Opposition Brief — Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance

Eupreme Court, U.S, |

&B . FILED

No. 92-1189 § FEB 1993

OFFICE OF THE CLERK

IN THE :

Supreme Court of the United States

OCTOBER TERM, 1992

RRO

COLUMBUS-AMERICA DISCOVERY GROUP, INC.,

Petitioner,

ATLANTIC MUTUAL INSURANCE COMPANY, et ai.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION

GUILFORD D. WARE MARILYN L. LYTLE

JAMES L. CHAPMAN, IV Counsel of Record

MARTHA M. POINDEXTER DOUGLAS A. JACOBSEN

CRENSHAW, WARE & MARTIN GEORGE R. DALY

1640 Nationsbank Center BIGHAM ENGLAR JONES

One Commercial Place & HOUSTON

Norfolk, Virginia 23510 14 Wall Street

(804) 623-3000 New York, New York 10005

(212) 732-4646

Attorneys for Respondents

a

i

QUESTIONS PRESENTED

Should courts cast aside the law of salvage and,

instead, apply the law of finds even where the owner

of sunken property files claim, proves ownership and

shows positive intent not to abandon—and even

though the law of finds previously has been applied

only when an owner of a long sunken wreck no

longer exists or files no claim?

. Whether sunken property can be considered “aban-

doned” even though:

a) owner files claim in admiralty proceeding;

b) sufficient documentary evidence is provided to

prove ownership;

c) the evidence indicates predisposition by the

owner not to abandon; and

d) the property was taken by force majeure (hur-

ricane) and it has been technologically impos-

sible to recover until recently?

il

TABLE OF CONTENTS

PAGE

QUES TING PREGMOU SUED 650i vinceuaxacesdnxesuanns i

TABLE OF COP ae hick csccachvaauansekueeeyeuens ii

TABLE OF AUTRIGUIE Wes 5x oss 40ngnsecenun becouse ess lll

yet it ogy) PEE eee Teer Py rr oe ee ]

SCAT Rees CP Tite CAGE. sckccccnvanencuccanenaces 2

REASONS FOR DENYING THE WRIT.................. 3

I. Admiralty Courts Are Uniform in Their Applica-

tion of the Law of Salvage and the Law of Finds.. 4

II. The Fourth Circuit Properly Required Clear

and Convincing Evidence of Abandonment... 7

III. Court of Appeals Decision Promotes Historic

Preservation and Uniformity in Admiralty Law 9

COMCE URS , oo 0cccsintccueenenseneeseaeenvaneians 11

APPENDIX—List of parent companies and subsidiaries of

Respondents pursuant to Sup. Ct. R. 29.1............. la

ill

TABLE OF AUTHORITIES

Cases: PAGE

Brady v. S.S. AFRICAN QUEEN, 179 F. Supp. 321

(E.D. Va. 1960)......------+++- ORT TT CTT ere tt Te 5

Brotherhood of Locomotive Firemen & Enginemen v.

Bangor & Aroostook R.R., 389 U.S. 327 (1967).... 4

Cobb Coin Co. v. Unidentified, Wrecked and Abandoned

Sailing Vessel, 549 F. Supp. 540 (S.D. Fla. 1982) 4, 11

Commonwealth v. Maritime Underwater Surveys, Inc.,

531 N.E.2d 549 (Mass. 1988) .....-----eeeeeeeeees 5

Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S.

BT CIGRE) cnc ces cc cc ce ssc cccesccvccsensccccessece 7

Hener v. United States, 525 F. Supp. 350 (S.D.N_-Y.

EW n nadaaessebasacesetacsscsesesscesveces 5,11

Hoelzer v. City of Stamford, Conn., 722 F. Supp. 1106

(S.D.N.Y. 1989), aff'd, 933 F.2d 1131 (2d Cir.

