Amicus Curiae Brief — California v. Deep Sea Research, Inc.

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Supreme Court, Ug.

F lelvE D

(\)

No. 96-1400 _/

In The

Supreme Court of the United

OCTOBER TERM, 1997

STATE OF CALIFORNIA, STATE LANDS COMMISSION,

Petitioners,

DEEP SEA RESEARCH, INC..,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FoR THE NINTH CIRCUIT

BRIEF OF THE NATIONAL TRUST FOR HISTORIC

PRESERVATION, ADVISORY COUNCIL ON UNDERWATER

ARCHAEOLOGY, COUNCIL OF AMERICAN MARITIME

MUSEUMS, INSTITUTE OF NAUTICAL ARCHAEOLOGY,

NATIONAL CONFERENCE OF STATE HISTORIC

PRESERVATION OFFICERS, NORTH AMERICAN SOCIETY FOR

OCEANIC HISTORY, SOCIETY FOR AMERICAN

ARCHAEOLOGY, SOCIETY FOR CALIFORNIA ARCHAEOLOGY,

SOCIETY FOR HISTORICAL ARCHAEOLOGY, AND SOCIETY OF

PROFESSIONAL ARCHEOLOGISTS

AS AMICI CURIAE SUPPORTING PETITIONERS

Paul W. Edmondson

Elizabeth S. Merritt

Thompson M. Mayes

Edith M. Shine

Laura S. Nelson

NATIONAL TRUST FOR

HISTORIC PRESERVATION

1785 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-6035

August 1997

Robert A. Long, Jr.*

James A. Goold

Craig W. Canetti

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Counsel for Amici Curiae

* Counsel of Record

QUESTIONS PRESENTED

1. Whether, in an in rem admiralty action seeking title

or salvage rights to a shipwreck lying on the submerged lands

of a State, a State is entitled to immunity from suit under the

Eleventh Amendment only if it can prove, by a preponderance

of the evidence, that it owns the shipwreck.

2. Whether the Abandoned Shipwreck Act, 43 U.S.C.

§§ 2101-2106 ("ASA"), preempts state laws governing title to

historic shipwrecks that are not protected by the ASA.

3. Whether a long-lost historic shipwreck should be

deemed not abandoned, and therefore not protected by the

ASA, because an insurance company may have paid a claim

on a portion of the ship’s cargo.

Page

TABLE OF AUTHORITIES.................. V

INTERESTS OF AMICI CURIAE............... i

ee ewe ee 2

SUMMARY OF ARGUMENT ................ 6

Ne debe o es 9

I. THE ELEVENTH AMENDMENT BARS

FEDERAL COURTS FROM ADJUDICATING AN

UNCONSENTING STATE’S INTEREST IN

HISTORIC SHIPWRECKS LOCATED ON THE

STATE’S SUBMERGED LANDS ........... 9

Il. THE ASA DOES NOT PREEMPT CALIFORNIA’S

LAW GOVERNING ARCHAEOLOGICAL SITES

LOCATED IN OR ON THE _ STATE’S

SUBMERGED LANDS ................. 13

Ill. LONG-LOST HISTORIC SHIPWRECKS SHOULD

BE PRESUMED TO BE ABANDONED ...... 17

A. Abandonment May Be Implied From

Inaction Over A Period Of Time ......... 18

B. Whether Technology Needed To Salvage A

Vessel Was Developed Only Recently Should

Not Preclude A Determination That A Long-Lost

Historic Shipwreck Is Abandoned ........ 20

(iii)

C. There Is No General Rule That A Vessel

And Its Cargo Must Be Treated As A

“Unified Mes” ow we eee eer eeeees

D. The Possibility Of Litigation In Two Courts

Defeats The Purpose Of The ASA .......--

TABLE OF AUTHORITIES

Cases

American Dredging Co. v. Miller,

a ee

Barnett Bank of Marion County, N.A.

v. Nelson, 116 S. Ct. 1103 (1996) ......

Bemis v. RMS Lusitania, 884 F. Supp. 1042

(E.D. Va. 1995), aff'd without op..,

99 F.3d 1129 (4th Cir. 1996) .........

Bunge Corp. v. Agri-Trans Corp.,

542 F. Supp. 961 (N.D. Miss. 1982),

aff'd in part and vacated in part

on other grounds, 721 F.2d 1005

a ee een a as

Chance v. Certain Artifacts Found

and Salvaged from the Nashville,

A/K/A, The Rattlesnake, 606 F. Supp.

801 (S.D. Ga. 1984), aff'd mem..,

775 F.2d 302 (11th Cir. 1985) ......

Cipollone v. Liggett Group, Inc., 505 U.S. 504

I a A eee ee a

Cobb Coin Co., Inc. v. Unidentified,

Wrecked & Abandoned Sailing Vessel,

525 F: Supp. 186 (S.D. Fla. 1981) ......

Cobb Coin Co., Inc. v. Unidentified,

Wrecked & Abandoned Sailing Vessel,

549 F. Supp. 540 (S.D. Fla. 1982) ......

(v)

Columbus-America Discovery Group

v. Atlantic Mutual Insurance Co.,

974 F.2d 450 (4th Cir. 1992), cert.

denied, 507 U.S. 1000 (1993) ........... 20, 24

Compania Galeana, S.A. v. Motor Vessel

Caribbean Mara, 565 F.2d 358

Le a ee 24

English v. General Electric Co., 496 U.S. 72

5 es ok 6k Ma AGS O0m)) 60.0 OP 8 15

Ex parte Young, 209 U.S. 123 (1908) .........-. 11

Fairport International Exploration, Inc.

v. Shipwrecked Vessel Known as the

Cuneta Lawrence, 105 F.3d 1078

(6th Cir. 1997) .. 2... eee eee ee eee eee 22

Fitzgerald v. Unidentified, Wrecked &

Abandoned Vessel, 866 F.2d 16 (ist Cir.

SS ire PS yore ie 11, 12, 13

Florida Department of State v. Treasure

Salvors, Inc., 458 U.S. 670 (1982) ..... 10, 11, 13

Georgia Co. v. Richfield Oil Co., 50 F.2d 901

(W.D. Wash. 1930) .......---- eee eeee 24

Hener v. United States, 525 F. Supp. 350

(S.D.N.Y. 1981) ... 0.22 ee eee eee eee 24

ITSI TV Products, Inc. v. Agricultural Ass’ns,

3 F.3d 1289 (9th Cir. 1993) ........--0ee 12

Idaho v. Coeur d’Alene Tribe, 117 S. Ct. 2028

EEE bes bdccmneenderdsde.*e spe he 12

In re New York, 256 U.S. 490 (1921) .......----- Q

In re New York, 256 U.S. 503 (1921) ........-+--- 9

Jupiter Wreck, Inc. v. Unidentified, Wrecked &

Abandoned Sailing Vessel, 691 F. Supp. 1377

(S.D. Fla. 1988) ....----- eee eee eee 4, 6

vii

Klein v. Unidentified Wrecked & Abandoned

Sailing Vessel, 758 F.2d 1511 (11th Cir.

MP ASW MECERL ee dle me. 17

Madruga v. Superior Court, 346 U.S. 556 (1954) . . 15. 25

Maritime Underwater Surveys, Inc. v.

Unidentified, Wrecked & Abandoned

Sailing Vessel, 717 F.2d 6 (1st Cir. 1983)... 4, 6, 11,

Martha’s Vineyard Scuba Headquarters, Inc. v. ra

Unidentified, Wrecked & Abanduned Steam

Vessel, 833 F.2d 1059 (1st Cir. 1987) ...... 19, 20

Marx v. Government of Guam, 866 F.2d 294 ,

PT RS re 12

Moyer v. Wrecked & Abandoned Vessel,

Known as the Andrea Doria, 836 F. Supp.

