Judge Mehrtens. The return of
the treasures of the MARGARITA to the court's substitute custodian TREASURE SALVORS was accomplished by motion
for warrant of arrest in rem as to the defendant vessel which was filed May 28, 1980, executed on May 29, 1980 and filed
with the court on June 6, 1980.
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
8/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND
MOTION TO SHOW CAUSE
On May 28, 1980 the plaintiff, TREASURE SALVORS filed an application for a temporary restraining order without notice
and motion for preliminary injunction. It also filed a motion to show cause why ROBERT JORDAN should not be
punished for contempt. A rule to show cause and a temporary restraining order were issued on May 28, 1980, by Judge
William O. Mehrtens. An evidentiary hearing on the preliminary injunction and rule to show cause was heard June 2,
1980. At the conclusion of the lengthy hearing, the court found as follows:
Gentlemen, it appears to me and I find Mr. Jordan, at the time he went out there was under contractual
relations to Fisher, and he owed Fisher a duty and obligation certainly that would exist between a normal
employer and employee.
I find, of course, that he was unhappy and dissatisfied with his contract and was desirous of obtaining
more.
On these particular days in question when an exceedingly lucky find was made, I find it was within the
area covered by the Order of this Court, as amended.
I would be less inclined to find that Mr. Jordan had wilfully violated the order of this Court if he had taken
some, to me, firm action in disowing contractual relations with Fisher.
But it seems to me inexcusable, really, to be operating under that contract and to charge to Treasure
Salvors fuel and food and other things, and go out there. And certainly with the markings that were out
there and with his previous work in that area, I think, really, that he is now embarking upon a course to
unjustly enrich himself.
... I am going to make it a preliminary injunction, unless you gentlemen want to stipulate that you do not
have any further evidence to offer on the matter.... But meanwhile, the temporary injunction has been
made a preliminary injunction and I find him guilty of the wilful and deliberate violation of my order.
If there is any question as to jurisdiction, I also find that I have had and do have jurisdiction over the
parties and the res and the subject matter of the law suits.
Since the preliminary injunction was issued on June 2, 1980, Captain JORDAN has provided no salvage services and
has remained away from the SANTA MARGARITA wrecksite, carrying on other salvage on the reefs south of Sugarloaf
Key and Marathon, Florida.
THE SALVAGE CONTINUES
1331 On the 6th of July, the salvage vessel, Swordfish was at anchor over an area *1331 which at that time was one of the
northernmost areas of the wrecksite to be salvaged. A sharp wind shift caused the Swordfish's anchor to drag, and when
it finally held, diver Larry Beckman swam down and discovered, lying on bare bedrock, a bronze cannon. Twin
decorative dolphins rode its great tube. On the SANTA MARGARITA'S arms list it appeared to have been one of the
galleon's heaviest guns, at just under two tons.
July 8th could fairly be named "the day of the gold chains". TREASURE SALVORS divers had followed an artifact trail to
a large clump of cannon balls. Two silver ingots and various coins were found amid rich shipwreck material. As
salvor/photographer Pat Cline fanned around one ingot with his hands, a large gold chain popped up, then another and
another, all attached in a tangled golden mass. All together there were fifteen chains recovered, the largest had 149
great ornate links. The salvage vessel Virgilona, moored nearby, uncovered six more gold bars and a disk of gold.
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
9/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
Duncan Matthewson, TREASURE SALVORS' Marine Archeologist, began an extensive study of the SANTA MARGARITA
wrecksite and the material recovered from it. Mr. Matthewson, along with Dr. Lyon, compared Melian's records with the
present site in order to discover how the ship had broken up. They concluded the grapnels may have been lost by
Spanish salvors; one might even have been the anchor abandoned when the Dutch threatened Melian's salvage in
1627.
The wrecksite displayed a wider range of ceramic pipes and silverware than the ATOCHA, but to the archeologist, the
single most exciting thing was the large section of the ship itself. It was among the oldest and largest remnants of a
Spanish ship ever found in the western hemisphere. It provided substantial physical evidence concerning Spanish
Colonial ship construction.
Archeologist Matthewson delayed raising of the hull structure until the remnants of the galleon could be properly
mapped in situ, preparatory to its conservation. A photo mosaic of the structure was made using 132 separate pictures
pieced together. During the work on the hull structure, the sand around the timbers was removed by gently fanning for
artifacts. Just beneath the structure, they found pig bones, several chili peppers, and two pieces of shoe laces, relics that
spoke of the living beings once aboard the SANTA MARGARITA.
Perhaps the most valuable single item turned up while one of the Virgilona's divers was working a sand crater's edge. As
the boat's tubular mail boxes deflected the prop-wash downward, digging the crater deeper, a round object emerged
and struck the diver a glancing blow on the forehead. Before it could vanish in the current, he reached out and took into
his hands a beautiful golden plate. The eight inch plate, an artifact of exquisite beauty, displayed an intricate pattern of
neo-Moorish design.
On August 23rd, Syd Jones, Captain of the Swordfish saw a treasure mass on the ocean bottom. Lying together were
nine more gold bars and eight chains! The same day the divers found the lid of an ivory box, decorated with delicate
incised figures of mythical animals. Research later disclosed similar designs on an ivory box from Portuguese Ceylon.
Thus far did the network of Spanish imperial trade extend.
On August 25th the Virgilona returned to Key West with her priceless ancient cargo of barrel hoops, swords, an
arquebus (a memento of Bernardino de Lugo's company of soldiers), a 50-pound clump of silver coins, and an ingot of
silver. The skipper of the Virgilona Captain Mo Molinar, poured from a sack, a stream of twenty-five gold two-escudo
coins.
As of the present time, it is evident that the SANTA MARGARITA has yielded a very great treasure. The treasure has
been recovered along a scattered path of more than 4,000 feet long. The gold bullion alone, in 56 bars, disks, and bits,
weighs more than 118 pounds. Mel Fisher and his men also found 180 feet of gold chain and 54 gold coins. It is the
1332 largest amount of gold bullion salvaged from a Spanish Galleon in modern times. The divers have *1332 recovered
nearly 15,000 silver coins and 18 silver ingots with a number of other valuable artifacts.
In artifact value the treasure is worth millions of dollars but the knowledge that will be gained from the shipwreck in
ceramic dating, marine construction, and Hispanic culture generally will prove to be of much more enduring value than
the bullion.
These findings of fact not only provide a comprehensive background for an understanding of the history of the wrecksite
which led to these complicated events between the parties in modern times, but also provide the framework within which
the governing law may be applied for determination of the parties' rights in this proceeding.
II. CONCLUSIONS OF LAW JURISDICTION
This Court has jurisdiction over the subject matter pursuant to the
Constitution of the United States, Article III, Section 2, Clause 1, 28 U.S.C. §
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
10/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
1333, and Rule 9(h) Fed.R.Civ.P., as a case involving an admiralty and
maritime claim. Claims arising out of salvage operations are
unquestionably within the admiralty jurisdiction of the Federal Courts.
There are several persuasive factors which lead the Court to the conclusion that it has qualified jurisdiction in rem over
the wreck and wrecksite of the SANTA MARGARITA. First, thousands of artifacts from the wrecksite have been brought
into the physical possession of the United States District Court. Second, through the Court's substitute custodian,
TREASURE SALVORS, INC., there is a physical presence and control of the wrecksite by vessels, divers, equipment
and otherwise and it could be said that this Court has the wrecksite in custodia legis. See Treasure Salvors I, fn. 5 at 335.
Third, the wrecksite lies wholly and exclusively within the waters of contiguous zone of the United States in the Atlantic
Ocean. Under the convention of the territorial seas and the contiguous zone, the coastal state has certain custom, fiscal,
immigration and sanitary authority within the contiguous zone. See Treasure Salvors I, fn. 14, at 338; U.S. v. Gunnar
Williams, et al., 617 F.2d 1063, 1096 (5th Cir.1980). The contiguous zone is considered the functional equivalent of the
border and therefore affords an area of limited United States jurisdiction.
As between the parties to this litigation, it is conceded that this Court has in personam jurisdiction, by virtue of process
duly served, to adjudicate the dispute between the parties as to all those objects from the wrecksite whose ownership is
in issue. The Court has in personam jurisdiction of the parties to determine the validity of a contract between the parties
and any rights conferred thereunder. Jurisdiction is also conferred based upon in personam principles to adjudicate and
protect the rights of these parties on a continuing basis to complete the salvage of the wrecksite now before this Court.
Finally, this Court has in rem jurisdiction, coupled with in personam jurisdiction, over the parties to dispose of all artifacts
brought up from the site of this wreck during the pendency of the lawsuit. Cobb Coin Company, Inc. v. The Unidentified,
Wrecked and Abandoned Sailing Vessel, etc., 525 F.Supp. 186, 194-197 (S.Dist.Fla. 1981); Treasure Salvors, Inc. v. The
Unidentified, Wrecked and Abandoned Sailing Vessel, etc., 569 F.2d 330, 333-336 (5th Cir. 1978); Treasure Salvors v.
The Unidentified, Wrecked and Abandoned Sailing Vessel, etc., 640 F.2d 560, 567-568 (5th Cir. 1981).
An in rem action for a salvage award against artifacts recovered from the remains of a centuries-old shipwreck states a
claim within this Court's admiralty jurisdiction, governed by the judicial doctrine of finds and the principles of maritime
salvage. Cobb Coin, 525 F.Supp. at 203 citing Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned
Sailing Vessel, 569 F.2d 330 (5th Cir.1978) (Treasure Salvors I); Cobb Coin, 549 F.Supp. at 548; Eads v. Brazelton, 22
1333 Ark. 499 (1861); Wiggins v. *1333 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452 (E.Dist.Va.1960); Brady v.
S.S. African Queen, 179 F.Supp. 321 (E.Dist. Va.1960); Nippon Shosen Kaisha, K.K. v. United States, 238 F.Supp. 55
(N.Dist.Cal. 1964); Rickard v. Pringle, 293 F.Supp. 981 (E.Dist.N.Y.1968); Treasure Salvors, Inc. v. The Unidentified
Wrecked and Abandoned Sailing Vessel, etc., 569 F.2d 330 (1978); Volume IIIA, M. Norris, Benedict on Admiralty: The
Law of Salvage, 11-14 (7th Ed. Rev.1980); Platoro Limited, Inc. v. The Unidentified Remains of a Vessel, 614 F.2d 1051
(5th Cir.1980); Treasure Salvors, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, etc., 640 F.2d 56; and
Hener v. United States, 525 F.Supp. 350 (S.Dist.N.Y.1981).
ANALYSIS OF THE RIGHTS OF THE CLAIMANTS
The State of Florida initially claimed title to the treasure as an aspect of sovereignty, contending it had the right to protect
the archeological heritage of the shipwrecks. TREASURE SALVORS, INC. claims title by virtue of having furnished
Robert JORDAN the fruits of its years of extensive research as to the SANTA MARGARITA'S location, supplying him with
equipment, provisions, and crew; and contracting with JORDAN to find the wreck. Robert JORDAN claims title to the
treasure as a first finder not under contract of employment by TREASURE SALVORS, INC.
CLAIM OF THE STATE OF FLORIDA
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
11/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
The Complaint in this cause was originally filed on March 2, 1979. The State answered on April 5, 1979 admitting that
the coordinates given in the Complaint placed the wreck outside the State's territorial waters. On April 10, 1979, the State
moved for elimination of requirement of security for stipulation of costs, reciting it in its supporting memorandum of facts
and law:
Pursuant to the applicable rules of the court the STATE filed an answer to the Complaint in admiralty
served upon it. The answer does not claim an interest in the unidentified, wrecked and abandoned sailing
vessel, but in effect disclaims any interest in the wreck located at the coordinates stated. The answer
specifically admits that the stated coordinates are outside the territorial waters of the State of Florida.
Based upon the State's representations, this Court entered an Order on May 5, 1979 granting the Motion.
Although the coordinates contained in Plaintiff's Complaint have been amended since the filing of the action, the present
coordinates (like the ones initially filed) are outside the State territorial waters.
The seaward limits of the sovereignty lands of the State of Florida were established by the United States Supreme Court
in United States v. Florida, 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976). In that case, the Supreme Court states in
pertinent part:
1. As against the State of Florida, the United States is entitled to all the lands, minerals, and other natural
resources underlying the Atlantic Ocean more than three geographic miles seaward from the coastline of
that state and extending seaward to the edge of the continental shelf, and the State of Florida is not
entitled to any interest of such lands, minerals, and resources. As used in this decree, the term `coastline'
means the line of ordinary low water along that portion of the coast which is in direct contact with the open
sea and the line marking the seaward limit of inland waters, as determined under the convention on the
territory sea and the contiguous zone, 15 U.S.T. (Pt. 2) 1606.
In the early stages of this litigation, the State took the position that it would not assert a claim to the shipwreck here
involved if it developed factually that the vessel was located outside the State's territorial waters. It is undisputed that the
SANTA MARGARITA does not lie inside State territorial waters as established in United States v. State of Florida, supra.
Once the State was satisfied, concerning the proof of location, it voluntarily withdrew its claim.
1334
*1334 CLAIMS OF TREASURE SALVORS AND ROBERT JORDAN
Each party seeks to be declared owner of the Defendant wrecksite, under the general law of "finds" and, alternatively,
each seeks a salvage award for services performed on the wrecked vessel under the maritime law of salvage.
This Court holds that it is appropriate to apply both the law of "finds" and salvage in this action to determine rights to the
remains of the wrecked and abandoned sailing vessel now scattered on a wrecksite stipulated to be the SANTA
MARGARITA.
The MARGARITA is indisputedly an abandoned vessel whose location has been lost through the centuries and whose
original owner is not in existence.[2] Under the law of finders, title to ancient and abandoned vessel vests in the person
who first reduces that property to his or her possession. Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned
Sailing Vessel, etc., 569 F.2d 330, (5th Cir.1978).
As a general rule, under the law of finds, a finder acquires title to lost or abandoned property by "occupancy", i.e., by
taking possession of the property and exercising dominion and control over it. It is well established that a finder does not
acquire title merely on the strength of its discovery of lost or abandoned property. Treasure Salvors, Inc. v. Unidentified,
Wrecked and Abandoned Sailing Vessel, etc., 640 F.2d 560, 571 (1981). Cobb Coin Co., Inc. v. Unidentified, Wrecked,
and Abandoned Sailing Vessel, etc., 549 F.Supp. 540, (S.Dist. Fla.1982).
Once in possession and control of an identifiable wrecksite, the exclusive right to recover on a continuing basis depends
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
12/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
upon the intent of the salvor to do so and his proven capacity to continue the recovery. Hener v. United States, 525
F.Supp. 350 (S.Dist.N.Y.1981). The rights of a salvor who continues uninterrupted operations on an identifiable wrecksite
are dependent upon his demonstration of that degree of dominion and control which is appropriate under the
circumstances. Cobb Coin v. Unidentified, Wrecked and Abandoned Sailing Vessel, etc., 549 F.Supp. 540, citing Eads v.
Brazelton, supra; Treasure Salvors III, supra; Brady v. S.S. African Queen supra; Hener, supra.
This Court holds that the wrecksite containing the scattered remains of the SANTA MARGARITA is abandoned property
that was first discovered by employees of Plaintiff TREASURE SALVORS, INC., who were employed by the Plaintiff for
that specific purpose, and TREASURE SALVORS is therefore entitled to all rights of a first finder under the law.
TREASURE SALVORS, INC. has, through its agents and employees been in continuous possession and control of the
wrecksite and the defendant abandoned sailing vessel since it was first discovered. The Plaintiff, TREASURE SALVORS,
INC., has carefully and systematically brought the discovered artifacts and treasure of the SANTA MARGARITA into the
custody of the United States District Court for the Southern District of Florida. The Plaintiff has preserved the
archeological provenance of the shipwreck and has clearly demonstrated its competence to satisfactorily salvage the
remains of this magnificent vessel. Title to the recovered treasure of the SANTA MARGARITA is therefore vested in its
first finder in possession and salvor, TREASURE SALVORS, INC.
ANALYSIS OF THE CONTRACT
In reaching the conclusions set forth above and in analyzing the rights of the parties, the Court must examine the
relationship between the claimants. In this case, there are two relationships. First, TREASURE SALVORS and JORDAN
were parties to the February 5, 1980 contract and stood in a contractual relationship to each other. Even without the
1335 February *1335 5th contract, however, the parties, as employer and employee, existed in a relationship as principal and
agent. Thus, the Court must apply principles of contract law and principal/agent law to resolve the parties' dispute.
The claimant, ROBERT JORDAN, presents three theories in support of invalidating the contract of employment signed
on February 5th by JORDAN and Mel Fisher, president of TREASURE SALVORS: misrepresentation of fact, mutual
mistake of fact, and failure of consideration. These three theories rise and fall on JORDAN's contentions that (1) Fisher
told JORDAN that Fisher had located the remains of the MARGARITA prior to the signing of the contract, and that (2) the
first sentence of Paragraph One of the Agreement was an untrue statement when made. That sentence reads, in part,
"Salvors is the sole owner against all claims of the sailing vessel `Nuestra Senora de Atocha,' Margerita [sic], ...."
JORDAN claims that the statement in Paragraph One constituted a misrepresentation of a material fact as did Fisher's
alleged statement that he knew the exact location of the MARGARITA. Relying on these representations, JORDAN
agreed to be compensated[3] by a much smaller percentage of the treasures and artifacts of the MARGARITA than he
would have demanded if he had known otherwise.[4] JORDAN argues that his reliance on the misrepresentation made
the contract voidable, and that he successfully avoided the contract beginning on May 27, 1980, when he delivered
salvaged items from the MARGARITA to the United States Marshal pursuant to his own recently filed claim in Case No.
80-1205-Civ-SMA.
A contract created by two parties is not made in a vacuum. To understand the contract, the Court must view it in the
context of the events and circumstances from which it arose. The Court must, above all else, give effect to the parties'
intentions. Pennzoil Co. v. Federal Energy Regulatory Com'n, 645 F.2d 360, 388 (5th Cir.1981). "Such intentions are to
be drawn as much as possible from the language of the agreement, but where, as here, the agreement is silent on the
issue, the Court may turn to extrinsic evidence for support." Valley Cement Indus. v. Midco Equipment Co., 570 F.2d
1241, 1242 (5th Cir.1978). The Court must give due consideration to all surrounding circumstances including those
during the negotiation period. Morris v. Federated Mutual Inc. Co., 497 F.2d 538, 540 (5th Cir.1974).
The Court finds, for reasons stated infra, that the evidence presented clearly reveals the parties' intention in entering into
the contract of employment was to allow JORDAN, as a TREASURE SALVORS' employee, to explore and begin salvage
operations east and west of the ATOCHA with the hope — nay, the expectation — of pinpointing the exact location of the
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
13/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
MARGARITA.
Mel Fisher and ROBERT JORDAN were certainly not strangers to each other; they had been acquainted for fifteen years.
They had contracted before on several occasions concerning the same type of exploration and salvaging contract as the
instant one. In the mid 1960's, for example, JORDAN had worked for Fisher south of Marathon, Florida, on 1733 fleet
vessels. In 1979, he had worked for Fisher off the beach at Fort Pierce, Florida, on 1715 fleet vessels. These
undertakings were pursuant to the direction and control of Mel Fisher as JORDAN's employer. The history of the
relationship of the parties, therefore, suggests the intention of the parties on February 5, 1980, was to enter into another
contract of employment for purposes of exploration and salvage.
Events just prior to February 5th, during a period of pre-contract negotiations, however, are even more indicative of the
1336 parties' *1336 intentions. JORDAN was given $600.00 by Mel Fisher to haul his boat, the Castillian, out of the water for
repairs and to bring it down to Key West. When JORDAN arrived, he was asked to be present at a meeting at
Commander John Cryer's house in late January. At this meeting, exclusive and extensive information based upon years
of archival and on-site research was presented by Dr. Eugene Lyons, TREASURE SALVORS' historian and archival
researcher, and others concerning the possible locations of the MARGARITA and other ancient Spanish wrecks. Captain
JORDAN, in fact, was given over one hundred pages of translations of documents for his own reference and use.
Results from TREASURE SALVORS' prior explorations at various sites were discussed. It was learned that archival
research and magnetometer readings had suggested the MARGARITA wrecksite lay east or west of the ATOCHA.
At the end of the meeting, a large map of the area surrounding Key West was produced and the participants each
marked their "best guesses" on the map as to the location of the MARGARITA and the rest of the ATOCHA based upon
all the information which had just been presented. Mel Fisher, Captain JORDAN and others indicated their "best
guesses."[5]
Several days after this meeting, the parties signed the Agreement in question. This Court finds, based on the events and
circumstances preceding the signing of the contract, and based on the credibility of the testimony of the witnesses, that
the intention of Mel Fisher and Captain JORDAN was to turn their "best guesses" into a reality by employing JORDAN to
perform further exploration and salvaging in specific locations (i.e., east and west of the ATOCHA) until the wreck of the
MARGARITA could be pinpointed.
JORDAN's course of performance during the existence of the contract supports the Court's finding concerning the
intention of the parties. "Where an agreement involves repeated occasions for performance by either party with
knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance
accepted or acquiesced in without objection is given great weight in the interpretation of the agreement." Restatement
(Second) of Contracts (1981) § 202(4). Captain JORDAN was directed to several locations to explore and salvage over
the course of his employment from February 5th and thereafter. If he had truly thought that Fisher had already pinpointed
the location of the MARGARITA, he had the opportunity to object when he was directed to areas where his salvage
operations yielded nothing. Yet JORDAN chose not to do so. Therefore, the Court finds that JORDAN's course of
performance from February 5th and thereafter is consistent with the intention of the parties in forming the contract.
Although there is no claim to the contrary, this Court specifically finds that JORDAN and Fisher, as president of
TREASURE SALVORS, entered into the contract of employment freely and voluntarily and with mutual assent. As
previously mentioned, Fisher and JORDAN were not strangers to each other, having known each other for some fifteen
years. They had contracted before on several occasions concerning the same type of contract as involved here. The
language of the instant contract was pieced together from the previous contracts between the parties. Prior to February
5th, JORDAN took the proposed contract for 4-7 days to his financial backer, Finley Riccard, for consultation and advice.
In addition, the signing of the contract was preceded by several days of discussion and negotiation of each sentence by
the parties. The contract, in fact, was altered by both parties prior to the signing, thus evidencing a negotiated instrument.
1337 *1337 Keeping in mind the intention of the parties in forming the contract, the Court now turns to a consideration of the
claimant's claims that the first sentence of Paragraph One of the Agreement was untrue when made and that Fisher had
represented he knew the exact location of the MARGARITA and that these constituted misrepresentations of fact. As
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
14/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
previously stated, the statement in question reads, in part: "Salvors is the sole owner against all claims of the sailing
vessel `Nuestra Senora de Atocha,' Margerita [sic], ...." In order to render an otherwise enforceable contract voidable, a
material misrepresentation of fact must be relied upon, and the contract must be disaffirmed. Calamari, The Law of
Contracts § 9-13-15 (1977); Classic Bowl, Inc. v. AMF Pinspotters, Inc., 403 F.2d 463, 466 (7th Cir.1968).
The Court finds that based on the evidence presented and the credibility of the testimony of the witnesses, there was no
misrepresentation to Captain JORDAN concerning the status of ownership or the location of the MARGARITA wrecksite.
TREASURE SALVORS had generally located the vessel as a result of its previous research and salvage efforts in the
area. In March, 1979, it had filed a claim to the wrecksite in Case No. 79-1381-Civ-WM. The coordinates were based on
the then available information and belief, including positive readings from remote sensing data showing the existence of
a shipwreck, and were located east of the ATOCHA. [These coordinates were later amended on March 10, 1980 and
again on May 12, 1980 to reflect recently discovered artifacts].
The task of locating ancient wrecksites, especially those such as the MARGARITA whose treasures and artifacts have
been widely scattered by shifting currents and storms over the years precludes absolute precision in establishing exact
coordinates which contain the wreckage.
Since the purpose of the contract was to pinpoint the location of the MARGARITA either east or west of the ATOCHA, this
Court finds, and indeed the claimant stipulated on the opening day of trial, that the remains of the vessel discovered east
of the ATOCHA on February 13, 1980, by Captain JORDAN and the TREASURE SALVORS crew on board the Castillian
to be the MARGARITA as contemplated by the parties in their contract.
This Court also finds that the more credible testimony, considering the intention of the parties in forming the contract and
the events at the January meeting, to be that Mr. Fisher never represented to JORDAN that he knew the exact location of
the MARGARITA. It is clear from the nature of the meeting that the whole purpose of the meeting was to enable the
participants to formulate educated theories as to the specific location of the wreck. JORDAN was aware that Fisher had,
at best, a "best guess."
This Court further finds that JORDAN knew the purpose of his employment was to ripen TREASURE SALVORS'
ownership in the MARGARITA wrecksite by pinpointing the location through further exploration and salvage efforts. This
Court therefore finds that there could have been no misrepresentation concerning ownership of the wrecksite to
JORDAN.[6]
Even if this Court had found there was a misrepresentation, which it has not, JORDAN must still establish that he
reasonably relied to his detriment on that misrepresentation.
This Court finds the evidence shows JORDAN had not demonstrated such reliance. He knew TREASURE SALVORS
had not yet found the wrecksite and that such was necessary to prove possession and control, essential elements of
ownership. His course of performance subsequent to the signing of the contract supports this finding. JORDAN made no
objection to Fisher when directed to areas where no artifacts or treasures were found — if he had relied upon Fisher's
alleged representation that he had pinpointed the location, he would have questioned Fisher's directions.
1338 *1338 Finally, this Court finds that even if there were a material misrepresentation and that JORDAN had reasonably
relied upon it when contracting, JORDAN affirmed the contract by accepting the benefits and thereby lost the right to
disaffirm the contract.
A party operating under a material misrepresentation has the power to avoid the legal relations created by the contract.
The power of avoidance, however, is lost by ratification of the contract and acceptance of the benefits. Restatement
(Second) of Contracts § 7 (1981). In the instant case, after the signing of the contract of February 5, JORDAN was an
employee of Mr. Fisher and TREASURE SALVORS. From that date on, Mr. JORDAN and his crew were paid daily wages
by TREASURE SALVORS. Food and fuel for the Castillian were also supplied. The crew, in fact, were TREASURE
SALVORS employees. Captain JORDAN, therefore, accepted these daily benefits for a period of more than one hundred
days before attempting to avoid the contract by not delivering treasures and artifacts to TREASURE SALVORS, the
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
15/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
lawful substitute custodian.
Even more than the daily benefits of food, fuel, wages, and crew, however, was the benefit to JORDAN of the wealth of
information and knowledge about where to search for the MARGARITA which had been provided to him at the January
meeting at Commander Cryer's house. TREASURE SALVORS had invested hundreds of thousands of dollars on both
archival research of ancient Spanish documents and on actual site work. This information was freely given to Captain
JORDAN.
This Court finds that JORDAN used the information extended him by TREASURE SALVORS and relied upon documents
provided by TREASURE SALVORS during his employment by the company.
Much of the equipment on board the Castillian, essential for a successful salvaging operation, was provided by
TREASURE SALVORS. In addition to hoists and winches, used to retrieve artifacts and treasures from the ocean floor,
TREASURE SALVORS provided the VHS marine radio with ship-to-ship and ship-to-shore communications. The most
important piece of equipment, however, was the highly sophisticated one-of-a-kind proton magnetometer. This enabled
JORDAN to specifically locate treasure once his boat was in the general location as directed by Fisher.
In summary, this Court finds that JORDAN affirmed the contract of employment through his action — by accepting and
making use of the benefits of salary, food, fuel, crew, information, and equipment from February 5, 1980 and thereafter.
JORDAN also affirmed the contract through his regular course of conduct in turning over all artifacts discovered prior to
May 25, 1980, to TREASURE SALVORS, the court-ordered substitute custodian of the treasures from the wreck.
Therefore, even if there had been a material misrepresentation and detrimental reliance, which would have made the
contract voidable by JORDAN, the power of avoidance was lost by JORDAN's ratification of the contract and acceptance
of the benefits.
This Court notes that even if it were to find the February 5th contract of employment void ad initio, it would still find that
based on the parties' course of performance from February to the end of May 1980, there was an enforceable implied
employment contract between the parties, and that JORDAN was to receive a daily salary and, in addition, 5% of the
treasures and artifacts recovered from the wreck of the MARGARITA as an employee of TREASURE SALVORS in return
for his exploration and salvage efforts. See Bloomgarden v. Coyer, 479 F.2d 201 (D.C.Cir.1973).
This Court now turns to the arguments of the Plaintiff, TREASURE SALVORS. The plaintiff argues Captain JORDAN, as
an employee of the company, breached its fiduciary duty to TREASURE SALVORS and breached the contract of
employment by failing to deliver treasures and artifacts from the MARGARITA to the court appointed custodian on May
25, 1980 and thereafter and by establishing his own claim to the wrecksite.
1339 *1339 An agent owes a duty of the utmost loyalty to his principal. Laub v. Genway Corp., 60 F.R.D. 462 (S.D.N.Y. 1973).
This is a fiduciary duty with respect to matters within the scope of the agency. A fiduciary is held to "the punctilio of an
honor the most sensitive." Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Cardozo, C.J.). An agent
must "act solely for the benefit of the principal in all matters connected with his agency." Restatement (Second) of
Agency § 387 (1958). He must not compete with his principal concerning the subject matter of the agency. Id. at § 393.
Everyone, whether designated agent, trustee, servant or what not, who is under contract or other legal
obligation to represent or act for another in any particular business or line of business or for any valuable
purpose must be loyal faithful to the interest of such other in respect to such business or purpose. He
cannot lawfully serve or acquire any private interest of his own in opposition to it. This is a rule of common
sense and honesty as well as of law. The agent is not entitled to avail himself of any advantage that his
position may give him to profit beyond the agreed compensation for his services. He may not speculate
for his gain in the subject-matter of the employment. He may not use any information that he may have
acquired by reason of his employment, either for the purpose of acquiring property or doing any other act
which is in opposition to his principal's interest.
McHaney v. McHaney, 209 Ark. 337, 346, 190 S.W.2d 450, 454 (1945). See B.J. McAdams, Inc. v. Boggs, 439 F.Supp.
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
16/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
738 (E.D. Pa.1977).
The relationship of TREASURE SALVORS and Captain JORDAN was one of principal and agent. As an employee,
JORDAN was in a fiduciary relationship to TREASURE SALVORS. JORDAN owed a duty to his employer to act with the
highest degree of good faith and loyalty. He owed a duty to TREASURE SALVORS not to act for an adverse party or
himself in any transaction within the scope of the agency.
This Court finds that JORDAN breached his fiduciary duty to TREASURE SALVORS when he did not deliver salvaged
treasures and artifacts to the lawful custodian on May 25, 1980, and based on the events which transpired thereafter.
The discovery on May 25 of an immense fortune in gold and silver, beyond man's wildest dreams, caused JORDAN to
pursue his own selfish interests instead of those of his employer. The surreptitiousness of the events during the days of
May 25 through 27 during which two TREASURE SALVORS' employees were prevented from communicating with their
employer, lends credence to the Court's finding that JORDAN breached his fiduciary duty.
For the above-stated reasons, and based on the evidence produced at trial and the credibility of the testimony of the
witnesses, this Court finds that Captain JORDAN breached his contract of employment and his fiduciary duty beginning
on May 25, 1980, when he did not deliver treasures and artifacts found that day to the lawful custodian. By his actions
and conduct in attempting to establish a claim to the MARGARITA while under the salaried employ of TREASURE
SALVORS and while using the company's information, fuel, food, crew, and equipment, this Court further finds that
JORDAN forfeits any right he might have to equitable consideration, under the theory of quantum meruit, for services
rendered May 25, 1980, and thereafter.
ANALYSIS OF THE RIGHTS OF TREASURE SALVORS UNDER THE LAW OF
ADMIRALTY
The Court holds, first, that TREASURE SALVORS, INC., is entitled to a salvage award for the articles it has retrieved from
the SANTA MARGARITA wrecksite. The three elements of a salvage claim are:
(1) that marine peril exists;
(2) that the service was voluntarily rendered; and
1340
(3) that the effort was successful in whole or in part. *1340 Platoro Ltd. v. Unidentified Remains of a
Vessel, 518 F.Supp. 816, 820 (W.Dist.Tex. 1980), citing Legnos v. M/V Olga Jacob, 498 F.2d 666, 669 (5th
Cir.1974), Cobb Coin, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540,
(S.Dist.Fla. 1982).
It is established in this Circuit that a marine peril exists in an ancient, abandoned shipwreck for purposes of meeting the
requirements of a valid salvage action. Platoro Ltd. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1055 (5th
Cir.1980); Treasure Salvors I, 569 F.2d 330, 337 and n. 13 (5th Cir.1978), quoting Norris, The Law of Salvage § 185
(1958).
The Plaintiff has satisfied the second and third elements of salvage claim as well. There is no dispute that TREASURE
SALVORS voluntarily rendered the salvage service.[7] It was under no pre-existing duty to save the vessel and its cargo
and apparel pursuant to, e.g., a contract or provision of law. Further, the Findings of Fact entered above by this Court
amply demonstrate that TREASURE SALVORS successfully saved property of considerable historic, archeological, and
monetary value.
SALVAGE AWARD
As this Court has previously held, the public policy underlying salvage awards in the Admiralty Court is to hold out a
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
17/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
"continuing incentive to undertake the physical and financial risks entailed in salvage operations and to bring the
property thus recovered into court for a salvage determination." Cobb Coin, 525 F.Supp. at 207, Cobb Coin, 549 F.Supp.
540. The elements considered by the Admiralty Court in determining a salvage award are:
(1) the labor expended by the salvors in rendering the salvage service;
(2) the promptitude, skill and energy displayed in rendering the service and saving the property;
(3) the value of the property employed by the salvors in rendering the service and the danger to which
such property was exposed;
(4) the risk incurred by the salvors in securing the property from the impending peril;
(5) the value of property saved; and
(6) the degree of danger from which the property was rescued.
Cobb Coin, 549 F.Supp. at 557, Cobb Coin, 525 F.Supp. at 207, n. 15, See also Norris, 3A Benedict on Admiralty, The
Law of Salvage, 7th ed. § 244.
The services rendered by TREASURE SALVORS, INC., with respect to each of these elements, have been discussed in
the preceding portions of this opinion. The Plaintiff has clearly demonstrated its entitlement to a salvage award.
As this Court has held in previous decisions, the appropriate form of award in a case like this should differ from
traditional awards. It should be given in specie because the property saved is uniquely and intrinsically valuable beyond
its monetary value. See Cobb Coin, 525 F.Supp. at 198. The Court therefore holds that the plaintiff, TREASURE
SALVORS, INC., shall be awarded all the artifacts it has recovered since the inception of this lawsuit, as compensation
1341 *1341 for its expenses and an award for superlative salvage services.
The Court further holds that TREASURE SALVORS has established a right to the protection of this Court to conduct
further salvage activities, for as long as it demonstrates the requisite diligence and success in its efforts.
The Court therefore retains jurisdiction:
1. To protect the Plaintiff's valid salvage operations on the defendant wreck, and to adjudicate its rights vis-a-vis
competing salvors who may assert a superior right to salve the defendant wreck, the area described in these pleadings,
and
2. To adjudicate the Plaintiff's claim to a salvage award on a periodic basis. The plaintiff shall file in this Court, beginning
on January 1, 1984, and on January 1st of each subsequent year, its claim stating with specificity the value of the
salvage services performed and cataloguing the artifacts saved in the previous calendar year. Any failure to file by that
date will constitute prima facie evidence that it has abandoned the defendant wrecksite, and the plaintiff will have thirty
days to attempt to rebut that presumption, through appropriate pleadings, after which this case will be closed.
INJUNCTION
The June 2, 1980 order temporarily enjoined the agents, employees, and attorneys of rival claimants from interfering
with plaintiff's ongoing salvage operation. That injunction is hereby made permanent now that the plaintiff has
succeeded on the merits of its claim under federal law.
CONTEMPT
Mr. Robert JORDAN was held in contempt on June 2, 1980 by the Honorable William O. Mehrtens for violation of the
Court's order appointing TREASURE SALVORS substitute custodian of the recovered artifacts of the SANTA
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
18/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
MARGARITA.
The Court accepts Mr. JORDAN'S statement that he was motivated by a desire to obtain a Court ruling on his dispute
with Mr. Fisher and TREASURE SALVORS, INC., over the terms of his employment contract. Fully recognizing that his
methods were unorthodox and could have resulted in loss or destruction of priceless historical artifacts; nevertheless,
the Court refrains from imposing punishment for the contempt and discharges the contemptor with the stern admonition
to obey orders of the Court in the future.
ATTORNEYS' FEES
The award of attorneys' fees and costs in admiralty is discretionary and specifically permitted in salvage cases.
Compania Galeana v. M/V Caribbean, 565 F.2d 358 (5th Cir.1978), Cobb Coin Co., Inc. v. Unidentified, Wrecked and
Abandoned Sailing Vessel, etc., 549 F.Supp. 540 (S.Dist. Fla.1982). The Plaintiff has succeeded on the merits and is
therefore entitled to an award of fees and costs from Robert JORDAN. It is, therefore
ORDERED, ADJUDGED and DECREED as follows:
1. TREASURE SALVORS, INC. is hereby awarded all artifacts and treasure recovered from the wrecked Spanish
galleon SANTA MARGARITA lost September 5, 1622 and delivered into the custody of the Court.
2. The Court retains jurisdiction to protect the Plaintiff's valid salvage operations within the area described in this case
and to adjudicate its claim to a salvage award on a periodic basis for those artifacts hereafter recovered.
3. The claimant Robert JORDAN, his agents and employees are permanently enjoined from interfering with the Plaintiff's
ongoing salvage operations, its officers, agents or employees.
4. The in rem admiralty action, Robert Jordan v. The Unidentified, Wrecked and Abandoned Sailing Vessel, et al. Case
No. 80-1205-Civ-JLK, is hereby dismissed with prejudice.
5. The Plaintiff is entitled to recover reasonable attorney's fees and costs. The attorney for the plaintiff shall file his
1342 affidavits *1342 for fees and costs within twenty (20) days of the date of this order.
DONE and ORDERED in chambers at the United States District Courthouse, Miami, Florida, this 18th day of January
1983.
[1] E. Lyon, The Search for the Atocha (Harper & Row, 1979).
[2] The modern day government of Spain has expressed no interest in filing a claim in this litigation as a successor-owner.
[3] In addition to 5% of the recovery of treasures and artifacts from the wreck, JORDAN was paid a daily salary at all times while under the
employ of TREASURE SALVORS.
[4] This is JORDAN's argument for failure of consideration.
[5] Fisher's "best guess" later proved correct; JORDAN's proved considerably off mark. As discussed infra, this Court finds that Fisher at
no time prior to the signing of the contract represented to JORDAN that he had anything better than a "best guess" as to the location of
the MARGARITA.
[6] Based on the foregoing analysis, the Court rejects the claimant's theory that there was a mutual mistake of fact or failure of
consideration.
[7] TREASURE SALVORS has expended considerable sums of money, vessels and manpower, to establish possession and control over
the wrecksite of the SANTA MARGARITA. Prior to 1971, TREASURE SALVORS, interested in the recovery of the ATOCHA and
MARGARITA, had explored sites in the Atlantic Ocean, off the Florida Keys, in the Bay of Florida along the Gulf of Mexico boundary of the
Florida Keys, including Matecumbe Key. It is equally clear that Mel Fisher and TREASURE SALVORS made the first major, primary effort
to direct their attention to the exploration in the Marquesas Keys area as a result of Dr. Lyon's discovery in the Archives of the Indies in
Seville, Spain. On a trial and error basis, TREASURE SALVORS spent many months and years in areas east as well as west of the
Marquesas. During the time it finally isolated a promising, productive and responsive area now known to contain the wrecksite of the
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
19/20
3/29/2016
Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F. Supp. 1319 - Dist. Court, SD Florida 1983 - Google Scholar
NUESTRA SENORA DE ATOCHA and the SANTA MARGARITA. In excess of 7.1 million dollars was spent by the Plaintiff in this effort.
Treasure Salvors v. Unidentified Wrecked and Abandoned Sailing Vessel, etc., 546 F.Supp. at 925 (S.Dist.Fla. 1981).
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=556+F.Supp+1319+&hl=en&as_sdt=400006&case=3913677291894898720&scilh=0
20/20
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
569 F.2d 330 (1978)
TREASURE SALVORS, INC., a corporation and Armada Research Corp., a corporation, PlaintiffsAppellees, v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, her tackle, armament,
apparel and cargo located within 2500 yards of a point at coordinates 24.31.5' north latitude
and 82.50 west longitude, said sailing vessel is believed to be the NUESTRA SENORA de
ATOCHA, Defendant, United States of America, Intervenor-Appellant.
No. 76-2151.
United States Court of Appeals, Fifth Circuit.
March 13, 1978.
332
331
*331 *332 Michael W. Reed, U. S. Dept. of Justice, Washington, D. C., Marine Resources Section, Peter R. Taft, Asst. Atty.
Gen., Land & Natural Res. Section, Bruce C. Rashkow, Atty., Dept. of Justice, Washington, D. C., for intervenor-appellant.
David Paul Horan and Joshua M. Morse, III, Key West, Fla., for plaintiffs-appellees.
333
*333 Before BROWN, Chief Judge, GEWIN and TJOFLAT, Circuit Judges.
GEWIN, Circuit Judge:
Treasure Salvors, Inc., and Armada Research Corp., Florida corporations, sued for possession of and confirmation of
title to an unidentified wrecked and abandoned vessel thought to be the Nuestra Senora de Atocha. The Atocha sank in
the sea off the Marquesas Keys in 1622 while en route to Spain. The United States intervened, answered, and
counterclaimed, asserting title to the vessel. Summary judgment was entered for the plaintiffs, 408 F.Supp. 907
(S.D.Fla.1976), and the government appealed. We modify the district court's judgment, and affirm.
This action evokes all the romance and danger of the buccaneering days in the West Indies. It is rooted in an ancient
tragedy of imperial Spain, and embraces a modern tragedy as well. The case also presents the story of a triumph, a story
in which the daring and determination of the colonial settlers are mirrored by contemporary treasure seekers.
In late summer of 1622 a fleet of Spanish galleons, heavily laden with bullion exploited from the mines of the New World,
set sail for Spain. Spain, at this period in her history, was embroiled in the vicious religious conflicts of the Thirty Years'
War and desperately needed American bullion to finance her costly military adventures. As the fleet entered the Straits of
Florida, seeking the strongest current of the Gulf Stream, it was met by a hurricane which drove it into the reef-laced
waters off the Florida Keys. A number of vessels went down, including the richest galleon in the fleet, Nuestra Senora de
Atocha. Five hundred fifty persons perished, and cargo with a contemporary value of perhaps $250 million was lost. A
later hurricane shattered the Atocha and buried her beneath the sands.
For well over three centuries the wreck of the Atocha lay undisturbed beneath the wide shoal west of the Marquesas
Keys, islets named after the reef where the Marquis of Cadereita camped while supervising unsuccessful salvage
operations. Then, in 1971, after an arduous search aided by survivors' accounts of the 1622 wrecks, and an expenditure
of more than $2 million, plaintiffs located the Atocha.[1] Plaintiffs have retrieved gold, silver, artifacts, and armament
valued at $6 million. Their costs have included four lives, among them the son and daughter-in-law of Melvin Fisher,
plaintiffs' president and leader of the expedition.[2]
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
1/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
Jurisdiction
The district court did not specify its basis of jurisdiction. With respect to the controversy presented by the parties, it was
clearly within the court's power to declare title to those objects within its territorial jurisdiction. The government, however,
contends that the court lacked in rem jurisdiction to determine the rights of the parties to that portion of the res situated
beyond the territorial jurisdiction of the court.
334
In rem actions in admiralty generally require, as a prerequisite to a court's jurisdiction, the presence of the vessel or other
res within the territorial confines of the court. American Bank of Wage Claims v. Registry of District Court of Guam, 431
F.2d 1215, 1218 (9th Cir. 1970); 7A Moore's Federal Practice ¶ E.05, at E-202 (1977). This rule is predicated upon
admiralty's fiction *334 of convenience that a ship is a person against whom suits can be filed and judgments entered.
Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 22-23, 80 S.Ct. 1470, 1472-1473, 4 L.Ed.2d 1540, 1543 (1960).
Personification of the ship allows actions to be brought against the vessel when her owner can not be reached. Id. In
these circumstances the fiction may perform a useful and salutary function. But when a legal fiction which exists solely to
effectuate the adjudication of disputes is invoked for the opposite purpose, we have no hesitation in declining to employ
it.[3]
Other courts faced with similar challenges to their jurisdiction have refused to myopically apply this fiction where its
application was inappropriate to the situation before them. In Booth Steamship Co. v. Tug Dalzell No. 2, 1966 A.M.C.
2615 (S.D.N.Y.1966), the claimant to the res contested the court's in rem jurisdiction on the grounds that the res was not
within the territorial jurisdiction of the court. In its pleadings the plaintiff had alleged, as in the case before us, that the res
was within or during the pendency of the proceedings would be within the court's jurisdiction. The claimant's answer
admitted this allegation. After reviewing the decisions on this question the court held:
[T]he mandate of Admiralty Rule 22 requiring that in an in rem action, the libel allege the presence of the
res in the district, does not relate to subject matter jurisdiction, and therefore actual local seizure or a
tangible substitute thereof, such as the posting of a bond, is not a prerequisite to the maintenance of an in
rem action. The claimants-petitioners, by admitting the presence of the res within the district, by filing a
claim to the tug Dalzell # 2 and by filing and serving a general appearance, have submitted that vessel to
the jurisdiction of this court.
Id. at 2618.
The Third Circuit reached a similar conclusion in Reed v. Steamship Yaka, 307 F.2d 203 (3d Cir. 1962), rev'd on other
gds., 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963). There, the res was also outside the court's territorial
jurisdiction, but the claimant voluntarily appeared and answered the complaint "to avoid attachment and delay of the
vessel if it should subsequently be present" within the court's jurisdiction. The court held that by this act the claimant had
waived the requirement that the res be arrested by the court and had consented to the court's jurisdiction over its interest
in the vessel. Id. at 204-05.
Finally, the Supreme Court, in Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540
(1960), aff'g, 268 F.2d 240 (5th Cir. 1959), permitted the transfer under 28 U.S.C. § 1404(a), with the claimant's consent,
of an in rem action in admiralty to a district in which the res was not present. The Court based its decision upon the fact
that this transfer would prevent "unnecessary inconvenience and expense to parties, witnesses, and the public." Id. at
21, 80 S.Ct. at 1472, 4 L.Ed.2d at 1542. It is true, as Justice Whittaker stated in his dissent in Continental Grain, that the
Court did not decide the question of whether the owner's consent can confer in rem jurisdiction in an action where the
res is not within the territorial jurisdiction of the court. However, as commentators have noted, the Supreme Court
appears to favor the position that the presence of the res within the district is not an absolute prerequisite to the court's
jurisdiction.[4]
These decisions evidence the common concern of the courts with finding the most practical and efficacious means of
resolving the disputes before them. An interest in rendering justice rather than an automatistic reliance upon rigid
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
2/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
legalisms characterizes each of them. It is with these examples before us that we turn to an examination of the merits of
the government's jurisdictional challenge.
335
*335 Initially we note that for all practical purposes it was impossible to bring the entire remains of the vessel and her
cargo within the territorial jurisdiction of the court. Thousands of items retrieved from the wreck site were brought into the
district, but the bulk of the wreck lies buried under tons of sand in international waters. The district court did everything
within its power to have the marshal arrest the vessel and bring it within the custody of the court.[5] Thus, there is little
danger that the res, against which any claims might be satisfied, will escape an in rem decree against it.
In this case, as in the three cases we have discussed, the court had in personam jurisdiction over the claimants,[6] thus
rendering the vessel's arrest nonessential to the resolution of the action. The United States intervened in plaintiffs' in rem
action as a party defendant and filed a counterclaim asserting a property right in the res. The government, by intervening
in this action and by stipulating to the court's admiralty jurisdiction (A. 67), waived the usual requirement that the res be
present within the territorial jurisdiction of the court and consented to the court's jurisdiction to determine its interest in the
extraterritorial portion of the vessel.
Alternatively, we note that assuming a lack of in rem jurisdiction of that part of the wreck lying outside the territorial
waters of the United States, the district court is not deprived of jurisdiction over the government's counterclaim if that
claim rests upon an independent basis of jurisdiction. Sachs v. Sachs, 265 F.2d 31 (3d Cir. 1959); Haberman v. Equitable
Life Assurance Soc'y of United States, 224 F.2d 401, 409 (5th Cir. 1955); Isenberg v. Biddle, 75 U.S.App.D.C. 100, 102,
125 F.2d 741, 743 (1944). In its counterclaim the government requested that "a declaratory judgment be issued affirming
the property right of the United States in the Atocha, her tackle, armament, apparel and cargo." (A. 10). While no basis of
jurisdiction was stated in the counterclaim regarding the extraterritorial portion of the wreck, the record reveals that the
government based its claim to rights in the sunken vessel on the Antiquities Act, 16 U.S.C. § 431 et seq., and the
Abandoned Property Act, 40 U.S.C. § 310.[7] The district court thus had jurisdiction under 28 U.S.C. § 1331 to determine
the applicability of these statutes to that portion of the vessel situated in international waters.
336
To summarize, the district court properly adjudicated title to all those objects within its territorial jurisdiction and *336 to
those objects without its territory as between plaintiffs and the United States.[8] In affirming the district court, we do not
approve that portion of its order which may be construed as a holding that plaintiffs have exclusive title to, and the right to
immediate and sole possession of, the vessel and cargo as to other claimants, if any there be, who are not parties or
privies to this litigation.
One further procedural matter must detain us. The government asserts that summary judgment was improper in light of
two material issues of fact left unresolved by the district court. The first issue, whether the United States has established
procedures for the protection and recovery of objects on the outer continental shelf, concerns administrative or
legislative action which is subject to judicial notice. See Wright and Miller, Fed. Practice and Procedure § 2410. The
government was obliged, under Fed.R.Civ.P. 56(e), to set forth any procedures or controlling statutes not already brought
to the attention of the court. The government cannot claim to be a party unable, under Fed.R.Civ.P. 56(f), to gather and
present material showing the existence of such procedures or statutes.
The second issue, whether plaintiffs were in possession of the Atocha and that portion of her tackle, armament, apparel,
and cargo which had not been found, cannot be said to be in dispute as a matter of fact. The government adopted
plaintiffs' description of the vessel in its claim of ownership (A. 6). It is uncontested that other artifacts exist in the vicinity
of plaintiffs' salvage operation. The government offered no affidavits or other evidence contesting plaintiffs' protection
and control of the wreck site. Absent evidence disputing plaintiffs' affidavits, the district court appropriately considered
the facts settled on motion for summary judgment.
Salvage
The government argues that one of the elements of a salvage action—the existence of a marine peril—is absent from
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
3/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
this controversy, and that the district court erred in applying the law of salvage. We believe the government misconstrues
both the nature of the law applied by the district court and the law of salvage itself.
The Atocha is indisputedly an abandoned vessel.[9] Whether salvage law or the adjunct law of finds should be applied to
property abandoned at sea is a matter of some dispute.[10] Martin J. Norris, in his treatise on salvage law, states that
under salvage law the abandonment of property at sea does not divest the owner of title. M. Norris, The Law of Salvage,
337
§ 150 (1958). Courts, however, have rejected the theory that title to such property can never be lost and have applied the
law of finds. Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456-57 *337 (E.D.Va.1960). See
Nippon Shosen Kaisha, K.K. v. United States, 238 F.Supp. 55, 59 (N.D.Cal.1964); Rickard v. Pringle, 293 F.Supp. 981,
984 (E.D.N.Y.1968). Under this theory, title to abandoned property vests in the person who reduces that property to his or
her possession. In Rickard, for example, the court held that title to a propeller recovered from a vessel abandoned on the
ocean floor for sixty years vested in "the first finder lawfully and fairly appropriating it and reducing it to possession, with
the intention to become its owner." Id. at 984, citing Wiggins, supra, sub nom. The Clythia.
The court below correctly applied the law of finds.[11] Disposition of a wrecked vessel whose very location has been lost
for centuries as though its owner were still in existence stretches a fiction to absurd lengths. The law of salvage does not
contemplate a different result. Salvage awards may include the entire derelict property.[12]
The government's argument that no marine peril existed ignores the reality of the situation. Marine peril includes more
than the threat of storm, fire, or piracy to a vessel in navigation.[13] In Thompson v. One Anchor and Two Chains, 221 F.
770, 773 (W.D.Wis.1915), "[t]he `marine peril' consisted in the fact that the anchors and chains were actually lost. If they
had been resting on a reef, where they could be seen, they would undoubtedly have been in `peril' of being lost, and the
`marine peril' certainly was not diminished or extinguished by the fact that they were actually lost." There is no dispute
that the Atocha was lost. Even after discovery of the vessel's location it is still in peril of being lost through the actions of
the elements. Thus, under either theory plaintiffs are entitled to award of the property if the government does not prevail
in this action.
On this appeal the United States claims the treasure chiefly upon two grounds: (1) Application of the Antiquities Act, 16
U.S.C. §§ 431-433, to objects located on the outer continental shelf of the United States; and (2) The right of the United
States, as heir to the sovereign prerogative asserted by the Crown of England, to goods abandoned at sea and found by
its citizens. In support of the second contention the government relies not only upon English common law but also upon
the Antiquities Act, supra, the Abandoned Property Act, 40 U.S.C. § 310, and other generalized statutes and regulations.
The Antiquities Act
The Antiquities Act authorizes executive designation of historic landmarks, historic and prehistoric structures, and
objects of historic or scientific interest situated upon lands owned or controlled by the United States as national
monuments. Permission to examine ruins, excavate archaeological sites, and gather objects of antiquity must be sought
from the secretary of the department exercising jurisdiction over such lands. As the district court noted, the Antiquities Act
applies by its terms only to lands owned or controlled by the Government of the United States. The wreck of the Atocha
338
rests on the continental shelf, *338 outside the territorial waters of the United States.[14]
The government asserts that the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq., demonstrates
Congressional intent to extend the jurisdiction and control of the United States to the outer continental shelf. OCSLA was
passed, along with the Submerged Lands Act, 43 U.S.C. § 1301 et seq., to clarify the respective interests of coastal
states and the United States in the natural resources of the subsoil and seabed of the continental shelf. A look at the
background and interpretation of OCSLA is necessary to determine its scope.
The Truman proclamation of September 28, 1945,[15] spurred national and international interest in exploitation of the
mineral wealth of the oceans. The proclamation asserted the jurisdiction and control of the United States over the
mineral resources of the continental shelf, but was not intended to abridge the right of free and unimpeded navigation of
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
4/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
waters above the shelf, nor to extend the limits of American territorial waters. See 13 Dep't State Bull. 485 (Sept. 30,
1945). The Convention on the Continental Shelf,[16] written thirteen years later, assured to each coastal nation the
exclusive right to explore and exploit the resources of the seabed and subsoil, not only of its territorial sea, but also of the
adjacent continental shelf beyond the territorial sea. See Master's Report, supra n.14, at 69.
During the years following the Truman proclamation, intense interest in exploiting ocean resources resulted in disputes
between the United States and coastal states asserting jurisdiction over territorial waters. In United States v. California,
332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), and its progeny,[17] the United States was held to have rights in the
offshore seabed superior to and exclusive of the states. The political reaction to these decisions led to passage of the
Submerged Lands Act in May 1953 and the Outer Continental Shelf Lands Act a few months later. See 15 Va. J.Int'l. L.
1009, 1011 (1975). By enactment of the Submerged Lands Act, Congress recognized the coastal states' title to and
ownership of the lands and natural resources beneath navigable waters within the territorial sea. See United States v.
Maine, 420 U.S. 515, 525, 95 S.Ct. 1155, 1160, 43 L.Ed.2d 363, 370-71 (1975). In the Outer Continental Shelf Lands Act,
"Congress emphatically implemented its view that the United States has paramount rights to the seabed beyond the
three-mile limit." Id. at 526, 95 S.Ct. at 1161, 43 L.Ed.2d at 371.
339
*339 The superiority of the federal claim to resources on the outer continental shelf to the claims of the states was clearly
established in 1975 in United States v. Maine, supra. The United States asserted in its complaint in Maine only ". . .
sovereign rights over the seabed and subsoil underlying the Atlantic Ocean, lying more than three geographic miles
seaward from the coastline to the outer edge of the continental shelf for the purpose of exploring the area and exploiting
its natural resources. . . ." Master's Report, supra n.14, at 3. The special master found the "basic question involved" in the
litigation to be "whether the right to explore and exploit the natural resources of the seabed and subsoil of that portion of
the continental shelf . . . belongs to the United States or to the defendant States or any of them." Id. at 1. After Maine, the
primacy of federal over state interests in the natural resources of the outer continental shelf cannot be doubted. But the
decision in Maine did not address the extent of control by the United States of the shelf in all circumstances.
43 U.S.C. § 1332(a) declares the policy of the United States to be "that the subsoil and seabed of the outer Continental
Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in
this subchapter." Certain language in the Conference Committee report on the bill supports the view that Congress
intended to extend the jurisdiction and control of the United States to both the seabed and subsoil.[18] However, this
language must be taken in the context of the bill's stated purpose ". . . to amend the Submerged Lands Act in order that
the area in the outer Continental Shelf beyond boundaries of the States may be leased and developed by the Federal
Government. . . ."[19]
This court held in Guess v. Read, 290 F.2d 622, 625 (1961), cert. denied, 386 U.S. 957, 82 S.Ct. 394, 7 L.Ed.2d 388
(1962), that "[t]he Continental Shelf Act was enacted for the purpose, primarily, of asserting ownership of and jurisdiction
over the minerals in and under the Continental Shelf." The structure of the Act itself, which is basically a guide to the
administration and leasing of offshore mineral-producing properties, reinforces this conclusion. The Act consists almost
exclusively of specific measures to facilitate exploitation of natural resources on the continental shelf. In addition, 43
U.S.C. § 1332(b) provides that the Act "shall be construed in such manner that the character as high seas of the waters
above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected." As the court
below noted, an extension of jurisdiction for purposes of controlling the exploitation of the natural resources of the
continental shelf is not necessarily an extension of sovereignty.
We believe that a limited construction of the Act comports with the primary purpose of resolving competing claims to
ownership of the natural resources of the offshore seabed and subsoil. So read, the Act is consistent with Article 2 of the
Convention on the Continental Shelf:
1. The coastal state [nation] exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.[20]
The Convention on the Continental Shelf was a product of the United Nations Conference on the Law of the Sea
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
5/11
3/29/2016
340
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
convened at Geneva in 1958. It was the result of eight *340 years' work by the International Law Commission. See
generally Neblett, The 1958 Conference on the Law of the Sea: What was Accomplished, in The Law of the Sea (L.
Alexander ed. 1967). The Convention on the Continental Shelf became effective as law in the United States eleven
years after passage of the Outer Continental Shelf Lands Act and superseded any incompatible terminology in the
domestic statute. United States v. Ray, 423 F.2d 16, 21 (5th Cir. 1970). See Cook v. United States, 288 U.S. 102, 118-19,
53 S.Ct. 305, 311, 77 L.Ed. 641, 649-50 (1932).
Interpretations of the Convention and the Act by legal scholars have, with remarkable accord, reached the same
conclusion regarding the nature of control of the United States over the continental shelf.[21] The most compelling
explication of the Convention regarding national control over non-resource-related material in the shelf area is
contained in the comments of the International Law Commission:
It is clearly understood that the rights in question do not cover objects such as wrecked ships and their
cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil.[22]
This comment is consistent with the Commission's general perception of national jurisdiction over the continental shelf:
[The Commission] was unwilling to accept the sovereignty of the coastal State over the seabed and
subsoil of the continental shelf. . . . the text as now adopted leaves no doubt that the rights conferred upon
the coastal state cover all rights necessary for and connected with the exploration and exploitation of the
natural resources of the continental shelf.[23]
We have demonstrated the limited scope of American control over the wreck site. We conclude that the remains of the
Atocha are not situated on lands owned or controlled by the United States under the provisions of the Antiquities Act.[24]
Sovereign Prerogative
The United States also claims the treasure as successor to the prerogative rights of the king of England. At first glance
the English prerogative would seem irrelevant to the wreck of a Spanish vessel discovered by American citizens off the
coast of Florida. The government contends, however, that the English common law rule—granting the Crown title to
341
abandoned property found at sea and reduced to possession by British subjects[25] —is incorporated *341 into
American law, and that Congress has specifically asserted jurisdiction over the res in this dispute.
While it may be within the constitutional power of Congress to take control of wrecked and abandoned property brought
to shore by American citizens (or the proceeds derived from its sale), legislation to that effect has never been enacted.