SEU DIVE EWES S SGASGA Gs bab easisadcevevevernorces 7

Klein v. Unidentified Wrecked and Abandoned Sailing

Vessel, 758 F.2d 1511 (11th Cir. 1985) ......---+-- a

Martha's Vineyard Scuba Headquarters, Inc. v. Unident-

ified, Wrecked and Abandoned Steam Vessel, 833

F.2d 1059 (1st Cir. 1987) ......0--e cece reer e rere 3, 6

Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317

SNUG UL vasa saesanawasccesensnecnecessersecscccs 10

Morissette v. United States, 342 U.S. 246 (1952) ....--- 10

Queen Ins. Co. of America v. Globe & Rutgers Fire Ins.

Co., 263 U.S. 487 (1924) ......- ee ee eee e eee eeeees 9

iV

PAGE

Robinson v. Western Australian Museum, 16 A.L.R. 623

Coe Fe GD uxvcds adware conan eeueannesenes 9

Simon v. Taylor, [1975] 2 Lloyd’s Rep. 338 (Sing. Ct.

de TORT ee OT nL eRe fs 9

Stanley v. Colt, 72 U.S. (S Wall.) 119 (1866) ........... 7

Texas v. Mead, 465 U.S. 1041 (1984)................... 4

Treasure Salvors, Inc. v. Unidentified Wrecked and

Abandoned Sailing Vessel, 640 F.2d 560 (Sth Cir.)

(Treasure Salvors I11), on remand, 546 F. Supp. 919

[Oa Ss WUE D ea icc chs neennekaee CaGeabakh meen es 3, 6

Treasure Salvors v. Unidentified, Wrecked and Aban-

doned Sailing Vessel, 556 F. Supp. 1319 (S.D. Fla.

SOE xs hia ok ad cae ee eO wee Votan ss 5

United States v. Johnston, 268 U.S. 220 (1925)......... 4

United States v. Robinson, 430 F.2d 1141 (6th Cir.

SPO Akiba aeaceceeae Gece eeka kone bean bits anes ue 7

United States v. Steinmetz, 973 F.2d 212 (3d Cir. 1992),

petition for cert. filed, 61 U.S.L.W. 3404 (U.S.

Pane: Sis Se ee, Es cid vatncaseneeinewas 8

Wilson v. Colorado Mining Co., 227 F. 721 (8th Cir.

CPEMP nhc aReeS cua KSESOUA ENTREE CHR EseseRE ees 7

Zych v. Unidentified, Wrecked and Abandoned Vessel,

755 F. Supp. 213 (N.D. Ill. 1991), vacated and

remanded on other grounds, 960 F.2d 665 (7th

Cir.), cert. denied, 113 S. Ct. 491 (1992).......... ae

PAGE

Rules:

Fed. R. Civ. P. Supplemental Rules for Certain Admiralty

eal DR Ts Bene Oe nv. k ks ccs ccvcukscddone 2

a a re a err ree l

Statutes:

Abandoned Shipwreck Act of 1987, 43 U.S.C. §§ 2101-

BEG 6565 cake cebe bask eden chesnut 3,9

ee Shean ae ae EE dks ada w be aS ee kd beaeaaeee en 10

a See ee CD io ck cu ban ced be ce enee keen 10

ee Seas. Oe EE a oo okdn dc es wine 6a¥h cask 10

Miscellaneous:

Abandoned Shipwreck Act Guidelines, 55 Fed. Reg.

Ae CE onc oa chad ceded chs haves cadbenscnnees 10

Black’s Law Dictionary (6th ed. 1990) ................. 7

W.R. 132, 97th Cong... tat Sess. CI9E2) «oc. c cece cece. 10

S. Rep. No. 241, 100th Cong., 2d Sess. 5 (1987)........ 10

T. Schoenbaum, Admiralty and Maritime Law (1987)...5, 7

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1992

No. 92-1189

-

COLUMBUS-AMERICA DISCOVERY GROUP, INC.,

Petitioner,

—vV.—

ATLANTIC MUTUAL INSURANCE COMPANY, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

at

RESPONDENTS' BRIEF IN OPPOSITION

JURISDICTION

No jurisdictional basis exists for granting the Petition for a

Writ of Certiorari. The Court of Appeals for the Fourth Circuit

did not enter judgment; it simply remanded this case for further

proceedings by the trial court. Furthermore, there is no conflict

among the United States Courts of Appeals and this case does

not involve an important question of federal law. See Sup. Ct.