I ee ee gor Oo.- 5, 20

Puerto Rico Aqueduct & Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1993) .... . 12

Romero v. International Terminal Operating

Co, SOUS SS6 CD ow ci ccc se 15

Rounds v. Cloverport Foundry & Machine Co.,

ge 10

Scheuer v. Rhodes, 416 U.S. 232 (1974) .......... 4

Sindia Expedition, Inc. v. Wrecked &

Abandoned Vessel, Known As "The Sindia",

895 F.2d 116 (3d Cir. 1990) ............. 13

Southern Pacific Co. v. Jensen, 244 U.S. |

ee i) at, ee oe ee 17

Stratton v. Jarvis, 33 U.S. (8 Pet.) 4 Se ee 24

Subaqueous Exploration & Archaeology, Lid.

v. Unidentified, Wrecked & Abandoned Vessel,

577 F. Supp. 597 (D. Md. 1983), aff'd

without op., 765 F.2d 139 (4th Cir. 1985) .... 4,6

The Mary, 13 U.S. (9 Cranch) 125 (1815) ...... 9, 23

The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866) .... 10

Treasure Salvors, Inc. v. Unidentified,

Wrecked & Abandoned Sailing Vessel, 569

F.2d 330 (Sth Cir. 1978) .. 1... 6 ee ee ees 20

United States v. Steinmetz, 973 F.2d 212 (3d

Cir. 1992), cert. denied, 507 U.S. 984

|. ne rs i. Se. i ee 2

Utah Div. of State Lands v. United States,

482 U.S. 193 (1987)... 2 2. ees 11

Wilburn Boat Co. v. Fireman’s Fund Insurance,

$48 U.S. 310 (1935S) 2. ww cw eee wee 14

Zych v. Unidentified, Wrecked & Abandoned

Vessel, Believed to be the SB "Lady Elgin",

755 F. Supp. 213 (N.D. Ill. 1991), rev'd,

960 F.2d 665 (7th Cir. 1992), cert. denied,

506 U.S. 985 (1992)... 2 6 ee ee eee 2, 23

Zych v. Wrecked Vessel Believed To Be The

"Lady Elgin”, 960 F.2d 665 (7th Cir.),

cert. denied, 506 U.S. 985 (1992) . 8, 10, 11, 12, 13

Zych v. Unidentified, Wrecked & Abandoned

Vessel, Believed to be the SB "Seabird",

746 F. Supp. 1334 (N.D. Ill. 1990), rev'd,

941 F.2d 525 (7th Cir. 1991), on remand,

811 F. Supp. 1300 (N.D. Ill. 1992), aff'd,

19 F.3d 1136 (7th Cir. 1994), cert. denied,

$13 U.S. 961 (1994)... 2 ee ees

Constitution, Statutes, and Rule

U.S. Const. amend. XI........ ji

Mimmanhs........... 0 core

. ' Leone adeedeas

43 U.S.C. §§ 2101-2106 .......... 1,4, 5

ee CU we 15 16

eS 15

Pe 19

Mee 5, 18

Seana. | 15

ee a ana 14

Comprehensive Smokeless Tobacco Health ==«-s—i—™

Education Act of 1986,

15 U.S.C. §§ 4401-4408 (1994)... ... 14

Rivers and Harbors Act .............

Gee is

Submerged Lands Act of 1953,43U.S.C _

I a ae eta t ele os 6

SS le ee ane 14

WE i ee

I re Se ee

1 SERRE Obata ;

Cal. Pub. Res. Code §6313.............7 15, 17

RE ut 13

I ey |

&-% & ) es enter ek Rca ay l

Miscellaneous

H.R. Rep. No. 100-514(1) (1988) ........ 17, 18, 22

H.R. Rep. No. 100-514(II) (1988) ........... 6, 18

S. Rep. No. 100-241 (1987) .......--- 5, 17, 19, 22

134 Cong. Rec. 5336-5337 (1988) .....- +--+: 22

134 Cong. Rec. 6613 (1988) ....-- +--+ sees: 16

134 Cong. Rec. 6615 (1988) ....--- +e eee eees 25

55 Fed. Reg. 50,115 (1990) ....----- seer eee 19

70 Am. Jur. 2d Shipping (1987) ....--- +++ 55> 20

A. Crothall, Wealth From The Sea (1993) ..-.--.---> 3

G. Bass, Archaeology Under Water CD We bce ewes 3

Thompson M. Mayes, Current Legal Issues in the

Law of Historic Shipwrecks, 5 Preservation

L. Rep. 2027 (1986) .....- +--+ e seer rr rees 2

29 James W. Moore, Moore’s Federal Practice

§ 703.06[2] (3d ed. 1997)... -- eee eee i)

3A Martin J. Norris, Benedict on Admiralty

§ 207 (7th ed. 1997) ....---- +++ paces 24

2 Thomas J. Schoenbaum, Admiralty and Maritime

Law § 16.7, at 341 (2d ed. 1994) .......--- 17, 19

W.F. Searle, Jr., Advanced Deep Salvage

Operations, Oceanology International,

ee eer ere ee 3

INTERESTS OF AMICI CURIAE

The National Trust for Historic Preservation in the United

States ("National Trust") was chartered by Congress in 1949

aS a private nonprofit corporation to facilitate public

participation in historic preservation and to further the historic

preservation policies of the United States. See 16 U.S.C.

§ 468 (1994). Additional information describing the National

Trust, the Advisory Council on Underwater Archaeology, the

Council of American Maritime Museums, the Institute of

Nautical Archaeology, the National Conference of State

Historic Preservation Officers, the North American Society for

Oceanic History, the Society for American Archaeology, the

Society for California Archaeology, the Society for Historical

Archaeology, and the Society of Professional Archeologists is

included in the Appendix.'

Recognizing that the United States’ irreplaceable maritime

legacy of historic shipwrecks was being damaged or destroyed

through unregulated commercial exploitation, the amici

organizations actively supported passage of the Abandoned

Shipwreck Act of 1987 ("ASA" or "the Act"), 43 U.S.C.

§§ 2101-2106 (1994), in order to clarify the States’ authority

to protect historic shipwrecks. The National Trust and many

of the other amici have participated in lower court cases

involving historic shipwrecks and the ASA in an attempt to

prevent the deterioration or destruction of these valuable

' Pursuant to Sup. Ct. R. 37.3(a), the amici have obtained from all

parties their written consent to the filing of this brief. Pursuant to Sup. Ct.

R. 37.6, counsel for the amici certify that this brief was not authored in

whole or in part by counsel for any party, and that no person or entity

other than the amici, its members, or its counsel has made a monetary

contribution to the preparation or submission of this brief.

(1)

historic resources.* Additionally, the National Trust has

monitored litigation concerning historic shipwrecks both

before and after the passage of the ASA and its judicial

interpretation throughout the country.’ Thus, the amici have

a substantial interest in the validity and effectiveness of the

ASA and other federal and state historic preservation laws.

INTRODUCTION

1. Historic Value of Shipwrecks. Historic shipwrecks

are time capsules of our heritage. Because a shipwreck lies

undisturbed until discovery, the site contains a cross-section

of the past — a tableau that tells us about a ship, its cargo,

and the lives of its crew and passengers. Study of these par

provides invaluable information about maritime history :

technology, international and regional trade, and the seafaring

life.

purred b worldwide losses of ships bearing valuable

ae during World War I, technology was developed by the

1920s that enabled salvors to recover objects from 250 feet or

more below the surface, largely using smash-and-grab

2 See Zych v. Unidentified, Wrecked & Abandoned Vessel, Paes

be the SB “Seabird,” 746 F.Supp. 1334 (N.D. Ill. 1990), rev'd, 941 F. ;

§25 (7th Cir. 1991), on remand, 811 F.Supp. 1300 (N.D. Ill. 1992), aff'd,

19 F.3d 1136 (7th Cir. 1994), cert. denied, 513 U.S. 961 (1994); Zych v.

Unidentified, Wrecked & Abandoned Vessel, Believed to be the aan

Elgin,” 755 F. Supp. 213 (N.D. Ill. 1991), rev d, 960 F.2d 665 ( a

1992), cert. denied, 506 U.S. 985 (1992); United States v. Steinmetz,

F.2d 212 (3d Cir. 1992), cert. denied, 507 U.S. 984 (1993).