The Antiquities Act, which was intended to facilitate preservation of objects of historical importance, could hardly be read
to subrogate the United States to the prerogative rights of the Crown. The Abandoned Property Act, 40 U.S.C. § 310,
authorizes the administrator of General Services to protect the interests of the government in wrecked, abandoned, or
derelict property "being within the jurisdiction of the United States, and which ought to come to the United States." But the
Abandoned Property Act has limited application.
In Russell v. Proceeds of Forty Bales Cotton, 21 Fed.Cas. No. 12,154, p. 42 (S.D.Fla.1872), the United States intervened
and claimed, as its prerogative, the residue of proceeds after a salvage award from the sale of goods found derelict at
sea. The government relied upon the predecessor of 40 U.S.C. § 310[26] as statutory authority for its claim. In a thorough
and scholarly opinion, the district court determined that the Act applied only to property which should belong to the
United States as a result of its participation in the War between the States.[27] The judgment was affirmed on appeal
without opinion, 21 Fed.Cas. p. 50. The court in United States v. Tyndale, 116 F. 820 (1st Cir. 1902) presented with the
same question,[28] held "[t]he resolution of June 21, 1870 (16 Stat. 380), now section 3755 of the Revised Statutes,
relates, apparently, to property which ought equitably to go to the United States, and not to wreckage of any kind." 116 F.
at 822.
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
6/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
We accord great weight to the decision in Russell, especially since the court was construing legislation then only two
years old. However, we believe the less narrow construction accorded the Act in Tyndale is more appropriate in light of
continued, through infrequent, use of the Abandoned Property Act by the government to regulate salvage of property
342
abandoned on its lands, Corbino v. United *342 States, 488 F.2d 1008, 203 Ct.Cl. 278 (1973), or property in which it has
an equitable claim to ownership, 23 Op.Atty.Gen. 76, 77 (1900) (concerning Spanish vessels lying on Cuban coast,
wrecked by naval vessels of United States during Spanish-American War). In any event, the Abandoned Property Act is
not a legislative enactment of the sovereign prerogative.[29] Since the United States has no claim of equitable ownership
in a Spanish vessel wrecked more than a century before the American Revolution, and the wreck is not "within the
jurisdiction of the United States," the Abandoned Property Act has no application to the present controversy. We have
considered other statutes and regulations cited by the United States and find no support for the government's position in
them.
The government insists that a legislative assertion of the sovereign prerogative is not a necessary prerequisite to the
exercise of that jurisdiction by courts of the United States. A number of the royal colonies having asserted certain
prerogative rights to abandoned property found within their jurisdiction,[30] the sovereign prerogative is said to have
become a part of American maritime law and practice before the Revolution. After the Revolution, according to Kent, "if
found at sea, they [wrecks] are supposed to belong now to the United States, as succeeding in this respect, to the
prerogative of the English crown."[31]
In spite of the arguments advanced by Chancellor Kent, the notion of sovereign prerogative never took root in America.
One early decision, Peabody v. Proceeds of Twenty-Eight Bags of Cotton, 19 Fed.Cas. No. 10,869, p. 39 (D.Mass.1829),
a veritable treatise on the disposition of derelict property found at sea, concluded that sovereign prerogative had
become a part of American maritime law.[32] Peabody did not control the decision in Gardner v. Ninety-Nine Gold Coins,
111 F. 552 (D.Mass.1901), and it was overruled in United States v. Tyndale, 116 F. 820, 822-23 (1st Cir. 1902). The
reasoning of that court is impeccable:
Notwithstanding these propositions, the United States rely on the very learned opinion of Judge Davis in
Peabody v. Proceeds of 28 Bags of Cotton . . . . The difficulties which we meet were not considered by
Judge Davis, the whole force of whose reasoning only leads up to the proposition, which we admit, that it
is within the constitutional powers of congress to take control of this fund, and of others like it. The
conclusions which he draws from what was said by Mr. Dane and Chancellor Kent are hardly supported
by the text of those learned writers. . . .
* * * it is enough to say that, whatever was the title of the king at common law, it was based on the royal
prerogative, was appurtenant to the crown, and was, for the most part, classified among the royal
revenues. This is fully explained at various points by Blackstone, and by Lord Chief Justice Hale in "De
Jure Maris." It is clearly summed up by Hall on the Seashore (2d ed.) 80, as follows:
343
*343 "In like manner, wreck (when no owner can be found) is part of the king's ordinary revenue, in right
of his royal prerogative, and is a flower of the crown. So, also, flotsam, jetsam, and ligan are prerequisites
of the crown."
All of these could be granted by the king without authority of parliament. A singular instance of this is
given by Dane (volume 3, 137) in reference to the grant of the province of Maine from the King to Sir
Ferdinando Gorges. While there can be no question that the sovereign peoples in Anglo-Saxon America,
whether the various states or the United States, did, in some way, succeed to all the rights of the English
king and of the English people, yet, until some recognized line of procedure or some action of congress
intervenes, it is not within the province of the courts to determine that the treasury of the United States
represents any particular royal prerogative.
Other American cases are in accord with Tyndale. See Russell v. Proceeds of Forty Bales Cotton, 21 Fed.Cas. No.
12,154, pp. 42, 45-50 (S.D.Fla.1872), aff'd 21 Fed.Cas. p. 50; In re Moneys in Registry, 170 F. 470, 475 (E.D.Pa.1909);
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
7/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
Thompson v. United States, 62 Ct.Cl. 516, 524 (1926). Although at least one state court has invoked English common
law to award ownership of a sunken vessel to the sovereign,[33] the "American rule" vesting title in the finder has been
widely recognized by courts and writers. See Kenny and Hrussoff, The Ownership of the Treasures of the Sea, 9 Wm. &
Mary L.Rev. 383, 392-98 (1967).[34] See also H. Miller, International Law and Marine Archaeology 18 (1971). We accept
the "American rule" as it has been uniformly pronounced in the courts of this nation for over a century.[35]
Finally, the United States asserts a generalized power to control the activities of its citizens and corporations beyond the
limits of territorial jurisdiction. While this power no doubt exists,[36] we can find no authority in law or in reason to
countenance interference with plaintiffs' activities simply because they are American citizens, or because they chose to
incorporate in Florida rather than in some other country.
The judgment is modified and as modified is AFFIRMED.
[1] Plaintiffs began their salvage operation pursuant to a contract with the state of Florida. Under the contract, the state was entitled to
25% of the finds. The decision in United States v. Florida, 420 U.S. 531, 95 S.Ct. 1162, 43 L.Ed.2d 375 (1975), refuted Florida's claim to
the wreck site, and the contract was cancelled. See also United States v. Florida, 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976). It
is undisputed that the wreck lies on the continental shelf, outside the territorial waters of the United States. (A. 68).
[2] Our brief historical summary is based in part on Lyon, The Trouble with Treasure, 149 National Geographic 787 (June 1976).
[3] The fiction of a ship's personality is criticized in G. Gilmore & C. Black, The Law of Admiralty, 615-22 (2d ed. 1975).
[4] See 7A Moore's Federal Practice ¶ E.05 at E203-E206 (1977); The Law of Admiralty, supra n.3, at 616 n. 75a. See also 2 E.
Benedict, The Law of American Admiralty § 242 (1940).
[5] Plaintiffs strenuously argue that in addition to the artifacts seized and brought within the jurisdiction of the court, the vessel itself was in
custodia legis pursuant to an order of the court. The record lends some support to this contention. On February 26, 1976, the United
States moved the court "for an order commanding the United States Marshal for the Southern District of Florida, to arrest and take into
custody the defendant vessel, her tackle, apparel, cargo and armament, and to retain the same in his custody until further order of this
Court," and, in the alternative, "for an order continuing its order of October 28, 1976 (sic), appointing plaintiffs custodians of the defendant
vessel." (A. 88). On October 28, 1975, the court had ordered "that TREASURE SALVORS, INC., and ARMADA RESEARCH CORP. be,
and are hereby appointed the custodian of said vessel to retain the same in his [sic] custody for possession and safekeeping for the
aforementioned compensation until further order of this court," and had further ordered that "all Marshal's costs be paid prior to the
release of said vessel and all further constructive costs be borne by Plaintiffs." (A. 51). The Marshal's return filed November 11, 1975,
certifies service of a warrant in rem upon "The unidentified Wrecked and Abandoned Sailing Vessel . . . Located within 2500 yards of a
point at coordinate 24°31.5' North Latitude and 82°20' West Longitude, said sailing vessel is believed to be the `Nuestra Senora de
Atocha'." (A. 28).
[6] In The Fairisle, 76 F.Supp. 27, 34 (D.Maryland), the court held that owners who appeared in an in rem action to contest the plaintiffs'
claim "may equitably be treated as if they had been brought into court by personal process," citing The Dictator, L.R. Probate Division 304
(1892). This view was adopted by the Ninth Circuit in Mosher v. Tate, 182 F.2d 475, 479-80 (1950). See The Law of Admiralty, supra n.3,
at 802-05.
[7] The government invoked these statutes in its claim of ownership filed in the district court pursuant to admiralty rule 6(c). (A. 6-7).
[8] On February 19, 1976, the district court entered the following order of final judgment:
Pursuant to this Court's opinion Order of Summary Judgment of February 2, 1976, it is
ORDERED and ADJUDGED that judgment be and the same hereby is entered in favor of plaintiffs and against the United States of
America and all other claimants. The Counterclaim of the United States of America is hereby dismissed with prejudice.
It is further ORDERED that plaintiffs, Treasure Salvors, Inc. and Armada Research Corporation, are confirmed in their sole title to, and
right to immediate and sole possession of, the vessel identified in this matter as "Nuestra Senora de Atocha "together with all her tackle,
armament, apparel and cargo, wherever the same may be found.
It is further ORDERED and ADJUDGED that no person, organization or governmental agency shall interfere with the plaintiffs in the
lawful exercise of their right to possession or of their salvage rights in the vessel, tackle, armament, apparel and cargo.
Jurisdiction of this matter is hereby retained for the purpose of enforcement of this Order.
(A. 86-87).
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
8/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
[9] The parties stipulated that "the wreck believed to be the Nuestra Senora de Atocha, her tackle, armament, apparel and cargo has
been abandoned by its original owners." (A. 69)
[10] See Eleazer, The Recovery of Vessels, Aircraft, and Treasure In International Water, 34-35, in Some Current Sea Law Problems, (S.
Wurfel ed. 1975) (University of North Carolina Sea Grant Publication No. U.N.C.-SG-75-06).
[11] Norris raises the spectre of violent clashes between competing finders in international waters if abandoned property is held to be a
find. Norris, supra at § 158 (Supp.1974). We fail to see how salvage law, which gives the right of possession to first salvors, Norris, supra
at § 152, would provide a more effective deterrent to such clashes. Under either doctrine the property or an award for the value of the
salvage efforts goes to the one who is first able to seize possession. The primary difference between the two doctrines is that under
salvage law the claim of the finder of abandoned property is satisfied by proceeds from the sale of the property paid into court. See
Norris, supra at § 156.
[12] See Brady v. S.S. African Queen, 179 F.Supp. 321, 324 (E.D.Va.1960).
[13] According to Norris, The Law of Salvage § 185 (1958), "[t]he peril required in a salvage service need not necessarily be one of
imminent and absolute danger. The property must be in danger, either presently or reasonably to be apprehended." See Fort Myers Shell
& Dredging Co. v. Barge NBC512, 404 F.2d 137, 139 (5th Cir. 1968).
[14] The continental shelf is defined as the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the
territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the
natural resources of the said areas. This is a legal, not a geological, definition. The territorial sea of the United States includes those
waters lying not more than three miles (or three marine leagues in the Gulf of Mexico in the case of certain Gulf states) from the baseline
(the artificial coast line). All parts of the sea not included in the territorial or internal waters of a nation constitute high seas. Nations
maintain limited jurisdiction over waters lying not more than twelve miles from the baseline, in order to prevent or punish infringement of
customs, fiscal, immigration or sanitary regulations within their territory or territorial sea. This belt of limited control is the contiguous zone.
See generally Convention on the Continental Shelf, done April 29, 1958, [1964] 15 U.S.T. 471, T.I.A.S. No. 5578, in force June 10, 1964;
Convention on the Territorial Sea and the Contiguous Zone, done April 29, 1958, [1964] 15 U.S.T. 1606, T.I.A.S. No. 5639, in force Sept.
10, 1964; Convention on the High Seas, done April 29, 1958, [1962] 13 U.S.T. 2312, T.I.A.S. No. 5200, in force Sept. 30, 1962; Report of
Albert B. Maris, Special Master, United States v. Maine 65-68 (No. 35 Original, August 27, 1974) [hereinafter Master's Report]; Note,
Marine Archaeology and International Law: Background and Some Suggestions, 9 San Diego L.Rev. 668, 673-77 (1972) [hereinafter
Note, Marine Archaeology].
[15] Pres.Proc. No. 2667, 10 Fed.Reg. 12303, 59 Stat. 884.
[16] Convention on the Continental Shelf, done April 29, 1958, [1964] 15 U.S.T. 471, T.I.A.S. No. 5578, in force June 10, 1964.
[17] United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94
L.Ed. 1221 (1950).
[18] ". . . the jurisdiction and control of the United States is extended to the seabed and subsoil of the entire outer Continental Shelf
adjacent to the shores of the United States instead of merely to the natural resources of the subsoil and seabed as in the original House
version . . . ." Conf.Rep. No. 1031, 83rd Cong., 1st Sess. (1953), reported at 2 U.S.Code Cong. & Admin.News 1953, p. 2184.
[19] House Report No. 413, 83rd Cong., 1st Sess. (1953), reported at 2 U.S.Code Cong. & Admin.News 1953, p. 2177.
[20] Natural resources are defined in Article 2 as "the mineral and other non-living resources of the seabed and subsoil together with living
organisms belonging to sedentary species. . . ."
[21] See Perry, Sovereign Rights in Sunken Treasures, 7 Land and Natural Resources Division Journal 89, 111-12 (1969); H. Miller,
International Law and Marine Archaeology 22, 25-26 (1971) (monograph by Counsel to Subcommittee on Oceans and Atmosphere,
Committee on Commerce, United States Senate, published by Academy of Applied Science); Note, Marine Archaeology, 9 San Diego
L.Rev. 668, 675, 686, 697 (1972).
[22] 11 U.S. GAOR, Supp. 9 at 42, U.N. Doc. A/3159 (1956).
[23] Id. In the same vein:
The Commission accepted the idea that the coastal State may exercise control and jurisdiction over the continental shelf, with the proviso
that such control and jurisdiction shall be exercised solely for the purpose of exploiting its resources; and it rejected any claim to
sovereignty or jurisdiction over the superjacent waters.
Id. at 40.
[24] We note that even were we to find that the Antiquities Act did cover this salvage operation, its enforcement provision, 16 U.S.C. §
433, has been held unconstitutionally vague. United States v. Diaz, 499 F.2d 113 (9th Cir. 1974).
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
9/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
[25] The decision in The Aquila, 1 C. Rob. 36, 41-42, 165 Eng.Rep. 87, 89 (1798), is often referred to:
It is certainly very true that property may be so acquired [by finding and possession]: but the question is, to whom is it acquired? By the
law of nature, to the individual finder or occupant: But in a state of civil society, although property may be acquired by occupancy, it is not
necessarily acquired to the occupant himself; for the positive regulations of the State may have made alterations on the subject; and may,
for reasons of public peace and policy, have appropriated it to other persons, as, for instance, to the State itself, or to its grantees.
It will depend, therefore, on the law of each country to determine, whether property so acquired by occupancy, shall accrue to the
individual finder, or to the sovereign and his representatives? and I consider it to be the general rule of civilized countries, that what is
found derelict on the seas, is acquired beneficially for the sovereign, if no owner shall appear. Selden (De Don. Maris, lib. i, c. 24) lays it
down as a right annexed to sovereignty, and acknowledged amongst all nations ancient and modern. Loccenius (Lib. i, c. 7, 10) mentions
it as an incontestable right of sovereignty in the north of Europe. Valin (Lib. iv, tit. 9, art. 26) ascribes the same right to the crown of
France . . . . In England this right is as firmly established as any one prerogative of the crown. . . .
[26] 16 Stat. 380 (1870). The statute originally authorized the Secretary of the Treasury "to make such contracts and provisions as he
may deem most advantageous for the interests of the government, for the preservation, sale, or collection, of any property, or the
proceeds thereof which may have been wrecked, abandoned, or become derelict, being within the jurisdiction of the United States, and
which ought to come to the United States, [and any moneys, dues, and other interests, lately in the possession of or due to the so called
Confederate States, or their agents, and now belonging to the United States, which are now held or retained by any person, corporation
or municipality whatever, and which ought to have come into the possession and custody of, or been collected or received by, the United
States."] The bracketed clause was omitted as obsolete when the statute was codified.
[27] "The naval and military operations, both of the United States and the so-called Confederate States during the late war, had strewn
the harbors of the entire coast with numerous wrecks, and also many portions of the country with abandoned or derelict property, that
rightfully `should come to the United States,' either from being originally the property of the United States, or the property of the public
enemy, or from having been engaged in violating the blockade. The continuation of the resolution points more plainly at the fact that in the
mind of the legislator the property, dues, and claims `that ought to come to the United States' through the late war were intended, and no
others." 21 Fed.Cas. at p. 43.
[28] The government intervened in an action by the salvors for the residue of money recovered from a body found at sea. The court had
retained the money remaining after payment of a liberal salvage award in its registry for two years. The action in the district court is
reported as Gardner v. Ninety-Nine Gold Coins, 111 F. 552 (D.Mass.1901).
[29] See Perry, Sovereign Rights in Sunken Treasure, 7 Land and Natural Resources Division Journal 89, 97-104 (1969), for a
description of the aforementioned cases. He also cites unpublished Treasury Department memorandum opinions, e. g., Treasury File Op.
No. 195, Oct. 16, 1936, construing 40 U.S.C. § 310 to give the United States no authority to claim derelict property in which the United
States has no property interest. Id. at 102.
[30] See 2 Kent, Commentaries on American Law 359-60 (5th ed. 1844). Cf. Thompson v. The Catharina, 23 Fed.Cas. No. 13,949, pp.
1028, 1030 (D.Pa.1795) ("[T]he change in the form of our government has not abrogated all the laws, customs and principles of
jurisprudence, we inherited from our ancestors, and possessed at the period of our becoming an independent nation.")
[31] 2 Kent at 359.
[32] However, the court was reluctant to adopt the strict English practice of vesting property absolutely in the sovereign if unclaimed within
a year and a day from the decree of salvage. He preferred "to consider the sovereign authority as holding such property in trust, to be
surrendered to reasonable claims which may be presented." 19 Fed.Cas. at p. 48.
[33] Ervin v. Massachusetts Co., 95 So.2d 902 (Fla.1956), cert. denied, 355 U.S. 881, 78 S.Ct. 147, 2 L.Ed.2d 112 (1957).
[34] ". . . [I]t is somewhat difficult to assess the place of State ex rel. Ervin v. Massachusetts Co. in American law. In any event, in the
federal courts it remains the settled rule that, after the original owner, the finder's claim is preferred to the sovereign's." Id. at 398.
[35] Eleazer, supra n. 10, at 34, reaches the following conclusion concerning the applicable rules:
The nations of the world fall into two groups, generally speaking, as regards the ownership of recovered treasure. For the sake of clarity,
the first group will be said to adhere to the English Rule—recovered treasure belongs to the sovereign. The second group adheres to the
American Rule—recovered treasure belongs to the finder. The crucial characteristic to note is that title to recovered treasure vests in
either the sovereign or the finder. (footnote omitted)
[36] We are cited to the controls over American fishermen on the high seas, including the North Pacific Fisheries Act, 16 U.S.C. § 1021 et
seq., the Northwest Atlantic Fisheries Act, 16 U.S.C. § 981 et seq., and the Tuna Conventions Act, 16 U.S.C. § 951 et seq.
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
10/11
3/29/2016
Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC., 569 F. 2d 330 - Court of Appeals, 5th Circuit 1978 - Google Scholar
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=569+F.+2d+330+&hl=en&as_sdt=400006&case=7337404338173675019&scilh=0
11/11
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
621 F.2d 1340 (1980)
In re STATE OF FLORIDA, DEPARTMENT OF STATE, Petitioner-Appellant, v. TREASURE SALVORS, INC., a corporation, and Armada Research Corp., a corporation,
Plaintiffs-Appellees, The Unidentified Wrecked and Abandoned Sailing Vessel, etc., Defendant.
No. 78-2950.
United States Court of Appeals, Fifth Circuit.
July 24, 1980.
1341 *1341 Bernard S. McLendon, Sp. Asst. Atty. Gen. of Fla., Jacksonville, Fla., for petitioner-appellant.
David P. Horan, Key West, Fla., for plaintiffs-appellees.
Before GEWIN, RUBIN and SAM D. JOHNSON, Circuit Judges.
SAM D. JOHNSON, Circuit Judge:
This appeal offers this Court its second opportunity to determine ownership rights in artifacts recovered from the Spanish
vessel, Atocha. In this Court's first opinion, Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing
Vessel, 569 F.2d 330 (5th Cir. 1978) (hereinafter Treasure Salvors I), it was held that Treasure Salvors and Armada
Research Corp.[1] had title to the vessel and its cargo as against the United States. In the instant case this Court affirms
the district court's holding that these two Florida corporations have title to various artifacts as against the State of Florida.
[2]
Facts
The historical backdrop for this case was detailed in Treasure Salvors I, 569 F.2d at 333, and was the subject of a
National Geographic article, Lyon, The Trouble with Treasure, 149 National Geographic 787 (June 1976), but is well
1342 worth repeating. This case dates back to the early 17th Century, *1342 when Spain was using the riches of the New
World to finance her European military adventures. On September 4, 1622, a fleet of 28 ships, known as the Tierra Firme
Flota, commanded by the Marquis of Cadereita, set sail from Havana for Cadiz laden with bullion, spices, and tobacco
for King Phillip IV. As the ships entered the Florida Straits in search of the favorable Gulf Stream currents, bad weather
set in, and the vessels soon found themselves in the midst of a hurricane. The destructive winds from the northeast
stripped the vessels of their masts, sails, and standing rigging. The winds then shifted to the south and eight of the ships
were driven toward the dangerous waters of the lower Florida Keys, where they were soon lost. The remaining vessels
limped back to Havana. One of the eight ships that went down was the Nuestra Senora de Atocha. When the Atocha set
sail from Havana, she was carrying in excess of one million pesos of registered bullion and specie. Her hold contained a
treasure worthy of Midas: 160 gold bullion pieces, 900 silver ingots over 250,000 silver coins, 600 copper planks, 350
chests of indigo and 25 tons of tobacco.[3]
The Spaniards began a salvage effort as soon as the news of the disaster reached Havana. Under the direction of
Captain Gasper de Vargas, the salvors located the Atocha intact in 55 feet of water, with her mast peering above the
surface. The divers, however, were unable to enter the holds containing the treasure, as they were all battened down.
Only two bronze cannons from the upper deck of the stern castle could be retrieved.
De Vargas opted to place surface buoys to mark the position of the Atocha and sail west to salvage the Rosario, another
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
1/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
of the eight vessels that sank in the hurricane. In early October, another hurricane ravaged the Lower Keys, breaking up
the hull of the Atocha and spreading her treasure beneath the sands. When Vargas returned, he found the storm had
removed the protruding mast and his surface buoys. He was unable to relocate the vessel.
Early in 1623, the Marquis of Cadereita sailed from Havana to personally supervise the search.[4] The continued efforts
proved fruitless. Finally, in late 1623, the Spaniards abandoned the search.
The Cuban authorities, however, did not give up hope. They continued to keep the general area buoyed in anticipation
of future salvage efforts.[5] In 1626, Francisco Nunez Melian began searching for the Atocha and Santa Margarita under
a Royal salvage contract. Using state of the art equipment, including a 600 pound bronze diving bell with windows,
Melian was able to find the Santa Margarita and, over four years, salvage her cargo. Dutch raiding parties, hostile
Indians,[6] and political opportunities[7] eventually brought the search for the Atocha to a close in 1641. Finally, in 1683,
the Spanish House of Trade published a list of ships still missing. The Atocha headed the list. Melian's salvage accounts
were sent from Havana to the Archive of the Indies in Seville, and the Atocha passed into history.
1343 Over three centuries later, in the mid-1960's, treasure searchers renewed their efforts *1343 to locate the Atocha and her
rich treasure. By 1968, the search was concentrated in the Middle Keys, near Upper Matecumbe Key. This area was
isolated by the searches after pouring through the Spanish archival records in Seville.[8] Years of searching yielded
nothing.
Finally, in the late 1960's, Dr. Eugene Lyon, working as a consulting historian for Treasure Salvors, uncovered
documentary evidence which indicated to him that the current salvage efforts were directed at the wrong set of keys. He
discovered that "Matecumbe" was a general term used to denote the Florida Keys as a whole. A thorough search of
Melian's salvage records revealed that the search for the Atocha had been centered near "Cayos del Marques." This
placed the wreck of the Atocha somewhere between the Dry Tortugas and Sand Key in the Lower Keys.
Once Dr. Lyon ascertained what he believed to be the correct general area of the Atocha's watery grave, "all" that
remained for Treasure Salvors was to pinpoint the exact location. It was a task easier said than done. For one year they
searched some 120,000 nautical miles of seabed 24 hours a day before detecting a large galleon-size anchor in the
spring of 1971. Additional shipwreck material was recovered in the immediate vicinity of the anchor. Soon the wreck was
identified as part of the break-up of the Atocha.[9]
In April 1971, Treasure Salvors and the State of Florida executed a one year contract allowing Salvors to conduct their
underwater salvage operations on the Atocha. Both parties entered into this agreement under the belief that the Atocha
was resting on land owned by Florida. Eventually, four contracts were signed (the last in November 1974) each running
about one year. Under the contracts, the State was entitled to 25% of the finds. In June 1973, Florida's Division of
Archives in Tallahassee received its share[10] of the first batch of artifacts recovered by Treasure Salvors. In February
1975, the Salvors delivered what turned out to be the State's last batch.
The Atocha's legal odyssey began with the Supreme Court's decision in United States v. Florida, 420 U.S. 531, 95 S.Ct.
1162, 43 L.Ed.2d 375 (1975). The Court affirmed the report of Special Master Maris, rejecting Florida's ownership claim
of submerged lands, including that part of the continental shelf on which the Atocha rests. The report established that
Florida had never owned an interest in any of the lands involved in the case at bar. On July 18, 1975, four months after
the Supreme Court's holding, Treasure Salvors filed an in rem action in the Southern District of Florida for possession or
confirmation of title to the abandoned vessel believed to be the Nuestra Senora de Atocha.
The United States intervened in the action and asserted title to the vessel. The district court entered judgment for
Treasure Salvors and this court affirmed the trial judge's ruling that as between Treasure Salvors and the United States,
Treasure Salvors had title to and right to possession of the vessel and its cargo. Treasure Salvors I.
1344 The State of Florida initially refrained from intervening in the action. Instead, *1344 the State prepared for the eventuality
of a judgment in favor of the federal government. Florida assisted the United States in the lawsuit[11] and entered into
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
2/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
preliminary negotiations regarding the disposition of the Atocha's treasure should the federal government prevail.[12]
The adverse judgment left Florida in the cold.
In April 1978, after this Court's judgment for Treasure Salvors, the district court issued a warrant for arrest in rem. The
warrant directed the marshal to take possession of all artifacts from the vessel in the custody or control of the State's
Division of Archives' office in Tallahassee.[13]" Florida filed a motion to quash the arrest warrant and successfully sought
an emergency stay of the district court's order from this Court. In Re: State of Florida, Department of State, No. 78-1763
(5th Cir. April 12, 1978). In accordance with this Court's order, on April 14, the district court stayed the execution of the
arrest warrant.
This temporary ban on the execution of the warrant for arrest did not halt the legal maneuvers. The district court denied
Florida's motion to quash the warrant and granted Treasure Salvors' motion of April 17 to require the State of Florida to
show cause[14] why it should not be ordered to transfer the artifacts in its possession to the custodians appointed by the
district court.[15] The State answered, asserting that the court lacked jurisdiction and that Florida owned the artifacts in
the possession of the Tallahassee office of the Division of Archives. On July 27 and 28 the district judge held a full
evidentiary hearing on the jurisdictional issues and the merits of the order to show cause.[16]
After the hearing, the district judge filed a Memorandum Order containing extensive findings of fact and conclusions of
law. 459 F.Supp. 507. The judge found that the order to show cause was properly issued. The court then held that the
State of Florida was bound by the earlier judgment in Treasure Salvors I. Alternatively, the trial judge held that the suit to
determine title to the artifacts was not barred by the eleventh amendment and that Florida's claim of ownership was
without merit. The trial judge directed the State to deliver the artifacts to the district court. The State of Florida then
instituted this appeal. This Court is persuaded that the district court's alternative holding is correct, and we affirm.[17]
Eleventh Amendment
1345 Florida's initial jurisdictional contention is that the order to show cause directed at the Division of Archives is *1345
barred by the eleventh amendment.[18] The State asserts that it owns the artifacts in dispute and thus the district court's
attempt to adjudicate ownership is, in essence, a suit against a state. Florida argues that since it has not waived its
eleventh amendment protection by voluntary assertion of a claim or defense, see Gardner v. New Jersey, 329 U.S. 565,
67 S.Ct. 467, 91 L.Ed. 504 (1947), the district court lacked jurisdiction.
The Supreme Court has held that the eleventh amendment applies to admiralty in rem actions. In re State of New York,
256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921). In a companion case, In re State of New York, 256 U.S. 503, 41 S.Ct.
592, 65 L.Ed. 1063 (1921), the Court provided guidance for evaluating eleventh amendment claims in admiralty in rem
actions.
In that case the administrators of Evelyn McGahan's estate filed a libel in admiralty against a tug, the Queen City,
alleging that the negligent operation of the tug caused McGahan's death. The State of New York entered a special
appearance and filed a verified affidavit suggesting that the district court lacked jurisdiction because the vessel was the
State's property, and had been in its possession and control at the time of the accident. The libelants offered nothing to
controvert the State's affidavits. The district court rejected New York's claim of immunity and the Supreme Court reversed.
The Court first focused on the district judge's refusal to accept the State's assertion of ownership. "We deem it clear . .
that the verified suggestion presented by the Attorney General of that state . . ought to be accepted as sufficient evidence
of the fact [of ownership], at least in the absence of a special challenge." Id. at 509 (emphasis added). The Court held
that the district judge, given the uncontroverted claim to the vessel, should have acknowledged the State's ownership. It
went on to conclude that admiralty in rem process cannot be issued on public property of a state "used and employed for
public and governmental purposes." Id. at 511.
The Queen City tells us that when a state submits uncontroverted evidence of ownership in an admiralty in rem action,
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
3/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
the district court is bound to accept the assertion and apply the eleventh amendment accordingly. In the case at bar,
however, we have a controverted claim of ownership. Treasure Salvors offered evidence and legal arguments to show
that it, and not Florida, owned the artifacts from the Atocha. Such an offer is the "special challenge" that the Supreme
Court envisioned in the Queen City. This challenge operates to rebut the presumption of validity attributed to a state's
ownership claim.
Once an appropriate challenge is made, a district judge is no longer compelled to conclude that the state owns the res in
dispute. Instead, the Court must make a jurisdictional determination very similar to that made in the classic "jurisdiction to
determine jurisdiction" line of cases. In that genre, the pivotal jurisdictional question involves essentially the same
analysis as is posed by the merits of the case. See United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91
L.Ed.2d 884 (1957). Where "the issue of jurisdiction is inextricably intertwined with the merits of the controversy," the
court retains the case and resolves the issue, since federal courts "always have jurisdiction to determine our jurisdiction."
1346 *1346 Nestor v. Hershey, 425 F.2d 504, 511 (D.C.Cir.1969).[19]
In the case at bar, ownership of the salvaged items is determinative of both the eleventh amendment and the merits.
Since we agree with the trial court's assessment that Florida lacks an ownership interest in the artifacts, see pp. 13481349 infra, we affirm the judge's holding that the order to show cause is not, in this case, a suit against a state.[20]
Jurisdiction and Process
Given the lack of eleventh amendment and sovereign immunity problems, it must be determined whether the district
court had the power to issue the "show cause order" and adjudicate the merits of the ownership claims. A careful
analysis of the record establishes that admiralty jurisdiction provided the district court a firm foundation for its actions.
Admiralty in rem jurisdiction generally requires that the res be present in the district when the suit is filed or during the
pendency of the action.[21] Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 508 F.2d 1113, 1115 (5th Cir. 1975). The
fact that a res was at one time within the district is insufficient to establish in rem jurisdiction. Id. at 1116. The crux of the
State's argument is that the artifacts in dispute were not present in the Southern District of Florida when this litigation
began back in 1975 and never were present in the Southern District at any time during the litigation. Given the general
requirement of presence, the absence of the items in dispute, the State argues, deprive the district court of in rem
jurisdiction and thus the power to issue the order to show cause and adjudicate the ownership interest in the particular
artifacts held in Tallahassee.
The State misconceives the nature of the district court's exercise of jurisdiction. It is undisputed that most of the artifacts
recovered from the Atocha were present in the Southern District of Florida when the litigation began.[22] The district court
clearly had the power to adjudicate the ownership of the artifacts located in its district. The issue before this Court is
whether the presence of the artifacts in the Southern District provided a sufficient foundation for the trial judge's order to
show cause aimed at artifacts being held by the State in the Northern District of Florida. It is this Court's conclusion that
the trial court was authorized to issue ancillary process in this case by Supplemental Admiralty Rule C(5).
1347 Rule C(5)[23] provides that where in rem process has already been served and where *1347 part of the property that is
the subject of the action is not within the control of the court "because it has been removed or sold," the court may order
the party in possession to show cause why the property should not be delivered to the custody of the marshal. Rule C(5)
goes on to state that after the show cause hearing, "the court may enter such judgment as law and justice may require."
There is no doubt that in rem process was served with respect to the salvaged articles from the Atocha, and some of the
artifacts were not within the Southern District because they had been removed to the Northern District pursuant to the
contract between Florida and Treasure Salvors. In this case, these facts alone do not justify the show cause order
directed at the Division of Archives. It must also appear that: (1) the district court had control over a sufficient amount of
the res to justify ancillary process and (2) ancillary process can be issued outside the district.
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
4/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
The rulemakers only contemplated the use of ancillary process where the major portion of the res is within the control of
the court. See Notes of Advisory Committee on Rules, 28 U.S.C.A. Supplemental Rule C (1970); 7A Moore's Federal
Practice ¶ C.15 at 700.4, 700.5 (2d ed. 1979); The George Prescott, 10 Fed.Cas. 222 (E.D.N.Y. 1865) (holding that under
Admiralty Rule 9 ancillary process can reach property appurtenant to the arrested res, even though the property was
removed from the res prior to seizure). The draftsmen did not intend to allow the presence of a portion of a res to support
the issuance of ancillary process when the majority of the res is located outside the district. 7A Moore's supra at 700.4.
Given the general requirement of presence of the res to support in rem jurisdiction, a rule allowing a small part of the res
to support issuing ancillary process against the major portion of the res would be to allow the proverbial tail to wag the
dog. Jurisdiction over the extra-territorial portion of the res in such a situation can only be obtained by original process.
Id.
For the purposes of ancillary process, it is apparent that the district court in the case at bar had "control" over a sufficient
portion of the res to warrant the use of ancillary process. In making the sufficiency determination, the district court
properly was entitled to consider the main body of the Atocha (that part still resting on the continental shelf) as being
within its "control." The bulk of the Atocha lay buried in international waters forty nautical miles off the Florida coast, not in
another district. The district court did everything possible to bring the vessel within its control.[24] Indeed, as a practical
matter, it was impossible to bring the remainder of the vessel within any court's territorial jurisdiction on reasonable
notice. Finally, there was little danger that significant portions of the res could escape an in rem decree. Treasure Salvors
I, 569 F.2d at 335. In light of the realities of the situation, the district court's assessment that it had control over a sufficient
portion of the Atocha was correct and this was a proper case for ancillary process. Cf. Id. at 334 (Admiralty in rem
jurisdiction is a legal fiction designed to aid courts in "finding the most practical and efficacious means of resolving the
disputes before them").
Even given that this was a proper case for ancillary process, it must still be ascertained whether ancillary process may
1348 be issued outside the district but within *1348 state boundaries.[25] This determination hinges on the applicability of
Supplemental Admiralty Rule E(3)(a).
Rule E(3)(a) provides:
(3) Process.
(a) Territorial Limits of Effective Service. Process in rem and of maritime attachment and garnishment shall
be served only within the district.
(emphasis added). In the Advisory Notes the draftsmen, in commenting on Rule E(3)(a), stated that "process requiring
seizure of property should continue to be served only within the geographical limits of the district." Notes of Advisory
Committee on Rules, 28 U.S.C.A. Supplemental Rule E (1970) (emphasis added). Ancillary process, however, does not
require the seizure of property. Rule C(5). The rulemakers appear not to have intended for Rule E(3)(a) to govern
ancillary process.
There are two policy reasons that also support the conclusion that Rule E(3)(a) does not govern ancillary process. First,
as the district judge noted, limiting ancillary process to the district would produce a multiplicity of lawsuits. 459 F.Supp. at
519. New lawsuits would have to be filed in each district to which a portion of the res had been removed. Such a
procedure could hardly be classified as a valuable expenditure of judicial resources. Second, "to the extent a decree in
rem may be said to affect all the normal incidents of the arrested res, it may be necessary to give extraterritorial effect to
ancillary process to enable the court to bring within its control all property its decree will affect." 7A Moore's, supra at
700.10. The Advisory Committee Notes and policy rationales compel the conclusion that Rule E(3)(a) was not designed
to govern ancillary process.
Supplemental Admiralty Rule A provides that the general Rules of Civil Procedure govern actions in rem in the absence
of a contrary Supplemental Rule.[26] Federal Rule 4(f) is the general rule concerning the territorial limits of process.[27] In
accordance with Supplemental Rule A, Federal Rule 4(f) controls the limits of effective service in the case at bar. Rule
4(f) states that all process, other than subpoenas, may be served anywhere within the boundaries of the state in which
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
5/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
the district court is located. Ancillary process here was served on the Division of Archive's office, located in the northern
part of the state. Rule 4(f) was satisfied.
In sum, the trial judge had jurisdiction to issue ancillary process, and the process was effectuated within the state in
accordance with Federal Rule 4(f). The trial court properly reached the merits of the dispute.
The Merits
Finally, this Court's attention is directed to Florida's contention that the district court erred in holding that the State had no
1349 interest in the artifacts from the *1349 Atocha and ordering the transfer of the items to the marshal for delivery to
Treasure Salvors. A careful review of the record and the basic legal principles of contract law compel the conclusion that
the trial court's order should be affirmed.
The facts underlying the merits of this case are quite simple. Beginning in 1971, Treasure Salvors and the State of
Florida entered into a series of annual contracts governing the salvage of the Atocha. Both parties entered into these
agreements under the impression that the seabed on which the Atocha lay was state land. Treasure Salvors agreed to
relinquish 25% of the items recovered in return for the right to salvage on state lands. In 1975 the Supreme Court, in
United States v. Florida, 420 U.S. 531, 95 S.Ct. 1162, 43 L.Ed.2d 375 (1975), held that the part of the continental shelf on
which the Atocha was resting had never been owned by Florida. It was at this point that Treasure Salvors sought to be
declared owner of the Atocha.
Even the briefest of glances at these facts cannot help but invoke thoughts of the doctrine of mutual mistake[28] and call
to mind the seminal case of Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (1887). Sherwood involved the classic
remedy, "replevin for a cow." Plaintiff had agreed to purchase Rose 2d of Aberlone from defendants for $80. When the
plaintiff tendered the money, the sellers refused to accept it and declined to yield Rose. At trial the sellers introduced
evidence establishing that at the time of the agreement both parties thought Rose was barren and could not breed. Only
in the interim, between the agreement to sell and the buyer's tender of the funds, was it discovered that Rose was with
calf.[29] This mistake, sellers argued, went to the root of the parties' agreement. The Michigan Supreme Court agreed
and allowed the sellers to avoid their contractual obligation.
The case at bar presents another example of mutual mistake. The parties entered into the salvage contracts under the
mistaken assumption that the State of Florida owned the land. But for this belief, the Division of Archives and Treasure
Salvors would not have executed the agreements. The trial court correctly held that the parties made a mutual mistake.
The facts of this case also raise the common law doctrine of failure of consideration.[30] Courts have long been reluctant
to delve into the adequacy of consideration. See e. g., Sir Anthony Sturlyn v. Albany, 1 Cro.Eliz. 67 (Q.B. 1587); Westlake
v. Adams, 5 C.V. (N.S.) 248, 265 (C.P. 1888) ("It is an elementary principle, that the law will not enter into an inquiry as to
the adequacy of consideration . . . ."). A different approach, however, has been taken where there is a failure of
consideration.
The law aptly terms an agreement to do an act or to pay money or other thing where there is no
consideration for it a nudum pactum — a naked agreement — a promise without legal support, which the
law will not enforce, no matter whether verbal or written, or however earnestly and solemnly made.
Jones v. McCallum, 21 Fla. 392, 393, 395 (1885).
In the case at bar we have a failure of consideration. In return for 25% of the finds, the State of Florida offered Treasure
Salvors the "right" to conduct a salvage operation on lands in which the state had no interest. There was a promise
without legal support.
1350 Where there is a failure of consideration, the injured party is free, upon discovery, *1350 to rescind the agreement and
recover back what he has paid. See United States v. Haynes School Dist. No. 8, 102 F.Supp. 843 (E.D.Ark.1951).
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
6/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
Treasure Salvors sought to rescind the contracts and recover back all the artifacts as soon as United States v. Florida
was handed down. The district judge was acting well within his authority when he ordered the Division of Archives to
deliver the artifacts in its possession to the marshal so that the salvaged items might be transferred to Treasure Salvors.
The State argues that the contracts between the parties should be declared valid because, at the time they were
executed, the Florida Constitution stated that Florida owned the submerged lands holding the Atocha. In United States v.
Florida, however, the Supreme Court held that this ownership claim was without merit and that the lands never belonged
to Florida. A holding that the State's incorrect claim of ownership is sufficient to support the contracts would operate to
overturn the doctrines of mutual mistake and failure of consideration. The invitation to do so must be declined.[31]
Conclusion
The district court had jurisdiction pursuant to Supplemental Admiralty Rules (C)(5) and (A) to issue the "show cause
order" and adjudicate the merits of the State's ownership claim. Neither the eleventh amendment nor sovereign immunity
prohibited such action. This Court's review of the record reveals that the trial judge's conclusion that the State did not
have an ownership interest in the artifacts is correct. The judgment of the district court is
AFFIRMED.
ALVIN B. RUBIN, Circuit Judge, dissenting:
Respectfully, I dissent from the conclusion reached by my brethren that the district court had jurisdiction. Because the
State of Florida contended that it had title to the property within the jurisdiction of the court, the eleventh amendment
deprived the district court of jurisdiction to adjudicate the State's title or lack of it. Moreover, if the district court was not
barred from asserting jurisdiction by the eleventh amendment, it lacked in rem jurisdiction over the wreck.
The Eleventh Amendment is sweeping:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State . . . ."
While the amendment in terms applies only to suits by citizens of another state, it also precludes jurisdiction over a suit
by the citizens of a state against that state. Hans v. Louisiana, 134 U.S. 1, 3, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890).
Although, in briefs, the State of Florida does assert that it owns the artifacts in dispute, it has not waived its eleventh
amendment immunity. It correctly asserts that the plaintiffs cannot bring it into a federal court to test its title to the artifacts.
Neither of the cases known as In re New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921) and 256 U.S. 503, 41
S.Ct. 592, 65 L.Ed. 1063 (1921), holds that a state can be brought involuntarily into an admiralty court for an adjudication
of its property rights. In those cases, a tug had been libelled in a federal court. The state asserted an uncontroverted
claim to ownership of the tug and intervened. The Supreme Court held the admiralty court could not issue in rem process
against public property of the state. While it said, in reaching this conclusion, that the state's suggestion of ownership
ought to be accepted in the absence of a special challenge, I do not understand this to imply that, if there is a
1351 controverted claim of state ownership, the controversy *1351 becomes an appropriate subject for admiralty jurisdiction.
Such a conclusion is particularly difficult to reconcile with the eleventh amendment when, as here, the determination of
ownership involves the adjudication of an underlying contract dispute between a citizen of the state and the state itself, a
purely local question.
The doctrine that a court has jurisdiction to determine its own jurisdiction does not permit it to decide the merits of a suit
against the state. Once the state appears and asserts title to the property in dispute the court's jurisdiction is ended. In
essence, the suggestion by my brethren that the court can determine whether it has jurisdiction of a suit over stateclaimed property by looking to the merits is equivalent to asserting that suits against a state are permitted by the eleventh
amendment if the result is that the state loses.
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
7/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
The decision in Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137 (1897) is not apposite here because the
judgment in that dispute did not determine the rights of the state. In deciding that a claimant to property might sue
persons preventing him from obtaining possession even though the possessors held the property on behalf of the state,
the court reasoned that this was not an action against the state within the meaning of the Constitution because judgment
would not conclude the state. Id. at 221, 17 S.Ct. at 777. Here the district court did precisely what was implicitly forbidden
by Tindal: it concluded the state from claiming ownership of the property.
It is, I think, arguable that under Tindal the writ of arrest of the salvaged articles was proper because it was directed to
certain named individuals and simply brought the articles into possession of the court. However, when the court went on
to adjudicate the ownership of these articles, it determined a claim against the state. It decreed that Treasure Salvors
and Armada Research Corporation have full title to the salvaged articles and that the contract under which the state had
possessed some of the salvaged treasure was invalid. It seems to me that this is the precise result barred by the
eleventh amendment.
Our decision on the first appeal is not res judicata of this claim. We there expressly modified the district court's order
adjudicating title to Treasure Salvors as against all other possible claimants and limited the effect of the decree saying,
. . . the district court properly adjudicated title to all those objects within its territorial jurisdiction and to
those objects without its territory as between plaintiffs and the United States. In affirming the district court,
we do not approve that portion of its order which may be construed as a holding that plaintiffs have
exclusive title to, and the right to immediate and sole possession of, the vessel and cargo as to other
claimants, if any there be, who are not parties or privies to this litigation. (Emphasis supplied.)
569 F.2d at 335-36.
The district court found that the State of Florida was bound by the decree on the basis that it was privy to the litigation
because it had stood by, let the United States litigate and failed to intervene. These actions are not, in my opinion,
sufficient to make the State of Florida either a party to this litigation or privy to it. The United States asserted a
counterclaim; Florida did not. If the United States had succeeded, it would have been decreed owner of the property;
Florida could not have been. Florida was doubtless interested in the success of the United States, and hoped to benefit if
the federal government were decreed to be owner. This bystander's interest in the success of one litigant over another is
not equivalent to consent to a decree adjudicating the bystander's title rights. Therefore, I cannot find that Florida's rights
are determined by the district court's prior judgment, as modified by us.
In addition to lacking jurisdiction to adjudicate Florida's claim, the district court also was without in rem jurisdiction over a
1352 wreck that lay beyond the contiguous *1352 waters. See United States v. Williams, 617 F.2d 1063, 1073 (5th Cir. 1980)
(en banc) for a definition of the extent of these waters. The court did everything it could to obtain jurisdiction, but the fact
remains that the wreck was not within its territorial domain or, so far as the record shows, within the jurisdiction of any
other sovereign. There are indeed res that lie beyond the jurisdiction of any court to determine in rem ownership. The
waters of the ocean are wide and deep. Many objects may sail on the ocean, float in it or lie at the bottom outside the in
rem jurisdiction of any court.
This does not mean that disputes must go unadjudicated. The Florida state courts have in personam jurisdiction and
there is no reason why ownership rights and contract issues cannot properly be adjudicated in that forum.
I would, therefore, dismiss this suit for lack of jurisdiction.
[1] These two corporations will be referred to as Treasure Salvors in this opinion.
[2] In November 1975, plaintiffs issued and published a monition against all potential claimants of the vessel and its cargo, admonishing
them to file their claims to the vessel. Only two parties did so — the United States and Florida. On April 4, 1978, this Court issued a
mandate affirming the district court's judgment in Treasure Salvors I, as modified, against the United States. On May 3, 1978, the district
court issued a default judgment against all potential claimants who had not filed their claims and barred and precluded filing any further
claims to the vessel.
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
8/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
[3] In 1978, this cargo was valued at $250 million. Today's meteoric rise in the price of precious metals has undoubtedly substantially
increased the present value of the Spaniards' booty.
[4] The Marquis directed the salvage operation from his camp on one of the nearby keys. These keys were named "Cayos de Marques"
after the Marquis and today are known as the Marquesas Keys.
[5] In 1625 another vessel was lost and all the crew members perished in this continuing effort to mark the location of the treasure-laden
vessels.
[6] The Indians burned a salvage vessel that floundered just off the Marquesas Keys and, eventually, the Spanish salvage camp.
[7] Melian was appointed Governor at Caracas. Captain Juan de Anvez continued the salvage of the Santa Margarita, but only
occasionally searched for the Atocha.
[8] Documents drafted at the same time as the Atocha went down indicated that the vessel sank near "Matecumbe." Searchers
concentrated their efforts in the Middle Keys, hoping that the "Matecumbe" referred to in the original documents corresponded to the
modern key bearing that name.
[9] The wreck site is located near some shoals known as the "Quicksands," nine and one half nautical miles west of the Marquesas Keys
and forty nautical miles west of Key West. Those mariners familiar with this area will recognize it as being in the heart of a Naval
Operational Training Area and only three nautical miles west of a Bombing and Strafing Target Area.
[10] Treasure Salvors kept many of the artifacts recovered at their corporate headquarters, a 168 foot reconstructed galleon anchored at
the foot of Margaret Street in Key West, Florida. The precious stones were kept in a safety deposit box in Key West.
[11] An attorney for the Florida Secretary of State, the agency that administers the Division of Archives, worked with the federal
government on the case and monitored, for Florida, the progress of the litigation.
[12] The Division of Archives was negotiating with the Department of the Interior during the course of the litigation for an antiquities
permit. Apparently, if the United States had been successful, the Division would have received an antiquities permit for the wreck site.
[13] Tallahassee is located in the Northern District of Florida. The marshal was instructed to bring the remnants of the vessel and her
cargo into the custody of the district court in the Southern District.
[14] This order to show cause is known as ancillary process. Supplemental Admiralty Rule C(5).
[15] The district judge had previously appointed Treasure Salvors substitute custodians. Treasure Salvors, Inc. v. The Unidentified
Wrecked and Abandoned Sailing Vessel, No. 75-1416 (S.D.Fla., Oct. 28, 1975).
[16] In order to expedite the litigation, Treasure Salvors agreed to allow the Division of Archives to serve as temporary custodian of the
disputed artifacts.
[17] This Court declines to either affirm or reverse the trial judge's innovative res judicata analysis. The preclusion issues raised by the
district court's opinion are reserved for another day.
[18] U.S.Const. amend. XI provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Although the eleventh amendment is not literally applicable to suits against a state by her own citizens, the Supreme Court has construed
the amendment to cover such actions. Edelman v. Jordan, 415 U.S. 651, 662, 663, 677 n. 19, 94 S.Ct. 1347, 1355, 1362 n. 19, 39
L.Ed.2d 662 (1974).
[19] This approach is especially desirable in admiralty in rem actions. Federal courts have exclusive jurisdiction over admiralty in rem
proceedings. Madruga v. Superior Court of California, 346 U.S. 556, 74 S.Ct. 298, 98 L.Ed. 290 (1954), G. Gilmore and C. Black, The
Law of Admiralty § 1-13 (2d ed. 1975). If the mere assertion of ownership by a state of a res was sufficient to invoke the eleventh
amendment, petitioners such as Treasure Salvors would find themselves stranded without a forum in which to litigate their claim.
[20] Our holding that this action does not involve a suit against a state also disposes of Florida's claim that it has not waived sovereign
immunity.
[21] In Treasure Salvors I this Court held that a party may waive the requirement that a res be present within the district and consent to a
court's admiralty in rem jurisdiction. 569 F.2d at 335. Florida, however, has not consented to waive the usual jurisdictional requirements.
[22] Under the salvage contract between Treasure Salvors and Florida, Florida received 25% of the finds. Treasure Salvors kept its share
of the artifacts recovered either at its headquarters in Key West or in a bank in Key West. See note 9 supra.
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
9/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 621 F. 2d 1340 - Court of Appeals, 5th Circuit 1980 - Google Scholar
[23] Supplemental Admiralty Rule C(5):
(5) Ancillary Process. In any action in rem in which process has been served as provided by this rule, if any part of the property that is the
subject of the action has not been brought within the control of the court because it has been removed or sold, or because it is intangible
property in the hands of a person who has not been served with process, the court may, on motion, order any person having possession
or control of such property or its proceeds to show cause why it should not be delivered into the custody of the marshal or paid into court
to abide the judgment; and, after hearing, the court may enter such judgment as law and justice may require.
[24] The court ordered the marshal to arrest the vessel and bring it within the court's physical control. Alternatively, the court appointed
Treasure Salvors as custodian of the vessel "for possession and safekeeping . . . until further order of this court." On the facts of this case,
this virtually placed the vessel in custodia legis. Treasure Salvors I, 569 F.2d at 335, n. 5.
[25] We pass no judgment, one way or another, on whether ancillary process may be effectuated across state lines.
[26] Supplemental Admiralty Rule A, in pertinent part, states:
The general Rules of Civil Procedure for the United States District Courts are also applicable to the foregoing proceedings except to the
extent that they are inconsistent with these Supplemental Rules.
[27] Federal Rule of Civil Procedure 4(f) provides:
(f) Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of the state
in which the district court is held, and, when authorized by a statute of the United States or by these rules, beyond the territorial limits of
that state. In addition, persons who are brought in as parties pursuant to Rule 14, or as additional parties to a pending action or a
counterclaim or crossclaim therein pursuant to Rule 19, may be served in the manner stated in paragraphs (1)-(6) of subdivision (d) of
this rule at all places outside the state but within the United States that are not more than 100 miles from the place in which the action is
commenced, or to which it is assigned or transferred for trial; and persons required to respond to an order of commitment for civil
contempt may be served at the same places. A subpoena may be served within the territorial limits provided in Rule 45.
[28] In determining the existence of mutual mistake, there are no principles peculiar to admiralty. Sicula Oceanica S.A. v. Wilmar Marine
Engineering & Sales Corp., 413 F.2d 1332 (5th Cir. 1969).
[29] Rose, with calf, was worth approximately seven times as much as a barren Rose.
[30] Like mutual mistake, there are no principles of failure of consideration peculiar to admiralty. See p. 1349, n. 28, supra.
[31] There is some philosophical support for the position advocated by the State. See R. Descartes, Discourse on Method (1637)
("Cogito, ergo sum" — "I think, therefore I am.")
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=621+F.2d+1340+&hl=en&as_sdt=400006&case=6920329985692317146&scilh=0
10/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
640 F.2d 560 (1981)
TREASURE SALVORS, INC., a corporation and Armada Research Corp., a corporation, PlaintiffsAppellees, v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, etc., Defendant, Olin Frick, John Gasque, William Riley and The Masters of the Motor Vessels " Juniper" &
" Seaker" , Defendants-Appellants.
No. 80-5067.
United States Court of Appeals, Fifth Circuit.
March 9, 1981.
562
561
*561 *562 Reginald M. Hayden, Jr., Miami, Fla., for defendants-appellants.
Horan & Sireci, David Paul Horan, J. M. Morse, III, Key West, Fla., for plaintiffs-appellees.
Before GEE, FAY and RANDALL, Circuit Judges.
RANDALL, Circuit Judge:
This appeal marks the third time that Treasure Salvors and its efforts to retrieve treasure from the remains of the Spanish
sailing vessel, Nuestra Senora de Atocha, have been before this court. The Nuestra Senora de Atocha sank off the coast
of Florida in 1622 while carrying gold and silver bullion from Havana to Cadiz.[1] In 1971 Treasure Salvors located an
anchor from the Atocha; since then, Treasure Salvors has continued to conduct salvage operations in the wreck area
and has retrieved gold and silver bullion, artifacts and armaments.
563
The first legal battle over Treasure Salvors' rights to the remains of the Atocha began when Treasure Salvors filed an in
rem action in the United States District *563 Court for the Southern District of Florida seeking possession of and
confirmation of title to the remains of the vessel and its cargo. The United States intervened and counterclaimed for title
to the vessel. The district court entered an order granting judgment for Treasure Salvors as against the United States and
also decreed that Treasure Salvors had sole title to, and right to immediate and sole possession of, the vessel and its
cargo "wherever the same may be found."
On appeal, we affirmed the district court's judgment insofar as it resolved the competing title claims of Treasure Salvors
and the United States; however, we modified the district court's order by refusing to approve that portion of the order
which purported to hold that Treasure Salvors had exclusive title to, and the right to immediate and sole possession of,
the vessel and cargo as to other claimants, who were not parties or privies to the action. Treasure Salvors, Inc. v.
Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir. 1978) (Treasure Salvors I).[2]
The second legal battle over rights to the wreckage of the Atocha involved Treasure Salvors and the State of Florida. In
1971 Treasure Salvors and the State entered into the first of a series of contracts which granted Treasure Salvors the
right to conduct underwater salvage operations on the Atocha and gave the State a right to receive 25% of the property
recovered as a result of such operations. Both parties entered into these agreements in the belief that the Atocha rested
on a submerged reef owned by the State of Florida. Both parties were mistaken in that belief. In 1975, the Supreme
Court rejected Florida's claim to ownership of that portion of the continental shelf where the remains of the Atocha rest,
United States v. Florida, 420 U.S. 531, 95 S.Ct. 1162, 43 L.Ed.2d 375 (1975). Thereafter, Treasure Salvors instituted an
action to recover from the State the artifacts which had been transferred to it pursuant to the terms of the contracts. The
district court again entered judgment for Treasure Salvors reasoning, first, that the State of Florida was bound by the
earlier judgment in Treasure Salvors I, and alternatively, that the suit to establish title to the artifacts was not barred by
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
1/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
the Eleventh Amendment and that, under the law of contracts, the State had no meritorious claim to ownership of the
artifacts in its possession. While specifically declining to affirm or reverse the district court's ruling that the State was
bound by the holding in Treasure Salvors I, we agreed with the district court's conclusion that the suit was not barred by
the Eleventh Amendment and affirmed the judgment of the district court on the alternative contract law theory of mutual
mistake. State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir. 1980) (Treasure Salvors
II).
This appeal (certain to be christened Treasure Salvors III) arose not out of Treasure Salvors' difficulties with a sovereign
but from a controversy between Treasure Salvors and another salvor. In its original action seeking a declaration of
possessory and ownership rights to the Atocha, Treasure Salvors had defined the location of the wreck in terms of a
circle having a radius extending 2500 yards from a point at coordinates 24° 31' 5" North Latitude and 82° 50' West
Longitude. On May 10, 1979, Treasure Salvors filed an amended description of the wreck site claiming that the remains
564
of the Atocha were scattered throughout a corridor 3,000 yards wide which extended from 24° 27' North Latitude and 82°
18' West Longitude, to 24° 33' 42" North Latitude and 82° 27' 42" West Longitude. Treasure Salvors again amended its
description of the vessel's location on December 11, 1979, when it declared that it had found another anchor belonging
to the *564 Atocha at 24° 30' North Latitude and 82° 15' West Longitude and announced that it was continuing to
conduct salvage operations in the area between this point and the site of the first anchor at 24° 31' 5° North Latitude and
82.50' West Longitude. Treasure Salvors continues to claim title to all remains of the vessel and the exclusive right to
conduct salvage operations in the area between these points.
On December 11, 1979, Treasure Salvors also filed a motion for a temporary restraining order claiming that Olin Frick,
John Gasque, William Riley and the Masters of the Motor Vessels "Juniper" and "Seaker" were wrongfully interfering with
Treasure Salvors' right to possession and salvage of the Atocha by conducting salvage operations within 1500 yards of
the point where the second anchor had been recovered. Treasure Salvors also claimed that threatening shots had been
fired by someone aboard one of the defendants' vessels. The district court granted Treasure Salvors' request for a
temporary restraining order and later issued a preliminary injunction prohibiting the defendants from interfering with
Treasure Salvors' search and salvage operations within an area extending 2500 yards from either side of a line drawn
between the two points contained in Treasure Salvors' latest description of the wreck site. Frick and his co-defendants
have brought this appeal from that injunction.
On appeal two jurisdictional issues, one concerning our ability to review the order entered by the district court at this time
and the other involving the district court's power to resolve this dispute, require our consideration. We conclude,
however, that neither of these jurisdictional questions bars our consideration of the merits of the injunction. For the
reasons set forth herein, we affirm the district court's injunctive order but modify it to provide that it shall expire no later
than 90 days following the issuance of our mandate in order to speed resolution of the merits of this unusual dispute.
