Opposition Brief — Virginia v. Kingdom of Spain

Suprome Court, U.S.

FILED

ef) ‘JAN 11 200

Nos. 00-629 & 00-652 OFFICE OF THE CLERK. |

IN THE

Supreme Court of the Hnited States

COMMONWEALTH OF VIRGINIA

Vi

KINGDOM OF SPAIN

SEA HUNT, INCORPORATED

7,

KINGDOM OF SPAIN

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF THE KINGDOM OF SPAIN

IN OPPOSITION TO CERTIORARI

JAMES A. GOOLD

Counsel of Record

Robert A. Long, Jr.

KEITH A. NOREIKA

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2401

(202) 662-6000

Attorneys for Respondent

January 2001

TABLE OF CONTENTS

¥ This Case Is Not An Appropriate

Vehicle For Determining The Meaning

Of “Abandonment” Under Admiralty

FOR TN AONE COANE LO TEC ART 9

ya The Court of Appeals’ Decision Does

Not Create A Circuit Conflict. .................. 13

3. The Additional Issues Raised in Sea

Hunt’s Petition Merit No Further

EE TGA ERO EC SEs PRC e OCR 15

4. The Foreign Policy Implications Of This

Case Counsel Against Further Judicial

PI i siitiiabiiniscisnithienicitereitibciswnctninta 17 |

i as 19 |

ike :

al a

TABLE OF AUTHORITIES

Page

Bonifay v. The Steamship Paraporti, 145 F. Supp. 879

(E.D. Va. 1956) ncicessiccccsvesnnieennaeiatidads 17

California v. Deep Sea Research, Inc., 523 U.S.

491 (1996) .......0.:acusisiicieeliciasiemalenta aia 2, 10, 16

Chicago & Southern Air Lines, Inc. v. Waterman S.S.

Corp., 333 U.S. 305 (PR iscmanniaseibienmnmads 17

Columbus-America Discovery Group v. Atlantic Mutual

Insurance Co., 203 F.3d 291 (4th Cir.),

cert. denied, 121 3.:C4. ZFE Gages wtenennnscdiesilenns 15

Columbus-America Discovery Group v. Atlantic Mutual

Insurance Co., 974 F.2d 450 (4th Cir. 1992)............ Au

Fairport International Exploration, Inc. v. The Shipwrecked

Vessel Known as the Captain Lawrence, in rem,

177 F.36 491 Gia Cie, Fests cetendiaeens 14

Klein v. Unidentified Wrecked and Abandoned Sailing

Vessel, 758 F.2d 1511 (11th Cir. 1985)... ccceeeseseees 17

Lathrop v. Unidentified Wrecked and Abandoned Vessel,

$177 F. Sapp. 953 GOLDS. Fi. TI scssttncsareseststscssscesesee 17

Martha's Vineyard Scuba Headquarters, Inc. v.

Unidentified, Wrecked and Abandoned Steam Vessel,

$33 F.2d 1059 (iat Cin. Po icciciiesae atin 15

New Harbor Protection Co. v. Steamer Charles P.

Chouteau, 5 F. 463 (D. La. 1881) occ cecceeeeeeeeeees 17

Republic of Mexico v. Hoffman, 324 U.S. 30 (1945) .......... 18

Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or

Vessels, 221 F.3d 634 (4th Cir. 2000) .........cecssseoees Passim

Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or

Vessels, 47 F. Supp. 2d 678 (E.D. Va. | SM passim

Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or

Vessels, 22 F. Supp. 2d 521 (E.D. Va. ROE cheadedsbaitainn: 2

Sumitomo Shoji America, Inc. vy. Avagliano,

PT RA SO GIO viii tbiieie chink pesinloiy kee. 18

The Pohatcong, 77 F. 996 (S.D.N.Y. 1896) ...ccccccecccceseseeeees 17

The Yucatan, 30 F. Cas. 893 (S.D. Fla. RT Pisiisciiccekcccade 17

Treasure Salvors, Inc. v. Unidentified Wrecked and

Abandoned Sailing Vessel, 640 F.2d 560

8 BERR eee 15

United States v. California, 332 U.S. 19 RE 1]

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

i SERRE SSS g ec Oe aa 11

Yukon Recovery, L.L.C. v. Certain Abandoned Property,

205 F.3d 1189 (9th Cir.), cert. denied,

I a 15

~

Page

FEDERAL, CONSTITUTIONAL, TREATY

AND STATUTORY PROVISIONS

FS. CE NS Wr ie ae cath ekcnchrhtinsishehilaepitaicantdbi iene 8,11

Abandoned Shipwreck Act of 1987, Pub. L. No.

100-298 (1988) (codified at 43 U.S.C. § 2101-

I iitah a sinss sdehnctitinitaistnsisicatebiiaiedbicabncdacsidibganbuls 7,9

1763 Definitive Treaty of Peace Between France,

Great Britain, Spain and Portugal, 42 Consol.

Faas BO is CI iiiieitaacnasablthnitinaitdeionsiace 6, 17

1902 Treaty of Friendship and General Relations

Between Spain and the United States,

Fa UR ZA Fe I I iiteecktnssinthsskcsirssnces passim

Be Utes © TB icdetitinsincctiehcinhdliitascsaiipawatibichadicaclalie 2

LEGISLATIVE MATERIALS

H.R. Rep. No. 100-514 (II) (1988)...sscsscssssssessscesneeenneeeee 10

BRIEF OF THE KINGDOM OF SPAIN

IN OPPOSITION TO CERTIORARI

The decision of the court of appeals rests on multiple,

independent and settled principles of domestic and

international law governing sovereign vessels and military

gravesites. The court of appeals correctly applied these

principles to affirm the Kingdom of Spain’s Ownership of its

Royal Navy Frigates La Galga and Juno and its right to

protect from commercial exploitation the final resting place

of more than 425 Spanish soldiers, sailors and their

dependents who died at sea in the service of their country.

To create the appearance of a conflict among the

courts of appeals, Petitioner Commonwealth of Virginia

(“Virginia”) conflates cases applying a principle of implied

abandonment where the owner of a vessel did not appear to

protect its interests with cases in which the owner did appear

— as the Kingdom of Spain did in this case — and proof of

express abandonment was required. Virginia’s Petition also

ignores controlling treaties, case law and principles of

international policy on which the court of appeals grounded

its decision.

The court of appeals correctly held that the Royal

Navy Frigates La Galga and Juno are the property of the

Kingdom of Spain under at least five parallel lines of legal

authority: the 1902 Treaty of Peace and General Relations

Between Spain and the United States; the deference United

States courts accord to understandings between other nations

concerning the meaning and effect of treaties between those

nations; the deference United States courts accord to military

and foreign policy decisions of the Executive Branch;

international law and custom conceming sovereign vessels

and military gravesites; and the proper application of the

Abandoned Shipwreck Act where a sovereign owner contests

claimed abandonment of its vessels. No conflict among the

a Be

x

courts of appeals is presented by the court of appeals’

application of these principles.

Petitioner Sea Hunt, Incorporated (“Sea Hunt”)

misreads California v. Deep Sea Research, Inc., 523 U.S.

491 (1998), as somehow precluding a sovereign from

appearing in an in rem proceeding to defend its ownership of

a sovereign vessel. In this case, the Kingdom of Spain

appeared before a U.S. court and submitted proof of

ownership that was found to be dispositive. Accordingly,

Deep Sea Research has no bearing on this case. Sea Hunt

also misconstrues the admiralty law of salvage. In

accordance with long-settled principles, the court of appeals

correctly held that Spain was entitled to protect its vessels

from commercial exploitation.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-27)

is reported at 221 F.3d 634.' Opinions of the district court

are reported at 47 F. Supp. 2d 678 (Pet. App. 28-59) and 22

F. Supp. 2d 521. The district court’s decision denying Sea

Hunt’s request for a salvage award is unreported. See App.,

infra, la-9a.

JURISDICTION

The judgment of the court of appeals was entered on

July 21, 2000. Pet. App. 2. The petitions for a writ of

certiorari were filed on October 19, 2000. The jurisdiction of

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

' References to “Pet. App.” are to the appendix to the

Commonwealth of Virginia’s Petition, No. 00-629.

+P

COUNTERSTATEMENT OF THE CASE

l. The Royal Navy Frigates La Galga and Juno

are commissioned warships of Respondent the Kingdom of

Spain. The frigates sank in 1750 and 1802, respectively. At

the time of their sinkings, each vessel was engaged in

military service. Each vessel remains to this day on the rolls

of the Navy of Spain. Under Spanish law, each vessel is

public dominion property of the Kingdom of Spain. (C.A.

App. 235, 229-30, 238-39).

a. La Galga was a fifty-gun frigate

commissioned into the Spanish Navy in 1732. On her final

voyage, La Galga was serving as escort to a convoy of

merchant ships bound from Havana to Spain, providing

protection from pirates. On board La Galga were the Second

Company of the Sixth Battalion of Spanish Marines, royal

property and military prisoners. On August 18, 1750, the

convoy encountered a hurricane that scattered the ships and

drove them westward towards Colonial America. Over the

next week, La Galga lost her masts and rudder. On

August 26, 1750, La Galga struck a shoal off Assateague

Island, near the border between Virginia and Maryland, and

sank. (C.A. App. 218-19; 423-24).

Most of those on board La Galga reached land and

the wreck remained accessible for a month or more. From

late August into October 1750, Captain Daniel Huoni

unsuccessfully sought the assistance of the Virginia

authorities to protect the wreck and to prevent looting. On

November 3, 1750, Governor Ogle of Maryland pledged to

send sheriffs to stop the looting, but a second storm scattered

the wreck and ended all salvage efforts. The remains of La

Galga were driven by storms and wave action into the seabed

and became unrecoverable by then-existing salvage

technology. (C.A. App. 147-53; 424-25; 429).

