Opposition Brief — Steinmetz v. United States

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

No. 92-859 -

In the Supreme Court of the Cinited States

Z OCTOBER TERM, 1992

RICHARD STEINMETZ, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. GREENSPAN

EDWARD T. SWAINE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the bell from the C.S.S. Alabama, a Confed-

erate commerce raider sunk by the Union Navy off the

coast of France in 1864, is the property of the United

States.

(I)

TABLE OF CONTENTS

III Silico aa saiacnncbadbuanesenbsbdibaskasbbeapsacnsebasaeeeins

a cesnnnesinde’ saiiictiaclaaaaiaa has

i sl catiseecbntinnnh ennkebehinainesonnans

TTT initia tices cite cgahananinnediin Venaeebasiecavekatbadsdesasassnnenserans

a a a neuen unica sehechintonen

TABLE OF AUTHORITIES

Cases:

Baltimore, Crisfield & Onancock Line, Inc. v. United

States, 140 F.2d 230 (4th Cir. 1944) .................. eee

Columbus-America Discovery Group v. Atlantic Mut.

Ins. Co., 974 F.2d 450 (4th Cir. 1992), petition for cert.

I I, SEI Uh dh anscsahtsskovcsnnchakcussnsisedsavinesedewessees

Deklyn v. Davis, 1 Hopk. Ch. 135 (N.Y. Ch. 1824) ........

Hatteras, Inc. v. The U.S.S. Hatteras, 1984 A.M.C.

1094 (S.D. Tex. 1981), aff’d mem., 698 F.2d 1215 (5th

ia telat a hdenheuemnnninndonunecennastivee

Leathers v. Salvor Wrecking Co., 15 F. Cas. 116 (C.C.S.D.

i I a a nnidannnnnnnnntgscadeniennene

Martha’s Vineyard Scuba Headquarters, Inc. v. Uniden-

tified, Wrecked & Abandoned Steam Vessel, 833 F.2d

SE I I ID isc ascend cepnegetidbddnbndaniainceneesenensece

OPM v. Richmond, 496 U.S. 414 (1990) ...........

Osborn v. Nicholson, 80 U.S. (13 Wall.) 654 (1872), rev’g

18 F. Cas. 846 (C.C.E.D. Ark. 1870) (No. 10,595) ..........

Rainey v. United States, 232 U.S. 310 (1914) ..............

Royal Indem. Co. v. United States, 313 U.S. 289 (1941) ..

State by Ervin v. Massachusetts Co., 95 So. 2d 902

(Fla. 1956), cert. denied, 355 U.S. 881 (1957) ...........

State ex rel. Bruton v. Flying “W” Enterprises, Inc. 160

SE SUE) CIEE a, SID cntentececltaschencstsetintesitvnntiirn deninsnesesins

The Adventure, 12 U.S. (8 Cranch) 221 (1814) .................

(III)

10, 11

iia |

Cases—Continued: Page

The Alexander, 1 F. Cas. 357 (C.C.D. Mass. 1813) (No.

164), aff’d, 12 U.S. (8 Cranch) 168 (1814) ..........cceeeeeeeee 10

The Florida, 101 U.S. 37 (1880) ........:cccseeeeeenseeeeeeeeeeeeeeees 9

The Josefa Segunda, 23 U.S. (10 Wheat.) 312 (1825) ........ 10

The Rebeckah, 1 C. Rob. 227 (1799) ......::cccsseceseseeereeereeees 10

Titus v. United States, 87 U.S. (20 Wall.) 475 (1874) .... q

United States v. California, 332 U.S. 19 (1947) ............ 5-6, 11

United States v. Huckabee, 83 U.S. (16 Wall.) 414

CRB vncicaranesecsensisseapaterieveicusnncenneetastatesehabnstbbennatncsenesene 7

Utah Power & Light Co. v. United States, 243 US.