I. THE APPEALABILITY OF THE INJUNCTION
Under 28 U.S.C. § 1292(a)(1) appeals are permitted from interlocutory orders "... granting, continuing, modifying,
refusing or dissolving injunctions...." There can be no doubt therefore that the district court order granting preliminary
injunctive relief to Treasure Salvors would be an appealable order if it had been entered in the course of an ordinary civil
case. Treasure Salvors contends, however, that since this interlocutory order was entered in the context of an admiralty
proceeding, interlocutory review under § 1292(a)(1) is unavailable and that since the order does not meet the
requirements of 28 U.S.C. § 1292(a)(3), which authorizes interlocutory appeals in admiralty from orders "determining the
rights and liabilities of the parties to admiralty cases ...," we have no jurisdiction to entertain this appeal. We agree that
this order does not fall within the compass of § 1292(a)(3). That section was designed to apply in circumstances
distinctive to admiralty where it is not uncommon for a court to enter an order finally determining the issues of liability
between the parties and then to refer the case to a master for a determination of damages. Courts have tended to
construe this provision rather narrowly and it has not been read to permit interlocutory appeals in admiralty except where
the order, regardless of the label affixed to it, had the effect of ultimately determining the rights and obligations of the
parties. An order granting one party preliminary injunctive relief clearly fails to meet that criterion.
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
2/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
We do not, however, believe that § 1292(a)(3) provides the exclusive authorization for interlocutory appeals in admiralty.
In admiralty cases where injunctive orders are entered which would be appealable under § 1292(a)(1) if entered in the
course of an ordinary civil proceeding, interlocutory appeals will properly lie under that statutory provision. Prior to the
unification of the admiralty rules with the federal civil rules it was generally presumed that the admiralty judge lacked the
565
chancellor's *565 power to order injunctive relief; therefore, the question whether appeals could be taken from such
orders in admiralty cases under § 1292(a)(1) was seldom posed. The question did, however, arise in the context of
injunctions entered in limitation of liability proceedings which barred prosecution of other actions while the limitation
action proceeded. We held that such injunctions, and orders modifying them, were appealable under § 1292(a)(1).
Complaint of Muchok, Inc., 578 F.2d 1156 (5th Cir. 1978); Beal v. Walz, 309 F.2d 721 (5th Cir. 1962); Pershing Auto
Rentals, Inc. v. Gaffney, 279 F.2d 546 (5th Cir. 1960).
For some time now this court has recognized that the 1966 unification of civil and admiralty rules authorized equitable
relief in the form of an injunction to be granted by a federal court sitting in admiralty.[3] When such relief is ordered in the
course of a proceeding within the court's admiralty jurisdiction we see no legal, logical or policy obstacle to permitting
interlocutory appeals of such orders under § 1292(a)(1).[4] As one distinguished commentary has noted
"it seems plain that application of § 1292(a)(1) should depend on whether the district court has in fact
issued or denied an injunction, not on whether the proceedings are designated as in admiralty. The
policies permitting appeal are completely unaffected by the historic distinction between law, equity, and
admiralty jurisdiction."
16 C. Wright, A. Miller, E. Cooper and E. Gressman, Federal Practice and Procedure 113 (1977).
II. FEDERAL COURT JURISDICTION OVER THE PRESENT CONTROVERSY
566
In the course of the extended legal proceedings in which Treasure Salvors has attempted to assert and protect a legal
claim to the remains of the Atocha, this court has encountered and resolved numerous jurisdictional puzzles. The
original complaint filed by Treasure Salvors was an in rem proceeding in admiralty seeking possession of and
confirmation of title to the wreck. The answer and counterclaim filed by the United States asserted first, that the district
court lacked in rem jurisdiction over that portion of the wreck which remained under the sea because it was not located
within the district (and thus could not grant exclusive possession or title of it to Treasure Salvors) and second, that the
United States had valid title to the sunken remains of the Atocha pursuant to the Antiquities Act, 16 U.S.C. § 431 et seq.,
and the Abandoned Property Act, 40 U.S.C. § 310. The district court, apparently concluding that the location of the
sunken wreck did not limit its power to grant an in rem decree affecting it, entered an order granting Treasure Salvors
title, as against the whole *566 world, to the vessel and its remains, "wherever the same may be found."
On appeal, although acknowledging that the usual predicate for in rem jurisdiction — the presence of the res within the
territorial jurisdiction of the court — was not met, we found that the district court had jurisdiction to adjudicate the interests
of Treasure Salvors and the United States in the vessel. We rested that determination on alternative grounds. First, we
observed that the situation in Treasure Salvors I was similar to that in several other cases in which courts had reasoned
that the absence of the res from the territorial jurisdiction of the court was not fatal to jurisdiction to adjudicate a
controversy where the contending parties consented to the court's jurisdiction over their interest in the absent res. In
Treasure Salvors I, however, it was not necessary to determine whether to employ this exception to the usual
prerequisite for in rem jurisdiction because in that case the claim of the United States was based on federal statutes;
thus, there was an alternative basis for jurisdiction under 28 U.S.C. § 1331.
The dispute in Treasure Salvors II involved only the question of title to artifacts from the Atocha that had been brought
ashore, not a dispute as to rights in the remains of the vessel located offshore. The problem posed in Treasure Salvors II
was not whether the court had in rem jurisdiction over the wreck, but whether the district court for the Southern District of
Florida had "control" over a sufficient portion of the res to support the issuance of ancillary process in the Northern
District of Florida, where the State kept the artifacts it had acquired pursuant to the contract with Treasure Salvors. This
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
3/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
requirement that a court have "control" of the major portion of a res in order to issue valid ancillary process is designed to
assure that ancillary process is not employed to circumvent the basic jurisdictional requirement that the res be within the
district by permitting "the proverbial tail to wag the dog." Treasure Salvors II, supra, at 1347. We concluded that given the
peculiar circumstances of the Atocha, this policy would not be undermined by permitting the issuance of ancillary
process.
Given the jurisdictional obstacle courses encountered and negotiated in Treasure Salvors I and Treasure Salvors II,
counsel for both parties in their briefs in this appeal expended much effort discussing the question whether the United
States District Court for the Southern District of Florida had jurisdiction to entertain their dispute. At oral argument,
however, counsel for the defendants, who had originally contested federal court jurisdiction, acknowledged that
jurisdiction was proper. We believe that he undeniably, if belatedly, reached the correct conclusion. The district court has
jurisdiction to adjudicate the dispute between Treasure Salvors and the Frick group because it has perfected its in
personam jurisdiction over the parties to this dispute and because it has jurisdiction over the subject matter of the
controversy pursuant to 28 U.S.C. § 1333.
Section 1333 grants federal courts jurisdiction of all cases involving admiralty or maritime claims. Claims arising out of
salvage operations — efforts to rescue or recover ships disabled or abandoned at sea or to retrieve their cargo — are,
unquestionably, within the admiralty jurisdiction of the federal courts.[5] The subject matter jurisdiction granted by this
statute is not limited to causes of action arising from events or occurrences on the territorial waters of the United States.
Pursuant to this grant of jurisdiction,
"... [t]he courts of the United States take jurisdiction, subject to some reservations imposed by their own
application of the doctrine of forum non conveniens, of suits on maritime claims arising out of transactions
and occurrences anywhere in the world."
567
*567 G. Gilmore and C. Black, The Law of Admiralty, 51 (2nd ed. 1975). Since the admiralty jurisdiction of United States
courts is not limited by the nationality of the ships, sailors or seas involved and since the principles of the law of salvage
are part of the jus gentium, i. e., the international maritime law, United States courts have long adjudicated salvage
claims involving foreign vessels, alien salvors and salvage operations occurring on the high seas. See Sobonis v. Steam
Tanker Defender, 298 F.Supp. 631 (S.D.N.Y.1969); Barkas v. Cia Naviera Coronado, S.A., 126 F.Supp. 532
(S.D.N.Y.1954); The Bee, 3 F.Cas. No. 1219 (D.Me.1836).
The most common type of legal claim arising from salvage operations and asserted in the admiralty courts involves a
salvor's assertion of his right to a monetary award which the maritime law provides as an incentive to encourage persons
to assist distressed or endangered vessels. The performance of salvage services, like the furnishing of other services to
a ship, gives rise to a maritime lien. Thus, a salvor may assert his right to a salvage award either in an in rem proceeding
against the salved vessel or cargo or in an in personam proceeding against the owner of the salved property. Awards for
performance of salvage services are not limited to a strict quantum meruit measure of the value of the services
performed. Rather, the award is calculated to include a bounty or premium based upon the risk involved in the operation
and the skill with which it was performed. 3A M. Norris, Benedict on Admiralty: The Law of Salvage, § 235 (7th ed. 1980).
A salvor thus has a valuable interest in his salvage operation which the law protects by vesting in the salvor certain
rights. Among the most important of these rights are the right to exclude others from participating in the salvage
operations, so long as the original salvor appears ready, willing and able to complete the salvage project, and the right
to possession of the salved property, a right exclusive even of the owner, until such time as the salvage lien on the
property is extinguished or adequate security for this obligation is given. Although the law of salvage grants the salvor a
right to possession of the property, the salvage of a vessel or goods at sea, even when the goods have been
abandoned, does not divest the original owner of title or grant ownership rights to the salvor, except in extraordinary
cases, such as this one, where the property has been lost or abandoned for a very long period. Under these unusual
circumstances the maritime law of finds supplements the possessory interest normally granted to a salvor and vests title
by occupancy in one who discovers such abandoned property and reduces it to possession. Treasure Salvors I, supra at
336.
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
4/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
This type of claim to title by occupancy can, of course, be asserted in an in rem proceeding instituted once the goods
have been recovered and brought to shore within the jurisdiction of the court. However, since the law of maritime
salvage and finds also protects the right of a salvor who undertakes a project to carry it to completion without
interference from others who seek to share in the enterprise and the reward, we think that the admiralty and maritime
jurisdiction of the federal courts also encompasses the power to entertain a salvor's claim that another is wrongfully
568
interfering with his ongoing endeavors and to grant such relief as may be appropriate in order to protect a salvor's right
to pursue his salvage endeavor exclusively, even though the property which is the subject of the salvage effort might not
be within the territorial jurisdiction of the court. The fact that the property which is the subject of the salvage effort is not
within the territorial jurisdiction of the court, and thus not subject to an in rem decree, is irrelevant because the salvor's
claim is not one in rem seeking to recover against the vessel for salvage in which the in rem fiction is used to personify
the vessel and treat it as a party to the litigation. Although rights to the vessel may be the subject of the dispute, the
adverse parties in this situation are the competing salvors. Thus, since the court has jurisdiction over them, and the
subject *568 matter involves claims based on the maritime law of salvage and of finds, the court is fully competent to
adjudicate the dispute regardless of the location of the salvage operations.
III. THE PROPRIETY OF THE PRELIMINARY INJUNCTION
In reviewing the district court's order granting preliminary injunctive relief to Treasure Salvors, we are mindful that
decisions to grant or deny preliminary injunctions rest in the sound discretion of the district court, and are subject to
review only for abuse of discretion. Productos Carnic, S. A. v. Central American Beef and Seafood Trading Co. v. United
States Cold Storage, 621 F.2d 683 (5th Cir. 1980); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600
F.2d 1184 (5th Cir. 1979); Canal Authority of State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974). Nevertheless, in
examining a district court's decision to grant preliminary injunctive relief we are also aware that a preliminary injunction
is "an extraordinary and drastic remedy which should not be granted unless the movant has clearly carried the burden of
persuasion concerning the existence and application of ... the four prerequisites to such relief." State of Texas v. Seatrain
International, S. A., 518 F.2d 175, 179 (5th Cir. 1975). These four prerequisites are: (1) a substantial likelihood that the
movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the
injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction
may cause the party or parties opposed; and (4) a showing that the injunction, if issued, would not be adverse to the
public interest. Productos Carnic, S. A., supra, 621 F.2d at 683; State of Texas v. Seatrain, supra, 518 F.2d at 179; Canal
Authority, supra, 489 F.2d at 573. Although in order to prevail on a request for a preliminary injunction, the moving party
must carry the burden on all four elements, this four step analysis is actually a tool to assist the court in answering the
essential question determining the propriety of a preliminary injunction, i. e., whether the injunction is necessary to
preserve the court's ability to render a meaningful decision on the merits. Canal Authority, supra at 573, 576. Viewed with
an eye toward this basic question, the four factors enumerated above become interrelated, rather than independent,
inquiries.
This interrelationship is most apparent in the case of the first two factors. The question of irreparable harm often cannot
logically be considered apart from the question whether the movant is likely to succeed on the merits. In many instances,
the irreparable injury against which the movant seeks protection results from infringement of a legal right or interest
which will only be established definitively in the proceeding on the merits. In this case, Treasure Salvors, based on its
discovery of remnants of the Atocha, claims that it is entitled to prevent the defendants from conducting salvage
operations in an area 2500 yards on either side of a line drawn between two points. The district court concluded that
there was a substantial likelihood that Treasure Salvors would prevail on the merits of this claim because the court
believed that "title to the [Atocha] has already been adjudicated by this court." The district court also found that the mere
presence of the defendants within the area which Treasure Salvors identified as containing the remains of the Atocha
posed a serious risk of irreparable harm to Treasure Salvors because it would create a situation in which "possession
and control of [the Atocha's] remains would be impossible to monitor" and as a result property could be retrieved from the
area of the wreck without any means of assuring that this property would ultimately be turned over to Treasure Salvors if,
at the trial on the merits, Treasure Salvors was found to have a rightful claim to exclude the defendants from the
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
5/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
contested area.
Turning to the third factor in the four part analysis, the district court declared that, compared to the harm which Treasure
569
Salvors would be likely to incur in the absence of the injunction, the defendants *569 would suffer only minimal injury as
a result of the injunction because they would still be free to conduct salvage operations anywhere in the ocean other
than the area claimed by Treasure Salvors. With regard to the question of the effect the injunction might have on any
public interests, the court found that the issuance of the injunction would not be a "disservice to the public interest in that
the archaeological recovery methods being employed by ... [Treasure Salvors] have greatly benefitted the American
public."
In this case we find that our appellate review of the district court's injunctive order is limited not only by the narrow legal
scope of a review for abuse of discretion but also by serious deficiencies in the record which the parties certified for
appeal. The record on appeal in this case is virtually devoid of the pleadings, transcripts or orders from the earlier
proceedings involving Treasure Salvors, the United States and the State of Florida. These deficiencies impair our review
because the preliminary injunction proceedings themselves were rather brief and many of the district court's conclusions
regarding the propriety of the injunction rested not upon evidence actually adduced at the preliminary injunction hearing
but upon judicial notice of facts established by evidence presented in the earlier proceedings. Without the record of
these earlier proceedings, it becomes extraordinarily difficult, if not impossible, for us to review some of the critical
conclusions of the district court.
For example, the district court found that there was a substantial likelihood that Treasure Salvors would prevail on the
merits of the current dispute because in the earlier proceedings involving Treasure Salvors and the United States, an
order had been entered establishing that Treasure Salvors had title to and exclusive rights to possession of the wreck of
the Atocha. Amazingly enough, that order and various modifications by the district court to that order are not included in
the record on appeal in this case. Of course, in Treasure Salvors I, we expressly refused to affirm that determination and
we modified the district court's order accordingly.[6] Consequently, this earlier ruling cannot now support a title claim by
Treasure Salvors and thus provides no indication whether Treasure Salvors is likely to succeed on the merits of this
dispute.
570
In making a determination whether there was a substantial likelihood that Treasure Salvors would succeed on the merits
of the dispute, the district court, unlike this one, had the benefit of the evidence concerning Treasure Salvors' discovery
of the wreck of the Atocha and its ongoing efforts to salvage her remains which were developed in the record of the
earlier proceedings. This evidence, as well as the testimony given by Melvin Fisher, president of Treasure Salvors, at the
preliminary injunction hearing concerning the nature of Treasure Salvors' discoveries in the disputed area and its
ongoing salvage operations, was properly available to the district court judge in assessing the likelihood that Treasure
Salvors would succeed on the merits. We have before us only the testimony given at the injunction hearing, since the
appellant failed to include the earlier evidence in the record on appeal. Thus, although we are somewhat troubled by the
conclusion that Treasure Salvors is likely to succeed on the merits, because the resolution of the dispute in this case will
require the application of a relatively undeveloped body of law — the law of finds — to a novel factual setting, and *570
in such circumstances outcomes are generally difficult to forecast, we are unable to find that the district court, possessed
of a substantial amount of evidence concerning these facts which is unavailable to us, erred in its conclusion.
We are also somewhat disturbed by the district court's analysis of the threat of irreparable harm to Treasure Salvors and
its balancing of this harm against that inflicted on the defendants by the injunction. The district court concluded that the
mere presence of the defendants within the area designated in Treasure Salvors' request for the injunction, posed a
serious threat of irreparable harm to Treasure Salvors because the defendant's salvage activities in the area would be
impossible to monitor. The defendants, in their brief on appeal, have urged that Treasure Salvors' interests could have
been adequately protected by a less onerous injunctive order which would have permitted the defendants to enter the
disputed area and conduct salvage operations with the provision that anything recovered by the defendants would be
deposited with the court pending final resolution of the merits.[7] Such an order, the defendants urge, would adequately
protect Treasure Salvors and minimize the harm inflicted on the defendants. Under the terms of the injunction entered by
the district court the defendants are barred from even entering the disputed area. As a result, Treasure Salvors currently
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
6/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
has an exclusive right not only to possession of items it actually recovers but to search the disputed area. Thus, even if
the court finally determines that Treasure Salvors is not entitled to exclude the defendants from this entire area in the
proceeding on the merits, under the law of finds, Treasure Salvors will have perfected title to any and all objects actually
retrieved from the area covered by the injunction during the period the injunction is in force, even though these items
may not have been recovered from the area ultimately awarded to Treasure Salvors or even though some of these items
turn out not to be from the wreck of the Atocha. In short, during the interim period in which this injunction is in effect, the
defendants, as well as Treasure Salvors, may suffer some irreparable harm.
Although we are troubled by this possibility, we have been unable to find anything in the record to indicate that at the
time Treasure Salvors requested this injunction, the defendants suggested the possibility of a more limited injunction of
this sort to the district court. Nor, apparently, have the defendants ever moved the district court to modify the injunction
along the lines suggested in their brief. Thus, we are reluctant to find that the district court's order was flawed for failure to
consider a potential harm which the defendants did not suggest to the district court.
Although the injunction entered here is unquestionably a rather extraordinary one, we are mindful that this case presents
a rather extraordinary set of factual problems and very unusual legal questions. In light of these circumstances, we
decline to conclude that the district judge, who had the benefit of much greater familiarity with the factual problems
presented by the case than we have in view of the state of the record in this case, abused his discretion in entering this
injunction. However, given the exceptional nature of this injunction, and the burdens it places on the defendants, we
think that the merits of this dispute should be resolved as quickly as possible. For this reason, we modify the district
court's preliminary injunction to provide that it shall expire no later than 90 days following the issuance of our mandate.
Thus, the parties to the dispute and the district court should arrange for a final hearing on the merits of this controversy
during that period.
571
At that hearing, the district court should, as a threshold matter, consider carefully the nature of its jurisdiction in this case.
We note that it appears that the petition originally filed by Treasure Salvors invoked the in rem jurisdiction of the court
and that to *571 this day the proceeding is styled in rem. However, the propriety of the district court's exercise of in rem
jurisdiction over the offshore remains of the Atocha has never been determined by this court. With regard to the current
dispute between Treasure Salvors and the Frick group, we have here held only that the district court may properly
adjudicate the conflicting claims of these parties because the court has perfected its in personam jurisdiction over the
parties and has subject matter jurisdiction over their claims under the general admiralty and maritime jurisdiction granted
by 28 U.S.C. § 1333. Should the district court ultimately decide to enter a permanent injunction in this proceeding, the
jurisdictional predicate for such a decree should be clearly set forth and considered in defining the scope of injunctive
relief.
At the hearing, the district court should also be mindful that our modification of the earlier district court order in Treasure
Salvors I invalidated the award of title to Treasure Salvors insofar as persons or parties other than the United States
were concerned. That order cannot now serve as a basis for granting relief to Treasure Salvors vis-a-vis the defendants
in this action. Thus, the district court should now make a fresh and complete record concerning Treasure Salvors' claim
to exclude the defendants from this fifty square mile area in light of the basic principles of the maritime law of salvage
and finds and such extensions or modifications of those principles as are consistent with the basic policies behind them
and required by the extraordinary facts of this case. Because of the virtually uncharted waters the district court will be
forced to traverse in delineating Treasure Salvors' rights, we think it appropriate for us to outline the legal doctrine which
the court should apply to the facts as they emerge below.
As a general rule, under the law of finds, a finder acquires title to lost or abandoned property by "occupancy", i. e. by
taking possession of the property and exercising dominion and control over it. It is well established that a finder does not
acquire title merely on the strength of his discovery of lost or abandoned property.
In Brady v. S. S. African Queen, 179 F.Supp. 321 (E.D.Va.1960), the court was confronted with conflicting claims to the
stern of a steamship which split in two and sank off the coast of Maryland. One of the parties had boarded the remains of
the stern shortly after the ship sank and after doing so published a newspaper notice announcing his claim not only to
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
7/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
the stern but to the entire vessel. Following this preliminary excursion, however, this party took no further action. Several
months later the stern still lay undisturbed and another group of salvors began recovery operations. After approximately
seven months of continuous salvage operations, this second group succeeded in towing the stern to port, only to be
confronted with a claim by the earlier visitor to the stern that possession of it was rightfully his.
The court rejected that claim because it found that the first party on the scene had been merely a transitory presence on
the wreck and had not actually undertaken any efforts to salvage the vessel and reduce it to his possession. The court
reasoned that:
"A salvor cannot assert a claim merely by boarding a vessel and publishing a notice, unless such acts are
coupled with a then present intention of conducting salvage operations, and he immediately thereafter
proceeds with activity in the form of constructive steps to aid the distressed property. When he finally
determines that he will, in good faith, conduct such operations and pursues his constructive steps, he is
then, and only then, in a position to assert his claim subject to the rights of others which may have
intervened while he is exploring the prospects of such operations."
Brady v. S. S. African Queen, supra, at 324.
A similar problem confronted the court in Eads v. Brazelton, 22 Ark. 499 (1861). In December, 1854, Brazelton went to
the site of a sunken barge in the Mississippi River and fastened a buoy to a weight that rested on the wreck; he
572
apparently intended to *572 return with his salvage vessel and begin working the wreck soon thereafter. Brazelton was,
however, first, distracted from this task by another salvage operation and then, disabled from the undertaking by a rise in
the river which made it impossible for his salvage vessel to pursue the project. In the fall of 1855, Brazelton again
headed toward the site of the sunken barge. On the way, however, he was passed up by a swifter vessel belonging to
Eads. Eads' salvage ship arrived at the site first, stationed itself over the barge, and began raising its cargo of lead.
The Arkansas Supreme Court rejected Brazelton's claim to the cargo recovered by Eads. The court concluded that
although Brazelton had marked the wreck site and intended to return and salvage the vessel, he "never attained to the
possession of the wreck ... he therefore had no title to it by occupancy." Eads v. Brazelton, supra at 511. Brazelton's
conduct fell short of establishing possession because "his intention to possess was useless without detention of the
property; he had not found the lead in the required sense of discovering it and taking it up, he was not a finder, in that he
had not moved the wrecked property or secured it...." Id.
The law, however, does not always require that one who discovers lost or abandoned property must actually have it in
hand before he is vested with a legally protected interest. The law protects not only the title finally acquired by one who
finds lost or abandoned property but also the right of the person who discovers such property, and is actively and ably
engaged in reducing it to possession, to complete this project without interference from another. The courts have
recognized that in order to acquire a legally cognizable interest in lost or abandoned property, a finder need not always
have "manual" possession of the thing. Rather, a finder may be protected by taking such constructive possession of the
property as its "nature and situation" permit. Id. Thus in Eads, the court emphasized that Brazelton need not have
actually raised the lead and put it on board his ship in order to acquire legal protection against interference by others. If
Brazelton had merely placed "his boat over the wreck, with the means to raise its valuables, and with persistent efforts
directed to raising the lead," Eads v. Brazelton, supra at 511, he would have been deemed to have a legally protected
possessory interest in the wreck and Eads would have had no right to interfere with that possession by undertaking his
own salvage operations.
In Rickard v. Pringle, 293 F.Supp. 981 (S.D.N.Y.1968), two salvors asserted conflicting claims to the propeller of a
steamship which had sunk off the coast of Long Island in 1902. In the fall of 1962, Rickard undertook to raise the
propeller and conducted salvage operations continuously through the winter of 1962-63. After succeeding in detaching
the propeller from the main portion of the vessel, Rickard left the wreck temporarily to make arrangements to bring
machinery capable of lifting the propeller to the site. During his absence, Pringle moved in, dragged the propeller away,
raised it and sold it. When Rickard sued for the proceeds, Pringle defended by claiming that Rickard had never reduced
the propeller to possession and thus had no legally protected interest in it. The court disagreed, finding that although
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
8/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
Rickard was temporarily absent, he was "successfully prosecuting the salvage operation and did not abandon it at any
time and thus was entitled to the rights of a first salvor legally in possession." Rickard v. Pringle, supra at 984. Those
rights include, of course, the right to complete the salvage operation without interference from others and the right to
exclusive possession of the property.
Although cases involving the principles of the law of finds are few and far between, we think that a basic principle
573
emerges with some clarity from the cases which have considered problems similar to the one presented here. Persons
who actually reduce lost or abandoned objects to possession and persons who are actively and ably engaged in efforts
to do so are legally protected against interference from others, *573 whereas persons who simply discover or locate
such property, but do not undertake to reduce it to possession, are not. This principle reflects a very simple policy — the
law acts to afford protection to persons who actually endeavor to return lost or abandoned goods to society as an
incentive to undertake such expensive and risky ventures; the law does not clothe mere discovery with an exclusive right
to the discovered property because such a rule would provide little encouragement to the discoverer to pursue the often
strenuous task of actually retrieving the property and returning it to a socially useful purpose and yet would bar others
from attempting to do so.
These cases also suggest that in determining property rights in lost or abandoned objects, some equitable
considerations come into play in determining the legal protection afforded a finder. For example, in Eads v. Brazelton,
the court noted that the location of the wreck in controversy was well known. Although Brazelton had marked the site, it
did not appear that Eads had relied on those markings in finding the wreck. Thus the court did not think Brazelton's
actions in marking the site represented such an investment of skill and effort that equity would suggest that he be
afforded some special protection or priority in the conduct of salvage operations on the vessel. In Rickard v. Pringle, by
contrast, the court suggested that Pringle had relied on Rickard's buoys and markers in order to find the propeller. Thus,
the court may well have been influenced not only by the extent of Rickard's salvage endeavors, but also by some notion
of unjust enrichment — i. e., a sense that Pringle in retrieving the propeller, had unfairly appropriated the fruits of the
labor Rickard invested in discovering the propeller. We think that, in determining the extent of Treasure Salvors' right visa-vis the defendants, the district court in this case should examine the facts concerning Treasure Salvors' discovery and
salvage of the Atocha from the perspective of these equitable considerations as well as in light of the legal doctrines
defining the acts necessary to constitute possession of lost or abandoned property.
The judgment of the district court is MODIFIED, AND AS MODIFIED, AFFIRMED. The case is REMANDED for further
proceedings not inconsistent with this opinion.
[1] The story of the Atocha and earlier efforts to salvage its treasure is more fully recounted in our previous opinions, Treasure Salvors,
Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978) (Treasure Salvors I) and State of Florida,
Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir. 1980) (Treasure Salvors II).
[2] The basis for our modification of the district court's order is not entirely clear from the opinion; the modification might have reflected a
conclusion that the district court lacked jurisdiction to enter such a decree, or simply a determination that, under the law of finds, Treasure
Salvors had not proved the facts necessary to establish its title or right to possession as against other claimants.
[3] may have been the extent of the equitable power of an admiralty court to issue injunctions prior to the 1966 unification of admiralty and
other civil actions, there should be little doubt today that courts of admiralty, in proper cases, may invoke the equitable tool of injunction."
Lewis v. S.S. Baume, 534 F.2d 1115, 1121 (5th Cir. 1976) (citations omitted). See also Pino v. Protection Marine Insurance Co., 599 F.2d
10 (1st Cir. 1979) (federal courts sitting in admiralty may award injunctive relief in accordance with Fed.R.Civ.P. 65 in situations where this
type of relief would be appropriate in other civil actions).
[4] We disagree with Treasure Salvors' suggestion that Austracan (U.S.A.) Inc. v. M/V Lemoncore, 500 F.2d 237 (5th Cir. 1974),
forecloses us from reaching this conclusion. Austracan involved an effort to appeal a district court order dismissing a complaint as to some,
but not all, of the defendants. No Fed.R.Civ.P. 54(b) certificate was filed, nor did the district court certify the appeal under 28 U.S.C. §
1292(b). We held the dismissals unappealable. Although there is language in Austracan discussing the propriety of interlocutory appeals
from injunctive orders in admiralty, that language is dicta. No requests for injunctive relief were involved, thus dismissal of some of the
actions against some of the defendants could not have been construed as an order denying injunctive relief which might properly fall within
the compass of § 1292(a)(1). 16 C. Wright, A. Miller, E. Cooper and E. Gressman, Federal Practice and Procedure 69 (1977). Further,
the dicta in Austracan relies on case authority established prior to the unification of the admiralty and civil rules, when the propriety of
injunctive orders in admiralty was still somewhat questionable.
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
9/10
3/29/2016
Treasure Salvors v. UNIDENTIFIED WRECKED, ETC., 640 F. 2d 560 - Court of Appeals, 5th Circuit 1981 - Google Scholar
[5] It seems that there was never any serious doubt that salvage claims fell within the compass of federal admiralty jurisdiction. The
Supreme Court assumed that the admiralty jurisdiction included salvage actions as early as 1804. Mason v. The Blaireau, 6 U.S. (2
Cranch) 240, 2 L.Ed. 266 (1804).
[6] In Treasure Salvors I we stated that:
"In affirming the district court, we do not approve that portion of its order which may be construed as a holding that plaintiffs have
exclusive title to, and the right to immediate and sole possession of, the vessel and cargo as to other claimants, if any there be, who are
not parties or privies to this litigation."
We concluded the opinion by stating that the judgment was modified and, as modified, affirmed. The only reservation we expressed in the
opinion was that quoted above. Thus, we think it impossible to understand Treasure Salvors I as saying anything other than that we
disapproved the district court's determination that Treasure Salvors had title to the Atocha and modified the judgment accordingly to omit
any such decree.
[7] Apparently this type of procedure was employed to allow Treasure Salvors to continue to conduct salvage operations during the
litigation of its dispute with the United States.
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=640+F.2d+560&hl=en&as_sdt=400006&case=4994202342174658182&scilh=0
10/10
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 689 F. 2d 1254 - Court of Appeals, 5th Circuit 1982 - Google Scholar
689 F.2d 1254 (1982)
In re STATE OF FLORIDA, DEPARTMENT OF STATE, Petitioner-Appellant, v. TREASURE SALVORS, INC., a corporation, and Armada Research Corp., a corporation,
Plaintiffs-Appellees, The Unidentified Wrecked and Abandoned Sailing Vessel, etc., Defendant.
No. 78-2950.
United States Court of Appeals, Fifth Circuit.[*]
October 29, 1982.
1255 *1255 Bernard S. McLendon, Sp. Asst. Atty. Gen., Jacksonville, Fla., for petitioner-appellant.
David P. Horan, Key West, Fla., for plaintiffs-appellees.
Before RUBIN and SAM D. JOHNSON, Circuit Judges[**].
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
PER CURIAM:
The Supreme Court has held that the eleventh amendment did not bar the issuance of process to secure possession of
the artifacts taken from the Atocha and held by state officials, and has affirmed our prior determination upholding
execution of the warrant and transfer of the artifacts to Treasure Salvors. Florida Department of State v. Treasure Salvors,
Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982). However, the Court reversed our judgment "[t]o the extent
that the court determined the State's ownership of the artifacts as part of its Eleventh Amendment analysis ...." Id. at ___,
102 S.Ct. at 3322, 73 L.Ed.2d at 1078.
The plurality opinion, written by Justice Stevens, held that resolution of the ownership question was unnecessary: "we
need not decide the extent to which a federal district court exercising admiralty in rem jurisdiction over property before
the court may adjudicate the rights of claimants to that property as against sovereigns that did not appear and voluntarily
assert any claim that they had to the res." Id. at ___, 102 S.Ct. at 3321, 73 L.Ed.2d at 1076. This conclusion was
presumably based on the fact that this action is in rem, and the State has never appeared voluntarily nor has an effort
been made to join it as a defendant. The Chief Justice and Justices Marshall and Blackmun joined this opinion. Justice
White, joined by Justices Powell, Rehnquist, and O'Connor, concurred in the judgment only insofar as it reversed our
determination of the State's ownership of the artifacts, noting, "On this point, all members of the Court, except Justice
Brennan, are in agreement." Id. at 3304 n.*, 102 S.Ct. at 3324 n.*, 73 L.Ed.2d at 1080 n.*. Although Justice Brennan
joined in the judgment, he did not agree with reversal on the question of the district court's determination of ownership as
between Treasure Salvors and the State of Florida.
While the State of Florida was unwilling to appear and voluntarily assert any claim to the res, it now asserts that we
should remand the case to the district court with an order to return all the artifacts to the State of Florida. This ignores the
Supreme Court's judgment, quoted above, affirming our majority opinion ordering "transfer of the artifacts to Treasure
Salvors." The State asks us then to "examine" the "process by which a federal court may or may not adjudicate the
conflicting ownership claims in property." Until the State voluntarily appears in federal court and asserts ownership of the
artifacts that issue is not before us; there is simply no case or controversy. U.S.Const. art. III, § 2, cl. 1. See generally In re
Summers, 325 U.S. 561, 567, 65 S.Ct. 1307, 1311, 89 L.Ed. 1795, 1800, (1945) (case or controversy requirement means
parties must seek declaration of rights as they stand, not as they may arise in the future).
https://scholar.google.com/scholar_case?q=689+F.2d+1254&hl=en&as_sdt=400006&case=8164612759341569666&scilh=0
1/2
3/29/2016
State of Fla., Dept. of State v. Treasure Salvors, 689 F. 2d 1254 - Court of Appeals, 5th Circuit 1982 - Google Scholar
There is likewise no merit to Treasure Salvors' argument that we should remand the case to the district court with
instructions that, if the State does not voluntarily appear, its claim will be forever barred. This result would, of course, be
tantamount to requiring the State to litigate in federal court or lose its claim. The Supreme Court made it clear that
1256 resolution of the validity of the warrant "does not require — or permit — a determination of the *1256 state's ownership of
the artifacts." Treasure Salvors, 458 U.S. at ___, 102 S.Ct. at 3322, 73 L.Ed.2d at 1078 (emphasis added). Treasure
Salvors' lament that, unless this case resolves the ownership issue, the result of seven years of litigation will be
inconclusive is, au fond, a complaint against the eleventh amendment; the State cannot be forced to litigate a claim to
ownership of property in federal court.
The Supreme Court plurality held that the warrant "itself merely secures possession of the property; its execution does
not finally adjudicate the State's right to the artifacts." Id. at ___, 102 S.Ct. at 3321, 73 L.Ed.2d at 1076. Treasure Salvors
has the right under the district court's order to possession of the artifacts even though the State of Florida asserts
extrajudicially a claim to own them. The validity or invalidity of that claim is simply not adjudicated by execution of the
warrant, by the Supreme Court's decision, or by ours.
We, therefore, AFFIRM the district court's opinion insofar as it directs transfer of the artifacts to Treasure Salvors. Unless
the State elects voluntarily to appear and to litigate ownership, the court shall enter final judgment in the usual form for in
rem actions, decreeing Treasure Salvors to be owner of the artifacts as against all claimants except the State of Florida,
but declaring expressly: "This judgment does not determine in any way whether the State of Florida is the owner of these
artifacts."[1]
[*] Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
[**] Judge Gewin was a member of the original panel. Due to his death on May 15, 1982, Judge Gewin did not participate in this decision.
The case is being decided by a quorum. 28 U.S.C. 46(d).
[1] It is not appropriate, as Treasure Salvors urges, for us to direct that the State be dismissed, because the State has never been joined
as a party. It was never sued as a defendant to the in rem claim to the artifacts although a supplemental complaint was filed seeking to
have the contract between the State and Treasure Salvors declared void. It never appeared voluntarily to seek a judicial decision
concerning ownership of the artifacts although it appeared and asserted defenses to the issuance and execution of the arrest warrant.
This did not foreclose consideration of the eleventh amendment issue. Id. at 3304 n.18, 102 S.Ct. at 3314 n.18, 73 L.Ed.2d at 1068 n.18.
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=689+F.2d+1254&hl=en&as_sdt=400006&case=8164612759341569666&scilh=0
2/2
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
458 U.S. 670 (1982)
FLORIDA DEPARTMENT OF STATE v. TREASURE SALVORS, INC., ET AL.
No. 80-1348.
Supreme Court of the United States.
Argued January 20, 1982.
Decided July 1, 1982.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
672
*672 Susan Gamble Smathers, Assistant Attorney General of Florida, argued the cause pro hac vice for petitioner. With
her on the briefs were Jim Smith, Attorney General, and Sidney H. McKenzie III.
David Paul Horan argued the cause and filed a brief for respondents.[*]
673
*673 JUSTICE STEVENS announced the judgment of the Court and delivered an opinion, in which THE CHIEF
JUSTICE, JUSTICE MARSHALL, and JUSTICE BLACKMUN joined.
In this admiralty in rem action, a federal court attempted to arrest property held by two state officials and bring it within the
jurisdiction of the court. The property — artifacts of the Nuestra Senora de Atocha, a 17th-century Spanish galleon —
was discovered by respondents on the floor of the ocean in international waters. The question presented is whether the
Eleventh Amendment immunized the property from the federal court's process.
I
Battered by a tropical hurricane, the Nuestra Senora de Atocha, a Spanish galleon carrying a cargo of New World
treasure to King Philip IV of Spain, sank in 1622, 40 nautical miles west of what is today Key West, Fla. After years of
searching the ocean floor and studying Spanish archives in Seville, respondent Treasure Salvors[1] located the wreck
site in the spring of 1971 near shoals known as the "Quicksands," nine and one-half nautical miles west of the
Marquesas Keys.[2]
The State of Florida immediately claimed that the Atocha belonged to the State. The State claimed ownership pursuant
to Fla. Stat. § 267.061(1)(b) (1974), which then provided:[3]
674
"It is further declared to be the public policy of the state that all treasure trove, artifacts and such objects
having intrinsic or historical and archeological value which have been abandoned on state-owned lands
or *674 state-owned sovereignty submerged lands shall belong to the state with the title thereto vested in
the division of archives, history, and records management of the department of state for the purpose of
administration and protection." (Emphasis added.)
Officials of the Florida Division of Archives threatened to arrest Mel Fisher, president of Treasure Salvors, and to
confiscate the boats and equipment of Treasure Salvors if it commenced salvage operations on the Atocha without a
salvage contract from the State. Under this threat of arrest, Treasure Salvors executed a one-year contract with the State
that permitted it to conduct underwater salvage operations on the vessel.[4] Similar contracts were executed during each
of the three succeeding years.
Each of the contracts was expressly predicated on the assumption that the Atocha was the property of the State of
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
1/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
Florida because it had been found on submerged lands within the boundaries of the State. The contracts permitted
Treasure Salvors "to conduct underwater salvage from and upon certain submerged sovereignty lands of and belonging
to the State of Florida." App. 20. After describing in metes and bounds an area claimed to be "lying and being in Monroe
County, Florida," the contract provided that the shipwreck site "is to be worked for the purpose of salvaging abandoned
vessels or the remains thereof including, but not limited to, relics, treasure trove and other materials related thereto and
located thereupon and therein, which abandoned material is the property of the State of Florida." Id., at 22 (emphasis
added). The contract further provided:
675
*675 "In payment for the Salvager's satisfactory performance and compliance with this Agreement, the
Division will award to the Salvager seventy-five percent (75%) of the total appraised value of all material
recovered hereunder, which payment shall be made at the time division of such material is made by the
parties hereto. Said payment may be made in either recovered material or fair market value, or in a
combination of both, at the option of the Division's director." Id., at 32-33.
The bargain, in brief, was between the Division of Archives, as the owner of the Atocha and its cargo, and Treasure
Salvors, as a contractor that agreed to perform services for the Division. Treasure Salvors agreed to pay the Division
$1,200 each year, to post a performance bond, and to perform its work in a specified manner, all in exchange for the
Division's agreement to transfer ownership of 75% of the proceeds of the operation — or its equivalent — to Treasure
Salvors. The contracts did not purport to transfer ownership of any property to the Division of Archives; the State's claim
to the property was predicated entirely on a provision of state law.
In its attempt to salvage the lost treasure of the Atocha, Treasure Salvors was immensely successful. The salvager held
some of the artifacts at its headquarters in Key West, while state officials held the remainder at the Division of Archives in
Tallahassee. All of the property was deemed to belong to the State, however, subject to a subsequent distribution in
which Treasure Salvors would receive its 75% contractual share.
676
In proceedings unrelated to the salvage operation, the United States and the State of Florida were engaged in litigation
to determine the seaward boundary of submerged lands in the Atlantic Ocean and the Gulf of Mexico in which the State
had rights to natural resources. In February 1974, a Special Master filed a Report that defined Florida's *676 boundary
landward of the site of the wreck of the Atocha. The State's objections to the Report were overruled. United States v.
Florida, 420 U. S. 531 (1975).[5] A final decree was entered providing that, as against the State of Florida, the United
States was entitled to the lands, minerals, and other natural resources in the area in which the remains of the Atocha had
come to rest. United States v. Florida, 425 U. S. 791 (1976).[6]
After this Court overruled Florida's exceptions to the Special Master's Report, Treasure Salvors filed a complaint in the
Federal District Court for the Southern District of Florida demanding that "Plaintiffs be put into possession of the ATOCHA
and other property and that all other persons, firms, and corporations or government agencies be enjoined from
interfering with Plaintiffs title, possession, and property," and that "Plaintiffs title be confirmed against all claimants and all
the world." App. 9. The complaint invoked the court's admiralty and maritime jurisdiction pursuant to Federal Rule of Civil
Procedure 9(h) and, as an admiralty action in rem, named the Atocha as defendant. Items recovered from the Atocha in
Treasure Salvors' possession were duly served with process and brought into the custody of the court. Most of the
remainder of the wreck and its valuable cargo lay buried under sand in international waters; state officials held other
artifacts in Tallahassee. No attempt was made at this time to serve the artifacts in Tallahassee.
The United States intervened in the action as a party-defendant and filed a counterclaim seeking a declaratory judgment
677
that the United States was the proper owner of the *677 Atocha.[7] The District Court rejected the Government's claim of
ownership and held that "possession and title are rightfully conferred upon the finder of the res derelictae." Treasure
Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907, 911 (1976). The court entered judgment in favor of Treasure
Salvors "against the United States of America and all other claimants." Record 270.[8]
The Court of Appeals affirmed the judgment of the District Court as against the United States, but modified its decree.
Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F. 2d 330 (CA5 1978). The United
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
2/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
States had argued that the District Court lacked in rem jurisdiction to determine rights of the parties to that portion of the
Atocha lying beyond the territorial jurisdiction of the court. The Court of Appeals agreed that the District Court lacked in
rem jurisdiction over those portions of the res located outside the district; the court noted that for a court to exercise
admiralty in rem jurisdiction the res itself must be brought within the district and seized by the court. Id., at 333. The
appellate court held, however, that by intervening in the action and stipulating to the court's admiralty jurisdiction the
Government had "waived the usual requirement that the res be present within the territorial jurisdiction of the court and
678
consented to the court's jurisdiction to determine *678 its interest in the extraterritorial portion of the vessel." Id., at 335.
The court concluded that jurisdiction thus existed to determine claims of the United States to those portions of the Atocha
lying beyond the territorial jurisdiction of the court, but not claims of other parties who had not appeared and submitted to
the jurisdiction of the court.[9] On the merits, the Court of Appeals rejected the statutory and common-law claims
advanced by the United States.
Throughout these proceedings, valuable artifacts of the Atocha remained in the custody of officials of the Florida Division
of Archives in Tallahassee. Since Tallahassee is located in the Northern District of Florida, these artifacts also were
located beyond the territorial jurisdiction of the District Court. Immediately following the decision of the Court of Appeals,
Treasure Salvors filed a motion in the District Court for an order commanding the United States Marshal to arrest and
take custody of these artifacts and bring them within the jurisdiction of the court. Record 318. That motion forms the basis
of the present controversy.
679
The District Court issued a warrant to arrest.[10] Although *679 the warrant was addressed to two officers of the Division
of Archives, the State itself filed a motion to quash the warrant, contending that the State of Florida was not a party in the
case and had not waived the requirement that the court could exercise in rem jurisdiction only over that portion of the res
within the territorial boundaries of the court. App. 43.[11] The State also sought and obtained an emergency stay from the
Court of Appeals. Record 368. The District Court denied the motion to quash, ruling that the extraterritorial seizure was
680
proper under Supplemental Admiralty Rule C(5). *680 App. 51.[12] Since the Court of Appeals had stayed execution of
the warrant, the District Court issued an order to show cause why the State should not deliver the artifacts into the
custody of the Marshal.[13]
In response to the order to show cause, the State raised several substantive issues in the District Court. Record 425.
Contending that a supplemental complaint filed by Treasure Salvors, see n. 11, supra, demonstrated that the State of
Florida was a defendant in the action, the State argued that the Eleventh Amendment barred an exercise of the court's
jurisdiction. The State also repeated its arguments that the court lacked in rem jurisdiction in admiralty because the res
was not present within the district and that the decision of this Court in United States v. Florida did not affect the State's
"contractual" right to a share of the artifacts. Record 429-439.
681
The District Court rejected these arguments in a comprehensive memorandum. Treasure Salvors, Inc. v. Unidentified
Wrecked and Abandoned Sailing Vessel, 459 F. Supp. 507 (1978). The court first held that, just as all claims of the *681
United States had been resolved in the earlier proceeding, all claims of the State were barred because the State of
Florida had acted in privity with the United States in that proceeding. Id., at 512; see n. 7, supra. Alternatively, the court
held that the extraterritorial arrest of the salvaged articles was proper under Supplemental Admiralty Rule C(5) and that
the court thus had obtained jurisdiction in rem to resolve ownership of the res. 459 F. Supp., at 518. On the merits, the
court rejected on multiple grounds the State's contractual claim to the property. Id., at 521.
At the conclusion of its memorandum opinion, the court rejected the State's Eleventh Amendment defense. Id., at 526.
The court first held that the State necessarily had waived the Amendment as to any claim to the property that it asserted
in federal court. Ibid. The court then held that, apart from any claim advanced by the State, the Eleventh Amendment did
not bar the seizure of the artifacts and subsequent transfer to the custody of the Marshal.[14]
682
*682 The Court of Appeals affirmed. 621 F. 2d 1340 (CA5 1980). As had the District Court, see n. 14, supra, the court
concluded that the Eleventh Amendment did not prevent the court from resolving the controverted claims to ownership of
the res, since resolution of that dispute was essential to a determination of whether the Eleventh Amendment in fact
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
3/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
barred an exercise of jurisdiction by the federal court. 621 F. 2d, at 1345.[15] The court then held that the extraterritorial
process issued pursuant to Supplemental Admiralty Rule C(5) was proper, id., at 1346, and that the State did not have a
valid claim to the property. Id., at 1349.[16]
The Florida Department of State filed a petition for writ of certiorari, presenting only one question: "Whether the Eleventh
Amendment to the United States Constitution bars an in rem admiralty action seeking to recover property owned by a
state." Pet. for Cert. I. We granted the petition. 451 U. S. 982. We hold that the federal court had jurisdiction to secure
possession of the property from the named state officials, since they had no colorable basis on which to retain
possession of the artifacts. The court did not have power, however, to adjudicate the State's interest in the property
without the State's consent.
683
*683 II
Stripped of its procedural complexities and factual glamor, this case presents a narrow legal question. The District Court
attempted to seize artifacts held by state officials and to bring the property within its admiralty in rem jurisdiction.
Although the seizure in this case was extraterritorial, and thus involved an application of Supplemental Admiralty Rule
C(5), the question presented for our decision would not be any different if the State merely resisted an attachment of
property located within the district.
In response to the warrant of arrest, the State contended that it was immune from the federal process under the Eleventh
Amendment.[17] It argued that the contracts executed with Treasure Salvors "alone determined the rights and obligations
of the contracting parties ...." App. 44. The difficult question presented in this case is whether a federal court exercising
admiralty in rem jurisdiction may seize property held by state officials under a claim that the property belongs to the
State.[18]
684
*684 A suit generally may not be maintained directly against the State itself, or against an agency or department of the
State, unless the State has waived its sovereign immunity. Alabama v. Pugh, 438 U. S. 781. If the State is named directly
in the complaint and has not consented to the suit, it must be dismissed from the action. Id., at 782.[19] Of course, the fact
that the State should have been dismissed from an action that has proceeded to judgment does not mean that the
judgment may not stand against other parties who are not immune from suit.[20]
The Eleventh Amendment does not bar all claims against officers of the State, even when directed to actions taken in
their official capacity and defended by the most senior legal officers in the executive branch of the state government. In
Ex parte Young, 209 U. S. 123, the Court held that an action brought against a state official to enjoin the enforcement of
an unconstitutional state statute is not a suit against a State barred by the Eleventh Amendment. In response to the
argnment that the official in such a case could act only as an officer of the State and that the suit therefore could be
characterized only as an action against the State itself, the Court explained:
685
"The act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to
enforce *685 an unconstitutional act to the injury of complainants is a proceeding without the authority of
and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act
upon the part of a state official in attempting by the use of the name of the State to enforce a legislative
enactment which is void because unconstitutional. If the act which the state Attorney General seeks to
enforce is a violation of the Federal Constitution, the officer in proceeding under such enactment comes
into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or
representative character and is subjected in his person to the consequences of his individual conduct.
The State has no power to impart to him any immunity from responsibility to the supreme authority of the
United States." Id., at 159-160.
There is a well-recognized irony in Ex parte Young; unconstitutional conduct by a state officer may be "state action" for
purposes of the Fourteenth Amendment yet not attributable to the State for purposes of the Eleventh. Nevertheless, the
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
4/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
rule of Ex parte Young is one of the cornerstones of the Court's Eleventh Amendment jurisprudence. See Edelman v.
Jordan, 415 U. S. 651, 663-664; Quern v. Jordan, 440 U. S. 332, 337.
In Tindal v. Wesley, 167 U. S. 204, the Court applied the analysis later enshrined in Ex parte Young in a suit to recover
property wrongfully held by state officials on behalf of the State of South Carolina. In Tindal, the plaintiff claimed title and
a right of possession to certain real property held by a state official; the defendant answered that the property belonged
to the State and asserted the Eleventh Amendment as a defense to the action. The Court described the issue presented
for decision:
686
"So that the question is directly presented, whether an action brought against individuals to recover the
possession of land of which they have actual possession and control, *686 is to be deemed an action
against the State within the meaning of the Constitution, simply because those individuals claim to be in
rightful possession as officers or agents of the State, and assert title and right of possession in the State.
Can the court, in such an action, decline to inquire whether the plaintiff is, in law, entitled to possession,
and whether the individual defendants have any right, in law, to withhold possession? And if the court
finds, upon due inquiry, that the plaintiff is entitled to possession, and that the assertion by the defendants
of right of possession and title in the State is without legal foundation, may it not, as between the plaintiff
and the defendants, adjudge that the plaintiff recover possession?" 167 U. S., at 212.
687
Relying extensively on the earlier decision in United States v. Lee, 106 U. S. 196,[21] the Court in Tindal held that the
"settled doctrine of this court wholly precludes the idea that a suit against individuals to recover possession of real
property is a suit against the State simply because the defendant holding possession happens to be an officer of the
State and asserts *687 that he is lawfully in possession on its behalf." 167 U. S., at 221. The Court refused to accept the
proposition that the "doors of the courts of justice are ... closed against one legally entitled to possession, by the mere
assertion of the defendants that they are entitled to possession for the State." Id., at 222. In explaining the extent of its
decision, the Court stated:
"[T]he Eleventh Amendment gives no immunity to officers or agents of a State in withholding the property
of a citizen without the authority of law. And when such officers or agents assert that they are in rightful
possession, they must make good that assertion when it is made to appear in a suit against them as
individuals that the legal title and right of possession is in the plaintiff. If a suit against officers of a State to
enjoin them from enforcing an unconstitutional statute, whereby the plaintiff's property will be injured ... be
not one against the State, it is impossible to see how a suit against the same individuals to recover the
possession of property belonging to the plaintiff and illegally withheld by the defendants can be deemed
a suit against the State." Ibid.[22]
688
In holding that the action was not barred by the Eleventh Amendment, the Court in Tindal emphasized that any judgment
awarding possession to the plaintiff would not subsequently *688 bind the State. "It is a judgment to the effect only that,
as between the plaintiff and the defendants, the former is entitled to possession of the property in question, the latter
having shown no valid authority to withhold possession from the plaintiff," id., at 223; "it will be open to the State to bring
any action that may be appropriate to establish and protect whatever claim it has to the premises in dispute." Ibid.
The rule of law set forth in United States v. Lee and Tindal v. Wesley was clarified in Larson v. Domestic & Foreign
Commerce Corp., 337 U. S. 682. In that case the plaintiff brought suit against a Government official to compel specific
performance of a contract.[23] The plaintiff theorized that by withholding delivery of property as required by the contract
the agent had exceeded his official authority and could be sued in federal court. The Court in Larson stated that "the
action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be
regarded as so `illegal' as to permit a suit for specific relief against the officer as an individual only if it is not within the
officer's statutory powers or, if within those powers, only if the powers, or their exercise in a particular case, are
constitutionally void." Id., at 701-702. The Court held that the fact that an officer wrongfully withholds property belonging
689
to another does not necessarily establish that he is acting beyond the permissible scope of his official capacity.[24] Since
*689 in Larson it was not alleged that the Government official had exceeded his statutory authority — indeed, the plaintiff
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
5/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
had affirmatively contended that the officer had authority to bind the Government on the contract at issue[25] — or that the
exercise of such authority was unconstitutional,[26] the Court held that the action was barred by sovereign immunity.
These cases make clear that the Eleventh Amendment does not bar an action against a state official that is based on a
theory that the officer acted beyond the scope of his statutory authority or, if within that authority, that such authority is
unconstitutional. In such an action, however, the Amendment places a limit on the relief that may be obtained by the
690
plaintiff. If the action is allowed to proceed against the officer only because he acted without proper authority, the
judgment may not compel the State to use its funds to compensate the plaintiff for the injury. In Edelman v. Jordan, 415 U.
S. 651, the Court made clear that "a suit by private *690 parties seeking to impose a liability which must be paid from
public funds in the state treasury is barred by the Eleventh Amendment." Id., at 663. See Ford Motor Co. v. Department of
Treasury, 323 U. S. 459; Quern v. Jordan, 440 U. S., at 337.[27] In determining the relief that may be granted if a state
officer is found to have acted without valid statutory authority, the question is whether the relief "constitute[s] permissible
prospective relief or a `retroactive award which requires the payment of funds from the state treasury.'" Quern v. Jordan,
supra, at 346-347.
III
In light of the principles set forth above, the proper resolution of the Eleventh Amendment issue raised in this case
requires an answer to each of three specific questions: (a) Is this action asserted against officials of the State or is it an
action brought directly against the State of Florida itself? (b) Does the challenged conduct of state officials constitute an
ultra vires or unconstitutional withholding of property or merely a tortious interference with property rights? (c) Is the relief
sought by Treasure Salvors permissible prospective relief or is it analogous to a retroactive award that requires "the
payment of funds from the state treasury"?
691
*691 A
Treasure Salvors filed this admiralty in rem action in federal court, seeking a declaration of title to an abandoned sailing
vessel that had been discovered on the ocean floor. The State of Florida was not named as a party and was not
compelled to appear. Some of the property at issue, however, was held by officials of the Florida Division of Archives.
Asserting that it was the rightful owner of the property, Treasure Salvors filed a motion "for an Order commanding the
United States Marshal to arrest and take custody of those portions of the Plaintiffs' vessel now being held by L. Ross
Morrell or James McBeth or being held under their custody, care or control." App. 11.[28] As requested, the District Court
issued a warrant of arrest commanding the Marshal of the United States for the Southern District of Florida "to take into
your possession the portions of said vessel which have been in the possession or are in the possession of L. Ross
Morrell and/or James McBeth, or under their custody, care or control and to bring said portions of said vessel within the
jurisdiction of this Honorable Court and transfer possession of same to the substitute custodian appointed in this action."
Id., at 41-42. It is this process from which the State contends it is immune under the Eleventh Amendment.[29]
It is clear that the process at issue was directed only at state officials and not at the State itself or any agency of the State.
692
[30] Neither the fact that the State elected to defend on *692 behalf of its agents, nor the fact that the District Court
purported to adjudicate the rights of the State, deprived the federal court of jurisdiction that had been properly invoked
over other parties. See Alabama v. Pugh, 438 U. S. 781; n. 20, supra. The process thus is not barred by the Eleventh
Amendment as a direct action against the State.
B
The second question that must be considered is whether the state officials named in the warrant acted without legitimate
authority in withholding the property at issue. In Treasure Salvors' first response to the State's Eleventh Amendment
argument, it contended:
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
6/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
"If the Division of Archives were allowed to retain this property, its officials would be acting outside the
scope of their authority under state law since the state statute under which they claim [does] not apply
outside the states territory. The rationale of Home Tel. & Tel. Co. v. Los Angeles, [227 U. S. 278 (1913),]
693
prohibits this result since to allow such action would be to deprive Treasure Salvors of their property
without due process in violation *693 of the Fourteenth Amendment to the Constitution of the United
States." Record 472.
Thus from the outset, Treasure Salvors has asserted that state officials do not have valid statutory authority to hold the
property at issue.
In Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, this Court held that the actions of a federal official in
withholding the delivery of goods pursuant to his interpretation of a disputed provision of a contract constituted at most a
tortious deprivation of property. The proper remedy for the plaintiff was not an action in district court to compel delivery,
but a suit for breach of contract in the Court of Claims. Actions of the Government official pursuant to legitimate
contractual authority were neither ultra vires nor unconstitutional.
From the outset of the proceedings at issue here, the State of Florida has advanced the contracts that it executed with
Treasure Salvors as a defense to the federal court's attempt to secure possession of the artifacts held by the named state
officials. It is noteworthy, however, that the State has never argued that the contracts conferred upon the State a right of
ownership in the artifacts; the contracts simply "determined the rights and obligations of the contracting parties...." App.
44. The State has argued that the contracts are valid and "in no way affected" by the decision of this Court in United
States v. Florida, 420 U. S. 531. App. 44.[31]
694
We are not called upon in this case to determine "the rights and obligations" of two parties to a contract. The issue
presented *694 is whether state officials had authority to refuse to surrender possession of the artifacts to the District
Court. The salvage contracts are not relevant to that question unless they provide a basis upon which the officials may
claim a right to withhold possession of the property. Unless the contracts determine rights of the parties to the property,
they are collateral to the issue before us.
It is apparent that the State does not have even a colorable claim to the artifacts pursuant to these contracts. The
contracts did not purport to transfer ownership of any artifacts to the State; they permitted Treasure Salvors "to conduct
underwater salvage from and upon certain submerged sovereignty lands of and belonging to the State of Florida," id., at
20-21, "for the purpose of salvaging abandoned vessels or the remains thereof ... which abandoned material is the
property of the State of Florida." Id., at 22 (emphasis added). The contracts provided for the performance of services on
property that was believed to belong in toto to the State of Florida, in exchange for which the State agreed to "award to
the Salvager seventy-five percent (75%) of the total appraised value of all material recovered ...." Id., at 33. The State did
not "yield" its claim to 75% of the artifacts in order to receive an undisputed right to the remaining 25%; the State agreed
to pay Treasure Salvors the equivalent of 75% of the proceeds in compensation for the difficult and expensive work
undertaken by Treasure Salvors in retrieving from the floor of the ocean property that was believed to belong to the
State.
The salvage contracts might well provide a basis for a claim to the property by Treasure Salvors; for the contracts did
purport to transfer a portion of the artifacts from the State to Treasure Salvors in compensation for the latter's services.
Treasure Salvors does claim a right to ownership, but based entirely on the fact that it was the finder of abandoned
695
property and therefore entitled to the property independently of *695 the contracts.[32] Thus neither party's rights to
ownership is affected in any way by the salvage contracts; whether the contracts are valid or not, they provide no
authority for the refusal of state officials to surrender possession of the artifacts.
The authority of state officials to claim the artifacts was derived solely from Fla. Stat. § 267.061(1)(b) (1974), which
provided:
"It is further declared to be the public policy of the state that all treasure trove, artifacts and such objects
having intrinsic or historical and archaeological value which have been abandoned on state-owned lands
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
7/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
or state-owned sovereignty submerged lands shall belong to the state with the title thereto vested in the
division of archives, history and records management of the department of state for the purpose of
administration and protection." (Emphasis added.)
