Petition — Florida Dept. of State v. Treasure Salvors, Inc.

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Office -Supreme ‘ US.

80 FILED

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. 3 4 8 JAN 13 1981

BD. encaszeeees ALEXAND. s .. SUEVAS,

CuLIAC

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

STATE OF FLORIDA

DEPARTMENT OF STATE,

Petitioner,

-VS-

TREASURE SALVORS, INC.,

ARMADA RESEARCH CORP.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

JIM SMITH

ATTORNEY GENERAL

SYDNEY H. MCKENZIE, III

CHIEF TRIAL COUNSEL

(Counsel of Record)

SUSAN E. GAMBLE

ASSISTANT ATTORNEY GENERAL

The Capitol - Suite 1501

Tallahassee, Florida 32301

Phone: 904/488-9935

Attorneys for Petitioner

QUESTION PRESENTED

I. Whether the Eleventh Amendment

to the United States Constitution bars an

in rem admiralty action seeking to

recover property owned by a state.

TABLE OF CONTENTS

QUESTION PRESENTED I

TABLE OF AUTHORITIES IV

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUTIONAL PROVISIONS AND 2

STATUTES INVOLVED

STATEMENT OF THE CASE 3

ARGUMENT 7

CONCLUSION 12

APPENDIX

1. Order of the Court of

Appeals for the Fifth

Circuit denying the

Petition for Rehearing

and Petition for Rehearin

en banc on October 16, 1980. Al

2. Judgment of the Court of

Appeals for the Fifth Circuit

dated July 24, 1980, affirming

the judgment of the District

Court for the Southern

District of Florida. AG

II

5.

Opinion of the Court of

5 Sos for the Fifth

Circuit in In Re: State

of Florida Department of

State v. Treasure

Salvors, Inc., reported at 621

F. th Cir. 1980). A6

Opinion of the District

Court for the Southern

District of Florida in

Treasure Salvors, Inc. v.

Unidentified Wrecked and

Abandoned Sailin Vessel,

reported at F.Supp. 507

(S.D. Fla. 1978).

U.S. Constitution, Article

IIL, Section 2 A164

Florida Statutes, Chapter

267 (1979) A166

IIl

TABLE OF AUTHORITIES

CASES

In re New York 8

U.S. , 41 S.Ct. 588,

65 L.Ed. 1057 (1921) and 256

U.S. 503, 41 S.Ct. 592,

65 L.Ed. 1063 (1921)

In re State of Florida, Department 5, 10

of State v. Treasure Salvors, Inc.

Intracoastal Transportation, Inc. 10

v. Decatur Count Georgia

482 F.2d 361 Cth Cir. 1973)

Platero Ltd., Inc. v. Unidentified 10, 11

Remains of a Vessel

° th Cir. 1975)

Red Star Towing and Transportation 10

Co. v. Connecticut

Supp. (D. Conn. 1976)

Treasure Salvors, Inc. v. 5

Unidentified Wrecked and

Abandoned Sailing Vessel

459 F.Supp. 507 (S.D. Fla. 1978).

Treasure Salvors, Inc. v. 4

Unidentified, Wrecked and

andoned Sailin esse

569 F.2d 330 (eth Cir. 1978)

IV

TABLE OF AUTHORITIES CONTINUED

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Article III, 3

Section 2

U.S. Constitution, 3, 0s ee Ss ess

Amendment Eleven

STATUTES

Florida Statutes (1979), Chapter 267 12

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

STATE OF FLORIDA

DEPARTMENT OF STATE,

Petitioner,

-vs-

TREASURE SALVORS, INC.,

ARMADA RESEARCH CORP.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OPINIONS BELOW

The following opinions of the

lower courts are included in the Appendix

to the Petition:

1. Opinion of the United States

Court of Appeals for the Fifth Circuit,

rendered July 24, 1980, in this action.

2. Opinion of the United States

District Court for the Southern District

of Florida, rendered August 21, 1978, in

this action.

JURISDICTION

The opinion of the Court of

Appeals was entered on July 24, 1980.

Rehearing en banc was denied on October

16, 1980, and the mandate issued on

October 24, 1980. Jurisdiction to review

the judgment of the Court of Appeals is

conferred on this Court by 28 U.S.C.,

Section 1254 (1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

U.S. Constitution, Article III,

Section 2

The judicial power shall extend

-, ~-to all cases of

admiralty and maritime

jurisdiction; .. (set out in

full in the appendix hereto).

U.S. Constitution, Amendment 11

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.

Florida Statutes, Chapter 267 (1979)

(set out in full in the appendix

hereto).

STATEMENT OF THE CASE

This case has its origin in an

action brought pursuant to Article III,

Section 2 of the U.S. Constitution (App.

Al64-165), conferring admiralty juris-

diction solely in the federal courts.

The State of Florida was not a party to

this first action, Treasure Salvors, Inc.

v. Unidentified, Wrecked and Abandoned

Sailing Vessel, 569 F.2d 330 (5th Cir.

1978) (hereinafter Treasure Salvors IL)

wherein it was held that the remains of a

vessel lying on that part of the

continental shelf outside the territorial

waters of the United States were there-

fore not situated on lands owned or

controlled by the United States under the

) provisions of the Antiquities Act. This

established title to the vessel and its

cargo in the Respondent as against the

United States only.

The instant case arose through

ancillary process issued by the district

court pursuant to the Court of Appeals'

decision in Treasure Salvors I. The

district court issued a warrant for

arrest in rem, directing the marshal to

take possession of all artifacts from the

vessel in the custody or control of the

State of Florida's Division of Archives

office in Tallahassee. On August 21,

1978, the district court entered final

judgment in behalf of the Respondent. In

a Memorandum Order reported at 459

F.Supp. 507 (S.D. Fla. 1978) (App.

A61-163), the court found the Eleventh

Amendment inapplicable to a suit to

determine title to artifacts, and

directed the State of Florida to

relinquish possession of the artifacts to

the district court.

The Court of Appeals affirmed the

decision of the district court as to.

jurisdiction over the State on July 24,

1980.(Rubin, J. dissenting). In re

State of Florida Department of State v.

5

Treasure Salvors, Inc., 621 F.2d 1340

(5th Cir. 1980) (hereinafter Treasure

Salvors II) (App. A6-60). Florida's

petition for rehearing en banc was denied

October 16, 1980, and the mandate issued

on October 24, 1980 (App. Al1-5).

The importance of this petition

for writ of certiorari to Court of

Appeals is monumental, for the issue of

subjecting a state to such suits and

requiring it to relinquish property under

the guise of an admiralty action in rem

has far-reaching ramifications not only

in the circumstances of this action, but

in any case wherein a state seeks to

retain title and possession of its

archaeological and historical resources.

ARGUMENT

This Court should grant its Writ

of Certiorari to review the decision of

the Court cf Appeals because the Court

has in effect. decided that if there is a

controverted claim of state ownership of

property, the controversy becomes an ap-

propriate subject for admiralty jurisdic-

tion and the district court may hear the

case.

The State of Florida contends that

it has title to the property within the

jurisdiction of the court pursuant to

contracts in which Treasure Salvors

agreed to relinquish twenty-five percent

of the items recovered from a sunken

Spanish galleon in return for the rig*.c

to salvage on state sovereignty submerged

lands; therefore the Eleventh Amendment

deprived the district court of

jurisdiction to adjudicate the State's

title or lack of it. The Court of

Appeals affirmed the District Court's

ruling that the Eleventh Amendment did

not preclude an action to recover the

artifacts in the possession of the State,

and ordered it to turn over all such

items to Treasure Salvors.