CRDAT) acacccccsscvanscecwsecsnccevesicovensqneshasesisssentassonneanetensvenees 1]

Whitfield v. United States, 92 U.S. 165 (1876)........... ‘

Whitney v. Robertson, 124 U.S. 190 (ee §

Williams v. Bruffy, 96 U.S. 176 (1878) ......ccccceeeeeeeeees 5,

Constitution and statutes:

U.S. Const. :

Ree Oo . adésnceansbennicsnsessunessptnianinaasaabecnauaguasvessest |

Dat OU... . cepasinabateiannenanashapenbianioenibineaneenaehs

SB OU. B cevvvvcectsissccncecssccvescenesensccsesnsssaniesennssscssssonossees 4,1

Pigmeel TY vnscnnccescislbincinssccatndscvaccssctenwnseusessvbeceeterte 6, 7, 8, |

Bw cctuletievvitliebivdisstimndaheninininavehbiaeeicnaanieeudendaanbieatencan (

Repudiation Clause ............:scssssssesesseeeesceeeteeennaeees Ve!

Act of Mar. 6, 1876, ch. 20, 19 Stat. 6 ...........cccceeseereeeeeeees 3, |

Act of June 23, 1874, ch. 459, § 12, 18 Stat. 248 ...........20 3, |

Miscellaneous:

‘Alabama’ Bell Tests Don’t Confirm That It’s Authentic,

The Civil War News, Jan.-Feb. 1992 .............ssceceeeeeeeees

C.S.S. Alabama Bell Revealed A Hoax; Navy Continues

to Press Court Case, The Confederate Naval Historical

Society Newsletter, Jume 1992 ..........:ccccsseseeeeeteeeeeees

Famous Civil War Bell ‘A Fake’—Dealer, The Hastings

& St. Leonard’s (Eng.) Observer, May 31, 1991 ............

H. Halleck, International Law; or, Rules Regulating the

Intercourse of States in Peace and War (1861) ..........-. ]

Page

Miscellaneous—Continued:

1 W. Malloy, Treaties, Conventions, International Acts,

Protocols and Agreements Between the United States of

America and Other Powers 1776-1909 (1910) (S. Doc.

No. 357, 61st Cong., 2d Sess. (1910)) ............sssccsccscesceees

5 J.B. Moore, History and Digest of International Arbi-

trations to Which the United States Has Been a Party

CRIED navicannnbicsnaacsasssvdetuasinciebadnkdenlanimusbtnsansenibalaaudasnaisuns

Office of Legal Adviser, Dep’t of State, Pub. No. 9610,

1980 Digest of United States Practice In International

BF CE denen soxcdacnaicisiekingunatermtnaadeclagtieeinitedseriitenias

Roach, France Cencedes United States Has Title To

C.S.S. Alabama, 85 Am. J. Int.’L. 381 (1991) ................

Q. Wright, The American Civil War (1861-65), in The

International Law of Civil War 30 (R. Falk ed. 1971) ..

Page

§n the Supreme Court of the United States

OCTOBER TERM, 1992

_—

No. 92-859

RICHARD STEINMETZ, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT-0F APPEAI $

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-28) is

reported at 973 F.2d 212. The opinion of the district

court (Pet. App. 29-49) is reported at 763 F. Supp. 1293.

JURISDICTION

The judgment of the court of appeals was entered on

August 21, 1992. A petition for rehearing was denied on

September 18, 1992. The petition for a writ of certiorari

was filed on November 18, 1992. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. The C.S.S. Alabama was a steamship launched

from the English port of Liverpool in 1862 to serve as a

Confederate cruiser under the command of Captain

Raphael Semmes. Its construction and launching by

British subjects for use by the Confederacy was an ap-

parent violation of Great Britain’s neutrality, proclaimed

by Queen Victoria in 1861. During the next two years,

while roaming the Atlantic Ocean, the Gulf Coast, the

African Cape, and the China Sea, she destroyed or cap-

tured at least 62 Union merchant and whaling ships and

a variety of vessels from other nations. Pet. App. 4-5.

In June 1864, the Alabama encountered a Union ship,

the U.S.S. Kearsage, in international waters near Cher-

bourg, France. Pet. App. 5-6. After a battle that lasted

over an hour, the Alabama, badly damaged, struck its

colors and raised the white flag of surrender. Captain

Semmes gave the order to abandon ship. I/d. at 6, 12.