R. 10.1(a)-(c).

2

STATEMENT OF THE CASE

This is an Admiralty Rule C' in rem action to enforce a mar-

itime lien for salvage with respect to the S.S. CENTRAL

AMERICA which sank in a hurricane in 1857. Petitioner,

Columbus-America Discovery Group [hereinafter “CADG”],

gave notice of this action to some of the owners of a com-

mercial shipment of specie which had been on board. The own-

ers [hereinafter “Respondents”] promptly filed claims in the

proceeding. The trial court bifurcated the proceedings: first, a

trial on the question of ownership and abandonment and, sec-

ond, a salvage award proceeding. In the first phase, Respon-

dents introduced corporate documents, public records and other

evidence proving that they had insured the commercial ship-

ment of $1,219,189.00, that they had paid claims, and thus they

became the owners. (Pet. App. 28a.) Evidence also was intro-

duced regarding recovery efforts showing that the insurers had

no intention of abandoning such a valuable cargo. (Pet.

App. 32a-33a.) The district court found that Respondents had

insured and paid for the loss of the treasure but that they had

abandoned their interest. Title to the insured shipment was

awarded to CADG under the law of finds. (Pet. App. 102a.)

The Court of Appeals for the Fourth Circuit reversed in part

and remanded the matter for a salvage award proceeding. (Pet.

App. 7a, 28a, 34a.) The court upheld the finding of the lower

court that the insurers had paid claims and became owners of

the commercial shipment. (Pet. App. 29a.) The finding of aban-

donment by the lower court was reversed as clearly erroneous,

and the application of the law of finds was held to be improper.

(Pet. App. 31a-34a.)

CADG’s request for rehearing and suggestion for a rehearing

en banc were denied. (Pet. App. 110a.) No request for a stay of

the proceedings was made to the Fourth Circuit and the matter

has been remanded to the lower court for a salvage award pro-

1 Fed. R. Civ. P. Supplemental Rules for Certain Admiralty

and Maritime Claims.

ceeding. Trial has been set for June 29, 1993, and discovery is

proceeding.’

REASONS FOR DENYING THE WRIT

CADG seeks to terminate rights of owners of sunken property

by overturning established admiralty law. To succeed, CADG

would re-write the law governing recovered property lost at sea

by applying the law of finds in an unprecedented manner.

This matter involves rights to sunken treasure on the Outer-

Continental Shelf, outside the territorial waters of the United

States.* CADG is not satisfied with an equitable salvage award

but seeks title to the entire treasure.* There are no special or

important reasons for granting a writ of certiorari in this case.

There are no conflicts whatsoever among the circuits with

respect to the applicable law nor is there a state court decision

involved. All of the circuit court decisions relied on by CADG

involve cases where no owner was present and, therefore, the

law of finds was properly applied therein.’ In this case, how-

ever, proven owners were present.

2 Columbia University, Harry John and Jack Grimm have inter-

vened in the proceedings claiming part of the salvage award based on

allegations CADG used information taken from Columbia University

to find the wreck. Their rights are not addressed in the petition.

3 See discussion infra pp. 9-10. The Abandoned Shipwreck Act

of 1987, 43 U.S.C. §§2101-2106 (1988), does not apply to the CEN-

TRAL AMERICA.

* — CADG may receive “by far the largest share” of the treasure

on remand. (Pet. App. 34a, 36a.)

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

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

1987) (“no person or firm appeared to assert any overall claim of

ownership”); Treasure Salvors, Inc. v. Unidentified Wrecked and

Abandoned Sailing Vessel, 640 F.2d 560 (Sth Cir.) (Treasure Salvors

IIT), on remand, 546 F. Supp. 919 (S.D. Fla. 1981) (parties stipulated

that wreck of the ATOCHA was abandoned by original owners); Klein

v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511

(11th Cir. 1985) (no original owner of 240 year old wreck; dispute

between salvor and state). See discussion infra pp. 5-6.

4

At trial, over 500 exhibits were introduced in addition to tes-

timony of a maritime archeologist, a fiscal historian and marine

insurance experts. The district court concluded that Respon-

dents were the owners of the commercial shipment. (Pet.