This action has been styled as an

in rem proceeding in admiralty; however,

the thrust of the Respondent's claim is

simply to bring suit to recover property

from the State of Florida. As pointed

out in the dissenting opinion of Judge

Rubin, the Eleventh Amendment is equally

applicable to admiralty actions, and

neither of the companion cases relied

upon by the panel majority, 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 may be involuntarily

divested of title to property in its

possession. Instead, the Supreme Court

in those cases held that the State's

suggestion of ownership, in the absence

of a special challenge, triggered the

application of the Eleventh Amendment and

thus the district court's jurisdiction

came to an end. However, Judge Rubin, in

his dissent below, stated:

- « « I do not understand

this to imply that, if

there is a controverted

claim of state ownership,

the controversy 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 a

state and the state itself,

a purely local question.

Treasure Salvors II, at 1350-51 (App.

A53-54).

Indeed, the panel majority of the

Court of Appeals simply holds that an in

rem admiralty action may be brought to

recover property from a state, but fails

to distinguish its prior decisions which

directly hold that a state may invoke its

Eleventh Amendment defense in admiralty

actions. Intracoastal Transportation,

Inc. v. Decatur County, Georgia, 482 F.2d

361 (5th Cir. 1973); Platero Ltd., Inc.

v. Unidentified Remains of a Vessel, 508

F.2d 1113 (5th Cir. 1975). See also Red

Star Towing and Transportation Co. v.

Connecticut, 431 F.Supp. 1003

10

(D. Conn. 1976). Thus, the ultimate

result of this decision is that a citizen

in a contract dispute with a state may

recover property from the state so long

as there is some implied admiralty issue.

The application of the Eleventh

Amendment to admiralty actions against

states for the recovery of property is of

special significance not only to the

State of Florida in this petition, but to

all states which have extensive

historical coastal interests. See, i.e.,

Platero Ltd., Inc. v. Unidentified

Remains of a Vessel, supra. If the Court

of Appeals is allowed to recede from its

previous construction of the Eleventh

Amendment's application to suits in

admiralty, then the historical

11

preservation efforts of all coastal

states are jeopardized. See Chapter 267,

Fla. Stat. (1979) (App. Al66-219).

CONCLUSION

; The question of bringing a state

into federal court to test its title to

property far transcends the artifacts

which are involved in this case, and goes

to the fundamental constitutional

protections afforded the states. As

pointed out in Judge Rubin's dissent, the

decision of the Court of Appeals

summarily disposes of this issue without

distinguishing prior holdings, and the

resulting confusion wrought by the

Court's decision merits the granting of

certiorari.

For the foregoing reasons,

Petitioner respectfully urges this Court

12

to grant certiorari to review the

decision of the Court of Appeals for the

Fifth Circuit.

Respectfully submitted,

JIM SMITH

orney General

SH. de Gels

SYDNEY H-"MCKENZIE, IIL

Chief Trial Counsel

SUSAN E. GAMBLE

Assistant Attorney General

’ DEPARTMENT OF LEGAL AFFAIRS

The Capitol - Suite 1501

Tallahassee, Florida 32301

Phone: 904/488-9935

13

x

a

i

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-2950

IN RE: STATE OF FLORIDA,

DEPARTMENT OF STATE,

Petitioner-Appellant,

versus

TREASURE SALVORS, INC.,

a corporation and ARMADA

RESEARCH CORP., a corporation,

Plaintiffs-Appellees,

THE UNIDENTIFIED WRECKED AND

ABANDONED SAILING VESSEL, ETC.,

Defendant.

Appeal from the United States

District Court for the

Southern District of Florida

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion July 24, 1980 _, 5 Cir., 198,

( OCTOBER 16, 1980 )

Al

BS.

Before GEWIN, RUBIN and SAM D. JOHNSON,

Circuit Judges.

PER CURIAM:

( ) The Petition for Rehearing is DENIED

and no member of this panel nor Judge in

regular active service on the Court

having requested that the Court be polled

on rehearing en banc, (Rule 35 Federal

Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the Petition for

Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED

and the Court having been polled at the

request of one of the members of the

Court and a majority of the Circuit

Judges who are in regular active service

not having voted in favor of it, (Rule 35

Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16) the Petition

for Rehearing En Banc is also DENIED.

A2

(XX) A member of the Court in active

service having requested a poll on the

reconsideration of this cause en banc,

and a majority of the judges in active

service not having voted in favor of it,

rehearing en banc is DENIED.

ENTERED FOR THE COURT:

af Sam D. Johnson

e ates rcu udge

Form 704-2

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-2950

~D. C. Docket No. 75-1416-Civ-WM

IN RE: STATE OF FLORIDA, DEPARTMENT

OF STATE,

Petitioner-Appellant,

versus

TREASURE SALVORS, INC., a Corporation,

AND ARMADA RESEARCH CORP., a

Corporation,

Plaintiffs-Appellees,

THE UNIDENTIFIED WRECKED and ABANDONED

SAILING VESSEL, Etc.,

Defendant.

Appeals from the United States District

Court for the Southern District of

Florida

Before GEWIN, RUBIN AND SAM D. JOHNSON,

Circuit Judges.

JUDGMENT

This cause came on to be heard on

the transcript of the record from the

A4

United States District Court for the the

Southern District of Florida, and was

argued by counsel;

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the judgment of the said District

Court in this cause be, and the same is

hereby, affirmed;

It is further ordered that

petitioner-appellant pay to plaintiffs-

appellees, the costs on appeal to be

taxed by the Clerk of this Court.

July 24, 1980

ALVIN B. RUBIN, Circuit Judge,

dissenting:

Issued as Mandate: OCT 24 1980

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-2950

IN RE: STATE OF FLORIDA

DEPARTMENT OF STATE,

Petitioner/Appellant,

VERSUS

TREASURE SALVORS, INC., etc.,

Plaintiffs/Appellees,

THE UNIDENTIFIED, WRECKED AND

ABANDONED SAILING VESSEL, ETC.,

Defendant.

Appeal From the United States

District Court For the Southern

District of Florida

(July 24, 1980)

Before GEWIN, RUBIN and SAM D.

JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

A6

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 Sail-

ing Vessel, 569 F.2d 330 (5th Cir. 1978)

(hereinafter Treasure Salvors I), it was

held that Treasure Salvors and Armada

Research Corp.! 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

1 These two corporations will be re-

rear sy to as Treasure Salvors in this op-

nion.

A7

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

worth repeating. This case dates back to

the early 17th Century, when Spain was

2In 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 mod-

ified, against the United States. On May

3, 1978, the district court issued a de-

fault judgment against all potential

claimants who had not filed their claims

and barred and precluded filing any

further claims to the vessel.

using the riches of the New World to fi-

nance 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 favor-

able Gulf Stream currents, bad weather

set in, and the vessels soon found then-

selves 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 dan-

gerous waters of the lower Florida Keys,

where they were soon lost. The remaining

vessels limped back to Havana. One of

AQ

the eight ships that went down was the

Nuestra Senora de Atocha. When the

Atocha set sail from'Havana, she was car-

rying in excess of one million pesos of

registered bullion and specie. Her hold

contained a treasure worth 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

3In 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.

A10

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 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

sur face buoys. He was unable to relocate

the vessel.

Early in 1623, the Marquis of

Cadereita sailed from Havana to

All

personally supervise the search.4 The

continued efforts proved fruitless. Fin-

ally, in late 1623, the Spaniards aban-

doned 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.2 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,

4The Marquis directed the salvage oper-

ation 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.