According to contemporary accounts from officers of the

Alabama, the Kearsage fired on the Alabama after she

had indicated her surrender, probably because the pow-

der smoke haze around the Alabama made it difficult to

see the white flag. Id. at 35 & n.1, 36; see also id. at 12.

The firing apparently ceased after the white flag was

displayed from the Alabama’s stern, for Captain

Semmes then sent a dinghy filled with her wounded to

the Kearsage. Id. at 6, 36 & n.1. As the Alabama sank,

the captain and a number of the crew were picked up by a

nearby English yacht, the Deerhound, which absconded

with them to England, where they were set free. Id. at

6, 38.

Because of Great Britain’s role in the construction of

the Alabama and the escape of her crew, the Alabama

was later the subject of a major international dispute.

Senator Sumner and Secretary of State Fish expressed

the view that the direct and indirect damage wrought by

the Alabama had prolonged the Civil War by two years,

and sought as compensation the British cession of

Canada. See Q. Wright, The American Civil War (1861-

65),in The International Law of Civil War 30, 102-103

(R. Falk ed. 1971). The United States’ claims were even-

tually settled by an international arbitration tribunal,

convened pursuant to the Treaty of Washington of 1871.

The United States was awarded $15.5 million. Pet. App.

7; see Act of June 23, 1874, ch. 459, § 12, 18 Stat. 248; Act

of Mar. 6, 1876, ch. 20, 19 Stat. 6; 1 W. Malloy, Treaties,

Conventions, International Acts, Protocols and Agree-

ments Between the United States of America and Other

Powers 1776-1909, at 700, 717, 722 (1910) (S. Doe. No. 357,

61st Cong., 2d Sess. (1910)).

2. According to petitioner, a New Jersey antiques

dealer, the brass bell of the Alabama was recovered in

1936 by a British diver from the Isle of Guernsey, who

sold it to a local bar in exchange for drinking privileges.’

The bar was destroyed by bombing during World War II,

and the bell later was dug from the rubble and introduced

into the antiques market. Petitioner obtained the bell in

1 The district court, and subsequently the court of appeals, re-

lied on petitioner’s testimony concerning the history of the bell and

its origins. E.g., Pet. App. 38-39. Some publications recently have

suggested, however, that the petitioner may have been the victim

of a hoax, and that the bell may not genuinely be that of the C.S.S.

Alabama. See ‘Alabama’ Bell Tests Don’t Confirm That It’s Au-

thentic, The Civil War News, Jan.-Feb. 1992; C.S.S. Alabama Bell

Revealed A Hoax; Navy Continues to Press Court Case, The Con-

federate Naval Historical Society Newsletter, June 1992, at 1;

Famous Civil War Bell ‘A Fake’—Dealer, The Hastings & St.

Leonard’s (Eng.) Observer, May 31, 1991. Notwithstanding those

recent press reports, no persuasive evidence impugning peti-

tioner’s account respecting the origins of the bell has come to the

attention of the United States to date, and the United States ac-

cordingly intends to retain possession of the bell.

ee -

bd .

. * . Ss . a

1979 in exchange for approximately $12,000 worth of an-

tique guns and pistols. Upon returning to New Jersey,

petitioner offered to sell or trade the bell to the United

States Naval Academy, which expressed interest in dis-

playing the bell but refused to purchase it. Pet. App. 7.

3. In 1990, petitioner put the bell up for auction in

New York. Upon learning of the auction, the United

States filed a complaint in admiralty in the United

States District Court for the District of New Jersey,

seeking possession of the bell as property of the United

States. Petitioner delivered the bell for deposit with the

district court, and filed an answer and counterclaim for a

determination that the bell was his property, for pay-

ment of full market value for the bell, and in the alterna-

tive for equitable compensation under the theories of

quantum meruit or unjust enrichment. Pet. App. 8.

The district court granted summary judgment for the

United States. Pet. App. 9; see id. at 29-49. The court

found that the Alabama had been constructively cap-

tured by the Kearsage and thus became United States

property at the time of the battle in 1864. /d. at 40-41.

