Aircraft Recovery, L.L.C. v. Abandoned Aircraft
| Decision Date | 08 July 1999 |
| Docket Number | No. 98-1637-Civ.,98-1637-Civ. |
| Citation | 54 F.Supp.2d 1172 |
| Court | U.S. District Court — Southern District of Florida |
| Parties | INTERNATIONAL AIRCRAFT RECOVERY, L.L.C. a Nevada Limited Liability Company, Plaintiff, v. THE UNIDENTIFIED, WRECKED AND ABANDONED AIRCRAFT, her armament, apparel, and cargo located within one (1) marine league of a point located at 2543'4" N Latitude and 802'8" W Longitude, Defendant. and United States of America, Intervenor, |
David Paul Horan, Key West, FL, for plaintiff.
Tierney Carlos, U.S. Department of Justice, Washington, DC, for defendant.
This case arises on cross motions for summary judgment, as an In Rem admiralty action involving the salvage of an extremely rare and historic aircraft that crashed in waters beyond the territorial limits of the United States 56 years ago last week, on July 1st, 1943. Intervenor United States of America asserts that the United States Navy is the owner of the In Rem Defendant aircraft and disputes In Rem jurisdiction over the Defendant property. The Plaintiff/Salvor claims rights and/or ownership of the In Rem Defendant aircraft in admiralty, asserting the "Law of Finds" and, alternatively, the "Law of Salvage". Plaintiff has taken possession of the In Rem Defendant aircraft that has been lost and abandoned for over a half century. Further, Plaintiff asserts that the In Rem Defendant aircraft was, and is, in a condition of maritime peril. The Intervenor, United States, defends on the issue that the In Rem Defendant aircraft has never been lost, abandoned, or in maritime peril.
The evidence before the Court consists of: Plaintiff's Verified Complaint, the June 23rd, 1998 Affidavit and May 25th, 1999 deposition of Douglas Champlin, President of Historic Aircraft Recovery, Inc., a Nevada corporation (the Managing Member of the Plaintiff International Aircraft Recovery, L.L.C., a Limited Liability Company); the February 9th, 1999 Affidavit and April 22nd, 1999 deposition of Dr. William S. Dudley, the Director of Naval History and Director of the Naval Historical Center in Washington, D.C.; the February 12th, 1999 Affidavit and May 24, 1999 deposition of Captain Robert L. Rasmussen, the Director of the National Museum of Naval Aviation in Pensacola, Florida; the May 24th, 1999 deposition of Robert "Buddy" Macon, the Deputy Director and Curator of the National Museum of Naval Aviation; and the testimony of the witnesses and exhibits from the June 4th, 1999 hearing. Final legal argument of counsel, on the cross motions for final summary judgment were head June 14, 1999.
The Court has viewed all of the evidence in a light most favorable to the Intervenor United States. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling for the Plaintiff, the Court has resolved all reasonable doubts about the facts in favor of the Intervenor and has drawn all justifiable inferences in the Intervenor's favor. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11 Cir. 1991). The Court finds that no material fact remains in dispute, and that the Plaintiff International Aircraft Recovery, LLC, is entitled to Summary Final Judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
On April 14th, 1938, the Douglas Aircraft Company delivered TBD-1, Bureau of Naval Operations No. (Buno #) 0353 to the United States Navy. It was accepted by the Naval Air Station in Pensacola, Florida sixty-one (61) years ago, on May 3rd, 1938. From 1938 until mid-1941 Buno # 0353 was on "Neutrality Patrol" in the central Atlantic. In July, 1941, with a prospect of the United States entering the World War becoming more and more certain, the aircraft was assigned to Torpedo Squadron Five, aboard the Aircraft Carrier "Yorktown" operating in the Pacific theater. During the next two (2) years, TBD-1 Buno # 0353 (along with other TBD-squadrons) was instrumental in turning the tide of war against the Japanese in both the "Battle of Midway" and the "Battle of the Coral Sea".
TBD-1 Buno # 0353 survived its involvement in these historic battles. During the "Battle of Midway", one TBD Squadron (VT-8) was entirely destroyed and another decimated when intercepted by Japanese Zero fighters. On the 7th and 8th of May, 1942, the Buno # 0353 participated in the "Battle of the Coral Sea". On May 7th, the TBD-1's and dive-bombers from the "Yorktown", attacked and sank the Japanese Aircraft Carrier, "Shoho". On May 8th, they attacked and heavily damaged the Japanese Aircraft Carrier "Shokaku". On these flights, TBD-1 Buno #0353 was piloted by Ensign Francis R. Sanborn. On May 8th, while engaged in the attack on the Japanese Fleet, the "Yorktown" and the United States Aircraft Carrier "Lexington", were attacked by Japanese aircraft. The "Lexington" was damaged so badly she was later sunk to avoid capture. The "Yorktown's" repair parties controlled her damage sufficiently to enable her to recover many of her aircraft. TBD-1 Buno # 0353 was one of the planes that returned safely to Yorktown.