~ e

b. Juno was a thirty-four gun frigate built for the

Royal Navy of Spain in 1789, at the outbreak of the

Napoleonic Wars. Juno was assigned to Spain’s Caribbean

Fleet and spent the remainder of her military service on

convoy escort duty. Juno’s final voyage began as escort to a

convoy from Vera Cruz to Cadiz, but she suffered storm

damage en route and put in to Puerto Rico for repairs, while

the other ships continued on to Spain. After repairs were

completed, Juno was assigned in October 1802 to serve as a

troopship taking the soldiers of the Third Battalion of the

Regiment of Africa and their families home to Spain from

combat duty. East of Norfolk, Virginia, Juno encountered a

fierce storm and disappeared at sea with more than 425

soldiers, sailors and military dependents on board. Over the

next year, Spain’s Consul General in Boston unsuccessfully

canvassed United States ports for any reports of Juno

survivors or sightings of wreckage. (C.A. App. 216-17).

2. Petitioner Sea Hunt is a commercial salvage

firm that secured a permit from Virginia to take artifacts from

Juno and La Galga, in return for granting Virginia a share of

the proceeds. Through historical research, Sea Hunt was

aware that both ships were Spanish Royal Navy vessels

believed to have sunk in the vicinity of Assateague Island,

Virginia. (C.A. App. 417-22; 423-30). On learning of Sea

Hunt’s proposed activities, the Kingdom of Spain advised

that it objected to disturbance of La Galga and Juno and

expressed its desire that their remains be left undisturbed as

military gravesites. (C.A. App. 103, 104). Sea Hunt initiated -

this in rem action because it anticipated that Spain would

claim ownership of La Galga and Juno and object to salvage.

(C.A. App. 66, 73, 80, 82).

In March 1998, Sea Hunt initiated an in rem

admiralty action seeking a declaratory judgment that Juno

and La Galga had been abandoned and ceased to be

sovereign vessels of Spain, and that they had become the

property of Virginia or Sea Hunt under the Abandoned

wie

_ Shipwreck Act or the law of finds. Pet. App. 33. In the

alternative, Sea Hunt sought a salvage award giving it

exclusive rights as salvor-in-possession to the vessels and

their contents.

After filing its in rem claim, Sea Hunt conducted

limited salvage operations. At a September 15, 1998 hearing

concerning those operations, unrebutted expert testimony

was presented by a National Park Service underwater

archaeologist that Sea Hunt was using inappropriate and

potentially destructive techniques to scour the seabed for

artifacts that were endangering the remains of the vessels.

(C.A. App. 181-97). At the request of the district court, Sea

Hunt agreed to cease operations until ownership of Juno and

La Galga had been adjudicated.

3. In response to the Sea Hunt and Virginia

claims, Spain appeared in the district court and filed a

verified claim that it is the owner of Juno and La Galga. In

support of a motion for summary judgment and in opposition

to a Sea Hunt and Virginia cross-motion, Spain provided the

district court with documentary history of the vessels

demonstrating that both had been commissioned naval

vessels on active duty and had never been abandoned or

stricken from the rolls of the Spanish Navy. Spain also

demonstrated that under Spanish law Juno and La Galga are

public dominion property of Spain that can only be ceded or

abandoned by an express act authorized by Parliament.

Spain also objected to commercial exploitation of the

gravesites of its personnel. (C.A. App. 104; 105-26; 198-

204; 214-34; 235, 238).

4. Central to this case and to the decision of the

court of appeals are two treaties entered into by the Kingdom

of Spain. Article X of the 1902 Treaty of Friendship and

General Relations (33 Stat. 2105, 2110-11, 11 Bevans 628,

632) obligates each nation “in cases of shipwreck” to provide

the vessels of the other nation with “the same assistance and

it.

protection and the same immunities which would have been

granted to its own vessels in similar cases.” The

understanding of the United States and Spain, affirmed by the

court of appeals, is that this article obligates the United States

to provide a Spanish sovereign vessel shipwrecked in United

States waters with the same rights and immunities that the

United States provides to its own sovereign vessels.

The earlier treaty is the 1763 Definitive Treaty of

Peace, 42 Consol. T.S. 279 (Feb. 10, 1763) (C.A. App. 521-

34) by which Spain, Great Britain, France and Portugal

ended the Seven Years’ War. To resolve the conflict

between Spain and Great Britain, Great Britain agreed to

withdraw its forces from Cuba (Article XIX) in exchange for

the cession by Spain of claims to territory east of the

Mississippi River “on the continent of North America.”

(Article XX). The 1763 Treaty expressly preserved Spain’s

ownership of moveable Royal Property in North America,

providing that “[H]is Catholick Majesty shall have the power

to cause all the effects that may belong to him, to be brought

away, whether it be artillery or other things.” (Article XX).

In the district court, Diplomatic Notes of Great Britain and

Spain documented each nation’s common understanding that

the Treaty was not a cession of La Galga from Spain to Great

Britain. App., infra, 27a, 29a.

3 In support of Spain’s ownership rights in Juno

and La Galga and its right to refuse salvage, the United

States submitted Statements of Interest on behalf of the

Departments of State and Defense. The Department of

Defense statement declares the policy of the United States

that more than 16,000 sunken U.S. military vessels and

aircraft sunk around the world, including uncounted military

gravesites, remain United States property absent an

authorized express declaration of abandonment. App., infra,

21la-22a. It also articulates the United States’ policy to

secure protection for its sunken sovereign vessels and aircraft

from unauthorized disturbance by providing reciprocal

=

treatment to other nations: “The Department of Defense has

a strong interest in ensuring that the Juno and La Galga are

treated in the same way that we would want U.S. Navy, U.S.

Army, U.S. Air Force and other submerged sovereign non-

commercial United States wrecks in foreign waters to be

treated.” App., infra, 24a. |

The Declaration of Interest of the Department of State

States that Article X of the 1902 Treaty of Friendship and

General Relations is “unique” among the many United States

treaties of friendship, commerce and navigation with other

nations and, in the view of the Department of State, “imposes

on the United States the responsibility to afford to these ...

vessels [La Galga and Juno] the same assistance and

protection and the same immunities which would be granted

to sunken United States warships in the same location.”

App., infra, 13a, 14a.

6. The district court upheld Spain’s ownership of

Juno and its right to reject salvage, but ruled that La Galga

had been expressly abazidoned by Spain under the district

court’s interpretation of the 1763 Definitive Treaty of Peace.

Accordingly, the district court ruled that La Galga had

become the property of Virginia under the Abandoned

Shipwreck Act. Pet. App. 50-53.

: The court of appeals affirmed the district

court’s rulings upholding Spain’s ownership of Juno and

denying Sea Hunt salvage rights. The court of appeals

reversed the district court’s ruling that the 1763 Treaty

abandoned La Galga. The court of appeals held that

Petitioners had been required to show express abandonment

under long-settled admiralty law principles reflected in

Columbus-America Discovery Group v. Atlantic Mutual Ins.

Co., 974 F.2d 450 (4th Cir. 1992), Pet. App. 11, and under

the Abandoned Shipwreck Act’s definition of “abandoned

shipwrecks” as those “to which the owner has relinquished

ownership rights with no retention.” (43 U.S.C. § 2101(b))

sie

(emphasis added). The court of appeals further held that,

while an implied abandonment standard may be applied to

privately owned vessels, an express abandonment standard is

required “where, as here, a nation has stepped forward to

assert ownership over its sovereign shipwrecks.” Pet. App.

10-11. Express abandonment is also required under Article

X of the 1902 Treaty, which confers on Spanish vessels “the

same immunities” conferred upon similarly situated vessels

of the United States. The immunities extended to Spain’s

vessels by the 1902 Treaty include the preclusion of implied

abandonment of United States property under the Property

Clause of the Constitution (U.S. Const. art. IV § 3).

Additionally, the court of appeals held that application of an

express abandonment standard to La Galga and Juno is

required by the legitimate interests of the executive branch in

respecting “the customary international law rule that title to

sunken warships may be abandoned only by an express act of

abandonment.” Pet. App. 16 (quoting Statement of Interest,

U.S. Dept. of State J 15 (App., infra, 14a)).

Applying these principles, the court of appeals ruled

that no express abandonment of La Galga had been shown.

As to the Treaty of 1763, the court agreed with Spain and

Great Britain that the cession in the Treaty of territory “on

the continent of North America” “was not intended to include

movable property located in coastal waters,” an

understanding which is consistent with this Court’s rulings in

the Submerged Lands cases that 18th Century North America

territory did not include coastal waters. Pet. App. 24.

Moreover, the court recognized that the closing proviso of

Article XX of the Treaty includes an express reservation of

Spain’s rights to its movable property in North America. Pet.

App. 22.

Finally, the court of appeals observed that, if implied

abandonment were the applicable standard, “even a finding

of implied abandonment would be improper” in this case.

Pet. App. 25.

x's

REASONS FOR DENYING THE WRIT

) # This Case Is Not An Appropriate Vehicle For

Determining The Meaning Of “Abandonment”

Under Admiralty Law.

Virginia urges the Court to grant review in this case

to determine the meaning of “abandonment” under the

Abandoned Shipwreck Act of 1987, Pub. L. No. 100-298

(1988) (codified at 43 U.S.C. § 2101-2106 (1994)), and

general admiralty law. See Pet. 8-25. In particular, Virginia

urges the Court to grant review in order to decide whether

abandonment may be implied from inaction over a period of

time, or instead requires an express act by the owner of the

sunken vessel. Pet. 10-15.