3 See 15 Preservation L. Rep. 1159 (1996) ("PLR"); 14 PLR 1096,

1192 (1995); 13 PLR 1081, 1157 (1994); 12 PLR 1001 nage bho

1109 (1992); 10 PLR 1155 (1991); 8 PLR 3044, 3046, 3048, ( +

7 PLR 1001 (1988); Thompson M. Mayes, Current Legal Issues in

Law of Historic Shipwrecks, 5 PLR 2027 (1986).

techniques such as clam-shell buckets guided by divers.‘

Beginning in the early 1960’s, innovations in technology made

it possible to treat shipwrecks as archaeological sites that

could be studied systematically and preserved with the same

degree of precision and care as sites on land. Archaeologists

and historians since have excavated a rapidly growing number

of shipwreck sites in accordance with scientific standards,

producing major breakthroughs in our knowledge of maritime

history and culture, and making this information available for

study and museum display.° However, the same advances in

scuba and other underwater technology have placed these sites

within the reach of salvors and looters who are motivated

primarily by the possibility of reaping pecuniary gain from the

artifacts located at the shipwreck sites.

Commercial exploitation of historic shipwrecks can easily

result in the loss or destruction of this priceless legacy.

Where recovery techniques fail to preserve and document a

vessel's contents, crucial elements of the story of a vessel and

its times are forever lost. Where proper conservation

techniques are not applied, the rapid deterioration of ancient

materials exposed to surface conditions makes it impossible to

glean accurate scientific and historical information from the

remains, or to make them available for public display.

Too often, historic shipwrecks are exploited for their

monetary value, and are either intentionally looted or

inadvertently destroyed without regard for their irreplaceable

historic and cultural value. The primary goal of even the

best-intentioned commercial salvors is financial return, not

* See generally A. Crothall, Wealth From The Sea (1993). As early

as 1915, the United States submarine F-4 was raised from 330 feet. See

W.F. Searle, Jr., Advanced Deep Salvage Operations, Oceanolog’.

International, March 1969.

* See generally G. Bass, Archaeology Under Water (1966).

documentation and preservation of historically significant

artifacts.

2. The Brother Jonathan. The Brother Jonathan

illustrates the value of historic pe eee te eb 1850, the

ip represents a significant departure ier ocean-

A designs, and 0 the transition from sailing-ship-

inspired hulls to the straight-stemmed hull common to later

steamships. The Brother Jonathan played a significant role in

the development of Pacific coast ports, beginning with the

discovery of gold in British Columbia in 1858. The vessel

appears to have sunk more or less intact, leaving many

artifacts in their original places. The site also marks the final

resting place of the 225 people who perished in what is still

regarded as the greatest maritime disaster in California waters.

Because of its unique design, its role in the Gold Rush, and

the integrity of its well-preserved remains, the Brother

Jonathan has been determined eligible for listing on the

National Register of Historic Places, and is a California

Registered Landmark. See J.A. 566-72.

3. The Abandoned Shipwreck Act. Congress enacted the

ASA, 43 U.S.C. §§ 2101-2106, *. 1987 in response to

increasing confusion and conflict over :he appropriate judicial

forum and legal principles for resolving ownership of these

irreplaceable cultural resources.° Congress determined that

° itime Underwater Surveys, Inc. v. Unidentified,

er, pa. Fevscs Sailing Vessel, 717 F.2d 6 (Ist Cir. 1983); Jupiter

Wreck, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 691 F.

Supp. 1377 (S.D. Fla. 1988); Chance v. Certain Artifacts Found =

Salvaged from the Nashville, A/K/A, The Rattlesnake, 606 F. Supp.

(S.D. Ga. 1984), aff'd mem., 775 F.2d 302 (11th Cir. 1985); Subaqueous

Exploration & Archaeology, Lid. v. Unidentified ones enero

Vessel, 577 F. Supp. 597 (D. Md. 1983), aff'd without op., 765 F.2d |

(4th Cir. 1985). Contra, Cobb Coin Co., Inc. v. Unidentified, Wrecked &

Abandoned Sailing Vessel, 549 F. Supp. 540 (S.D. Fla. 1982); Cobb Coin

historic abandoned shipwrecks located in or on the State’s

submerged lands are most appropriately owned and managed

by the States, which have expertise and established programs

for the management of these resources. Congress’ intent was

to clarify the States’ ability to exercise stewardship over these

sites, so that the States no longer would be required to litigate

Claims to historic shipwrecks in protracted cases involving

unsettled law in federal admiralty courts. See S. Rep. No.

100-241, at 3 (1987).

Under the ASA, the federal government asserted title to

certain historic shipwrecks and transferred title to the States.

43 U.S.C. § 2105.’ The States typically protect historic

shipwreck sites through permits that require scholars and

Salvors to excavate the sites in accordance with professional

archaeological standards, which would not necessarily be

required by admiralty courts. See Moyer v. Wrecked &

Abandoned Vessel, Known as the Andrea Doria, 836 F. Supp.

1099, 1107 (D. N.J. 1993).®

Co., Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 525 F.

Supp. 186 (S.D. Fla. 1981).

” Under the ASA, the United States asserted title

to any abandoned shipwreck that is—

(1) embedded in submerged lands of a State:

(2) embedded in coralline formations protected by a State on

submerged lands of a State; or

(3) on submerged lands of a State and is included in or

determined eligible for inclusion in the National Register.

43 U.S.C. § 2105(a). The United States then transferred its title in these

shipwrecks to the States. See id. § 2105(c).

. All 50 States have programs of cultural resource management, and

at least 28 States had specific laws relating to the treatment of underwater

archaeological resources when the ASA was enacted. See H.R. Rep. No.

Prior to the ASA, States argued that the Eleventh

Amendment barred in rem admiralty actions in federal court

in which treasure salvors sought to adjudicate the State’s

interest in historic shipwrecks located on the State’s

submerged lands. See, e.g., Maritime Underwater Surveys,

Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel,

717 F.2d 6 (ist Cir. 1983); Jupiter Wreck, Inc. Vv.

Unidentified, Wrecked & Abandoned Sailing Vessel, 691 F.

Supp. 1377 (S.D. Fla. 1988). States typically asserted title to

the shipwrecks under state preservation statutes and the

Submerged Lands Act of 1953, 43 U.S.C. §§ 1301-1315

(1994). See, e.g., Subaqueous Exploration, 577 F. Supp. at

608 (D. Md. 1983). Following enactment of the ASA, the

Eleventh Amendment continues to provide States with

immunity from suit in federal court over these claims, as

Congress intended. See H.R. Rep. No. 100-5141), at 2-3

(1988).

SUMMARY OF ARGUMENT

The court of appeals incorrectly held that the State is not

entitled to Eleventh Amendment immunity unless a federal

court determines that the State has a "colorable claim" to the

Brother Jonathan. The Court defined a "“colorable claim" to

require proof by a preponderance of the evidence that a

shipwreck satisfies all the criteria of the ASA. That holding

is contrary to established Eleventh Amendment principles.

First, the Eleventh Amendment applies to admiralty

proceedings, including in rem proceedings. Second, the

Eleventh Amendment applies if the State is a “party in fact,”

whether or not it is a named party to the action. Third, the

Eleventh Amendment provides an immunity from suit, which

protects States from being subjected to the indignity of the

100-514(11), at 1. Forty States now have established programs for the

protection of historically significant shipwrecks. See Pet. 15 n.5.

coercive process of a judicial tribunal at the instance of private

parties. Consequently, it is the existence of the State’

Sk Mese Iad Ges Oe Gent of Go Oun’s dn on

Oe Co ant Amenteneet imasenity. Theve is 20 doubt

ornia has asserted a claim to the Brother Jonathan

and that is sufficient to establish Eleventh Amendment

immunity. California's entitlement to Eleventh Amendment

immunity is reinforced by respondent's stipulation that the

shipwreck is located on the State’s sovereign lands.