The aircraft returned for overhaul to Naval Air Station San Diego, from July until September, 1942 and then was assigned to the Atlantic Training Squadron at the Naval Air Station in Miami, Florida.
Ensign Bruce T. Mallory, while conducting a torpedo attack instruction flight on July 1, 1943, in the subject TBD-1, commenced having mechanical difficulties. During the flight, the aircraft's variable-pitch propeller malfunctioned and the aircraft was unable to sustain flight. Ensign Mallory crash landed the aircraft into the Atlantic Ocean in deep international waters, approximately eight (8) miles east of Miami Beach, Florida, where he and his crew escaped without injury.
On or about September 8th, 1943, the Naval Aircraft Records for TBD-1 Buno # 0353 were stamped, in two places, with the word "Stricken". On July 24th, 1944, the Chief of Naval Operations sent an "Aviation Circular" to all ships, stations and units concerned with Naval Aircraft. The subject was "Aircraft — Striking and Disposition of." The Aviation Circular was signed by Admiral John S. McCain, the Deputy Chief of Naval Operations (Air). Admiral McCain's directive fifty-five years ago, was non-discretionary in its recommendation that all crashed aircraft be stricken. The Admiral also ordered the striking of any aircraft that had completed its service life and directed that salvage begin on those aircraft. Provision was made for determining whether aircraft unable to return to the U.S. should be declared stricken. The availability of replacement aircraft and an evaluation of the condition of the individual aircraft were to be considered in making this determination. Once stricken, salvage operations were to begin for these aircraft as well, pursuant to Admiral McCain's orders.
All TBD-1's known to exist were stricken, destroyed or lost by the Navy at some time following the Second World War. The location of TBD-1 Buno # 0353 was lost for nearly half a century, "Stricken" from the Naval records.
In 1990, a group of salvors searching for Spanish galleons, located the wrecksite of a TBD-1. Using a remote operated vehicle (ROV), a videotape was produced showing the condition of the aircraft after years of exposure to a saltwater (highly corrosive) environment. After determining that the aircraft they had discovered in deep waters beyond the territorial limits of the United States was (at that time) the only TBD-1 known to exist, the salvors attempted to sell the video tape and location of the rare aircraft to the National Museum of Naval Aviation (NMNA) in Pensacola, Florida, for the sum of $25,000.00. Since the NMNA had no budget for such acquisition, the purchase was refused.
Within a few months, Douglas Champlin, a collector of fighter aircraft from around the world and owner of "Fighter Aces Museum" in Mesa, Arizona, purchased the location of the TBD-1 and video tape for the sum of $75,000.00 Dollars. Mr. Champlin researched the location and history of the aircraft and discovered Buno # 0353's historic past. For several years, Douglas Champlin offered to enter into an agreement with the National Museum of Naval Aviation whereby Mr. Champlin would recover the TBD-1 in return for the trade of one or more surplus government owned fighter aircraft. Since purchasing the location and 1990 video, Douglas Champlin has conducted two salvage expeditions to the wrecksite of the In Rem Defendant aircraft. The first salvage expedition in December, 1994, was undertaken after discussions with Robert Macon, the NMNA Deputy Director. During this salvage expedition, a portion of the canopy of the TBD-1 Buno # 0353 was recovered and an additional videotape confirming the condition of the aircraft was made. This video confirmed that during the past five (5) years, the engine of the aircraft had dislocated from the frame and had started falling forward. In 1998, there was another salvage expedition, which produced another videotape, and the radio mast of the TBD was recovered. These salvage expeditions to the wrecksite provided information that was used by Douglas Champlin and his contractor, Robert Mester, to design and build a special cradle for the safe recovery of the aircraft. To date the Plaintiff International Aircraft Recovery and its predecessors in interest (Mr. Champlin) have invested over $130,000.00 in the salvage of the In Rem Defendant aircraft.
No other official action was taken by the United States Navy regarding TBD-1 Buno # 0353 until August 27, 1998. On that date, pursuant to a request from the National Museum of Naval Aviation (NMNA), the Commander of Naval Inventory Control Point entered an "Assignment" purporting to assign TBD-1 Buno # 0353 to the National Museum of Naval Aviation "for salvage and eventual static display". This assignment occurred after Plaintiff in this case filed an In...
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