There are multiple reasons why this case is not an

appropriate vehicle for deciding that issue. First, this case

involves sunken warships of a sovereign nation, which may

be abandoned only by express act of the sovereign even if

privately-owned shipwrecks are subject to an implied

abandonment standard. Second, the 1902 Treaty between the

United States and Spain requires the application of an

express abandonment standard in this case. And third, the

choice of a legal standard does not ultimately matter in this

case, because the vessels at issue were not abandoned even

under an implied abandonment standard.

a. This Case Involves Sovereign Vessels.

The Juno and La Galga were frigates in the Spanish

Navy. Indeed, both ships remain on the Spanish Naval

Registry to this day. Even if sunken private vessels may be

subject to a standard of implied abandonment, there are

strong arguments that vessels owned by a sovereign nation —

and, especially, warships of a sovereign nation — should

-10-

remain property of the sovereign absent an express act of

abandonment.”

The United States Government takes the position that

warships of a sovereign nation remain the property of the

sovereign absent an express act of abandonment. The United

States, in addition to appearing as an amicus curiae in

support of Spain, has submitted formal statements of the

foreign and military policy of the United States. App., infra,

10a, 20a. The Statement by the Department of Defense,

signed by the Judge Advocate General of the Navy, sets forth

the interest of the United States in honoring the principle that

a nation’s sunken naval vessels are sovereign property that

may not be disturbed without express authorization from the

sovereign. App., infra, 23a. The declaration observes that

more than 1,500 sunken U.S. naval vessels and countless

sunken aircraft are located around the world, and that it is

important that “the United States and its constituent States

[grant] reciprocal recognition of the sovereign title and

ownership interests of other sovereign governments in their

wrecks in United States waters.” Jd. The State Department

submission, signed by the Deputy Assistant Secretary of

State for Oceans, Fisheries and Space, declares that it is “the

policy of the United States Department of State to recognize

claims by foreign governments . . . to ownership of foreign

. The legislative history of the Abandoned Shipwreck Act

indicates that sovereign vessels are treated differently from other vessels.

See Pet. App. 10 (quoting H.R. Rep..No. 100-514(II), at 13 (1988))

(“{T]Jhe U.S. only abandons its sovereignty over, and title to, sunken U.S.

warships by affirmative act; mere passage of time or lack of positive

assertions of right are insufficient to establish such abandonment... .

The same presumption against abandonment will be accorded vessels

within the U.S. territorial sea that, at the time of their sinking, were on the

non-commercial service of another State.”). See also Brief of the United

States, at 35 & n.25, California v. Deep Sea Research, Inc., 523 U.S. 491

(1998) (No. 96-1400).

«

warships sunk in waters of the United States.” App., infra,

12a. The statement further declares that “i]t is in the foreign

policy interest of the United States to honor the request of the

Government of Spain” in this case that its sunken warships

not be disturbed. Jd. at 14a. Because this case involves a

special kind of shipwreck — warships of a sovereign nation —

there is no occasion for the Court to consider whether

shipwrecks of all kinds are subject to a rule of implied

abandonment.

b. An Express Abandonment Standard Is

Required Under The 1902 Treaty Between

the United States and Spain.

The court of appeals held that “express abandonment

. is required [under the terms] of the 1902 Treaty of

Friendship and General Relations between the United States

and Spain.” Pet. App. 13. The 1902 Treaty provides that

“[iJn cases of shipwreck, . . . each party shall afford to the

vessels of the other . . . the same immunities which would

have been granted to its own vessels in similar cases.” 33

Stat. 2105, 2110-11, 11 Bevans 628, 632. The USS.

Department of State informed the courts below “‘that this

provision is unique’ in that no other ‘friendship, commerce

and navigation (FCN) treaty of the United States contains

such a broadly worded provision applying to State ships.’”

Pet. App. 13-14 (quoting U.S. Department of State,

Statement of Interest § 13 (App., infra, 13a)).

Both the United States and Spain agree that the

Treaty provides that Spanish ships sunk in U.S. territorial

waters are accorded the same immunity as U.S. ships sunk in

U.S. waters. As the court of appeals noted, U.S. vessels

“may only be abandoned by an express, unambiguous, and

affirmative act.” Pet. App. 14 (citing U.S. Const. art. IV § 3;

United States v. California, 332 U.S. 19, 39-40 (1947);

United States v. Steinmetz, 973 F.2d 212, 222 (3d Cir.

1992)). The court of appeals appropriately concluded: “We

ae.

cannot therefore adopt an implied abandonment standard in

the face of treaties and mutual understandings requiring

express abandonment. Such a standard would supplant the

textual framework of negotiated treaties with an

unpredictable judicial exercise in weighing equities.” Pet.

App. 15.

The court of appeals’ interpretation of the 1902

Treaty is plainly correct. In any event, the lower court’s

resolution of this narrow issue, on which there is no circuit

conflict, warrants no further review.

¢. Spain Would Retain Ownership Of The

Vessels At Issue In This Case Even Under

An Implied Abandonment Standard.

The court of appeals concluded that “even a finding

of implied abandonment would be improper” in the

circumstances of this case. Pet. App. 25. As the court of

appeals noted, the Kingdom of Spain strove to protect La

Galga after she sank, maintained the ship on its Naval

Registry, and “vigorously asserted” a claim of ownership

when Sea Hunt commenced its in rem admiralty action. Jd.

The court of appeals also noted that the technology needed to

find and recover the wreck only recently became available.

Id.

The court of appeals’ resolution of this fact-bound

issue is correct and warrants no further review. Because the

result in this case ultimately does not depend on whether the

court applies a standard of express abandonment or implied

abandonment, there is no reason for this Court to address that

issue in this case.

* * ¥

In sum, before reaching the question whether sunken

vessels may be abandoned by implication, the Court would

have to (1)overturn the court of appeals’ fact-bound

determination that there has been no abandonment of the

34%

vessels at issue in this case under an implied abandonment

standard; (2) overturn the court of appeals’ interpretation of

the 1902 Treaty between the United States and Spain (a

narrow issue on which the parties to the treaty are in

agreement) and (3) consider whether warships of a sovereign

nation are subject to an express abandonment standard even

if privately-owned shipwrecks are subject to a less-

demanding implied abandonment standard. Not one of these

issues merits review. And there is no reason to think that this

Court would disagree with the court of appeals’ weil-

reasoned resolution of any of these issues, let alone all of

them.

2. The Court of Appeals’ Decision Does Not Create A

Circuit Conflict.

Virginia asserts (Pet. 10-15) that the courts of appeals

are in conflict over the question whether abandonment of

shipwrecks may be implied rather than express. The court of

appeals’ decision in this case does not conflict with any

decision of another court of appeals. Moreover, any

disagreement among the circuits is less sharply defined, and

less significant, than is suggested by Virginia’s Petition.

As the court of appeals explained, the Fourth Circuit

has not ruled out implied abandonment of a shipwreck in all

circumstances. The Fourth Circuit has held that “a court may

infer an abandonment” when the property is “an ancient and

long-lost shipwreck.” Columbus-America, 974 F.2d at 464-

65 (emphasis added). The Fourth Circuit has declined to

draw an inference of abandonment, however, when the owner

appears in the in rem action and asserts a claim of ownership.

Id. In reaching this conclusion, the Fourth Circuit has relied

on the established rule that when an owner asserts a claim to

property that was involuntarily taken from his control, “the

law is hesitant to find an abandonment.” Pet. App. 12

(quoting Columbus-America, 974 F.2d at 467-68).

‘th.

As the Fourth Circuit observed, no other court of

appeals has employed an implied abandonment standard

against an owner that has appeared in an in rem action and

asserted a claim to its property. Pet. App. 12. For that

reason, the decision in this case does not conflict with any

decision of any other court of appeals.’

In addition, as noted above, this case involves

warships of a sovereign nation rather than privately-owned

vessels. Because sovereign vessels are subject to an express

abandonment standard even if privately-owned vessels may

be subject to an implied abandonment standard, decisions

holding that private vessels have been impliedly abandoned

do not conflict with decisions, such as this one, applying an

express abandonment standard to a sovereign warship.

Even as to privately-owned vessels, the Fourth

Circuit’s decision in Columbus-America does not represent a

sharp departure from prior admiralty law or the decisions of

other circuits. The Sixth Circuit has observed that “the

apparent divergence of authority” between its decisions and

those of the Fourth Circuit “masks a degree of underlying

agreement.” Fairport International Exploration, Inc. v. The

Shipwrecked Vessel Known as the Captain Lawrence, in rem,

177 F.3d 491, 499 (6th Cir. 1999). The Sixth Circuit’s

standard, like the Fourth Circuit’s, “reveals a uniform

concern that courts impose a high burden on those who argue

that an owner abandoned property that sank against his will”

. Petitioners and their amici repeatedly cite decisions in which the

owner of the vessel did not come forward to contest the claim of

abandonment. See Sea Hunt Pet. 16-17; Virginia Pet. 17; Professional

Shipwreck Explorers Ass’n Amici at 13-14. In those cases, the courts

may infer abandonment from the owner’s failure to appear and therefore

need not address whether express abandonment has been shown. These

decisions have no bearing on whether express or implied abandonment is

appropriate when, as here, the owner has appeared.

« £55

and requires parties alleging abandonment to meet “the

exacting burden of proof admiralty law imposes on those

who allege abandonment.” Jd at 499-500. Similarly, the

First, Fifth, and Ninth Circuits have inferred abandonment

only in cases in which the original owner failed to appear and

assert a claim of ownership. See 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, 567 (5th Cir.