The district court alternatively found that the Alabama

became United States property at the close of the Civil

War, when the United States succeeded to the public

property of the Confederacy. Jd. at 41-42. Finally, the

court held that the United States had never abandoned

the wreck of the Alabama, noting that Congress and its

authorized agents alone possessed the authority to dis-

pose of United States property. Jd. at 42-46, citing U.S.

Const. Art. IV, § 3, Cl. 2. The court dismissed peti-

tioner’s counterclaims seeking compensation for lack of

jurisdiction. Pet. App. 47-48.

4. The court of appeals affirmed, holding that the

United States succeeded to the Alabama at the end of

the Civil War, and never abandoned its interest in the

wreckage. The court first rejected petitioner’s claim

that because the Alabama was a “pirate” ship, the

United States could not become her owner by succes-

sion. The court acknowledged that some Union officials

had publicly referred to the Alabama and its crew as

“pirates,” but concluded that “all of the historical evi-

dence suggests that the references to piracy were more

rhetorical than legal.” Pet. App. 14-15. That historical

evidence included the Union’s treatment of the Confeder-

acy as a belligerent, its treatment of Confederate cap-

tives as prisoners of war (instead of executing them, as

would have been the Union’s right if they were indeed pi-

rates), and the Navy Department’s express refusal to

prosecute Captain Semmes for piracy after the war. /d.

at 15-17.

The court of appeals also rejected petitioner’s claim

that international law permits a sovereign to acquire

property by succession only if that sovereign also as-

sumes the debts and obligations directly related to that

property—an assumption expressly prohibited by the

Fourteenth Amendment. The court adverted to this

Court’s statement in Williams v. Bruffy, 96 U.S. 176,

188 (1878), that “[t]he very property” amassed by the

Confederacy “passed to the nation” upon the Confeder-

acy’s defeat, as well as to statements to the same effect

in other 19th century cases, and concluded that “whether

or not historians would regard the international law of

succession as applicable here, the succession doctrine, as

explicated and applied by the United States Supreme

Court with respect to the Civil War, entitled the United

States to all property acquired by the Confederacy.”

Pet. App. 20-24.

Finally, the court of appeals rejected petitioner’s claim

that the United States abandoned its rights by failing to

show any interest in the ship’s salvage, thereby permit-

ting anyone who found it to acquire title under the law of

finds. Relying on this Court’s decision in United States -

v. California, 382 U.S. 19, 40 (1947), the court of appeals

concluded that public property can be abandoned only by

explicit acts, and not “by * * * acquiescence, laches, or

failure to act.” Pet. App. 24-27. In light of its conclu-

sions on the succession and abandonment questions, the

court of appeals found it unnecessary to address the dis-

trict court’s alternative conclusion that the United

States acquired title to the Alabama by capture. /d. at

12-18.

ARGUMENT

The decision of the court of appeals that the Al-

abama’s bell is the property of the United States is cor-

rect, and does not conflict with any decision of this Court

or of any court of appeals. Further review is not

warranted.

1. Petitioner renews his contention that the United

States did not acquire title to the bell of the Alabama.

Pet. 8-11. Petitioner principally argues that Section 4 of

the Fourteenth Amendment, which prohibits assumption

of Confederate war debt by the United States or by any

State, “barred the United States from succeeding to title

to property owned by the Confederacy for which there

was a corresponding liability or obligation.” Pet. 8. Ac-

cording to petitioner, “the outstanding obligation

2 Section 4 provides that:

The validity of the public debt of the United States, autho-

rized by law, including debts incurred for payment of pensions

and bounties for services in suppressing insurrection or rebel-

lion, shall not be questioned. But neither the United States

nor any Siate shall assume or pay any debt or obligation in-

curred in aid of insurrection or rebellion against the United

States, or any claim for the loss or emancipation of any slave;

but all such debts, obligations and claims shall be held illegal

and void.

U.S. Const. Amend. XIV, § 4.

against the Alabama was its responsibility for the de-

struction of neutral ships and capture of neutral prop-

erty during the course of its commerce raiding.” Pet. 9.”

There is no merit to petitioner’s claim.