App. 95a.) This finding on ownership was upheld by the Fourth

Circuit. (Pet. App. 28a.) By referring to Respondents as “pur-

ported owners,” CADG reveals what it is actually seeking—

yet another review of the factual issue of ownership. CADG

seeks to make this Court a trier of fact. While granting of a writ

is discretionary, a grant of a writ to review evidence or specific

facts is generally not warranted. United States v. Johnston, 268

U.S. 220, 227 (1925). See Texas v. Mead, 465 U.S. 1041

(1984).

Because this matter is on remand and there is no final judg-

ment, this matter is not yet ripe for review by this Court. Broth-

erhood of Locomotive Firemen & Enginemen v. Bangor &

Aroostook R.R., 389 U.S. 327, 328 (1967). There are no grave

matters of importance in this case which warrant the issuance

of a writ prior to final judgment.

I. Admiralty Courts Are Uniform in Their Application of

the Law of Salvage and the Law of Finds

CADG attempts to manufacture a conflict among the United

States Courts of Appeals regarding application of the law of

salvage and the law of finds, even though no conflict exists.

Admiralty courts have been uniform in their application of the

law of salvage and the law of finds. The Fourth Circuit’s opin-

ion is consistent with all other courts of appeals in applying the

law of salvage to property in which an owner asserts a claim;

those courts applied the law of finds only to unclaimed prop-

erty. Where the law of salvage provides an adequate remedy for

the disposition of sunken property, salvage concepts and pro-

ceedings are applied. Cobb Coin Co. v. Unidentified, Wrecked

and Abandoned Sailing Vessel, 549 F. Supp. 540, 556 (S.D. Fla.

1982).

5

{[A]dmiralty has historically disfavored the law of finds,

preferring instead the distinct policies of the law of sal-

vage.

Hener v. United States, 525 F. Supp. 350, 355 (S.D.N.Y. 1981).

The law of salvage applies in all but the most extraordinary cir-

cumstances. /d. (Pet. App. 16a-17a.)

When the owner comes forward and makes an appearance,

all courts have uniformly applied the law of salvage. Hener,

supra, at 358; T. Schoenbaum, Admiralty and Maritime Law

514 (1987); (Pet. App. 22a.) The general rule requires that the

law of finds is applied only “in extreme cases where the prop-

erty is wholly derelict and affirmatively abandoned by the own-

ers and underwriters.” Brady v. S.S. AFRICAN QUEEN, 179

F. Supp. 321, 324 (E.D. Va. 1960) (emphasis added). See also

Zych v. Unidentified, Wrecked and Abandoned Vessel, 755

F. Supp. 213, 214 (N.D. Ill. 1991), vacated and remanded on

other grounds, 960 F.2d 665 (7th Cir.), cert. denied, 113 S. Ct.

491 (1992). A finding of affirmative abandonment is a pre-

requisite to awarding title to a saivor, when an owner is pre-

sent. (Pet. App. 21a.)

The law of finds, under which a salvor may gain title, is an

exception to the traditional application of the law of salvage

and has been applied where no owner has come forward and

where no owner is likely to do so. Commonwealth v. Maritime

Underwater Surveys, Inc., 531 N.E.2d 549, 551 (Mass. 1988).

See also Klein v. Unidentified Wrecked and Abandoned Sailing

Vessel, 758 F.2d 1511, 1514 (11th Cir. 1985) (existence of

owner was a fiction); Treasure Salvors v. Unidentified, Wrecked

and Abandoned Sailing Vessel, 556 F. Supp. 1319, 1334 (S.D.

Fla. 1983) (vessel indisputably abandoned; owner not in exis-

tence). Generally, in such cases, the contest was between com-

peting salvors or between the salvor and the sovereign,

particularly state governments. In any event, no owner

appeared. Courts have inferred abandonment in such cases, as

did both lower court decisions in this case with respect to pas-

senger gold.