In the course of ruling that California is not entitled to

Eleventh Amendment immunity in this case, the court of

> ay made nena rulings co pea seriously damage

ie ley framework , Congress established to protect

First, the court of appeals held that the ASA reempts

California statute that provides additional ataaien .

archaeological sites and historic resources located on the

State's submerged lands.” The court of appeals’ preemption

ruling is not supported by the text or purpose of the ASA

which Congress enacted to confirm the States’ title to and

authority over historic shipwrecks. The California statute

does not conflict with the objectives of the ASA: indeed. it

The court of appeals also erred in ruling that

the Brother Jonathan had been abandoned. * 8 wth

obtained an assignment of interests in a fraction of the Brother

Jonathan's cargo from successors of the insurance companies

tot reportedly had paid claims on thet portion of the cargo at

time of the sinking. Respondent then argued that the

* Cal. Pub. Res. Code § 6313(a) (West Supp. 1997) provides, i

“ Supp. ) ,

that [t]he title to all abandoned shipwrecks and all archaeological sites and

pce ay me oe in the tide and submerged lands of California is

assignors had not abandoned their interests.'° The Ninth

Circuit incorrectly agreed.

The court concluded that no inference of abandonment

arises where salvage has become possible only recently due to

advances in salvage technology, which the court assumed to

be true in the case of the Brother Jonathan. Prior to the

ASA, it was generally understood that abandonment of a

vessel may be implied from the owner’s inaction over a period

of time. This understanding, which is reflected in the

legislative history of the ASA and guidelines promulgated

pursuant to the Act, is consistent with the congressional

purpose. The court of appeals’ contrary holding would

frustrate the purpose of the ASA by judging past intentions in

the light of present-day capabilities.

, contrary to the court of appeals’ conclusion, there

is no general admiralty principle that a vessel and its cargo

must be treated as a “unified res." Nor does the possibility

that a salvor will be required to litigate in both federal and

state court justify a rule that effectively would deny the

protection of the ASA to countless historic shipwrecks.

tactic to revive dormant insurance claims. See, e.g., Zych v. Wrecked

Vessel Believed To Be The “Lady Elgin,” 960 F.2d 665, 668 (7th Cir.),

cert. denied, 506 U.S. 985 (1992). In this case, newspaper reports at the

time of the sinking indicated that about two thirds of the Brother

Jonathan's cargo was not insured. Pet. App. A4, A31 n.9. There is no

evidence that the vessel itself was insured. Ja.

" Because of the importance of the court of appeals’ rulings on

preemption and abandonment, this Court may wish to consider providing

guidance to lower courts on those issues even if it holds that California is

entitled to Eleventh Amendment immunity. In the alternative, the Court

may wish to state explicitly that it expresses no opinion as to the

correctness of the lower court's rulings on those issues.

ARGUMENT

I. THE ELEVENTH AMENDMENT BARS FEDERAL

COURTS FROM ADJUDICATING AN

UNCONSENTING STATE’S INTEREST IN

HISTORIC SHIPWRECKS LOCATED ON THE

STATE’S SUBMERGED LANDS.

The Eleventh Amendment applies to admiralty

proceedings, including in rem proceedings. See In re New

York, 256 U.S 490 (1921) (New York I); In re New York, 256

U.S. 503 (1921) (New York IN). Even though respondent did

not name the State as a party to this action,

[ijt is well established that the [Eleventh] Amendment

bars suits not only against the State when it is the named

party but also when it is the party in fact. Its

applicability "is to be determined not by the mere names

of the titular parties but by the essential nature and effect

of the proceeding, as it appears from the entire record.”

Scheuer v. Rhodes, 416 U.S. 232, 237 (1974) (quoting New

York I, 256 U.S. at 500) (citations omitted)).

The effect of a judgment in an in rem admiralty action is

to establish the plaintiff's right to title in the defendant res

against all of the world, i.e., "the whole world is bound by

the decision." The Mary, 13 U.S. (9 Cranch) 125, 143 (1815)

(Marshall, C.J.)."" Consequently, a judgment in rem that

" See also Rounds v. Cloverport Foundry & Mach. Co.. 237 U.S.

303, 306-07 (1915) (“By virtue of dominion over the thing all persons

interested in it are deemed to be parties to the [in rem] suit: the decree

binds all the world and under it the property itself passes and not merely

the title or interest of a personal defendant."); The Moses Taylor, 71 US.

(4 Wall.) 411, 427 (1866) (“It is this dominion of the suit in admiralty over

the vessel or thing itself which gives to the title made under its decrees

validity against all the world."). See generally 29 James W. Moore,

Moore's Federal Practice § 703.06[2] (3d ed. 1997).

determines a State’s claim to the res is a judgment "against

one of the United States" for Eleventh Amendment purposes.

Zych v. Wrecked Vessel Believed To Be The "Lady Elgin , 960

F.2d 665, 669 (7th Cir.) (citations omitted), cert. denied, 506

U.S. 985 (1992). In Florida Dep't of State v. Treasure

Salvors, Inc., 458 U.S. 670 (1982), eight members of this

Court agreed that the Eleventh Amendment deprives a federa)

court of the power to determine a State's interest in property

that is the subject of an in rem admiralty action. See id. at

682 (Stevens, J., joined by Burger, C.J., and Marshall and

Blackmun, JJ.) ("The (district) court did not have

power . . . to adjudicate the State’s interest in the property

without the State’s consent"); id. at 706 (White, J., concurring

in the judgment, joined by Powell, Rehnquist and O'Connor,

JJ.) ("A suit of this type [to determine a State’s title to

artifacts} is at the heart of the Eleventh Amendment

immunity .”").

of appeals’ conclusion that Eleventh

paasadtaaass temmenian ons oh <hiatien te Sista oxn ouhinel

a “colorable claim" of ownership, see Pet. App. Al0-A14,

rests on a misreading of the plurality opinion in 7reasure

Salvors. The question presented in Treasure Salvors was

whether the Eleventh Amendment immunized property held by

state officials from a federal court’s process. See id. at 673,

by Ex parte Young, 209 U.S. 123 (1908). In applying the Ex

parte Young doctrine, the plurality looked to whether the state

officials had acted ultra vires. It was in the course of this

to the State ’s assertion of a claim to ownership of the property

at issue. See Zych, 960 F.2d at 670 ("The strength of the

state’s legal position is irrelevant."); Fitzgerald v.

Unidentified, Wrecked & Abandoned Vessel, 866 F.2d 16, 18

(Ist Cir. 1989) (action is barred "irrespective of the actual

merit of the [State’s) claim to the salvaged wreck . or,

Maritime Underwater Surveys, 717 F.2d at 8 ("[BJecause of

the Eleventh Amendment’s flat prohibition of suits against

States regardless of their merit, we need not reach the

colorability of (se [State’s] claim. . . .").

Of course, "[t]o know whether a general all-the-wor

injunction runs against a state, the court must determine

whether the state has some interest." Zych, 960 F.2d at 670.

"In this sense, some view of the merits is inevitable." Jd.

But “it is the existence, and not the strength, of the [State’s]

claim that activates the eleventh amendment." /d.

In this case, there is no doubt that California has claimed

ownership of the Brother Jonathan under both the ASA and

state law. It is undisputed that respondent seeks title to the

wreck of the Brother Jonathan. See Pet. App. A3, A22.

Moreover, respondent has stipulated that the wreck is located

on the submerged lands of the State of California. See Pet.

App. A6é, A24n.4. This Court recently reaffirmed that "lands

underlying navigable waters have historically been considered

‘sovereign lands," and that “[s]tate ownership of them has

been ‘considered an essential attribute of sovereignty." Idaho

v. Coeur d'Alene Tribe, 117 S. Ct. 2028, 2041 (1997)

(quoting Utah Div. of State Lands v. United States, 482 U.S.