1981) (original owner does not lose title “except in

extraordinary cases”); see also Yukon Recovery, L.L.C. v.

Certain Abandoned Property, 205 F.3d 1189, 1194 (9th Cir.)

(upholding original owner’s claim to cargo), cert. denied,

121 S. Ct. 62 (2000) (No. 99-1958).4

In sum, this case differs from other decisions of

courts of appeals in that the Kingdom of Spain, a sovereign

nation, appeared in the admiralty court and asserted a claim

to its sovereign vessels. No court of appeals’ decision has

applied a standard of implied abandonment in similar

circumstances, and therefore the Fourth Circuit’s decision in

this case does not create a circuit conflict.

3. The Additional Issues Raised in Sea Hunt’s

Petition Merit No Further Review.

Sea Hunt raises two additional issues that plainly do

not warrant this Court’s attention. First, Sea Hunt asserts

4

The petition for a writ of certiorari in Columbus-America

Discovery Group v. Atlantic Mutual Ins. Co., 203 F.3d 291 (4th Cir.

2000), urged the Court to grant review to resolve an asserted circuit

conflict over whether abandonment may be implied as well as express.

This Court recently denied the petition. 121 S. Ct. 277 (2000) (No. 99-

1935).

<i.

(Sea Hunt Pet. 9) that “the Fourth Circuit is providing Spain

a sovereign immunity and/or exemption from a direct

proceeding Jn Rem against all vessels originally owned by

Spain,” contrary to this Court’s decision in California v.

Deep Sea Research, Inc., 523 U.S. 491 (1998). Sea Hunt

simply misreads this Court’s decision in Deep Sea Research.

That decision holds that a State’s immunity from suit under

the Eleventh Amendment does not extend to an in rem

proceeding, at least if the res is not in the actual possession

of the State. Assuming that the holding in Deep Sea

Research applies with full force to a sovereign nation, the

court of appeals’ decision in this case is entirely consistent

with Deep Sea Research. Spain did not contend that the

district court lacked authority to determine ownership of the

shipwrecks. Instead, Spain appeared before the court and

submitted a claim to the res. The courts below considered

Spain’s proofs of ownership, evaluated Petitioners’ counter-

evidence, and ruled in favor of Spain on the merits. That is a

very different matter from holding that the sovereign

immunity of the Kingdom of Spain extends to in rem

proceedings, or that Spain is “exempt” from in rem

proceedings in admiralty. Sea Hunt’s effort to manufacture a

conflict with this Court’s decision in Deep Sea Research is

baseless.

Second, Sea Hunt’s petition includes a lengthy and

confused discussion of the law of salvage. See Sea Hunt Pet.

19-25. The court of appeals rejected Sea Hunt’s claim to a

salvage award in a footnote at the end of its opinion. Pet.

App. 27 n.2. The court of appeals agreed with the district

court that “[iJt is the right of the owner of any vessel to

refuse unwanted salvage,” and that “Sea Hunt had prior

knowledge of Spain’s ownership interests and had reason to

expect Spain’s ownership interests and refusal to agree to

37.

salvage activity.” Jd° The lower court’s resolution of Sea

Hunt’s salvage claim is fact-bound, does not conflict with

any decision of another court of appeals, and reflects the

long-settled doctrine that the owner of a vessel, including a

long-sunken vessel, has the right to reject a salvor’s services.

See, e.g., Lathrop v. Unidentified Wrecked and Abandoned

Vessel, 817 F. Supp. 953, 964 (M.D. Fla. 1993); Bonifay v.

The Steamship Paraporti, 145 F. Supp. 879, 882 (E.D. Va.

1956); The Pohatcong, 77 F. 996, 997 (S.D.N.Y. 1896); New

Harbor Protection Co. v. Steamer Charles P. Chouteau, 5

F. 463, 464 (D. La. 1881); The Yucatan, 30 F. Cas. 893, 895-

96 (S.D. Fla. 1847); cf Klein v. Unidentified Wrecked and

Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th Cir.

1985). No further review is warranted.

4. The Foreign Policy Implications Of This Case

Counsel Against Further Judicial Proceedings.

“Our Constitution charges the political branches with

the conduct of foreign affairs.” Pet. App. 16 (citing Chicago

& Southern Air Lines, Inc. v. Waterman SS Corp., 333 U.S.

103, 109-10 (1948)). This case involves relations between

the United States and the Kingdom of Spain, the

interpretation of a treaty signed by both sovereigns, the

shared understanding of Spain and Great Britain as to the

terms of their 1763 Peace Treaty, and principles of

international comity. The court of appeals recognized that

“[t]he United States ‘is the owner of military vessels,

thousands of which have been lost at sea, along with their

crews. In supporting Spain, the United States seeks to insure

that its sunken vessels and lost crews are treated as sovereign

ships and honored graves, and are not subject to exploration,

; Amici Professional Shipwreck Explorers Ass’n et al. argue that

a “non-possessing sovereign” cannot refuse salvage (Br. 5-6). The lower

courts, however, correctly rejected this distinction as unsupported by

precedent. See Pet. App. 27 n.2; App., infra, 3a.

= ee

or exploitation, by private parties seeking treasures of the

sea.”” Pet. App.25-26 (quoting Brief of the United States as

Amicus Curiae, at 1). As the court of appeals recognized,

“matters as sensitive as these implicate important interests of

the executive branch.” Pet. App. 26.

The court of appeals noted that “[t]he express

abandonment standard is regularly applied by the executive

branch in dealing with foreign vessels,” and concluded that

“i]t is simply not for [the courts] to impose a looser standard

that would interfere with this long standing political

judgment in sensitive matters of international law.” Pet.

App. 16. See also Republic of Mexico v. Hoffman, 324 US.

30, 35 (1945) (It is “not for the courts to deny an immunity

which our government has seen fit to allow.”). In

interpreting the relevant treaty provisions, moreover, the

Fourth Circuit followed the principle that “‘[wJhen the

parties to a treaty both agree as to the meaning of a treaty

provision, and that interpretation follows from the clear

treaty language, we must, absent extraordinarily strong

contrary evidence, defer to that interpretation.”” Pet. App. 15

(quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S.

176, 185 (1982)). The Fourth Circuit concluded its opinion

by reiterating that appropriate deference to the executive

branch prevents a court from “just turn{ing] over the

sovereign shipwrecks of other nations to commercial salvors

where negotiated treaties show no sign of an abandonment,

and where the nations involved all agree that title to the

shipwrecks remains with the original owner.” Pet. App. 26.

The same considerations of deference to the executive

branch weigh against further judicial proceedings in this

case. As the court of appeals recognized, the Kingdom of

Spain “vigorously asserted its ownership rights in this

proceeding,” and “[nJothing in the law of admiralty suggests

o 15

that Spain has abandoned its dead by respecting their final

resting place at sea.” Id.°

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted,

James A. Goold

Counsel of Record

Robert A. Long, Jr.

Keith A. Noreika

Covington & Burling

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2401

(202) 662-6000

Attorneys for Respondent

January 2001

The United States filed briefs as amicus curiae in support of the

Kingdom of Spain in both the district court and the court of appeals. The

Kingdom of Spain recognizes that the usual practice of the United States

is not to file an amicus brief at the petition stage without an invitation

from the Court. In view of the foreign policy and military implications of

this case, the Kingdom of Spain respectfully requests that if the Court

were inclined to grant the petitions, it invite the Solicitor General to file a

brief expressing the views of the United States before granting review.

Soe St ae a. a

ev eee mere ras Le ina tinplate eared oagereantereeter Cee en Te

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA,

NORFOLK DIVISION

SEA HUNT, INC.,

Plaintiff,

v.

THE UNIDENTIFIED SHIPWRECKED VESSEL OR

VESSELS, etc. in rem, et al.,

Defendants.

Case No. 2:98cv281

June 25, 1999

OPINION AND ORDER

Before CLARKE, District Judge.

This case is currently before the Court on the issue of

Plaintiff Sea Hunt, Inc.’s (“Sea Hunt”) entitlement to a

Salvage award for locating and salvaging articles from the

JUNO, a Spanish frigate which sank off the coast of Virginia

in 1802.

By Order of April 27, 1999, this Court held that the

Kingdom of Spain (“Spain”) had never abandoned the wreck

of the JUNO and retained ownership of the remains of the

vessel. See Sea Hunt, Inc. vy. Unidentified Shipwrecked

Vessel or Vessels, 47 F. Supp. 2d 678, 1999 WL 257748

la

2a

(E.D. Va. 1999).' By the same Order, this Court directed the

parties to the case to submit briefs on the issue of whether

Sea Hunt should receive a salvage award for services

conducted on JUNO even though Spain retained ownership

of the wreck. Pursuant to this Court’s Order of June 7, 1999,

the Court allowed the parties to file reply briefs on the same

issue. All briefs having now been received and considered,

the Court FINDS that because Spain communicated to Sea

Hunt its desire that the wreck of JUNO should not be

disturbed, Sea Hunt is not entitled to any award for services

performed in contradiction to Spain’s wishes.”

Although the “law of salvage presumes that the owner

desires the salvage service,” R.M.S. Titanic, Inc. v. Haver,

171 F.3d 943, 961 (4th Cir. 1999), “potential salvors do not

have an inherent right to save distressed vessels.” Lathrop v.

Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp.

953, 964 (M.D. Fla. 1993). A salvage award “may be denied

if the salvor forces its services on a vessel despite the

rejection of them by a person with authority over the vessel.”

Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695

F.2d 893, 901 (Sth Cir. 1983). The doctrine of rejection of

salvage is an ancient one, and has been recognized by many

courts. See, e.g., The YUCATAN, 30 F. Cas. 893 (S.D. Fla.

1847); The CHOTEAU, 4 Woods 71, 9 F. 211 (C.C.E.D. La.

1881); The POHATCONG , 77 F. 996 (S.D.N.Y. 1896); The

INDIAN, 159 F. 20 (C.C.A.5 1908); Legnos v. M/V OLGA

; This Court also held that LA GALGA, a Spanish frigate which

sank in 1750, had been explicitly abandoned by Spain.

_ The parties raised a number of issues in their briefs, including

whether Spain is entitled to sovereign immunity, and whether the wreck

of JUNO should receive special treatment as a war grave. However, as

the Court previously declined to address the nature of JUNO as a military

vessel, and because common law principles are sufficient for decision on

this matter, these issues will not be discussed.

a

3a

JACOB, 498 F.2d 666 (Sth Cir. 1974); Consolidated Towing

Co. v. Hannah, 509 F. Supp. 1031 (W.D. Mo. 1981). This

doctrine has also been previously recognized by this Court.

See Bonifay v. The PARAPORTI, 145 F. Supp. 879 (E.D. Va.

1956) (parties attempting to salvage vessel contrary to

owner’s instructions were “gratuitous intermeddlers” and

were entitled to no award). While a party may salvage a

vessel without the express permission of the vessel’s master

or owner, Merritt & Chapman Derrick & Wrecking Co. v.

United States, 274 U.S. 611, 613, 71 L. Ed. 1232, 47 S. Ct.

663 (1927) (absent express consent, salvage award may be

granted when “under the circumstances, any prudent man

would have accepted” the services), an unequivocal rejection

of salvage services will normally be respected. New Harbor

Protection Co. v. The CHARLES P. CHOUTEAU, 5 F. 463,

464 (D. La. 1881) (“If the master of a burning vessel prefers

to allow her to burn rather than to permit outside parties to

extinguish the flames, he may do so.”).

Sea Hunt has argued in its briefs that a rejection of

salvage services may only be accomplished when the owner

or master is in actual possession of the vessel and in a

position to rescue the property. While it is true that in most

cases of rejection of salvage, the owner or master is in

possession of the vessel, the Court finds that possession of

the vessel in these cases is merely a circumstance of the

rejection, and not a requirement. The Court has found no

statement of law which requires that the master of a vessel be

present to effectuate a rejection of salvage. In fact, the right

to reject salvage has been recognized in cases involving long-

lost shipwrecked vessels. See Klein v. Unidentified Wrecked

and Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th

Cir. 1985) (salvage award denied where the owner of the

vessel “may not even have desired for the property to be

rescued.”); see also Platoro Ltd, Inc. v. Unidentified

Remains of a Vessel, 695 F.2d 893, 901 (Sth Cir. 1983);

Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817

ta

F. Supp. 953, 964 (M.D. Fla. 1993); Jupiter Wreck, Inc. v.

Unidentified, Wrecked & Abandoned Sailing Vessel, 691

F. Supp. 1377, 1389 (S.D. Fla. 1988).

In Platoro and Lathrop, the courts adopted the idea of

“constructive rejection” of salvage. Constructive rejection

“bars an award if the rejection was reasonably understood by

a salvor.” Lathrop, 817 F. Supp. at 964. In Lathrop, the

wrecked vessel subject to salvage was located in submerged

land belonging to the State of Florida and dedicated to the

United States for use as a national park. The Lathrop court

determined that the salvor was not entitled to an award

because, based on the wreck’s location within a national

park, the salvor “should have known that the State of Florida,

the presumed owner of the submerged lands and any property

embedded in the soil, might refuse [the salvor’s] offer to

excavate the alleged vessel.” Jd. at 965.

In Platoro, however, a salvage award was grented despite

a claim of constructive rejection. Although the Platoro court

recognized the doctrine of constructive rejection, it found

that in the case of a shipwrecked vessel in the submerged

lands of the State of Texas, it was not reasonable for the

salvors to conclude either that Texas was the owner of the

vessel, or that applicable Texas statutes stated an intent to

reject salvage services. Platoro, 695 F.2d at 902.

In this case, Sea Hunt knew from the outset of this action

that JUNO was a Spanish vessel, see Verified Complaint in

Admiralty in Rem, March, 11, 1998, at { 29, and possibly of

a military character. During the March 11, 1998, hearing

before this Court, Sea Hunt expressed to the Court its

concern that Spain might claim ownership and reject Sea

Hunt’s efforts at salvage:

.. . in the event that the wreck is determined

to not have been abandoned, we would like to

have our salvage rights protected as of today

given the fact that potentially a sovereign

5a

owner could claim that they are refusing

salvage.

See Transcript of Proceedings, March 11, 1998, at 18, lines

14-17 (statement of Mr. Hess). As early as September 24,

1997, more than five months before the filing of the current

in rem action, Sea Hunt was informed during negotiations

with the National Park Service’ that Spain might claim

ownership of the wreck. See Transcript of Proceedings,

September 15, 1998, at 186, lines 17-21 (testimony of

Mr. Benson); Supplemental Brief for the United States as

Amicus Curiae, attachment 2, May 27, 1999. Sea Hunt’s

knowledge of the origin of the wreck and of the potential

claims of Spain lead this Court to believe that Sea Hunt

should have known, and in fact did know, before the filing of

this in rem action that Spain might refuse any salvage efforts

made against JUNO.

In addition, Sea Hunt received express notice from Spain

of Spain’s intent to refuse salvage of JUNO. Sea Hunt filed a

Verified Complaint in Admiralty with this Court on March

11, 1998. In that complaint, Sea Hunt represented to the

Court that, “upon information and belief, one of the

Defendant Shipwrecked Vessel(s) is that of the JUNO, a

Spanish frigate that disappeared in the vicinity of the salvage

sites in 1802.” Verified Complaint in Admiralty in Rem,

March, 11, 1998, at 729. On March 12, 1998, this Court

entered an Order which recognized that Spain might have an

interest in making a claim to the wreck of JUNO, and

directed Sea Hunt to serve Spain with notice of the in rem

action against the wreck. On May 18, 1998, this Court

’ Because the wreck of the JUNO was located in close proximity

to the Assateague Island National Seashore, Sea Hunt entered into

negotiations with the National Park Service to discuss salvage operations

within the National Seashore’s boundaries.

6a

received Spain’s answer to the Verified Complaint and

Spain’s claim of ownership of the wreck.* Attached to the

claim of ownership was a copy of a Verbal Note from the

Spanish embassy in Washington, D.C. to the United States

Department of State, in which Spain stated its wish “that the

remains of these vessels be treated as maritime graves and

that their salvage not be authorized at this time.” Verbal

Note, May 8, 1998, attachment to Claim of Spain as Owner

of Shipwrecks and Contents, May 18, 1998 (translation).

Furthermore, on March 12, 1998, a letter was mailed from

the National Park Service to Sea Hunt’s president, which

notified Sea Hunt that:

Pursuant to your request, NPS [the National

Park Service] contacted the Government of

Spain and met with members of the Embassy

on November 13, 1997. On February 26,

1998, NPS received a written response from

the Government of Spain. The response states

that the shipwrecks are sovereign vessels,

property of the Government of Spain, and

may not be salvaged or disturbed without

authorization.

Supplemental Brief for the United States as Amicus Curiae,

attachment 2, May 27, 1999.° Thus, no later than March 12,

. For various reasons which need not be discussed here, this

answer was later found by the Court to be defective. See Sea Hunt, Inc.

v. Unidentified Shipwrecked Vessel or Vessels, 22 F. Supp. 2d 521 (E.D.

Va. 1998). For the purposes of this Order, however, it is only necessary

to point out that the Verbal Note from Spain was received by Sea Hunt as

of the date of the first defective answer.

' Sea Hunt has previously disputed that Spain was contacted by

the NPS at Sea Hunt’s request. Regardless, as a result of the NPS’

contact with Spain, Sea Hunt was explicitly made aware of Spain’s

refusal of salvage.

7a

1998, Sea Hunt had received an express communication of

refusal of salvage services from Spain.

Sea Hunt argues that in this case, where the wreck of

JUNO is not in a single location but rather scattered about the

ocean floor among several other shipwrecks, it is impossible

to determine if a particular artifact belongs to JUNO without

first salvaging the <rtifact. In this regard, Sea Hunt refers the

Court to the Ninth Circuit’s decision in Tidewater Salvage,

Inc. v. Weyerhaeuser Co., 633 F.2d 1304 (9th Cir. 1980). In

Tidewater, a dispute arose when several floating logs

belonging to Weyerhaeuser were salvaged by Tidewater, a

professional salvor, despite Weyerhaeuser’s express

communication that it did not want Tidewater to salvage its

logs. On an issue of first impression for the Ninth Circuit,

the court stated the following rule:

An owner, acting as a prudent person, may

refuse salvage assistance by completed

communication to the prospective salvor at

any time before the act of salvage. A refusal

of assistance . . . is not completed, however,

until the salvor, acting as a reasonable person,

has determined, or could determine, the

ownership of the object of salvage.

Id. at 1307. Not wishing to “discourage salvage as to all

floating logs,” the court found that:

As applied to this case, there was no

completed communication as to any one

floating log until Tidewater, after taking the

log aboard, discerned the Weyerhaeuser

ownership.

Id. Therefore, since Tidewater had already completed

salvage before the communication of refusal was completed,

the court affirmed the grant of a salvage award for the

floating logs. Jd.