6

The courts have awarded title to salvaged property to the

salvor only in cases where no claim of ownership was asserted

by the owner or where there has been an affirmative aban-

donment. (Pet. App. 21a.) In the cases relied upon by CADG,

the owners no longer existed, and their existence was deemed

“a fiction.”® The salvor was awarded title so as to avoid the

administrative inconvenience of a salvage award proceeding

and sale. This line of cases has no application to a proceeding

where Owners appear promptly upon legal notice after the prop-

erty is brought into the jurisdiction of the court and ownership

is proven, as occurred in this case.

The district court decision stood alone in awarding title to a

treasure hunter based on the law of finds, despite the presence of

proven owners in the proceeding. (Pet. App. 22a.) The-Court of

Appeals properly reversed an opinion that broke with admiralty

precedent. There is no conflict whatsoever as a result of the

Fourth Circuit opinion. The application of the law of finds is not

“foreclosed” as CADG argues. The law of finds may be applied

to wrecks when the existence of the owner is a “fiction.” The law

of finds does apply to unclaimed passenger gold on the CEN-

TRAL AMERICA, but not to the commercial shipment that was

insured by Respondents.’ (Pet. App. 27a, 28a.)

¢ For example, no owner asserted any claim to the S.S.

REPUBLIC. Martha's Vineyard Scuba Headquarters, Inc. v. Uniden-

tified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (ist

Cir. 1987). In Treasure Salvors, Inc. v. Unidentified Wrecked and

Abandoned Sailing Vessel, 640 F.2d 560 (Sth Cir. 1981) (Treasure

Salvors IIT), on remand, 546 F. Supp. 919 (S.D. Fla. 1981), it was stip-

ulated that the vessel was abandoned and no owner appeared. See Pet.

App. 22a.

7 The lower court’s application of the law of finds and infer-

ence of abandonment as to the vessel, artifacts and passenger gold

was specifically upheld by the Fourth Circuit. (Pet. App. 28a.)

ee on Band

7

II. The Fourth Circuit Properly Required Clear and

Convincing Evidence of Abandonment

The Fourth Circuit correctly held that when an owner claims

long-lost property that was involuntarily taken from his con-

trol, the law is hesitant to find an abandonment and such must

be proved by clear and convincing evidence. (Pet. App. 34a.)

A fundamental maxim of a free government is that ine right

of private property remains sacred. Stanley v. Colt, 72 U.S. (5

Wall.) 119 (1866). Ownership is the collection of rights to use

and enjoy property. Black’s Law Dictionary 1106 (6th ed.

1990). Abandonment is the repudiation of ownership. Florida

Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 677 n.8

(1982). There must be clear and convincing evidence of aban-

donment in order to deprive an owner of his rights. (Pet.

App. 20a.) There is a strong natural presumption that property

is not abandoned and the party alleging abandonment must pro-

duce clear evidence of the owner’s intent to abandon property.

Wilson v. Colorado Mining Co., 227 F. 721, 725 (8th Cir.

1915); accord United States v. Robinson, 430 F.2d 1141, 1143

(6th Cir. 1970) (party seeking to establish abandonment has an

“especially heavy burden”); T. Schoenbaum, Admiralty and

Maritime Law 512 (1987) (same). Abandonment must be vol-

untary and involves a positive intention to part with ownership.

Hoelzer v. City of Stamford, Conn., 722 F. Supp. 1106, 1111

(S.D.N.Y. 1989), aff'd, 933 F.2d 1131 (2d Cir. 1991). While

abandonment may be inferred from the surrounding facts and

circumstances when no owner appears in an in rem proceeding,

there is no authority to do so when an owner appears in the

proceeding, establishes his ownership, and there is no showing

of affirmative abandonment.

CADG asks the Court to do the unthinkable—to impose a

judicial statute of limitations on ownership. CADG confuses a

claim against a third party, which can be forfeited by inaction,

with ownership which can only be lost by voluntary relin-

quishment. Ownership is not a claim against a third party

8

which terminates if it is not exercised. It is a right lost only by

clear and express renunciation.

The Court of Appeals concluded that a serious mistake had

been made and reversed the district court’s finding of aban-

donment because there was no evidence to support it. (Pet.

App. 31a, 34a.) Not only was the property taken from the own-

ers’ possession by an act of God, but the technology to recover

it from a depth of 8,000 feet was only recently developed. Fur-

ther, all evidence points to an intent not to abandon. Respon-

dents’ actions showed a positive “pre-disposition not to

abandon.” (Pet. App. 32a.)