5In 1625 another vessel was lost and

all the crew members perished in this

continuing effort to mark the location of

the treasure-laden vessels.

Al2

over four years, salvage her cargo.

Dutch raiding parties, hostile Indians ,®&

and political opportunities’ 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 head-

ed the list. Melian's salvage accounts

were sent from Havana to the Archive of

the Indies in Seville, and the Atocha

passed into history.

Over three centuries later, in the

mid-1960's, treasure searchers renewed

their efforts to locate the Atocha and

her rich treasure. By 1968, the search

6The Indians burned a salvage vessel

that floundered just off the Marquesas

Keys and, eventually, the Spanish salvage

camp. ;

7Melian was appointed Governor at Car-

acas. Captain Juan de Anvez continued

the salvage of the Santa yapberita, but

only occasionally searche r the

Atocha.

A13

was concentrated in the Middle Keys, near

Upper Matecumbe Key. This area was iso-

lated by the searchers 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

8pocuments 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.

Al4

salvage records revealed that the search

for the Atocha had 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

A15

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

9The 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.

A16

Division of Archives in Tallahassee re-

ceived its share! 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 owner-

ship claim of submerged lands, including

that part of the continental shelf on

which the Atocha rests. The report es-

tablished that Florida had never owned

\0Treasure 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 pre-

cious stones were kept in a safety de-

posit box in Key West.

A17

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 car-

go. Treasure Salvors I.

The State of Florida initially re-

frained from intervening in the action.

Instead, the State prepared for the

A18

eventuality of a judgment in favor of the

federal government. Florida assisted the

United States in the lawsuit!! and en-

tered into preliminary negotiations re-

garding the disposition of the Atocha's

treasure should the federal government

prevail.!2 The adverse judgment left

Florida in the cold.

In April 1978, after this Court's

judgment for Treasure Salvors, the dis-

trict court issued a warrant for arrest

in rem. The warrant directed the marshal

‘lan attorney for the Florida Secretary

of State, the agency that administers the

Division of Archives, worked with the

federal government on the case and mon-

itored, for Florida, the progress of the

litigation.

\2The Division of Archives was nego-

tiating with the Department of the Inter-

ior during the course of the litigation

for an oot taveece” permit. pipe fe if

the United States had been successfu

the Division would have received an anti-

quities permit for the wreck site.

Al9

to take possession of all artifacts from

the vessel in the custody or control of

the State's Division of Archives' office

in Tallahassee.!3 Florida filed a mo-

tion 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 dis-

trict 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

\3Tallahassee is located in the

Northern District of Florida. The

marshal was instructed to bring the rem-

nants of the vessel and her cargo into

the custody of the district court in the

Southern District.

A20

denied Florida's motion to quash the war-

rant and granted Treasure Salvors' motion

of April 17 to require the State of

Florida to show cause!4 why it should

not be ordered to transfer the artifacts

in its possession to the custodians ap-

pointed by the district court.!5 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 che district

judge held a full evidentiary hearing on

14This order to show cause is known as

ancillary process. Supplemental

Admiralty Rule C(5).

\5The district judge had previously

appointed Treasure Salvors substitute

custodians. Treasure Salvors, Inc. v.

The Unidentified Wrecked and Abandoned

A21

the jurisdictional issues and the merits

of the order to show cause.!6

After the hearing, the district

judge filed a Memorandum Order containing

extensive findings of fact and conelu-

sions 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

16In order to expedite the litigation,

Treasure Salvors agreed to allow the

Division of Archives to serve as tem-

porary custodian of the disputed

artifacts.

A22

artifacts to the district court. The

State of Florida then instituted this ap-

peal. This Court is persuaded that the

district court's alternative holding is

correct, and we affirm.!7

Eleventh Amendment

Florida's initial jurisdictional

contention is that the order to show

cause directed at the Division of

Archives is barred by the eleventh

17This Court declines to either affirm

or reverse the trial judge's innovative

res judicata analysis. The preclusion

issues raised by the district court's op-

inion are reserved for another day.

A23

amendment.!8 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

18y.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. Edeiogn v. Jordan,

415 U.S. 651, 662, 66

§.Ct. 1347, 1355, 1362. n. 19, "39 L.Ed.2d

662 (1974).

A24

S.Ct. 467, 91 L.Ed. 504 (1947), the dis-

trict 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 amend-

ment 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

A25

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 dis-

trict 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 suffi-

cient evidence of the fact [of owner-

ship], at least in absence of a special

challenge." Id. at 509 (emphasis added).

The Court held that the district judge,

given the vuncontroverted claim to the

vessel, should have acknowledged the

State's ownership. It went on to con-

A26

clude that admiralty in rem process can-

not be issued on public property of a

state "used and employed for public and

governmental purposes." Id. at 5ll.

The Queen City tells us that when a

state submits uncontroverted evidence of

ownership in an admiralty in rem action,

the district court is bound to accept the

assertion and apply the eleventh amend-

ment 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 presump-

tion of validity attributed to a state's

ownership claim.

A27

| Once an appropriate chailenge is

made, a district judge is no longer com-

pelled 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 cole’ and resolves the issue, since

federal courts "always have jurisdiction

to determine our jurisdiction." Nestor

A28

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 as-

sessment that Florida lacks an ownership

interest in the artifacts, see pp.

1348-1349 infra [A43-50], we affirm the

judge's holding that the order to show

'9This 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, 3 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 elev-

enth amendment, petitioners such as

Treasure Salvors would find themselves

stranded without a forum in which to

litigate their claim.

A29

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

200ur 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.

A30

action.2! Platoro Ltd., Inc. v. Uni-

dentified 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 Dis-

trict at any time during the litigation.

Given the general requirement of pre-

sence, the absence of the items in dis-

pute, the State argues, deprive the

21In Treasure Salvors I this Court held

that a party may waive the requirement

that a res ba present within the district

and consent to a court's admiralty in rem

urisdiction. 569 F.2d at 335. Florida,

owever, has not consented to waive the

usual jurisdictional requirements.

A31

district court of in rem jurisdiction and

thus the power to issue the order to show

cause and adjudicate the ownership inter-

est in the particular artifacts held in

Tallahassee.

The State misconceives the nature of

the district court's exercise of juris-

diction. 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 arti-

facts located in its district. The issue

before this Court is whether the presence

22under the salvage contract between

Treasure Salvors and Florida, Florida re-

ceived 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.

A32

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).

Rule C(5)23 provides that where

23supplemental 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 ta Sep 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 intang-

ible 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 pro-

perty or its proceeds to show cause he

it should not be delivered into the

“custody of the marshal or paid into court

to abide the judgment; and, after hear-

ing, the court may enter such judgment as

law and justice may require.

A33

in rem process has already been served

and where 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 de-

livered 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 re-

quire."

There is no doubt that in rem pro-

cess was served with respect to the sal-

vaged 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

A34

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 pro-

cess can be issued outside the district.

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 Com-

mittee on Rules, 28 U.S.C.A. Supplemental

Rule C (1970); 7A Moore's Federal

Practice 4C.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 ar-

rested res, even though the property was

removed from the res prior to seizure).

A35

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 out-

side 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 an-

cillary process against the major portion

of the res would be to allow the pro-

verbial tail to wag the dog. Jurisdiction

over the extra-territorial portion of the

res in such a situation can only be ob-

tained by original process. Id.

For the purposes of ancillary pro-

cess, 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

A36

making the sufficiency determination, the

district court properly was entitled to

consider the main body of the Atocha

(that part still resting on the con-

tinental shelf) as being within its "con-

trol." The bulk of the Atocha lay buried

in international waters forty nautical

miles off the Florida coast, not in an-

other 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

24The court ordered the marshal to ar-

rest the vessel and bring it within the

court's physical control. Alternatively,

the court sopernees 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.