First, petitioner cannot seriously contest that the

United States acquired title to property formerly held

by the Confederacy upon the defeat of the Confederacy

and the occupation of the territory over which it claimed

jurisdiction. A long line of decisions of this Court so

holds. See Williams v. Bruffy, 96 U.S. 176, 188 (1878);

Whitfield v. United States, 92 U.S. 165, 169-171 (1876);

Titus v. United States, 87 U.S. (20 Wall.) 475, 481-482

(1874); United States v. Huckabee, 83 U.S. (16 Wall.) 414,

434-435 (1873); see also Leathers v. Salvor Wrecking Co.,

15 F. Cas. 116 (C.C.S.D. Miss. 1875) (No. 8164). The so-

called “Repudiation Clause” of the Fourteenth Amend-

ment in no way casts doubt on that settled understand-

ing. By its own terms, that Clause prohibits the assump-

tion of Confederate debts; it does not prohibit the United

States or any State from succeeding to an asset used “in

aid of insurrection or rebellion” if no corresponding

debts or obligations are assumed. Indeed, the !ogic of pe-

titioner’s argument—that no property may be acquired

without assuming all liabilities attached to that prop-

erty—suggests that the acquisition of any property that

might have been reached to satisfy Confederate debts

may be constitutionally precluded. Thus, for example, no

state government could control former Confederate

lands or facilities. The court of appeals correctly noted

that no court in this country has ever subscribed to that

proposition. Pet. App. 23.

3 Petitioner briefly incorporates in a footnote his contention,

made unsuccessfully below, that the Alabama’s reputation as a pi-

rate vessel meant that it could not be attributed to the Confederacy

at all (Pet. 8 n.1), but fails even to address the court of appeals’

considered rejection of that argument. Pet. App. 14-18.

Petitioner offers no authority for his novel construc-

tion of the Fourteenth Amendment, but appears to con-

tend instead that his interpretation is required by prin-

ciples of international law. Pet. 9-10. As the court of ap-

peals noted, it is far from clear that the succession doc-

trine that international law applies to the conquest of

formerly independent nations applies mutatis mutandis

to the peculiar circumstances of the Civil War. Pet. App.

23-24. In any event, it has long been established that

Congress may exceed the limits imposed by interna-

tional law by legislation. See, e.g., Rainey v. United

States, 232 U.S. 310, 316 (1914); Whitney v. Robertson,

124 U.S. 190, 194 (1888). That principle applies a fortiori

to constitutional amendments. Because the Fourteenth

Amendment expressly prohibits the assumption of Con-

federate debts, and does not restrict in any way the

United States’ ability to acquire Confederate property,

any principle of international law requiring assumption

of debts related to Confederate property before the

United States may acquire that property by succession

must give way to the command of the Constitution.‘

Second, even accepting arguendo petitioner’s gloss on

the Fourteenth Amendment, petitioner’s argument that

the United States could not succeed to the wreck of the

4 Indeed, as petitioner recognizes (Pet. 10 n.3), the United

States essentially nullified any claims for losses to neutral shipping

and cargo that he now espouses. In distributing through arbitral

awards money given the United States by Great Britain, the

United States provided that no claims would be allowed for persons

not bearing allegiance to the United States. See Act of June 23,

1874, ch. 459, § 12, 18 Stat. 248; Act of Mar. 6, 1876, ch. 20, 19 Stat.

6; 1 W. Malloy, Treaties, Conventions, International Acts, Proto-

cols and Agreements Between the United States of America and

Other Powers 1776-1909, at 700, 717 (1910) (S. Doc. No. 357, 61st

Cong., 2d Sess. (1910)); 5 J.B. Moore, History and Digest of Inter-

national Arbitrations to Which the United States Has Been a

Party 4650-4651, 4653 (1898).

Alabama lacks chronological coherence. Assuming with

petitioner that his argument should be assessed as of the

close of the Civil War in 1865 (Pet. 9-10)—as opposed to

now, when there are surely no viable claims against the

Alabama—the Fourteenth Amendment was not then

law, and could not prevent succession to the Alabama.