193, 195-98 (1987))."° Because the State is asserting title to

the wreck, it is a party in fact and is entitled to Eleventh

Courts of appeals that have dismissed in rem admiralty actions

against historic shipwrecks on Eleventh Amendment grounds have noted

the presence of the wreck on the State’s submerged lands. See Zych, 960

F.2d at 667, 670; Fitzgerald, 866 F.2d at 17; Maritime Underwater

Surveys, 717 F.2d at 8. Cf. Marx v. Government of Guam, 866 F.2d 294,

300-01 (9th Cir. 1989).

Amendment immunity. Further evaluation of the merits of the

State’s claim, particularly after the location of the wreck on

the State’s sovereign lands has been established, would

conflict with the “role of the [Eleventh] Amendment in our

system of federalism,” which is "to prevent the indignity of

subjecting a State to the coercive process of judicial tribunals

at the instance of priv... parties." Puerto Rico Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146

(1993) ("PRASA") (citation and internal quotation marks

omitted).

The Ninth Circuit subjected the State of California to just

such an indignity by requiring the State to prove that it was

entitled to prevail on the merits as a prerequisite to receiving

Eleventh Amendment immunity The court of appeals’

reasons for imposing such a requirement conflict with

decisions of this Court. The Ninth Circuit’s view that

Eleventh Amendment immunity is a mere “affirmative

defense," see Pet. App. Al2-A13, was rejected by this Court

in PRASA. See 506 U.S. at 145-46. Even if the State bears

the burden of asserting Eleventh Amendment immunity, "a

motion by a State or its agents to dismiss on Eleventh

Amendment grounds . . . generally will have no bearing on

the merits of the underlying action." Jd. at 145 (citation

omitted).'* Treasure Salvors, moreover, contradicts the

Ninth Circuit's holding that the preponderance of the evidence

standard merely enables the district court to determine its

The court of appeals relied on JTS] TV Prods., Inc. v. Agricultural

Ass'ns, 3 F.3d 1289 (9th Cir. 1993). See Pet. App. Al2-A13. In /TSI,

however, the court required an entity asserting Eleventh Amendment

immunity to prove by a preponderance of the evidence that it was an arm

of the State and therefore entitled to immunity. The /TS/ court did not

require the State to make any showing on the merits, let alone prove its

claim by a preponderance of the evidence.

jurisdiction. See Pet. App. All-Al2. In Treasure Salvors,

the lower courts had treated the State’s ownership of the res

as a "jurisdictional fact" that had to be resolved in order to

determine "whether the Eleventh Amendment in fact barred an

exercise of jurisdiction by the federal court." 458 U.S. at 681

n.14, 682. Eight iustices agreed, however, that the Eleventh

Amendment bars a federal court from adjudicating the State’s

interest in the property, thus removing proof of ownership

from the jurisdictional analysis. Accordingly, the Eleventh

Amendment bars a federal district court from adjudicating

California’s claim to the Brother Jonathan.“

Il. THE ASA DOES NOT PREEMPT CALIFORNIA’S

LAW GOVERNING ARCHAEOLOGICAL SITES

LOCATED IN OR ON THE STATE’S SUBMERGED

LANDS.

Under the Supremacy Clause, U.S. Const. art. VI, cl. 2,

Congress may expressly preempt state law. See Cipollone v.

Liggett Group, Inc., 505 U.S. 504, 516 (1992). In the

absence of an express statement of preemption, “courts must

consider whether the federal statute’s structure and purpose,

or nonspecific statutory language, nonetheless reveal a clear,

but implicit, preemptive intent." Barnett Bank of Marion

County, N.A. v. Nelson, 116 S. Ct. 1103, 1108 (1996)

(citation omitted). In either case, "(t]he purpose of Congress

is the ultimate touchstone of pre-emption analysis." See

'S Respondent is free to bring a quiet title action in California state

court to test the validity of the State’s claim. The Eleventh Amendment

would not preclude a federal court from adjudicating the claims of parties

other than the State in an in rem action. See Zych, 960 F.2d at 670; Sindia

Expedition, Inc. v. Wrecked & Abandoned Vessel, Known As "The Sindia”,

895 F.2d 116, 121-23 (3d Cir. 1990). If the State is found to be an

indispensable party to the in rem action, however, the entire action must

be dismissed under Fed. R. Civ. P. 19. See Fitzgerald, 866 F.2d at 18-

19; Maritime Underwater Surveys, 717 F.2d at 8 & n.3.

Cipollone, 505 U.S. at 516 (internal quotation marks and

Citations omitted).

The ASA contains no provision expressly preempting state

law. The district court erroneously viewed section 7(b) of the

ASA, 43 U.S.C. § 2106(b), as an express preemption clause.

See Pet. App. A46. Section 7(b) provides that "[t)his chapter

shall not change the laws of the United States relating to

shipwrecks, other than those to which this chapter applies."

By its plain terms, section 7(b) simply confirms that the ASA

does not affect the law applicable to shipwrecks that are

outside its scope. That provision falls well short of the

affirmative preemptive statement required to expressly

preempt state law.'°

Nor does the ASA implicitly preempt state laws governing

title to historic shipwrecks. Congress has not "so thoroughly

occupie[d] [the] legislative field as to make reasonable the

inference that Congress left no room for the states to

supplement it." Cipollone, 505 U.S. at 516 (citation and

internal quotation marks omitted). This Court has recognized

repeatedly that admiralty is not an exclusively federal

domain.'’ Rather than occupying the field of historic

‘© Congress knows how to preempt state law expressly when it wants

to do so. For example, the Comprehensive Smokeless Tobacco Health

Education Act of 1986, 15 U.S.C. §§ 4401-4408 (1994), contains two

express preemption clauses, as well as a saving clause providing that

"[nJjothing in this chapter shall relieve any person from liability at common

law or under State statutory law to any other person.” 15 U.S.C.

§ 4406(c).

'" See, e.g., American Dredging Co. v. Miller, 510 U.S. 443, 447

(1994) (state forum non conveniens rule applies in admiralty); Romero v.

International Terminal Operating Co., 358 U.S. 354, 373-75 (1959)

(listing additional state law provisions valid in admiralty cases); Wilburn

Boat Co. v. Fireman’s Fund Ins., 348 U.S. 310 (1955) (state law governs

maritime insurance contracts); Madruga v. Superior Court, 346 U.S. 556,

a ee ee

shipwreck preservation, Congress has recognized in the ASA

that the States have the primary role in managing historic

shipwrecks located on the State’s sovereign submerged lands.

There is also no conflict between the ASA and Cal. Pub.

Res. Code § 6313. It is not "impossible for a private party to

comply with both state and federal requirements." English v.

General Elec. Co., 496 U.S. 72, 79 (1990) (citations omitted).

And the state law is not "an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress." Jd. (citation and internal quotation marks omitted)

To the contrary, section 6313 furthers the stated purpose of

the ASA, which is to ensure State control over historic

shipwrecks located in or on state submerged lands. Congress

found that "States have the responsibility for management of

a broad range of living and nonliving resources in State waters

and submerged lands," 43 U.S.C. § 2101(a), and declared as

a matter of federal policy that States should

develop appropriate and consistent policies so as to —

(A) protect natural resources and habitat areas;

(B) guarantee recreational exploration of shipwreck

sites; and

recovery of shipwrecks consistent with the protection

of historical values and environmental integrity of the

shipwrecks and the sites.

Id. § 2103(a). Congress expressly provided that "[tjhe

[federal] law of salvage and the law of finds shall not apply to

abandoned shipwrecks" covered by the ASA. Id. § 2106(a).

The ASA was enacted in direct response to burdensome

litigation faced by state preservation programs in the federal

561 (1954) (actions to resolve title questions between individuals, and not

against the entire world, may be brought in state court).

courts. See supra note 6. Representative Vento, a primary

sponsor of the ASA, explained the problem that the Act

sought to redress:

Currently, some 27 States have laws concerning the

protection of historic shipwrecks. These States spend a

disproportionate amount of effort and expense in

admiralty court arguing for jurisdiction over the

shipwrecks on their State submerged lands.

