The opinion
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 cr 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 controverted claim of state ownership, the contro *1351 versy 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 state-claimed 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.
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 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.