A37

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 ~-s-

proper case for ancillary process.

Cf£.Id. at 334 (Admiralty in rem jurisdic-

tion is a legal fiction designed to aid

courts in "finding the most practical and

efficacious means of resolving the dis-

putes before them").

Even given that this was a proper

case for ancillary process, it must still

be ascertained whether ancillary process

may be issued outside the district but

A38

within state boundaries.25 This deter-

mination hinges on the applicability of

Supplemental Admiralty Rule E(3)(a).

Rule E(3)(a) provides:

(3) Process.

a) Territorial Limits

of ective Service. Pro-

cess in rem and of mari-

time 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

25We pass no judgment, one way or an-

other, on whether ancillary process may

be effectuated across state lines.

A39

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 pro-

cess. First, as the district judge

noted, limiting ancillary process to the

district would produce a multiplicity of

lawsuits. 459 F.Supp. at 519. New law-

suits 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 ex-

penditure 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

A4O

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 con-

clusion that Rule E(3)(a) was not de-

signed to govern ancillary process.

Supplemental Admiralty Rule A pro-

vides that the general Rules of Civil

Procedure govern actions in rem in the

absence of a contrary Supplemental

Rule.26 Federal Rule 4(f) controls the

general rule concerning the territorial

2$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.

A41

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,

27Federal 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.

A42

may be served anywhere within the bound-

aries of the state in which the dis-

trict court is located. Ancillary pro-

cess here was served on the Division of

Archive's [sic] office, located in the

northern part of the state. Rule 4(f)

was satisfied.

In sum, the trial judge had juris-

diction 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

Girected to Florida's contention that the

district court erred in holding that the

State had no interest in the artifacts

from the Atocha and ordering the trans-

fer of the items to the marshal for

A43

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 re-

linquish 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

A44

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

mistake28 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

28In determining the existence of

mutual mistake, there are no principles

peculiar to admiralty. Sicula Oceanica

S.A. v. Wilmar Marine engineering & Sales

rp.-, ° t Te e

A45

sellers introduced evidence establishing

that at the time of the argument 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 ob-

ligation.

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

29Rose, with calf, was worth

approximately seven times as much as a

barren Rose. i

A

Treasure Salvors would not have executed

the agreements. The trial court cor-

rectly heid 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 ele-

mentary 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.

30Like mutual mistake, there are no

principles of failure of consideration

peculiar to admiralty. [See A45, n. 28,

supra]. a

A47

The law aptly terms an

agreement to do an act or

to pay money or other thing

where there is no consider-

ation 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 pro-

mise without legal support.

Where there is a failure of con-

sideration, the injured party is free,

upon discovery, to rescind the agreement

and recover back what he has paid. See

A48

fe

United States v. Haynes School Dist. No.

8, 102 F.Supp. 843 (E.D.Ark.1951).

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 author-

ity when he ordered the Division of Arch-

ives 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 ex-

ecuted, 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

A49

merit and that the lands never belonged

to Florida. A holding that the State's

incorrect claim of ownership is suf-

ficient to support the contracts would

operate to overturn the doctrines of

mutual mistake and failure of consider-

ation. 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 re-

31There is some philosophical support

for the position advocated by the State.

ail s (Genito. Discourse on arene

37 Cogito, ergo sum"--"I think,

therefore I am.")

A50

view of the record reveals that the trial

judge's conclusion that the State did not

have an ownership interest in the arti-

facts is correct. The judgment of the

district court is

AFFIRMED.

ALVIN B. RUBIN, Circuit Judge, dis-

senting:

Respectfully, I dissent from the

conclusion reached by my brethren that

the district court had jurisdiction. Be-

cause 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

A51

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, com-

menced or prosecuted

against one of the United

States by Citizens of an-

other 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. l, 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 cor-

rectly asserts that the plaintiffs cannot

A52

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 adjudica-

tion of its property rights. In those

cases, a tug had been libelled in a

federal court. The state asserted an un-

controverted claim to ownership of the

tug and intervened. The Supreme Court

held [sic] the admiralty court could not

issue in rem process against public pro-

perty 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

A53

imply that, if there is a controverted

claim of state ownership, the controversy

becomes an appropriate subject for

admiralty jurisdiction. Such a conclu-

sion is particularly difficult to recon-

cile with the eleventh amendment when, as

here, the determination of ownership in-

volves 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 juris-

diction 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 jurisdic-

tion is ended. In essence, the sugges-

tion by my brethren that the court can

determine whether it has jurisdiction of

A54

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 de-

termine the rights of the state. In de-

ciding 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 mean-

ing 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

A55

forbidden by Tindal: it concluded the

state from claiming ownership of the pro-

perty.

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 pos-

session 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 Cor-

poration 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 scons

to me that this is the precise result

barred by the eleventh amendment.

A56

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 juris-

diction and to those ob-

jects without its territory

as between plaintiffs and

the United States. In af-

Firming the district

court, we do not approve

that portion of its order

which may be construed as a

holding that plaintiffs

have « :clusive 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 par-

ties or privies to this

litigation. (Emphasis

supplied.)

569 F.2d at 335-36.

A57

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 as-

serted a counterclaim; Florida did not.

If the United States had succeeded, it

would have been decreed owner of the pro-

perty; 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

A58

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 dis-

trict court also was without in rem

jurisdiction over a wreck that lay beyond

the contiguous 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 juris-

diction, 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

A59

of the ocean are wide and deep. Many ob-

jects 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.

A60

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF FLORIDA

No. 75-1416-Civ-WM

TREASURE SALVORS, INC.,

a corporation, and

Armada Research Corp.,

a corporation,

Plaintiffs,

vs.

THE UNIDENTIFIED WRECKED

AND ABANDONED SAILING

VESSEL, her tackle,

armament, apparel and

cargo located within 2500

yards of a point a coor-

dinates 24.31.5' north

latitude and 82.50 west

longitude, said sailing

vessel is believed to be

the NUESTRA SENORA de

ATOCHA,

Defendant.

ee a a a a a a a a a a a a a a a ae ee ee

MEMORANDUM INCLUDING FINDINGS

OF FACT AND CONCLUSIONS OF LAW

A61

INTRODUCTORY STATEMENT AND

CONCLUSIONS OF LAW

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

certain modifications,

this Court determining

salvaged articles from

In order to effectuate

affirmed, with

the judgment of

the ownership of

the ship Atocha.

the mandate of the

Fifth Circuit, and carry out the judgment

of this Court, a warrant for arrest was

_ issued to seize certain salvaged articles

A62

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.

A63

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 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

A64

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

A65

included four lives, among

them the son and daughter-

in-law of Melvin Fisher,

plaintiff's 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 ‘et tie ty sources. Agents of two

governments, Florida and the United

States, who have the highest responsi-

bility 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

A66

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."

The zeal of the United States in

claiming the salvaged articles of the

A67

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

property belonging to Treasure Salvors,

have reacted as though Treasure Salvors

were attempting to steal the old Capitol

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

A68

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

A69

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

sianificent ‘that 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

A70

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 disussion 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 territoria

jurisdiction and to those

objects without its

territory as between

A7}

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

rivies to this litigation.

Vimphasis added) S69°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.

A72

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

Tit ation. Division of

Archives’ Reply to the

Order to Show Cause, P.3.