134 Cong. Rec. 6613 (1988). After describing the conflict

between state cultural resource management programs and

federal admiralty court rulings, Representative Vento

expressed the view that "the States can do a better job of

making sure that these few abandoned shipwrecks are

available to all the appropriate interests and not just to the

salvors." Jd. (statement of Rep. Vento).

The court of appeals’ preemption ruling appears to have

been based largely on an incorrect assumption that, apart from

the ASA, States have no authority to legislate concerning

historic shipwrecks located on the their submerged lands. See

Pet. App. A7-A9. Although this Court has never drawn a

bright line establishing "just how far the general maritime law

may be changed, modified, or affected by state legislation,"

it has recognized "[t}hat this may be done to some extent

cannot be denied." American Dredging, 510 U.S. at 451

(quoting Southern Pacific Co. v. Jensen, 244 U.S. 205, 216

(1917)). California’s law governing historic sites located on

its sovereign submerged lands falls well within the realm of

permissible state legislation. Preservation of historic

shipwrecks on state lands is far from the core concerns of

admiralty law. See S. Rep. No. 100-241, at 6 ("The

Committee recognizes that the management of long submerged

and abandoned shipwrecks now presents concerns far removed

from the traditional admiralty interests in safety and in

returning goods to the streams of commerce."); H.R. Rep.

10J-514(1) at 2 (1988) ("Admiralty law . . . developed to

encourage the salvage of commercial goods. Its focus is

commercial, mot cultural resource management or

recreation. ").

California’s section 6313 supplements the ASA by

extending protection to additional sites of historic and

archaeological value located in or on the State’s submerged

lands. In so doing, section 6313 does not impinge on

admiralty’s core concern with maritime commerce, but rather

is entirely in accord with the overriding purpose of the ASA

to confirm the States’ title to and authority over historic

shipwrecks located in or on their submerged lands.

Accordingly, Cal. Pub. Res. Code § 6313 is not expressly or

implicitly preempted by the ASA."

Il. LONG-LOST HISTORIC SHIPWRECKS

SHOULD BE PRESUMED TO BE ABANDONED.

The court of appeals’ decision effectively eviscerates the

ASA by defining the concept of “abandonment” so narrowly

that very few historic shipwrecks will continue to be protected

by the ASA. See 43 U.S.C. § 2105(a). This Court should

correct the court of appeals’ erroneous definition of

abandonment, and reinstate the definition of abandonment that

‘8 Even if section 6313 and the ASA did not exist, the State might

have a claim to the Brother Jonathan under admiralty’s law of finds. The

American law of finds generally assigns ownership to the person who

discovers lost or abandoned property and reduces it to possession, but there

are two exceptions to this rule: "(1) when the property is embedded in the

soil, it belongs to the owner of the soil; and (2) when the owner of the

land where the property is found (whether on or embedded in the soil) has

asserted constructive possession of the property, it belongs to the owner of

the land.” 2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 16.7,

at 341 (2d ed. 1994). See also Klein v. Unidentified Wrecked &

Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir. 1985).

Congress intended to apply under the ASA — namely, that

abandonment can be inferred from the passage of time.

A. Abandonment May Be Implied From Inaction

Over A Period Of Time.

Although the ASA does not expressly define

“abandonment,” Congress clearly understood the term and

used it to ensure that the ASA would apply to long-lost

historic shipwrecks." The legislative reports that

accompanied the ASA expressly state that abandonment can

arise from inaction over a period of time:

The Committee notes that the term "abandoned" does not

require the original owner to actively disclaim title or

ownership. The abandonment or relinquishment of

ownership rights may be implied or otherwise inferred, as

by an owner never asserting any control over or otherwise

indicating his claim of possession of the shipwreck.

H.R. Rep. No. 100-514(1), at 2. See also H.R. Rep. No.

100-514(II), at 5; S. Rep. No. 100-241, at 5 (1987).”

' Congress structured the ASA to apply to “abandoned” shipwrecks,

but excluded more recent shipwrecks by requiring that protected

shipwrecks must also possess other characteristics common to historic

shipwrecks. For example, it was known that shipwrecks become

embedded in the seabed and in coral over time. Congress also included

shipwrecks lying on submerged lands and that are eligible for inclusion in

the National Register of Historic Places. This category includes

shipwrecks that are lying on rock (or that are not embedded for some other

reason) but are nevertheless historic. See 43 U.S.C. § 2105(a).

§ 2104, further clarify the meaning of abandonment:

By not taking any action after a wreck incident either to mark and

subsequently remove the wrecked vessel and its cargo or to provide

legal notice of abandonment to the U.S. Coast Guard and the U.S.

These statements are consistent with the traditional

maritime rule that abandonment "may be accomplished by

either an express or implied act of leaving or deserting

property without hope of recovering it and without the

intention of returning to it." Bunge Corp. v. Agri-Trans

Corp., 542 F. Supp. 961, 969 (N.D. Miss. 1982) (citing 3A

Benedict on Admiralty § 134 (7th ed. 1980)), aff'd in part and

vacated in part on other grounds, 721 F.2d 1005 (Sth Cir.

1983). In the absence of express statements or acts,

abandonment is determined from all the circumstances.

Chance v. Certain Artifacts Found & Salvaged from the

Nashville, A/K/A, The Rattlesnake, 606 F. Supp. 801, 804

(S.D. Ga. 1984), aff'd without op., 775 F.2d 302 (11th Cir.

1985).*!

Applying these principles to historic shipwrecks, most

courts have held that abandonment may be inferred from the

passage of time, absent affirmative acts showing non-

Army Corps of Engineers, as is required under provisions in the

Rivers and Harbors Act (33 U.S.C. 409), an owner shows intent to

give up title. Such shipwrecks ordinarily are treated as being

abandoned after the expiration of 30 days from the sinking.

55 Fed. Reg. 50,115, 50,120 (1990).

| The traditional maritime definition of abandonment is applied to

determine whether a salvor receives title under the law of finds or a

salvage award under the law of salvage. The law of finds is predicated on

the assumption that the property is abandoned, and that the finder of lost

or abandoned property is entitled © ownership. See, e.g., Martha’s

Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked & Abandoned

Steam Vessel, 833 F.2d 1059, 1065 (ist Cir. 1987). The law of salvage

is predicated on the assumption that the owner has not abandoned the

property. 2 Schoenbaum, supra, § 16-7, at 338.

abandonment.” In @ leading case, the Fifth Circuit observed

that "[d]isposition of a wrecked vessel whose very location has

been lost for centuries as though its owner were still in

existence stretches a fiction to absurd lengths." Treasure

Salvors, Inc. v. Unidentified, Wrecked & Abandoned Sailing

Vessel, 569 F.2d 330, 337 (Sth Cir. 1978).

B. Whether Technology Needed To Salvage A Vessel

Was Developed Only Recently Should Not

Preclude A Determination That A Long-Lost

Historic Shipwreck Is Abandoned.

The court of appeals erroneously concluded that "[w]hen

the technology to conduct salvage operations has been

developed recently, failure on the part of an owner to attempt

” This rule is sometimes referred to as the doctrine of animus

revertendi (the owner has no intention of returning). Chance, 606 F. Supp.

at 804.

® See also Martha's Vineyard, 833 F.2d at 1065 ("{I]n cases where

- . . articles have been presumptively abandoned, i.e., . . . so long lost

that time can be presumed to have eroded any realistic claim of original

title . . . the better-reasoned authorities agree that the law of finds may

appropriately be utilized."); Moyer, 836 F. Supp. at 1105 (holding that

insurance company’s lack of effort to salvage wreck from 1956 to present

constituted abandonment); 2 Schoenbaum, supra, § 16.7, at 339-40 ("In the

treasure salvage cases, often involving wrecks hundreds of years old, the

inference of abandonment may arise from lapse of time and non-use of

property. ... In virtually all of the treasure salvage cases involving

wrecks of great antiquity, the law of finds, not salvage, is appropriate

...."); 70 Am. Jur. 2d Shipping § 974, at 1076 (1987) ("The most

significar’ factor indicating abandonment appears to be the passage of a

considerable length of time without effort on the part of the owners to

secure repossession of their property.”). But cf. Columbus-America

Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 464-65 (4th Cir.