This Court has determined, however, that the Atocha was not found on "state-owned sovereignty submerged lands."
Rather, it was discovered on the Outer Continental Shelf of the United States, beneath international waters.[33]
696
*696 No statutory provision has been advanced that even arguably would authorize officials of the Division of Archives
to retain the property at issue. Throughout this litigation, the State has relied solely on the contracts that it executed with
Treasure Salvors as a defense to the federal court's process; those contracts were predicated entirely on a state statute
that on its face is inapplicable in this case.[34] Actions of state officials in holding property on the assumption that it was
found on state land and for that reason belongs to the State — when it is undisputed that the property was not found on
state land — is beyond the authority of any reasonable reading of any statute that has been cited to us by the State.[35]
697
As recognized in Larson, "action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the *697
plaintiff's property)" that is beyond the officer's statutory authority is not action of the sovereign, 337 U. S., at 701; a suit for
specific relief against the officer is not barred by the Eleventh Amendment. This conclusion follows inevitably from Ex
parte Young. If conduct of a state officer taken pursuant to an unconstitutional state statute is deemed to be unauthorized
and may be challenged in federal court, conduct undertaken without any authority whatever is also not entitled to
Eleventh Amendment immunity.
If a statute of the State of Florida were to authorize state officials to hold artifacts in circumstances such as those
presented in this case, a substantial constitutional question would be presented. In essence, the State would have
authorized state officials to retain property regardless of the manner in which it was acquired, with no duty to provide
compensation for a public taking. If the Constitution provided no protection against such unbridled authority, all property
rights would exist only at the whim of the sovereign.
Thus, since the state officials do not have a colorable claim to possession of the artifacts, they may not invoke the
Eleventh Amendment to block execution of the warrant of arrest. Of course, the warrant itself merely secures possession
of the property; its execution does not finally adjudicate the State's right to the artifacts. See Tindal v. Wesley, 167 U. S., at
223. In ruling that the Eleventh Amendment does not bar execution of the warrant, we need not decide the extent to
which a federal district court exercising admiralty in rem jurisdiction over property before the court may adjudicate the
rights of claimants to that property as against sovereigns that did not appear and voluntarily assert any claim that they
had to the res.
C
698
Finally, it is clear that the relief sought in this case is consistent with the principles of Edelman v. Jordan, 415 U. S. *698
651. The arrest warrant sought possession of specific property. It did not seek any attachment of state funds and would
impose no burden on the state treasury.
This case is quite different from In re New York (I), 256 U. S. 490, and In re New York (II), 256 U. S. 503, relied on by the
State. In In re New York (I), the plaintiff brought an action in federal court to recover damages caused by canal boats
chartered by the State of New York. Pursuant to admiralty practice, the action was brought in rem against the vessels
themselves. The owner of the vessels answered the complaint, contending that the action should be directed against the
Superintendent of Public Works of the State of New York. The District Court agreed and ordered the Superintendent to
appear and answer; in the event that he could not be found the court directed that "the goods and chattels of the State of
New York used and controlled by him" should be attached. 256 U. S., at 496.
The Attorney General of the State appeared on behalf of the Superintendent and asserted the Eleventh Amendment as a
defense to the action. This Court held that the District Court lacked jurisdiction to proceed against the Superintendent.
The Court noted that "the proceedings against which prohibition is here asked have no element of a proceeding in rem,
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
8/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
and are in the nature of an action in personam against Mr. Walsh, not individually, but in his capacity as Superintendent
of Public Works of the State of New York," id., at 501; moreover, "[t]here is no suggestion that the Superintendent was or
is acting under color of an unconstitutional law, or otherwise than in the due course of his duty under the constitution and
laws of the State of New York." Id., at 502. The Court concluded: "In the fullest sense, therefore, the proceedings are
shown by the entire record to be in their nature and effect suits brought by individuals against the State of New York, and
therefore — since no consent has been given — beyond the jurisdiction of the courts of the United States." Ibid.
699
*699 In In re New York (II), the plaintiff filed an action in admiralty to recover damages caused by the negligent operation
of a canal boat owned by the State of New York. The action was brought in rem and the vessel was arrested. This Court
held, as it had in In re New York (I), that the federal court lacked jurisdiction to adjudicate the claim. In broad language
urged upon us here, the Court stated that property owned by a State and employed solely for governmental uses was
exempt from seizure by admiralty process in rem. 256 U. S., at 511. The force of the holding in In re New York (II),
however, is that an action — otherwise barred as an in personam action against the State — cannot be maintained
through seizure of property owned by the State. Otherwise, the Eleventh Amendment could easily be circumvented; an
action for damages could be brought simply by first attaching property that belonged to the State and then proceeding in
rem.
In these cases the plaintiff did not claim an ownership interest in the vessels and did not question the State's assertion of
ownership. The sole purpose of the attempted arrests was to enable the court to acquire jurisdiction over a damages
claim that was otherwise barred by the Eleventh Amendment. In this case Treasure Salvors is not asserting a claim for
damages against either the State of Florida or its officials. The present action is not an in personam action brought to
recover damages from the State. The relief sought is not barred by the Eleventh Amendment.
IV
The Eleventh Amendment thus did not bar the process issued by the District Court to secure possession of artifacts of the
Atocha held by the named state officials. The proper resolution of this issue, however, does not require — or permit — a
determination of the State's ownership of the artifacts.
700
*700 This resolution of the immunity issue is not consistent with the disposition of the Court of Appeals. The court
properly held that the Eleventh Amendment did not bar execution of the warrant of arrest; in making that determination,
however, the Court of Appeals improperly adjudicated the State's right to the artifacts. While such an adjudication would
be justified if the State voluntarily advanced a claim to the artifacts, it may not be justified as part of the Eleventh
Amendment analysis, the only issue before us.
For these reasons, the judgment of the Court of Appeals must be affirmed in part and reversed in part. To the extent that
the court held that the Eleventh Amendment did not prohibit an execution of the warrant and transfer of the artifacts to
Treasure Salvors, its judgment is affirmed. To the extent that the court determined the State's ownership of the artifacts as
part of its Eleventh Amendment analysis, its judgment is reversed.
It is so ordered.
JUSTICE BRENNAN, concurring in the judgment in part and dissenting in part.
701
I agree with the plurality that the Eleventh Amendment prohibited neither an execution of the warrant nor a transfer to
respondents of the artifacts at issue in this case. See ante, at 699 and this page. My rationale for this conclusion differs
from the plurality's, however. Both respondents are corporations organized under the laws of the State of Florida. Thus
this suit is not "commenced or prosecuted against one of the United States by citizens of another State." U. S. Const.,
Amdt. 11 (emphasis added). The plurality asserts that this constitutional provision "long has been held to govern"
"actions brought against a State by its own citizens." Ante, at 683, n. 17 (emphasis added), citing Hans v. Louisiana, 134
U. S. 1 (1890). I have long taken the view that Hans did not rely upon the Eleventh Amendment, and that that
Amendment does not bar federal court suits against a *701 State when brought by its own citizens. See Employees v.
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
9/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
Missouri Public Health Dept., 411 U. S. 279, 309-322 (1973) (dissenting opinion); Edelman v. Jordan, 415 U. S. 651, 687
(1974) (dissenting opinion). I adhere to this view, and I therefore believe that the Eleventh Amendment is wholly
inapplicable in the present case.[*] To this extent, I am in agreement with the plurality's disposition.
I disagree, however, with the plurality's conclusion that the courts below erred when they "determined the State's
ownership of the artifacts as part of [their] Eleventh Amendment analysis." Ante, at 700. The record before us plainly
702
indicates that the State had a full opportunity to present its arguments respecting ownership of the artifacts at issue in this
case when the action was in the District Court, and that that court held a full evidentiary hearing on the merits of these
arguments. See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F. Supp. 507, 521
(SD Fla. 1978); 621 F. 2d 1340, 1344 (CA5 1980). The State's arguments were rejected in the District Court, and that
rejection was affirmed by the Court of Appeals. The plurality today appears to agree with the courts below that the
arguments available to the State on the merits were, and are, insubstantial. Ante, at 694-697. "No statutory provision has
been advanced that even arguably would authorize officials of the Division of Archives to retain the property at issue,"
ante, at 696 (emphasis added), and "the State does not have even a colorable claim to the artifacts" pursuant to its
contracts with respondents, ante, at 694 (emphasis added). Given such legal conclusions, I fail to see any need to
reverse the determination by the courts below of the State's ownership, as the plurality prescribes, ante, at 700. *702 I do
understand that the plurality does not remand this action for a determination of the State's ownership, and rather simply
reverses the judgment below on this point. But the fact remains that the courts below have already determined the merits
of the State's claim: Even if they were incorrect to make that determination at the time that they did, why should that fact
invalidate that determination? Why should the State now get a second bite at the apple?
In sum, I would affirm the judgment of the Court of Appeals in its entirety.
JUSTICE WHITE, with whom JUSTICE POWELL, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, concurring in
the judgment in part and dissenting in part.
The essence of this litigation is a dispute between the State of Florida and one of its citizens over ownership of treasure.
The Eleventh Amendment precludes federal courts from entertaining such suits unless the State agrees to waive its
Eleventh Amendment immunity. Because it is the State itself which purports to own the controverted treasure, and
because the very nature of this suit, as defined in the complaint and recognized by both the District Court and Court of
Appeals, is to determine the State's title to such property, this is not a case subject to the doctrine of Ex parte Young, 209
U. S. 123 (1908). In short, this is a suit against the State of Florida, without its permission. Moreover, were the suit to be
characterized as one against only state agents, I would find that contract with the State provided a colorable basis upon
which the agents could hold the property.
703
The Court of Appeals, like the District Court, thought that the jurisdictional issue raised by the State merged with a
determination on the merits of the validity of the State's claim to the property. The appellate court believed that it had
"jurisdiction to decide jurisdiction" and could therefore determine who owned the artifacts in order to ascertain whether
the suit was, in fact, an action against the State. *703 By holding that "[the court did not have power ... to adjudicate the
State's interest in the property without the State's consent," ante, at 682, the Court properly rejects this novel conception
of the Eleventh Amendment.[*] The appellate court's approach to the jurisdictional issue is not consistent with our prior
cases; it incorrectly assumes that a federal court may adjudicate a State's right to ownership of specific property within
the possession of state officials without the State's consent. The approach is unsatisfactory because, as Judge Rubin
noted in dissent, it "is equivalent to asserting that suits against a state are permitted by the eleventh amendment if the
result is that the state loses." 621 F. 2d 1340, 1351 (CA5 1980). Although disagreeing with the Court of Appeals'
Eleventh Amendment holding, the plurality nevertheless proceeds to conclude that the "State does not have even a
colorable claim to the artifacts pursuant to [its] contracts" with respondents, ante, at 694, and that the state officials "have
[no] colorable claim to possession of the artifacts." Ante, at 697. This for all practical purposes adjudicates the State's
title, thus repeating the Eleventh Amendment error of the Court of Appeals.
JUSTICE STEVENS' plurality opinion rests precariously on two transparent fictions. First, it indulges in the fantasy that
the enforcement of process by arrest of the res is somehow divorced from the action to determine the State's claim to the
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
10/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
res—a position contradicted by our own most apposite precedents, the two In re New York cases, 256 U. S. 490 (1921),
and 256 U. S. 503 (1921). That dubious proposition is parlayed by a second fiction—that Florida's Eleventh Amendment
704
freedom from suit is meaningfully safeguarded by not formally rejecting the State's claim to the artifacts *704 although
federal agents may seize the contested property and federal courts may adjudicate its title. Neither of these novel
propositions follows from Ex parte Young, supra. The rule of Ex parte Young is premised on the axiom that state officials
cannot evade responsibility when their conduct "comes into conflict with the superior authority of [the] Constitution." Id., at
159. Today, the plurality dilutes the probative force behind that cornerstone decision by extrapolating it to allow federal
courts to decide a property dispute between a State and one of its citizens, without the State's consent. For these
reasons, as explained below, I dissent in part.
I
The Suit Is Against the State
The case is directly traceable to Treasure Salvors' filing of a motion in District Court for an order commanding the United
States Marshal to arrest and take custody of the contested artifacts and to bring them within the jurisdiction of the court.
Record 318. The roots of the case, however, rest in the earlier in rem action brought by Treasure Salvors to establish its
title to the wreck and its bounty. The District Court held that possession and title rested with Treasure Salvors. Treasure
Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907, 911 (SD Fla. 1976). The Court of Appeals affirmed Treasure
Salvors' ownership of all objects within the District Court's jurisdiction and to those objects outside its territory with
respect to the United States. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F. 2d
330 (CA5 1978) (Treasure Salvors I).
705
Treasure Salvors' subsequent request for an arrest warrant was predicated on this decision.[1] The warrant was to *705
issue because it had already been decided that Treasure Salvors had "sole title and right to possession of the Defendant
vessel." App. 13. Notwithstanding the Court of Appeals' limitation of its opinion to artifacts within the District Court's
jurisdiction and to rights in the treasure asserted by the United States, Treasure Salvors sought enforcement of the
judgment against the State of Florida. It did so on grounds that this Court's decision in United States v. Florida, 420 U. S.
521 (1975), removed Florida's right to the artifacts, and that Florida was privy to and bound by Treasure Salvors I.
"Inasmuch as the State of Florida [and its officers] were privy to this litigation, it is clear that [the district
court] confirmed to the Plaintiffs' . . . title to and right to immediate and sole possession of the vessel ...
together with all her ... cargo, wherever the same may be found." App. 18 (emphasis deleted).
In short, Treasure Salvors requested seizure of the artifacts in order to enforce an earlier judgment against the State.
This is reason enough to conclude that the suit, and the accompanying warrant for arrest of the articles, were actions
invoking federal judicial power against the State and not merely its agents.
706
But even if this were not so, subsequent events reveal that the case is one against the State. After the State filed a motion
to quash the warrant, Treasure Salvors filed a supplemental complaint requesting that the contract be held void; it also
requested that the District Court rule "[t]hat the State has no right, title or interest" in any portions of the Atocha in its
possession. Record 371. The District Court then entered an order to show cause addressed directly to the State *706 of
Florida. App. 63. The State then argued that the Eleventh Amendment barred the suit. After rejecting all of the State's
arguments, the District Court ordered that Treasure Salvors "have full right and title to articles arrested and that they are
entitled to possession." Id., at 85. The Court of Appeals affirmed this judgment.
I find the inescapable conclusion to be that this suit, as filed, litigated, and decided, was an action to determine the title of
the State of Florida to the artifacts.[2] A suit of this type is at the heart of the Eleventh Amendment immunity.
The line of cases culminating in Ex parte Young, 209 U. S. 123 (1908), are not to the contrary. In both United States v.
Lee, 106 U. S. 196 (1882), and Tindal v. Wesley, 167 U. S. 204 (1897), the suits were against individual agents and did
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
11/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
not purport to conclude the rights of the Government. As the Court correctly notes, Tindal made plain that a judgment
awarding possession to the plaintiff would not subsequently bind the Government. Here the entire point of the in rem
proceeding is to apply the judgment in Treasure Salvors I to erase the State's claim to the treasure. This is the only basis
for issuance of the arrest warrant; it was the relief expressly requested by the respondents, and the relief subsequently
granted by the District Court and the Court of Appeals.
My position is supported by the precedents closest to the instant case: the In re New York cases, 256 U. S. 490 (1921),
707
and 256 U. S. 503 (1921). The first In re New York decision arose from an in rem libel against the private owners of
tugboats that had been at fault in collisions while chartered and operated by the State. The owners sought to bring in the
Superintendent of Public Works who had entered into the *707 charters on the State's behalf. The issue before this Court
was whether the State could, without its consent, be impleaded in admiralty process in an action against private parties.
The Court held that the "proceedings against which prohibition is here asked," i. e., the attempt to implead the State,
"have no element of a proceeding in rem and are in the nature of an action in personam" against a state officer. The
purpose of this distinction was not to suggest that in rem actions could be brought against the State, or even that the
original libel was not a true in rem cause, but rather to highlight that impleading of a state official, no less than a direct
action against the official, constituted a suit against a state officer in his "official capacity" and might require satisfaction
out of the property of New York. 256 U. S., at 501.
The second In re New York decision, a sovereign immunity case, made clear that a State's immunity extended to
admiralty actions in rem.
"The principle so uniformly held to exempt the property of municipal corporations employed for public and
governmental purposes from seizure by admiralty process in rem, applies with even greater force to
exempt public property of a State used and employed for public and governmental purposes." 256 U. S.,
at 511.
The plurality's reading of In re New York (II) is that an action "otherwise barred as an in personam action against the
708
State—cannot be maintained through seizure of property owned by the State." Ante, at 699.[3] Nothing in the language of
Justice Pitney's opinion supports this interpretation. Moreover, the libel brought before the Court in that case was a true
in rem action; an action in admiralty to recover damages caused by a ship is a classic in rem action, although *708 after
the owners of the vessel are identified the libel often will be amended to include an in personam claim as well. G.
Gilmore & C. Black, Law of Admiralty 498 (2d ed. 1975) (Gilmore & Black). Therefore, In re New York (II) is as "true" an in
rem action as the instant case.
The grounds of similarity between the cases are clear: in both cases in rem libels were filed and process by arrest was
requested; in both suits the State by its Attorney General responded and indicated to the District Court that the property
to be arrested was in the possession and ownership of the State, and therefore immune from seizure and attachment. In
both cases, the District Court overruled the suggestion and awarded process in rem, authorizing the arrest of the res.
When the seizure of the Queen City finally reached this forum, the Court stated that the property was exempt from
709
seizure by admiralty process in rem.[4] The plurality's distinction aside, the cases can be distinguished on but a single
relevant point: the fact that ownership of the res is contested here. That, of course, is the grounds on which the Court of
*709 Appeals decided the case—a resolution which the plurality apparently rejects.
In re New York (I) indicates that the Eleventh Amendment will bar a suit that has the effect of proceeding against a state
officer and involving the State's property. In re New York (II) squarely stands for the proposition that sovereign immunity
bars process against a res in the hands of state officers. This is true even though an in rem action strictly proceeds
against the vessel, and the owner of the vessel or artifacts is not an indispensable party. Significantly, In re New York (II)
did not distinguish between the service of process to arrest the res and the thrust of the libel itself to determine the rights
in the vessel. I follow that course in this case, and refuse to sever the attempt to arrest the artifacts from the attempt to
decide their ownership.
The In re New York cases are particularly forceful because they reflect the special concern in admiralty that maritime
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
12/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
property of the sovereign is not to be seized. This principle dates back to the English[5] and has not been significantly
710
altered *710 in this country.[6] The In re New York cases are but the most apposite examples of the line of cases
concerning in rem actions brought against vessels in which an official of the State, the Federal Government, or a foreign
government has asserted ownership of the res. The Court's consistent interpretation of the respective but related
immunity doctrines pertaining to such vessels has been, upon proper presentation that the sovereign entity claims
ownership of a res in its possession, to dismiss the suit or modify the judgment accordingly.[7]
Finally, the allowance of an in rem suit against arguably state-owned maritime property rests on the "personification"
theory of the res—that the action runs against the Atocha and not the State of Florida. This distinction between in rem
and in personam actions has been decisively rejected. As the fiction of the personality of the ship declined, Gilmore &
Black 615, 804-805, in rem actions were given in personam effect, and in personam judgments barred subsequent in
rem actions. Id., at 802, 613-614. See, e. g., Burns Bros. v. Central R. Co. of New Jersey, 202 F. 2d 910 (CA2 1953) (L.
711
Hand, J.). In short, under long-established admiralty law, *711 arrest of sovereign maritime property is not tolerated, and
an in rem suit directed at government property is an action against the State.
II
Holding of the Treasure by State Officials Was Not Ultra Vires
Alternatively, if the arrest of the artifacts was not, without more, a suit against the State, the action was nevertheless
against state agents acting within their authority and holding property for the State under a colorable claim of right. It is
settled that the Eleventh Amendment bars actions which are in effect against the State, even though the State is not the
nominal party. Louisiana v. Jumel, 107 U. S. 711, 719-723, 727-728 (1883).
Leaving aside other possible bases by which the state officials had authority to refuse to surrender possession of the
artifacts, I address the salvage contracts entered into between the State and Treasure Salvors. Under the contracts,
which were renewed annually, Treasure Salvors was to conduct underwater salvage on Florida lands. By the terms of
the contract, Treasure Salvors received 75% of the artifacts recovered. The State was to retain 25% of the representative
artifacts. This arrangement was renewed on three occasions, the last contract being entered into on December 3, 1974.
It was during that contract's duration that we decided United States v. Florida, 420 U. S. 531 (1975), which established
Florida's boundaries along lines which placed the Atocha in international waters.
712
If it were not for this decision, it would be beyond cavil that Florida owned one-fourth of the artifacts pursuant to its
ownership of the submerged land on which the Atocha rested as well as the contracts. It is also beyond reasonable
dispute that the Eleventh Amendment bars a federal court from deciding the rights and obligations of a State in a contract
unless the State consents. Larson v. Domestic & Foreign *712 Commerce Corp., 337 U. S. 682 (1949). The plurality
does not take issue with this proposition.[8]
The plurality treats this as a different case for two reasons. The first is that the State has never, in so many words, argued
that the contracts conferred upon the State a right of ownership in the artifacts. Ante, at 693. While this may be true in the
sense that Florida believed that it owned the artifacts even aside from the contracts, it is not true that Florida has not
asserted that the contracts create an independent right to the treasure. Florida has repeatedly and expressly made
precisely such a claim.[9]
713
The plurality's second argument is that the "State does not have even a colorable claim to the artifacts pursuant to these
contracts." Ante, at 694. I disagree with this conclusion. The wording of the contract is reasonably interpretable as
providing for a division of the recovered treasure. The intention of the parties upon the making of the contract, of course,
governs the interpretation of the instrument. If United States v. Florida, supra, had placed the Atocha within Florida
waters, it could not reasonably be argued that the contract did not constitute a valid basis for the State's *713 claim to
25% of the artifacts. Both Treasure Salvors and the State entered into the contracts on the assumption that the Atocha
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
13/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
rested in Florida waters. As it happened, the Florida decision upset that mutual assumption. This does not, however,
inexorably mean that the contracts are so invalid as to render possession of the artifacts ultra vires.[10] Admiralty law
may provide that such a mistake is not grounds for rescission of fully performed contracts in these circumstances.[11] The
plurality's contention that the language of the contracts does not purport to transfer artifacts from Treasure Salvors to the
State utterly ignores the concept of mistake. The notion of mistake would be read out of contract law if courts expected a
contract, written under mistaken assumptions, to read as if the mistake had not occurred.
Whether the contracts are ultimately valid is beside the point. The existence of a colorable contractual claim to the
artifacts, the presence of statutory authority for the State to enter into the contracts, and the ability to raise a mistake-oflaw defense not rejectible on its face, is all that need be shown to indicate that possession of the artifacts by the state
714
officials was not ultra vires. Although it would be too much *714 to suggest that our Eleventh Amendment is crystal clear
in all respects, this is, at least, the teaching of our most recent cases.
Larson v. Domestic & Foreign Commerce Corp., supra, is most directly apposite. There a private corporation brought suit
in Federal District Court against the Administrator of the War Assets Administration, an agency of the United States
Government, in his official capacity. The claim was that the Administration had sold certain surplus coal to the plaintiff,
but had refused to deliver it and had made a new contract to sell it to others. A declaration was sought that the first
contract was valid, the second contract invalid, and appropriate injunctive relief was requested. The Court held that the
suit was against the United States and the District Court was therefore without jurisdiction to entertain it. The Court's
decision rested on the Administrator's statutory authority to enter a binding contract to sell coal, and the absence of a
claim that the failure to deliver the coal constituted a taking of private property. The Court refused to pass upon the
validity of the contract itself, i. e., whether the initial contract with the plaintiff was breached.[12]
715
Larson established that where the officer's actions are limited by statute, actions beyond those limitations are to be
considered individual and not sovereign actions. "The officer is not doing the business which the sovereign has
empowered him to do .... His actions are ultra vires his authority *715 and therefore may be made the object of specific
relief." 337 U. S., at 689. Similarly, unconstitutional actions by state officers could not be considered the work of the
sovereign and were not protected by the shield of sovereign immunity. The Larson Court rejected, however, a third
716
proposed category of official actions amenable to suit.[13] It was urged upon the Court that if an "officer ... wrongly takes
or holds specific *716 property to which the plaintiff has title," then his action is illegal and the officer may be sued. The
Court found the theory erroneous:
"The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has
title does not meet that requirement. True, it establishes a wrong to the plaintiff. But it does not establish
that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign."
Id., at 693.
This is a Larson case. Florida entered into the contract pursuant to an indisputably valid state statute, Fla. Stat. §
267.061(1)(b) (1974), providing title to treasure trove abandoned on state-owned submerged lands. The Court relies
heavily, as it must, on the subsequent determination that the wreck of the Atocha was in international waters. This, of
course, was not settled law at the time the contracts were entered into and executed. Before concluding that the state
officials' exercise of rights under the contracts was ultra vires, it is necessary to reach the merits of the contract, and
dispose of the mistake-of-law contention. Similarly, the scattershot reasoning of the District Court in refusing to honor the
contract— characterization of the mistake as one of fact, treatment of the contract as void for coercion and lack of
consideration— constitutes an adjudication of the merits of the contracts. At the time the contracts were entered into and
executed they were not ultra vires or otherwise so plainly invalid as not to offer a colorable basis for possession of the
artifacts.
It is significant that the analysis pursued by the plurality in this respect is little different from that of the Fifth Circuit in
deciding the merits in order to ascertain jurisdiction over the matter. As indicated earlier, the plurality performs the task
under a different rubric, but the result is equally objectionable. A colorable basis for the exercise of authority by state
officials may not ultimately be a valid one, but it does serve to invoke the Eleventh Amendment. That is the lesson of
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
14/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
Larson and we should adhere to it.
717
*717 III
The plurality begins by stating that "[s]tripped of its procedural complexities and factual glamor, this case presents a
narrow legal question." Ante, at 683. Be that as it may, the answer supplied by the plurality is anything but narrow. If the
plurality means all that it says today, the consequences will be unfortunate. Given that all property of the State must be
held by its officers, and assuming a jurisdictional basis, there is no item within state possession whose ownership cannot
be made the subject of federal litigation by the expedient of arrest or attachment. The State must then defend on the
merits: it must persuade a federal court that its officers were justified in holding the controverted property. We see today
that this inquiry will be tantamount to deciding the question of title itself. Moreover, the State's immunity from suit is
stripped away on land as well as sea: the plurality notes that the question presented would not be any different if the
State merely resisted an attachment of property. Ibid.
The plurality hardly conceals its view of Florida's claim to the artifacts or the equities involved in this litigation. Yet the
Eleventh Amendment teaches that a federal court has no right to offer its opinion on a local dispute between a State and
its citizens unless the State consents. In sum, the disposition of this case can only be explained by "procedural
complexities and factual glamor." If so, the decision has earned a fitting sobriquet: aberration.
[*] A brief for the State of Alabama et al. as amici curiae urging reversal was filed by Rufus L. Edmisten, Attorney General of North
Carolina, W. A. Raney, Jr., Special Deputy Attorney General, and Daniel C. Oakley, Assistant Attorney General; Charles A. Graddick,
Attorney General of Alabama; Wilson L. Condon, Attorney General of Alaska; Robert C. Hight, Jack E. Rump; Tany S. Hong, Attorney
General of Hawaii; Tyrone C. Fahner, Attorney General of Illinois; William J. Guste, Jr., Attorney General of Louisiana; Stephen H. Sachs,
Attorney General of Maryland; Francis X. Bellotti, Attorney General of Massachusetts; William A. Allain, Attorney General of Mississippi;
Daniel R. McLeod, Attorney General of South Carolina; Mark White, Attorney General of Texas; Donald M. Bouton, Acting Attorney
General of the Virgin Islands; Aviata F. Faalevao, Attorney General of American Samoa; and Jack Avery, Attorney General of the
Government of Guam.
[1] The two respondents in this action, Treasure Salvors, Inc., and Armada Research Corp., were organized by the same parties.
Throughout these proceedings they have been treated as a single entity referred to as "Treasure Salvors."
[2] The story of the Atocha and its discovery is recounted in Lyon, The Trouble with Treasure, 149 National Geographic 787 (1976).
[3] The statute since has been amended in a manner not relevant to this case.
[4] The District Court found that the contract was entered into as a result of the "coercive acts of the Division of Archives in threatening
arrest and confiscation." Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F. Supp. 507, 522 (SD Fla.
1978). The State admits that if Treasure Salvors had salvaged without a contract arrests would have been made. Tr. of Oral Arg. 9.
[5] In its exceptions to the Special Master's Report, the State contended that the Master should have recognized that the boundaries of
the State extended to the boundaries defined in the State's 1868 Constitution, rather than to the limits specified in the Submerged Lands
Act of 1953. See 420 U. S., at 532. This Court considered that exception and held that the Master had properly rejected the State's
argument. Id., at 533.
[6] This area is on the Continental Shelf of the United States, in international waters. Treasure Salvors, Inc. v. Abandoned Sailing Vessel,
408 F. Supp. 907, 909 (SD Fla. 1976).
[7] The United States asserted a right of ownership under several federal statutes and the common-law doctrine of "sovereign
prerogative." The State of Florida did not intervene at this time. It had notice of the litigation, however, and both assisted the United States
in the lawsuit and entered into preliminary negotiations with the United States Department of the Interior regarding disposition of the
Atocha's treasure in the event the Federal Government prevailed. See 621 F. 2d 1340, 1343-1344 (CA5 1980).
[8] The court explained: "General principles of maritime and international law dictate that an abandonment constitutes a repudiation of
ownership, and that a party taking possession under salvage operations may be considered a finder under the doctrine of `animus
revertendi,' i. e., the owner has no intention of returning. Ownership in the vessel would then vest in the finder by operation of law." 408 F.
Supp., at 909 (citation omitted).
[9] The court stated:
"[T]he district court properly adjudicated title to all those objects within its territorial jurisdiction and to those objects without its territory as
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
15/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
between plaintiffs and the United States. In affirming the district court, we do not approve that portion of its order which may be construed
as a holding that plaintiffs have exclusive title to, and the right to immediate and sole possession of, the vessel and cargo as to other
claimants, if any there be, who are not parties or privies to this litigation." 569 F. 2d, at 335-336 (footnote omitted).
[10] The warrant provided:
"WARRANT FOR ARREST IN REM
"THE PRESIDENT OF THE UNITED STATES OF AMERICA
"TO: THE MARSHAL OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA
"GREETING:
"WHEREAS, on the 18th day of July, 1975, Treasure Salvors, Inc., a corporation and Armada Research Corporation, a corporation, filed
a Complaint under Rule 9(h) against the Unidentified Wrecked and Abandoned Sailing Vessel, her tackle, armament, apparel and cargo
located with 2500 yards of a [sic] at coordinates 24° 31.5' North Latitude and 82° 20' West Longitude, said sailing vessel believed to be the
NUESTRA SENORA DE ATOCHA for the reasons in said Complaint, and
"WHEREAS, in November of 1975 Notice of said claim was published in a newspaper of general circulation within the District, and
"WHEREAS, the State of Florida nor any of its agencies, agents, or employees, did appear in this cause to defend or prosecute any claim
that they might have to any portions of said vessel that were in their possession, custody, care or control.
"NOW, THEREFORE, you are hereby commanded to take into your possession the portions of said vessel which have been in the
possession or are in the possession of L. Ross Morrell and/or James McBeth, or under their custody, care or control and to bring said
portions of said vessel within the jurisdiction of this Honorable Court and transfer possession of same to the substitute custodian appointed
in this action." App. 40-42.
[11] The State also asserted:
"A contract was entered into between Armada Research Corporation and the State of Florida on December 3, 1974 and was for a good
and valid consideration. The contract alone determined the rights and obligations of the contracting parties and was in no way affected by
[the decision of this Court in] United States v. Florida. This contract was fully executed and performed prior to the United States v. Florida
[sic]." Id., at 44.
In response to the State's assertion that the contracts determined the rights of the contracting parties, Treasure Salvors filed a
supplemental complaint in federal court. Record 369. The complaint sought a declaratory judgment that the contracts between Treasure
Salvors and the State were void.
[12] The court also held that, in light of the State's claim that it had a contractual right to 25% of the res, "the State of Florida has waived
the general requirement that the res be within the territorial jurisdiction of the court and, further, has consented to the court's jurisdiction
over its interest in any portions of the vessel." App. 59.
[13] The Court of Appeals then dissolved the emergency stay. Id., at 65. The court ordered: "The United States Marshal may execute the
warrant of arrest and upon doing so shall forthwith deliver custody of all of the items in question to a custodian who will take possession of
them in situ and shall place them under lock or seal at their present location and hold them secure." Id., at 68. The appellate court denied
a motion for reconsideration that had contended that the District Court lacked jurisdiction. "The question of the jurisdiction of the District
Court for the Southern District of Florida is for that court to determine in the first instance on the basis of such record as may be
developed in that court." Id., at 69. To expedite the litigation, Treasure Salvors agreed to permit the State to serve as substitute custodian.
The warrant was executed and, with the State serving as custodian, the artifacts came into the control of the United States Marshal.
[14] The court asserted several grounds in support of this decision. Essentially, the court held: "There is no Eleventh Amendment bar to
the mere arrest of articles of salvage unless the state is the owner. If the state is not the owner, the court may proceed." 459 F. Supp., at
527. The court concluded that ownership is thus a "jurisdictional" fact and, citing United States v. Mine Workers, 330 U. S. 258, noted that
"[i]t is axiomatic that the federal courts have jurisdiction to determine jurisdiction." 459 F. Supp., at 527. The court held that no Eleventh
Amendment bar existed because "[t]his Court finds as fact that the Division of Archives is not and never was the rightful owner of the
articles of salvage from the ship Atocha that were seized by the ancillary warrant of arrest and which have been improperly removed and
held by the Division of Archives; that the Division of Archives is not the owner of any right or interest in such property based upon the
purported and invalid contract with Treasure Salvors; and that the Division of Archives was wrongfully withholding a portion of the res of
the Atocha over which this Court was properly exercising in rem jurisdiction." Ibid.
On the basis of its memorandum, the court
"ORDERED and ADJUDGED and DECREED that Treasure Salvors, Inc. and Armada Research Corp. have full right and title to articles
arrested and that they are entitled to possession and that the United States Marshal, who has possession and control of such articles,
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
16/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
shall deliver them to Treasure Salvors, Inc. and Armada Research Corp." App. 85.
Pursuant to this order, Treasure Salvors eventually received — under certain restrictions — the artifacts that the State held as custodian
for the court. Record 554.
[15] The court noted that this result was particularly compelling in admiralty in rem actions. The court reasoned that, since federal courts
have exclusive jurisdiction over such actions, if the mere assertion of ownership by a State were sufficient to invoke the Amendment,
petitioners such as Treasure Salvors would be stranded without a forum in which to litigate their claim. 621 F. 2d, at 1346, n. 19.
[16] The court neither affirmed nor reversed the District Court's holding that Florida was in privity with the United States and therefore
bound by the earlier decision of the Court of Appeals. Id., at 1344, n. 17.
[17] The Eleventh Amendment provides:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
Although the Amendment does not literally apply to actions brought against a State by its own citizens, the Amendment long has been
held to govern such actions. Hans v. Louisiana, 134 U. S. 1. See Employees v. Missouri Public Health Dept., 411 U. S. 279, 280; Edelman
v. Jordan, 415 U. S. 651, 662. Nor does the Amendment literally apply to proceedings in admiralty. Again, however, the Court has found it
to govern certain admiralty actions. See In re New York, 256 U. S. 490, 500.
[18] The fact that the State appeared and offered defenses on the merits does not foreclose consideration of the Eleventh Amendment
issue; "the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar" that it may be raised at any point of the
proceedings. Edelman v. Jordan, supra, at 678; see Ford Motor Co. v. Department of Treasury, 323 U. S. 459, 467 ("The Eleventh
Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will
consider the issue arising under this Amendment in this case even though urged for the first time in this Court").
[19] But see Fitzpatrick v. Bitzer, 427 U. S. 445, 456 ("Congress may, in determining what is `appropriate legislation' for the purpose of
enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally
impermissible in other contexts"); see also Hutto v. Finney, 437 U. S. 678; Maher v. Gagne, 448 U. S. 122.
[20] Thus, in Alabama v. Pugh, our holding that the State of Alabama and the Alabama Board of Corrections should have been dismissed
as parties did not affect the substance of the relief granted against a number of Alabama officials responsible for the administration of its
prison system.
[21] In Lee, the plaintiff brought an action in ejectment in federal court to recover the Virginia estate of General Robert E. Lee. The estate
had been acquired by the United States for nonpayment of taxes, although the taxes in fact had been tendered by a third party. Once in
possession, the Government had established a federal military installation and a national cemetery on the property. The plaintiff brought
suit against the governmental custodians of the estate, who pleaded the sovereign immunity of the United States as a defense. This Court
upheld a trial court judgment in favor of the plaintiff, on the ground that the defendants' possession of the estate was unlawful. The Court
held that a suit against the federal officers under such circumstances was not a suit against the sovereign. Although Lee involved the
sovereign immunity of the United States, the Court in Tindal stated that "it cannot be doubted that the question whether a particular suit is
one against the State, within the meaning of the Constitution, must depend upon the same principles that determine whether a particular
suit is one against the United States." 167 U. S., at 213.
[22] The Court continued:
"Any other view leads to this result: That if a State, by its officers, acting under a void statute, should seize for public use the property of a
citizen, without making or securing just compensation for him, and thus violate the constitutional provision declaring that no State shall
deprive any person of property without due process of law, Chicago, Burlington &c. Railroad v. Chicago, 166 U. S. 226, 236, 241, the
citizen is remediless so long as the State, by its agents, chooses to hold his property; for, according to the contention of the defendants, if
such agents are sued as individuals, wrongfully in possession, they can bring about the dismissal of the suit by simply informing the court
of the official character in which they hold the property thus illegally appropriated." Id., at 222.
[23] The plaintiff had contracted to purchase surplus coal from the War Assets Administration; the Administrator of that agency had
withheld delivery and entered a new contract to sell the coal on the ground that the plaintiff had failed to perform a condition precedent to
delivery. The plaintiff contended that title to the coal had passed at the time the contract was made, so that the Administrator was
wrongfully withholding property that belonged to him.
[24] The Court stated:
"The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet [the
requirement that the action to be restrained or directed is not action of the sovereign]. True, it establishes a wrong to the plaintiff. But it
does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign. If he is
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
17/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
exercising such powers, the action is the sovereign's and a suit to enjoin it may not be brought unless the sovereign has consented." 337
U. S., at 693.
The Court explicitly rejected the argument that "the commission of a tort cannot be authorized by the sovereign." Ibid.; see also id., at 695.
[25] The Court found that the Administrator "was empowered by the sovereign to administer a general sales program encompassing the
negotiation of contracts, the shipment of goods and the receipt of payment." Id., at 692.
"A normal concomitant of such powers, as a matter of general agency law, is the power to refuse delivery when, in the agent's view,
delivery is not called for under a contract and the power to sell goods which the agent believes are still his principal's to sell." Ibid. The
Court also noted that the "very basis of the respondent's action is that the Administrator was an officer of the Government, validly
appointed to administer its sales program and therefore authorized to enter, through his subordinates, into a binding contract concerning
the sale of the Government's coal." Id., at 703.
[26] The Court held that there could be no claim that the Administrator's actions constituted an unconstitutional taking of property without
compensation because the plaintiff had a remedy, in a suit for breach of contract, in the Court of Claims. Id., at 703, n. 27.
[27] This principle is not absolute. As noted, n. 19, supra, Congress may authorize a suit against a State — pursuant to § 5 of the
Fourteenth Amendment — that would entail the payment of public funds from the state treasury. Fitzpatrick v. Bitzer, 427 U. S. 445; Hutto
v. Finney, 437 U. S. 678. Moreover, a prospective decree that has an "ancillary effect" on the state treasury "is a permissible and often an
inevitable consequence of the principle announced in Ex parte Young." Edelman v. Jordan, 415 U. S., at 668; see also Milliken v. Bradley,
433 U. S. 267, 288. Finally, "[w]hile it is clear that the doctrine of Ex parte Young is of no aid to a plaintiff seeking damages from the public
treasury ... damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they
hold public office." Scheuer v. Rhodes, 416 U. S. 232, 238.
[28] The motion identified L. Ross Morrell as the Director of the Division of Archives and James McBeth as the Bureau Chief of the
Historical Museum of the Division of Archives. App. 15.
[29] As noted, the State immediately filed a motion to quash the warrant. Id., at 43. Although that effort failed, the State asserted an
Eleventh Amendment defense in its attempt to defeat a transfer of the property — and thus ultimate execution of the warrant — to
Treasure Salvors. Record 422.
[30] As noted, n. 11, supra, Treasure Salvors filed a supplemental complaint seeking a declaratory judgment that its contracts with the
State were void. This action might be characterized as an action against the State itself. The District Court emphasized, however, that
"the warrant was not issued in response to Treasure Salvors' Supplemental Complaint for Declaratory Judgment and Other Relief which
was filed April 17, 1978." 459 F. Supp., at 526 (emphasis in original).
The order to show cause entered by the District Court was addressed directly to the State of Florida. See App. 63. That order was
issued, however, only after the State itself had filed a motion to quash the warrant. Id., at 43 ("COMES NOW, the State of Florida, by and
through the undersigned counsel, and moves this Court to set aside and quash the warrant for arrest in rem issued against the State of
Florida at the request of Plaintiffs herein ..."). The order to show cause did not alter the fact that the process resisted by the State on
Eleventh Amendment grounds was directed only at state officials.
[31] In this Court the State has asserted that the issue on the merits involves a determination of the validity of the contracts. See post, at
712, n. 9. But the State has not identified any language in the contracts that provides even a colorable basis for a claim that the State has
an ownership interest in the artifacts.
[32] This case is thus unlike Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, in which the plaintiff asserted a right to the
property pursuant to the very contract that it contended the Government official had breached without authority. Treasure Salvors claims
ownership of the res on the ground that the property was abandoned by the former owner, and discovered by Treasure Salvors, on the
Continental Shelf of the United States in international waters. See n. 8, supra.
[33] In this Court the State has advanced the argument that its boundaries for purposes of rightful ownership of sunken ships extend
further than its boundaries for purposes of ownership of mineral resources. This argument was not raised in the petition for certiorari, is
foreclosed by our prior determination of the State's boundaries, see n. 5, supra, and is refuted by the State's own conduct in this case.
The State has never attempted to claim ownership of the property that Treasure Salvors has continued to recover since the expiration of
the contracts. Given the State's vigorous defense of the relatively few artifacts at issue in this case, it is difficult to imagine that the State
idly would permit Treasure Salvors to pirate other treasure that rightfully belonged to the State.
[34] The fact that the contracts were executed on the basis of a mistaken understanding concerning the ownership of the Atocha cannot,
of course, provide Florida with a colorable claim of ownership. For if the mistake had not occurred, it would have been apparent from the
outset that Treasure Salvors had no reason to enter into a contract with Florida or any other stranger to the transaction. The State of
Florida has never contended that it would benefit from a reformation of the contracts; Treasure Salvors' position does not depend on any
change in the terms of the contracts. The Eleventh Amendment analysis in this case does not require any consideration of the doctrine of
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
18/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
mistake.
[35] Although the State in this case relies only on the disputed contracts — and not on any statutory provision — we note that Fla. Stat. §
267.061(2)(a) (1981) provides generally that it is the responsibility of the Division of Archives to "[l]ocate, acquire, protect, preserve, and
promote the location, acquisition, and preservation of historic sites and properties, buildings, artifacts, treasure trove, and objects of
antiquity which have scientific or historical value or are of interest to the public, including, but not limited to, monuments, memorials, fossil
deposits, Indian habitations, ceremonial sites, abandoned settlements, caves, sunken or abandoned ships, or any part thereof." Surely this
section does not authorize state officials, however, to seize and hold historical artifacts at will wherever they are found.
[*] For this reason, I cannot agree with footnote 17 of the plurality's opinion. To the extent, however, that the plurality concludes that the
judgment of the Court of Appeals should be affirmed because the State of Florida does not have even a colorable claim to the artifacts, I
agree with its opinion.
[*] I therefore concur in the judgment of the Court only insofar as it reverses the Court of Appeals' determination of the State's ownership
of the artifacts. On this point, all Members of the Court, except JUSTICE BRENNAN, are in agreement.
[1] "[T]he plaintiffs ... pursuant to the Final Judgment rendered by this Court February 19, 1976 and the Appellate Opinion rendered by
the United States Court of Appeals for the Fifth Circuit No. 76-2151, March 13, 1978, move this Court for an Order commanding the
United States Marshal to arrest and take custody of those portions of the Plaintiff's vessel now being held by L. Ross Morrell or James
McBeth or being held under their custody, care or control." App. 11.
[2] The fact that the District Court did not issue its arrest warrant in response to Treasure Salvors' amended complaint is of little
significance. It is the complaint which defines the nature of an action, and once accepted, an amended complaint replaces the original.
Moreover, the adjudication of title either reflects that the ownership claim followed from the original complaint or constituted action upon
the amended complaint.
[3] The plurality confuses the matter further by treating the cases as bearing on the question of whether a burden is imposed on the state
treasury. The In re New York cases pertain instead to the initial issue of whether the action is against the State.
[4] In re New York (II) was decided on straight sovereign immunity grounds: "[T]he record-aside from whether a suit in admiralty brought
by private parties through process in rem against property owned by a State is not in effect a suit against the State, barred by the general
principle applied in Ex parte New York, No. 1, No. 25, Original-presents the question whether the proceeding can be based upon the
seizure of property owned by a State and used and employed solely for its governmental uses and purposes." The Court went on to
decide the vessel was immune from admiralty process, based upon "the law of nations" and "general grounds of comity and policy." 256
U. S., at 510.
In re New York (II)'s resolution on sovereign immunity grounds has several implications. First, as with other sovereign immunity decisions,
it is direct support for determining what constitutes a suit against the State. Ante, at 686, n. 21. Cf. Tindal v. Wesley, 167 U. S. 204, 213
(1897). Second, it undercuts the plurality's analysis that the case merely stops roundabout circumvention of In re New York (I) through
"first attaching property that belonged to the State and then proceeding in rem." Ante, at 699. As the above quoted passage indicates, the
In re New York (II) Court did not need to go so far in order to find the suit barred.
[5] Under English law, no warrant for arrest will issue against any vessel in the actual service of a recognized foreign government.
Significantly, this is so even if the suit itself is not barred. See, e. g., The Messicano, 32 T. L. R. 519 (1916). Where plaintiff sues in rem for
possession "the writ will be dismissed, if a foreign recognized government claims the right to possession and is in the actual possession of
the vessel, regardless of whether possession was rightfully or wrongfully obtained." Riesenfeld, Sovereign Immunity of Foreign Vessels in
Anglo-American Law: The Evolution of a Legal Doctrine, 25 Minn. L. Rev. 1, 25 (1940). In The Parlement Belge, 5 P. D. 197, 220 (1880),
the "leading authority" in England, it was held that "[i]f the remedy sought by an action in rem against public property is, as we think it is,
an indirect mode of exercising the authority of the Court against the owner of the property, then the attempt to exercise such an authority
is an attempt inconsistent with the independence and equality of the state which is represented by such owner." Moreover, after a ship
was declared by the foreign sovereign "to be in his possession as sovereign and to be a public vessel of the state," it was "very difficult to
say that any Court can inquire by contentious testimony whether that declaration is or is not correct." Id., at 219.
[6] For early cases, see United States v. Peters, 3 Dall. 121 (1795); The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812);
L'Invincible, 1 Wheat. 238 (1816); The Santissima Trinidad, 7 Wheat. 283 (1822). In The Siren, 7 Wall. 152 (1869), the Court allowed a
claim against the proceeds of the vessel when sold, but stressed that no claim could be enforced while the Government owned the vessel.
In The Western Maid, 257 U. S. 419 (1922), the Court, per Justice Holmes, went further and refused to allow a claim against a
Government-owned vessel as enforceable either during Government ownership or thereafter. Shortly thereafter, sovereign immunity was
expanded to embrace ships engaged solely in commerce. Berizzi Bros. Co. v. S.S. Pesaro, 271 U. S. 562 (1926).
[7] See Gilmore & Black 606-613. Only when a vessel is not in the sovereign's possession, is there controversy over the proper means by
which the foreign government may assert its ownership. See Compania Espanola de Navegacion Maritina v. The Navemar, 303 U. S. 68
(1938).
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
19/20
3/29/2016
Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670 - Supreme Court 1982 - Google Scholar
[8] "In Larson ... this Court held that the actions of a federal official in withholding the delivery of goods pursuant to his interpretation of a
disputed provision of a contract constituted at most a tortious deprivation of property.... Actions of the Government official pursuant to
legitimate contractual authority were neither ultra vires nor unconstitutional." Ante, at 693.
[9] "At issue in the present case is both a contract and property right of the State of Florida to the artifacts previously in its possession . . .
." Brief for Petitioner 32; "The issue on the merits was whether the State had property rights to artifacts in its Archives—that is, whether
the contract to which the state was a party was valid." Id., at 60. "The State of Florida has not claimed a lien on the artifacts; it has claimed
ownership—through fully executed contracts." Reply Brief for Petitioner 16-17. "The contract alone determined the rights and obligations
of the contracting parties and was in no way affected by United States v. Florida." State's Motion to Quash Warrant for Arrest in Rem,
App. 44.
[10] The plurality also suggests that the contracts "were predicated entirely on a state statute that on its face is inapplicable in this case."
Ante, at 696. This no more than restates the plurality's characterization of the contracts. But it does highlight that the contracts' validity is
called into question only by a mistaken assumption of law-the statute's "inapplica[bility]" after United States v. Florida, 420 U. S. 531
(1975).
[11] The inherent uncertainty in contracts for salvage has led admiralty courts to find few reasons that would justify reformation of a
contract. See The Elfrida, 172 U. S. 186, 196 (1898) ("We do not think that a salvage contract should be sustained as an exception to the
general rule, but rather that it should, prima facie, be enforced, and that it belongs to the defendant to establish the exception"). Gilmore &
Black 582 ("Whether the gamble turns well or badly for the salvor, the `no cure no pay' contract is everywhere recognized as enforceable,
absent such invalidating causes as fraud and duress").
[12] The plurality's attempt to distinguish Larson is puzzling. It notes that while the plaintiff in Larson asserted a right to the property
pursuant to the very contract it contended the Government official had breached, here Treasure Salvors claims ownership on grounds
entirely independent of the contracts. This is a distinction without meaning: it is the State's claim to the property which is significant; the
basis for Treasure Salvors' claim is quite beside the point. The relevant comparison is that the federal official in Larson was arguably
without authority to enter a contract to sell coal that he had already sold just as the State was arguably without authority to enter a
contract respecting salvage on lands outside its waters.
[13] The plurality acknowledges that Larson clarified the understanding of earlier cases such as Tindal v. Wesley, 167 U. S. 204 (1897),
and United States v. Lee, 106 U. S. 196 (1882). Dicta in both Tindal and Lee are cited by the Court to suggest that a federal court may
adjudicate the validity of a title in order to determine whether the case is a suit against the State. It is precisely this aspect of the cases that
Larson "clarified." A court may go only so far as to ascertain whether an official has a colorable basis for his action—to go farther is to, in
effect, try the case on the jurisdictional issue and "is equivalent to asserting that suits against the state are permitted by the eleventh
amendment if the result is that the state loses." 621 F. 2d 1340, 1351 (CA5 1980) (Rubin, J., dissenting).
The inapplicability of United States v. Lee was made clear in Malone v. Bowdoin, 369 U. S. 643 (1962), a case involving an attempt to
eject a Forest Service Officer from land occupied by him solely in his official capacity under a claim of title in the United States. The
plaintiffs argued they were the rightful owners of the land. The Court held that the suit was an impermissible action against the United
States, and stated:
"While not expressly overruling United States v. Lee, supra, the Court in Larson limited that decision in such a way as to make it
inapplicable to the case before us. Pointing out that at the time of the Lee decision there was no remedy by which the plaintiff could have
recovered compensation for the taking of his land, the Court interpreted Lee as simply `a specific application of the constitutional exception
to the doctrine of sovereign immunity.' 337 U. S. at 696. So construed, the Lee case has continuing validity only `where there is a claim
that the holding constitutes an unconstitutional taking of property without just compensation.' Id., at 697." Id., at 647-648.
An in rem admiralty action, like an ejectment suit, is an action to determine title to property, and, here, like in Bowdoin, there is no claim of
an unconstitutional taking without adequate compensation. Indeed, Treasure Salvors may be able to bring an in personam action in state
court to determine ownership of the treasure.
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=102+S.Ct.+3304&hl=en&as_sdt=400006&case=2469579763836651682&scilh=0
20/20
3/29/2016
California v. Deep Sea Research, Inc., 523 US 491 - Supreme Court 1998 - Google Scholar
523 U.S. 491 (1998)
CALIFORNIA et al. v. DEEP SEA RESEARCH, INC., et al.
No. 96-1400.
United States Supreme Court.
Argued December 1, 1997.
Decided April 22, 1998.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
493
492
*492 *493 O'Connor, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, post, p. 509.
Kennedy, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 510.
Joseph C. Rusconi, Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Richard M. Frank, Assistant
Attorney General, Dennis M. Eagan, Deputy Attorney General, Jack Rump, and Peter Pelkofer.
David C. Frederick argued the cause for the United States, respondent under this Court's Rule 12.6, in support of
petitioners. With him on the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy
Solicitor General Kneedler, Deputy Assistant Attorney General Preston, and Richard A. Olderman.
494
*494 Fletcher C. Alford argued the cause for respondent. With him on the brief were Stuart M. Gordon, David Collins, and
David J. Bederman.[*]
Justice O'Connor, delivered the opinion of the Court.
495
This action, involving the adjudication of various claims to a historic shipwreck, requires us to address the interaction
between the Eleventh Amendment and the in rem admiralty jurisdiction of the federal courts. Respondent Deep Sea
Research, Inc. (DSR), located the ship, known as the S. S. Brother Jonathan, in California's territorial waters. When DSR
turned to the federal courts for resolution of its claims to the vessel, California contended that the Eleventh Amendment
precluded a federal court from considering DSR's claims in light of the State's asserted rights to the Brother Jonathan
under federal and state law. We conclude that the Eleventh Amendment does not bar the jurisdiction *495 of a federal
court over an in rem admiralty action where the res is not within the State's possession.
I
The dispute before us arises out of respondent DSR's assertion of rights to both the vessel and cargo of the Brother
Jonathan, a 220-foot, wooden-hulled, double side-wheeled steamship that struck a submerged rock in July 1865 during
a voyage between San Francisco and Vancouver. It took less than an hour for the Brother Jonathan to sink, and most of
the ship's passengers and crew perished. The ship's cargo, also lost in the accident, included a shipment of up to $2
million in gold and a United States Army payroll that some estimates place at $250,000. See Nolte, Shipwreck: Brother
Jonathan Discovered, San Francisco Chronicle, Feb. 25, 1994, p. 1, reprinted in App. 127-131. One of few parts of the
ship recovered was the wheel, which was later displayed in a saloon in Crescent City, California. R. Phelan, The Gold
Chain 242 (1987).
Shortly after the disaster, five insurance companies paid claims totaling $48,490 for the loss of certain cargo. It is unclear
whether the remaining cargo and the ship itself were insured. See Wreck of the Steamship Brother Jonathan, New York
Times, Aug. 26, 1865, reprinted in App. 140-147. Prior to DSR's location of the vessel, the only recovery of cargo from
https://scholar.google.com/scholar_case?q=118+S.Ct.+1464+&hl=en&as_sdt=400006&case=11090637666792065241&scilh=0
1/8
3/29/2016
California v. Deep Sea Research, Inc., 523 US 491 - Supreme Court 1998 - Google Scholar
the shipwreck may have occurred in the 1930's, when a fisherman found 22 pounds of gold bars minted in 1865 and
believed to have come from the Brother Jonathan. The fisherman died, however, without revealing the source of his
treasure. Nolte, supra, App. 130. There appears to be no evidence that either the State of California or the insurance
companies that paid claims have attempted to locate or recover the wreckage.
In 1991, DSR filed an action in the United States District Court for the Northern District of California seeking rights to the
496
wreck of the Brother Jonathan and its cargo under *496 that court's in rem admiralty jurisdiction. California intervened,
asserting an interest in the Brother Jonathan based on the Abandoned Shipwreck Act of 1987 (ASA), 102 Stat. 432, 43
U. S. C. §§ 2101-2106, which provides that the Federal Government asserts and transfers title to a State of any
"abandoned shipwreck" that either is embedded in submerged lands of a State or is on a State's submerged lands "and
is included in or determined eligible for inclusion in the National Register," § 2105(a)(3). According to California, the
ASA applies because the Brother Jonathan is abandoned and is both embedded on state land and eligible for inclusion
in the National Register of Historic Places (National Register). California also laid claim to the Brother Jonathan under
Cal. Pub. Res. Code Ann. § 6313 (West Supp. 1998) (hereinafter § 6313), which vests title in the State "to all abandoned
shipwrecks . . . on or in the tide and submerged lands of California."
The District Court initially dismissed DSR's action without prejudice at DSR's initiative. The case was reinstated in 1994
after DSR actually located the Brother Jonathan 4½ 0442 miles off the coast of Crescent City, where it apparently rests
upright on the sea floor under more than 200 feet of water. Based on its possession of several artifacts from the Brother
Jonathan, including china, a full bottle of champagne, and a brass spike from the ship's hull, DSR sought either an
award of title to the ship and its cargo or a salvage award for its efforts in recovering the ship. DSR also claimed a right of
ownership based on its purchase of subrogation interests from some of the insurance companies that had paid claims
on the ship's cargo.
497
In response, the State of California entered an appearance for the limited purpose of filing a motion to dismiss DSR's in
rem complaint for lack of jurisdiction. According to the State, it possesses title to the Brother Jonathan under either the
ASA or § 6313, and therefore, DSR's in rem action against the vessel is an action against the State in violation *497 of
the Eleventh Amendment. DSR disputed both of the State's statutory ownership claims, and argued that the ASA could
not divest the federal courts of the exclusive admiralty and maritime jurisdiction conferred by Article III, § 2, of the United
States Constitution. DSR also filed a motion requesting that the District Court issue a warrant for the arrest of the Brother
Jonathan and its cargo, as well as an order appointing DSR the exclusive salvor of the shipwreck.
The District Court held two hearings on the motions. The first focused on whether the wreck is located within California's
territorial waters, and the second concerned the possible abandonment, embeddedness, and historical significance of
the shipwreck, issues relevant to California's claims to the res. For purposes of the pending motions, DSR stipulated that
the Brother Jonathan is located upon submerged lands belonging to California.
After the hearings, the District Court concluded that the State failed to demonstrate a "colorable claim" to the Brother
Jonathan under federal law, reasoning that the State had not established by a preponderance of the evidence that the
ship is abandoned, embedded in the sea floor, or eligible for listing in the National Register as is required to establish
title under the ASA. 883 F. Supp. 1343, 1357 (ND Cal. 1995). As for California's state law claim, the court determined that
the ASA pre-empts § 6313. Accordingly, the court issued a warrant for the arrest of the Brother Jonathan, appointed DSR
custodian of the shipwreck subject to further order of the court, and ordered DSR to take possession of the shipwreck as
its exclusive salvor pending the court's determination of "the manner in which the wreck and its cargo, or the proceeds
therefrom, should be distributed." Id., at 1364.
498
The District Court stated that it was not deciding whether "any individual items of cargo or personal property have been
abandoned," explaining that "[a]t this stage in the litigation, DSR is not asking the court to award it salvage fees from the
res of the wreck, or to otherwise make any order *498 regarding title to or distribution of the wreck or its contents." Id., at
1354. The District Court thought that the most prudent course would be to adjudicate title after DSR completes the
salvage operation. Following the District Court's ruling, the United States asserted a claim to any property on the Brother
Jonathan belonging to the Federal Government.
https://scholar.google.com/scholar_case?q=118+S.Ct.+1464+&hl=en&as_sdt=400006&case=11090637666792065241&scilh=0
2/8
3/29/2016
California v. Deep Sea Research, Inc., 523 US 491 - Supreme Court 1998 - Google Scholar
The State appealed, arguing that its immunity from suit under the Eleventh Amendment does not hinge upon the
demonstration by a preponderance of the evidence that the ASA applies to the Brother Jonathan. 102 F. 3d 379, 383
(CA9 1996). According to the State, it had established sufficient claim to the shipwreck under state law by "assert[ing]
that the Brother Jonathan is on its submerged lands and that . . . § 6313 vests title in the State to abandoned shipwrecks
on its submerged lands." Id., at 385. Underlying the State's argument was a challenge to the District Court's ruling that
the ASA pre-empts the California statute. The State also maintained that it had a colorable claim to the Brother Jonathan
under the ASA, arguing that it presented ample evidence of both abandonment and embeddedness, and that the District
Court applied the wrong test by "requir[ing] that abandonment be shown by an affirmative act on the part of the original
owner demonstrating intent to renounce ownership." Ibid.
