R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel

• Decision Date: 23 June 1998
• Docket Number: No. 2:93cv902.,2:93cv902.
• Citation: 9 F.Supp.2d 624
• Court: U.S. District Court — Eastern District of Virginia
• Parties: R.M.S. TITANIC, INC., successor in interest to Titanic Ventures, limited partnership, Plaintiff, v. THE WRECKED AND ABANDONED VESSEL, its engines, tackle, apparel, appurtenances, cargo, etc., Located within one (1) nautical mile of a point located at 41° 43' 32" North Latitude and 49° 56' 49" West Longitude, believed to be the R.M.S. TITANIC, in rem, Defendant.

9 F.Supp.2d 624

R.M.S. TITANIC, INC., successor in interest to Titanic Ventures, limited partnership, Plaintiff, v. THE WRECKED AND ABANDONED VESSEL, its engines, tackle, apparel, appurtenances, cargo, etc., Located within one (1) nautical mile of a point located at 41° 43' 32" North Latitude and 49° 56' 49" West Longitude, believed to be the R.M.S. TITANIC, in rem, Defendant.

No. 2:93cv902.

United States District Court, E.D. Virginia, Norfolk Division.

June 23, 1998.

Mark Steven Davis, Fred Bradford Stillman, McGuire, Woods, Battle & Boothe, Norfolk, for Plaintiff.

Alex Blanton, Michael Joseph, Joseph O. Click, Dyer Ellis & Joseph, Watergate, Washington, DC, Ann Katherine Sullivan, Guilford D. Ware, Crenshaw, Ware & Martin, Norfolk, for Defendant.

CLARKE, District Judge.

OPINION AND ORDER

This matter is before the Court on motion of R.M.S. Titanic, Inc. (RMST), acting as salvor in possession of Defendant wreck, for a preliminary injunction enjoining certain parties from visiting the wreck site to view and photograph the wreck. Since the Court has previously held that RMST's salvor in possession rights include the exclusive right to regulate access to the wreck site and photograph the wreck itself, the motion is essentially a request that the previous orders entered in this case be personalized and enforced against the new parties RMST seeks to enjoin. RMST's motion is granted.

I.

A.

RMST filed a Verified Complaint on August 26, 1993 requesting, among other things, an in rem arrest of the wreck of the R.M.S. TITANIC and that it be awarded the sole and exclusive salvage rights for the wreck. At a hearing held on August 27, 1993, RMST presented to the Court a wine decanter salvaged from the R.M.S. TITANIC wreck. See Transcript at 6 (Aug. 27, 1993). At that time numerous other artifacts were also within the judicial district. See id. By Order entered August 27, 1993, the Court found that "portions of the in rem Defendant are or shortly will be within this district during the pendency of this action ...." Order for Issuance of Warrant of Arrest at 1-2 (Aug. 27, 1993). The Court ordered that the United States Marshal arrest the wreck and artifacts already salvaged from the wreck pursuant to Supplemental Admiralty Rule C(2).¹ Id. at 2. Also by Order entered August 27, 1993, the Court substituted RMST for the United States Marshal as custodian of the wreck, wreck site, and artifacts. See Order Appointing Substitute Custodian at 2-3 (Aug. 27, 1993).

In early September 1993, notice of the in rem arrest was provided to other potential salvors by publication in three newspapers — The Virginian-Pilot, The Wall Street Journal, and The Journal of Commerce. Liverpool and London Steamship Protection and Indemnity Association (Liverpool and London) was the only party to file a claim. RMST and Liverpool and London subsequently entered into a settlement agreement, and the Court dismissed Liverpool and London's claim with prejudice on June 7, 1994. See Dismissal Order (June 7, 1994).

By separate Order entered June 7, 1994, the Court awarded RMST salvor in possession status over the wreck and artifacts from the wreck. In the Order, the Court notes that following the 1993 in rem arrest and publication only Liverpool and London filed a claim against the Defendant and that claim was dismissed. See Order at 1 (June 7, 1994). The Order also states that the Court

FINDS AND ORDERS that [RMST] is the salvor in possession of the wreck and wreck site of the R.M.S. Titanic, including without limitation, the hull, machinery, engine, tackle, apparel, appurtenances, contents and cargo, and that [RMST] is the true, sole and exclusive owner of any items salvaged from the wreck of the defendant vessel in the past and, so long as [RMST] remains salvor in possession, items salvaged in the future, and is entitled to all salvage rights ....

Id. at 2. Concerning other potential claimants who failed to heed the notice provided in the publication announcement of the in rem action, the Court ordered "that default judgment is entered against all potential claimants who have not yet filed claims and such claims are therefore barred and precluded so long as [RMST] remains salvor in possession ...." Id.

B.

In 1996, a competing salvor, John A. Joslyn, challenged RMST's status as salvor in possession. An evidentiary hearing was held from April 29 to May 1, 1996, at which the Court heard testimony and received evidence concerning RMST's salvage related activities.