1992) (inference of abandonment of long-lost shipwreck improper if a

previous Owner appears and asserts his ownership interest), cert. denied,

507 U.S. 1000 (1993).

to salvage the wreck does not give rise to an inference that the

owner has abandoned title to the vessel." Pet. App. Al7.

Although pre-ASA cases do not appear to have discussed this

issue, those cases analyzed abandonment by looking to the

owner’s intent at the time the vessel was lost. See, ¢.g.,

Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified,

Wrecked & Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir.

1987); Chance v. Certain Artifacts Found & Salvaged, 606 F.

Supp. 801 (S.D. Ga. 1984). If salvage was not

technologically feasible at the time of the wreck, that fact

supports the inference that the owner intended to abandon the

wreck, because there was no realistic hope of recovering the

vessel or its cargo. The court of appeals departed from these

decisions by assessing an owner's past intentions in light of

present-day expectations and capabilities.”

The court of appeals’ ruling is fundamentally inconsistent

with the principle that abandonment can be inferred from the

passage of time. Indeed, to the extent that the court of

appeals was relying on recently-developed technology, it

effectively adopted a reverse presumption that long-lost ships

are not abandoned. When combined with commercial salvors'’

tactic of obtaining assignments of interests from insurers of

long-lost vessels and cargo, the Ninth Circuit’s holding

permits the revival of many dormant claims that traditionally

would have been deemed to have been abandoned, thereby

severely limiting the scope of the ASA.”

™ As discussed above, see supra pp. 2-3, technology for salvaging

shipwrecks and cargo from depths of more than 250 feet has been in

existence since early this century. This casts considerable doubt on the

Ninth Circuit’s holding that the Brother Jonathan was not previously

salvageable and thus not abandoned.

= Because marine insurance for vessels and cargo has been in

within the geographical scope of the ASA would be subject to salvors

The court of appeals’ ruling ignores the origins of the

ASA, which Congress enacted to protect historic shipwrecks

from depredations made possible by the wider availability of

deep sea technology.“ Although other courts have

considered the availability of technology as a factor in

determining whether there was intent to abandon, no other

court has gone so far as to hold that the non-existence of

technology could be dispositive on the issue of

abandonment.”’

attempts to obtain assignments of interests from insurers of vessels and

cargo or their successors in interest.

As the Senate Report explained:

As new technologies have allowed the recovery of wrecks that have

been lost for long periods of time, a new concern has been developed

for the historic and recreational interests in shipwrecks. Shipwrecks

are no longer viewed as only lost commercial resources that should

be salvaged so that the goods can be returned to commerce. Rather,

many shipwrecks are now used as recreational resources for sport

divers and fishermen and are viewed as invaluable and irreplaceable

archaeological resources.

S. Rep. No. 100-241 at 6. See also H.R. Rep. No. 100-514(1) at 1; 134

Cong. Rec. 5336-5337 (1988) (remarks of Rep. Vento).

*” Compare Zych, 755 F Supp. at 216 (the owners had left explicit and

express instructions that the shipwreck not be abandoned despite its depth),

and Columbus-America Discovery Group, 974 F.2d at 464-65 (owners had

initiated salvage efforts shortly after vessel sank and continued to negotiate

with salvors during the intervening 130 years) with Fairport Int'l

Exploration, Inc. v. Shipwrecked Vessel Known as the Captain Lawrence,

105 F.3d 1078 (6th Cir. 1997) (court held that adequate salvage technology

did exist under the facts of that case, therefore supporting its finding that

the shipwreck was abandoned).

C. There Is No General Rule That A Vessel And Its

Cargo Must Be Treated As A "Unified Res."

The court of appeals applied what it took to be a “general

rule in maritime law of treating wrecks as a legally unified

res." Pet. App. Al8.% The court of appeals cited no

authority for this “general rule,” and in fact there is no such

rule.

This Court recognized as early as 1815 that property

interests in a vessel and its cargo may be treated separately.

See The Mary, 13 U.S. (9 Cranch) at 142-43 (holding in prize

case that although the vessel properly was condemned where

the vessel’s owner defaulted, that judgment could have no

effect against the vessel’s cargo because "[t}he owners of the

cargo had no control over the owner of the vessel"). This

principle has been reaffirmed in various factual settings. See

Stratton v. Jarvis, 33 U.S. (8 Pet.) 4, 6, 10-11 (1834) (salved

vessel and its cargo are not jointly liable for the whole salvage

award, where the cargo consisted of multiple parcels owned

by multiple parties); Columbus-America Discovery Group, 974

F.2d at 468 (although the vessel itself was abandoned, the

insured portions of the cargo were not); Compania Galeana,

S.A. v. Motor Vessel Caribbean Mara, 565 F.2d 358, 359 (Sth

Cir. 1978) (affirming separate settlement agreements between

the plaintiff and the vessel as well as the plaintiff and the

cargo); Bemis v. RMS Lusitania, 884 F. Supp. 1042 (E.D.

Va. 1995) (salvor secured title to the hull of the ship from the

insurance company but was denied title to the cargo and

** This element of the court’s holding disposed of the State’s argument

that although the insured portion of the wreck might not be considered to

be abandoned, the uninsured portions should be considered abandoned.

However, the court “reserve[d] the question of whether there is some point

at which the portion of the wreck that is insured becomes so negligible that

the wreck might be considered abandoned for the purposes of the ASA.“

Pet. App. Al9.

personal belongings because the insurer never had a legal

interest in them), aff'd without op., 99 F.3d 1129 (4th Cir.

1996); Hener v. United States, 525 F. Supp. 350, 364

(S.D.N.Y. 1981) (two competing groups of salvors were

entitled to attempt a salvage of cargo that belonged to a single

owner); Georgia Co. v. Richfield Oil Co., 50 F.2d 901, 902

(W.D. Wash. 1930) (The Kekoskee) (salvaged vessel and its

cargo are not considered a unified res, even if owned by the

same person or entity). See also 3A Martin J. Norris,

Benedict on Admiralty § 207, at 16-5 (7th ed. 1997) ("the

mo Ng age tgregpandiartnnntiges hag y dines wn

liable, each for its proportionate share of the salvage

remuneration").

In short, admiralty law recognizes independent claims

against a vessel and its cargo — and even against distinct

portions of its cargo — regardless of whether vessel and cargo

are owned by a single party or multiple parties. The ASA

does not dictate a different result.”

D. The Possibility Of Litigation In Two Courts

Cannot Justify A Rule That Effectively Defeats

The Purpose Of The ASA.

The court of appeals also concluded that if the wreck

were divided into abandoned and unabandoned portions, "we

would have to dismiss the action in federal court with respect

to the abandoned part of the wreck and retain jurisdiction over

the part on which insurance claims were paid." Pet. App.

* If a “unified res” principle were .o be applied, it should operate in

the other direction: a partially abandoned shipwreck should be treated as

completely abandoned for purposes of the ASA, especially where, as here,

only a portion of the cargo is alleged to have been unabandoned and the

historic vessel itself is unclaimed. Such an approach would further the

purposes of the ASA.

Al18. The court thought it "unlikely that Congress intended

such a confusing and inefficient approach." /d.

Declining to treat a shipwreck as a unified res will not

necessarily lead to litigation in more than one forum. In some

cases, the State is the only competing claimant. If the State

asserts a claim to the entire wreck in such a case, the entire

action must be dismissed under the Eleventh Amendment. In

addition, the entire action may be dismissed for other reasons

(e.g., if the State is determined to be an indispensable party).

