Deep Sea Research, Inc. v. Brother Jonathan

• Decision Date: 05 April 1995
• Docket Number: No. C 91-3899 LCB.,C 91-3899 LCB.
• Citation: 883 F. Supp. 1343
• Court: U.S. District Court — Northern District of California
• Parties: DEEP SEA RESEARCH, INC., Plaintiff, v. The BROTHER JONATHAN, her appurtenances, furniture, cargo, etc., Defendant, and The State of California, State Lands Commission, and the United States of America, Intervening Defendants.

883 F. Supp. 1343

DEEP SEA RESEARCH, INC., Plaintiff, v. The BROTHER JONATHAN, her appurtenances, furniture, cargo, etc., Defendant and The State of California, State Lands Commission, and the United States of America, Intervening Defendants.

No. C 91-3899 LCB.

United States District Court, N.D. California.

March 16, 1995.

Injunction Issued April 5, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stuart M. Gordon, Fletcher C. Alford, Gordon & Rees, San Francisco, CA, for Deep Sea Research, Inc.

Peter Pelkofer, Sr. Counsel, State of California, State Lands Com'n, Joseph C. Rosconi, Deputy Atty. Gen., State of Cal., Sacramento, CA, for State of Cal., State Lands Com'n.

Barbara B. O'Malley, Sp. Litigation Counsel, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, DC, for U.S.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

Presently before the court is the restricted appearance and motion of intervening defendant, the State of California, State Lands Commission ("State"), to dismiss plaintiff Deep Sea Research, Inc.'s ("DSR") admiralty in rem action against defendant, the wreck of the S.S. Brother Jonathan, her appurtenances, furniture and cargo (collectively "Brother Jonathan"), for lack of subject matter jurisdiction. Also before the court is DSR's motion for a warrant for arrest of the Brother Jonathan pursuant to Supplemental Admiralty and Maritime Claims Rule, C(3), and for a court order appointing DSR exclusive salvor of the vessel. For the reasons set forth below, the State's motion will be denied and DSR's motion will be granted.

I. BACKGROUND

A. Factual History

The Brother Jonathan is a 220 foot wooden-hulled, double side-wheeled steamship which was built in the middle of the last century. (Flohr Decl. at ¶ 4.) The vessel, which was owned by the California Steam Navigation Company, left San Francisco on Friday, July 28, 1865, bound for Portland, Oregon and Vancouver. (Ex. C-1.) On board at the time were 109 passengers and 54 crew. (Id.) On Sunday, July 30, 1865, the Brother Jonathan struck a submerged rock and sank off the coast of Northern California in the vicinity of Crescent City. (Id.) The ship went down in less than one hour, and only 16 persons survived. (Id.) When the ship sank, it was allegedly carrying valuable cargo, including a shipment of gold coin and bullion. (Flohr Decl. at ¶ 4.) Shortly after the Brother Jonathan sank, the San Francisco offices of five insurance companies paid claims totalling $48,490.00 for the loss of the vessel. (Ex. C-1.) It was estimated at the time, however, that approximately two-thirds of the ship's cargo was uninsured. (Id.)

More than 128 years later, in October of 1993, DSR located the wreck of the Brother Jonathan approximately four and one-half miles off the coast of Crescent City, California. (Flohr Decl. at ¶ 5; Siverts Decl. at ¶ 7.) The ship is resting upright on the sea floor in approximately 250 feet of water. (Siverts Decl. at ¶ 7.) A videotape taken of the wreck from a manned submersible confirms that the Brother Jonathan is largely intact — at least three-quarters of the ship's hull, and all of its surviving superstructure, floors, galley, cabins and other portions of the vessel, are clearly visible above the surface of the ocean floor.¹ (DSR Mot. for Issuance of Warrant of Arrest, Ex. B.) In addition, portions of the vessel's cargo, including dishware, are clearly visible resting on the sea floor. (Id.)