The Court of Appeals for the Ninth Circuit affirmed the District Court's orders. The court first concluded that § 6313 is preempted by the ASA because the state statute "takes title to shipwrecks that do not meet the requirements of the ASA and
which are therefore within the exclusive admiralty jurisdiction of the federal courts." Id., at 384. With respect to the State's
499
claim under the ASA, the court presumed that "a federal court has both the power and duty to determine whether a case
falls within its subject matter jurisdiction," and concluded that "it was appropriate for the district court to require the State
to present evidence that *499 the ASA applied to the Brother Jonathan, i. e., that it was abandoned and either embedded
or eligible for listing in the National Register, before dismissing the case." Id., at 386. According to the court's reasoning,
"in addressing the questions of abandonment, embeddedness, and historical significance of the wreck under the ASA, a
federal court does not adjudicate the state's rights," because the ASA establishes the Federal Government's title to a
qualifying shipwreck, which is then transferred to a State. Id., at 387. Consequently, in the court's view, "a federal court
may adjudicate the question of whether a wreck meets the requirements of the ASA without implicating the Eleventh
Amendment." Ibid.
500
As to the specifics of the State's claim under the ASA, the court held that the District Court did not err in concluding that
the State failed to prove that the Brother Jonathan is abandoned within the meaning of the statute. The court reasoned
that, in the absence of a definition of abandonment in the ASA, "Congress presumably intended that courts apply the
definition of abandonment that has evolved under maritime law." Ibid. In maritime law, the court explained, abandonment
occurs either when title to a vessel has been affirmatively renounced or when circumstances give rise to an inference of
abandonment. Here, the Court of Appeals concluded, the District Court's "failure to infer abandonment from the evidence
presented by the State was not clearly erroneous," given the insurance companies' claims to the ship's insured cargo
and undisputed evidence presented by DSR that the technology required to salvage the Brother Jonathan has been
developed only recently. Id., at 388. The court also rejected the State's bid to treat the uninsured portion of the wreck as
abandoned, explaining that the District Court did not address the status of individual items of cargo or personal property,
and that "divid[ing] the wreck of the Brother Jonathan into abandoned and unabandoned portions for the purposes of the
ASA" would lead to both *500 federal and state courts adjudicating the wreck's fate, which, in the court's view, would be
"confusing and inefficient," and also "inconsistent with the general rule in maritime law of treating wrecks as a legally
unified res." Id., at 389.
Summarizing its reasoning, the court stated that, "[b]ecause the law is reluctant to find abandonment, and because a
finding of partial abandonment would deprive those holding title to the unabandoned portion of the wreck access to the
federal forum, we hold that the Brother Jonathan is not abandoned." Ibid. (citation omitted). The court reserved the
question whether there might be some point at which the insured portion of a shipwreck "becomes so negligible" that the
entire wreck would be abandoned under the ASA. Ibid. The court also declined to take judicial notice of evidence that,
during pendency of the appeal, the Brother Jonathan was determined eligible for inclusion in the National Register.
By concluding that the State must prove its claim to the Brother Jonathan by a preponderance of the evidence in order to
invoke the immunity afforded by the Eleventh Amendment, the Ninth Circuit diverged from other Courts of Appeals that
have held that a State need only make a bare assertion to ownership of a res. See Zych v. Wrecked Vessel Believed to
be the Lady Elgin, 960 F. 2d 665, 670 (CA7), cert. denied, 506 U. S. 985 (1992); Maritime Underwater Surveys, Inc. v.
501
The Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F. 2d 6, 8 (CA1 1983).[*] We granted certiorari to address
whether a State's Eleventh Amendment immunity in an in rem admiralty action depends upon evidence of the State's
ownership of the res, and to consider the related *501 questions whether the Brother Jonathan is subject to the ASA and
https://scholar.google.com/scholar_case?q=118+S.Ct.+1464+&hl=en&as_sdt=400006&case=11090637666792065241&scilh=0
3/8
3/29/2016
California v. Deep Sea Research, Inc., 523 US 491 - Supreme Court 1998 - Google Scholar
whether the ASA pre-empts § 6313. 520 U. S. 1263 (1997).
II
The judicial power of federal courts extends "to all Cases of admiralty and maritime Jurisdiction." Art. III, § 2, cl. 1. The
federal courts have had a unique role in admiralty cases since the birth of this Nation, because "[m]aritime commerce
was . . . the jugular vein of the Thirteen States." F. Frankfurter & J. Landis. The Business of the Supreme Court 7 (1927).
Accordingly, "[t]he need for a body of law applicable throughout the nation was recognized by every shade of opinion in
the Constitutional Convention." Ibid. The constitutional provision was incorporated into the first Judiciary Act in 1789, and
federal courts have retained "admiralty or maritime jurisdiction" since then. See 28 U. S. C. § 1333(1). That jurisdiction
encompasses "maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel or thing is
itself treated as the offender and made the defendant by name or description in order to enforce a lien." Madruga v.
Superior Court of Cal., County of San Diego, 346 U. S. 556, 560 (1954).
502
The jurisdiction of the federal courts is constrained, however, by the Eleventh Amendment, under which "[t]he Judicial
power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although
the Amendment, by its terms, "would appear to restrict only the Article III diversity jurisdiction of the federal courts,"
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996), the Court has interpreted the Amendment more broadly. See, e.
g., Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991). According to this Court's precedents, a State may
not be sued in federal court by one of its own citizens, *502 see Hans v. Louisiana, 134 U. S. 1 (1890), and a state official
is immune from suit in federal court for actions taken in an official capacity, see Smith v. Reeves, 178 U. S. 436 (1900).
The Court has not always charted a clear path in explaining the interaction between the Eleventh Amendment and the
federal courts' in rem admiralty jurisdiction. Early cases involving the disposition of "prize" vessels captured during
wartime appear to have assumed that federal courts could adjudicate the in rem disposition of the bounty even when
state officials raised an objection. See United States v. Peters, 5 Cranch 115, 139-141 (1809). As Justice Story
explained, in admiralty actions in rem,
"the jurisdiction of the [federal] court is founded upon the possession of the thing; and if the State should
interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor.
Besides, the language of the [Eleventh] [A]mendment is, that `the judicial power of the United States shall
not be construed to extend to any suit in law or equity. ` But a suit in the admiralty is not, correctly
speaking, a suit in law or in equity; but is often spoken of in contradistinction to both." 2 J. Story,
Commentaries on the Constitution of the United States § 1689, pp. 491-492 (5th ed. 1891).
Justice Washington, riding Circuit, expressed the same view in United States v. Bright, 24 F. Cas. 1232, 1236 (No.
14,647) (CC Pa. 1809), where he reasoned:
503
"[I]n cases of admiralty and maritime jurisdiction the property in dispute is generally in the possession of
the court, or of persons bound to produce it, or its equivalent, and the proceedings are in rem. The court
decides in whom the right is, and distributes the proceeds accordingly. In such a case the court need not
depend upon the good will of a state claiming an interest in the thing to enable it to execute its decree. All
the world *503 are parties to such a suit, and of course are bound by the sentence. The state may
interpose her claim and have it decided. But she cannot lie by, and, after the decree is passed say that
she was a party, and therefore not bound, for want of jurisdiction in the court."
Although those statements might suggest that the Eleventh Amendment has little application in in rem admiralty
proceedings, subsequent decisions have altered that understanding of the federal courts' role. In Ex parte New York,
256 U. S. 490 (1921) (New York I), the Court explained that admiralty and maritime jurisdiction is not wholly exempt from
the operation of the Eleventh Amendment, thereby rejecting the views of Justices Story and Washington. Id., at 497-498.
On the same day, in its opinion in Ex parte New York, 256 U. S. 503 (1921) (New York II), the Court likewise concluded
https://scholar.google.com/scholar_case?q=118+S.Ct.+1464+&hl=en&as_sdt=400006&case=11090637666792065241&scilh=0
4/8
3/29/2016
California v. Deep Sea Research, Inc., 523 US 491 - Supreme Court 1998 - Google Scholar
that the federal courts lacked jurisdiction over a wrongful death action brought in rem against a tugboat operated by the
State of New York on the Erie Canal, although the Court did not specifically rely on the Eleventh Amendment in its
holding.
The Court's most recent case involving an in rem admiralty action, Florida Dept. of State v. Treasure Salvors, Inc., 458 U.
S. 670 (1982), addressed whether the Eleventh Amendment "bars an in rem admiralty action seeking to recover property
owned by a state." Id., at 682 (internal quotation marks omitted). A plurality of the Court suggested that New York II could
be distinguished on the ground that, in Treasure Salvors, the State's possession of maritime artifacts was unauthorized,
and the State therefore could not invoke the Eleventh Amendment to block their arrest. 458 U. S., at 695-699 (citing Ex
parte Young, 209 U. S. 123 (1908), and Tindal v. Wesley, 167 U. S. 204 (1897)). As the plurality explained, "since the
state officials do not have a colorable claim to possession of the artifacts, they may not invoke the Eleventh Amendment
to block execution of the warrant of arrest." 458 U. S., at 697.
504
*504 That reference to a "colorable claim" is at the crux of this case. Both the District Court and the Ninth Circuit
interpreted the "colorable claim" requirement as imposing a burden on the State to demonstrate by a preponderance of
the evidence that the Brother Jonathan meets the criteria set forth in the ASA. See 102 F. 3d, at 386; 883 F. Supp., at
1349. Other Courts of Appeals have concluded that a State need only make a bare assertion to ownership of a res in
order to establish its sovereign immunity in an in rem admiralty action. See, e. g., Zych, 960 F. 2d, at 670.
By our reasoning, however, either approach glosses over an important distinction present here. In this case, unlike in
Treasure Salvors, DSR asserts rights to a res that is not in the possession of the State. The Eleventh Amendment's role
in that type of dispute was not decided by the plurality opinion in Treasure Salvors, which decided "whether a federal
court exercising admiralty in rem jurisdiction may seize property held by state officials under a claim that the property
belongs to the State." 458 U. S., at 683; see also id., at 697 ("In ruling that the Eleventh Amendment does not bar
execution of the warrant, we need not decide the extent to which a federal district court exercising admiralty in rem
jurisdiction over property before the court may adjudicate the rights of claimants to that property as against sovereigns
that did not appear and voluntarily assert any claim that they had to the res").
505
Nor did the opinions in New York I or New York II address a situation comparable to this case. The holding in New York I
explained that, although the suit at issue was styled as an in rem libel action seeking recovery of damages against
tugboats chartered by the State, the proceedings were actually "in the nature of an action in personam against [the
Superintendent of Public Works of the State of New York], not individually, but in his [official] capacity." 256 U. S., at 501.
The action in New York II was an in rem suit against a vessel described as being "at all times mentioned in the *505 libel
and at present . . . the absolute property of the State of New York, in its possession and control, and employed in the
public service of the State for governmental uses and purposes . . . ." 256 U. S., at 508. As Justice White explained in his
opinion in Treasure Salvors:
"The In re New York cases . . . reflect the special concern in admiralty that maritime property of the
sovereign is not to be seized. . . . [They] are but the most apposite examples of the line of cases
concerning in rem actions brought against vessels in which an official of the State, the Federal
Government, or a foreign government has asserted ownership of the res. The Court's consistent
interpretation of the respective but related immunity doctrines pertaining to such vessels has been, upon
proper presentation that the sovereign entity claims ownership of a res in its possession, to dismiss the
suit or modify its judgment accordingly." 458 U. S., at 709— 710 (opinion concurring in judgment in part
and dissenting in part) (emphasis added).
It is true that statements in the fractured opinions in Treasure Salvors might be read to suggest that a federal court may
not undertake in rem adjudication of the State's interest in property without the State's consent, regardless of the status of
the res. See, e. g., id., at 682 (plurality opinion) ("The court did not have power . . . to adjudicate the State's interest in the
property without the State's consent"); id., at 711 (White, J., concurring in judgment in part and dissenting in part) ("It is . . .
beyond reasonable dispute that the Eleventh Amendment bars a federal court from deciding the rights and obligations of
a State in a contract unless the State consents"). Those assertions, however, should not be divorced from the context of
https://scholar.google.com/scholar_case?q=118+S.Ct.+1464+&hl=en&as_sdt=400006&case=11090637666792065241&scilh=0
5/8
3/29/2016
California v. Deep Sea Research, Inc., 523 US 491 - Supreme Court 1998 - Google Scholar
Treasure Salvors and reflexively applied to the very different circumstances presented by this case. In Treasure Salvors,
506
the State had possession—albeit unlawfully—of the artifacts at issue. Also, the *506 opinion addressed the District
Court's authority to issue a warrant to arrest the artifacts, not the disposition of title to them. As the plurality explained, "
[t]he proper resolution of [the Eleventh Amendment] issue . . . does not require — or permit—a determination of the
State's ownership of the artifacts." Id., at 699 (emphasis added); see also id., at 700 (noting that while adjudication of the
State's right to the artifacts "would be justified if the State voluntarily advanced a claim to [them], it may not be justified as
part of the Eleventh Amendment analysis, the only issue before us"). Thus, any references in Treasure Salvors to what
the lower courts could have done if they had solely adjudicated title to the artifacts, rather than issued a warrant to arrest
the res, do not control the outcome of this case, particularly given that it comes before us in a very different posture, i. e.,
in an admiralty action in rem where the State makes no claim of actual possession of the res.
Nor does the fact that Treasure Salvors has been cited for the general proposition that federal courts cannot adjudicate a
State's claim of title to property, see, e. g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 289-290 (1997)
(O'Connor, J., concurring in part and concurring in judgment); id., at 305-306 (Souter, J., dissenting), prevent a more
nuanced application of Treasure Salvors in the context of the federal courts' in rem admiralty jurisdiction. Although the
Eleventh Amendment bars federal jurisdiction over general title disputes relating to state property interests, it does not
necessarily follow that it applies to in rem admiralty actions, or that in such actions, federal courts may not exercise
jurisdiction over property that the State does not actually possess.
507
508
In considering whether the Eleventh Amendment applies where the State asserts a claim in admiralty to a res not in its
possession, this Court's decisions in cases involving the sovereign immunity of the Federal Government in in rem
admiralty actions provide guidance, for this Court has recognized a correlation between sovereign immunity principles
*507 applicable to States and the Federal Government. See Tindal v. Wesley, 167 U. S., at 213; see also Treasure
Salvors, supra, at 710 (White, J., concurring in judgment in part and dissenting in part) (discussing analogy between
immunity in "in rem actions brought against vessels in which an official of the State, the Federal Government, or a foreign
government has asserted ownership of the res"). In one such case, The Davis, 10 Wall. 15 (1870), the Court explained
that "proceedings in rem to enforce a lien against property of the United States are only forbidden in cases where, in
order to sustain the proceeding, the possession of the United States must be invaded under process of the court." Id., at
20. The possession referred to was "an actual possession, and not that mere constructive possession which is very often
implied by reason of ownership under circumstances favorable to such implication." Id., at 21; see also The Siren, 7 Wall.
152, 159 (1869) (describing "exemption of the government from a direct proceeding in rem against the vessel whilst in its
custody"). The Court's jurisprudence respecting the sovereign immunity of foreign governments has likewise turned on
the sovereign's possession of the res at issue. See, e. g., The Pesaro, 255 U. S. 216, 219 (1921) (federal court's in rem
jurisdiction not barred by mere suggestion of foreign government's ownership of vessel).
While this Court's decision in The Davis was issued over a century ago, its fundamental premise remains valid in in rem
admiralty actions, in light of the federal courts' constitutionally established jurisdiction in that area and the fact that a
requirement that a State possess the disputed res in such cases is "consistent with the principle which exempts the
[State] from suit and its possession from disturbance by virtue of judicial process." The Davis, supra, at 21. Based on
longstanding precedent respecting the federal courts' assumption of in rem admiralty jurisdiction over vessels that are
not in the possession of a sovereign, we conclude that the Eleventh Amendment does not bar federal jurisdiction *508
over the Brother Jonathan and, therefore, that the District Court may adjudicate DSR's and the State's claims to the
shipwreck. We have no occasion in this case to consider any other circumstances under which an in rem admiralty
action might proceed in federal court despite the Eleventh Amendment.
III
There remains the issue whether the courts below properly concluded that the Brother Jonathan was not abandoned for
purposes of the ASA. That conclusion was necessarily influenced by the assumption that the Eleventh Amendment was
relevant to the courts' inquiry. The Court of Appeals' determination that the wreck and its contents are not abandoned for
purposes of the ASA was affected by concerns that if "the vessel had been partially abandoned, both the federal court
https://scholar.google.com/scholar_case?q=118+S.Ct.+1464+&hl=en&as_sdt=400006&case=11090637666792065241&scilh=0
6/8
3/29/2016
California v. Deep Sea Research, Inc., 523 US 491 - Supreme Court 1998 - Google Scholar
and the state court would be adjudicating the fate of the Brother Jonathan. " 102 F. 3d, at 389. Moreover, the District
Court's inquiry was a preliminary one, based on the concern that it was premature "for the court to find that any individual
items of cargo or personal property have been abandoned." 883 F. Supp., at 1354. In light of our ruling that the Eleventh
Amendment does not bar complete adjudication of the competing claims to the Brother Jonathan in federal court, the
application of the ASA must be reevaluated. Because the record before this Court is limited to the preliminary issues
before the District Court, we decline to resolve whether the Brother Jonathan is abandoned within the meaning of the
ASA. We leave that issue for reconsideration on remand, with the clarification that the meaning of "abandoned" under
the ASA conforms with its meaning under admiralty law.
509
Our grant of certiorari also encompassed the question whether the courts below properly concluded that the ASA preempts § 6313, which apparently operates to transfer title to abandoned shipwrecks not covered by the ASA to the State.
Because the District Court's full consideration of the *509 application of the ASA on remand might negate the need to
address the pre-emption issue, we decline to undertake that analysis.
Accordingly, the judgment of the Court of Appeals assuming jurisdiction over this case is affirmed, its judgment in all
other respects is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, concurring.
In Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670 (1982), both the four Members of the plurality and the
four dissenters agreed that the District Court "did not have power . . . to adjudicate the State's interest in the property
without the State's consent." Id., at 682; see also id., at 699-700; id., at 703, n. (White, J., concurring in judgment in part
and dissenting in part). Our reasons for reaching that common conclusion were different, but I am now persuaded that all
of us might well have reached a different conclusion if the position of Justices Story and Washington (that the Eleventh
Amendment is no bar to any in rem admiralty action) had been brought to our attention. I believe that both opinions
made the mistake of assuming that the Eleventh Amendment has the same application to an in rem admiralty action as
to any other action seeking possession of property in the control of state officers.
510
My error, in writing for the plurality, was the assumption that the reasoning in Tindal v. Wesley, 167 U. S. 204 (1897), and
United States v. Lee, 106 U. S. 196 (1882), which supported our holding that Treasure Salvors was entitled to
possession of the artifacts, also precluded a binding determination of the State's interest in the property. Under the
reasoning of those cases, the fact that the state officials were acting without lawful authority meant that a judgment
against them would not bind the State. See 458 U. S., at 687-688 ("In holding that the action was not barred by the *510
Eleventh Amendment, the Court in Tindal emphasized that any judgment awarding possession to the plaintiff would not
subsequently bind the State"). That reasoning would have been sound if we were deciding an ejectment action in which
the right to possession of a parcel of real estate was in dispute; moreover, it seemed appropriate in Treasure Salvors
because we were focusing on the validity of the arrest warrant.
Having given further consideration to the special characteristics of in rem admiralty actions, and more particularly to the
statements by Justice Story and Justice Washington quoted in the Court's opinion, ante, at 502-503[*] I am now
convinced that we should have affirmed the Treasure Salvors judgment in its entirety. Accordingly, I agree with the
Court's holding that the State of California may be bound by a federal court's in rem adjudication of rights to the Brother
Jonathan and its cargo.
Justice Kennedy, with whom Justice Ginsburg and Justice Breyer join, concurring.
I join the opinion of the Court. In my view, the opinion's discussion of Florida Dept. of State v. Treasure Salvors, Inc., 458
U. S. 670 (1982), does not embed in our law the distinction between a State's possession or nonpossession for
purposes of Eleventh Amendment analysis in admiralty cases. In light of the subsisting doubts surrounding that case and
Justice Stevens' concurring opinion today, it ought to be evident that the issue is open to reconsideration.
[*] Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and
https://scholar.google.com/scholar_case?q=118+S.Ct.+1464+&hl=en&as_sdt=400006&case=11090637666792065241&scilh=0
7/8
3/29/2016
California v. Deep Sea Research, Inc., 523 US 491 - Supreme Court 1998 - Google Scholar
Eric J. Taylor, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama,
Bruce M. Botelho of Alaska, Michael J. Bowers of Georgia, Calvin E. Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G.
Lance of Idaho, James E. Ryan of Illinois, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of
Massachusetts, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North
Carolina, Charles Molony Condon of South Carolina, William H. Sorrell of Vermont, Richard Cullen of Virginia, and Alva A. Swan of the
Virgin Islands; for the Council of State Governments et al. by Richard Ruda and James I. Crowley; and for the National Trust for Historic
Preservation et al. by Robert A. Long, Jr., Paul W. Edmondson, Elizabeth S. Merritt, Thompson M. Mayes, Edith M. Shine, and Laura S.
Nelson.
Briefs of amici curiae urging affirmance were filed for the American Institute of Marine Underwriters by Marilyn L. Lytle; for the Atlantic
Mutual Insurance Co. et al. by Guilford D. Ware and Martha M. Poindexter; for the Columbus-America Discovery Group et al. by Richard
T. Robol, Jane E. Rindsberg, Richard A. Cordray, and Alan G. Choate; and for Salvors, Inc., by Peter E. Hess.
[*] While the petition for certiorari in this case was pending, the United States Court of Appeals for the Sixth Circuit adopted the reasoning
of the Ninth Circuit. See Fairport Int'l Exploration, Inc. v. Shipwrecked Vessel Known as The Captain Lawrence, 105 F. 3d 1078 (CA6
1997), cert. pending, No. 96-1936.
[*] See also Fletcher, A Historical Interpretation of the Eleventh Amendment, 35 Stan. L. Rev. 1033, 1078-1083 (1983) (discussing the
historical basis for this interpretation).
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=118+S.Ct.+1464+&hl=en&as_sdt=400006&case=11090637666792065241&scilh=0
8/8
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
525 F.Supp. 186 (1981)
COBB COIN COMPANY, INC., a Florida Corporation, et al., Plaintiffs, v. The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL (Believed to have sunk in
1715), her tackle, armament, apparel, and cargo located within 3,000 yards of a point:
Beginning at coordinates 27° 43.8' N. latitude by 80° 22.8' W. longitude, Defendant.
No. 79-8266-Civ-JLK.
United States District Court, S. D. Florida.
October 2, 1981.
189
188
187
*187 *188 *189 David Paul Horan, Key West, Fla., for plaintiffs.
Linwood Anderson, Smathers & Thompson, Harold Ward, Fowler, White, Burnett, Hurley, Banick & Knight, P.A., Miami,
Fla., Susan Gamble, Asst. Atty. Gen., Tallahassee, Fla., Alan Weisberg, Miami, Fla., Jones, Foster & Moss, P.A., Vero
Beach, Fla., for defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
JAMES LAWRENCE KING, District Judge.
HISTORICAL INTRODUCTION
In the early eighteenth century, Spain's dominions extended over one third of the known world. The King of Spain
annually sent two fleets of ships to the New World to bring back the wealth of the Americas. One fleet picked up the gold,
emeralds, and pearls unearthed from Peruvian mines, at the port of New Granada — present day Cartagena, Colombia;
the other boarded delicate pottery and china shipped from the Orient, and Mexican silver, cochineal and indigo dyes, at
Veracruz, Mexico. Each year the two fleets met in Havana, Cuba to voyage homeward together across the Atlantic. This
afforded the treasure laden galleons some measure of protection from the pirates of the Caribbean who were well aware
of the sailing dates of the fleet and the richness of the prize that was theirs if they could but capture one of these vessels.
Normally, the combined fleet sailed by May or June in order to clear the Straits of Florida before the treacherous
hurricane season set in, but in the summer of 1715, the fleet of General Don Juan Esteban de Ubilla and General Don
Antonio de Echeverz was delayed due to trade problems and the late arrival of four ships from Veracruz.
The Governor General of Havana was painfully aware of the Spanish monarch's critical need for the immense treasure
of gold, silver and precious jewels secured in the King's treasure chests awaiting shipment. The Royal Treasury was
exhausted by the cost of fighting the war of the Spanish Succession and the failure of the fleet to sail the preceding year.
So, notwithstanding that it was the heart of the danger season of the high winds, a treasure fleet of twelve ships departed
from Havana Harbor on July 24, 1715.
According to historical accounts, it was an occasion for celebration with brightly colored flags whipping briskly in the
breeze and the booming of ceremonial cannon fire ringing in the ears of the throngs of excited citizens crowding the
docks. Few of those present, and certainly none of the over two thousand men aboard the ships, had any inkling of what
lay ahead on their fateful voyage. Before the week was out, over half their number would be dead and all of their mighty
ships, save one, would lie entombed in a watery grave forever.
The galleons sailed northward through the Straits of Florida and past the Florida Keys under a clear and cloudless sky.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
1/38
3/29/2016
190
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Their *190 chartered course, and one that they traditionally followed, took them along the east coast of Florida to a point
past Cape Canaveral, then following the Gulfstream until it veered eastward to a point north of Bermuda where the fleet
would catch the prevailing winds that carried them across the Atlantic to Spain.
By noon on Tuesday, July 30, 1715, a strange calmness had settled in, punctuated by occasional gusts of strong wind
that whipped the waves into ever mounting heights of whitecapped water. By mid-afternoon the sky had darkened and
the wind was gusting steadily, whipping spray from the breaking waves over the doomed fleet.
In the early morning hours of July 31st, the wind suddenly shifted to the east-north-east, and the hurricane struck with all
its fury. The ships, gripped in the incredible force of the crashing waves and mighty winds of nature's most awesome
phenomena, were lifted like matchsticks on mountainous crests to be plummeted in the next instant into deep troughs of
the ocean. Tons of seawater crashed over the railings of the galleons and, with the shriek of the wind, drowned out the
screams of the seamen washed overboard to their death.
Huge anchors were dropped in a desperate attempt to bring the bows of the ships around into the wind and hold them in
the deeper waters offshore. As the wind howled and the hurricane increased in intensity, the panic stricken sailors
watched the thick anchor lines snap, one by one. Second, and sometimes third, anchors were dropped as the
tempestuous sea pounded the ships relentlessly closer and closer to the jagged reefs and shoals. Ultimately, as the
oaken hulls of the once proud and mighty Spanish Treasure Fleet were ripped by the cruel coral of the Florida coast, the
seawater poured into the smashed ships and they heeled over and sank.
For the wretched survivors, the hurricane had inflicted an incredible measure of death and destruction; one thousand
persons perished, eleven galleons sunk, and fourteen million pesos of treasure lost. Only one vessel survived, under the
masterful seamanship of its captain, to limp back to Havana with news of the disaster. Destiny brought the ghosts of
these Spanish Galleons, that had set sail bravely from Havana Harbor July 24, 1715, to a rendezvous in an Admiralty
Court at the United States Courthouse in Key West, Florida, two hundred and sixty-six years later on July 27, 1981.[*]
I. PROCEDURAL HISTORY OF CASE
191
Nearly two hundred sixty four years from the day these ships were lost to the ocean in the terrible hurricane of July 1715,
the treasure and the remains of one ship became the subject of a suit in admiralty in this Court. On August 17, 1979, the
plaintiff Cobb Coin filed its complaint seeking to be declared owner in possession of the wrecked vessel located "within
3,000 yards of a point [b]eginning at coordinates 27° 43.8' N. latitude by 80° 22.8' W. longitude." Alternatively, it sought
an award for salvage services performed on the vessel, her tackle, armament, apparel, and cargo. Three days later the
plaintiff retrieved a cannon from the wreck site. On August 29, 1979, the State of Florida answered the complaint, and
counterclaimed by asking this Court to declare it owner of the vessel and for restitution from the plaintiff for items it had
salved. The State contends it owns all such wrecks within its territorial waters under its Archives and History Act, *191
chapter 267, Florida Statutes (1979), and thereby has plenary authority to administer their salvage.
The State's agents have backed up Florida's claim by attempting to enforce the criminal sanctions against unauthorized
exploration and salvage against the plaintiff's agents. By mid-summer 1981, those agents were so energetically
pursuing that prosecution as to prevent the plaintiff from salving as it is entitled to do under the order of this Court. The
plaintiff Cobb Coin, and the intervening plaintiff Real Eight Company, Inc., filed an application for temporary restraining
order and motion for preliminary and permanent injunction June 25, 1981. On July 7, 1981, this Court issued a
temporary restraining order enjoining the State, its agents, employees, and attorneys from interfering with the plaintiff's
ongoing salvage operations by carrying out their threatened arrests. Following that order, an eleven-day hearing on the
motion for a preliminary injunction ensued, in which the parties presented extensive evidence and oral argument in the
premises. Part of the following procedural history is taken from the July 7, 1981, order of this Court.
Cobb Coin Company, Inc., a Florida corporation, filed its complaint in admiralty August 17, 1979, contending that it had
title to the abandoned vessel described as the defendant in this Court and believed to be a Spanish Galleon which sank
in 1715 at a point a few hundred yards off the Sebastian Inlet, St. Lucie County, Florida. The claim of title was founded
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
2/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
upon the discovery by the plaintiff of the abandoned and wrecked vessel which, it was alleged, was in the total and
exclusive possession of the plaintiff at the time of filing the complaint in this Court.
Thereafter, on August 29, 1979, the United States District Court entered an arrest in rem directing the United States
Marshal to take into custody a cannon from the Spanish Treasure Galleon which had been brought up from the ocean
floor on August 20, 1979.
Earlier, on August 22, 1979, the plaintiff corporation sought a temporary restraining order against the intervening
claimant, State of Florida, alleging that said intervenor was intending to interfere with the jurisdiction of the United States
District Court for the Southern District of Florida. Specifically, the State's agents threatened to arrest the president of the
plaintiff corporation and the captain of the salvage vessel employed by the plaintiff for alleged grand larceny of the
cannon from the wreck site.
At a hearing on the application for preliminary injunction held on August 23, 1979, the Honorable Sidney M. Aronovitz,
United States District Judge, held that this Court had jurisdiction of the subject matter of this cause pursuant to 28 U.S.C.
§ 1333, and that possession of the cannon recovered from the wreck site on August 20, 1979, "constituted constructive
possession of the wreck itself and everything that is a part thereof, wherever located, and whenever removed therefore,
past, present or future." Judge Aronovitz ordered the United States Marshal for the Southern District of Florida, "to
receive and take into his possession and control any and all items that have or will come up from the wreck in question,
no matter who has brought up or who will bring up such items until a determination of ownership is made or a further
order of this Court is issued."
The intervening claimant, State of Florida, sought an injunction preventing Cobb Coin Company, Inc., from continuing to
salvage from the wreck site involved in this suit and moved for an order appointing the State as substitute custodian of
the artifacts then being recovered from the wrecked Spanish Galleon. On October 12, 1979, after a full evidentiary
hearing thereon, this Court denied the State's application for preliminary injunction and change of custodian in the
following language:
192
Whether the State of Florida has a sovereignty submerged lands claim to the wreck is a matter to be
determined later. The artifacts and cannons are presently in the custody of the U.S. Marshal, who has
been ordered to consult officials of the State of Florida to the extent necessary *192 to preserve the value
of those items. The State has not claimed that the Marshal is incapable of maintaining the cannon, nor
that any damage to it has taken place. Rather, the State claims merely that it will have a more difficult time
supervising the cannon once its agents leave the area of the wreck. That claim is insufficient to support a
change of custodians, especially given the conflicting claims of ownership in this case. The State's need
to place an agent on salvage vessels for the purpose of cataloguing the recoveries does not state
sufficient grounds for enjoining the operations of the Cobb Coin Co. The State's interest can be protected
by simply placing an agent on Cobb Coin Company's vessels. It is therefore
ORDERED and ADJUDGED that the Cobb Coin, Co., Inc., will allow agents of the State of Florida to come
on board its salvage vessels solely to catalogue and authenticate articles brought up from the wreck site.
The State's motion for an Order for a preliminary injunction is otherwise denied. It is further
ORDERED and ADJUDGED that Intervenor's motion for an Order appointing it Substitute Custodian is
denied.
The United States Marshal of this District contracted with a Mr. Arthur Hartman, to be custodian of the salvaged artifacts
and to hold and preserve the items of salvage brought up from the defendant wreck site. According to the plaintiff's
application for temporary restraining order filed June 25, 1981, hundreds of artifacts were salvaged from the vessel
during the salvage season of 1980. Pursuant to this Court's order of October 12, 1979, a State agent was aboard the
salvage vessel and observed the recovery of the treasure from the defendant wreck site throughout the salvage season
of 1980 and 1981. This State agent catalogued and authenticated the articles brought up from the wreck site in order to
insure that the State's interest was fully protected therein. Additionally, Mr. Arthur Hartman, as a representative of the
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
3/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
United States Marshal and the custodian, by Court order, of these artifacts made and rendered an accounting of the
items salvaged.
On June 15, 1981, Florida Marine Patrol Officers boarded the salvage vessel "Dare" and issued a warning to the captain
and crew advising them that they were subject to arrest and prosecution for a violation of the law of Florida against
unauthorized exploration and salvage. At the time this warning was issued an agent of the State of Florida was present
on the salvage vessel belonging to employees of the plaintiffs, for the purpose of complying with this Court's order
permitting the State to have its agents aboard to catalogue and authenticate the items being brought up from the wreck
site of the Spanish Galleon.
Thereafter on June 21, 1981, the plaintiff's salvage vessel "Dare" was again boarded by agents of the State of Florida
and a criminal citation was issued against the captain of the vessel for a violation of Florida Statute § 267.13.
The plaintiffs contend that the 1981 salvage season has now commenced and that they have made extensive
contractual and financial commitments to a full fledged continuation of the salvage operations that were conducted in
1979 and 1980. The plaintiffs assert that an interruption of the on-going salvage operation would result in substantial
damages for costs of charter vessels, crews' wages, expenses, up-keep, maintenance, and irreparable damage in loss
of control of the site of the wrecked Spanish Galleon by others who would indiscriminately salvage in the absence of any
control by the plaintiffs or this Court.
The parties filed motions for a temporary restraining order, preliminary injunction, and rule to show cause why the
intervening claimant, State of Florida, should not be held in contempt of Court.
This Court then issued its July 7, 1981, temporary restraining order, based on two major conclusions. First, the propriety
of such an order was not precluded by the rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
193
Second, the plaintiff's continued salvaging of the wreck *193 site would be in the best interests of all the parties; the costs
of lost investment and opportunity would have been immense, while the artifacts retrieved would be accurately
accounted for by both the State's agents and the Federal Court custodian during the period of the Order.
The Court adheres to its ruling of July 7, 1981, that this injunction is not foreclosed by Younger. The July 7th Order held:
[T]he state asserts that the plaintiffs are asking the Court to enjoin its attempts to enforce its criminal laws
relying on the principle announced in Younger v. Harris ... and Mitchum v. Foster [, 407 U.S. 225, 92 S.Ct.
2151, 32 L.Ed.2d 705] .... [citations omitted]
....
The Court has determined that the ruling of Younger v. Harris ... does not preclude issuance of the present
injunction. The Younger doctrine holds that, absent exceptional circumstances, a federal court should not
interfere with an ongoing state criminal proceeding. In his order of August 24, 1979, Judge Aronovitz
denied Cobb Coin's request for injunctive relief against the state, on the grounds that the existence of
none of the exceptional circumstances referred to in Younger, such as bad faith harassment on the part of
the state officials or irreparable injury, had been demonstrated by Cobb Coin. Judge Aronovitz's ruling,
however, was made "without prejudice to the plaintiff or its agents to reapply to this court for relief if
circumstances change and warrant same." After careful review, the Court finds that circumstances have
changed substantially since Judge Aronovitz's prior order, and that injunctive relief is now warranted.
The plaintiff has asserted that an arrest of any of its employees would work an extreme economic
hardship upon Cobb Coin, which has invested thousands of dollars in salvage equipment and
manpower. Such an impediment to the ongoing work of Cobb Coin's divers and other skilled personnel,
which has been pursued in accordance with this Court's explicit authorization, would clearly cause it
irreparable damage. Indeed, were the state to halt Cobb Coin's operations, it is likely that third party
salvor-pirates would attempt to reap the hard-won benefits of Cobb Coin's research and labor at the
Corrigan's Wreck Site. In the face of such threatened injury, the Court concludes that the principles of
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
4/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Younger must give way.
It is further apparent that, by threatening to arrest the salvage vessel's captain and crew, the state is
attempting to circumvent the ruling issued by this Court October 12, 1979, which had granted Cobb Coin
the right to continue its salvage operations. No appeal was ever taken by the state. Since the Court's
ruling, the state has continued to maintain its inspectors aboard the salvage vessels. These inspectors
have provided protection of the state's interests by cataloguing and authenticating the various artifacts
retrieved. Although Mr. Hartman was delegated custodianship by the U.S. Marshal pursuant to a contract
entered into months ago, the state has seen fit to wait until the present time to oppose his appointment
and challenge the sufficiency of the safeguards authorized by this Court in October of 1979. Instead of
now bringing this matter to the Court's attention and waiting for an appropriate ruling thereon, the state
has taken the matter into its own hands. The Court finds that such behavior on the part of the state
constitutes no more than bad faith harassment, justifying abrogation of the Younger Doctrine.
The Court further concludes that, by threatening to arrest the plaintiff's employees for engaging in salvage
operations expressly validated by this Court, the State of Florida is attempting to interfere impermissibly
with an ongoing federal matter. Such usurpation of the proper jurisdiction of this Court cannot be
tolerated.
194
The efforts by the Florida Marine Patrol to prosecute the plaintiff's employees have intensified since the expiration of the
*194 July 7th temporary restraining order. Considering that the State prosecution began after this Court assumed
jurisdiction over the matter, it is clear that Younger does not apply.
As stated in the July 7th Order, this Court was "fully cognizant of the State of Florida's legitimate interest in the
preservation of what it considers to be archeological treasures belonging to the State. In order to protect this significant
State concern, the Court ... set the trial in this case for an immediate, final hearing." In so doing, the Court followed the
procedure established by the Fifth Circuit Court of Appeals in Treasure Salvors v. Unidentified, Wrecked and Abandoned
Sailing Vessel, 640 F.2d 560 (5th Cir. 1981) (Treasure Salvors III). That hearing took place between July 28th and August
11, 1981, and counsel for all parties zealously argued their positions.
The factors calling for the issuance of this injunction are analyzed in Section III of this Order. For purposes of this
introduction, it suffices to say that the evidence adduced at the eleven day hearing on the motion for preliminary
injunction strongly reinforced the conclusion that an injunction is not only legally justified, but in all the parties', and the
public's, best interest.
II. A THRESHOLD DETERMINATION: THE BASES OF JURISDICTION
A. Jurisdiction in this Case is Properly Founded on Traditional Maritime, In
Rem, and In Personam Principles
As the claimants herein assert that this suit was improperly brought before the Court in the first instance, an analysis of
the motion for preliminary injunction must be preceded by a discussion of this Court's admiralty jurisdiction. This action
was originally brought in the nature of an in rem suit against "The Unidentified, Wrecked and Abandoned Sailing Vessel
(Believed to have sunk in 1715), her tackle, armament, apparel and cargo located within 3,000 yards of a point:
Beginning at coordinates 27° 43.8'N. latitude by 80° 22.8'W. longitude." Through this suit, Cobb Coin Company, Inc. — a
corporation formed by Mr. Mel Fisher and his professional salvaging group specifically for the purpose of conducting
salvage operations on this particular wreck site — seeks to assert a salvage claim against the named vessel. Although
identified as a "wrecked vessel,"[1] it should more accurately be termed a wreck site, for what the teredos and the
passage of time have left for salvage is a load of cargo scattered on an expanse of ocean floor. Contrary to what the
claimants suggest, however, this Court is not persuaded that the process of natural history which eroded the vessel's
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
5/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
structure has similarly diminished the federal rights and remedies now available to a salvor who successfully returns to
the mainstream of commerce goods otherwise buried beneath the sea.
At the outset, the Court notes that no parties contest the existence of in rem jurisdiction over the artifacts which have
actually been brought up from the ocean bottom and turned over to the U.S. Marshal pursuant to these proceedings. The
controversy exists with respect to this Court's alleged in rem jurisdiction over the named "vessel,"[2] and in personam
jurisdiction over the State.
195
*195 As discussed above, the true subject of the maritime action in the case before the Court, is not salvageable material
ensconced in an extant hull, but the identifiable cargo of the former vessel. The absence of a hull, however, does not
affect the traditional maritime right of a salvor to uninterrupted salvage operations where such salvor, in conducting his
operations on an identifiable wreck site, does so in a manner demonstrating that degree of dominion and control which
is appropriate under the circumstances. See, e. g., Rickard v. Pringle, 293 F.Supp. 981 (S.D.N.Y.1968); Eads v. Brazelton,
22 Ark. 499 (1861). As stated by the Fifth Circuit in Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned
Sailing Vessel, 640 F.2d 560 (5th Cir. 1981) (Treasure Salvors III):
The law ... does not always require that one who discovers lost or abandoned property must actually have
it in hand before he is vested with a legally protected interest. The law protects not only the title finally
acquired by one who finds lost or abandoned property but also the right of the person who discovers such
property,[3] and is actively and ably engaged in reducing it to possession, to complete this project without
interference from another. The courts have recognized that in order to acquire a legally cognizable
interest in lost or abandoned property, a finder need not always have "manual" possession of the thing.
Rather, a finder may be protected by taking such constructive possession of the property as its "nature
and situation" permit. Id. [Citation to Eads v. Brazelton, 22 Ark. at 511]. Thus in Eads, the court
emphasized that Brazelton [the first finder] need not have actually raised the lead [lead] and put it on
board his ship in order to acquire legal protection against interference by others. If Brazelton had merely
placed "his boat over the wreck, with the means to raise its valuables, and with persistent efforts directed
to raising the lead," Eads v. Brazelton, supra at 511, he would have been deemed to have a legally
protected possessory interest in the wreck and Eads [the subsequent salvor] would have had no right to
interfere with that possession by undertaking his own salvage operations.
640 F.2d at 572.
Jurisdiction in such a case is predicated on in personam, rather than in rem principles. As had been stated earlier by the
Fifth Circuit in its Treasure Salvors III opinion:
This type of claim to title by occupancy can, of course, be asserted in an in rem proceeding instituted once
the goods have been recovered and brought to shore within the jurisdiction of the court. However, since
the law of maritime salvage and finds also protects the right of a salvor who undertakes a project to carry it
to completion without interference from others who seek to share in the enterprise and the reward, we
think that the admiralty and maritime jurisdiction of the federal courts also encompasses the power to
196
entertain a salvor's claim that another is wrongfully interfering with his ongoing endeavors and to grant
such relief as may be appropriate in order to *196 protect a salvor's right to pursue his salvage endeavor
exclusively, even though the property which is the subject of the salvage effort might not be within the
territorial jurisdiction of the court.[4] The fact that the property which is the subject of the salvage effort is
not within the territorial jurisdiction of the court, and thus not subject to an in rem decree, is irrelevant
because the salvor's claim is not one in rem seeking to recover against the vessel for salvage in which the
in rem fiction is used to personify the vessel and treat it as a party to the litigation. Although rights to the
vessel may be the subject of the dispute, the adverse parties in this situation are the competing salvors.
Thus, since the court has jurisdiction over them, and the subject matter involves claims based on the
maritime law of salvage and of finds, the court is fully competent to adjudicate the dispute regardless of
the location of the salvage operations.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
6/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
640 F.2d 567-68.
While the claimant Quest Corporation has no quarrel with this ground of jurisdiction, the State, after filing its claim of
owner and seeking affirmative relief, now makes the eleventh-hour assertion that application of in personam jurisdiction
principles to it is barred in this case by the Eleventh Amendment. Upon intervening in this litigation, the State, rather than
contesting jurisdiction over it, sought to invoke this Court's declaratory powers to its benefit. Now, after having subjected
itself to the Court's jurisdiction from the outset by seeking such affirmative relief, the State attempts to assert a shield
against any adverse rulings which may result from the litigation by maintaining that it may waive sovereign immunity only
by enactment of a general law specifically permitting suit.
In so arguing, however, the State has misplaced its reliance. Both cases cited by the State in support of its proposition
are inapposite. The first of these is Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla.1978). In Manatee
County, three municipalities sued the Board of County Commissioners seeking a remittance of city residents' taxes
which had been used to pay for services rendered for the benefit of the unincorporated area only. The cities were
proceeding under section 125.01(6)(a) of the Florida Statutes, a section which implements the Florida constitutional
provision that property within the municipalities shall not be so taxed. Through it, municipalities are authorized to petition
the county governing board, either to set up a compensatory finance scheme for the ensuing year, or to remit to the
municipalities the identified cost paid by them under a formula prescribed by law. The Supreme Court of Florida applied
the rule that the State's sovereign immunity could only be waived by general law and that such a waiver must be clear
and unequivocal, 365 So.2d at 147, but held that the waiver expressed in section 125.01 was clear as to prospective, but
not as to retrospective, relief. Id.
The court in Manatee County cited Arnold v. Shumpert, 217 So.2d 116 (Fla.1968), the second case upon which the State
here relies. Arnold was a suit against the county for negligent maintenance of a traffic signal. The purported basis of
governmental liability was a local ordinance providing for insurance coverage and the state statute authorizing counties
to provide for insurance coverage. The court held, first, that a general state law, not a local ordinance, was required to
waive immunity. Next, it held that the state statute, by enumerating certain items for which counties could purchase
insurance, had to be strictly construed and could not be interpreted as waiving immunity for negligent maintenance of
traffic signals. 217 So.2d at 120. In other words, where a suit is one which would be barred by sovereign immunity — that
is, a suit for past money damages, see Section II.B. infra — a statute which purportedly waives that immunity will be
strictly construed.
197
*197 But here, even assuming arguendo that the State were, as it asserts, a rightful claimant of such abandoned
property as that here in question, the disposition of the artifacts to which the State claims ownership is not an award of
money damages against the State to be exacted from her treasury. Therefore, no statutory waiver is necessary, and
Florida's arguments are inapplicable.
In summary, then, once a salvor who discovers and brings up an artifact from an identifiable wreck site initiates suit by
taking that object into federal court, the court acquires jurisdiction not only to adjudicate the disposition of the article
already within its territorial jurisdiction, but maritime jurisdiction (based on in personam principles) to adjudicate disputes
between competing salvors, and in rem jurisdiction (coupled with in personam jurisdiction over the claimants) to dispose
of all articles thereafter brought up from that site. The filing of such a suit is, as here, an open invitation (either at that
time, or such time as an applicable interest may thereafter arise) for claimants and competing salvors to come before the
court and make their alleged interests known.
B. This Suit is Not Barred By the Eleventh Amendment
In opposition to the plaintiff's motion, the claimant State of Florida argues that this suit is barred by the Eleventh
Amendment to the United States Constitution. Given the Supreme Court's clear exposition of the Eleventh Amendment,
this action cannot be construed to be so barred.
The Eleventh Amendment provides that "[t]he judicial power of the United States shall not be construed to extend to any
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
7/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state." As the Supreme Court has repeatedly interpreted the amendment, it protects an
unconsenting state from suits brought not only by citizens of another state, but by her own citizens. Edelman v. Jordan,
415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974), citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33
L.Ed. 842 (1880). This bar to unconsented-to suits at law or equity applies with equal effect to suits in admiralty. See In re
State of New York, No. 25, 256 U.S. 490, 503, 41 S.Ct. 588, 591, 65 L.Ed. 1057 (1921).
But at this date, it is clear that the immunity afforded by the Eleventh Amendment extends only to suits in which a plaintiff
seeks compensatory money damages which would be payable from the state treasury. Edelman v. Jordan, 415 U.S. at
663, 667, 94 S.Ct. at 1356, 1362. According to the Supreme Court, "the rule has evolved that a suit by private parties
seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh
Amendment." 415 U.S. at 663, 94 S.Ct. at 1356.
Here, the plaintiff salvor seeks an adjudication of its alleged right to a portion of the property salved. For centuries, the
remains of the 1715 fleet to which the plaintiff has directed its efforts lay undisturbed on the ocean bottom. It was not until
the period between 1939 and the early 1960's that various treasure hunters became aware of the general location of the
wreck sites east of Florida's Sebastian Inlet. In 1967, the Florida Legislature, through the Archives and History Act, first
claimed ownership of all sunken historic and archeological artifacts within the State's territorial jurisdiction. The evidence
adduced at the hearing on the Motion for Preliminary Injunction indicates that, following that enactment, no active
endeavor by the State to recover the sunken treasures and reduce them to possession ensued, except through
negotiation of leases pursuant to the provisions discussed above. The plaintiff, in contrast, having retrieved hundreds of
artifacts from the deep since filing suit in August, 1979, asks this Court to determine either that it owns those items as
finder, or that, by virtue of its services as a successful salvor, it is entitled to an appropriate salvage award.
198
*198 Under usual circumstances, the application of admiralty principles would lead to an award either of outright
ownership of the recovered goods (applying the law of finds) or of entitlement to an appropriate salvage award. The
instant case, however, does not present such "usual circumstances." Here, the original "owner" of the artifacts was the
King of Spain, who indeed attempted to salvage his wrecked ships, but abandoned the effort in 1716. Now, Florida
seeks to claim ownership of the wrecks through legislative pronouncement. As is discussed below, the matrix of state
and federal statutes through which Florida stakes its claims does not make the State an "owner" so as to allow it to
exercise that dominion which would supercede the plaintiff's federal salvage rights under the maritime law. See
discussion of the Submerged Lands Act, Section III.A.4., infra. Even were the State to be considered the nominal "owner"
of the sunken treasures on the ocean bottom, maritime precedent still provides for a salvage award to one who saves
property owned by the sovereign by virtue of its expressed sovereign prerogative.[5]
Because of the unusual character of the wreck sites of former vessels in the 1715 Plate Fleet, the form of salvage award
to be entered in this case would differ from usual awards. Normally, the salvaged items sued in rem are sold to satisfy the
judgment, which is stated as a set sum derived from an appropriate percentage of the monetary value of the goods.
Where, as here, the "proceeds" of the salvor's find are items uniquely and intrinsically valuable beyond their monetary
worth, an award in specie is more appropriate. Thus, in this case, should the plaintiff succeed on the merits, it would be
awarded a part of those artifacts which had been lost in the ocean depths for over two hundred and sixty-four years, and
which, but for the plaintiff's considerable efforts, would otherwise have remained unknown to the terrestrial world.
Similarly, that portion representing the State's interest would be in the form of historical artifacts, not money. It may well
be that, where an item of highly unusual historical, cultural, or archeological significance is salved, such a piece might
be awarded to the State due to its indivisibility and uniqueness, regardless of the proportion of the total find which it
might represent, were an estimate of the monetary value attempted. But clearly, any recovery in this case would be in the
form of objects which the plaintiff has brought before the Court; there would be no money judgment to be expended from
the State's treasury. Hence, this action is not barred by the Eleventh Amendment.
The claimant State of Florida, while recognizing the unique archeological, historical, and cultural value of the items
salved, nonetheless relies upon cases in which money damage awards were sought to support its contention that this
action is precluded by operation of the Eleventh Amendment. Thus, the State argues that this suit is barred under the
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
8/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
rule set forth in Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The Supreme
Court in that case held that a suit against Indiana revenue officials for a refund of unconstitutionally exacted taxes was
barred by the Eleventh Amendment. Obviously, the relief sought and not permitted to go forward in that case was the
payment of money directly from the state treasury as a result of the state's past "wrong." Edelman v. Jordan, 415 U.S. at
663, 94 S.Ct. at 1355.
The State also cites the Supreme Court decision In re State of New York, No. 26 (The Queen City), 256 U.S. 503, 41
S.Ct. 592, 65 L.Ed. 1063 (1921), in support of its Eleventh Amendment argument. The Court in that case prohibited the
199
plaintiffs' attempt to recover for damages sustained because of the alleged negligent operation of a steam tug owned by
the State in a proceeding brought in rem against the tug. In The Queen City, the Court held that the Eleventh Amendment
barred "the seizure of *199 property owned by a state and used and employed solely for its governmental uses and
purposes." 256 U.S. at 510, 41 S.Ct. at 593.
That decision fits squarely within the above-quoted principle of Edelman; in The Queen City, the Eleventh Amendment
barred a suit in which the plaintiff sought monetary recovery for damages allegedly caused by the negligence of a State
agent. Although the plaintiff in The Queen City attempted to proceed in rem as opposed to in personam, the nature of the
recovery sought, rather than the procedural vehicle employed, resulted in a bar to the action.
Even were the State to "own" the sunken historical artifacts under its statute and the federal Submerged Lands Act
(which, under this Court's holding, it does not), the Eleventh Amendment would still pose no bar to this suit, as the
objects here at issue are not sovereign property in the sense contemplated in the relevant cases. The Supreme Court in
The Queen City exempted seizure in admiralty of "public property of a state used and employed for public and
governmental purposes." 256 U.S. at 511, 41 S.Ct. at 593. See also The Fidelity, Fed.Case No. 4, 758, 8 Fed.Cas. 1189,
1191 (1879) ("Property does not necessarily become a part of the sovereignty because it is owned by the sovereign. To
make it so it must be devoted to the public use, and must be employed in carrying on the operations of the government,"
citing The Davis, 10 Wall. 15, 77 U.S. 15, 19 L.Ed. 875 (1869)).
This Court does not deny Florida's right to attempt to preserve cultural and historic resources by the exercise of its police
power. See, e. g., Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631
(1978). But it is hard to view the items before the Court as "public property used and employed for governmental
purposes," when they have lain serenely in their two-hundred-sixty-plus-year habitat, with the State having only recently
taken mere verbal action to claim (and no positive steps of its own to locate or raise) these artifacts from the ocean
bottom. The State asserts that it intends to use the items for the benefit of its citizens, for the historic and archeological
information and aesthetic beauty they will yield. As noted below in Section III.A. 1.a., at the conclusion of trial, should the
plaintiff succeed in this action, the Court — cognizant of the State's valid concern — would certainly fashion relief which
would fully recognize the State's historic and cultural interests without interfering with the plaintiff's federal maritime
rights. In conclusion, however, the recognition of such interests fails to transform this maritime salvage action into a suit
for money damages against the State, such as would be barred by the Eleventh Amendment.
III. PROPRIETY OF ENTRY OF PRELIMINARY INJUNCTION AGAINST THE
STATE'S AGENTS: FOUR ELEMENTS TO BE PROVEN
There are four prerequisites to this Court's granting a preliminary injunction; a showing of all four indicates that an
injunction is necessary to preserve the Court's ability to render a meaningful decision on the merits. The four
prerequisites are:
(1) A substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the
movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause the parties or party opposed;
and (4) a showing that the injunction, if issued, would not be adverse to the public interest.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
9/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel (Treasure Salvors, III), 640 F.2d 560, 568
(5th Cir. 1981). The movant must carry the burden of showing all four elements. Id.
A. The Movant Has Shown a Probability of Success on the Merits
200
The movant, plaintiff in the main action, asks this Court to enjoin the agents of the State of Florida from enforcing its laws,
which make it a crime for any person who *200 has failed to obtain a license from the State either to conduct field
investigations on any state lands or within designated archeological landmarks, or to alter any archeological site or
specimen located on state lands or within designated landmark zones. Section 267.13, Florida Statutes (1979);
Fla.Admin. Reg. § 1A-31.12. It is undisputed that both the area explored by the plaintiff and the cargo which the plaintiff
has salved are within the territorial limits of the State. The question on which the movant must show a likelihood of
prevailing[6] is whether a federal district court sitting under admiralty jurisdiction in a salvage action must give effect to a
state law which conflicts with the substantive principles of federal maritime law.
1. Federal Admiralty Principles, Not the State Statute, Must Govern the
Exploration and Salvage of Artifacts Under the Ocean in the Case of a
Conflict.
Florida, by statute and administrative regulation, has enacted a comprehensive scheme designed to acquire and
preserve historic sites and property, artifacts, treasure trove, and objects of antiquity of historic value and interest to the
public. Generally, the statute declares that such objects which have been abandoned on state-owned submerged lands
"shall belong to the state with title thereto vested in the division of archives, history and records management (hereinafter
"Division") ...." Section 267.061(1)(b), Florida Statutes (1979). (F.S.)
The statute authorizes the Division to designate archeological sites of significance as "state archeological landmarks,"
and interrelated groups of such landmarks as "state archeological landmark zones." F.S. § 267.11. It further authorizes
the Division to issue permits to qualified parties for excavation and surface reconnaissance on state lands or within
landmarks or landmark zones. F.S. § 267.12(1). The statute declares that artifacts recovered belong to the State, F.S. §
267.12(2), and that the Division "may arrange for the disposition of the specimens so collected ...." F.S. § 267.12(3).
Regulations promulgated by the Division define the salvage permit process in more detail, and establish certain
conditions which govern the contractees. See Appendix B. For purposes of this case, three aspects of the permitting
scheme are particularly salient. First is the very requirement that potential salvors be required to obtain a state license to
explore given areas of the navigable waters over state-owned submerged lands. Second is that, under the State's
program, an exclusive right to conduct salvaging operations may be given to one not "actively and ably engaged in
reducing" the cargo on a wreck site, once discovered, to possession. Lastly, the statute provides that payment for the
recovery of sunken artifacts "shall be made in accordance with the contracts entered into by the Division," which provide,
in advance, for a percentage award allocation which fails to reflect individual merit, or lack thereof.
201
The wreck site from which the plaintiff, Cobb Coin, removed the artifacts now before this Court was, at the time of the
lawsuit, the subject of such a lease between the Division and the claimant Quest Corporation. Cobb Coin does not
dispute that it was not licensed according to the law of Florida at the time it invoked the admiralty jurisdiction of this
Court. But because it appears that Florida's licensing scheme and the criminal penalties imposed for noncompliance
therewith conflict impermissibly with federal maritime salvage principles, *201 the Court here concludes, for reasons as
follow, that the movant has shown a substantial likelihood of prevailing on the merits in the main cause.
This Court takes it as settled doctrine that in admiralty, state legislation that conflicts with federal maritime principles
cannot be given effect under the supremacy clause of the United States Constitution, article VI, paragraph 2. In Southern
Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1916), the Court stated the classic rule on this point:
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
10/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
[W]ell established is the rule that state statutes may not contravene an applicable act of Congress or affect
the general maritime law beyond certain limits .... And plainly, we think, no such legislation is valid if it
contravenes the essential purpose expressed by an Act of Congress, or works material prejudice to the
characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of
that law in its international and interstate relations.
Id. at 216, 37 S.Ct. at 529.
The principle that federal maritime law supercedes inconsistent state law has been followed regularly by the courts. In
Pope & Talbot Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), the Supreme Court held that the maritime
rule of comparative negligence governed the parties' liability in action on a maritime tort. The Court specifically held that,
"while states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantive
admiralty rights as defined in controlling acts of Congress or by interpretive decisions of this Court. These principles
have been frequently declared and we adhere to them." 346 U.S. at 409-10, 74 S.Ct. at 205. See also Messel v.
Foundation Co., 274 U.S. 427, 434, 47 S.Ct. 695, 698, 71 L.Ed. 1135 (1927); Carlisle Packing Co. v. Sandanger, 259
U.S. 255, 259, 42 S.Ct. 475, 476, 66 L.Ed. 927 (1922); Knickerbocker Ice Co., v. Stewart, 253 U.S. 149, 159, 40 S.Ct.
438, 439, 64 L.Ed. 834 (1920); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). It is
equally clear that the dominant federal maritime law derives as much from the rules developed by the American
admiralty courts as from Congressional acts. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 405, 90 S.Ct. 1772,
1790 n. 17, 26 L.Ed.2d 339 (1970) ("Congress has largely left to this Court the responsibility for fashioning the rules of
admiralty law. Fitzgerald v. United States Lines, 374 U.S. 16, 20 [, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720] ... (1963).")
Neither the judicial "limitations" nor the scholarly criticism of the Jensen doctrine prevent its application in this case. As is
discussed in more detail in Section III.A.2. and 3., infra, the cases now permit states to regulate to supplement remedies
available to enforce federal rights, see Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941); Red Cross
Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582 (1924), and to legislate over matters affecting the land
and sea and which Congress has either expressly or impliedly left for the states to govern. See Askew v. American
Waterways Operators Co., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973); Huron Portland Cement Co. v. City of
Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960).[7] But this case involves neither situation, because the state
law invades federal rights and, to the extent it governs property lost under the ocean, the legislation is not of the type
affecting both land and maritime matters of which the courts have been approving.