CADG’s concern about overburdened courts is misplaced. It

is CADG’s conduct in this matter, which if successful, would

lead to increased litigation.* Application of the law of finds to

cases in which owners are still in existence will only serve to

encourage treasure hunters to attempt to defeat owners’ claims

in court. Instead of resolving these matters commercially

through contracts, salvors would be encouraged to litigate title

in most Cases, creating an unnecessary burden on the courts.

The time-honored tradition of cooperation between salvors and

underwriters would be undermined? and courts flooded with

unnecessary litigation.

$ — Few similar cases have been reported due in part to the nor-

mal commercial resolution of such matters by underwriters. The only

comparable example involved the rights to the LADY ELGIN which

sank 130 years ago. Sufficient documentation for proof of ownership

was provided by owners in that case as well. Zych, supra, at 215.

(Pet. App. 31a.) See also United States v. Steinmetz, 973 F.2d 212 (3d

Cir. 1992) (involving federal government), petition for cert. filed, 61

U.S.L.W. 3404 (U.S. Nov. 18, 1992) (No. 92-859).

§ The Salvage Association in London has entered into con-

tracts on behalf of underwriters for salvage on sunken wrecks dating

back to the 1700's. The litigation herein could have been easily

avoided if CADG had contracted with Respondents and resolved this

matter commercially in the normal course of business.

9

III. Court Of Appeals Decision Promotes Historic Preser-

vation and Uniformity in Admiralty Law

Through the rules of salvage, admiralty courts have been

able to provide an equitable means of balancing the individual

rights of the salvor with the rights of the owner of salvaged

property. By precedents that have served the maritime indus-

try well for centuries, the law imposes a lien on the salvaged

property to protect the claim of the salvor and requires the

salvor to act as a fiduciary in protecting the property for the

owner. The law of finds has only been applied to resolve the

problem faced when no owner can be found or the owner has

affirmatively repudiated title to the property. (Pet. App. 16a-

20a.)

International uniformity in admiralty and marine insurance

matters is essential to maritime commerce. In England, as here,

the rule is that no abandonment occurs unless there is some

overt act which clearly constitutes abandonment. (J.A. 423-24,

Aff. of English Law.)'° The High Court of Australia and others

have taken the same position.'! The opinion below is in com-

plete conformity with national and international admiralty

practice.

CADG complains that the decision of the Court of Appeals

upholding traditional admiralty law will somehow “confuse”

public administration of historic shipwrecks under the Aban-

doned Shipwreck Act of 1987, 43 U.S.C. §§ 2101-2106 (1988)

{hereinafter “ASA”]. However, ASA specifically does not

apply to shipwrecks on the Outer-Continental Shelf where the

10 “There are special reasons for keeping in harmony with the

marine insurance laws of England, the great field of this business.”

Queen Ins. Co. of America v. Globe & Rutgers Fire Ins. Co., 263

U.S. 487, 493 (1924).

” In Robinson v. Western Australian Museum, 16 A.L.R. 623

(1977) (Austl.), the original owner retained title to the GILT

DRAGON which sank in 1656. See pp. 647, 648, 654, 663, 671,

673-74. See also Simon v. Taylor, [1975] 2 Lloyd’s Rep. 338 (Sing.

Ct. 1974).

10

CENTRAL AMERICA lies. 43 U.S.C. § 2106(b). Furthermore,

neither the law of finds nor the law of salvage applies to ship-

wrecks covered by ASA. 43 U.S.C. § 2106(a). Nevertheless,

CADG argues erroneously that management of historic ship-

wrecks under ASA will be adversely affected.

Both the express statutory language and the legislative his-

tory of ASA indicate that in order for a shipwreck to be aban-

doned, it must “have been deserted” and the owner must have

“relinquished ownership rights with no retention.” 43 U.S.C.

§ 2101(b). See also S. Rep. No. 241, 100th Cong., 2d Sess. 5

(1987) (clarifying abandonment).'* With respect to shipwrecks

covered by ASA, Congress is assumed to use the term “aban-

donment” to include centuries of admiralty legal practice. See

Morissette v. United States, 342 U.S. 246, 263 (1952); Miles v.

Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317, 325 (1990).

The Fourth Circuit opinion is in conformity with the Aban-

doned Shipwreck Act Guidelines promulgated by the Depart-

ment of the Interior’* and with the law maritime which requires

clear and convincing evidence of abandonment when an owner

appears. '*

12 Initial versions of this legislation would have included any

shipwreck over 100 years of age as historic and left the determination

of abandonment to the Secretary of the Interior. See H.R. 132, 97th

Cong., Ist Sess. (1981), introduced by Mr. Bennett on January 5,

1981. This approach was rejected in the final legislation which left

the determination of abandonment to the courts.

13 “When the owner of a sunken vessel is paid the full value of

the vessel (such as receiving payment from an insurance underwriter)

the shipwreck is not considered to be abandoned. In such cases, title

to the wrecked vessel is passed to the party who paid the owner.” 55

Fed. Reg. 50,116, 50,120-21 (1990).

14 This is not to say that abandonment may never be inferred

now, as CADG argues. The Court of Appeals acknowledges that aban-

donment may be inferred when no owner exists or comes forward to

assert a Claim and, following such precedent, upheld the lower court’s

inference of abandonment with respect to passenger gold, artifacts,

and the hull of the CENTRAL AMERICA. (Pet. App. 28a.)

11

Historic preservation of shipwrecks, especially those not

subject to ASA, such as the CENTRAL AMERICA, is best

encouraged by the approach set forth by the Fourth Circuit

which specifically listed the care taken by the salvor in pre-

serving historical material as a factor to be considered in deter-

mining the size of the salvage award. In treasure salvage cases,

the extent to which the historical value of the wreck and of the

artifacts are preserved for the public good is a factor to be con-

sidered in setting the salvage award. (Pet. App. 35a-36a.)

Through its equitable powers, an admiralty court applying sal-

vage law may reward such efforts. If, however, courts applied

the law of finds, title would pass entirely to the treasure hunter,

with no supervision whatsoever of the preservation of histor-

ical treasures See Hener v. United States, 525 F. Supp. 350

(S.D.N.Y. 1981); (Pet. App. 36a); Cobb Coin Co. v. Unidenti-

fied, Wrecked and Abandoned Sailing Vessel, 549 F. Supp. 540

(S.D. Fla. 1982). The interests of uniformity in admiralty law,

of the maritime community, and of historic preservation of

shipwrecks are well served by the reasoned opinion below.

CONCLUSION

The petition for a wrii of certiorari should be denied.

Respectfully Submitted,

GUILFORD D. WARE MARILYN L. LYTLE

JAMES L. CHAPMAN, IV Counsel of Record

MARTHA M. POINDEXTER © DOUGLAS A. JACOBSEN

CRENSHAW, WARE & MARTIN GEORGE R. DALY

1640 Nationsbank Center BIGHAM ENGLAR JONES

One Commercial Place & HOUSTON

Norfolk, Virginia 23510 14 Wall Street

(804) 623-3000 New York, New York 10005

(212) 732-4646

Attorneys for Respondents

February 16, 1993

——————

APPENDIX

la

APPENDIX

List of parent companies and subsidiaries of Respondents

pursuant to Sup. Ct. R. 29.1

The following Respondents do not have any parent compa-

nies or subsidiaries (not wholly owned):

Atlantic Mutual Insurance Company

Salvage Association

Superintendent of Insurance of the State of New York

The following are parent or subsidiary companies (not

wholly owned) of the remaining Respondents:

Insurance Company of North America—CIGNA Corpora-

tion (parent)

The London Assurance—Sun Alliance Group plc (parent),

—Protea Assurance Company

Limited (subsidiary)

Alliance Assurance Company, Ltd.—Sun Alliance Group

plc (parent)

Indemnity Marine Insurance, Ltd.—Commercial Union

plc (parent)

Marine Insurance Company, Ltd.—Royal Insurance

Holdings plc

(parent)

Royal Exchange Assurance—Guardian Royal Exchange

Assurance plc (parent)