A salvor may elect to litigate claims of parties other than

the State in state court. See Madruga, 346 U.S. at 560-61

(state courts may adjudicate maritime causes of action in

proceedings brought in personam). In enacting the ASA,

Congress plainly regarded state courts as a suitable forum for

adjudicating rights to shipwrecks located on the State’s

submerged lands. See 134 Cong. Rec. 6615 (1988) (remarks

of Rep. Jones) ("We can depend on State courts to apply State

and Federal policies fairly to all affected parties.")

Although a salvor seeking a judgment “against all the

world" may be required to bring a separate in rem action in

federal court as to the unabandoned portion of a wreck,

parallel litigation in federal and state court is hardly a rarity.

The mere possibility of such a situation cannot justify a rule

that effectively denies the protection of the ASA to many

historic shipwrecks. Accordingly, the court of appeals erred

in holding that the Brother Jonathan should be treated as a

“unified res.”

CONCLUSION

The judgment of the court of appeals should be reversed.

Paul W. Edmondson

Elizabeth S. Merritt

Thompson M. Mayes

Edith M. Shine

Laura S. Nelson

NATIONAL TRUST FOR

HISTORIC PRESERVATION

1785 Massachusetts Ave., N.W.

Washington, D.C.

(202) 588-6035

August 1997

20036

Respectfully submitted,

Robert A. Long, Jr.*

James A. Goold

Craig W. Canetti

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Counsel for Amici Curiae

* Counsel of Record

APPENDIX

Interests of Amici Curiae Organizations

National Trust for Historic Preservation

The National Trust for Historic Preservation in the United

States ("National Trust") was chartered by Congress in 1949

as a private charitable, educational, and nonprofit organization

to “facilitate public participation in the preservation of sites,

sealian cad atic Malan te, Seaeien, temas ont

culture," and to further the purposes of federal historic

preservation laws. 16 U.S.C. §§ 461, 468. The National

Trust has grown to include more than 265,000 individual

members and approximately 3,500 member organizations, as

well as operating seven regional and field offices.

Through its Legal Defense Fund, the National Trust

advocates to secure judicial, administrative, and legislative

decisions that uphold the validity and effectiveness of

regulatory protections for historic resources throughout the

United States. The National Trust has a particular interest in

the protection of historic shipwrecks. The National Trust

actively supported the passage of the Abandoned Shipwreck

Act of 1987 and has participated as amicus in cases

challenging and upholding its legality and effectiveness. The

National Trust has participated in more than 100 federal and

state court cases over the past quarter century and has

participated as an amicus in 14 cases before this Court.

Advisory Council on Underwater Archaeology

The Advisory Council on Underwater Archaeology

("ACUA") is an elected body of leaders in the field of

underwater archaeology and is associated with the Society for

Historical Archaeology. The purposes for which the ACUA

is organized are to preserve and protect underwater

(la)

archaeological sites, to encourage maintenance of the highest

ethical and research standards in underwater archaeology, and

to educate the general public and sport diving community

about the need for conservation of underwater archaeological

resources. The ACUA encourages the publication of

underwater archaeological research and the distribution and

dissemination of information concerning archaeological

matters. The organization also sponsors and publishes the

proceedings of an annual Conference on Underwater

Archaeology.

Council of American Maritime Museums

The Council of American Maritime Museums ("CAMM")

exists to uphold, promote and further the welfare, programs

and activities of maritime museums in the Western

hemisphere. To these ends, CAMM works to insure that high

professional standards are adhered to in the preservation and

interpretation of maritime history, collections, sites and

vessels. _CAMM also encourages cooperation between

member museums in research and loan exhibits, jointly

sponsors publications, and promotes public awareness of itself

and the interests of its members. In addition, CAMM lobbies

on legislation and government actions affecting its members.

Institute of Nautical Archaeology

The Institute for Nautical Archaeology is an academic and

scientific institution dedicated to the excavation, study and

preservation of shipwrecks of historic and pre-historic

significance. The Institute faculty is comprised of practicing

archaeologists engaged in projects involving shipwrecks in

United States waters, the Caribbean Sea, the Mediterranean

Ocean, the Azores Islands, Kenya, Eritrea and elsewhere. In

the United States, the Institute has participated in projects

involving shipwrecks in the James River, the Gulf of Mexico

and the Great Lakes. The Institute has a vital interest in the

preservation of ships subject to the Abandoned Shipwreck Act

for academic study, recovery and museum display.

National Conference of State Historic Preservation Officers

The National Conference of State Historic Preservation

Officers ("NCSHPO") is a non-profit, professional

organization representing the State Historic Preservation

Officers in the 59 States, territories and the District of

Columbia. The role of NCSHPO in the administration of the

national historic preservation program was recognized in the

1980 amendments to the National Historic Preservation Act.

16 U.S.C. § 470. NCSHPO encourages research and

development concerning historic preservation programs, as

well as legislative proposals for the implementation of

programs at the state and federal levels. NCSHPO actively

supported the passage of the Abandoned Shipwreck Act of

1987.

North American Society for Oceanic History

The North American Society for Oceanic History

("NASOH"), incorporated in 1974, is a_ not-for-profit

organization whose members include curators of maritime

museums and history professors across the U.S. and in

Canada. The goals of the organization include the research

and promotion of maritime history. NASOH sponsors a

annual conference at which members present scholarly papers

and the organization rewards outstanding publications on

maritime history and nautical archaeology. For several years,

NASOH has also worked on behalf of the preservation of

historic shipwrecks.

Society for American Archaeology

The Society for American Archaeology ("SAA") is a

scholarly organization of professionals whose objective is to

encourage mew research and interpretation of the

archaeological record in the Americas. Other goals of the

organization include education, public communication, and the

protection of resources. To disseminate information, SAA

holds annual meetings and publishes American Antiquity, a

journal of papers on the archaeology of the Western

Hemisphere and closely related subjects. SAA is also

involved in legislative action and government relations

affecting the discipline of archaeology.

Society for California Archaeology

The Society for California Archaeology ("SCA") is a

non-profit organization founded in 1966 and dedicated to the

research, understanding, conservation, interpretation and

protection of California’s archaeological heritage. Today,

SCA has approximately 800 members, including professional

archaeologists employed by universities and colleges,

government agencies, museums and research institutions,

utility companies, and private consulting firms. SCA

members also include student and avocational archaeologists,

Native American scholars, historians, environmental planners,

and members of the general public. SCA holds an annual

conference and two annual data-sharing meetings in both

northern and southern California, as well sponsoring the

annual California Archaeology Week. The organization

publishes a quarterly newsletter on annual proceedings, and

produces an occasional publication series.

Society for Historical Archaeology

The Society for Historical Archaeology ("SHA") is the

largest professional organization of scholars concerned with

the archaeology of the modern world (from A.D. 1400 to the

present). SHA is concerned with the identification,

excavation, interpretation and preservation of sites and

artifacts from both the land and underwater. The organization

annually sponsors the international Conference on Historical

and Underwater Archaeology and publishes the proceedings

entitled Underwater Archaeology each year with the assistance

of the Advisory Council on Underwater Archaeology. The

great significance of historic shipwrecks lead SHA to strongly

support Congress’s enactment of the Abandoned Shipwreck

Act of 1987.

Society of Professional Archeologists

The Society of Professional Archeologists ("SOPA") is a

national non-profit association of more than 700 professional

archeologists. SOPA seeks to define professionalism in the

field, to establish national standards for archeological

practices, research and performance, and to identify those

individuals who possess the ability and willingness to meet

those standards. The organization maintains standards for

various archeological specialities including underwater

archeology. Also, SOPA serves to represent the profession

working with other professional organizations, governmental

agencies and private enterprises to further the goals of

archeology. SOPA strongly supported Congress’ enactment

of the Abandoned Shipwrzck Act of 1987, as an important and

needed measure for ensuring that these fragile and

irreplaceable resources are appropriately preserved and

managed as cultural and archeological sites.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.