8a

This Court is not persuaded by Tidewater’s reasoning. In

Tidewater, the court was dealing with floating logs, and not

with an inert sunken ship. The plaintiff and defendant in

Tidewater had to act very promptly, whereas in the case at

bar, Sea Hunt had time to contact Spain to determine Spain’s

wishes before beginning salvage. While the Court

recognizes the difficulty of determining the origin of a

particular artifact without first bringing it out of the water to

examine it, a holding in this case similar to the Ninth

Circuit’s in Tidewater would in effect negate the right to

refuse salvage, and wouid work to “subordinate the rights of

the owner to those of the salvor.” Jupiter Wreck, Inc. v.

Unidentified, Wrecked & Abandoned Sailing Vessel, 691

F. Supp. 1377, 1389 (S.D. Fla. 1988). To allow an award for

artifacts recovered under Tidewater’s reasoning would

provide an incentive for a salvor to purposefully conduct

salvage operations despite the owner’s refusal. Furthermore,

in a treasure salvage case, it could encourage potential

salvors to intentionally remain ignorant of the ownership of a

wrecked vessel in order to maintain salvage rights. That is

certainly not in harmony with the purposes of salvage law.

Therefore, this Court declines to apply the Ninth Circuit’s

reasoning in Tidewater.

It is the right of the owner of any vessel to refuse

unwanted salvage. Sea Hunt knew before bringing this

action that the JUNO was a Spanish ship and that Spain

might make a claim of ownership and decline salvage.

Before conducting any salvage operations pursuant to this

Court’s Orders, Sea Hunt received an express communication

of refusal of salvage from Spain. Because Sea Hunt had

prior knowledge of Spain’s ownership interests and had

reason to expect Spain’s ownership claim and refusal to

agree to salvage activity on JUNO, Sea Hunt can not be

entitled to any salvage award. The Court realizes that this

holding places a substantial burden on Sea Hunt, and places

on potential salvors the risk of expending significant time

9a

and resources in salvaging sunken objects for which they will

not receive compensation. However, such is the risk inherent

in treasure salvage.

For the foregoing reasons, this Court FINDS that Sea

Hunt is entitled to no salvage award for salvage services

previously conducted on JUNO, and Sea Hunt is DIRECTED

to refrain from any further salvage efforts. Sea Hunt is

ORDERED to deliver to Spain any artifacts salvaged from

JUNO which are currently in Sea Hunt’s possession. Should

Sea Hunt inadvertently salvage artifacts from JUNO during

the course of other salvage operations in the designated

salvage areas, such artifacts will be turned over to Spain as

owner of JUNO, and no salvage award will be required.

The Clerk is DIRECTED to send a copy of this Opinion

and Order to all counsel.

IT IS SO ORDERED.

/s/ J. Calvitt Clarke, Jr.

United States District Judge

June 25, 1999

Norfolk, Virginia

10a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

SEA HUNT, INC.,

Plaintiff,

v.

THE UNIDENTIFIED SHIPWRECKED VESSEL OR

VESSELS, their apparel, tackle, appurtenances, and cargo

located within coordinates 38 degrees 01°36” North Latitude,

75 degrees 14’3” West Longitude; 37 degrees 57°21” North

Latitude, 75 degrees 13°00” West Longitude; 38 degrees

01°36” North Latitude, 75 degrees 13°14” West Longitude;

37 degrees 57°33” North Latitude, 75 degrees 17°14” West

Longitude

and/or

37 degrees 55°00” North Latitude, 75 degrees 19°18” West

Longitude; 37 degrees 54’09” North Latitude, 75 degrees

17°00” West Longitude; 37 degrees 51’21” North Latitude,

75 degrees 18°52” West Longitude, 37 degrees 51°20” North

Latitude, 75 degrees 21’05” West Longitude, in rem,

Defendant(s).

Case No. 2:98cv281

STATEMENT OF INTEREST OF THE

UNITED STATES DEPARTMENT OF STATE

I, Ambassador Mary Beth West, declare and say as

follows:

1. I am the Deputy Assistant Secretary of State

responsible for oceans affairs and have served in that position

since October 1996. My current title is Deputy Assistant

Secretary of State for Oceans, Fisheries and Space. I make

this declaration on the basis of personal knowledge or

information made known to me in the course of my official

lla

duties. This declaration is submitted on behalf of the United

States in the above-captioned case.

2. In my capacity as Deputy Assistant Secretary of State

for Oceans, Fisheries and Space, I am responsible for United

States policy pertaining to international maritime issues,

including, but not limited to, the subject of sovereign

warships and recognition of title thereto. As an attorney who

previously served as an Attorney-Adviser in the Department

of State’s Office of the Assistant Legal Adviser for Oceans

and Fisheries Affairs, I am also familiar with the United

States position on the international law of the sea pertaining

thereto.

3. In my current position I have been accorded the rank

of Ambassador. As an attorney, I handled international legal

issues in the State Department’s Office of the Legal Adviser

for over 12 years. I was also a visiting Professor of Law at

the University of New Mexico School of Law for four years.

4. It is the position of the United States that, under

customary international law, sovereign warships and their

remains which are identifiable as to the flag State of origin

are, unless captured prior to their sinking in armed conflict,

entitled to recognition and protection as property of the flag

State, unless title to the vessel has been expressly abandoned

by the flag State of origin.

5. For example, in 1987 the Department of State

asserted to the Government of France that title to the warship

ALABAMA of the former Confederate States of America,

which had been sunk in 1864 by USS KEARSARGE in

battle off Cherbourg, France, vested in the United States

Government and that the United States had never abandoned

title thereto. In 1989 the Government of France abandoned

its assertion of title to the ALABAMA, which was based on

the fact that the wreck was found on the seabed within the

French territorial sea; in 1989 France conceded that title to

the ALABAMA was with the United States.

12a

6. In 1997, the Government of France asserted its title to

the warship LA BELLE, the flagship of Robert Cavelier de la

Salle during his expedition in the Gulf of Mexico, which

sank in 1686 and was discovered in July 1995 in Matagorda

Bay south of Texas. The Government of France provided

documentary evidence which established that the ship was a

warship of King Louis XIV of France entrusted to Monsieur

Cavelier de la Salle as part of an official mission on behalf of

the King of France, title to which the Government of France

has not abandoned. The United States Government is

prepared to recognize France’s title to the shipwreck of LA

BELLE as part of an international agreement currently under

negotiation with France.

7. In September 1998, the United Kingdom asserted title

to an anchor which fell off the British frigate H.M.S.

CONFIANCE into Lake Champlain during the Battle of

Plattsburgh Bay on September 11, 1814, during the War of

1812, before the warship was captured by the United States.

The United Kingdom authorized the United States to recover

the anchor and place it on historical display at the Lake

Champlain Maritime Museum. The United Kingdom has

asserted its title to other British warships sunk in the 18th,

19th and 20th Centuries and later located in United States

waters. The United States has recognized those claims.

8. The United States recognizes the claims of Germany

to title to Nazi U-boats sunk during World War II and located

in United States waters.

9. As the foregoing examples illustrate, it is the policy

of the United States Department of State to recognize claims

by foreign governments - such as in this case by the

Government of Spain regarding the warships JUNO and LA

GALGA - to ownership of foreign warships sunk in waters

of the United States without being captured, and to recognize

that title to such sunken warships is not lost absent express

abandonment by the sovereign.

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10. Further, I have examined the provisions of the Treaty

of Friendship and General Relations between the United

States of America and Spain signed at Madrid July 3, 1902,

33 Stat. 2105, Treaty Series 422, 11 Bevans 628. The

records of the Treaty Office of the Department of State show

that this treaty entered into force April 14, 1903, and remains

in force between Spain and the United States.

11. Article X of this treaty provides:

In cases of shipwreck, damages at sea, or

forced putting in, each party shall afford to the

vessels of the other, whether belonging to the

State or to individuals, the same assistance

and protection and the same immunities which

would have been granted to its own vessels in

similar cases.

(Emphasis added.)

12. Through its Embassy’s Diplomatic Note No. 43/98,

dated May 8, 1998, Spain has requested the United States to

ensure recognition of Spain’s ownership of these wrecks and

associated artifacts, which have not been abandoned by

Spain, to ensure that the remains of these vessels are treated

as maritime graves, and to ensure that their salvaging not be

authorized at this time.

13. Article X, by the broad scope of its terms (“in cases

of shipwreck”), is applicable to ships sunk before as well as

after 1902. Because it is not expressly limited to vessels

which might sink in the future, under its literal terms, it

therefore applies to vessels already sunk in 1902 that

otherwise come within the terms of Article X. Its

application, however, is necessarily prospective. I

understand that this provision is unique in that no other treaty

of friendship, commerce and navigation (FCN) treaty of the

United States contains such a broadly worded provision

applying to State ships entitled to sovereign immunity. It

l4a

should be noted that the comparable provision in the 1795

Treaty of Friendship, Limits and Navigation between Spain

and the United States, 8 Stat. 138, T.S. 325, 11 Bevans 516,

article X, does not expressly mention State ships.

14. It is in the foreign policy interest of the United States

to honor the request of the Government of Spain. It is the

opinion of the undersigned that Article X requires application

of the principles of sovereign ownership (“the same ...

protection and the same immunities”), which exist under

customary international law, as set forth above. Further,

Article X imposes on the United States the responsibility to

afford to these Spanish vessels the same assistance and

protection and the same immunities which would be granted

to sunken United States warships in the same location.

15. It is the view of the U.S. Department of State that

U.S. domestic law is consistent with the customary

international law rule that title to sunken warships may be

abandoned only by an express act of abandonment. Under

the Constitution of the United States as interpreted by the

Courts of the United States, it cannot be presumed that the

U.S. Government has abandoned its sunken warships.