202
*202 Scholarly criticism has been aimed mainly at the uncertainty and illogic that resulted from early decisions from
which courts inferred that preemption was appropriate even in the absence of a maritime right.[8] The objection voiced
by critics was that "[t]he maritime nature of an occurrence does not deprive a state of its legitimate concern over matters
affecting its residents or the conduct of persons within its borders." Currie, Federalism and the Admiralty: "The Devil's
Own Mess," 1960, The Sup.Ct.Rev. 158, 169.[9] In effect, criticism of Jensen meant that state rules regarding traditional
common law matters, particularly torts,[10] should not be frustrated in the absence of an existing contrary federal interest.
The analysis in this case is unaffected by such criticism. First, that criticism is concerned with local matters, those within
the traditional common law concerns of the states.[11] Second, it does not question the supremacy of judicially
203
recognized maritime rights in the case of a conflict with state policy.[12] As is discussed in the following *203 section,
there is a battery of federal salvage rules with which Florida's law conflicts, which because of the dominant federal
interest must be given effect notwithstanding the contrary state law.
This case is premised, in part, on an in rem action against the items which the plaintiff has brought up from the ocean for
a salvage award. An in rem action for a salvage award against artifacts recovered from the remains of a centuries-old
shipwreck states a claim within this Court's admiralty jurisdiction. Platoro Ltd., Inc. v. Unidentified Remains of a Vessel,
614 F.2d 1051, 1055 (5th Cir. 1980), citing Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing
Vessel, 569 F.2d 330 (5th Cir. 1978) (Treasure Salvors I).
A long tradition of federal maritime salvage law has grown out of the cases arising under the federal admiralty and
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
11/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
maritime jurisdiction. Among these are at least three principles which conflict irreconcilably with Florida's attempt to
govern the historically significant sunken cargo abandoned in the ocean within its territorial limits.
a. The Florida Statute Forbidding Exploration Except to Licensees Violates
Potential Salvors' Rights to Explore the Ocean for Salvageable Sites
Florida's statutory scheme violates the maritime law, which permits any potential salvor to search and explore the open
waters for salvageable goods. The right so to search is a fundamental adjunct to the American principle that the high
seas be freely navigable to all seafaring persons to navigate for pleasure or commerce, or otherwise to ply their trades.
See, e. g., United States v. California, 322 U.S. 19, 34, 67 S.Ct. 1658, 1666, 91 L.Ed. 1889 (1947) ("This country,
throughout its existence has stood for freedom of the seas, a principle whose breach has precipitated wars among
nations."); Gilmore and Black, The Law of Admiralty 535 (2d ed. 1975) ("When property has been abandoned or become
derelict, anyone may put himself forward as salvor"). Cf. United States v. Alaska, 422 U.S. 184, 199, 95 S.Ct. 2240, 2251,
45 L.Ed.2d 109 (1975) (freedom of fishing on the high seas).
Florida's Archives and History Act forbids any person "to conduct field investigations on any land owned or controlled by
the state or its departments ... or within the boundaries of any designated state archeological landmark or landmark zone
without first obtaining a permit or having first received from the division a notice to proceed ...." Section 267.13(1), Florida
Statutes (1979). As the Division has interpreted the law, "[s]tate lands include the submerged lands under the Atlantic
Ocean extending seaward from the Florida coastline for a distance of three geographic miles ...." See Warning Against
Unauthorized Exploration and Salvage, issued by the Florida Marine Patrol, June 23, 1981, File Item # 177, Exhibit B of
Plaintiff's Application for Temporary Restraining Order and Motion for Preliminary and Permanent Injunction and Other
Relief. Thus, as the above-cited warning indicates, Florida purports to outlaw both exploration and salvage on the
navigable waters of the ocean within the three-mile territorial limit by persons who are not licensed by the State. See
also Fla.Admin.Reg. § 1A-31.01, .12.
The requirement that one be licensed to be able to explore the ocean for abandoned property at the bottom contravenes
the maritime law principle that potential salvors be free to explore the open waters. While salvage law will permit one
whose salvage efforts are continuous and reasonably diligent to work a wrecksite, once discovered, to the exclusion of
others, see discussion in Section III.A.1.b., infra, until discovery and subsequent dominion of the site occurs, no one may
be restricted from exploring the navigable waters for salvageable sites. In this aspect, the Florida act and regulations are
contrary to established maritime law.
Although Quest claims possession of the wreck under the color of title conferred by the State's lease, it did not invoke the
204
Federal Court's jurisdiction for a salvage *204 award for the few items it salved.[13] Further, this Court finds that Quest's
possession and salvage operations were insufficient to give it the type of right to exclude competing salvors required by
federal maritime law. See Section III.A.1.b., infra. Hence, Cobb Coin had the right under federal maritime law to search
and salve the Corrigan site, and to discover, and pull up that first cannon and all subsequent artifacts which have, in this
proceeding, been brought before the Court.
b. Under the Florida Licensing Scheme, Unmeritorious Salvors May be
Granted Exclusive Rights to Salve in Contravention of the Maritime Law
Florida's regulatory program violates the uniform maritime law by permitting its licensees exclusive rights to salve an
area regardless of the licensee's diligence or success. As recognized by the Fifth Circuit in Treasure Salvors III, it is
axiomatic that "the law of maritime salvage and finds ... protects the right of a salvor who undertakes a project to carry it
to completion without interference from others who seek to share in the enterprise and the reward ...." 640 F.2d at 567.
However, in order to enjoy a continued right to exclusive possession, the salvor must exercise due diligence and be
reasonably successful in his attempts to save the subject property.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
12/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Under the maritime rule, in order for a salvor to receive an exclusive right to salve a wreck site
the salvor must manifest an intent to reduce the property to physical possession by dealing with the wreck
as a whole in a way that would tend to warn, if not exclude, subsequent salvors.
Most courts have required the presence of an intent to possess, and although not insisting on physical
possession, do seem to demand an actively exploitative approach by the would-be salvor.
Lawrence, State Antiquity Laws and Admiralty Salvage: Protecting Our Cultural Resources, 32 U.Miami L.Rev. 291, 295
(1978) (citations omitted). As the Fifth Circuit has stated:
A salvor ... has a valuable interest in his salvage operation which the law protects by vesting in the salvor
certain rights. Among the most important of these rights are the right to exclude others from participating in
the salvage operations, so long as the original salvor appears ready, willing and able to complete the
salvage project.
Treasure Salvors III, 640 F.2d at 567.
Thus, one who discovers, yet does not assiduously undertake to rescue, abandoned property may lose his right to
uninterrupted salvage operations. The case of Brady v. S.S. African Queen, 179 F.Supp. 321 (E.D.Va.1960) is illustrative
of this point. In Brady, the intervening libellant, Warner, based his claim solely on the strength of having first boarded the
stern of an abandoned vessel which had broken in half while sinking. He had run an advertisement in the Salisbury
Times asserting his alleged "lawful right of sole and exclusive possession of the entire vessel, when, in fact, Warner had
not been within two miles of the bow section at the time." Id. at 323 (emphasis in original). The Court refused to
recognize Warner's interest, concluding that:
205
A salvor cannot assert a claim merely by boarding a vessel and publishing a notice, unless such acts are
coupled with a then present intention of conducting salvage operations, and he immediately thereafter
proceeds with activity in the form of constructive steps to aid the distressed property. When he finally
determines that he will, in good faith, conduct such operations and pursues his constructive steps, he is
then, and only then, in a position to assert his claim subject to the rights of others which may have
intervened *205 while he is exploring the prospects of such operations.
Id. at 324.
In Eads v. Brazelton, 22 Ark. 499 (1861), as in Brady, the intervening libellant was a salvor who had first been at the
salvage site. In Eads, the intervenor, Brazelton, had attached a buoy to a weight resting on the wreck, a sunken barge in
the Mississippi River, thus indicating his apparent intention to return to the site. However, Brazelton failed to return until
some nine months later, because, after being distracted by a different salvage project, he was impeded in his return to
the site by a rise in the river. While Brazelton was finally on his way back, Eads's salvage vessel overtook Brazelton's,
and, arriving first at the site, Eads stationed his boat over the barge and began to raise its cargo of lead.
The Arkansas Supreme Court, rejecting Brazelton's claim to the cargo recovered by Eads, reasoned that, although
Brazelton had indicated the wreck site and had intended to return to conduct salvage operations, he failed to "[attain] to
the possession of the wreck," and "therefore had no title to it by occupancy." Id. at 511. In so concluding, however, the
court emphasized that, had Brazelton "merely placed `his boat over the wreck, with the means to raise its valuables, and
with persistent efforts directed to raising the lead,' he would have been deemed to have a legally protected possessory
interest in the wreck and Eads would have had no right to interfere with that possession by undertaking his own salvage
operations." Treasure Salvors III, 640 F.2d at 571, quoting Eads v. Brazelton, 22 Ark. at 511.
As demonstrated in Brazelton and Brady, the rights of a "first finder" who abandons his claim inure to the benefit of any
finder who diligently undertakes the salvaging operation. "Notorious possession, with the avowal of the object of such
possession, are cardinal requisites to the creation or maintenance of the privileges of a salvor. Where they do not exist,
any person may take the property with all the advantages of the first finder." Marvin, A Treatise on the Law of Wreck and
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
13/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Salvage, 138 (1858).[14]
The federal maritime rules governing salvors' rights are fair and flexible. According to the Fifth Circuit, "equitable
considerations come into play in determining the legal protection afforded a finder." Treasure Salvors III, 640 F.2d at 573.
Thus, for example, if a salvor vacates a site for any legitimate reason with an intention to return with reasonable
diligence, that absence will not result in the forfeiture of a finder's rights. As Judge Marvin said in his 1858 treatise:
Persons who have taken the actual possession of a derelict with the means and for the purpose of saving
it, do not lose their right of possession by temporarily leaving it with an intention of returning and resuming
the actual possession. But their absence must be with an intention of returning, and strictly temporary and
for a justifiable cause, otherwise they will lose their right to prior possession. They acquire no right of
possession, which they can maintain by a kind of continued claim, by discovery merely, without keeping
the thing in possession, or applying constant exertions for the preservation and rescue.
W. Marvin, supra at 137-38.
206
In Rickard v. Pringle, 293 F.Supp. 981 (S.D.N.Y.1968), the court recognized Rickard's continued right as first finder to
exclusive occupancy of the wreck site where he had left the location of the sunken steamship solely for the purpose of
obtaining equipment capable of raising the propeller which he had already successfully detached. While Rickard was
gone, Pringle moved in with effective equipment and hauled off the propeller, which he then sold. The court upheld
Rickard's claim for the proceeds, finding that despite his temporary absence, Rickard was "successfully prosecuting the
salvage operation and did not *206 abandon it at any time and thus was entitled to the rights of a first salvor legally in
possession." Id. at 984.
Comparing these principles with the State licensing program, it is readily apparent that, at least for the period of his lease
with the State, a salvor's diligence in conducting his operations is irrelevant to his continued exclusive right to work a
particular wreck site. Contrary to federal salvage principles, after an initial assessment of a prospective salvor's apparent
abilities, the State's lessee is permitted sole occupancy of a wreck site regardless of his diligence.
In order to claim an exclusive right to conduct salvage operations on a particular site, it is a further requisite, under
federal maritime law, that a salvor be able to render effective assistance to the distressed property. In other words, in
order to maintain exclusive possession, a salvor must be not only willing and diligent, but capable of actually saving the
goods. See generally 3A Benedict on Admiralty §§ 150-54.
Thus, while the first salvor is normally favored under federal salvage principles, he may lose that advantage by his
failure to complete the task undertaken. Id. at 152. An English case, The American Farmer, 80 Ll.L.Rep. 672 (1947),
exemplifies this principle. There, "the first salvor was willing in spirit, but not capable in fact of successfully rescuing the
distressed property." 3A Benedict on Admiralty § 153 at p. 11-7.
The American Farmer was an 8000-ton vessel which was left derelict after colliding with another vessel in the North
Atlantic. The Farmer had not yet sunk when it was discovered by the crew of the 2000-ton steamship Elizabete. The crew
began operations to save the disabled vessel by putting some of her members aboard the Farmer and attaching lines for
the purpose of towing it. During the course of these efforts, however, a sistership of the Farmer, The American Ranger,
arrived, and several members of that vessel's crew also boarded the Farmer. Even though the Elizabete was already
towing the Farmer at a speed of two knots, the Ranger's crewmen, familiar with the Farmer's mechanism, were able to
raise steam and get the Farmer into reasonable working order. They then attached lines from the Ranger to the Farmer,
severed the lines from the Elizabete, and proceeded, in her stead, to tow the Farmer into port. The Elizabete's master
thereafter sought full recovery for the Farmer's salvage, taking the position that having gotten possession of the derelict
vessel he was entitled to retain possession against all comers:
While that attitude was understandable to the court, it was held, however, that the Elizabete was
inadequately provisioned with fuel so that she would not have been able to complete the tow before
running out of steam. The court alluded to the principle that a subsequent salvor is not entitled to
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
14/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
dispossess a prior salvor if the prior salvor has a reasonable prospect of accomplishing the salvage
service himself and is not endangering the safety of the salved property. Under the circumstances in this
case, the master and crew of the American Ranger were entitled to take over the rescue of the Farmer,
even to the extent of cutting the Elizabete's lines. Rewards were granted to the officers and crew of both
the Elizabete and the American Ranger.
3A Benedict on Admiralty § 153 at p. 11-8.
Florida's statutory and regulatory salvage scheme is inconsistent with these principles. Under the State's leasing
program, once a salvor is preliminarily approved by the Division, the exclusive right to salvage he acquires is
safeguarded regardless of his subsequent success, or lack thereof, during the period of the lease. Such a result is
contrary to admiralty's "diligence" ethic, which underlies a policy of encouraging the careful, effective, and expeditious
retrieval of goods which have been abandoned at sea.
207
The facts in this case aptly demonstrate how the State regulatory system impedes the avowed goals of the statute, and
the goals of the maritime law. The State's lessee, Quest Corporation, had the exclusive right to work the Corrigan site,
which right the State was willing to back up with the muscle of its criminal law enforcement system. *207 Yet the
evidence shows that Quest actually worked the site only forty-nine (49) days in two years. Moreover, Quest's salvors
chose to work other sites in the area, consciously ignoring Corrigan's Site despite beneficial salving conditions on a
number of occasions. When it did attempt to work Corrigan's, it was notably unsuccessful in bringing up treasure or other
items of historical or archeological significance. Quest's demonstrated indifference toward working the Corrigan Site
proves better than any theoretical discussion that the application of maritime principles most ably serves society's
interests in producing lost or abandoned property for the benefit of commerce and culture. See also Section III.C. and D.,
infra.
c. Florida's System of Fixed Salvor Compensation Conflicts with
Admiralty's Flexible Method of Remuneration Based on Risk and Merit
Florida's regulatory scheme conflicts with federal maritime law in a third aspect — i. e., in the designated method for
determining salvage awards. The statute is silent about the share of sunken artifacts that salvors will receive. The
regulations implementing the statute provide that all such artifacts "belong to the State of Florida, and payment for the
recovery of such material shall be made in accordance with the contracts entered into by the Division." Fla.Admin.Reg. §
1A-31.09. The evidence shows that most contracts provide for a 75%-25% division between the salvor and the State.
This aspect of Florida's regulatory scheme conflicts with the maritime law's flexible and equitable approach to
compensating salvors.
The plaintiff, in seeking a salvage award for the cannon it pulled up on August 20, 1979, properly invoked the admiralty
jurisdiction of this Court. Under traditional salvage rules, the salvor receives a lien against the salved property, The
Sabine, 101 U.S. 384, 25 L.Ed. 982 (1879); 3A Benedict on Admiralty §§ 137, 143, at pp. 10-1, 7; Gilmore and Black, The
Law of Admiralty 628 (2d ed. 1975), and is usually entitled to his expenses plus a salvage award, see Gilmore and
Black, id. § 8-9, at 562-63 and cases cited therein at n. 92. "It is basic that more than a quantum meruit is involved;
salvors are to be paid a bonus according to the merit of their services." Id.[15] Awards vary according to a judge's
"conclusion that the salvage service was of `high order,' `medium order,' or `low order' ...." Id. In the case of abandoned
property, the entire value of the salved property may be awarded a salvor. Id. at § 8-10, p. 563 and n. 92a.[16] The
consistent policy underlying admiralty's salvage awards is that salvors will be liberally rewarded. Admiralty holds out a
continuing incentive to undertake the physical and financial risks entailed in salvage operations and to bring the
property thus recovered into court for a salvage determination. Marine treasure salvors — whether in the Gulf of Mexico,
the North Atlantic, or the Gulf Stream, whether within or beyond state territorial waters — are well aware of this policy,
and are guided by its constancy.
This Court need not now decide whether a 75%-25% split is appropriate under these, or any other, circumstances. Such
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
15/38
3/29/2016
208
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
an allocation could conceivably be unfair to either *208 the salvor or the claimant, depending on the effort and costs
expended by the salvor, and the nature or value of the salved items before the court.[17] As stated by Judge Marvin:
The value of the property saved is often an important ingredient in determining the amount of salvage.
The remuneration to the salvor and benefit to the owner are always larger where the property that
receives assistance is large than where it is small; and vice versa. The rule of decision is, not a
proportion, although the amount may be and often is expressed in that form in the decree, but an
adequate reward. Where the value of the property is small and the services great, an adequate reward
cannot always be given; but where the value is large, it may be given without casting a heavy burden
upon the property. In many cases, where the value is known to be large and the service small, a proper
remuneration may be made without ascertaining the precise value.
W. Marvin, A Treatise on the Law of Wreck and Salvage, 122-23 (1858).
Further, apportionment of salvage is "often varied according to circumstances, so as to reward superior zeal, energy, and
gallantry, and to discourage indifference and selfishness." Id. at 248. Thus, the relative merit of the salvor's endeavors
enters into the Court's application of the "peculiar system awarding the compensation" in salvage actions:
As salvage is a compensation for meritorious services, it may properly be increased, diminished, or
wholly forfeited, according to the merit or demerit of the salvor, in his relation to the property saved. In the
case of Schooner Boston, in which the salvor was charged with embezzlement of the goods while in the
marshal's custody, Justice Story said: "I take it to be very clear, according to the course of admiralty
proceedings, that no person can come into that court and ask its assistance, unless he can, ex aequo et
bono, make out a case fit for its interposition. A court of admiralty is to the extent of its jurisdiction, at least
in cases of this sort, a court of equity; and the same applies here, as in other courts of equity; that the party
who asks aid, must come with clean hands. In cases of salvage, the party finds himself upon a meritorious
service, and upon the implied understanding, that he brings before the court for its final award all the
property saved, with entire good faith; and he asks a compensation for the restitution of it, uninjured and
unembezzeled by him. The merit is not in saving the property alone, but in saving it and restoring it to the
owners. The compensation to be awarded, therefore, presupposes good faith, meritorious service,
complete restoration, and incorruptible vigilance, so far as the property is within the reach, or under the
control of the salvors. What claim could be more extraordinary than an annunciation by a salvor in a court
of justice, that he had saved the property, and had afterwards a gross fraud or theft upon the owner, for the
purpose of withdrawing the property from his; and then to ask in the same breath for a compensation for
his labor, notwithstanding his iniquity? Such a claim, it seems to me, would be at war with the first
principles of justice, and certainly with those of all maritime jurisprudence."
Id. at 226-27, citing 1 Sumner, 341.
Thus, there can be no suggestion that federal admiralty procedures sanction salvaging methods which fail to safeguard
items and the invaluable archeological information associated with the artifacts salved. Admiralty's policy of weighing the
merit of the salvors' service in determining an appropriate award has, since the establishment of the federal courts, been
"a wholesome doctrine, and it makes it the interest, as well as the duty, of salvors to act with good faith, and never to
sleep on their posts, or to make a merit of their frauds." W. Marvin, supra, at 227.
209
*209 2. Even Under the Strict Interest Balancing Test of Kossick v. United
Fruit Co., the Federal Interest in a Uniform Maritime Law Requires that
Federal Salvage Law, Not the State Statute, be Applied in this Case.
In summary, the Florida regulatory scheme conflicts directly with at least three characteristic features of the federal
maritime law. Jensen and its progeny, even as perhaps modified by later cases and criticism, require that the maritime
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
16/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
principles govern in the case of such a conflict. It is also clear that the federal interest in protecting those maritime rights
outweighs the federalism considerations that ordinarily call for every presumption in favor of enforcing state statutes. The
Supreme Court's analysis in Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961), although
probably stricter than is required in this case, is nonetheless instructive in this matter.
In Kossick, the Court held that an action on an oral contract by a ship's steward against his employer was governed by
the maritime rule validating oral contracts, not the state statute of frauds, when the contract arose out of the employer's
federal duty to provide the steward with maintenance and cure. It recognized that a balancing process is appropriate in
the case of a conflict between remedies available for the enforcement of a federal right, requiring a weighing of the
possible interference with federal uniformity against the importance of the state's interests:[18]
Although the doctrines of the uniformity and supremacy of the maritime law have been vigorously
criticized — see Southern Pacific Co. v. Jensen, supra, 244 U.S. at page 218, 37 S.Ct. at page 530
(dissenting opinion); Standard Dredging Corp. v. Murphy, 319 U.S. 306, 309, 63 S.Ct. 1067, 1068, 87
L.Ed. 1416 — the qualifications and exceptions which this Court has built up to that imperative doctrine
have not been considered notably more adequate. See Gilmore and Black, Admiralty, passim; Currie,
Federalism and the Admiralty: "The Devil's Own Mess," 1960, The Supreme Court Review, 158; The
Application of State Survival Statutes in Maritime Causes, 60 Col.L.Rev. 534. Perhaps the most often
heard criticism of the supremacy doctrine is this: the fact that maritime law is — in a special sense at least,
Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 — federal law
and therefore supreme by virtue of Article VI of the Constitution carries with it the implication that wherever
a maritime interest is involved, no matter how slight or marginal, it must displace a local interest, no matter
how pressing and significant. But the process is surely rather one of accommodation, entirely familiar in
many areas of overlapping state and federal concern, or a process somewhat analogous to the normal
conflict of laws situation where two sovereignties assert divergent interests in a transaction as to which
both have some concern.
Kossick, 365 U.S. at 738-39, 81 S.Ct. at 892.
In Kossick, a number of considerations justified the application of maritime law. First, the contract under consideration by
the Court was presumed to be valid, as it had been entered into voluntarily, rather than in fulfillment of any governmentimposed obligation. This case has no parallel consideration, except perhaps for the general presumption that state
statutes are valid. This Court recognizes that presumption and validity to the extent not in conflict with the paramount
federal law.
210
Second, the Court considered that, as sailors of any nationality could join a ship in any port, the validity of agreements
arising from maritime employment should be judged by one uniform law, regardless of where the agreement was made.
Similarly, the happenstance of geographical location is not sufficient to justify a proliferation of rules governing the
salvage of historic artifacts *210 lying beneath the navigable seas of this country. One law should govern a salvor's
rights, whether the winds of fate have dashed a particular ship's hopes on the New England rocks, on the coral reef, in
the Bermuda Triangle, or in the sandy bottom near Florida's Sebastian Inlet. And certainly, the rules governing a salvor's
rights to search and be rewarded should not depend upon the historical accident whereby a ship's remains and cargo —
often, over two centuries before — have come to rest either inside or outside what later became a particular state's threemile territorial boundary. Given the admiralty court's equitable power to fashion relief appropriate for safeguarding the
individual interest which a state might seek to obtain through its laws, See Section III.A.1.c., supra, the uniform maritime
rights accorded salvors should not be denied.
In the third consideration in Kossick, the Court noted that the contract at issue was not "peculiarly a matter of state and
local concern," 365 U.S. at 741, 81 S.Ct. at 893.[19] That is, New York's interest in not lending her courts to the
accomplishment of fraud was insufficient to overcome the countervailing federal considerations. In this case, Florida's
interest is in obtaining and preserving cultural and historic artifacts. This requires successful salvage operations by
qualified and honest salvors who properly record the location[20] of each artifact and who can be trusted not to secrete
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
17/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
salved items. But these interests are also the interests of the federal maritime law, and the federal courts can ensure their
protection while observing the paramount federal rights of salvors. As already mentioned, this Court recognizes that an
award to the State of a portion of the historically significant items brought here, to be preserved for the people, might be
appropriate. In the hearing on this motion, there was no evidence, nor even an allegation, that Cobb Coin is incompetent
or dishonest; it is, in fact, a very successful salvor, and it has brought the salved items into this Court as is required under
the admiralty law.[21] Beyond this case, maritime salvage rules in general provide for the protections about which Florida
is concerned. Under salvage principles salvors are required to bring their finds into court for a division, where they are
liberally rewarded for their honesty in so doing. See The Blackwall, 77 U.S. (10 Wall.) 1, 12, 19 L.Ed. 870 (1869). A
further requirement is that salvors be successful, or at least capable, in their efforts to salve a wrecksite, in order to
invoke the court's protection. The admiralty system is thus more productive because one must bring up items to remain
entitled to salve, and admiralty adequately protects against possible salvor dishonesty.[22]
Concluding its analysis, the Court in Kossick distinguished that case from cases which gave effect to state rules touching
maritime concerns. First, Kossick was not analogous to "cases such as Red Cross Line v. Atlantic Fruit [264 U.S. 109, 44
S.Ct. 274, 68 L.Ed. 582 (1924)], or Just v. Chambers [312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941)], where state law
had the effect of supplementing the remedies available in admiralty for the vindication of maritime rights." 365 U.S. at
211
741-42, 81 S.Ct. at 893-94. In Red Cross Line, the Court upheld the power of a state court to decree specific
enforcement of an arbitration clause in a maritime contract reasoning that such clauses are valid in admiralty and *211
that to compel arbitration was only to provide a remedy unavailable in admiralty. 264 U.S. at 123, 44 S.Ct. at 276-77.
Similarly, in Just v. Chambers, the Court applied a Florida statute providing for the survival of a wrongful death action
following the death of the tortfeasor in an admiralty action, holding that it worked no prejudice to the characteristic
features of the maritime law.
The distinction between such cases is even more stark in this case than in Kossick. The Florida statute does not
supplement federal remedies; it directly conflicts with and deprives salvors of a number of federal maritime rights. It
works material prejudice to the characteristic features of the maritime law which allows freedom to explore the high seas,
requires diligence on the part of salvors working a site, and rewards salvage efforts on a case by case basis depending
on the circumstances of the particular salvage services. To the extent it so interferes, the statute cannot be given effect by
this Court.[23]
This Court notes that the facts in Kossick involve a subject more closely related to the states' traditional common law
concerns — the enforceability of an oral contract — than the facts in this case. The claim of a salvor to an award from
items recovered from the ocean is uniquely maritime. Therefore, the Kossick analysis is arguably a stricter test than is
necessary in this case given Jensen's command. But even the application of the stricter Kossick interest balancing test
suggests the choice of federal law, and that reinforces this Court's conclusion that the maritime law must govern this
case.
3. This Case is Not Like Those Validating State Police Power Regulations
Which Merely Affect Maritime Concerns; Here the Florida Statute Interferes
With Substantial Existing Federal Maritime Rights.
This case does not fall within the class of cases validating states' exercises of their police powers notwithstanding some
impact on maritime concerns. Those cases have in common the following distinguishing elements. First, the rules there
considered pertained either to matters closely related to land or to health, safety, or other concerns within the state's
traditionally recognized police power. Second, and more importantly, in no such case did the rules in question directly
conflict with applicable federal principles.
In Skiriotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941), the Supreme Court upheld a Florida
criminal statute which proscribed the use of certain deep-sea diving apparatus for the purpose of taking commercial
sponges from the Gulf of Mexico. There was a federal statute governing the size of sponges that could be taken from the
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
18/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Gulf of Mexico, but it was silent as to the apparatus which could be used. The Court upheld Florida's power to
supplement Congressional legislation covering but a limited field, adding: "It is also clear that Florida has an interest in
the proper maintenance of the sponge fishery and that the statute so far as applied to conduct within the territorial waters
of Florida, in the absence of conflicting federal legislation, is within the police power of the state." 313 U.S. at 75, 61 S.Ct.
at 928.
Clearly, natural resource conservation is one of the areas in which the states have traditionally exercised broad police
powers. See discussion in Section III.A.4., infra. In Skiriotes, however, the statute did not conflict with any of the
recognized principles of maritime law. Thus, the Court's statement that "there is nothing novel in the doctrine that a State
may exercise its authority over its citizens on the high seas," 313 U.S. at 77, 61 S.Ct. at 929, is inapposite to the instant
case.
212
In Kelly v. Washington ex rel. Foss Co., 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1938), the *212 Court found state laws
regulating vessel safety and seaworthiness to be within the state's police powers. It held: "In such a matter, the state may
protect its people without waiting for federal action providing the state action does not come into conflict with federal
rules." 302 U.S. at 15, 58 S.Ct. at 94.
In Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960), the Supreme Court
held that Detroit's local pollution control laws were not preempted by less strict federal standards governing seagoing
vessels. The two sets of rules evaluated by the Court in that case sought to regulate different evils: the federal rules were
designed to promote navigational safety, while the local ordinance was designed to promote health and cleanliness. In
declining to invalidate the state scheme, the Court was persuaded by three pertinent factors. First, the Court recognized
health protection as among those interests generally considered to be within the states' traditional police powers:
The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city's
inhabitants. Legislation designed to free from pollution the very air that people breathe clearly falls within
the exercise of even the most traditional concept of what is compendiously known as the police power.
362 U.S. at 442, 80 S.Ct. at 815. Second, the Court concluded that "Congressional recognition that the problem of air
pollution is peculiarly a matter of state and local concern" had been manifested in federal pollution control laws. 362 U.S.
at 446, 80 S.Ct. at 817. Third, in the Court's judgment, the local ordinance imposed no undue burden on the uniformity
required for interstate commerce. 362 U.S. at 448, 80 S.Ct. at 818. The Court therefore upheld the law and affirmed a
shipper's conviction thereunder.
None of the considerations that governed Huron obtain in this case. Here, Florida's statute, unlike the local ordinance in
Huron, purportedly governs many of same activities already governed by existing maritime salvage rules. None of the
statutes cited by the State evidence an intent on the part of Congress to delegate the power to regulate salvage of
historic artifacts to the states. See Section III.A.4., infra. Further, the regulation of recovery of ancient artifacts is not as
traditional a matter within states' police power as are health and safety. Although the Supreme Court has recognized
historic preservation as a valid state concern, a state may not enact legislation in that area in such a way as to interfere,
as do portions of Florida's licensing statute, with the uniformity required by maritime law.
The most recent decision deferring to state law despite some overlap with federal maritime law is Askew v. American
Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973). The Court in that case upheld a Florida
statute which imposed a number of regulations on the oil trade, including strict liability "for any damage incurred by the
State or private persons as a result of an oil spill in the State's territorial waters from any waterfront facility used for
drilling for oil or handling the transfer or storage of oil (terminal facility) and from any ship destined for or leaving such
facility." 411 U.S. at 327, 93 S.Ct. at 1593.
After finding no conflict between the State law and any applicable act of Congress, the Court considered whether the law
was within the area in which "a State constitutionally may exercise its police power respecting maritime activities
concurrently with the Federal Government." 411 U.S. at 337, 93 S.Ct. at 1598. The Court determined that the state
regulation was valid as one "traditionally within the competence of the States," after concluding there was no "clear
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
19/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
conflict with the federal law." 411 U.S. at 341, 93 S.Ct. at 1600.
Unlike the statute here involved, the state rules at issue in American Waterways (as in other cases where state law has
been applied) governed matters well within the traditional concepts of the state's police power, and did not interfere with
213
the operation of federal law. The Court in American Waterways expressly relied upon the Huron *213 and Kelly
decisions in focusing on the relation of the pollution control laws to the traditional police power, 411 U.S. at 343, 93 S.Ct.
at 1601, and indicating the absence of a conflict with federal principles, 411 U.S. at 342, 93 S.Ct. at 1600.
Construed most favorably toward the State, American Waterways stands for the proposition that a state law relating to
subjects within its police power and otherwise not preempted
is valid unless the rule of Jensen and Knickerbocker Ice is to engulf everything that Congress chose to
call "admiralty", preempting state action. Jensen and Knickerbocker Ice have been confined to their facts,
viz., to suits relating to the relationship of vessels, plying the high seas and our navigable waters, and to
their crews.
411 U.S. at 344, 93 S.Ct. at 1601. Thus, under the broadest reading of American Waterways, it may be said that the line
of cases in which a negative implication in the admiralty clause was found to invalidate state laws even in the absence of
a pertinent federal rule has been overturned. See, e. g., Currie, Federalism and Admiralty: The Devil's Own Mess," 1960,
The Sup.Ct. Rev. 158, 170-71; Robertson, Admiralty and Federalism 187 (1970). No such void exists here; the salvage
principles with which the state statute conflicts are well-established in the maritime law. Federal salvage law is central to
the body of "customs and ordinances of the sea" recognized by even the most ardent critics of Jensen, 244 U.S. at 220,
37 S.Ct. at 530 (Holmes, J., dissenting), and must preempt inconsistent state laws. See Black, Admiralty Jurisdiction,
Critique and Suggestions, 50 Colum.L. Rev. 259, 275 (1950). See also Treasure Salvors III, 640 F.2d at 567 ("the
principles of salvage are part of the jus gentium, i. e. the international maritime law ....").
The Court in American Waterways concluded: "Jensen thus has vitality left. But we decline to move the Jensen line of
cases shoreward to oust state law from any situations involving shoreside injuries by ships on navigable waters." 411
U.S. at 344, 93 S.Ct. at 1601. The Court's express reticence to upset a state's exercise of its recognized police powers —
particularly regarding activities affecting the land — does not come into play in this case. This case concerns cargo of
once-seagoing vessels now lost beneath the navigable waters, and the right of salvors to search for and rescue those
items and to be rewarded for their efforts. Where, as here, the federal rules applicable to the field are clear and wellestablished, Jensen and its progeny require that inconsistencies in state laws be supplanted by the federal maritime law.
4. Under Applicable Maritime Principles of Salvage and the Law of Finds,
Cobb Coin Has Met its Burden in Demonstrating Likelihood of Success on
the Merits.
Under the prevailing "American" rule regarding ownership of lost or abandoned property, in the absence of an express
statutory claim by the sovereign, abandoned goods successfully recovered become the property of the salvor.[24] See
generally Lawrence, State Antiquity Laws and Admiralty Salvage: Protecting our Cultural Resources, 32 U.Miami L.Rev.
291, 298-99 (1978), citing United States v. Tyndale, 116 F. 820, 823 (1st Cir. 1902); Murphy v. Dunham, 38 F. 503, 509-10
214
(E.D.Mich.1889); Russell v. Forty Bales of Cotton, 21 F.Cas. 42, 48-50 (S.D.Fla.1872) (No. 12, 154); Thompson v. United
States, 62 Ct.Cl. 516, 524 (1926). In Treasure Salvors, Inc. v. The *214 Unidentified Wrecked and Abandoned Sailing
Vessel, 569 F.2d 330 (5th Cir.1978) (Treasure Salvors I), the Fifth Circuit, in considering the United States' asserted
ownership of an abandoned and wrecked sailing vessel located on the Continental Shelf, held that the United States
had not made the required statutory claim. It found that neither the Antiquities Act, 16 U.S.C. §§ 431-433, the Abandoned
Property Act, 40 U.S.C. § 310, nor the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356 manifested an intent
by the sovereign to claim ownership of such ancient abandoned sailing vessels. Now, with respect to the remains of a
vessel admittedly within Florida's territorial waters, the State seeks to fill the perceived gap by asserting that it owns and
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
20/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
has plenary authority to administer abandoned property lying on the lands underlying the ocean within its territorial
boundaries. In so doing, the State claims that its statute supercedes the plaintiff's federal right to a salvage award.
There are certain areas of concurrent maritime state and federal jurisdiction in which the state is free to assume authority
in a manner not inconsistent with federal rules. The protection of natural resources for environmental or health and food
purposes is one such area of mutual concern. In Manchester v. Commonwealth of Massachusetts, 139 U.S. 240, 11 S.Ct.
559, 35 L.Ed. 159 (1891), for example, the Supreme Court held that a challenged fishing regulation was within the
state's power to enact, stating:
[In Smith v. Maryland, 18 How. 71, 74 [59 U.S. 71, 15 L.Ed. 269] Mr. Justice Curtis, on the question of
admiralty jurisdiction, said:] "[W]e consider it to have been settled by this Court in U. S. v. Bevans, 3
Wheat. 336 [16 U.S. 336, 4 L.Ed. 404] that [the Admiralty Clause] did not affect the jurisdiction nor the
legislative power of the states over so much of their territory as lies below highwater mark, save that they
parted with the power so to legislate as to conflict with admiralty jurisdiction or the laws of the United
States."
139 U.S. at 261, 11 S.Ct. at 563 (emphasis added). In Manchester, the Court, recognizing that there was no extant body
of federal law regarding the regulation of fisheries, concluded that the right to control "exist[ed] in the state in the
absence of the affirmative action of Congress taking such control," 139 U.S. at 266, 11 S.Ct. at 565; thus, the state courts
were competent to enforce such right.
In salvage cases, however, at least one Florida court has denied that the state courts have concurrent jurisdiction. The
District Court of Appeal, Third District, stated that "[s]alvage being a matter peculiarly within the jurisdiction of the
admiralty courts because, inter alia, of the peculiar system awarding the compensation, we hold that the trial court
correctly dismissed the instant salvage action." O'Neill v. Schoenbrod, 355 So.2d 440 (Fla.3d DCA 1978) (emphasis
added). Further, there are substantial federal rights which the operation of Florida's statute would impede. The State,
therefore, cannot rely upon the concurrent jurisdiction concept in support of its position.
The State's reliance, in part, on the operation of the Submerged Lands Act to support its asserted right to govern salvage
operation off its coast to the exclusion of federal law is similarly ill-founded. The Submerged Lands Act of 1953 "grant[ed]
to the State `title to and ownership of the lands beneath navigable waters within the boundaries of the respective
States.'" United States v. California, 381 U.S. 139, 145-146, 85 S.Ct. 1401, 1405, 14 L.Ed.2d 296 (1965). The Supreme
Court, in assessing the Act shortly after its passage, commented:
[T]he Act effectively grants each State on the Pacific Coast all submerged land shoreward of a line three
geographical miles from its "coast line", derivatively defined in terms of "the seaward limit in inland
waters." "Inland waters" is not defined by the Act.
215
In a later measure related to the Submerged Lands Act, Congress declared that the United States owned
all submerged *215 land in the continental shelf seaward of the lands granted to the States. Outer
Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. § 1331 et seq.
381 U.S. at 148, 85 S.Ct. at 1407.
Through the Submerged Lands Act, Congress sought to "undo the effect of [the Supreme Court's] decision in United
States v. California, 332 U.S. 19 [, 67 S.Ct. 1658, 91 L.Ed. 1889] ...." 381 U.S. at 146, 85 S.Ct. at 1405. In that case, the
Court had addressed the then pressing question of "whether the state or Federal Government had the paramount right
and power to determine in the first instance when, how, and by what agencies, foreign or domestic, the oil and other
resources of the soil of the marginal sea, known or hereafter discovered may be exploited." In the first California opinion,
the Court had concluded that "the Federal Government rather than the state has paramount rights in and power over that
belt, an incident to which is full dominion over the resources of the soil under the water area, including oil." More
specifically, the Court, while conceding that the state had been "authorized to exercise local police power functions in
the part of the marginal belt within its declared boundaries," held that:
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
21/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
The United States of America is now, and has been at all times pertinent hereto, possessed of paramount
rights in, and full dominion and power over, the lands, minerals and other things underlying the Pacific
Ocean lying seaward of the ordinary low-water mark on the coast of California, and outside of the inland
waters, extending seaward three nautical miles * * *. The State of California has no title thereto or property
interest therein.
United States v. California, 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382 (1947).
The "paramount rights" of the federal government, however, were thereafter ceded to the states through the Submerged
Lands Act of 1953. See United States v. California, 436 U.S. 32, 98 S.Ct. 1662, 56 L.Ed.2d 94 (1978). But the nature of
the question posed first to the Court and later to Congress strongly suggests that neither ensuing pronouncement
contemplated an ouster of federal maritime jurisdiction over and application of federal principles to traditional salvage
claims. Rather, it is apparent that the disposition of natural resources in the submerged land of the three-mile tidal belt —
and hence, the right to determine who could enter into leases regarding oil well activity — was the subject of both the
Court's decree and the legislature's subsequent enactment.
This interpretation is supported by the Fifth Circuit's recent analysis of the United States' "paramount rights" in the Outer
Continental Shelf lands. "In the Outer Continental Shelf Lands Act, `Congress emphatically implemented its view that the
United States has paramount rights to the seabed beyond the three-mile limit.' [United States v. Maine, 420 U.S. 515,
526 [95 S.Ct. 1155, 1161, 43 L.Ed.2d 363] (1975)]." Treasure Salvors I, 569 F.2d 330, 338 (5th Cir. 1978). As stated
earlier, the Supreme Court viewed the Continental Shelf Lands Act, companion to the Submerged Lands Act, as a
declaration of the United States' ownership of "all submerged land in the continental shelf seaward of the lands granted
to the States." The Fifth Circuit, cognizant of the historical backdrop to the Continental Shelf Lands Act, has interpreted
that the United States' ownership interest, or "paramount rights," pertains only to natural resources, and not to historic
wreck sites, discovered on continental shelf land. See Treasure Salvors I, 569 F.2d at 338-40.
Now the sovereign State of Florida, by statute, claims plenary authority over the sunken artifacts, derivatively through the
Submerged Lands Act. This Court agrees with the Fifth Circuit's parallel analysis, however, that "a limited construction of
the Act comports with the primary purpose of resolving competing claims to ownership of the natural resources of the
offshore seabed and subsoil." 569 F.2d at 339. Accordingly, this Court concludes that the Submerged Lands Act does not
216
empower the State, through legislation which purports to derogate both federal jurisdiction and the application of
admiralty principles, *216 to lay claim to abandoned wreck sites within the three-mile limit recognized under that Act.
However, just as the Supreme Court has recognized the Federal Government's express retention of certain interests in
submerged lands not premised on the "paramount rights" acknowledged in the first California opinion, this Court
recognizes the State's articulated interest in ancient artifacts found within her territorial waters — an interest not
grounded in the "paramount rights" acquired under the Submerged Lands Act. It arises, rather, out of recognition that
Florida, as trustee for her citizens of the cultural heritage of their state, maintains an interest in all finds of historical
significance within her territory. While this interest may not serve to abrogate either the operation of federal jurisdiction or
the application of traditional admiralty principles in the disposition of maritime salvage claims, neither is that interest
vitiated where historically significant artifacts are discovered on an ocean, rather than a terrestrial, site.
In summary, then, while the matter of a fitting salvage award to the salvors here involved remains for disposition at trial,
this Court concludes that the plaintiff has satisfied its burden of proof regarding likelihood of success on the merits. The
interest recognized on behalf of the State is not one which would bar a proper salvage award for the plaintiff's services in
restoring to the mainstream of commerce and culture these historically invaluable goods left abandoned to the sea.
While a portion of the artifacts recovered by the plaintiff would be set aside for the State for purposes of display[25], and
while the State's interest warrants the participation of her agents in safeguarding the preservation of artifacts and
collection of archeological data, because the remainder would be awarded to the successful salvor, the Court finds and
concludes that Cobb Coin, Inc. has demonstrated a likelihood of success on the merits.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
22/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
B. The Movant, Cobb Coin, Will Suffer Irreparable Injury Unless An
Injunction Issues
The second element which the movant must demonstrate is that it will suffer irreparable injury in the absence of the
requested injunction. The evidence presented at the eleven-day hearing manifestly demonstrates the irreparable harm
Cobb Coin and its agents will suffer if Florida is not enjoined from enforcing its statute. The State's insistence on
enforcing its Archives and History Act by arresting Fisher's men at the Corrigan Site despite the pendency of this Federal
Court proceeding injures Cobb Coin by coercing its employees to desist from the salvage operations which are being
conducted under the auspices of this Court. Because of that harassment, the plaintiff's salvors are being deterred from
salving. Such a denial of opportunity may result in many objects never being recovered; that damage constitutes classic
irreparable injury, both to the plaintiff and to the public welfare.
217
As is detailed above in the procedural history of the case, the State's agents have repeatedly attempted to execute the
criminal processes of the State against Cobb Coin and its agents and employees. Since this Court's July 7th temporary
restraining order, the parties have presented evidence at a hearing on the plaintiff's motion for a preliminary and
permanent injunction. At the Miami Courthouse, on August 4, 1981 (the fifth full day of hearings on the motion), the
plaintiff's counsel notified the Court that a warrant had been issued for the arrest of two of the plaintiff's employees. This
Court, cognizant that criminal prosecution is a matter within the prerogative of the State's executive branch, and
determined, if possible, to avoid a confrontation between the State and Federal legal systems, asked counsel for the
State to see whether the Attorney General would voluntarily desist in pursuing the plaintiff's agents during this Court's
disposition of the injunction motion. The Court recessed for *217 three hours to allow the State's counsel to make the
necessary phone calls. After lunch, counsel for the State told the Court that he had informed the responsible executive
authority of the Court's wishes, but that the State's officers continued to assert the supremacy of its statutory scheme
despite the ongoing litigation in this Court, and that they intended to pursue the criminal prosecution notwithstanding the
pending Federal Court proceeding. The evidence showed that at least two of Cobb Coin's divers engaged in working the
Corrigan Site were intentionally staying out of St. Lucie County to avoid being served with arrest warrants. They, and all
the plaintiff's salvors, are not working the site in order to avoid being arrested. For that reason, the plaintiff, during the
course of the hearing, renewed its motion for an Order to Show Cause why the State's agents should not be held in
contempt.
It is obvious that the constant attempts by the county sheriff, his deputies, and the Marine Patrol officers to prosecute the
plaintiff's agents for, and thereby prevent them from, active salvage efforts, are a source of irreparable injury. The attempt
to enforce the State's criminal law in interference with this Court's exercise of its jurisdiction would, in itself, be sufficient
injury to warrant the requested injunction. By preventing Cobb Coin from salving under the express permission of this
Court, the State's agents impose on the plaintiff still further irreparable injury. As detailed in the Order of 7 July 1981,
Cobb Coin is forced, during the period of deferment, to pay for, yet forego, the use of highly specialized and expensive
salvage vessels and crew people. Further, Cobb Coin may, in its absence, lose control of the site to other salvors who,
without this Court's supervision, could conduct salvage operations indiscriminately.
Finally, and perhaps most importantly, if the injunction does not issue, the plaintiff must forego absolutely irretrievable
and uncompensable time that it would otherwise spend salving the wreck site. Every day lost in the salving effort means
fewer artifacts recovered for the benefit of society. Moreover, any of the natural phenomena that befell these ill-starred
galleons over the past two hundred sixty-six years could yet move their cargo some yards in any direction, or deeper
under the sand. At any moment, the value of all of the plaintiff's monumental discovery and charting efforts could be
destroyed by one of the dozens of tropical storms or hurricanes that undoubtedly will churn the warm Atlantic waters off
Florida's coast between June and October, and the loss of that information would irreparably harm not only the plaintiff,
but all parties interested in recapturing and preserving the historic treasures of the 1715 fleet. Clearly, the movant will be
irreparably harmed if the injunction does not issue.
C. The Threatened Injury To The Movant Outweighs Whatever Damage The
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
23/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Injunction May Cause The Parties Opposed
If the proposed injunction does not issue, the injury to the movant Cobb Coin would far outweigh any damage that might
accrue to either the State or Quest Corporation. In fact, as shown above, the denial of the injunction would greatly injure
the movant, while the issuance of the injunction simply would not materially damage either the State or Quest.
The State's basic reason for opposing the injunction lies in the contention that its laws, rather than the federal maritime
law, should govern the salvage of the Corrigan Wreck Site. For the past twenty years, the Division of Archives and
Records Management has licensed salvors and parcelled out rights to explore the ocean within its boundaries. The
damage to be incurred by the State should the injunction issue would be the loss by the Division of its authority to
implement the State's licensing program. Yet, as noted in Section III.A.1.c., each of the interests which the Division
purports to serve will be at least as well — if not better — served through application of federal maritime law, in which
salvage operations and awards are overseen by the admiralty court.
218
*218 First and foremost, the goal of retrieving and preserving historical and archeological artifacts can best be achieved
if items are successfully salved. Cobb Coin has been remarkably successful in retrieving such items in the two years it
has worked the site, as indicated by the extensive inventory[26] compiled by the court-appointed custodian Arthur
Hartman and introduced in evidence. In 1980 and 1981, Cobb Coin retrieved over 1,000 silver coins, 14 gold pieces,
including 8 Royal escudos, silver containers, bronze forks, magnificent timbers complete with dead eyes, and hundreds
of other historic items.
As mentioned above, this Court intends to award an appropriate portion of the artifacts to the State as custodian for the
people. Thus, the injunction and relief fashioned by this Court will clearly be consistent with Florida's avowed purpose to
"[l]ocate, acquire, protect, preserve, and promote the location, acquisition, and preservation of historic sites, ... artifacts,
treasure trove and objects of antiquity ...." F.S. § 267.061(2)(a).
Implicit in the State's interest in acquisition and preservation is that the removal of artifacts be accomplished with
scrupulous care. The historic value of each artifact is enhanced by careful monitoring of archeological provenience, the
exact location at which each item is found in terms of coordinates on the ocean, the depth under the water, the extent
buried beneath the ocean bottom, and the geographical relationship to other items found. This information is not only
important for the historical information it provides, but was shown at the hearing to be essential to the intrinsic value of
salved items for purposes of resale to interested buyers. If salvage on an ancient shipwreck is conducted without proper
regard for this essential information, both the historic and market value of the artifacts are substantially diminished.
At the hearing, Cobb Coin's salvage consultants, Fay Feild and R. Duncan Mathewson, testified regarding the
techniques Mel Fisher's crews use in monitoring the archeological provenience of salvage sites. According to their
testimony, it is in the salvor's best interest to record all such data accurately, both to enhance the historical value of a
piece and to enhance an artifact's value for purposes of sale. The plaintiff demonstrated to the Court's satisfaction that it
adequately documents archeological provenience in its salvage operations on the Corrigan Site. Because of Cobb
Coin's accurate record keeping, the State's interest in acquiring and preserving historic and archeological information
will be fully served if the injunction issues.
This Court concludes that none of the State's asserted interests will be jeopardized by the granting of the requested
injunction. In addition to the benefits to be gained from the plaintiff's salvage acumen and care in excavating, there is no
question that Cobb Coin has consistently turned over the artifacts it finds to the Court's custody. There has been no
evidence that Cobb Coin is a dishonest salvor. Further, pursuant to this Court's order of 12 October 1979, a State agent
has been aboard the plaintiff's salvage vessel, observing the recovery from the wreck site and cataloguing and
authenticating articles as they are brought up in order to ensure that the State's interest is fully protected. That Order will
be renewed in the Order Granting Preliminary Injunction which follows this memorandum opinion.
Not only will the objects be turned over to the custody of the Court, they will be well preserved for the benefit of the
scientific, cultural, and perhaps buying, public. The evidence at the hearing demonstrated that many metals kept
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
24/38
3/29/2016
219
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
underwater for such long periods of time as these corrode and disintegrate within a matter of hours if not properly
treated, once they are brought out *219 of the sea. Both the State and plaintiff, however, have qualified facilities to
protect the artifacts, according to uncontroverted testimony by witnesses for each side. Further, during the pendency of
the injunction, the artifacts will be taken care of by this Court's custodian, and no injury will inure to the State thereby.
In short, the only interest of the State which the injunction would disrupt is its autonomy in enforcing its statutory licensing
scheme. But as detailed above, that scheme cannot be given effect by this Court to the extent that it is inconsistent with
federal admiralty principles. Moreover, all the important substantive interests which the State asserts — the location,
acquisition, and preservation of historic and archeological treasures — will be effectuated by the relief this Court intends
to fashion. Therefore, the balance of harm in this case would clearly fall upon the plaintiff if the injunction does not issue.
The other party arguably affected by an injunction is the State's licensee, Quest Corporation. At final argument, Quest
claimed that it has been "ousted" from possession of the wrecksite by the plaintiff's lawsuit and this Court's orders.
Actually, any such ouster is a figment of Quest's imagination. No Court order has required that Quest refrain from
searching or salving on the Corrigan Site; any decision not to work the site was Quest's. Quest only actively attempted
salvage on the Corrigan Site for a total of forty-nine (49) days prior to the time Cobb Coin filed this suit, and whether it
has the further right to operate thereon will be a question to be resolved in the final order. In any event, the injunction will
impose no hardship on Quest at all, much less any harm that would warrant denying the injunction motion.
D. The Injunction Would Not be Adverse to the Public Interest
The granting of this injunction would clearly not be adverse to the public interest; rather, its ultimate effect will inure to the
public's benefit. The public interest, as perceived by the Court, lies both in the maximum acquisition of items from the
wrecked cargo, and in the exercise of utmost scientific integrity in the salvage and preservation process. As indicated in
the above discussion of the balance of injury, the plaintiff's continued salving of the Corrigan Site will best effectuate both
aspects of the public interest.
In fact, should the injunction not issue, the public interest would be disserved. This Court finds the actions of the agents
and employees of the State of Florida to be not only unproductive, but in the nature of undue harassment and an
impediment to the Court's exercise of its admiralty jurisdiction. The plaintiff shall therefore be permitted to continue its
operations without the interference heretofore caused by the State's officers, agents, and employees, until further order
of this Court.
220
In conclusion, this Court holds that the movant, Cobb Coin, has carried its burden of showing the four factors necessary
for the granting of an injunction. It has shown a likelihood that it will prevail on the merits of its claim for a salvage award.
Florida's Archives and History Act, chapter 267, Florida Statutes (1979), may not be enforced in derogation of the rights
of a salvor who invokes the federal admiralty court's jurisdiction seeking a salvage award. This ruling does not affect the
validity of the Florida statute to the extent it prevents people from stealing from archeological sites historic artifacts in
which the State has a legitimate interest. This Order does not extend to situations where there is no conflict with any
maritime right, as, for example, in this case of state-owned upland sites, or where admiralty jurisdiction has not been
invoked. This Court holds simply that the statute cannot supercede the federal rights of one to search the navigable
waters, find and salvage abandoned or derelict property, and bring any items thus recovered into the admiralty court for
a determination of that person's rights in the property. Should any person so invoke the admiralty's court jurisdiction, the
court will adjudge that party's rights as a finder or salvor as against any competing claimant, *220 determine whether his
efforts satisfy admiralty's diligence requirements, and declare the rights of the respective parties.
This Court further holds that the movant Cobb Coin will be irreparably harmed if the injunction does not issue, because
its employees are being harassed by threatened criminal prosecution, and because it will suffer enormous monetary and
opportunity costs if it is prevented from working the Corrigan Site. The State and its licensee, Quest, will not be injured at
all by an injunction. The interest of the State in preserving a share of the artifacts recovered will be protected by the final
award of this Court.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
25/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Finally, the public interest in acquiring and preserving historic and archeological treasures will best be effectuated by
permitting the plaintiff to continue its successful discoveries at the site.
Wherefore, it is ORDERED, ADJUDGED and DECREED as follows:
1. The plaintiff's motion for a preliminary injunction is hereby granted. The agents, employees, and attorneys of the State
of Florida, including but not limited to any county sheriff or deputy, or Florida Marine Patrol Officer, are specifically
enjoined from interfering with the plaintiff's ongoing salvage operations or arresting the plaintiff's officers, agents and
employees. The $500.00 bond heretofore posted by the plaintiff will stand as security for this injunction as required by
Fed.R.Civ.P. 65(c). The Court hereby reaffirms its prior Order of October 12, 1979, expressly permitting the State to
maintain an inspection agent aboard the vessel for the purpose of cataloguing and authenticating recovered artifacts.
2. The plaintiff's motion for issuance of a rule to show cause why the State's agents, employees, and attorneys should not
be held in contempt is denied without prejudice to the plaintiff's right to reassert it in the event the State's agents,
employees, or attorneys disobey this Order or attempt to interfere with the admiralty jurisdiction of the United States
District Court.
APPENDIX A
PERTINENT PROVISIONS OF THE FLORIDA ARCHIVES AND HISTORY ACT
CHAPTER 267
267.031 Division of archives, history and records management
(1) The division of archives, history and records management shall be organized into as many bureaus as deemed
necessary by the division for the proper discharge of its duties and responsibilities under this chapter; provided,
however, that in addition to the office of the director, there shall be at least four bureaus to be named as follows:
(a) Archives and records management;
(b) Historic sites and properties;
(c) Historical museums;
(d) Publications.
(2)(a) The secretary of state is hereby authorized to appoint advisory councils to provide professional and technical
assistance to the division. The councils shall consist of not less than five nor more than nine members, and such
appointments shall consist of persons who are qualified by training and experience and possessed of proven interest in
the specific area of responsibility and endeavor involved.
(b) The chairman of each of said councils shall be elected by a majority of the members of the council and shall serve for
two years. If a vacancy occurs in the office of chairman before the expiration of his term, a chairman shall be elected by a
majority of the members of the council to serve the unexpired term of such vacated office.
(c) It shall be the duty of any of the advisory councils appointed hereunder to provide professional and technical
assistance to the division as to all matters pertaining to the duties and responsibilities of the division in the administration
of the provisions of this chapter. Members of the councils shall serve without pay, but shall be entitled to reimbursement
for their necessary travel expenses incurred in carrying out their official duties, as provided by § 112.061.
221
*221 (3) The division may employ a director of the division and shall establish his qualifications. The director shall act as
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
26/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
the agent of the division in coordinating, directing, and administering the activities and responsibilities of the division.
The director may also serve as the chief of any of the bureaus herein created. The division may employ other employees
as deemed necessary for the performance of its duties under this chapter.
(4) The division shall adopt such rules and regulations deemed necessary to carry out its duties and responsibilities
under this chapter, which rules shall be binding on all agencies and persons affected thereby. The willful violation of any
of the rules and regulations adopted by the division shall constitute a misdemeanor.
(5) The division may make and enter into all contracts and agreements with other agencies, organizations, associations,
corporations and individuals, or federal agencies as it may determine are necessary, expedient, or incidental to the
performance of its duties or the execution of its powers under this chapter.
(6) The division may accept gifts, grants, bequests, loans, and endowments for purposes not inconsistent with its
responsibilities under this chapter.
(7) All law enforcement agencies and offices are hereby authorized and directed to assist the division in carrying out its
duties under this chapter.
267.061 Bureau of historic sites and properties; state policy, responsibilities
(1) State policy relative to historic sites and properties:
(a) It is hereby declared to be the public policy of the state to protect and preserve historic sites and properties, buildings,
artifacts, treasure trove, and objects of antiquity which have scientific or historical value or are of interest to the public,
including, but not limited to monuments, memorials, fossil deposits, Indian habitations, ceremonial sites, abandoned
settlements, caves, sunken or abandoned ships, historical sites and properties and buildings or objects, or any part
thereof relating to the history, government and culture of the state.
(b) It is further declared to be the public policy of the state that all treasure trove, artifacts and such objects having
intrinsic or historical and archaeological value which have been abandoned on state-owned lands or state-owned
sovereignty submerged lands shall belong to the state with the title thereto vested in the division of archives, history and
records management of the department of state for the purpose of administration and protection.
(2) It shall be the responsibility of the bureau of historic sites and properties to:
(a) Locate, acquire, protect, preserve, and promote the location, acquisition, and preservation of historic sites and
properties, buildings, artifacts, treasure trove, and objects of antiquity which have scientific or historical value or are of
interest to the public, including, but not limited to monuments, memorials, fossil deposits, Indian habitations, ceremonial
sites, abandoned settlements, caves, sunken or abandoned ships, or any part thereof;
(b) Develop a comprehensive statewide historic preservation plan;
(c) Encourage and promote the acquisition, preservation, restoration and operation of historic sites and properties by
other agencies so that such property may be utilized to foster and promote appreciation of Florida history; provided,
however, that no acquisition, preservation, restoration, or operation of such sites shall be made by the state and no
contribution shall be paid from state funds for such purposes until:
1. A report and recommendation of the advisory council has been received and considered by the division;
2. The division has determined that there exists historical authenticity and a feasible means of providing for the
acquisition, preservation, restoration, or operation of such property;
3. The property shall have been approved for such purpose by the division;
222
(d) Cooperate and coordinate with the division of recreation and parks of the department *222 of natural resources in the
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
27/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
operation and management of historic sites and properties subject to the division of archives, history and records
management.
(3) The division shall employ a state archaeologist, and such other archaeologists as deemed necessary, who shall
possess such qualifications as the division may prescribe. The state archaeologist shall be assigned to the bureau of
historic sites and properties and shall serve at the pleasure of the division. The state archaeologist, with emphasis on
salvage archaeology, shall conduct an archaeological survey of the state and shall perform such other duties as the
chief of the bureau of historic sites and properties may prescribe.