The language of the Repudiation Clause is plainly

prospective, and amendments to the Constitution are ef-

fective only when ratified. See U.S. Const. Art. V. This

Court, moreover, held that the Civil War amendments did

not ordinarily disturb vested rights. Osborn v. Nichol-

son, 80 U.S. (13 Wall.) 654 (1872), rev’g 18 F. Cas. 846

(C.C.E.D. Ark. 1870) (No. 10,595) (citing U.S. Const.

Amend. 14, § 4). Because the constitutional provision on

which petitioner relies post-dated the United States’ ac-

quisition of the wreck by succession, that provision can-

not help petitioner’s cause.

2. Even if the United States could not acquire title to

the wreck of the Alabama by succession, the district

court properly found that the Alabama became United

States property when it was captured by the Kearsage in

1864. Pet. App. 40-41. Capture of an enemy vessel prior

to its sinking confers title and ownership upon the gov-

ernment of the captors. See The Florida, 101 U.S. 37, 42

(1880); The Adventure, 12 U.S. (8 Cranch) 221, 226 (1814);

Office of Legal Adviser, Dep’t of State, Pub. No. 9610,

1980 Digest of United States Practice in International

Law 999, 1000 (1986). Here, the Alabama surrendered to

the Kearsage. Pet. App. 12, 41. While the Kearsage fired

on the Alabama following her initial indication of

surrender, most probably because of its inability to see

the white flag raised by the Alabama, it apparently

ceased after a white flag was more clearly displayed.

Pet. App. 6, 36 & n.1.

The court of appeals did not resolve the issue of cap-

ture, but expressed doubt that a ship may be

constructively captured without physical control. Pet.

App. 13. It is well settled, however, that “a voluntary

surrender of authority, and an agreement to obey the

captor, supplies the place of actual force” and effectuates

a capture. The Josefa Segunda, 23 U.S. (10 Wheat.) 312,

325-326 (1825) (Story, J.); see also The Alexander, 1 F.

Cas. 357, 360 (C.C.D. Mass. 1813) (No. 164) (Story, J.)

(describing capture by “constructive possession”), aff’d,

12 U.S. (8 Cranch) 168 (1814). As a contemporary

treatise noted, “capture is deemed complete when the

surrender has taken place and the spes recuperandi

[hope of regaining] is gone.” H. Halleck, /nternational

Law; or, Rules Regulating the Intercourse of States in

Peace and War 727 (1861). Absent further attempts to

escape or retaliate, the striking of a vessel’s colors

“must be deemed the consummation of the capture.” The

Rebeckah, 1 C. Rob. 227 (1799). Accordingly, irre-

spective of petitioner’s arguments challenging the

United States’ right to succeed to the property of the

Confederacy, the Alabama and its bell belong to the

United States by right of capture.

3. Petitioner also renews his contention that any in-

terest acquired by the United States in the wreck of the

Alabama was abandoned, entitling petitioner to posses-

sion under the law of finds. Pet. 11-14. The court of ap-

peals properly held otherwise. Pet. App. 24-27.

The common law of finds expresses “the ancient and

honorable principle of ‘finders, keepers.’” Colwmbus-

America Discovery Group v. Atlantic Mut. Ins. Co., 974

F.2d 450, 459 (4th Cir. 1992) (quoting Martha’s Vineyard

Scuba Headquarters, Inc. v. Unidentified, Wrecked &

Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.

1987)), petition for cert. pending, No. 92-1189. The law of

finds traditionally was applied to property never owned

by anybody, such as whales and fish, but a “relatively re-

cent trend in the law” has applied the law of finds to long

sens eemmmmeiation

lost shipwrecks. Columbus-America Discovery Group,

974 F.2d at 459-460. Today, the law of finds is applied to

such wrecks “only when that property has been aban-

doned by its previous owners.” Jd. at 461. We agree with

petitioner (Pet. 12) that admiralty courts sometimes

have invoked that doctrine to give title to finders of

shipwrecks when the circumstances indicate that the

true owners have abandoned the property. The cases

cited by petitioner, however, involved abandonment of

property owned by parties other than the sovereign.