By Order entered May 10, 1996, the Court reaffirmed RMST's status as salvor in possession. See R.M.S. Titanic, Inc. v. Wrecked and Abandoned Vessel, 924 F.Supp. 714, 722-24 (E.D.Va.1996). Finding that RMST had used due diligence in past salvage operations, planned ongoing and future salvage operations, and was clothed with the prospect of success in its salvage activities, the Court concluded that RMST "should remain the sole salvor in possession of the TITANIC wreck site ...." Id. at 724.

Joslyn then expressed an intention to visit the wreck site solely to photograph the wreck. On August 9, 1996, the Court issued a Temporary Restraining Order against Joslyn's planned photographic expedition to the wreck. See Order (Aug. 9, 1996), amended by, Amended Order (Aug. 13, 1996). The Order states:

The Court is of the opinion that its Order of May 10, 1996, while it did not specifically forbid photographing the wreck or the wreck site by other than [RMST], it did express in specific terms the need for [RMST] to have jurisdiction over the wreck site. This would include determining who could enter the site for any purpose and who could photograph the ship and the locale.

Id. at 1-2. The Temporary Restraining Order was against Joslyn, Blackhawk Television, and the R/V AKADEMIC MSTISLAV KELDYSH. Id.

By Order entered August 13, 1996, the Court converted the Temporary Restraining Order into a Preliminary Injunction Order. Joslyn, Blackhawk Television, the R/V AKADEMIC MSTISLAV KELDYSH, and "any other person having notice of this Order" were enjoined from "conducting search, survey, salvage operations, or obtaining any image or photograph of the TITANIC wreck or wreck site." Order at 2 (Aug. 13, 1996).

In the August 13, 1996 Order, the Court also made a legal conclusion that RMST's rights as salvor in possession include the sole and exclusive right to photograph the wreck. The Court noted that "video sales, film documentaries, and television broadcasts [are] inventive marketing ideas that [RMST] must resort to since it is not selling the artifacts [and][i]t is clear that the presence of another in the marketplace would diminish the rights the Court has granted [RMST]." Id. at 3. The Court found that "in a case such as this, allowing another `salvor' to take photographs of the wreck and wreck site is akin to allowing another salvor to physically invade the wreck and take artifacts themselves." Id. at 4. Thus, the Court concluded that since "photographs can be marketed like any other physical artifact ... the rights to images, photographs, videos, and the like belong to [RMST]." Id. at 3.

Joslyn appealed the August 13, 1996 Preliminary Injunction Order to the Fourth Circuit Court of Appeals. The appeal was subsequently dismissed pursuant to a stipulation of dismissal filed by the parties. The Fourth Circuit "dismisse[d] th[e] appeal with prejudice pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure ...." Order at 3 (4th Cir. Dec. 6, 1996).

C.

RMST's activities in salvaging the wreck have been commendable. Through its predecessor in interest and itself, RMST has conducted research and recovery expeditions at the wreck site in June 1987, June 1993, July 1994, and August 1996. It has current plans to conduct an expedition in August 1998. RMST has exhibited considerable zeal as salvor in possession despite the fact that salvaging the wreck is extremely time-consuming, dangerous, and expensive.

Salvaging the wreck of the R.M.S. TITANIC is time-consuming because it is impossible to conduct continuous, ongoing salvage operations at the wreck site. Year-round salvage operations are impossible "[b]ecause of weather conditions at the site" in the stormy North Atlantic Ocean. R.M.S. Titanic, Inc., 924 F.Supp. at 716 n. 3. "[S]alvage operations are only feasible during the months of June, July, and August." Id.; see Order at 1 (Aug. 13, 1996) (stating that "[t]he weather window for operations at the salvage site is very short").

Salvaging the wreck is dangerous and expensive because of its depth. The wreck "lies two-and-a-half miles below the ocean surface and the use of a manned submersible is required to reach it." R.M .S. Titanic, Inc., 924 F.Supp. at 722. "This type of salvage operation is highly speculative and the expedition costs are high." Id. at 717. During the Preliminary Injunction Hearing on May 27, 1998, George Tulloch, RMST's president, testified that just the cost to charter a vessel and submersible for the 1998 expedition is $1,460,000. Transcript at 34 (May 27, 1998). Moreover, any artifacts that are recovered must be properly preserved and conserved at great expense. See R.M.S. Titanic, Inc., 924 F.Supp. at 717 (discussing French conservation laboratory's cost to preserve artifacts and other costs of salvage for 1996 expedition).

Despite these considerable challenges, RMST has been very successful in salvaging the wreck. In 1987, RMST conducted 60 days of research and recovery operations at the wreck site. See RMST's Periodic Report at 4 (filed Nov. 12, 1997). It recovered approximately 1800 artifacts during the course of 32 dives. Id. It also produced approximately 140 hours of videotape footage and 7,000 still photographs from the wreck site. Id. During the summer 1993 expedition, RMST recovered 800 artifacts and produced approximately 105 hours of videotape footage during the course of 15 dives. Id. During the 1994 expedition, RMST recovered over 1,000 objects and...