(4) The division may employ a chief of the bureau of historic sites and properties. The chief shall possess such
qualifications as the division may prescribe but shall be qualified by experience and training to administer the functions
of the bureau and he shall serve at the pleasure of the division. It shall be the duty of the chief, under the general
administration of the director, to supervise, direct, and coordinate the activities of the bureau of historic sites and
properties.
267.10 Legislative intent
In enacting this law, the legislature is cognizant of the fact that there may be instances where an agency may be
microfilming and destroying public records or performing other records management programs, pursuant to local or
special acts; the legislature is further aware that it may not be possible to implement this chapter in its entirety
immediately upon its enactment and it is not the legislative intent by this chapter to disrupt the orderly microfilming and
destruction of public records pursuant to such local or special acts above referred to; provided, however, that such
agencies make no further disposition of public records without approval of the division of archives, history and records
management of the department of state pursuant to such rules and regulations as it may establish.
267.11 Designating archaeological sites
The division of archives, history, and records management may publicly designate an archaeological site of significance
to the scientific study or public representation of the state's historical, prehistorical, or aboriginal past as a "state
archaeological landmark." In addition, the division may publicly designate an interrelated grouping of significant
archaeological sites as a "state archaeological landmark zone." However, no site or grouping of sites shall be so
designated without the express written consent of the private owner thereof. Upon designation of an archaeological site,
the owners and occupants of each designated state archaeological landmark or landmark zone shall be given written
notification of such designation by the division. Once so designated, no person may conduct field investigation activities
without first securing a permit from the division.
267.12 Research permits; procedure
(1) The division may issue permits for excavation and surface reconnaissance on state lands or lands within the
boundaries of designated state archaeological landmarks or landmark zones to institutions which the division shall
deem to be properly qualified to conduct such activity, subject to such rules and regulations as the division may
prescribe, provided such activity is undertaken by reputable museums, universities, colleges, or other historical,
scientific, or educational institutions or societies that possess or will secure the archaeological expertise for the
performance of systematic archaeological field research, comprehensive analysis, and interpretation in the form of
publishable reports and monographs, such reports to be submitted to the division.
(2) Those state institutions considered by the division permanently to possess the required archaeological expertise to
conduct the archaeological activities allowed under the provisions of the permit may be designated as accredited
institutions which will be allowed to conduct archaeological field activities on state-owned or controlled lands or within
the boundaries of any designated state archaeological landmark or landmark zone without obtaining an individual
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
28/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
permit for each project, except that those accredited institutions will be required to give prior written notice of all
223
anticipated archaeological field activities on state-owned or controlled *223 lands or within the boundaries of any
designated state archaeological landmark or landmark zone to the division, together with such information as may
reasonably be required by the division to insure the proper preservation, protection, and excavation of the
archaeological resources. However, no archaeological activity may be commenced by the accredited institution until the
division has determined that the planned project will be in conformity with the guidelines, regulations, and criteria
adopted pursuant to §§ 267.11-267.14. Such determination will be made by the division and notification to the institution
given within a period of fifteen days from the time of receipt of the prior notification by the division.
(3) All specimens collected under a permit issued by the division or under the procedures adopted for accredited
institutions shall belong to the state with the title thereto vested in the division of archives, history, and records
management of the department of state for the purpose of administration and protection. The division may arrange for
the disposition of the specimens so collected by accredited state institutions at those institutions and for the temporary or
permanent loan of such specimens at permit-holding institutions for the purpose of further scientific study, interpretative
displays, and curatorial responsibilities.
267.13 Prohibited practices; penalties
(1) Any person who shall conduct field investigations on any land owned or controlled by the state or its departments or
institutions or within the boundaries of any designated state archaeological landmark or landmark zone without first
obtaining a permit or having first received from the division a notice to proceed under the procedures relating to
accredited institutions, or any person who shall appropriate, deface, destroy, or otherwise alter any archaeological site
or specimen located upon state lands or within the boundaries of a designated state archaeological landmark or
landmark zone, except in the course of activities pursued under the authority of a permit or under procedures relating to
accredited institutions granted by the division, shall be guilty of a misdemeanor punishable by a fine not exceeding $500
or by imprisonment in the county jail for a period not to exceed 6 months or both, and in addition, shall forfeit to the state
all specimens, objects, and materials collected or excavated, together with all photographs and records relating to such
material.
(2) Any person who shall reproduce, retouch, rework, or forge any archaeological or historical object originating from an
archaeological site as designated by §§ 267.11-267.14, and deriving its principal value from its antiquity, or make any
such object, whether copies or not, or falsely label, describe, identify, or offer for sale or exchange any object, with intent
to represent the same to be an original and genuine archaeological or historical specimen, or any person who shall offer
for sale or exchange any object with knowledge that it has previously been collected or excavated in violation of any of
the terms of §§ 267.11-267.14 shall be guilty of a misdemeanor punishable by a fine not exceeding $500 or by
imprisonment in the county jail for a period not to exceed 6 months or both.
267.14 Legislative intent
It is the declared intention of the legislature that field investigation activities on privately owned lands should be
discouraged except in accordance with both the provisions and spirit of §§ 267.11-267.14; and persons having
knowledge of the location of archaeological sites are encouraged to communicate such information to the division of
archives, history, and records management.
APPENDIX B
RULES OF THE DEPARTMENT OF STATE DIVISION OF ARCHIVES,
HISTORY AND RECORDS MANAGEMENT HISTORIC SITES AND
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
29/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
PROPERTIES CHAPTER 1A-31
PROCEDURES FOR ACQUIRING AND PROTECTING ANTIQUITIES ON
STATE LANDS
1A-31.01 Definition
224
*224 1A-31.02 Scope of law
1A-31.03 Board authorized to enter into contracts
1A-31.04 Declaration of ownership by state
1A-31.05 Contracts for exploration
1A-31.06 Contract for salvage
1A-31.07 Interpretation of contracts
1A-31.08 Employment contracts
1A-31.09 Ownership and payment for recovery
1A-31.10 Supervision
1A-31.11 Boats to carry identification
1A-31.12 Penalty; unauthorized exploration and salvage.
1A-31.01 Definition.
Specific Authority 267.031(5) FS. Law Implemented 267.061 FS. History—New 5-7-68, Repealed 1-1-75.
1A-31.02 Scope of law. Section 267.061, Florida Statutes, 1967 shall apply to all abandoned articles of ancient, historic
or intrinsic value, recovered on or beneath lands, where title is vested in State of Florida or any state agency, and all
state-owned sovereignty submerged lands. Any unauthorized recovery of these articles from said lands shall be
punishable, upon conviction, as provided in Section 267.031(5), Florida Statutes, 1967.
Specific Authority 267.031(4) FS. Law Implemented 267.061 FS. History—New 5-7-68, Repromulgated 1-1-75.
1A-31.03 Division authorized to enter into contracts.
(1) The Division acting through the Director is authorized to enter into contracts for exploration and contracts for salvage
of given areas of state-owned submerged lands for treasure trove, including precious metals and jewelry, antique
articles and artifacts and other similar objects of historical and archaeological value, and such contract, nor any part
thereof shall not be assigned nor sublet. Neither exploration or salvage operations shall be conducted on state-owned
lands without having first contracted with the Division.
(2) Contracts for exploration. The Division is Authorized to enter into a contract for exploration of submerged sovereignty
lands only after a determination that the person or corporation seeking such contract is willing and professionally able to
carry out said contract and gives evidence of sufficient financial ability to carry on exploration for antiquities, treasure
trove or related materials so as to accurately determine the presence or absence of valuable material in the areas
covered by said contract.
(3) The contractor shall, at his own expense, commission a bonded oceanographic surveyor to locate with
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
30/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
semipermanent markers or buoys all corners of an exploration area, or center of a salvage site, before any work is
performed in the contract area. The contractor will be responsible for the maintenance of these buoys and insure that the
contract number is displayed on each one.
(4) Prop-wash excavating devices shall be used only for defining the limits of the archaeological site or for the removal of
non-cultural overburden. Any further use of such devices shall be done only with the specific approval from the Division.
The State representative on board may, at his discretion, halt the use of approved prop-wash excavating devices until
there is an opportunity to receive the opinion of the Division concerning potential site destruction from such use. Any
excavation on archaeological materials shall be done by airlift, injection dredge, or other similar devices of a size and
type approved by the Division.
On the date the contract is delivered, the delivery agent shall inspect all excavating devices. The contractor shall
adequately demonstrate, to the satisfaction of the delivery agent, that appropriate safety precautions will be in effect
during the operation of these devices.
225
(5) If a contract is granted, the contractor shall complete substantially all contractual requirements. This shall include
preparation of accurate charts of the entire contract area and a magnetometer chart or map plotted to a scale acceptable
to the Division showing the entire contract area *225 and all magnetic anomalies and other cultural features
encountered. This chart shall also show water depth, buoys, landmarks, and existing shipwrecks. The chart shall include
descriptions of all anomalies investigated or examined. In the event that work being performed under a salvage contract
is terminated without agreement of the Division, the contractor shall forfeit any and all claims to material recovered under
the terms of the contract.
(6) The trustees of the Internal Improvement Trust Fund shall be notified by the Division of all new contracts at the time a
contract is issued.
Specific Authority 267.031(4) FS. Law Implemented 267.031(5) FS. History—New 5-7-68, Revised 1-1-75.
1A-31.04 Declaration of ownership by state.
Specific Authority 267.031(5) FS. Law Implemented 267.061 FS. History—New 5-7-68, Repealed 1-1-75.
1A-31.05 Contracts for exploration.
Specific Authority 267.031(5) FS. Law Implemented 267.061 FS. History—New 5-7-68, Repealed 1-1-75.
1A-31.06 Contract for salvage.
Specific Authority 267.031(5) FS. Law Implemented 267.061 FS. History—New 5-7-68, Repealed 1-1-75.
1A-31.07 Interpretation of contracts. It is the intention of the Division to limit contracts for exploration or salvage of
treasure trove insofar as this is practicable to those persons or corporations who will themselves conduct the exploration
or salvage, and who will remain solely answerable to the Division for the conduct of its operations and the proper
accounting of materials located and recovered under the terms of the contract.
Specific Authority 267.031(4) FS. Law Implemented 267.061 FS. History—New 5-7-68, Repromulgated 1-1-75.
1A-31.08 Employment contracts. Employment contract is defined for the purpose of this act as being a contract between
the principal party to a contract for exploration or salvage, and others who purport to be supplied and equipped to do the
actual exploration and salvaging for the principal to the contract. Such contracts, the language of which shall be
approved by the counsel for the Division, are authorized to enter into provided prior written approval of the Division shall
have been obtained. The Division will not approve such employment contracts, and will consider any contract for
exploration or salvage as subject to cancellation if the principal party thereto does not retain primary responsibility for the
actual exploration and salvage operations.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
31/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Specific Authority 267.031(4) FS. Law Implemented 267.031(5) FS. History—New 5-7-68, Amended 1-1-75.
1A-31.09 Ownership and Payment for recovery. Any and all treasure trove, artifacts and other similar valuable historical
material recovered in the waters of the State of Florida belong to the State of Florida, and payment for the recovery of
such material shall be made in accordance with the contracts entered into by the Division. All recovered artifacts shall be
retained in such a place and manner as approved by the Division. At the time of the payment for recovery by those
having contracts for salvage with the Division there shall be present such agent or agents of the Division as the Division
shall deem necessary and appropriate.
Specific Authority 267.031(4) FS. Law Implemented 267.061(1)(b), 267.061(2)(a) FS. History—New 5-7-68, Amended 11-75, 9-6-78.
1A-31.10 Supervision.
(1) To afford adequate protection for the interest of the State it is the established policy of the Division to limit the number
of contracts for exploration and contracts for salvage to be granted to those that can be properly supervised and
administered by the duly authorized agents of the Division.
(2) A designated agent of the Division shall be present, as required by the Division, for all such operations by holders of
contracts for exploration.
226
(3) No contract for salvage shall be entered into by the Division unless two (2) *226 agents of the Division are available
to be assigned to oversee salvage operations thereunder; provided however, if only one agent is available the salvage
contractor shall furnish the other; provided, further, this person shall be assigned specifically to, and work under the
supervision of, the Division's agent, and must meet the State's current employment qualifications for a field agent.
Notwithstanding the stipulation herein that two (2) agents be present in the case of salvage operations, the Division may,
at its discretion, require only one agent be present in instances where deemed appropriate.
(4) Prior to commencing work and subject to weather conditions or equipment failure, a two (2) week itinerary shall be
submitted in advance, by each contractor. This itinerary shall include anticipated work schedule, area of contract to be
worked, and work to be performed. This itinerary shall be submitted to the Underwater Archaeological Research Section.
Unforeseen circumstances requiring exceptions to the two (2) week itinerary requirements shall be reported to and
acknowledged by the Division.
(5) All persons, firms or corporations having contracts with the Division shall be required to comply with all reasonable
requests or directives addressed to them by the duly authorized agents or employees of the Division with respect to the
operations authorized by said contracts.
(6) At all times there shall be one person in charge designated by, and acting for, the contractor aboard the vessel or
group of vessels engaged in contract operations who shall be responsible for compliance with the rules and directives of
the Division or its designated agents, to insure the preservation of archaeological and historical data.
(7) The contractor shall keep a ship's log, to be furnished by the Division, on all boats engaged in search or salvage
operations. This log shall be properly kept, on a daily basis, in accordance with the instructions from the Division.
(8) All contractor's crew lists shall be submitted to the Division prior to starting work on the contract site, including name,
birthdate, address, occupation, and social security number, of each crew member. In the event additional personnel are
employed, the Division shall immediately be furnished the required information. All visitors or guests on board the
contract vessel shall be recorded by the field agent on board, and recorded in the "Record (Log) of Daily Activities" by
the person in charge, which record shall include: name, birthdate and address of each guest.
Specific Authority 267.031(4) FS. Law Implemented 267.031(5) FS. History—New 5-7-68, Amended 1-1-75, 9-6-78.
1A-31.11 Boats to carry identification.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
32/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
(1) All boats are required to carry identification as required by the Division while operating under exploration or salvage
contracts.
(2) In advance of initial search or salvage operations, the contractor shall furnish the Director and the Division's agent a
list of all vessels to be used in the search or salvage operation, including a full description and the registration number of
each vessel. No vessel shall engage in search or salvage operations if it has not been approved by the Division.
(3) Each vessel engaged in search or salvage operations shall be marked both by a flag to be furnished by the Division
and the contract number. The flag shall be displayed on the vessel so that it is clearly visible in all directions. The
identification numbers shall be in block style with a minimum height of two (2) feet and of sufficient width to be prescribed
by the Division. The identification numbers shall be placed so as to be prominently visible from the air, as well as from
the sea. Each vessel used in search and salvage operations shall display the flag and identification number
continuously from the time of leaving part to the time of return.
(4) Written identification provided the salvor by the Division shall be carried at all times by the vessel engaged in the
search or salvage operations.
227
(5) All boats working salvage or exploration contracts with state representatives on *227 board shall be required to show
evidence of quarterly Coast Guard Auxiliary inspection. Specific Authority 267.031(4) FS. Law Implemented 267.061(2)
(a) FS. History—New 5-7-68, Amended 1-1-75, 9-6-78.
1A-31.12 Penalty; Unauthorized exploration and salvage.
(1) Whoever removes, alters, or in any way tampers with treasure trove, artifacts, or any of the articles protected by
Chapter 267, Florida Statutes, located on state lands without benefit of an exploration or salvage contract or other permit
from the Division of Archives, History and Records Management shall be punished as provided by law.
(2) Whoever buys, receives, aids in the concealment of, or has in his possession such treasure trove, artifacts or other
protected objects removed from state lands without benefit of a contract or permit from the Division with the knowledge
that same was removed without benefit of a contract shall be punished as provided by law.
(3) In all cases of arrest and conviction under either of the above sections, all boats, instruments, and other equipment
used in connection with such violation are hereby declared to be nuisances and shall be seized and carried before the
court having jurisdiction of such offense for proper disposition thereof.
Specific Authority 267.031(4) FS. Law Implemented 267.031(4), 278.061 FS. History— New 12-19-70, Amended 9-6-78.
RULES OF THE DEPARTMENT OF STATE DIVISION OF ARCHIVES,
HISTORY AND RECORDS MANAGEMENT HISTORIC SITES AND
PROPERTIES CHAPTER 1A-32 RESEARCH PERMITS FOR
ARCHAEOLOGICAL SITES OF SIGNIFICANCE
1A-32.01 Definitions
1A-32.02 Scope
1A-32.03 Criteria for evaluating research requests
1A-32.04 Notification requirements for accredited institutions
1A-32.05 Application requirements for non-accredited institutions
1A-32.01 Definitions.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
33/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
(1) Accredited Institutions shall mean those state institutions which permanently possess professional archaeological
staff who meet or, in the judgment of the State Archaeologist, are capable of meeting the criteria of training and
experience necessary for registration in the Society of Professional Archaeologists with emphases in field and
collections research as defined in the "Qualifications for Recognition as a Professional Archaeologist," of the Society.
The emphases in field and collections research may be represented by separate individuals. Such institutions should
also subscribe to the "Code of Ethics," "Standards of Research Performance," and "Institutional Standards" of the Society
of Professional Archaeologists, particularly in respect to facilities and support services for the successful, professional
conduct of archaeological field research.
(2) Non-Accredited Institution shall mean all other institutions as provided in Subsection 267.12(1), Florida Statutes.
(3) Professional archaeological expertise shall mean persons who meet, or in the judgment of the State Archaeologist
are capable of meeting, the criteria of training and experience necessary for registration in the Society of Professional
Archaeologists, as defined in the "Qualifications for Recognition as a Professional Archaeologist" of the Society.
(4) Professional quality research shall mean research conducted by persons with professional archaeological expertise
and in a manner consistent with the "Code of Ethics" and "Standards of Research Performance" of the Society of
Professional Archaeologists.
Specific Authority 267.031(4) FS. Law Implemented 267.12 FS. History—New 1-1-75, Amended 9-7-78.
228
1A-32.02 Scope. The scope of this chapter is to specify the criteria imposed by the Division upon institutions seeking
research permits and filing written notification, and the Division's procedures for processing *228 such, as well as the
necessary supportive material regarding proposed Archaeological Research upon state-owned lands, state-owned
sovereignty submerged lands, Archaeological landmarks and Archaeological landmark zones.
Specific Authority 267.12(1) FS. Law Implemented 267.12 FS. History—New 1-1-75.
1A-32.03 Criteria for evaluating research requests. The following criteria are established to insure that research upon
archaeological sites pursuant to Section 267.12, Florida Statutes, shall be conducted in a professional manner, and that
the data recovered as a result thereof shall benefit the people of Florida in understanding their rich and varied heritage.
All research requests shall contain the following:
(1) Only reputable museums, universities, colleges or other historical, scientific or educational institutions or societies
will be considered as valid research applicants; and,
(2) Applicants shall possess or will secure the professional archaeological expertise necessary for the performance of
professional quality archaeological field research, comprehensive analysis and interpretation in the form of publishable
reports and monographs; and,
(3) Applicants shall possess or will secure sufficient artifactual conservation and storage capabilities to insure artifact
preservation during the research period; and,
(4) No research request shall be considered, exclusive of reconnaissance survey requests, unless (a) a degree of
endangerment to the archaeological resources is present in the proposed research are (i. e. severe erosion); (b) the
proposed research area form an integral part in a well-defined research design or (c) the research is part of a planned
interpretive reconstruction or restoration project; and,
(5) Adequate funding capability must be available to full implement the proposed research plan, including field work,
laboratory analysis and processing and manuscript preparation.
Specific Authority 267.031(14) FS. Law Implemented 267.12 FS. History—New 1-1-75, Amended 9-7-78.
1A-32.04 Notification requirements for accredited institutions.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
34/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
(1) A written notification to the Division by; accredited institutions requesting approval for archaeological research
according to Subsection 267.12(2), Florida Statutes, must be submitted prior to scheduled project initiation.
The notification shall contain all of the following items:
(a) Name and address of the requesting institution;
(b) Date of notification;
(c) Specific location(s) of the proposed research area, including site names and numbers where applicable;
(d) Aims, character, and purpose of the proposed research; (Include a clear and concise research design.);
(e) Specific threats or endangerment of archaeological sites within the proposed project area (if applicable);
(f) Name of the individual in direct charge of the field research;
(g) Total number of project personnel;
(h) Initiation and termination dates of the research;
(i) Proposed publication source and date the completed manuscript;
(j) Total research funds to be expended on the project; and,
(k) Signature of the requesting official.
(2) The Division will respond to the requesting accredited institution within 15 days after receipt of the written notification.
The Division's response will consist of (a) approval, or, (b) disapproval, or (c) a request for information clarification. In the
event the Division requests clarification of one or more items in the written notification, the 15 day response obligation
will take effect upon receipt of the additional information by the Division.
Specific Authority 267.031(4) FS. Law Implemented 267.12(2) FS. History—New 1-1-75, Amended 9-7-78.
1A-32.05 Application requirements for non-accredited institutions.
229
*229 (1) Non-accredited institutions desiring to conduct research under Subsection 267.12(1), Florida Statutes, must
apply to the Division for a research permit for each and every proposed project. Permit application forms are available
from the Division, and in addition to the requirements imposed upon accredited institutions by Paragraphs (a)-(k) of
Subsection 1A-32.04(1) herein, non-accredited institutions must supply the following information:
(a) Name, address and official status of person to be in general charge of project, including a resume of previous
experience pertinent to archaeological research; and,
(b) Nature, status and scientific affiliations of applicant organization; and,
(c) Names and qualification of additional research participants who will exercise any supervisory authority during the
proposed research project; and,
(d) Total fiscal resources available for publication requirements.
(2) Completed permit applications must be submitted to the Division prior to the project research initiation date.
Specific Authority 267.031(4) FS. Law Implemented 267.12(1) FS. History—New 1-1-75, Amended 9-7-78.
[*] This narrative is a condensed version of the story of the 1715 Plate Fleet, taken from various sources introduced in evidence in the
hearing on the plaintiff's motion for preliminary injunction:
Burgess, Man: 12,000 Years Under the Sea (1980);
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
35/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
Burgess, They Found Treasure (1977);
Burgess & Clausen, Gold, Galleons & Archeology (1976);
National Geographic Society, Underseas Treasures (1974);
Wagner, Drowned Galleons Yield Spanish Gold, National Geographic, January 1965, at 1; Wagner & Taylor, Pieces of Eight, Recovering
the Riches of a Lost Spanish Treasure Fleet (1967);
These sources were entered in evidence as Joint Exhibits 27-30.
[1] However, for purposes of this suit, since the allegations identifying the vessel were admitted by the State and repeated verbatim by
Quest in their respective Claims of Owner, the named "vessel" is here considered to be within the territorial jurisdiction of this Court. See
Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 334 (5th Cir. 1978) (Treasure Salvors
I), quoting Booth Steamship Co. v. Tug Dalzell No. 2, 1966 A.M.C. 2615 (S.D.N.Y.1966).
[2] Just as did the federal government in Treasure Salvors I, the State here seeks a declaratory judgment that "the State of Florida is the
sole owner of the Defendant Unnamed Wrecked and Abandoned Sailing Vessel, its equipment and cargo." The reasoning applied by the
Fifth Circuit in its opinion is therefore pertinent to this case:
Alternatively we note that assuming a lack of in rem jurisdiction of that part of the wreck lying outside the territorial waters of the United
States, the district court is not deprived of jurisdiction over the government's counterclaim if that claim rests upon an independent basis of
jurisdiction. [Citations omitted]. In its counterclaim the government requested that "a declaratory judgment be issued affirming the property
right of the United States in the Atocha .... While no basis of jurisdiction was stated in the counterclaim regarding the extraterritorial portion
of the wreck, the record reveals that the government based its claim to rights in the sunken vessel on the Antiquities Act .... [Footnote
omitted]. The district court thus had jurisdiction under 28 U.S.C. § 1331 to determine the applicability of these statutes to that portion of
the vessel situated in international waters.
Treasure Salvors I, 569 F.2d at 335. This analysis is relevant to the present case, in which the State has grounded its right to lay claim to
the artifacts found on the wreck site here in question on the operation of the Submerged Lands Act of 1953, 43 U.S.C. §§ 1301-1315
(see discussion in Section III.A.4., infra).
[3] Subsequent finders acquire the rights of first finders where the prior finder has discontinued effective efforts to save the property or
has otherwise abandoned the site. See W. Marvin, A Treatise on the Law of Wreck and Salvage 138 (1858) (Footnote supplied).
[4] See note 1, supra. The remains of the Atocha, to which the Treasure Salvors III court was referring, rested outside the State's
territorial limit, on the Continental Shelf. See Treasure Salvors I. (Footnote supplied).
[5] See The Aquila, 1C. Rob. 36, 165 Eng.Rep. 87 (1798) (Salvage award appropriate even where property has accrued to the
sovereign).
[6] Some circuits have adopted forms of the so-called "alternative test" for preliminary injunction relief, under which the presence of
substantial questions on the merits, combined with the threat of immediate, irreparable injury, may support entry of a preliminary
injunction. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977); City of Palo Alto v. City
& County of San Francisco, 548 F.2d 1374 (9th Cir. 1977); Charlie's Girls, Inc. v. Revlon, Inc., 483 F.2d 953 (2d Cir. 1973). Certainly, the
questions on the merits are substantial enough to require the State to desist in enforcing a criminal statute of questionable validity while
this Court makes its final determination.
[7] According to Gilmore and Black, discussing "Federal-State Conflict" in the 1975 edition of their treatise:
All that can be said in general is that the states may not flatly contradict established maritime law, but may "supplement" it, to the extent of
allowing recoveries in some cases where the maritime law denies them; that states may legislate freely on shipping matters that are of
predominantly local concern, but that they may not so act as to interfere with the uniform working of the federal maritime system.
Gilmore and Black, The Law of Admiralty, 49-50 (2d ed. 1975).
[8] Professor Currie explained the evolution of this "negative implication" read into the Admiralty Clause. At one time, he explained:
While the admiralty adopted with `alacrity' state statutes giving a right to relief, said Mr. Justice Waite in 1900, state law was never allowed
to defeat a right to relief given by the general maritime law. [citation to Workman v. New York City, 179 U.S. 552, 563 [, 21 S.Ct. 212, 216,
45 L.Ed. 314] (1900)] ... This situation seems to have resulted from a conception of the maritime law as an incomplete system, with
numerous gaps which could be filled by state statutes or common law, yet supreme in the admiralty court when it afforded a right of
action....
One early decision stood out sharply to destroy the symmetry of this simple theory and laid the foundation for the tangle of decisions which
now plagues the law: the unanimous decision in The Roanoke [, 189 U.S. 185, 23 S.Ct. 491, 47 L.Ed. 770] in 1903 .... [I]n The Roanoke
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
36/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
the Court made explicit for the first time what had been implicit for years: that even where there is no maritime rule, the Admiralty Clause
itself has a preemptive, negative effect on state law similar to that of the Commerce Clause.
Currie, Federalism and the Admiralty: "The Devil's Own Mess," 1960, The Sup.Ct.Rev. 158, 166.
[9] Professor Currie argued that an issue created by a conflict in admiralty between state and federal interests be resolved by a balancing
test. He suggested that the inquiry be, as Justice Harlan had at one time stated in dissent but later for the Court in Kossick v. United Fruit
Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961), "one involving the nature of the state interest ... [and] the extent to which such
interest intrudes upon federal concerns." Currie, supra at 168, quoting Hess v. United States, 361 U.S. 314, 331, 80 S.Ct. 341, 352, 4
L.Ed.2d 305 (1960) (dissenting opinion).
Even under such a balancing test, however, Professor Currie conceded that in the case where a federal right supported by a significant
federal interest is disrupted by a contrary state rule, it would be appropriate that it preempt the state law. Section III.A.2. of this Order
considers the relative State and Federal interests in this action, following the Supreme Court's analysis in Kossick. This Court there
concludes that considering the relative interests asserted in this case, application of federal salvage rules is appropriate.
[10] Professor Robertson, recognizing that the choice between uniformity and diversity in a federal system will usually be a difficult one,
argued that the history of maritime personal injury law indicated that diversity was preferable to uniformity in that area. Yet he also
recognized that "[t]here are obviously many topics now covered by the general maritime law as to which state experimentation would be
conceded by everyone to be inappropriate." Robertson, Admiralty and Federalism 282 (1970). Surely, salvage law is such a topic.
In 1950, Professor Black suggested that the basic jurisdictional allocation be changed to transfer maritime personal injury cases to the
state courts, and to retain contractual, commercial, and property adjustment cases, "necessity for which grows out of the conduct of the
maritime industry," in the federal district courts sitting in admiralty. Black, Admiralty Jurisdiction: Critique and Suggestions, 50 Colum.L.Rev.
259, 276 (1950). But even Professor Black did not go so far as to suggest a change in the applicable substantive law: "Naturally, nothing
would happen to the underlying choice of law problem ...." Id. at 278-79.
[11] Currie, supra, at 179.
[12] "[T]he proposition [has] never seriously [been] disputed in admiralty courts and established for over forty years without exception even
as to state courts, that state law may not be applied in derogation of a right of recovery afforded by the general maritime law." Id. at 181,
citing Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942) and Pope & Talbot, Inc. v. Hawn, 346 U.S. 406,
74 S.Ct. 202, 98 L.Ed. 143 (1953).
[13] Quest claims to have recovered sixteen (16) silver coins from the wreck site in its two years of salvage operation, under the exclusive
State lease it held. The State's representative testified Quest found nine (9). The coins were turned over to the State for safekeeping;
they have since disappeared.
[14] Judge William Marvin served as a Judge of the United States District Court for the Southern District of Florida, at Key West, from
1847 to 1863.
[15] According to the Supreme Court of the United States:
Courts of Admiralty usually consider the following circumstances as the main ingredients in determining the amount of the reward to be
decreed for a salvage service: (1) The labor expended by the salvors in rendering the salvage service. (2) The promptitude, skill and
energy displayed in rendering the service and saving the property. (3) The value of the property employed by the salvors in rendering the
service and the danger to which such property was exposed. (4) The risk incurred by the salvors in securing the property from the
impending peril. (5) The value of the property saved. (6) The degree of danger from which the property was rescued.
The Blackwall, 77 U.S. (10 Wall.) 1, 14, 19 L.Ed. 870 (1869).
[16] The State claims ownership of this abandoned property both by statute and by its filing of a claim in this action; this ownership claim is
discussed supra, Section II.B., in relation to Florida's Eleventh Amendment argument.
[17] As indicated in the Eleventh Amendment discussion, a salvage award and the State's share in a case like this would be in the form of
actual items recovered, not money.
[18] One scholar has described Justice Harlan's opinion in Kossick as being "as careful and specific an explanation of the interestbalancing process in personal injury cases as has been ventured in any of the cases." Robertson, Admiralty and Federalism 255 (1970).
[19] In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 378, 97 S.Ct. 582, 591, 50 L.Ed.2d 550 (1977),
the Supreme Court held that state law should govern a question of title to real property resulting from the changed course of a navigable
river that was not an interstate boundary. "[S]tate law governs issues relating to ... real property, unless some other principle of federal
law requires a different result."
[20] The technical term for information concerning the exact location, depth, etc. of the artifacts is "archeological provenience."
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
37/38
3/29/2016
Cobb Coin v. UNIDENT., WRECKED & ABAN. SAIL. VESSEL, 525 F. Supp. 186 - Dist. Court, SD Florida 1981 - Google Scholar
[21] Further, Florida has, in the past, frequently licensed Mr. Fisher's salvage companies, so any assertion of his dishonesty would be
specious.
[22] Pursuant to the State's motion for an injunction, the Court instead ordered that a State agent be present on the plaintiff's salvage
vessels for purposes of documenting each artifact that is recovered.
[23] The Court in Kossick also distinguished the case from Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99
L.Ed. 337 (1955), in which "the application of state law was justified ... on the basis of a lack of any provision of maritime law governing the
matter there presented." 365 U.S. at 742, 81 S.Ct. at 894. As the discussion above indicates, there is no absence of substantive maritime
law in the instant case.
[24] The state's title to abandoned marine property as an inherent prerogative of its sovereignty has been recognized in only three
American cases: Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 371 F.Supp. 356 (S.D.Tex. 1973), rev'd on other grounds, 508
F.2d 1113 (5th Cir. 1975); State ex rel. Bruton v. Flying "W" Enterprises, Inc., 273 N.C. 399, 160 S.E.2d 482 (1968); and State By and
Through Ervin v. Massachusetts Co., 95 So.2d 902 (Fla.1957). All three have been roundly criticized in academic literature. See Kenny &
Hornsoff, The Ownership of the Treasures of the Sea, 9 Wm. & Mary L.Rev. 383 (1967-68); Note, Abandoned Property: Title to Treasure
Recovered In Florida's Territorial Waters, 21 U.Fla.L.Rev. 360 (1969).
[25] See Section II.A.1.b., supra.
[26] In contrast, the State's licensee, Quest Corporation, was notably unproductive in the period it exercised exclusive "control" of the site
by virtue of its lease. Whether lack of diligent effort or lack of competence was the cause of Quest's low rate of retrieval need not now be
determined. For purposes of the injunction, what is material is Cobb Coin's unquestioned success and thereby its contribution to the
recognized interests of the State.
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=525+F.Supp+186+&hl=en&as_sdt=400006&case=14161017142094675889&scilh=0
38/38
4/25/2016
Cobb Coin Co. v. UNIDENTIFIED WRECKED, ETC., 525 F. Supp. 229 - Dist. Court, SD Florida 1981 - Google Scholar
525 F.Supp. 229 (1981)
COBB COIN COMPANY, et al., Plaintiffs, v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, etc., Defendant.
Nos. 79-8266-Civ-JLK, 79-8356-Civ-JLK, 79-8342-Civ-JLK and 80-8093-Civ-JLK.
United States District Court, S. D. Florida.
November 5, 1981.
David Paul Horan, Key West, Fla., for plaintiff.
230
*230 Linwood Anderson, Smathers & Thompson, Miami, Fla., Harold Ward, Fowler, White, Burnett, Hurley, Banick &
Strickroot, P. A., Miami, Fla., Lloyd Bates, Jr., Asst. U. S. Atty., Miami, Fla., Susan Gamble, Asst. Atty. Gen., Tallahassee,
Fla., Clinton Lanier, Vero Beach, Fla., Jim Smith, Atty. Gen., Tallahassee, Fla., for defendant.
ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTIONS
FOR PRELIMINARY INJUNCTION
JAMES LAWRENCE KING, District Judge.
This cause is before the Court on the plaintiff's motion for a temporary restraining order, and preliminary and permanent
injunction and the response thereto by the State of Florida in each of the above-listed cases. As to Case No. 79-8266,
this Court has granted the relief sought by plaintiff and entered a temporary injunction on October 2, 1981. 525 F.Supp.
186. That injunction was based on this Court's conclusion first, that federal maritime salvage principles preempted the
State of Florida's Archives and History Act with respect to salvage in the Atlantic Ocean. A second and necessary
element of the injunction was that the plaintiff demonstrated that it, as compared to other parties before the Court, was
entitled to the protection of the admiralty court to allow it to continue working the Corrigan Wreck Site.
The plaintiff now moves for similar injunctive relief with respect to three other wreck sites. For two such sites, the subjects
of Case Nos. 79-8342 and 80-8093, the plaintiff has submitted no facts which demonstrate it is entitled to the Court's
injunctive relief. Therefore, it is hereby
ORDERED and ADJUDGED that the motions for temporary restraining order, preliminary and permanent injunction in
Case Nos. 79-8342-Civ-JLK and 80-8093-Civ-JLK be and the same are hereby denied.
The plaintiff's motion for injunctive relief in Case No. 79-8356 (Cabin Wreck Site) raises more serious questions.
Accompanying the motion are affidavits which indicate that Cobb Coin's agents began surveying the site in earnest in
mid-July, 1981, and began salving continuously from on or about August 1, 1981 until it was either ousted by a
competing salvor or deterred by the State's criminal prosecution. The affidavits, and some of the issues raised in the
State's memorandum opposing the motion for the injunction, give rise to substantial questions going to whether the
plaintiff satisfies the requirements of the maritime law that justify the Court's protection on a salvage site. These will have
to be resolved in a hearing in which the parties will attempt to demonstrate who has superior rights to salve this wreck
site. Thus, as for the first element that a movant must show for injunctive relief, probability of success on the merits, Cobb
Coin would have to demonstrate its superior equities relative to the Cabin Site, within the guidelines and legal principles
established in this Court's October 2, 1981 Injunctive Order entered in Case No. 79-8266-Civ-JLK.
The other three elements necessary to support injunctive relief are irreparable injury to and balance of hardship upon
the movant, and a showing that the requested injunction would not be adverse to the public interest. The motion
https://scholar.google.com/scholar_case?q=Cobb+Coin+v.+The+Unidentified+Wreck,+et+al.+&hl=en&as_sdt=400006&case=16888610704164617027&scilh=0
1/5
4/25/2016
Cobb Coin Co. v. UNIDENTIFIED WRECKED, ETC., 525 F. Supp. 229 - Dist. Court, SD Florida 1981 - Google Scholar
indicates that the state criminal trial is scheduled for November 9, 1981. Surely, being subject to criminal prosecution for
exercising what might well be one's federal rights constitutes irreparable injury, and this Court intends to enjoin the State
criminal prosecution until the other matters are resolved. See October 2, 1981 order, Case No. 79-8266-Civ-JLK, 525
F.Supp. p. 200 n. 6 (under "alternative test" for preliminary injunctive relief, the presence of substantial questions on the
merits, combined with the threat of immediate, irreparable injury, may support entry of preliminary injunction). The injury
to the State in foregoing the prosecution at this stage is slight compared to the injury that would be visited on Cobb
Coin's employees and agents if the State of Florida prosecutes them criminally. Further, the Court perceives no damage
to the public interest if the injunction issues.
231
*231 It is well-settled that a federal court is generally reluctant to interfere with state criminal proceedings because of
statutory restraints, see 28 U.S.C. § 2283, and because of respect for the doctrine of comity. But, in the language of the
Fifth Circuit:
"the sharp edge of the Supremacy Clause cuts across all such generalizations. When a State, under the
pretext of preserving law and order uses local laws, valid on their face, to harass and punish citizens for
the exercise of their ... federally protected statutory rights, the general principle must yield to the
exception: the federal system is imperiled."
United States v. McLeod, 385 F.2d 734, 745 (5th Cir. 1967), quoting Cox v. Louisiana, 348 F.2d 750, 752 (5th Cir. 1965).
See also Mitchum v. Foster, 407 U.S. 225, 234-35, 92 S.Ct. 2151, 2157-58, 32 L.Ed.2d 705 (1972). In the maritime field,
federal rights recognized under judicial interpretations of the law are equally to be protected. See Moragne v. States
Marine Lines, 398 U.S. 375, 405 n. 17, 90 S.Ct. 1772, 1790 n. 17, 26 L.Ed.2d 339 (1970). This Court thus concludes that,
as in McLeod, "[i]n this case neither Congress nor comity requires the court to stay its hand." McLeod, 385 F.2d at 745.
The governing statute, 28 U.S.C. § 2283, provides:
A court of the United States may not grant an injunction to stay proceedings in a State court except as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.
This case is clearly within the latter two exceptions to the general rule. The State of Florida's continued attempts to
prosecute Cobb Coin's agents and employees despite the ongoing proceedings in the Federal Admiralty Court interfere
impermissibly with this Court's jurisdiction. The plaintiff Cobb Coin has filed its in rem actions herein, and this Court will
determine all the parties' rights under the federal maritime law. That determination will occur according to the orderly
processes of the Federal Statutes and Rules of Procedure. The State of Florida's criminal prosecution of salvors involved
in these federal proceedings both interferes with this Court's jurisdiction, and impedes the Court's ability to protect or
effectuate its judgments. Therefore, there is no statutory bar to an injunction of the State criminal prosecution.
Neither do considerations of comity warrant allowing the State to prosecute criminally the parties to this federal litigation
or any of their employees. The comity considerations which normally counsel federal judicial forbearance are completely
inapposite in this case. Comity considerations are based, first, on a trust that the state courts will adequately protect an
individual's federal rights with direct review by the Supreme Court to correct any error in the State Courts' constitutional
analysis. The second consideration underlying the comity concept is respect for the orderly administration of justice in
the state courts.
In this case, the federal admiralty proceedings were instituted over two years ago. None of the State's numerous efforts
to arrest or indict Mel Fisher or any other of Cobb Coin's agents and employees began until after the institution of the
various actions in the federal court. The courts have recognized that a federal cause of action exists for determining a
salvor's rights in the type of shipwrecks involved in the above-styled suits. See, e.g., Treasure Salvors, Inc. v. The
Unidentified, Wrecked and Abandoned Sailing Vessel, 640 F.2d 560 (5th Cir. 1981). Nevertheless, as a supplement to its
participating in the orderly judicial determination of the parties' rights under traditional salvage principles, the State has
attempted to harass the plaintiff by instituting criminal prosecutions against the people the plaintiff has hired to assist it in
pursuing its colorable federal rights. Neither comity consideration applies because the reverse of the typical case
https://scholar.google.com/scholar_case?q=Cobb+Coin+v.+The+Unidentified+Wreck,+et+al.+&hl=en&as_sdt=400006&case=16888610704164617027&scilh=0
2/5
4/25/2016
Cobb Coin Co. v. UNIDENTIFIED WRECKED, ETC., 525 F. Supp. 229 - Dist. Court, SD Florida 1981 - Google Scholar
occurred here; rather than this Court interfering with the State judicial proceedings, it is clear that the State of Florida's
232
officials and agents have knowingly, flagrantly, and impermissibly attempted to usurp the Federal *232 Court's proper
exercise of its jurisdiction. The plaintiff's uncontroverted allegations indicate that the Florida Marine Patrol officers, the St.
Lucie County Sheriffs and other executive law enforcement officers, and even the county court judge knew specifically of
the cases pending before this Court.
It would be disingenuous to consider the State Court prosecution in light of traditional comity notions. The defendants'
ability to assert their federal defenses, or the States' orderly administration of "justice" are absent when the State Court
improperly purported to assume jurisdiction in the first instance. The United States District Court has sole and exclusive
jurisdiction over determining the parties' rights to work on the sites named in the above-listed suits. Given the ongoing
federal proceedings relating to the subject wrecksites, the State's executive and judicial officers have no authority
whatsoever to attempt to enforce those provisions of Chapter 267 which purport to supplant federal admiralty jurisdiction.
Furthermore, there appears to be no other adequate means to protect the plaintiff's employees and agents other than by
enjoining the scheduled State Court prosecution. As indicated above, being subject to the processes of the State
criminal law system is irreparable and impermissible injury when that prosecution arises from the plaintiff's exercise of
rights then being determined in the federal court. And any other remedy than this injunction, including an appeal or other
procedure, would be totally inadequate to protect against this injury. To allow the November 9th trial to proceed would be
to permit the State Court to preempt the already vested federal jurisdiction. It is the reluctant conclusion of this Court that
the following injunction is necessary to stop state officials from acting in derogation of law and interfering with the
jurisdiction of this Court. It is therefore:
ORDERED, ADJUDGED and DECREED as follows:
1. The state attorney or any assistant state attorney for the Nineteenth Judicial Circuit of Florida, with jurisdiction to
prosecute crimes in Indian River, St. Lucie, Okeechobee and Martin Counties, or any other state attorney in Florida who
might hereafter be assigned to that circuit, are hereby enjoined from proceeding in the presently pending criminal
prosecution of Dawson Lee Chaney, Sr., Lt. Cdr. John J. Berrier, USN (Retired), and Chuck Herehold, Case Nos. 811122 MM, 81-1124 MM, 81-1125 MM, 81-1307 MM, 81-1308 MM, 81-1309 MM in the County Court in and for Indian
River County, Florida, now scheduled for November 9, 1981.
2. The Attorney General of the State of Florida, and his officers, agents, employees and all assistants acting by and
under his ability and control are hereby enjoined from prosecuting any of the above-named individuals in the abovenumbered cases, or any persons for surveying or salvaging any wreck which is the subject of a case pending in the
United States District Court.
3. The Sheriff of Indian River County, Florida, and all of his deputies, marshalls, or their agents and employees, are
hereby enjoined from executing any writs, warrants, orders, attachments, or other processes which may flow or emanate
from the Indian River County Court or any other Court of the State of Florida with respect to the above-mentioned
criminal prosecutions. The Sheriff and his deputies, marshalls, or their agents, are hereby further enjoined from arresting
233
or producing the bodies of any of the above-named individuals on November 9, 1981, or any time before or after that
date, before the Courts of the State of Florida, until further order of the United States District Court for the Southern
District of Florida. Furthermore, any sheriff or executive officer of the State of Florida who might hereafter be assigned to
Indian River County or the Nineteenth Judicial Circuit as successor to or substitute for the present incumbents is hereby
enjoined from executing any and all writs, orders, warrants, attachments, or processes of any sort which may flow from or
emanate from any State Court, or from arresting or producing the bodies of any of the above-named individuals for
purposes of *233 criminal prosecution arising out of or related in any way to the salvaging activities surrounding the
wrecks which are the subject of the above-listed cases.
4. The Florida Marine Patrol, and its captain, deputies and all its agents, officers, and employees are hereby enjoined
from arresting or executing any writs, warrants, attachments, or other processes on any persons involved with activities
on the sites which are the subject of this lawsuit.
5. The Florida Division of Archives, History and Records Management, Ross Morrell, Director, and any other of the
https://scholar.google.com/scholar_case?q=Cobb+Coin+v.+The+Unidentified+Wreck,+et+al.+&hl=en&as_sdt=400006&case=16888610704164617027&scilh=0
3/5
4/25/2016
Cobb Coin Co. v. UNIDENTIFIED WRECKED, ETC., 525 F. Supp. 229 - Dist. Court, SD Florida 1981 - Google Scholar
Division's agents, officers, employees, or agents, are hereby enjoined from attempting to enforce any portion of chapter
267, Florida Statutes, as relates in any way to the salvaging activities of the plaintiff Cobb Coin Company or its agents or
employees on the sites which are the subject of these lawsuits.
6. The individual defendants named above, Dawson Lee Chaney, Sr., Lt. Cdr. John Berrier, USN (Retired), and Chuck
Herehold, are hereby enjoined from appearing before the Indian River County Court for the above-listed cases now
scheduled for November 9, 1981, at any time the State may attempt to try such cases, arising out of matters or incident to
activities on the wrecks which are the subject of the above-listed cases.
7. The bonds payed by the above defendants for their release pending trial in the above-listed criminal cases in the
Indian River County Court are hereby cancelled, and the defendants are hereby released from any obligations under the
bonds.
8. The criminal trial now scheduled for November 9, 1981, in the Indian River County Court against the above-named
defendants is hereby enjoined. The Judge, of the County Court in and for Indian River County, Florida, and any other
County or Circuit Judge who may be assigned the trials of the above-named defendants now scheduled for November 9,
1981 be and they are hereby enjoined from conducting such trials. The United States District Court, Southern District of
Florida, has sole and exclusive jurisdiction of the matters relating to the subject wrecksites at this time. All other courts
and tribunals are without authority to act so as to attempt to deprive this Court of its lawful and appropriate jurisdiction.
9. All of the plaintiff's agents, officers and employees are to be protected from any scheduled criminal prosecution or any
aspect of any threatened criminal prosecution arising out of activities on any of the sites which are the subject of these
lawsuits.
10. This Order shall be personally served by the United States Marshall for the Southern District of Florida upon the
Judge of the County Court of the Nineteenth Judicial Circuit in and for Indian River County, the Sheriff of Indian River
County, the State Attorney for the Nineteenth Judicial Circuit of Florida and for Indian River County, the Attorney General
of the State of Florida, the commanding officer of the Florida Marine Patrol, the captain of the Florida Marine Patrol, Vero
Beach Office, and Ross Morell, Director of the Florida Division of Archives, History and Records Management. It shall be
served by mail upon all other parties named in the list appended hereto.
11. All further search and salvage activity on the three wrecksites which are the subjects of Case Nos. 79-8356, 79-8342
and 80-8093 by any person or party, or any agents, successors or assignee of any person or party, including but not
limited to the plaintiff in these cases and any individuals or corporations purporting to act under a license issued by the
State of Florida, is hereby enjoined until further order of this Court.
APPENDIX
INDIVIDUALS TO BE SERVED PERSONALLY
VERO BEACH
234
Hon. Graham W. Stikelether County Judge Nineteenth Judicial Circuit Indian River County Vero Beach Courthouse 2001
Bldg. Vero Beach, Florida 32906 *234 Capt. Robert Patterson Florida Marine Patrol Division of Law Enforcement
Department of Natural Resources 1845 20th St. Vero Beach, Florida
TALLAHASSEE
Mr. Ross Morrell Director of the Division of Archives, History and Records Management State of Florida Department of
State c/o R.A. Grey Bldg. Tallahassee, Florida 32301 Hon. Jim Smith Attorney General State of Florida The Capitol
https://scholar.google.com/scholar_case?q=Cobb+Coin+v.+The+Unidentified+Wreck,+et+al.+&hl=en&as_sdt=400006&case=16888610704164617027&scilh=0
4/5
4/25/2016
Cobb Coin Co. v. UNIDENTIFIED WRECKED, ETC., 525 F. Supp. 229 - Dist. Court, SD Florida 1981 - Google Scholar
Tallahassee, Florida Col. John Walker, Commanding Officer Florida Marine Patrol Division of Law Enforcement
Department of Natural Resources 3900 Commonwealth Bldg. Tallahassee, Florida 32303
FT. PIERCE
Hon. Robert E. Stone State Attorney 217 S. 2nd Street Ft. Pierce, Florida 33450
VERO BEACH
Sheriff R. T. "Tim" Dobeck Courthouse Vero Beach, Florida
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?q=Cobb+Coin+v.+The+Unidentified+Wreck,+et+al.+&hl=en&as_sdt=400006&case=16888610704164617027&scilh=0
5/5
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
549 F.Supp. 540 (1982)
COBB COIN COMPANY, INC., a Florida corporation, et al., Plaintiff, v. The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL, etc., Defendant.
No. 79-8266-Civ-JLK.
United States District Court, S.D. Florida.
August 31, 1982.
544
543
542
541
*541 *542 *543 *544 David Paul Horan, Key West, Fla., for plaintiff.
Linwood Anderson, Harold Ward, Lloyd G. Bates, Miami, Fla., George Moss, Vero Beach, Fla., for defendant.
MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND
CONCLUSIONS OF LAW
JAMES LAWRENCE KING, District Judge.
The cultural heritage of the western world, the colonial appetite of the Spanish Empire, nearly three centuries of man's
timeless quest for wealth and adventure, and the distribution of authority in the American Federalist legal system are all
substantially intertwined in this litigation. This is an admiralty suit by a treasure salvor, Cobb Coin Company, to be
declared owner in possession of a wrecked eighteenth century Spanish treasure galleon, or alternatively for an award
for salvage services performed on the vessel. The vessel was carrying a king's treasure from the New World to Spain
when it was wrecked, along with ten sister ships of the Spanish Plate Fleet, in a devastating hurricane in July 1715. The
vessel came to rest on an expanse of sandy bottom under the Atlantic Ocean which, two hundred thirty-eight years later
became for some purposes the undisputed sovereignty land of the State of Florida.
On August 17, 1979, the plaintiff Cobb Coin filed its complaint for a declaration of its rights in a wrecked vessel located
"within 3,000 yards of a point [b]eginning at coordinates 27° 43.8' N. latitude by 80° 22.8' W. longitude." Three days later
the plaintiff retrieved a cannon from the wreck site. On August 29, 1979, the State of Florida answered the complaint, and
counterclaimed by asking this Court to declare it owner of the vessel and for restitution from the plaintiff for items it had
salved. The State contends it owns all such wrecks within its territorial waters under its Archives and History Act, chapter
267, Florida Statutes (1979), and thereby has plenary authority to administer their salvage.
545
In the ensuing two and one-half years, Florida's executive branch attempted to enforce its archives and history statute, by
arresting and attempting to prosecute the plaintiff's agents and employees from salving the wreck site, despite this court's
prior assumption of jurisdiction over this admiralty action. In August, 1979, the Honorable Sidney M. Aronovitz, United
States District Judge, denied the plaintiff's motion to enjoin the State in that effort, without prejudice to its right to reapply
if the State's actions reached the level of badfaith harassment. In October of 1979, the State moved to enjoin the plaintiff
from working the subject site; the motion was denied for, inter alia, lack of irreparable injury as this court ordered the
State's interest protected by the placement of its agents on board Cobb Coin's salvage vessel to catalogue the items
salved. In June of 1981, the plaintiff Cobb Coin again moved for an injunction against State officers from enforcing the
statute by continuing to threaten, and, in fact, arrest, the plaintiff's *545 salvaging crew. On July 7, 1981, this Court
entered its temporary restraining order against the impermissible interference by state officers and attorneys with the
ongoing jurisdiction of the federal admiralty court. Thereafter, following an eleven-day hearing, the Court entered a
preliminary injunction against "[t]he agents, employees, and attorneys of the State of Florida, including but not limited to,
any county sheriff or Florida Marine Patrol Officer, ... from interfering with the plaintiff's ongoing salvage operations or
arresting the plaintiff's officers, agents, and employees." Cobb Coin Co. v. The Unidentified, Wrecked and Abandoned
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
1/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
Sailing Vessel, 525 F.Supp. 186, 220 (S.D.Fla.1981). This Court held a two day non-jury trial in this case at the United
States Courthouse at Miami, Dade County, Florida, on June 16th and 17th, 1982. The parties relied in substantial part
upon the evidence admitted in the eleven-day hearing on the motion for preliminary injunction and offered some
additional evidence. The Court, upon consideration of the evidence and argument of counsel, hereby enters its findings
of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).[1]
I. FINDINGS OF FACT
For a number of years residents of the Florida East Coast and people interested in treasure hunting have known that the
wrecks of the 1715 Spanish Plate Fleet are scattered beneath Atlantic waters near Florida's shoreline. The named
defendant in this case consists of the remains of what is believed to be the Almiranta of the New Spain Group of the
1715 Plate Fleet, known to the Spanish by two names: San Christo del Valle and Nuestra Senora de la Concepcion. Tr.
at 568 (hereinafter referred to as "Almiranta"). It lies some 100 feet from the shore off what once was Hugh "Papy"
Corrigan's property, about 3½ miles north of Vero Beach midway between the Ft. Pierce Inlet and the Sebastian Inlet.
Early accounts of the various wrecks along the eastern coast were made as early as 1750, and evidence of their
presence has surfaced periodically over the years. The city of Ft. Pierce Chamber of Commerce reportedly salvaged 16
cannons and three massive anchors from the area of the wrecks in the summer of 1928. A number of the cannons for
years were displayed in public parks and even in front of a local sporting goods store; other cannons recovered were
sold for scrap. See State's Exhibit No. 80. Gold coins have washed up upon the beaches near Ft. Pierce and Vero Beach
since at least the early 1940's. See State's Exhibit No. 80. As early as 1958, various books and popular journals reported
the story of the 1715 Plate Fleet, including the names and general locations of the ships wrecked, the cargo believed to
be carried by, and the number of sailors lost on, each. See Joint Exhibits No. 27-30, and State's Exhibit No. 80. The
Trustees of the Internal Improvement Fund of the State of Florida began entering into leases with treasure hunters for
exploration and salvage of the wrecks in 1950. In 1958, the Trustees of the Internal Improvement Fund adopted for the
first time formal restrictions governing salvage and treasure leases on state submerged lands. See State's Exhibit No.
80.
546
In the late 1950's, Mr. Kip Wagner, a house painter from Wabasso, Florida, became interested in identifying the source of
silver "pieces of eight" which could be found on the beach between Sebastian Inlet and Ft. Pierce. Captain Steadman
Parker, a resident of the area for over forty years had first pointed the coins out to Wagner. Wagner formed an association
with a group of weekend scuba divers to search for more treasures on wrecks he knew were located somewhere off
shore; that group became the Real Eight Salvage Co. In 1960 Real Eight obtained a nonexclusive lease from the
Trustees of the Internal Improvement *546 Fund to explore and salvage a 50-mile long, one-mile wide strip of
submerged lands, 500 feet off shore, between the Sebastian Inlet to the south and the city of Stuart to the north. The
Trustees extended the lease in 1961 for six years, and made it exclusive. That and subsequent leases entered by the
State have provided that the Division of Archives and Records Management receive 25 per cent of the articles salved.
Wagner and his group located and worked at least eight wreck sites from the 1715 fleet along the east coast, including
the Corrigan's wreck site which is the subject of this litigation. See States Exhibit No. 68.
In the summer of 1963, Mr. Mel Fisher, owner of a scuba diving shop, came to Florida from California and became
associated with Mr. Wagner and Real Eight. Mr. Fisher formed salvaging groups named Universal Salvage Co., Cobb
Coin Co., and Treasure Salvors, Inc. Between October 1963 and August, 1972, Mr. Fisher's companies and Real Eight
worked some of the sites of 1715 wrecks pursuant to various agreements, under authority of Real Eight's State leases.
Under these agreements, they divided their recoveries 50-50 after deducting 25 percent for the Division of Archives and
Records Management. The combined effort yielded large quantities of gold, silver, and other valuable artifacts.[2] See
Plaintiff's Exhibits No. 8 and 9 and State's Exhibit No. 68. Although the State's archivists admit to having received these
artifacts, none could testify with certainty what the State now has, nor are there any records of precisely which of the
artifacts it received came from the Corrigan site or other wrecks of the 1715 Fleet. See State's Exhibit No. 68. Real Eight
terminated its contract with Fisher's company in 1972. At that time, Mr. Fisher was apparently devoting more of his
attention to the search for the treasures of the Atocha and Santa Margarita, which sank in 1622 40 miles west of Key
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
2/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
West. Mr. Fisher testified that he gave up on the east coast wrecks because the State officials were slow in sending field
agents to accompany salvage vessels and in returning the salvors their share of the recovery. Real Eight Co. retained
the exclusive lease with the State and relinquished it voluntarily in October, 1977. The State then issued a lease on the
Corrigan site to the Quest Corporation, an intervening claimant in this suit. Quest still holds the lease purporting to give it
the exclusive right to search and explore the water over the Corrigan wreck site.
The full record of evidence adduced at the eleven-day hearing on the plaintiff's motion for a preliminary injunction, which
was admitted into evidence by agreement of all parties at the trial on the merits, shows that Quest actually went out to the
Corrigan site for either exploration or diving forty-nine (49) days during the first two years it held the State lease. See
testimony of Mr. Charles Kenworthy, Tr. at 165-169. Mr. Kenworthy testified that he searched the area by "remote
electronic work," including satellites, when they were not diving on the site. His employees, however, testified that they
never used satellites to search the area. See Tr. at 881, 889-90. Quest's employees also testified that, during the time
Quest held the lease on the Corrigan site, its captains chose to work other sites in the area, consciously ignoring
Corrigan's site regardless of the relative salvaging conditions at either site. See testimony of Mr. James Ryan, Tr. at 813,
and Mr. Randy Lathrop, Tr. at 898 (Quest ignored Corrigan's "four out of five times.") It is clear from the testimony that
while it held the lease, Quest was less interested in Corrigan's than in a site north thereof, "E-56", on which Quest held
an "exploratory lease." Tr. at 880.
547
Mr. Kenworthy stated that his company recovered sixteen (16) silver coins from Corrigan's *547 in its two years of
salvage under the exclusive State lease. Tr. at 92. The State's representative testified that Quest found nine (9) coins.
The coins were turned over to the State for safekeeping; they have since disappeared.
On August 17, 1979, when the plaintiff, Cobb Coin Co. Inc., filed its admiralty complaint in this Court, Quest was not
working the site. Mr. Mel Fisher, the President of Cobb Coin Co., notified the United States Marshal that he intended to
retrieve a cannon from the Corrigan site on August 20, 1979. Quest's salvors testified that when they arrived at the dock
on August 20 there was great excitement over the expected arrival of "other salvors" who were coming to "take over
[Quests's] site." Testimony of James Ryan, Tr. at 882. Two State Agents were on board Quest's salvage boat when they
left the dock that day, and, instead of turning northward to E-56 as they generally did, Quest went south to Corrigan's
wreck site. A diver for Quest testified that they watched a boat come into view, put what he believed to be a
magnetometer over the water and make several passes, when a second boat arrived, anchored, put divers into the
water, and retrieved a cannon in about 15 minutes. It is this cannon turned over to the United States Marshal by Cobb
Coin, that is asserted as the basis for in rem jurisdiction in Federal Court.