By the above argument, the Division

of Archives fully recognizess 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. |

A73

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

A74

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 signif-

icance to its failure to intervene. Under

threats of arrest, the Division of

Archives coerced the acceptance of a

A75

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 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

A76

(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 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

A77

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 Acchives was a party in fact, although

not technically in name, to the

litigation. Under all concepts of

A78

fairness, it should be treated as a party

and be bound by the decree--as indeed the

cases so hold.

There is no question, given the

contract claim regarding cights to the

treasure, that the Division of Archives

had a right to 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)

Fed.R.Civ.P. In an analogous case to the

instant suit, the Fifth Circuit made it

A79

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]nm 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 practial reading of

the rule on intervention, the Division

A80

iy

Wh pve:

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

A81

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

A8&2

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,

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

A83

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 eriginal

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:

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

A84

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.

Ve cheyeier Motors Corps. 5

Ss :

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.

skew, . a -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

A85

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 Pro-

vident 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 be-

cause, although tech-

nically 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

A86

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

A87

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 mzy be times when the

opportunity to intervene may be enough to

bind a person not a party. Moore, 1B

Federal Practice 40.411 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

A88

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 plaintiffs who had

foregone their opportunity to intervene

attempted to go forward with their

complaints. On the issue cf 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 New York

court. All parties with

standing to challenge the

Commission's action might

have joined in the New York

proceedings. In these cir-

cumstances, it necessarily

A89

follows that the decision

of the New York court

which, with certain ex-

‘ ceptions, we have affirmed,

precludes further judicial

review or adjudication of

the issues upon which it

passes. Id. at 505-506, 88

SCG. at: Gi2.

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

A90

further its interests, it should now be

bound by the judgment rendered previously

against the United States.

In addition to being bound be-

cause 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 40.411[6] p. 1552

(1974):

If a non-party who thus

participates in litigation

has an interest suffi-

ciently 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 final-

ity require that the par-

A91

ticipating non-party 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 cf 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 ey re

+ « « 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

A92

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 negoti-

ated 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

A93

party is acting as the representative of

a nonparty, but rather that the non-

party's participation justifies holding

him bound by the judgment. Moore, 1B

Federal Practice 40.411.[6] p. 1553

(1974). If a nonparty sits on the

sidelines m~-itoring 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 q 0.411 [6] pp. 1555, 1558, 1559

A94

(1974). While one of these interests

would be sufficient, Moore points out

that 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 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

Ok1l. 103, 243 P. 228 (Okla. 1925).

A95

The second kind of interest which

justifies binding a participating

nonparty is "a proprietary right that

will be affected favorably or detrimen-

tally by the outcome of the litigation."

Moore, 1B Federal Practice q% 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 inven-

tions and patents over to Velsicol. Sub-

sequently, 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.

A96

Julius Hyman & Co. v. Velsicol Corp., 123

Colo. 563, 233 F.2d 977 (1951); cert.

denied 342 U.S. 870, 72 S.Ct. 113, %6

L.Ed. 654 (1951). Later Hyman sued

Regenstein for damages for loss of prof-

its 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 Cir-

cuit. Before the Hyman case, Co-op Cab

Co. v. Settle, 171 F.2d 40 (C.A. 5th

1948), held a nonparty bound. In Co-op,

A97

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

A98

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 4 0.411[6], p. 1559

(1974). After describing some cases

which take a somewhat narrow view, Moore

explains his position:

A99

But a different, and we are

inclined to believe better,

view, adopted by the

Restatement of Judgments,

[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 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. Id. .

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).

A100

The Division of Archives comes under all

three of the 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 govern-

ment 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

A101

of participation in the suit. Moore, 1B

Federal Practice q 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 of de-

fense of the suit...

The non-party's control,

however, need not be

absolute: joint control by

non-parties, or in con-

bag with a party,

s sufficient. Id. at

1564, 1566 [citing numerous

cases].

Logically, the requirement of con-

trol 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 op-

portunity to intervene, less control

A102

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 coop-

erated in negotiations regarding the dis-

position 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

A103

should render the Division bound re-

gardless of the amount of participation.

The extent of the state's entanglement

with and reliance on the federal govern-

ment in this case simply serves to high-

light 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 ar-

rest and seize the salvaged articles in

question.

After receipt of the mandate, an-

cillary process was issued in reference

to certain articles of salvage. The

warrant for arrest to obtain the property

A104

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:

The question of the juris-

diction 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.

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

A105

Limited, Inc. v. Unidentified Remains of

a Vessel, 508 F.2d 1113 (C.A. 5th 1975).

Under the facts in this record, jurisdic-

tion 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 pro-

cess 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 jurisdic-

tion 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 sub-

poenas, by a Federal District Court is

co-extensive with the state in which

A106

it is sitting. Under Supplemental

Admiralty Rule A, the Rules of Civil Pro-

cedure 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’ inter-

pretation 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 pro-

ceedings. Indeed, in Platoro, the Court

recognized in rem jurisdiction could be

acquired and, thus, the process could be

A107

issued, when the res was accidentally,

fraudulently, or improperly removed from

the District. 508 F.2d at 1116. The

holding in Platoro is stptbesita only if

no portion of the res had been validly

arrested within the Southern District of

Florida and if no other basis for the ex-

ceptions existe’. The facts in Platoro

differ markedly from the case at bar.

Platoro involved the problem of invoking

original in rem jurisdiction when no por-

tion of the res was present in the dis-

trict when the suit was filed. In con-

trast, the issue before this court cen-

ters on ancillary jurisdiction, since

original jurisdiction has been estab-

lished as stated. In Platoro, the

plaintiffs had removed the salvage from

the district. Im the present case, the

Division, rather than Treasure Salvors,

A108

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 asied lary jurisdiction.

Professor Moore notes:

Moreover, to the extent a

decree in rem may be said

to effect alI normal

incidents of the arrested

res, it may be necessary to

give extraterritorial

effect to ancillary proces

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 gotgrans. boundaries

of the district in which a

major portion of that res

is physically located. 7A

Moore's Federal Practice

q C.15 p. 700.10.

A109

If the verdict is not in, it is now.

The use of ancillary process to protect

and perfect an existing in rem juris-

diction 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 sepa-

rate proceedings in ever district where a

portion of the res has been removed --

hardly a desirable goal. Pursuasive, if

not controlling, authority for utiliza-

tion of the ancillary process to obtain

in rem jurisdictioin 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.

A110

case. The Fifth Circuit was well aware

that although a substantial portion of

the vessel's cargo was within the juris-

diction 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 ves-

sel and her cargo within

the territorial jurisdic-

tion of the court. Thou-

sands 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

: he it. 569 F.2d at

A111

Upholding jurisdiction in the in-

stant 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 effica-

cious means of resolving

the disputes before them.

An interest in rendering

justice rather than an

automatistic reliance upon

rigid legalisms character-

izes each of them. It is

with these examples before

us that we turn to an exam-

ination of the merits of

the government's jurisdic-

tional 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

removed to the District of Connecticut.

A112

The federal court for the Southern

District of New York petitioned the fed-

eral court for the District of

Connecticut to arrest the vessel and re-

turn it to New York. The federal court

in Connecticut complied with the request,

noting that the right to possession prop-

erly belonged to the court in New York,

and the marshal for that court "[may]

have followed [the ship] anywhere 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

A113

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,

due in in re, and the object

the process is to obtain

the thing itself ... It

is not, therefore, a valid

objection to the issuing of

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 a> ig custody of the

court. at 427.

The Division has obtained the pos-

session 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 juris-

A114

diction, regardless of whether the pro-

perty 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 be-

cause it has been removed .

- « The court may, on mo-

A115

tion, order . .. to show

cause why it should not be

delivered into the custody

of the marshall...