16. The Legislative and Executive Branches of the

United States Government have also acted in accordance

with the view that title to sunken warships may be abandoned

only by an express act of abandonment. Through the

Abandoned Shipwreck Act, 43 U.S.C. sec. 2101 ef seq.

(1994) [“ASA”], the United States asserted title to certain

abandoned shipwrecks (sec. 2105(a)) and transferred said

title to the States (sec. 2105(c)). In providing the views of

the Department of State to the Chairman of the House

Committee on Merchant Marine and Fisheries on S. 858,

entitled the “Abandoned Shipwreck Act of 1987”, the

Assistant Secretary of State for Legislative Affairs wrote “the

U.S. only abandons its sovereignty over, and title to, sunken

U.S. warships by affirmative act; mere passage of time or

15a

-

lack of positive assertions of right are insufficient to establish

such abandonment.” (Letter of J. Edward Fox to the Hon.

Walter B. Jones, Feb. 19, 1988, reprinted in House Rep. 100-

514, Part 2, 100th Cong., 2d Sess., at 13.) The House

Committee on Interior and Insular Affairs agreed in its report

No. 100-514, Part I, pp. 3-4, Mar. 14, 1988 (“The Committee

notes that the United States only abandons its sovereignty

over, and title to, sunken U.S. warships by affirmative act.

Passage of time or lack of positive assertions of right are

insufficient to establish such abandonment.”). These

limitations are included in the National Park Service’s

Abandoned Shipwreck Act Guidelines, vol. 54, Federal

Register, No. 63, April 4, 1989, pp. 13642 et seg. passim. In

consonance with the foreign policy and treaty responsibilities

of the United States as stated above, the term “abandoned”

when applied in reference to both foreign and U.S. warships

is to be given its customary meaning in both international

and domestic law, as requiring an express abandonment.

Thus foreign warships which have not been expressly

abandoned are outside the purview of the ASA.

17. In light of the foregoing, the United States

recognizes:

a. the international law rule that warships and their

associated artifacts, whether or not sunken, are entitled to

sovereign immunity.

b. that sunken warships are historical artifacts of special

importance and entitled to special protections; that many

have unique histories making them part of their country’s

traditions; and that they may be the final resting places of

persons who died in the service of their nations.

c. that the practice of nations confirms the well-

established rule of international law that title to such vessels

is lost only by an express act of abandonment, gift or sale by

the sovereign in accordance with relevant principles of

international law and the law of the flag State governing

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abandonment of government property, or by international

agreement or by capture or surrender during battle before

~sinking.

d. that, absent an express act of abandonment, a coastal

State (such as the United States) does not acquire any right of

ownership to a sunken warship by reason of its being located

on or embedded in the sea-bed over which it exercises

sovereignty or jurisdiction, and a State of the United States

does not acquire any right of ownership to a sunken warship

by reason of its being located on or embedded in the sea-bed

to which the State was given certain rights by the Submerged

Lands Act, 43 U.S. Code sec. 1301 et seqg., and the

Abandoned Shipwreck Act, 43 U.S. Code sec. 2101 et seq.

(1994), although access to such vessels is subject to coastal

State control in accordance with international law.

e. that, absent an express act of abandonment, no person

or State may salvage or attempt to salvage sunken warships

or their associated artifacts, wherever located, without the

express permission of the sovereign flag State, whether or not

the vessel is a war grave.

f. that sunken warships containing crew remains are

entitled to special respect as graves and must not be disturbed

without the explicit permission of the sovereign.

18. Adherence to these principles is of great importance

to the United States, which has nearly 3,000 sunken warships

located around the globe, some 1,300 in U.S. waters and over

1,500 in foreign and international waters. If the United

States does not grant such protection and immunities to U.S.

or foreign warships sunk in its own waters, it would expect

difficulties in seeking those same protections and immunities

for sunken U.S. warships in foreign or international waters.

In particular, if the United States does not protect the wrecks

of the Spanish warships JUNO and LA GALGA as requested

by Spain it could be expected that Spain would not be

prepared to protect sunken U.S. warships discovered in

17a

Spanish waters. Further, the Congress of the United States

has: recognized that it is in the public interest to preserve our

national maritime heritage. 16 U.S.C. sec. 5401.

19. A previous opinion of the Deputy Legal Adviser of

the Department of State given in 1980 to the same effect,

relating to sunken World War II Japanese warships, appears

in the DIGEST OF UNITED STATES PRACTICE IN

INTERNATIONAL LAW 1980, pages 999-1006 (Marian Nash

Leich ed., Dep’t of State Pub. 9610, 1986).

20. A portion of the memorandum attached to that

opinion (pages 1003-1004) cites a number of older cases, the

oldest of which involved a British frigate sunk in 1781 or

1782 in New York waters, for the proposition that

abandonment of title to warships may be express or implied.

The memorandum also states:

The practice of the U.S. and other

countries in recent years has been to depart

from the earlier view that abandonment of a

warship could be implied by the long passage

of time (the premise, for example, in [the case

involving this 18th Century British frigate]).

Factors such as an increased reluctance to

abandon title to U.S. government property,

including vessels that have become, in many

Situations, the final resting place of military

personnel, as well as the existence of more

sophisticated methods of salvaging vessels

and communicating decisions to abandon

vessels, have in effect resulted in a demise of

the earlier view. In the absence of an express

transfer or abandonment of 2 U.S. warship

sunk in the near past (e.g., in the World War II

era), it should be presumed that title to such

vessels remains in the U.S. Title to vessels

sunk in the more distant past (such as during

18a

the 17th and 18th centuries) would, of course,

still be determined by the more conventional

interpretation of that period.

21. The last sentence of this quotation does not state

current U.S. policy and is not consistent with the current

practice of the United States and other countries. The

procedures for the abandonment of sunken U.S. warships

located outside the territory of the United States, set forth in

10U.S. Code sec. 7305-7308 and 7545 (1994) and

implementing regulations 32 C.F.R. parts 172 and 736

(1997), and for other U.S. vessels in 40 U.S. Code sec. 484(i)

(1994) and 46 U.S. Code App. sec. 1158 (1994), make no

provision for implied abandonment or impose any limitation

as to the age of U.S. property. The practice of the United

States and other countries since 1980 with regard to “vessels

sunk in the more distant past” is now consistent with that

related to “warships sunk in the near past”, ie., their

abandonment is not to be presumed or implied, but must be

express. Accord Gerald J. Mangone, UNITED STATES

ADMIRALTY LAW 225 (Kluwer, 1997) (“U.S. warships, for

example, sunk and untouched for more than a century, will

not be considered as abandoned”).

22. Neither of the two multilateral international treaties

on salvage permit the salvage of sunken warships without the

express permission of the flag State. The 1910 Convention

for the Unification of Certain Rules with Respect to

Assistance and Salvage at Sea (the Brussels Convention), 37

Stat. 1658, T.S. 576, 1 Bevans, 780, is expressly not

applicable to warships, as Article 14 thereof provides “This

convention does not apply to ships of war or to Government

ships appropriated exclusively to a public service”. The 1989

Convention on Salvage, Sen. Treaty Doc. 102-12, Sen. Exec.

Rep. 102-1, similarly provides in Article 4, State-owned

vessels, that “1. ... this Convention shall not apply to

warships or other non-commercial vessels owned or operated

by a State and entitled, at the time of salvage operations, to

19a

sovereign immunity under generally recognized principles of

international law unless the State decides otherwise.” These

multilateral treaties are but two of the more than 50 treaties

in force that recognize the sovereign immunity of warships.

Most of these treaties are listed in ROACH & SMITH, UNITED

STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS 466-

471 n.45-67 (Kluwer 2d ed. 1996).

I declare under penalty of perjury under the laws of the

United States of America that the foregoing is true and

correct.

Executed this 18th day of December 1998, in Washington,

D.C.

/s/ Mary Beth West

Ambassador Mary Beth West

Deputy Assistant Secretary

(Oceans, Fisheries and Space)

United States Department of State

20a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

SEA HUNT, INC.,

Plaintiff,

v.

THE UNIDENTIFIED SHIPWRECKED VESSEL OR

VESSELS, their apparel, tackle, appurtenances, and cargo

located within coordinates 38 degrees 01°36” North Latitude,

75 degrees 14°33” West Longitude; 37 degrees 57°21” North

Latitude, 75 degrees 13’00” West Longitude; 38 degrees

01°36” North Latitude, 75 degrees 13°14” West Longitude;

37 degrees 57°33” North Latitude, 75 degrees 17°14” West

Longitude and/or 37 degrees 55’00” North Latitude,

75 degrees 19’18” West Longitude; 37 degrees 54°09” North

Latitude 75 degrees 17’00” West Longitude; 37 degrees

51°21” North Latitude, 75 degrees 18°52” West Longitude,

37 degrees 51°20” North Latitude, 75 degrees 21°05” West

Longitude, in rem,

Defendant(s).

Case No. 2:98cv281

STATEMENT OF INTEREST OF THE

UNITED STATES DEPARTMENT OF DEFENSE

Rear Admiral John D. Hutson, Judge Advocate General’s

Corps, United States Navy, deposes and says under penalty

of perjury pursuant to 28.U.S.C. § 1746:

1. I am the Judge Advocate General of the Navy, and I

also serve as the Department of Defense Representative for

Ocean Policy Affairs. I make the statements herein on the

basis of personal knowledge or information made known to

me in the course of my official duties.