Since August of 1979, Cobb Coin has worked the wreck site in question as diligently as can be expected considering the
natural salving conditions and the State's attempts to stop its efforts. Cobb Coin worked the Corrigan site the few days
that remained in the 1979 salvage season after this suit was filed, thirty (30) days in 1980, and a total of 56 vessel-days
in 1981. See State's Exhibits No. 26 and 67, Plaintiff's Exhibit No. 31, and Tr. at 784. The evidence indicates that the
vessels were unable to work due to unfavorable conditions approximately as many days as they were able to work. Id.
The claimants offered no evidence that Cobb Coin failed to work the site diligently, given the prevailing conditions. The
1982 salvage season began in June; Cobb Coin did not introduce any evidence as to its 1982 salvage efforts.
Cobb Coin Co. Inc., during the period it has worked the Corrigan site since filing this suit, has successfully retrieved
several artifacts of treasure and of historic and archeological value. During the brief 1979 salvage season, Cobb Coin
retrieved only pottery fragments, ballast stones, nails, and the cannon; it found "no high value items" such as gold or
silver. Tr. at 275. In 1980, the plaintiff recovered 734 individual silver coins, two gold discs, 10 clumps of inseparable
silver coins, and 300 pieces of "encrusted objects." In 1981, it recovered 25 or 30 "encrusted objects," 300 silver coins,
and 12 Royal Eight Escudo gold coins. The Royal Eight Escudos are in "fairly good shape." Tr. at 806. Many of the silver
coins are pieces of eight, minted in 1713; the value of one is now estimated at $500.00 to $600.00. The value of a Royal
Eight Escudo is estimated to range between $5,000.00 and $12,000.00, depending on the quality of the coin. Tr. at 806.
These Findings of Fact provide the general background for an understanding of the history of this wreck. As the section
below applying the governing law indicates, the events occurring prior to 1977 at the wreck site are immaterial to the
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
3/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
determination of the parties' rights in this suit. Briefly, this Court holds that under the maritime law, the unnamed,
wrecked, and abandoned sailing vessel believed to be the Almiranta, and her tackle, armament, etc., was in a state of
abandonment when the plaintiff filed this suit and reclaimed the cannon from the wreck site. There is no need to
determine what interest any of the plaintiff companies[3] acquired or failed to acquire during the period between 1960
548
and *548 1977; all have abandoned any possible claim to this wreck under the law of finds. Further, the plaintiff, Cobb
Coin Company, Inc., and its purported assignors, waived any right to seek a salvage award in the admiralty court for pre1979 recoveries by conducting their operations under the above-mentioned, indisputably valid, leases with the State of
Florida.
II. CONCLUSIONS OF LAW
1. This Court has jurisdiction over the subject matter of this case on the basis of the admiralty and maritime jurisdiction,
28 U.S.C. § 1333.
2. This Court has jurisdiction in rem over the artifacts which have actually been brought up and turned over to the United
States Marshal. The Court also has maritime jurisdiction based on in personam principles to adjudicate disputes
between competing salvors or claimants who have made their interests known by answering the admiralty complaint.
Finally, the Court has in rem jurisdiction, coupled with in personam jurisdiction over the claimants, to dispose of all
articles brought up from the site of this wreck from the inception of the lawsuit.[4] Cobb Coin, 525 F.Supp. at 194-97.
3. This case is governed by the federal maritime law of salvage, not the Florida Archives and History Act, § 267.031,
.061, .10, .12, .13, and .14, Fla.Stat.Ann. (West Supp.1982), and the regulations promulgated thereunder,
Fla.Admin.Code Rules 1A-21.01 et. seq.
a. In an admiralty action in the federal district court, state legislation that conflicts with federal maritime principles cannot
be given effect under the supremacy clause of the United States Constitution, article VI, clause 2. Cobb Coin, 525
F.Supp. at 201, citing Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1916). See discussion
in Cobb Coin, 525 F.Supp. at 200-13.
b. Congress has largely left to the courts the responsibility for fashioning the rules of admiralty law, so the principles
governing the instant admiralty action derive from rules developed by the American Admiralty Courts. Cobb Coin, 525
F.Supp. at 201; citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 405, 90 S.Ct. 1772, 1790, 26 L.Ed.2d 339
(1970).
c. An in rem action for a salvage award against artifacts recovered from the remains of a centuries-old shipwreck states a
claim within this Court's admiralty jurisdiction, governed by the judicial law of finds or doctrine of maritime salvage. Cobb
Coin, 525 F.Supp. at 203, citing Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569
F.2d 330 (5th Cir.1978) (Treasure Salvors I).
d. Florida's statutory and regulatory framework for the exploration, recovery, and disposition of sunken historic artifacts is
inconsistent with federal maritime principles in at least three material respects:
1) Florida law requires that one obtain a state license to be able to explore the navigable waters for abandoned or
derelict property, in contravention of the maritime principle that potential salvors or finders are free to search and explore
the open waters for salvageable sites. Cobb Coin, 525 F.Supp. at 203-04.
2) Florida law permits a state licensee the exclusive right to salve an area regardless of the licensee's diligence or
success, whereas the law of maritime salvage or finds protects a salvor's right to uninterrupted possession of a project
only where the salvor exercises due diligence and is reasonably successful in saving the subject property. Cobb Coin,
525 F.Supp. at 204-07.
3) Florida's system of fixed salvor compensation conflicts with the flexible maritime law's flexible method of remuneration
based on risk and merit. Cobb Coin 525 F.Supp. at 207-08.
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
4/18
3/29/2016
549
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
*549 4. No federal statute or governing legal principle requires this Court to apply state law or any law other than the law
of maritime salvage.
a. The federal interest having a uniform law govern the rights of maritime salvors outweighs the federalism
considerations that ordinarily call for every presumption in favor of enforcing state statutes, where uniformity serves to
apprise salvors of governing standards regardless of a wreck's location, where the subject matter of the statute is not
"peculiarly a matter of state and local concern," Cobb Coin, 525 F.Supp. at 209-11.
b. Florida's salvage framework is not merely an exercise of the state's police power which affects maritime concerns or
creates a remedy for the enforcement of existing federal rights; it interferes with substantial existing federal maritime
rights. Cobb Coin, 525 F.Supp. at 211-13.
c. The Submerged Lands Act of 1953 does not grant the State of Florida such authority over historic artifacts within its
three-mile territorial boundary as to supercede federal maritime jurisdiction over an application of federal principles to
traditional claims by finders or salvors. Cobb Coin, 525 F.Supp. at 213-16.
5. This action is not barred by the Eleventh Amendment. At various times throughout these proceedings, and again in its
post-trial memorandum, the claimant State of Florida has argued that this action is barred by the Eleventh Amendment to
the United States Constitution. In granting the plaintiff's motion for a preliminary injunction against the State's officers,
agents, and employees, this Court held that the instant admiralty action is not so barred. In the intervening time period,
the United States Supreme Court decided Florida Department of State v. Treasure Salvors, Inc., ___ U.S. ___, 102 S.Ct.
3304, 73 L.Ed.2d 1057, (1982), on a writ of certiorari to the United States Court of Appeals for the Fifth Circuit to
determine "Whether the Eleventh Amendment to the United States Constitution Bars an in rem Admiralty Action Seeking
to Recover Property Owned by a State." Id. at ___, 102 S.Ct. at 3313. The Court answered a narrower question. The
majority held that the Eleventh Amendment did not bar the issuance of process against named State officials by a United
States District Court to secure possession of artifacts held by those State officials. The Supreme Court decision in
Treasure Salvors does not disturb this Court's ruling that the instant action is not barred by the Eleventh Amendment.
The question decided by the Supreme Court arose out of an action which is similar to this one in the general sense that
the plaintiff filed an "admiralty in rem action in federal court, seeking a declaration of title to an abandoned sailing vessel
that had been discovered on the ocean floor." Id. at ___, 102 S.Ct. at 3318. In Treasure Salvors, the plaintiff sought to be
put into possession of a Spanish treasure galleon believed to be the Atocha, which sunk in 1622, and to have title
confirmed in it against all claimants and all the world. At the time the artifacts recovered were either in Treasure Salvors'
possession or were held by State officials in Tallahassee pursuant to agreements which had been entered into between
the Division of Archives and History and Records Management and the plaintiff. Items recovered from the Atocha in
Treasure Salvors' possession were served with process and brought into the custody of the Court; most of the wreck and
its cargo remained buried in the sand beneath international waters. When the Fifth Circuit Court of Appeals entered a
550
judgment in favor the Treasure Salvors[5] on the ground that Florida had no claim to a wreck outside its boundary,
Treasure Salvors filed a motion in the district court for an order commanding the United States Marshal to arrest and take
custody of the artifacts held by State officials in Tallahassee *550 and bring them within the jurisdiction of the Court. The
Court issued the warrant to arrest the items, see id. at ___ n. 10, 102 S.Ct. at 3311 n. 10. The State of Florida moved to
quash the warrant and the District Court then issued an order to show cause why the State should not deliver the
artifacts into the custody of the Marshal. In response to the order to show cause the State raised a number of substantive
issues including its Eleventh Amendment defense. The district court held that "the Eleventh Amendment did not bar the
seizure of the artifacts and subsequent transfer to the custody of the Marshal." Id. at ___, 102 S.Ct. at 3313, citing 459
F.Supp. 507 at 527. The Court of Appeals for the Fifth Circuit affirmed, holding that the Eleventh Amendment did not
prevent the Court from resolving the controverted claims to the ownership of the res, since resolution of that dispute was
essential to a determination of whether the Eleventh Amendment in fact barred an exercise of jurisdiction by the federal
court. ___ U.S. at ___, 102 S.Ct. at 3312 citing 621 F.2d 1340 at 1345 (5th Cir.).[6]
The United States Supreme Court affirmed the judgment of the Court of Appeals in part and reversed it in part. A plurality
of Justices held that the "federal court had jurisdiction to secure possession of the property from the named State
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
5/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
officials, since they had no colorable basis on which to obtain possession of the artifacts." ___ U.S. at ___, 102 S.Ct. at
3313. The plurality held, however, that "the Court did not have power ... to adjudicate the State's interest in the property
without the State's consent." Id. Mr. Justice Brennan, concurring in part and dissenting in part, cast the deciding vote and
affirmed the judgment on the ground that the Eleventh Amendment does not bar a federal court suit against a State when
brought by a citizen of that State. He therefore disagreed that the Court of Appeals was precluded from deciding the
question of the State's ownership. Four justices concurred in the holding that it was improper to decide the State of
Florida's interest without the State's permission. They dissented on the Eleventh Amendment question, however, on the
bases that (1) the suit was against the State and (2) the plaintiff's contract with the State, having been entered pursuant
to a statute whose validity was not questioned, "provided a colorable basis upon which the [State's] agents could hold
the property." Id. at ___, 102 S.Ct. at 3323-24 (White, J. concurring in part and dissenting in part).
Eight justices agreed in Treasure Salvors that where a warrant of arrest in rem is directed at officers of a state for the
return of public property in the officers possession, the Eleventh Amendment prevents a federal court from deciding the
question of the State's ownership if the State does not consent to that determination.
This court concludes that a determination of the plaintiff's rights in the instant action is not barred by the Eleventh
Amendment because (1) the suit is not against the State or against the officers of the State and seeks a permissible form
of recovery; and (2) that if it is deemed a suit against the State, Florida has either consented to this Court's determination
of its ownership interest by its actions in the lawsuit and is bound thereby, or must be dismissed as a claimant and left to
its remedies in some other forum.
The plurality opinion in Treasure Salvors established that the Eleventh Amendment issue requires an answer to three
specific questions:
551
(a) Is th[e] action asserted against officials of the State or is it an action brought directly against the State
of Florida itself? (b) Does the challenged conduct of state officials constitute an ultra vires or
unconstitutional withholding of property or merely a tortious interference *551 with property rights? (c) Is
the relief sought by [the Plaintiff] permissible prospective relief or is it analogous to a retroactive award
that requires "the payment of funds from the state treasury"?
Treasure Salvors, ___ U.S. at ___, 102 S.Ct. at 3318. Presumably, the second question is immaterial if the state officials
are not named defendants.
a. This is not a suit against the State or its officers. The plaintiff Cobb Coin Co. filed its in rem complaint invoking the
admiralty jurisdiction of the United States District Court in August of 1979. This action is not against any State officers or
against the State itself; it is an action in which the plaintiff seeks to have his federal rights under the general law of finds
or the maritime law of salvage decided as to these artifacts which were admittedly beneath navigable waters.[7] It is
"against" property which lay untouched and, from a legal standpoint, undiscovered before the plaintiff began this suit.
The wrecked and abandoned sailing vessel is not in the possession of the State or any of its officers.[8] The complaint
asks that the plaintiff be declared owner in possession of the wrecked Spanish treasure galleon or, alternatively, for an
award for salvage services performed on the vessel, her tackle, armament, apparel, and cargo.[9]
The case is premised, in part, on an in rem action against the items which the plaintiff has brought up from the ocean to
552
be declared finder or for an award as salvor.[10] An in rem action of this nature *552 states a claim within this Court's
admiralty jurisdiction. Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1055 (5th Cir.1980) citing
Treasure Salvors, Inc., v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.1978)
(Treasure Salvors I). The complaint also states a claim to the protection of the Court for a continued right to bring home
the property found. Treasure Salvors, Inc., v. The Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560,
567 (1981) (Treasure Salvors III). As is discussed below, the complaint may, and in this case does, state a complete
claim for relief under the law of salvage. No determination of the State's ownership is necessary in the determination of
the plaintiff's rights under federal law.[11]
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
6/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
As this Court stated two years ago in a similar case, the State's Eleventh Amendment argument misconstrues the nature
of the protection to which it is entitled as a sovereign. The State simply has not been sued here; it has voluntarily
undertaken to enter this otherwise complete litigation. This suit is not against the State and is not barred by the Eleventh
Amendment.
There is an equally compelling, alternative reason why this action is not against the State of Florida. Whether an action is
553
one against the State is determined by reference to State law. Aerojet-General Corp. v. Askew, 453 F.2d. 819, 828 (5th
Cir.1971), citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 463, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).
The law of Florida is that an action for relief from *553 actions of a State agency which violate the constitution is not "a
suit against the State" such as would be barred by the doctrine of sovereign immunity.[12] State Road Dep't. v. Tharp, 146
Fla. 745, 1 So.2d 868 (1941). The rule regarding sovereign immunity is direct support for determining what constitutes a
suit against the State for Eleventh Amendment purposes. Treasure Salvors, ___ U.S. at ___ n. 4, 102 S.Ct. at 3326 n. 4
(White, J., concurring in part and dissenting in part). Although the Florida statutory framework purporting to vest
ownership of these artifacts in the State and establishing a framework for governing their salvage is not unconstitutional
on its face, this Court observed in its order granting the plaintiff's motion for preliminary injunction, and holds here, that to
the extent the statute conflicts with the exercise of one's federal rights, it is ineffective. See Treasure Salvors, Inc., v. The
Unidentified Wrecked and Abandoned Sailing Vessel, 459 F.Supp. 507, 524, 527 (S.D.Fla.1978). To repeat briefly the
Court's holding regarding the effectiveness of the Florida Statute in this proceeding, it is not valid in this admiralty suit to
the extent it "works material prejudice to the characteristic features of the general maritime law." As the Court noted in its
earlier order the Florida statute is inconsistent with the paramount maritime law of salvage in at least three respects: (1) it
limits the right to explore navigable waters to search for salvageable sites to its licensees; (2) it permits "salvors" to work
a site exclusively notwithstanding a lack of diligence or success; and (3) it provides a fixed method of compensation in
contrast to admiralty's flexible method of remuneration based on risk and merit. See Cobb Coin, 525 F.Supp. at 203-08.
Therefore, this salvage action in admiralty is not a suit against the state, under the rule of Tharp, where Florida's claim is
basically preempted by the supreme federal law of admiralty.[13]
554
*554 b. The recovery sought is consistent with the requirements of the Eleventh Amendment. Where an action is directed
at state officials to challenge unconstitutional or ultra vires conduct, it is permissible only if it seeks prospective relief and
not relief analogous to a retroactive award that requires "the payment of funds from the state treasury." Treasure Salvors,
___ U.S. at ___, 102 S.Ct. at 3318. Actions against state officials have been barred where, because the ultimate
recovery nonetheless was borne by state taxpayers, the suits were deemed actions against the State itself. The instant
action is neither against the State of Florida nor any of its officials, as noted above. Further, any award to the plaintiff
would be in the form of artifacts it recovered from the ocean, not the payment of funds from the State treasury.
Indeed, the plaintiff's recovery here will not be in the form of money at all. As indicated in the Court's October 2, 1981
order, the appropriate award for the finding or salvage of such artifacts as those at issue here, items uniquely and
intrinsically valuable beyond their monetary worth, is an award in specie, i.e. the artifacts themselves. An award of
"artifacts which had been lost in the ocean depths for over two hundred and sixty-four years, and which, but for the
plaintiff's considerable efforts, would otherwise have remained unknown to the terrestrial world," Cobb Coin, 525 F.Supp.
at 198, does not derogate the fiscal integrity of the State of Florida, and as such is not barred by the Eleventh
Amendment.
c. If this action is considered an action against the State, Florida has consented to a determination of its rights by
intervening in this lawsuit and subjecting its ownership claim for the Court's adjudication. As the Court in Treasure
Salvors stated, a federal court may adjudicate the State's right to property to which the State voluntarily advances a
claim. ___ U.S. at ___, 102 S.Ct. at 3322. Although the State of Florida has nominally asserted its "Eleventh Amendment
immunity," it has voluntarily appeared in this lawsuit, asked the Court to adjudicate its rights, and conducted extensive
litigation on over 30 different issues it claims defeat the interests asserted by the plaintiff including that Florida owns the
wrecked vessel and the artifacts. Initially, the State of Florida actually and expressly subjected the question of its
ownership to the Court for determination when it answered the complaint and filed its counterclaim on August 30, 1979.
Its counterclaim asserted:
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
7/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
3. The STATE is owner of the unnamed wrecked vessel that may be the object of this action, including its
armament, apparel, tackle, or cargo.
4. The unnamed wrecked vessel, its armament, apparel, tackle, are abandoned, wrecked or derelict
property and should be declared the property of the STATE.
5. The STATE is sole owner of such vessel, her armament, apparel, tackle and cargo.
6. The vessel, her armament, apparel, tackle and cargo are treasure trove artifacts or such objects which
have intrinsic or historical and archeological value and which have been abandoned on STATE-owned
sovereignty submerged lands and belong to the State of Florida.
....
8. No other person is in rightful possession of the vessel, its armament, apparel, tackle and cargo.
Wherefore, Plaintiff respectfully requests:
1. That this Honorable Court issue a declaratory judgment that the State of Florida is the sole owner of the
Defendant Unnamed Wrecked and Abandoned Sailing Vessel, its equipment and cargo and,
2. That Plaintiff be ordered to deliver and make restitution to the State of Florida for any part of the
unnamed wreck, its cargo and equipment in Plaintiff's possession.
Intervenor's Answer to Complaint in Admiralty and Counterclaim filed August 30, 1979, File No. 9.
555
*555 Nearly one year after it filed its Answer and Counterclaim, Florida attempted to hedge its position through various
pleading devices. After eleven months the State filed its "restricted claim of owner" in which it stated that it was appearing
"without waiving its sovereign immunity or admitting any jurisdiction in this Court, [and] request[ed] the Clerk to note the
restricted appearance of its attorneys undersigned as authorized under Supplemental Rule E(8), Fed.Rules of Civil
Procedure."[14] Therein, however, it again alleged "that it is the sole owner of Defendant property arrested herein ...."
One month after filing its "restricted claim of owner," the State moved to dismiss its counterclaim.[15] Contrary to the
State's contentions, these devices were ineffective to circumscribe this Court's ability to decide the State's interest in the
artifacts. Florida's pleadings attempted, in effect, to get the Court either to hold that Florida owns the wrecked galleon
and its treasures, or to dismiss the suit as being one against the State. The State cannot have it both ways; it is either in
the suit as a claimant subjecting its rights to decision or else it is out of the suit altogether. See Treasure Salvors, ___
U.S. at ___ n. 20, 102 S.Ct. at 3314 and at 5065, citing Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114
(1978).
The State's procedural attempts to limit the Court's ability to determine its ownership are ineffective for a second reason.
They occurred nearly one year after the State sought several forms of affirmative relief from this Court. Less than one
month after filing its counterclaim, the State moved for a preliminary injunction against the plaintiff's continued salving of
the defendant wreck site under the Court's jurisdiction. That affirmative relief was denied by the Court and the State did
not appeal the order of denial. In the eleven months between the time the State sought an injunction and the time it tried
to "restrict" its claim, and in the subsequent two years, the State's attorneys engaged in extensive motion practice and
discovery; its officers so vigorously attempted to enforce its laws against unauthorized exploration and salvage that it
forced the plaintiff to seek an injunction against the State's bad faith harassment; and it appeared in over thirteen days of
hearings and a trial on the merits in which it litigated over thirty issues of fact and law going to the merits of its claim
relative to the plaintiff's. Of course, the State has continued (since August, 1980) to assert that it was pursuing the
litigation without waiving its rights under the Eleventh Amendment. But this Court holds that if this action is deemed to be
against the State for any reason, the State has waived its Eleventh Amendment immunity by its appearance in this
lawsuit, its assertion of its claims of ownership, and its extensive litigation of numerous issues on the merits.[16]
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
8/18
3/29/2016
556
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
*556 III. ANALYSIS OF THE PLAINTIFF'S RIGHTS
The plaintiff, Cobb Coin Company, Inc., seeks to be declared owner in possession of the defendant wrecksite,
presumably under the general law of "finds" or, alternatively, seeks a salvage award for salvage services performed on
the wrecked vessel under the maritime law of salvage. This Court holds it is unnecessary to apply the law of "finds" in the
instant action because the law of salvage provides a complete and adequate basis for resolving the instant case.
Under the maritime law of salvage, a salvor has the right to search and explore navigable waters for salvageable sites.
Upon "finding" a site which is not being actively and successfully worked by another salvor, he may undertake to rescue
the imperiled cargo and bring it before the Admiralty Court for a determination of a salvage award. Further, the "finder" or
salvor is entitled to protection of the Court to continue working a wreck as long as he exercises such complete and
continuous possession as the circumstances dictate and demonstrates reasonable success in saving the valuables from
their peril.
This Court holds that, under the maritime law of salvage, the unnamed, wrecked and "abandoned" sailing vessel,
believed to be the Almiranta of the New Spain group in the 1715 Spanish Plate Fleet and now known to be scattered on
the Corrigan's wrecksite, was indeed "abandoned" when the plaintiff filed this suit on August 17, 1979. The plaintiff's
presence on the Corrigan site prior to 1979 and its participation in State leases on that site during that time period are
irrelevant to a determination of its rights herein. All previous "finders" or "salvors" of the wreck abandoned it for purposes
of the instant action.
Cobb Coin Company, Inc. did not exist as an entity until August 17, 1979, the day it filed this suit. Other companies of
which Mr. Melvin Fisher is, or was, the chief executive officer, including Universal Salvage Co., Cobb Coin Co. (not
registered or qualified to do business in Florida), and Treasure Salvors, Inc., which worked the 1715 sites under contract
with State lessees between 1963 and 1972, abandoned their efforts in or before October 1972. Real Eight Company,
Inc., and any other entity which has attempted to assign the plaintiff its rights to this wreck, abandoned salvage in or
before 1977. That abandonment consisted not of the relinquishment of the State lease but of the cessation of active
searching and salvaging efforts on the defendant wrecksite.
The Court further holds that the intervening claimant, Quest Corporation, has fully abandoned the site. It has thus failed
to satisfy its burden of establishing its right, asserted in its intervening complaint, to be declared a finder or salvor in
possession or for a salvage award. Quest was an intermittent salvor on the Corrigan site between July, 1977, and
August, 1979. But it did not exercise the requisite diligence or success necessary to obtain the right to continue
salvaging under the protection of the Admiralty Court.
557
*557 Since the claimant Quest Corporation did not obtain the rights of a first finder or salvor in possession, the plaintiff,
Cobb Coin Company, was free under the general federal maritime law to search and explore the area and to seek the
protection of the federal court to undertake and continue satisfactory salvage activities. The plaintiff thus appropriately
filed its complaint in this Court in August 1979, asking the Court to notify all competing claimants and adjudicate the
respective rights of those who claimed an interest in the property which the plaintiff asserts it owns or has a right to
continue salving.
A. Salvage Claim.
The Court holds, first, that Cobb Coin Company is entitled to a salvage award for the articles it has retrieved from the
Corrigan wrecksite. The three elements of a salvage claim are:
(1) that marine peril exists;
(2) that the service was voluntarily rendered; and
(3) that the effort was successful in whole or in part.
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
9/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
Platoro Ltd. v. Unidentified Remains of a Vessel, 518 F.Supp. 816, 820 (W.D.Tex. 1980), citing Legnos v. M/V Olga Jacob,
498 F.2d 666, 669 (5th Cir.1974).
It is established in this Circuit that a marine peril exists in an ancient, abandoned shipwreck for purposes of meeting the
requirements of a valid salvage action. Platoro Ltd. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1055 (5th
Cir.1980); Treasure Salvors I, 569 F.2d 330, 337 and n. 13 (5th Cir.1978), quoting Norris, The Law of Salvage § 185
(1958). Such peril exists even where the general location of a wreck is known, as it is here. Platoro, 614 F.2d 1055, and
Treasure Salvors I, 569 F.2d at 337. Because the defendant vessel was still in the peril of being lost through the action of
the elements or of pirates and was not being successfully salved when the plaintiff undertook its salvage operation, it
was subject to a "marine peril" for purposes of the plaintiff's salvage claim.
The plaintiff has satisfied the second and third elements of a salvage claim as well. There is no dispute that Cobb Coin
voluntarily rendered the salvage service. It was under no pre-existing duty to save the vessel and its cargo and apparel
pursuant to, e.g., a contract or provision of law. Further, the Findings of Fact entered above by this Court amply
demonstrate that Cobb Coin successfully saved property of considerable historic, archeological, and monetary value.
B. Salvage Award.
As this Court held in its October 2, 1981, injunctive order, the public policy underlying salvage awards in the Admiralty
Court is to hold out a "continuing incentive to undertake the physical and financial risks entailed in salvage operations
and to bring the property thus recovered into court for a salvage determination." Cobb Coin, 525 F.Supp. at 207. The
elements considered by the Admiralty Court in determining a salvage award are:
(1) the labor expended by the salvors in rendering the salvage service;
(2) the promptitude, skill and energy displayed in rendering the service and saving the property;
(3) the value of the property employed by the salvors in rendering the service and the danger to which
such property was exposed;
(4) the risk incurred by the salvors in securing the property from the impending peril;
(5) the value of the property saved; and
(6) the degree of danger from which the property was rescued.
Cobb Coin, 525 F.Supp. at 207, n. 15. See Also Norris, 3A Benedict on Admiralty, The Law of Salvage, 7th ed § 244.
(1) The labor expended by the salvors in rendering the salvage service.
Cobb Coin submitted a statement of its expenses incurred in its salvaging activities, which the State did not attempt to
558
controvert.[17] *558 The "deferred salvage expenses" stated on Cobb Coin's balance sheet "for the period ended
December 13, 1981," amounted to $284,142.88. These expenses were, primarily, to pay for the labor of captains and
crew, subcontracts and charters, professional fees and costs, and fuel.
It appears that through June 22, 1982, the plaintiff has incurred an additional $3,869.72 in salvage-related expenses.
Therefore, the total "labor" or monetary expenses incurred by the plaintiff in rendering salvage services to the defendant
vessel is approximately $288,012.60.
An important fact developed in this case was the incredibly speculative nature of investment in salvage on sunken
treasure ships. Mere searching and charting a site costs hundreds of dollars per day. It costs $3,000 to $5,000 per day to
operate the M/V "Dare," the plaintiff's principal salvage vessel. Tr. at 811. It costs $2,000 per day for the same vessel just
to let it sit at the dock, e.g., when natural conditions or threatening State law enforcers do not permit salvage. Id. The
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
10/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
plaintiff employed two salvage vessels at one time on the site in the 1981 season. These operating costs require a vast
commitment of capital before exploration, much less salvage, can even begin.
While the costs of salvage are high and constant, the return, in the form of recoveries, is very uncertain and generally
uneven. In this case, for example, during the 1980 salvage season, the plaintiff's vessel "Endeavor" went to the Corrigan
site on sixty five days, thirty-five of which presented conditions unsuitable for diving. Of the thirty days on which they dove
the site, they discovered "high value items" on only nine occasions.
Further, there is no guarantee that the value of the salvaged goods will ultimately exceed the costs of salvage. In this
case, as the conclusion of this section describes more fully, the value of the plaintiff's recovery exceeds the out-of-pocket
costs to the plaintiff as of the date of the trial. That outcome however, is never certain until the work has been performed
and the money has been expended.
(2) The promptitude, skill and energy displayed in rendering the salvage
service.
In the salvage of an ancient abandoned shipwreck, skill and energy displayed generally are more critical to the success
of the salvage, and thus the determination of an award, than is promptitude. In this case, the plaintiff's skill and energy
have been considerable. Cobb Coin's president, Mr. Mel Fisher, and the captains and divers he employs testified to the
painstaking methods they use in locating artifacts and raising them from the water. Cobb Coin employs the most modern
and sophisticated methods of underwater exploration and shallow water excavation of ancient shipwrecks available. In
fact, Mr. Fisher and one of his employees, Mr. Fay Feild, are pioneers in applying magnetometry technology to
underwater treasure salvage. Most modern treasure salvors on ancient shipwrecks employ methods developed or
adapted by Mr. Fisher and Mr. Feild.
559
Equally impressive are the efforts Cobb Coin employs to record the valuable historical and archeological information
concerning the exact location, depth and proximity of each item found with respect to other items. This information is
known in the underwater archeology field as "provenance data." As the Court noted in its October *559 1981 injunction
order, the provenance data is important not only to historians, archeologists and anthropologists, but it documents the
authenticity and thus enhances the resale value of otherwise precious artifacts.
In one of the few cases to apply traditional salvage criteria to salvage on an ancient shipwreck, Platoro Ltd. v.
Unidentified Remains of a Vessel, 518 F.Supp. 816, 822 (W.D.Tex.1981), the Court declined to hold salvors to the
standard of expertise required of marine archeologists in evaluating the skill, promptitude and energy component of the
salvage award. This Court takes a slightly different view. Although it is obviously in the salvor's better interest to
document provenance on ancient shipwrecks, it is not clear whether the value to the salvor of provenance data will, with
certainty, justify the cost of maintaining qualified marine archeologists on the site.
This Court now holds that in order to state a claim for salvage award on an ancient vessel of historical and archeological
significance, it is an essential element that the salvors document to the Admiralty Court's satisfaction that it has
preserved the archeological provenance of a shipwreck. To leave this element merely for consideration of a salvage
award would not provide, perforce, sufficient incentive to salvors to ensure that the information is obtained. Accordingly,
however, this Court holds that by meeting the threshold requirement, a salvor simultaneously "enhances" the value of his
recovery in such a way as will be explicitly recognized by the Court in the determination of the salvage award.
(3) The value of the property employed by the salvors in rendering the
service and the danger to which such property was exposed.
The conditions under which Cobb Coin has salved this wreck posed no extraordinary dangers. The plaintiff employed
two salvage vessels on this site during the 1981 season and one vessel during the 1979 and 1980 seasons, and used
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
11/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
sophisticated magnetometer, remote sensing, and scan sonar equipment to locate scattered objects. Cobb Coin
employs the "state of the art" in its salvaging efforts; the value of such equipment is considerable. It is subject to normal
depreciation and risk associated with its use.
This wreck is located in shallow Atlantic waters. Shallow water shipwreck excavation and salvage does not present the
types of dangers associated with deep water salvage.[18] Mr. Fisher did testify that his divers dug up hundreds of
explosive mines and thousands of bombs which had been abandoned in the area of the wreck. Tr. at 477. The plaintiff's
equipment was not subject to unusually dangerous physical risk, however.
(4) The risk incurred by the salvors in securing the property from the
impending peril.
The risk of physical danger which the plaintiff's employees have faced is not greater than the risk to which its equipment
is subject. It should be noted, however, that three of Cobb Coin's divers on this site were subject to continuous threats
and harassment by State law enforcement officials during the time Cobb Coin worked the wreck under the protection of
this Court. They were arrested at one point during these proceedings. While the "risk" of arrest is not one the Court
expects to find in typical salvage cases, it constituted a very real and serious matter throughout this case.
Finally, as for financial risk, the discussion of the first factor in this section describes how very risky financially salvage on
abandoned treasure wrecks is.
(5) The value of the property salved.
560
*560 According to the logs submitted in evidence and the testimony of the plaintiff's chief artifact custodian, Arthur
Hartman, Cobb Coin recovered 1034 silver coins, twelve Royal Eight escudos, ten to twelve clumps of silver coins, two
gold discs, and hundreds of miscellaneous "encrusted objects" through the 1981 salvage season. The silver coins
consist of 449 Eight Reales, 171 Four Reales, and 584 Two, One and One-half Reales. See State's Exhibits No. 26 and
67, and Plaintiff's Exhibit No. 31. Mr. Hartman estimated the value of a "nice" "silver, dated 1714 Cob Eight" Reale to be
"somewhere between five to six hundred dollars, maybe more." Tr. at 805-06. He estimated that dated Eight escudos
ranged between $5-7,000 for "poor" ones, and between $12,000 to $15,000 for "the best one out of the group." Tr. at
806. There was no direct testimony as to the value of the individual coins recovered, however. Approximating on the
basis of Mr. Hartman's estimates, assuming the value of the "average" silver Eight Reale is $500, Four Reale is $250,
and of the group of Two, One, and One-half Reales is $75, the total value of the silver coins recovered is approximately
$311,050. Assuming the average Royal Eight escudo is worth $10,000, the total value of the gold escudos is
approximately $120,000.
No market value was proffered for the clumps of silver coins or the two gold discs. The Court finds that each gold disc is
worth as much as an average Eight escudo, $10,000. The Court simply cannot assess the value of the silver clumps.[19]
Based on the foregoing the identifiable gold and silver artifacts recovered by the plaintiff through the 1981 salvage
season are worth approximately $451,050.00. The plaintiff also recovered several "encrusted objects" and other
interesting artifacts which have historic and perhaps some pecuniary value to interested collectors. The plaintiff did not
attempt to introduce criteria by which the Court could quantify the value of these artifacts.
(6) The degree of danger from which the property was rescued.
The remains of the wrecked vessel are located about 100 feet from the beach under fairly shallow water. The artifacts
recovered by the plaintiff are located underneath between six to twenty-two feet of sand. Archeologists for the State
testified that in their opinion ancient shipwrecks buried under the sand are in no "peril" at all; they are undisturbed "time
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
12/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
capsules" rich with archeological, anthropological and historical data.[20] They felt that salvage on old wrecks actually
created a "peril" for these artifacts by disturbing their tranquil existence. See testimony of Larry Murphy and Wilburn
Cockrell on June 17, 1982. They also conceded, however, that items buried under the sand in shallow water, or "high
energy zones" could be moved by weather and wave action, although items in "deep pockets" are less likely to be
moved around. The parties did not debate whether the items saved were recovered from "deep pockets" or from "high
561
energy zones." This Court holds that the distinction is irrelevant for purposes of the salvage award. These artifacts were
recovered from under many *561 feet of ocean sand through the plaintiff's skilled and laborious efforts. Had they not
been saved, they likely would still be lying on the ocean bottom subject to further rearrangement and, perhaps, loss from
weather conditions. Further, if not recovered, they would be threatened by pirates who might have disturbed the site and
removed the articles without the supervision of the Admiralty Court.
C. Conclusion — Award.
As this Court indicated in its October 2, 1981, order, the traditional recovery for a salvor is the amount of his expenses
plus a salvage award based on the merit of his services. See Cobb Coin, 525 F.Supp. at 207. In this case, the plaintiff's
expenses were $288,012.60 and the value of the property saved is approximately $451,050. As this Court also
indicated, the appropriate form of award in a case like this should differ from traditional awards. It should be given in
specie because the property saved is uniquely and intrinsically valuable beyond its monetary value. See Cobb Coin,
525 F.Supp. at 198. The Court therefore holds that the plaintiff, Cobb Coin Company, Inc., shall be awarded all the
artifacts it has recovered since the inception of this lawsuit, as compensation for its expenses and an award for
superlative salvage services.
The Court further holds that Cobb Coin has established a right to the protection of this Court to conduct further salvage
activities, for as long as it demonstrates the requisite diligence and success in its efforts.
The Court therefore retains jurisdiction:
1. To protect the Plaintiff's valid salvage operations on the defendant wreck, and to adjudicate its rights vis-a-vis
competing salvors who may assert a superior right to salve the defendant wreck and
2. To adjudicate the plaintiff's claim to a salvage award on a periodic basis. The plaintiff shall file in this Court, beginning
on February 1st, 1983, and on February 1st of each subsequent year, its claim stating with specificity the value of the
salvage services performed and cataloguing the artifacts saved in the previous calendar year. Any failure to file by that
date will constitute prima facie evidence that it has abandoned the defendant wreck site, and the plaintiff will have thirty
days to attempt to rebut that presumption, through appropriate pleadings, after which this case will be closed. The State
of Florida is invited to intervene and seek certain artifacts to be exhibited throughout the State for the benefit of the
People of Florida.
D. Right to Artifacts Recovered Prior to this Suit.
The Plaintiff also asserts that it is entitled to be declared owner of or to a salvage award for the artifacts retrieved from the
Corrigan wreck site prior to the institution of this suit. The Honorable Sidney M. Aronovitz, United States District Judge,
ordered the U.S. Marshal to "Take into his possession and control any and all items that have or will come up from the
wreck in question, no matter who has brought up or will bring up such items until a determination of ownership is made
or further order of this Court is issued." Order dated August 24, 1979, Docket No. 5. Judge Aronovitz, obviously and
correctly, asserted jurisdiction over the entire wreck, including artifacts previously salved, in order to preserve this Court's
ability to make a meaningful determination of the unsettled issues presented by this case.
This Court now holds that its jurisdiction does not extend to artifacts salved prior to the institution of this lawsuit. The
Court need not, indeed it cannot, decide what rights accrued to the plaintiff for its work or its assignors' work on the site
prior to 1977. Whether it was working under a "contract for salvage," or even "voluntarily," Cobb Coin Co., Inc., and
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
13/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
companies it purports to represent are hereby held to have waived their federal rights to a salvage award by operating
expressly under contract with the State. Nothing in this record demonstrates or even suggests the invalidity vel non of
562
those State leases, nor any reason the parties should not be bound *562 thereby. Prior to the plaintiff's invocation of the
Federal Admiralty Court for a determination of its rights, there was no reason to preempt an otherwise valid State statute.
No conflict existed until this Court acquired jurisdiction over a cause of action arising under federal law, where that
cause of action required for its enforcement a determination that federal law was paramount to a particular state law
attempting to govern the same subject matter.
This Court thus holds that, as far as the plaintiff is concerned, the federal jurisdiction extends only to the operations
begun since the inception of this lawsuit. The complaint fails to state a claim for which relief can be granted as to items of
salvage recovered prior to August 17, 1979.
IV. CLAIMANT STATE OF FLORIDA'S FUTURE ROLE IN THIS LITIGATION
In the October 2, 1981 Order Granting the Preliminary Injunction, this Court stated that it intended to award a portion of
the artifacts recovered from the defendant wreck site to the State, as Trustee for the people, for the purpose of exhibiting
the property for the people's benefit. The evidence at the trial showed that the Division of Archives, History and Records
Management possesses numerous artifacts obtained from lessees who salved the 1715 wrecks in the past two decades,
and that a significant portion are displayed in museum exhibits around the state. See State's Exhibit No. 68 and
testimony of Wilburn Cockrell on June 17, 1982. This Court hereby finds that the State's possession of a representative
cross-section of recovered 1715 artifacts makes it inappropriate to award further artifacts to the State at this time. This
finding is without prejudice, however, to the right of Division of Archives, History and Records Management to intervene
in future salvage award determinations before this court, see section IV.C., supra, to assert an interest on behalf of its
citizenry to particular artifacts recovered which are not represented in its present inventory and which it feels are
essential to the preservation of the people's heritage.
This Court has previously ordered, pending a final determination on the merits of the suit, that the State be permitted to
place an agent on board the plaintiff's salvage vessels to catalogue and authenticate items salved. Now, having decided
that the plaintiff is entitled under federal law to possession of the wreck site for the purpose of conducting salvage, the
Court hereby dissolves its order permitting the State's agents to board the plaintiff's salvage vessels on the Corrigan
wreck site. The State's interest can adequately be protected by the continued documentation and preservation of
artifacts, pending distribution by the United States Marshal, or his designee, and by the State's right to intervene in the
annual salvage determination as outlined in the preceding paragraph.
Finally, the October 2, 1981 order temporarily enjoined the agents, employees, and attorneys of the State of Florida from
interfering with the plaintiff's ongoing salvage operations or arresting the plaintiff's officers, agents, and employees. That
injunction is hereby made permanent now that the plaintiff has succeeded on the merits of its salvage claim under
federal law.
V. PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES
563
The plaintiff, successful on the merits herein, seeks an award of attorney's fees and costs from the State for the enormous
expense to which the State has put the plaintiff in attempting to enforce its Federal rights. "The award of attorney's fees in
admiralty actions is discretionary and is specifically permitted in salvage cases." Platoro Ltd. v. Unidentified Remains of
a Vessel, 518 F.Supp. 816, 823 (W.D.Tex.1981), citing Compania Galeana, S.A. v. Motor Vessel Caribbean, 565 F.2d 358
(5th Cir.1978). In this case, the State has forced the plaintiff to undertake massive litigation to receive a determination of
its Federal rights in this forum. This case has nearly 350 pleadings filling seven volumes and has required thirteen days
of hearings, eleven on an emergency basis, *563 which generated to this point fifteen volumes of transcripts. Most of the
litigation, would have been unnecessary if the State had not intervened and filed its claims and defenses. Most notably,
the eleven-day injunction hearing was necessitated by the bad-faith harassment conducted by State officers and
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
14/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
attorneys attempting to enforce Florida laws in derogation of this Court's jurisdiction. Under admiralty salvage law, there
is a sufficient legal basis to award the plaintiff its attorney's fees and costs.
Attorney's fees and costs for the plaintiff in this case are not precluded by the Eleventh Amendment. An award of
attorney's fees is not an imposition of retroactive liability on the State for pre-litigation activity; it compensates the plaintiff
for expenses incurred in litigation seeking prospective relief. See Hutto v. Finney, 437 U.S. 678, 695, 98 S.Ct. 2565,
2575, 57 L.Ed.2d 522 (1978).
Having found the plaintiff is entitled to recover its attorney's fees, however, the Court finds that the documents submitted
by the plaintiff are inadequate to permit an accurate formulation of a proper award. The plaintiff's counsel is thus required
to file with the Court and serve upon counsel for the State, within twenty (20) days of the date of this order, an affidavit
setting forth precisely the number of hours worked, the billing rate applicable to each chargeable hour, and the amount
actually paid by the client. The claimant State of Florida shall respond within ten (10) days from the date it is served,
computed according to the Federal Rules of Civil Procedure.
V. RELIEF
In light of the foregoing, it is hereupon ORDERED and ADJUDGED as follows:
1. The plaintiff shall be awarded the artifacts now held by the United States Marshal which were recovered between
August 20, 1979 and the date covered by the Marshal's Inventory of Artifacts, July 23, 1981.[21] Artifacts recovered
between July 23, 1981 and December 31, 1983 shall be divided in the Court's February, 1983 salvage determination.
2. This Court retains jurisdiction to protect the plaintiff's valid salvage operations and to adjudicate its claim to a salvage
award on a periodic basis (each February hereafter) in the manner detailed in Section IV.C. of this Order.
3. The portion of the plaintiff's complaint which asserts a right to artifacts recovered prior to the institution of this suit fails
to state a claim upon which relief can be granted, and is hereby dismissed.
4. The officers, agents, and employees of the State of Florida are permanently enjoined from interfering with the plaintiff's
ongoing salvage operations and from arresting or prosecuting the plaintiff's officers, agents, and employees. All such
state officers, agents, and employees are enjoined from docketing a "pending" indictment for trial, and from estreating
any bond previously set and posted for persons arrested in connection with diving on the defendant wrecksite. This
injunction shall be in full force and effect as long as this Court retains jurisdiction over this matter.
Further, this Court's earlier order permitting an agent of the Claimant State of Florida on board the plaintiff's salvage
vessels is hereby dissolved.
564
5. The plaintiff is entitled to recover reasonable attorney's fees. The attorney for the plaintiff shall file his affidavit setting
forth the plaintiff's requested attorney's fees within twenty (20) days of the date of this Order, and the Claimant shall *564
respond, in the manner detailed in Section V of this Order.
The foregoing was DONE and ORDERED in chambers at the United States Courthouse, Miami, Dade County, Florida
this 31st day of August 1982.
[1] This Court's October 2, 1981, Order Granting Plaintiff's Motion for Preliminary Injunction contains in greater detail the foundations of
the legal conclusions entered herein. Cobb Coin Co. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 525 F.Su p p . 186
(S.D.Fla. 1981). The reasoning of that order is hereby fully incorporated into and made a part of this Memorandum Opinion.
[2] Under the State lease, the salvors sent the State Division of Archives, History, and Records Management the entire find, and the
Division and lessee later divided the find in a "trading session." They used a point system to quantify the value of the different types of
artifacts. For example, a cannonball was worth one (1) point, an eight reale was worth between five and 20 points, and an Eight Escudo
was worth about 350 points. See State's Exhibit No. 68.
[3] The plaintiff Cobb Coin Co. purports to represent the interests of all other entities with which Mr. Fisher's groups worked the
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
15/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
Corrigan's wreck site in the 1960's and 1970's under the various State leases, by virtue of assignments executed and made a part of this
record. See Plaintiff's Exhibit No. 37. There is no need to determine what effect these assignments may have.
[4] Of course, the Court may need to determine the interests of competing salvors who intervene, whose activities may have begun prior
to the time a plaintiff filed suit.
[5] The Fifth Circuit modified the Order of the District Court which confirmed Treasure Salvors' title "against the United States of America
and all other claimants," so as to operate only against the claimants who appeared to dispute Treasure Salvors' ownership — the United
States. Treasure Salvors I, 569 F.2d at 336, and n. 8.
[6] Many details of the proceedings in the District and Circuit Court in Treasure Salvors are omitted in this analysis and are available in the
opinions of the respective courts and of the Supreme Court. This Court only repeats the facts that bear on the Eleventh Amendment
question.
[7] During the pendency of this suit, a number of artifacts have been salved from the defendant wreck site; they have been turned over to
the United States Marshal pursuant to this Court's order.
[8] This is the case with respect to the "prospective" aspect of the plaintiff's suit. The Complaint also asks that the plaintiff be put in
possession or be declared owner or receive a salvage award for artifacts recovered before it filed this suit. Clearly, some of these are in
the possession and control of the State's officers. See Section I, supra. For the reasons explained in Section IIIB. of this Order, infra, the
holding herein does not extend to artifacts recovered prior to the institution of this suit.
[9] The State conceded at the trial that the defendant was "abandoned," and the plaintiff obviously agrees with that characterization.
Whether the wreck is "abandoned" is a question of law for this Court to decide, and this Court holds that the defendant was abandoned
on the date the plaintiff filed its Complaint. See infra. It is noteworthy, however, that the State does not dispute this matter.
[10] The specific action under review in Treasure Salvors, the warrant for return of property, was directly one against officers of the State
of Florida. It sought to recover artifacts in their possession which the State contended were public property being used for a legitimate
governmental purpose, i.e., the preservation of cultural, historical and archeological artifacts. Here, the property claimed by the plaintiff in
the prospective portion of its Complaint is neither in the State's possession nor public property used and employed for governmental
purposes.
Even the Justices who dissented on the Eleventh Amendment question in Treasure Salvors agreed that to be barred the property
allegedly immune from suit must be "in the possession and ownership of the State ...." ___ U.S. at ___, 102 S.Ct. at 3326 (White, J.,
concurring in part and dissenting in part). Therein, Mr. Justice White states:
In re New York (I) [256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057] indicates that the Eleventh Amendment will bar a suit that has the effect of
proceeding against a State officer and involving the State's property. In re New York (II) [256 U.S. 503, 41 S.Ct. 592, 65 L.Ed. 1063]
squarely stands for the proposition that sovereign immunity bars process against a res in the hands of State officers. This is true even
though an in rem action strictly proceeds against the vessel and the owner of the vessel or artifacts is not an indispensible party.
Significantly, In re New York (II) did not distinguish between the service of process to arrest the res and the thrust of the libel itself to
determine the rights in the vessel. I follow that course in this case and refuse to sever the attempt to arrest the artifacts from the attempt
to decide their ownership.
Id. As for the first part of Mr. Justice White's analysis, it is clear that the element of possession contemplated by the In re New York theory
is absent here. To the extent Mr. Justice White is concerned that an in rem decree implicitly decides the ownership of the items pursued in
rem, the cases cited in his opinion reveal that the State's mere assertion of ownership does not absolutely bar a suit regarding the items. It
is clear that the property must not only be owned by the State but must be used and employed for public and governmental purposes. In
re New York, 256 U.S. 503, 511, 41 S.Ct. 592, 593, 65 L.Ed. 1063 (1921). ("The principle so uniformly held [is] to exempt the property of
municipal corporations employed for public and governmental purposes from seizure by admiralty process in rem, [and] applies with even
greater force to exempt public property of a State used and employed for public and governmental purposes.")
Mr. Justice White cites the In re New York cases as "particularly forceful because they reflect the special concern in admiralty that maritime
property of the sovereign is not to be seized." ___ U.S. at ___, 102 S.Ct. at 3327. Footnote 5, elaborating on that point, states: "Under
English law, no warrant for arrest will issue against any vessel in the actual service of a recognized foreign government." Id. nn. 5, 7.
(emphasis added). Thus, the concerns expressed by the dissenters on the Eleventh Amendment question do not undermine the Court's
assumption of jurisdiction in this case. As this Court held in its order granting plaintiff's motion for preliminary injunction:
Even were the State to `own' the sunken historical artifacts under its statute and the Federal Submerged Lands Act ... the Eleventh
Amendment would still pose no bar to this suit, as the objects here at issue are not sovereign property in the sense contemplated in the
relevant cases. The Supreme Court in the Queen City exempted seizure in admiralty of `public property of a State used and employed for
public and governmental purposes.' 256 U.S. at 511, 41 S.Ct. at 593. See also The Fidelity, Fed. Case No. 4, 758, 8 Fed. Case 1189,
1191 (1897) (`Property does not necessarily become a part of the sovereignty because it is owned by the sovereign. To make it so it must
be devoted to the public use and must be employed in carrying on the operations of the government,' citing The Davis, 10 Wall 15, 77
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
16/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
U.S. 15, 19 L.Ed. 875 (1869)).
Cobb Coin, 525 F.Su p p . at 199. As this Court stated in October, "it is hard to view the items before the Court as public property used and
employed for governmental purposes when they have lain serenely in their two hundred sixty-plus year habitat, with the State having only
recently taken mere verbal action to claim (and no positive steps of its own to locate or raise) these artifacts from the ocean bottom." Id.
[11] This Court is in substantial agreement with part of Judge Bunton's opinion in Platoro Ltd. v. The Unidentified Remains of a Vessel,
518 F.Su p p . 816, 819-20 n. 1 (W.D.Tex.1981):
It is the Court's impression at this time that the State's intervention in this suit has been misconceived ab initio; the State of Texas, by
claiming title by sovereign prerogative, has ignored the fact that the British common law doctrine of sovereign prerogative has been
absorbed into the law of admiralty; the courts sitting in admiralty take the res into their registries, as did the British sovereign, and disburse
the expense for salvage and other costs concerning the res as they are claimed or incurred. The State of Texas has tried relentlessly to
divest this court of its admiralty jurisdiction by asserting its claims of sovereignty. This effort misconstrues the laws of admiralty.
Here, Florida's sovereign prerogative claim is made pursuant to an express statutory pronouncement, not the common law theory. It
nevertheless equally "misconstrues the laws of admiralty."
[12] The State argues that there can be no suit against it unless manifested by consent by provision of general law. Section 13 of Article
10 of the Florida Constitution so provides, but so did Section 22 of Article 3 of the Florida Constitution in effect at the time of the Tharp
decision. See 1 So.2d at 869. Thus Tharp is a recognized exception under Florida law defining what constitutes a suit against the State
for purposes of sovereign immunity and, it follows, for purposes of the Eleventh Amendment.
[13] All of the Justices in Treasure Salvors agreed that at least as regards a suit against State officials, "State officials cannot evade
responsibility when their conduct `comes into conflict with the supreme authority of the Constitution'." ___ U.S. at ___, 102 S.Ct. at 3324
(White, J., concurring in part and dissenting in part), citing Ex Parte Young, 209 U.S. 123, 159, 28 S.Ct. 441, 453, 52 L.Ed. 714 (1908).
This rule is premised on the theory that "conduct of a state officer taken pursuant to an unconstitutional state statute is deemed to be
unauthorized and may be challenged in federal court." Treasure Salvors, ___ U.S. at ___, 102 S.Ct. at 3321, citing Larson v. Domestic &
Foreign Corp., 337 U.S. 682, 701, 69 S.Ct. 1457, 1467, 93 L.Ed. 1628 (1949); it is deemed not an action of the sovereign.
There is federal jurisdiction to adjudicate an allegedly unconstitutional taking of property by a State where there is no other remedy by
which the plaintiff may recover compensation for the taking. Treasure Salvors, ___ U.S. at ___ n. 13, 102 S.Ct. at 3330 (White, J.,
concurring in part and dissenting in part). Here, the State law purports to supercede the plaintiff's federal rights under the maritime law of
salvage. Yet, the plaintiff has no recourse to the courts of Florida to enforce its federal rights; Florida courts will not assume jurisdiction to
determine a salvage award. O'Neill v. Schoenbrod, 355 So.2d 440 (Fla. 3d DCA 1978). See also Cobb Coin, 525 F.Su p p . at 214. Thus,
the state court remedy available in cases cited by the Treasure Salvors dissent, ___ U.S. at ___ n. 13, 102 S.Ct. at 3330, is unavailable to
this plaintiff.
Thus, to paraphrase a landmark decision of Eleventh Amendment jurisprudence, "If a suit against officers of a State to enjoin them from
enforcing an unconstitutional statute ... be not one against the State," it is impossible to see how a suit which states a complete claim for
relief under federal law but which a State feels derogates its statutorily announced ownership, where the State's claim is based upon
authority superceded by paramount federal principles, can be deemed a suit against the State. See Treasure Salvors, ___ U.S. at ___,
102 S.Ct. at 3314-15, quoting Tindal v. Wesley, 167 U.S. 204, 222, 17 S.Ct. 770, 777, 42 L.Ed. 137 (1897) ("If a suit against officers of a
State to enjoin them from enforcing an unconstitutional statute ... be not one against the State, it is impossible to see how a suit against
the same individuals to recover the possession of property belonging to the plaintiff and illegally withheld by the defendants can be
deemed a suit against the State.")
[14] The State's "restricted appearance ... as authorized under Supplemental Rule E(8)," does not shield its interests in the defendant res
from being adjudicated. Rule E(8) protects claimants in a res from subjecting themselves to general in personam liability beyond the value
of the res.
[15] On January 5, 1982, this Court granted the State's Motion to Withdraw its Counterclaim as it was unopposed by the plaintiff. That
dismissal does not alter the effect of the State's claims made therein. The State's Motion to Dismiss its Counterclaim stated, "The
Counterclaim raises no new or different issues from the issues raised in the Complaint and therefore is considered unnecessary to the
resolution of the merits." If indeed the Counterclaim raises "no new or different issues from the issues raised by the Complaint," the
Complaint is hereby deemed to incorporate the State's affirmative claim to relief. The State is estopped to claim, both on the basis of its
motion and its subsequent conduct, that it has not presented the question of its ownership for the Court's determination.
[16] This Court is aware that a State's Eleventh Amendment immunity is sufficiently jurisdictional to be asserted after a State makes a
general appearance and interposes several affirmative defenses, Aerojet-General Corp. v. Askew, 453 F.2d 819, 828 (5th Cir.1974); or
after a State takes a jury verdict and asserts the Eleventh Amendment for the first time on appeal, Dagnall v. Gegenheimer, 645 F.2d 2, 3
(5th Cir.1981). See also Treasure Salvors, ___ U.S. at ___ n. 18, 102 S.Ct. at 3314 n. 18, and Ford Motor Co. v. Department of
Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). But see Petty v. Tennessee-Missouri Bridge Comm., 359 U.S. 275, 276, 79
S.Ct. 785, 787, 3 L.Ed.2d 804 (1959); Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284, 26 S.Ct. 252, 256, 50 L.Ed. 477 (1905),
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
17/18
3/29/2016
Cobb Coin Co., Inc. v. UNIDENTIFIED, WRECKED, ETC., 549 F. Supp. 540 - Dist. Court, SD Florida 1982 - Google Scholar
Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 882, 27 L.Ed. 780 (1883); Gallagher v. Continental Ins. Co., 502 F.2d 827 (10th
Cir.1974); MacDonald v. Board of Regents, 371 F.2d 818 (6th Cir.1967). The prevailing rule is that a waiver of sovereign immunity is not
lightly to be inferred, so Florida can only be held to have waived its Eleventh Amendment immunity by clear and unequivocal consent.
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1978). Generally, consent occurs by means authorized under state law,
such as a statute of general application, or conduct of the State's attorneys, whose authority is not questioned, clearly evincing an intent to
subject the State's rights to the Court's adjudication. For the eleven months following the filing of this suit, Florida's attorneys clearly
evinced such intent. The State more than appeared and defended; it sought several forms of affirmative relief and caused the plaintiff to
undertake much more serious litigation than is consistent with its hypothetical "restricted claim." Further, the attorneys' authority to act on
behalf of the State has not been questioned by any party.
[17] The State of Florida claims it did not receive the documents describing Cobb Coin's expenses in the normal discovery process, even
though they had been among documents ordered produced by the Court. The plaintiff claims, with equal good faith, that it produced
these items as part of the discovery previously given. After the trial, counsel for the State renewed their complaint that the information had
not been produced, and the plaintiff agreed to file and serve the items upon the Court and opposing counsel by June 25 at 5:00 p.m. The
plaintiff timely filed the requested information in the Court, but, apparently inadvertently, failed to serve them on opposing counsel. The
State's lawyer obtained copies from the Court's file within the week. In its post-trial reply memorandum, the State's counsel opposed the
plaintiff's attempt to offer the exhibits in evidence, stating they "[o]bviously ... [could] do little to verify the contents of these documents at
th[at] time."
[18] Mr. Fisher testified that when his group was working the East Coast sites with Real Eight in 1972, a salvage barge, Gold Digger,
mysteriously was wrecked at the Colored Beach site. "[A] couple of hundred grand went down the drain, or in the ocean," according to
Fisher. Tr. at 238. That event, however, does not appear to have been related to typical salving conditions. Further, the Gold Digger sank
on a different wreck and during a different time period than are relevant to this suit.
[19] According to the point system under which the State divided artifacts with Real Eight for the 1971 season, both a 1715 eight escudo
and a "gold disc" weighing 595.4 g received grades of 350 points. See State's Exhibit No. 68, Index No. 10; Report of Division of Artifacts
and Coins Recovered Under Salvage Lease # 1329 (As Modified) During the 1971 Salvage Season. There is no basis in the record to
assess more accurately the value of the clumps of silver coins recovered by the plaintiff.
[20] Dr. Wilburn Cockrell, the administrator of the Florida Division of Archives and Records Management, explained that ancient
shipwrecks are valuable for three separate, often conflicting, purposes: structure, artifacts, and data. As a manager, he often has to
decide which goal to serve, to the exclusion of others. He personally believes that an ancient shipwreck is a time capsule, which is
destroyed when it is "opened up" for artifact or data extraction. But in modern times, the Corrigan site, as well as many other ancient
"time capsules" under his agency's jurisdiction, were "opened up" and "destroyed" under the express permission and encouragement of
the State of Florida. Dr. Cockrell conceded that he personally disagrees with the State's entire program for dealing with ancient
shipwrecks.
[21] Mr. Arthur Hartman, captain of the salvage vessel "Dare" and chief artifact custodian for the plaintiff, was appointed Substitute
Custodian by the United States Marshal for the artifacts recovered by the plaintiff. He testified on July 29, 1981, that the plaintiff had
recovered 734 silver coins in 1980 and 300 in 1981. Tr. at 803-05. The Inventory of Artifacts filed by Mr. Hartman and the U.S. Marshal
with the Court on July 23, 1981, stated that he had custody of 739 silver coins. Inventory File Docket No. 211. The relative value of the
plaintiff's costs to its recovery, supra, was computed on the basis of 1034 coins. The award herein is based upon the official artifact
inventory filed by the U.S. Marshal.
Save trees - read court opinions online on Google Scholar.
https://scholar.google.com/scholar_case?case=16733002558837165392&q=549+F.Supp+540+&hl=en&as_sdt=400006
18/18