The provisions of Rule C(5) were

followed to the letter. This Court de-

nied 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 dis-

trict court where a re-

ceiver is appointed for

property, real, personal or

mixed, situated in differ-

ent 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 pre

A116

vious 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

arti¢les of salvage recovered from a

wreck site located outside the juris-

diction 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 pnar ty other than what might exist

A117

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 (1976), did not modify nor

change the State of Florida's seaward

boundary but merely defined it as it was

and is. Nevertheless, the Division per-

sists in arguing that the State's juris-

diction extends beyond the sovereign

territorial waters of the United States

for purposes of salvage. This Court re-

jects 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

A118

(1964) T.1.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 or and their

cargos (includ bullion)

lying on the seabed or

covered by the sand of the

subsoil. 11 U.S. GAOR,

overs 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.

A119

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 judg-

ment of this Court, as affirmed by the

Fifth Circuit, Treasure Salvors has a

valid claim to the property seized, un-

less the State asserts and establishes a

superior claim.

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, 25 S.Ct. 878, 27 L.Ed. 780 (1883);

Gunter v. Atlantic Coast Line Railroad

A120

200 U.S. 273 (1906); Gardner v. State of

New Jersey, 329 U.S. 565, 67 S.Ct. 467,

91 L.Ed. 504 (1974). 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, simul-

taneously assert immunity under the Ele-

venth Amendment. These Supreme Court

cases hold that when a state voluntarily

places itself in the position of a suit-

or, 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

Al21

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

instruments relate to an

executory agreement, or one

that has been executed

- « « [T)he authorities are

ractically unanimous in

olding 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.

A122

In this regard, the general mari-

time law, controlling here, is on ail

fours with that of Florida. See Norris,

supra §167; The Alert, 56 F. 721

(S.D.N.Y. 1893); The Clotilde, F.Cas.

2903 (D.C. Me. 1872) (contract declared

invalid for mutual mistake). Under mari-

time law, a misstatement of fact by one

of the parties will result in the con-

tract being set aside. The Clandeboye,

70 F. 631 (C.A. 4th 1895).

The coercive acts of the Division of

Archives in threatening arrest and con-

fiscation voids the contract under the

general maritime law. Crary v. The El

Dorado, F.Cas. 3362 (S.D.N.Y. 1856).

Contracts entered into because of com-

pulsion, or inequality of bargaining

position may be set aside. Norris, supra

§$169,170.

A123

Even without the compulsion and

coercion of 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 con-

tract. Had 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 rea-

sonable diligence could have avoided the

mistake of fact. The contract was there-

fore invalid from the time of its ex-

ecution, 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

A124

Division of Archives and Treasure Salvors

is invalid for lack or failure of consid-

eration. See Marks v. Fields, 160 Fla.

789, 36 So. 2d 612 (1948); Jones v.

McCallum, 21 Fla. 392 (1885). The con-

tract 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.

A125

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:

It is further declared to

be the public policy of the

state that all treasure

trove, artifacts and such

objects having intrinsic or

historical aad archeolog-

ical value which have been

abandoned on state-owned

lands or state-owned sover-

eignty 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].

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

A126

execution of its powers under this

chapter."

Since the property was never actu-

ally 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

into a contract conveying salvage rights.

Additionally, since the property was not

owned by the State, because not located

on sovereignty submerged lands, the Divi-

sion was without authority to promise, as

consideration for the contract, 75 per-

cent of the property recovered. An early

Florida case which is still applicable

adequately expresses the controlling

legal maxim:

The law aptly terms an

agreement to do an act or

Suake ds wardbasideration

for it a nudum pactum...

A127

a promise without legal

support, which the law will

not enforce ... Jones v.

McCallum, 21 Fla. 392, 395

The contract at issue here must be deemed

invalid. Aside from thé 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 dis-

cretion in its application. Before re-

scission 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, 36

A128

(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 and Development

Co., 94 Fla. 1010, 114 So. 769, 771 (Fla.

1927).

Under facts of the present case the

prties 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 seek-

ing 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

A129

may be waived if, after acquiring know-

ledge 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, rati-

fies or accepts the benefits thereof

» « «' Id, at 142. Treasure Salvors did

not remain silent after learning of the

mistake, nor did it thereafter recognize

the contract as binding upon either par-

ty. 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

A130

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

seta ot 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 mari-

time 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 repudiation by the

Division of its contract with Treasure

Salvors. In occupying a mutually

inconsistent position in its dealings

with the United States and with Treasure

Salvors, the Division did not act in good

A131

faith towards Treasure Salvors' rights.

The Division performed no salvage service

of value.

Additionally, the contract is inval-

id because the states cannot constitu-

tionally 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 En-

glish Common Law to award

ownership of a sunken ves-

sel to the sovereign, the

“American Rule" vesting

title in the finder has

been widely recognized by

courts and writers. (Cita-

tions omitted). We accept

the “American Rule" as it

has been uniformly pro-

nounced in the courts of

this nation for over a cen-

tury. Treasure Salvors v.

Unidentified Wrecked, etc.,

By this pronouncement, the Fifth Circuit

puts into perspective the State's claim

A132

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 poser ey

on, and in, navigable

waters. The presumption by

a state of title of pos-

session 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- 13/7 e195 74

Cummulative Supplement).

We are concerned with substantive

maritime law that has been the subject of

innumerable federal statues, 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 (1871); The

A133

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 ex-

tends 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

i Lp (Emphasis

added).

Accord: In re Garnett, 141 U.S. 1, 11

S.Ct. 840, 35 L.Ed. 631 (1891).

A134

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

oudvens or, if granted, to regulate sal-

vage is in direct conflict with substan-

tive maritime law. Chapter 267, Florida

Statutes, cannot be used to alter or pre-

judice 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 unconstitu-

tionality of acts taken in such reliance.

This Court finds that Ch. 267.061,

Florida Statutes, is not applicable to

the articles of salvage in question.

Because of the Division of Archives’

insistence that the statute does control,

the Court further finds that under the

A135

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, Florida Statutes, 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:

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 limit itself to

Indian reservations or to

Indian relics. Hobbyists

A136

who explore the desert and

its ghost towns for arrow-

heads and antique bottles

could arguably find them-

selves within the Act's

{regedit ts ca 499 F.2d at

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

S CRarNSeiemte 499 F.2d at

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 staute claims ownership

of such items as artifacts, objects of

antiquity, monuments, memorials, treasure

trove, shipwrecks, etc., and is substan-

tially identical to the Federal Act. In

A137

only one instance does the Florida Act

attempt definition, and this definition

is. confusing. Treasure trove is defined

s "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

iven by the early common

aw to any gold or silver,

plate or Calahen. found

concealed in the earth or

in a house or other private

place, but not lying on the

round, the owner of the

iscovered treasure being

unknown. Livermore v.

White. 74 Me

), Sovern v. "Yoran, 16

Ore. 269, 20 P. T00, 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

A138

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 con-

travenes 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 re-

lations. 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

A139

U.S. 255, 37 S.Ct. 545, 61 L.Ed. 116

(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 the paramount power to

determine the maritime law which shall

prevail throughout the contry." 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 at-

tempt by the Division of Archives, under

A140

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 Divi-

sion 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 power as it

is maritime in nature.

A141

By Section 9, Judiciary Act of 1789,

1 Stat. 76, 77, the District Courts of

the United States were given "exclusive,

original cognizance of all civil cases of

admiralty and maritime jurisdiction; . .

- saving 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 Con-

gress 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.