While petitioner has made no showing that he could meet

even the standards of abandonment set forth in those

cases, he errs fundamentally in assuming that courts

may infer abandonment of public property under the law

of finds in the absence of congressional authorization.

As the court of appeals recognized (Pet. App. 24-25),

Article IV of the Constitution provides that “Congress

shall have Power to dispose of and make all needful Rules

and Regulations respecting the Territory or other

Property belonging to the United States.” U.S. Const.

Art. IV, § 3, Cl. 2. Relying in part on Congress’s special

responsibility in this area, this Court held in United

States v. California, 332 U.S. 19 (1947), that the federal

government may not be deprived of property interests by

rules designed to resolve private disputes, and that

“officers who have no authority at all to dispose of Gov-

ernment property cannot by their conduct cause the

Government to lose its valuable rights by their acquies-

cence, laches, or failure to act.” 332 U.S. at 40; see also

Royal Indem. Co. v. United States, 313 U.S. 289, 294

(1941); Utah Power & Light Co. v. United States, 243

U.S. 389, 409 (1917); cf. OPM v. Richmond, 496 U.S. 414,

424-434 (1990); see also 1980 Digest of United States

Practice in International Law, supra, at 1004-1005

(states do not abandon warships sunk during military

hostilities absent express consent). Petitioner cites no

authority that casts doubt on the applicability of that

settled proposition in the present context.’ Indeed, con-

trary to petitioner’s claim that the decision below,

“works a substantial and unwarranted change in the dis-

position of government property” (Pet. 12), private par-

ties engaged in salvage operations recognize that differ-

ent rules of abandonment apply to property owned by the

sovereign. See Petition for Writ of Certiorari at 12 (No.

92-1189) (citing opinion of the court of appeals in this

case). Because petitioner can point to no Congressional

act that authorizes abandonment of the Alabama, his

claim to public property was properly rejected by the

court of appeals.

In sum, petitioner seeks resolution of a controversy

that affects only the Alabama’s bell, and can advance no

5 In fact, as the court of appeals noted, a lower court case in-

volving the wreck of a ship sunk by the Alabama herself held that

the United States Navy’s formal abandonment of a sunken vessel

did not constitute a lawful abandonment in light of Article IV. See

Hatteras, Inc. v. The U.S.S. Hatteras, 1984 A.M.C. 1094 (S.D.

Tex. 1981), aff'd mem., 698 F.2d 1215 (5th Cir. 1983).

The cases cited by petitioner are inapposite. In two cases, the

United States deliberately destroyed its ships in target practice,

thereby engaging in conduct that could reasonably be interpreted

as authorized and express abandonment, see Baltimore, Crisfield &

Onancock Line, Inc. v. United States, 140 F.2d 230, 234 (4th Cir.

1944); State by Ervin v. Massachusetts Co., 95 So. 2d 902, 903 (Fla.

1956), cert. denied, 355 U.S. 881 (1957). In another case, the State

in fact retained sovereign possession of a Spanish privateer and

Confederate blockade runners, State ex rel. Bruton v. Flying “W”

Enterprises, Inc., 160 S.E.2d 482, 494 (N.C. 1968). In the last case

cited by petitioner, two salvage crews attempted to raise a derelict

British frigate that had been sunk in the revolutionary war. When

one of the crews sought an injunction to keep its competitor away,

the court refused to issue it on the ground that each party’s claim

of title was “doubtful.” Deklyn v. Davis, 1 Hopk. Ch. 135, 141-143

(N.Y. Ch. 1824). Pet. 14 n.6. None of these cases casts doubt on

the conclusion reached by the court of appeals here.

convincing argument either that the court of appeals

reached the wrong result or that the issue he raises is

one of continuing significance. Since petitioner pur-

chased the bell in 1979, the wreck of the Alabama was

rediscovered by French divers in what are now French

territorial waters, and France has now agreed that title

to the Alabama and its artifacts has remained in the

United States since 1864. See Roach, France Concedes

United States Has Title To C.S.S. Alabama, 85 Am. J.

Int’] L. 381, 382 (1991). The court of appeals’ decision

that the Alabama’s bell similarly belongs to the United

States should not be disturbed.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.