2la

2. In my capacity as Judge Advocate General of the

Navy, I am responsible for providing legal and policy advice

to the Secretary of the Navy on admiralty, maritime, and

international law. As the Department of Defense

Representative for Ocean Policy Affairs, I serve as the

central point of contact and represent the Department of

Defense in international and interagency negotiations for

matters involving the law of the sea and related ocean policy.

3. Based on official records, the Naval Historical Center

currently estimates that 3,000 U. S. Navy vessels lie

submerged around the world. Of these, as a very rough

estimate, approximately 1,500 vessels are believed to lie in

the territorial seas of foreign nations or in international

waters. Many of those vessels were lost in World War II.

4. Additionally, approximately 15,000 Navy aircraft lie

submerged around the world. Of these, approximately 5,000

lie in foreign or international waters. The legal issues

regarding salvage of these aircraft are substantially the same

as those involved in vessels and the following arguments

apply to them at least to the degree they do to vessels.

Specific reference to aircraft is omitted in the following

discussion only due to the limited scope of the instant

litigation. The large number of submerged aircraft and the

comparative ease with which submerged aircraft can be

recovered highlights the importance of a correct resolution of

these issues.

5. The protection of sunken or submerged vessels from

unauthorized salvage, theft, dismemberment, destruction, or

disturbance is of high importance to the Department of

Defense. Many such vessels are war graves, or are the final

resting places of United States service members. As such,

submerged vessels are due the same deference as a national

cemetery. Some of the vessels or their equipment or cargo

are of continuing monetary value. A few still contain

classified information or features relevant to the national

22a

security. Many such vessels are of significant cultural

importance, often representing unique repositories of artifacts

emblematic or instructive of national or maritime history.

Many submerged naval vessels also contain unexploded

ordnance, which may pose severe dangers to those visiting

them. Further, many submerged vessels also contain lead,

oil, asbestos, or other materials, which may pose an

environmental hazard if released into the environment

through disturbance of the site. Efforts to exploit these sites

need to be carefully controlled. -

6. United States policy has consistently been that these

sunken sovereign vessels remain the property of the United

States absent the government’s formal, affirmative

abandonment, sale or donation of ownership, pursuant to Act

of Congress and implementing regulations. See, e.g.,

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

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

policy has been sanctioned by federal court rulings, and it

applies regardless of condition, location, or date of sinking of

the vessel. The United States maintains title to such vessels

regardless of the circumstances of the sinking, which may

include intentional scuttling, sinking after the crew has

abandoned ship for lifesaving purposes, or sinking during use

as a target. The policy of perpetual ownership facilitates

government supervision of these wrecks and serves the

United States Government’s and the public’s interests in

preserving the sanctity of service members’ graves,

preserving historic cultural resources, maintaining the

government’s fiscal and property interests, and protecting the

public against the potential dangers posed by unexploded

ordnance and environmental degradation.

7. Consistent with its other interests the Navy’s policy

generally has been to allow open access to U.S. Navy wreck

sites for recreational divers, at the divers’ own risk, so long

as the site is not disturbed — “Look but don’t loot” — and so

23a

long as access does not involve risks to personal safety,

military security, or the environment.

8. It is the policy and practice of the United States to

allow such vessels to remain where they lie until such time as

it is in the government’s interest to recover them in their

entirety or in part or to exploit them for the sake of historical

or archaeological study. Because of limitations at any one

time on the availability of funding to conduct exploration

and/or salvage to curatorial standards and limitations on

technology required to accomplish such operations consistent

with the government’s and public’s long-term interests, it is

the U.S. Government’s practice to cautiously consider any

proposed action with respect to such wrecks. Because of

variables such as water depth, proximity to land, the degree

to which a submerged craft is embedded in the sea bottom,

and the date of the sinking, it is not possible to predict, with

any degree of certainty, just how much it would cost the

United States to salvage or to demonstrate affirmative control

over submerged vessels by physically preventing their

disturbance. To permit salvage of such vessels without the

government’s prior authorization would either put those

wrecks and sites in serious danger or compel the government

to expend immense sums to effect preemptive recovery or to

attempt to enforce affirmative control as the means to deny

salvage. For the United States policy to be effective, United

States title and control with respect to such wrecks must be

of indefinite duration. -

9. Because a large number of wrecked United States

Government vessels are in foreign or international waters, it

is in the United States interest that other sovereign nations

recognize the United States perpetual interests in its wrecks.

A clear inducement for other nations tc do so is the United

States and its constituent States reciprocal recognition of the

sovereign title and ownership interests of other sovereign

governments in their wrecks in United States waters. To that

end, requests of private individuals or entities for permission

24a

to salvage foreign sovereign vessels sunk, without capture, in

United States waters are routinely referred to cognizant

foreign state owners. United States failure to recognize such

foreign sovereign interests will make it less likely that other

nations will recognize the United States interests in its

wrecks in their waters.

10. Reciprocal recognition of sovereign rights is

emerging as customary international practice. For example,

the Department of State negotiated a bilateral agreement with

France regarding the remains of the C.S.S. Alabama, a

Confederate warship that was sunk off Cherbourg in 1864 by

U.S.S. Kearsarge. By that agreement France recognized U.S.

title to the wreck and both nations agreed to cooperate in the

investigation, protection, and eventual recovery of the wreck.

Inherent in such negotiations is the good-faith understanding

that, when roles are reversed, the United States will

recognize appropriate foreign sovereign claims and will take

reasonable measures to protect foreign sovereign property.

11. The Department of Defense has a strong interest in

ensuring that the Juno and La Galga are treated in the same

way that we would want U.S. Navy, U.S. Army, U.S. Air

Force and other submerged sovereign, non-commercial

United States wrecks in foreign waters to be treated.

FURTHER AFFIANT SAYETH NOT.

Executed this 18th day of December 1998, under penalty of

perjury pursuant to 29 U.S.C. § 1746.

/s/ John D. Hutson

JOHN D. HUTSON

Rear Admiral

Judge Advocate General’s Corps

United States Navy

25a

[Embajada de Espafia]

UNOFFICIAL TRANSLATION

VERBAL NOTE

No. 43/98 ©

The Embassy of Spain presents its compliments to the

Department of State and, regarding the request presented by

the company Sea Hunt Inc. before the Federal Court of the

State of Virginia concerning the salvaging of the vessels

believed to be Juno and La Galga, has the honor to inform:

1) The vessels Juno and La Galga and their associated

artifacts are the property of Spain, who has never acted in a

manner that would expressly or tacitly signify their

abandonment. The relevant historical documentation will be

presented shortly.

2) It is Spain’s wish that the remains of these vessels be

treated as maritime graves and that their salvaging not be

authorized at this time.

3) Im accordance with article 10 of the Treaty of

Friendship between Spain and the United States signed in

1903, the Embassy of Spain requests that the competent

authorities take the necessary steps to ensure the above

including those related to the Federal Court of the State of

Virginia involved, and grant to these vessels the same

assistance, protection and immunities that shipwreck

property of the United States would merit.

28a

Her Majesty’s Government would be grateful if the

Department of State could convey these views to the court.

The Embassy avails itself of this opportunity to renew to

the Department of State the assurance of its highest

consideration.

BRITISH EMBASS Y/WASHINGTON (SEAL)

[Dated: July 7, 1999]

29a

[Embajada de Espafia]

UNOFFICIAL TRANSLATION

’ VERBAL NOTE

Num. 60/99

The Embassy of Spain presents its compliments to the

Department of State and in relation to the Department of

State Verbal Note of today, has the honor to refer to the

proceedings concerning the Spanish Navy Frigate “La

Galga” in the United States Distric [sic] Court of the Eastern

Distric [sic] of Virginia. By previous communications, the

Department of State has been informed that H.M. Frigate “La

Galga” was a serving vessel of the Spanish Navy engaged on

active duty at the time of her sinking as escort to a convoy of

vessels en route from Mexico to Spain.

In the above-referenced proceedings, the judge has

entered an order of April 27, 1999 stating that H.M. Frigate

“La Galga” ceased to be the property of Spain by virtue of

the Definitive Treaty of Peace between France, Great Britain

and Spain on 10 February 1763 and in particular the

provisions of Article XX in which an exchange of certain

territory with Great Britain was effected between Spain and

Great Britain. The Embassy of Spain desires by this Note to

affirm to the Department of State Spain’s interpretation and

understanding of the Treaty of 1763 and to express its

agreement with Note Number 41 of Her Britannic Majesty’s

Embassy on the same subject.

In view of the above-referenced order, the Embassy of

Spain reaffirms its view that Article XX of the 763 [sic]

Treaty was not a cession or abandonment of H.M. Frigate

“La Galga” or other shipwrecked vessels of Spain. Article

XX was also not a cession of shipwrecked vessels or other

Se)

30a

state property situated on the seabed, a subject which is not

addressed in Article XX. It should also be noted in this

connection that Article XX includes specific reservation of

continued ownership and rights of removal with respect to

Royal effects and other moveable Royal property, such as

H.M. Frigate “La Galga”. This reservation has no expiration

_ or other time limitation, in contrast to specific time periods

designated for carrying out other undertakings of the Treaty.

The Embassy of Spain further notes that the principle of

sovereignty and non-interference with state vessels was

specifically recognized in the 1667 Treaty of Madrid between

Spain and Great Britain and was reaffirmed to the fullest

extent in Article II of the 1763 Treaty.

The Embassy of Spain takes this opportunity to renew to

the Department of State its expression of appreciation for the

United States for its assistance and support in recognizing the

principles of sovereignty with respect to state vessels and in

the protection of the remains of those who died in the service

of their country and to renew to the Department of State the

assurances of its highest consideration.

Washington, DC, July 8 1999

LEGAL BUREAU

SPANISH DESK

WASHINGTON, D.C.