A142

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 pro-

hibition, 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 Arch-

ives 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 dicectly an-

alogous to a state filing a claim to a

A143

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 bank-

ruptcy law that he who in-

vokes the aid of the bank-

ruptcy court by offering a

proof of claim and de-

manding its allowance must

abide the consequences of

that procedure. Wiswall v.

see 93 U.S. 347, 351

-Ed. 923 (1826). If

the claimant is a State,

the procedure of proof and

allowance is not trans-

mitted 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

nonetheless such because

the claim is rejected in

toto, reduced in part,

given a priority inferior

to that claimed, or

A144

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

Atlantic Coast Line R. Co.,

S.Ct. 252, 256-258, 50

L.Ed. 447; Missouri v.

Fiske, 290 U.S. 18, 24, 25,

5% 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 pre-

sentation and determination of the valid-

ity 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

A145

.

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 re-

ference to this Court's existing juris-

diction as affirmed by the Fifth Circuit.

The State of Florida obtained an emer-

gency 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

A146

Treasure Salvors' Supplemental Complaint

for Declaratory Judgment and Other Relief

which was filed April 17, 1978.

In both this Court and the Fifth

Circuit, the Division of Archives relies

on In re State of New York, 256 U.S. 490,

40 S.Ct. 588, 65 L.Ed. 1057 (1921), which

upheld the immunity of a state to an in

personam suit in Admiralty under the

Eleventh Amendment. The present pro-

ceedings, however, are in rem as the re-

sult 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

A147

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

A148

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 correspond-

ingly 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 juris-

diction. If it does, the

inquiry may proceed on oth-

er lines and the facts may

be brought out more fully

than before. 254 U.S. at

533.

_ The Fifth Circuit in this case

denied the Writ of Prohibition noting

that the question of jurisdiction was

A149

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 Arhcives; 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.

A150

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.

A151

The present admiralty proceeding

thus involves a portion of the salvaged

articles pertaining to a res that pre-

viously 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 indepen-

dent action against the Division of

Archives seeking a judgment for the value

of the articles wrongfully taken by the

Division of Archives. Perhaps the short

answer to the Division of Archives' con-

tention is that, even if this hypotheti-

cal situation were the case, under a con-

trolling precedent of the Florida Supreme

Court, sovereign immunity would not

necessarily bar such action. As Justice

Terrell ruled for the Florida Supreme

A152

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

peoeersy neither will it

e 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

tere for a State agency

which appropriates private

peeren ce before the value

as been fixed and paid. 1

So. 2d at 869.

A153

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 with-

out 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 con-

stitutional 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 im-

mune. 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, de-

prived Treasure Salvors of its property.

A154

Although unnecessary to the re-

solution of the application of the Ele-

venth 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 con-

tract actions.

The State Constitution authorizes

the legislature to waive sovereign immun-

ity. Fla. Const. art 10 § 13. The

legislature has waived immunity and

specifically authorized suits to quiet

A155

title where the state claims an interst

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 auth-

orized suits to establish claims to

A156

abandoned property. Chapters 716 and

717, Florida Statutes. Sections 716.07

and 717.22 specifically authorize suits

to establish claims to abandoned pro-

perty. 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 mari-

time law.

. 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 out-

side the territorial boundaries of the

State and not on State sovereign lands.

A157

See Treasure Salvors v. 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 . .. com-

mon law courts can assess

damages based upon con-

tract, but cannot make a

orate 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 provi-

sions of Chapters 716 and 717 are inoper-

ative in this purely maritime case and

this Court has jurisdiction to proceed to

A158

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 con-

tract 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 £&.Ct. 347, 89

L.Ed. 389 (1945). Instead, Treasure

Pe here seeks to recover a portion

of the property they own by virtue of

discovery and possession on the Outer

A159

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 claim do not apply out-

side the State's territory. The ration-

ale 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 with-

out 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 ex-

clusive area of maritime jurisdiction,

A160

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

A161

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 "threshhold 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 supple-

ment 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

A162

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

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 Road

Department of Florida v. Tharp, 145 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.

DONE and ORDERED at Miami, Florida,

this 2lst day of August, 1978.

s/William 0. Mehrtens

enior e tates

District Judge

A163

CONSTITUTION OF THE UNITED STATES

ARTICLE III

SECTION 2. The judicial power shall

extend to all cases, in law and equity,

arising under this Constitution, the laws

of the United States, and treaties made,

or which shall be made, wiles their

authority;--to all cases affecting

ambassadors, other public ministers and

consuls;--to all cases of admiralty and

maritime jurisdiction;--to controversies

to which the United States shall be a

party;--to controversies between two or

more States; between a State and citizens

of another State;-- between citizens of

different States;-- between citizens of

the same State claiming lands under

grants of different States, and between a

A164

State, or the citizens thereof, and

foreign States, citizens or subjects.

In all cases affecting ambassadors,

other public ministers and consuls, and

those in which a State shall be a party,

the Supreme Court shall have original

jurisdiction. In all the other cases

before mentioned, the Supreme Court shall

have appellate jurisdiction, both as to

law and fact, with such exceptions, and

under such regulations as the Congress

shall make.

The trial of all crimes, except in

cases of impeachment, shall be by jury;

and such trial shall be held in the State

where the said crimes shall have been

committed ; but when not committed within

any State, the trial shall be at such

place or places as the Congress may by

law have directed.

A165

FLORIDA STATUTES 1979

CHAPTER 267

ARCHIVES, HISTORY, AND RECORDS MANAGEMENT

267.011

267.021

267.031

267.041

267.051

267.061

267.0615

267.0616

Short Title.

Definitions.

Division of Archives, History,

and Records Management.

Office of the director.

Bureau of Archives and Records

Management.

Bureau of Historic Sites and

Properties; state policy,

responsibilities.

Historic Preservation Project

Review Council; creation;

members; membership; powers

and duties.

Submission of proposals for

state historical

preservation boards of

A166

267.0617

267.062

267.071

267.081

267.09

267.10

267.11

267.12

267.13

267.14

trustees required;

procedure.

Historic Preservation Trust

Fund,

Naming of state buildings

and other facilities.

Bureau of Historical Museums.

Bureau of Publications.

Certain powers and duties

transferred.

Legislative intent.

Designating archaeological

sites.

Research permits; procedure.

Prohibited practices;

penalties.

Legislative intent.

267.011 Short title. --This act

shall be known as the "Florida Archives

and History Act."

A167

°z

History. --s. 1, ch.67-50.

267.021 Definitions. --For the

purpose of this act:

(1) "Division" shall mean the

Division of Archives, History, and

Records Management of the Department of

State.

(2) “Public record" or "public

records" shall mean all documents,

papers, letters, maps, books, tapes,

photographs, films, sound recordings, or

other material regardless of physical

form or characteristics made or received

pursuant to law or ordinance or in

connection with the transaction of

officiasl business Sy any agency.

(3) "Agency" shall mean any state,

county, or municipal officer, department,

division, board, bureau, commission, or

other separate unit of government

A168

created or established by law.

(4) "Florida State Archives" shall

mean an establishment maintained by the

division for the preservation of those

public records and other papers that have

been determined by the division to have

sufficient historical or other value to

warrant their continued preservation by

the state and have been accepted by the

division for deposit in its custody. -

(5) “Records center" shall mean an

establishment maintained by the division

primarily for the storage, processing,

servicing, and security of public records

that must be retained for varying periods

of time but need not be retained in an

agency's office equipment or space.

(6) “Historic sites and properties"

shall mean real or personal property of

historical value.

A169

History. --s. 2, ch. 67-50; ss. 10,

35, ch. 69-106; s. 72, ch. 71-377.

267.031 Division of Archives,

History, and Records Management. --

(1) The Division of Achives,

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

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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 2 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 cauncil to serve the unexpired

term of such vacated office.

(c) It shall be the duty of any of

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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 s.

112.061.

(3) The division may employ a

director of the division and shall

establish his qualifications. The

director shall act as 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

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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 performanmce of its

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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.

History. --s.3, ch. 67-50; ss. 10,

25, 27, 35, ch. 69-106; s. 73, ch.

71-377; s.1, ch. 73-280; s. 4, ch.

78-323.

267.041 Office of the director. --

(1) It shall be the duty and

responsibility of the office of the

director to render all services required

by the division and the several bureaus

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herein set forth that can advantageously

and effectively be centralized. The

office shall perform such other functions

and duties as the division may direct.

(2) The director shall supervise,

direct, and coordinate the activities of

the division and its bureaus.

History. --s.4, ch.67-50; ss. 10,

35, ch. 69-106.

267.051 Bureau of Archives and

Records Management. --

(1) It shall be the duty and

responsibility of the Bureau of Archives

and Records Management to:

(a) Administer on behalf of the

division the provisions of this section.

(b) Organize and administer the

Florida State Archives.

(c) Preserve and administer such

records as shall be transferred to its

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custody, and to accept, arrange, and

preserve them, according to approved

archival practices and to permit them at

reasonable times and under the

supervision of the division to be

inspected, examined and copied; provided

that any record placed in the keeping of

the division under special terms or

conditions restricting their use shall be

made accessible only in accordance with

such terms and conditions.

(d) Cooperate with an assist

insofar as practicable state

institutions, departments, agencies, the

counties, municipalities and individuals

engaged in activities in the field of

state archives, manuscripts, and history,

and to accept from any person any papers,

books, records and similar materials

which in the judgment of the division

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warrant preservation in the state

archives.

(e) Provide a public research room

where, under policies erc*ablished by the

division, the materials in the state

archives may be studied.

(£) Conduct, promote, and encourage

research in Florida history, government,

and culture, and to maintain a program of

information, assistance, coordination,

and guidance for public officials,

educational institutions, libraries, the

scholarly community, and the general

public engaged in such research.

(g) Cooperate with and, insofar as

practicable, assist agencies, libraries,

institutions, and individuals in projects

designed to preserve original source

materials relating to Florida history,

government, and culture, and to prepare

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and publish, in cooperation with the

Bureau of Publications, handbooks,

guides, indexes, and other literature

directed toward encouraging the

preservation and use of the state's

documentary resources.

(h) Establish and administer a

records management program, including the

operation of a record center or centers

directed to the application of efficient

and economical management methods

relating to the creation, utilization,

maintenance, retention, preservation and

disposal of records.

(i) Analyze, develop, establish,

and coordinate standards, procedures and

techniques of record-making and

record-keeping.

(j) Insure the maintenance and

security of records which are deemed

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appropriate for preservation.

(k) Establish safeguards against

unauthorized or unlawful removal or loss

of records.

(1) Initiate appropriate action to

recover records removed unlawfully or

without authorization.

(m) Institute and maintain a

training and information program in all

phases of archives and records management

to bring to the attention of all agencies

approved and current practices, methods,

procedures and devices for the efficient

and economical management of records.

(n) Provide a centralized program

of microfilming for the benefit of all

agencies.

(0) Make continuous surveys of

record-keeping operations.

(p) Recommend improvements in

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current record management practices,

including the use of space, equipment,

supplies and personnel in creating,

maintaining and servicing records.

(q) Establish and maintain a

program in cooperation with each agency

for the selection and preservation of

records considered essential to the

operation of government and to the

protection of the rights and privileges

of citizens.

(r) Make, or to have made,

preservation duplicates, or designate

existing copies as preservation

duplicates, to be preserved in the place

and manner of safekeeping as prescribed

by the division.

(2) Any agency is hereby authorized

and empowered to turn over to the

division any record no longer in current

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official use and the division, in its

discretion, is authorized to accept such

records and having done so shall provide

for their administration and preservation

as herein provided and upon acceptance

shall be considered the legal custodian

of such records.

(3)(a) All records transferred to

the division may be held by it ina

records center, to be designated by it,

for such time as in its judgment

retention therein is deemed necessary.

At such time as it be established by the

division, said records as are determined

by it as having historical or other value

warranting continued preservation shall

be transferred to the Florida State

Archives.

(b) Title to any record detained in

any record center shall remain in the

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agency transferring such record to the

division.

(c) Title to any record transferred

to the state archives, as authorized in

this chapter, shall be vested in the

division.

(4) The division may make certified

copies under seal of any records

transferred to it upon the application to

any person, and said certificates, signed

by the director, shall have the same

force and effect as if made by the agency

from which the records were received.

The division may charge a reasonable fee

for this service.

(5) Any preservation duplicate of

any record made pursuant to this chapter

shall have the same force and effect for

all purposes as the original record. A

transcript, exemplification, or certified

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copy of such preservation duplicate shall

be deemed, for all purposes, to be a

transcript, exemplification or certified

copy of the original record.

(6) It shall be the duty of each

agency to:

(a) Cooperate with the division in

complying with the provisions of this

chapter.

(b) Establish and maintain an

active and continuing program for the

economical and efficient management of

records.

(7) Each agency shall submit to the

division in accordance with the rules and

regulations of the division a list or

schedule of records in its custody that

are not needed in the transaction of

current business and that do not have

sufficient administrative, legal or

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fiscal significance to warrant further

retention by the agency. Such records

shall, in the discretion of the division,

be trasnsferred to it for further reten-

tion and preservation, as herein pro-

vided, or may be destroyed upon its

approval.

(8) No records shall be destroyed

or disposed of by any agency unless ap-

proval of the division is first obtained.

The division shall adopt reasonable rules

and regulations not inconsistent with

this chapter which shall be binding on

all agencies relating to the destruction

and disposal of records. Such rules and

regulations shall provide but not be

limited to:

(a) Procedures for complying and

submitting to the division lists and

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schedules of records proposed for dis-

posal.

(b) Procedures for the physical de-

struction or other disposal of records.

(c) Standards for the reproduction

of records for security or with a view to

the disposal of the original record.

(9) The division may employ a chief

of the Bureau of Archives and Records

Management. The chief shall possess such

qualifications as the division may pre-

scribe but shall be qualified by exper-

ience 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 direc-

tor, to supervise, direct, and coordinate

the activities of the Bureau of Archives

and Records Management.

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History. --s. 5, ch. 67-50; ss. 10,

35, ch. 69-106.

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 scien-

tific or historical value or are of in-

terest 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

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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 jie

jects 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 there-

to 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, pre-

serve, and promote the location, acquisi-

tion, and preservation of historic sites

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and properties, buildings, artifacts,

treasure trove, and objects of antiquity

which have scientific or historical value

or are of interest to the public, in-

cluding, but not limited to, monuments,

memorials, fossil deposits, Indian habi-

tations, 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 pro-

perties 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

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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 authencity and a

feasible means of providing for the ac-

quisition, preservation, restoration, or

operation of such property.

3. The property shall have been

approved for such purpose by the

division.

(d) Cooperate and coordinate with

the Division of Recreation and Parks of

the Department of Natural Resources in

the operation and management of historic

sites and properties subject to the

Division of Archives, History, and

Records Management.

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(3) The division shall employ a

state archaeologist, and such other ar-

chaeologists as deemed necessary, who

shall possess such qualifications as the

division may prescribe. The state ar-

chaeologist 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

c

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