B. Procedural History

1. DSR's Admiralty In Rem Action

DSR has recovered several artifacts from the Brother Jonathan, including: two pieces of china; a corked, full champagne bottle; a medicine bottle; an ale bottle; and a brass spike from the ship's hull. (Flohr Decl. at ¶ 6.) Based on DSR's possession of these items, on April 1, 1994, DSR filed an admiralty in rem action stating a maritime claim against the wreck of the Brother Jonathan under Federal Rule of Civil Procedure 9(h) and 28 U.S.C. § 1333. DSR is seeking an award of title to the ship and its cargo under the common law of finds or, alternatively, to a salvage award under the common law of salvage. DSR also asserts a right of ownership by purchase of subrogation interests from the insurers of the vessel's original owner. At this time, however, DSR is seeking only a warrant for arrest of the Brother Jonathan pursuant to Supplemental Admiralty and Maritime Claims Rule, C(3), and a court order appointing DSR exclusive salvor of the vessel.

2. The State's Motion to Dismiss

On April 1, 1994, the State filed a restricted appearance and motion to dismiss DSR's in rem complaint for lack of subject matter jurisdiction. The State asserts that it has title to the Brother Jonathan under the Abandoned Shipwreck Act of 1987 ("ASA" or "Act"), 43 U.S.C. § 2101, et seq., which gives states title to all abandoned shipwrecks which are embedded in their submerged lands, and all abandoned shipwrecks which are not embedded in the submerged lands of the state but are eligible for inclusion in the National Register of Historic Places ("National Register"). As an independent ground for ownership of the Brother Jonathan, the State asserts that it has title to the shipwreck under California Public Resources Code § 6313(a), which declares that the State has title to all abandoned shipwrecks, archaeological sites and historic resources resting on or in the submerged lands of the State. The State argues that the court lacks subject matter jurisdiction to proceed with this matter because the State has a "colorable claim" of ownership to the Brother Jonathan, therefore, DSR's in rem action against the vessel is really an action against the State which is prohibited by the Eleventh Amendment to the United States Constitution.

DSR vigorously disputes the State's argument that it holds title to the Brother Jonathan under state and federal law, and that the court lacks jurisdiction to adjudicate the merits of DSR's claim because of the Eleventh Amendment. DSR maintains that the State does not have a colorable claim to the Brother Jonathan because: (1) California Public Resources Code § 6313 is preempted by federal admiralty law and the ASA; (2) the State does not hold title to the Brother Jonathan under the ASA because the Brother Jonathan is neither "abandoned" nor "embedded" within the meaning of the Act, and the Secretary of the Interior has not made a written determination that the Brother Jonathan is eligible for listing in the National Register; and (3) even if the Brother Jonathan is part of the class of shipwrecks protected by the ASA, the ASA is unconstitutional because it impermissibly divests the federal courts of their exclusive jurisdiction in admiralty and maritime matters pursuant to Article III, section 2, of the United States Constitution and 28 U.S.C. § 1333, and the ASA destroys the uniform application of admiralty law and maritime jurisdiction throughout the whole of the United States.²

The court held two hearings, on September 9, 1994 and September 27, 1994, to determine whether it had jurisdiction to proceed in this matter.³ The first hearing focused on whether the Brother Jonathan was located within California's territorial sea.⁴ During the second hearing, the State presented evidence in support of its claim that the Brother Jonathan is an abandoned shipwreck embedded in the submerged lands of the State. The State also presented testimony regarding the ship's eligibility for listing in the National Register.

Based on the evidence of record, and for the reasons set forth below, the court finds that the State has failed to demonstrate that it has a "colorable claim" to the Brother Jonathan under the ASA. The court also finds that California Public Resources Code § 6313 is preempted by § 7 of the ASA, which declares "this chapter shall not change the laws of the United States relating to shipwrecks, other than those to which this chapter applies." 43 U.S.C. § 2106(b). Consequently, the law of admiralty applies to this action and the State's motion to dismiss will be denied.

II. DISCUSSION

As a preliminary matter, the parties vigorously dispute the meaning of the term "colorable claim," and the evidentiary support necessary for the State to demonstrate the existence of a "colorable claim."⁵ Since none of the circuits have squarely addressed this issue in a case with similar facts, the court will first attempt to identify the elements of a "colorable claim." The court will then address the applicability of the ASA and its effect on the California Public Resources Code. Finally, the court will address DSR's motion for issuance of a warrant of arrest and motion to be declared exclusive salvor of the vessel.

A. What is a "Colorable Claim"?

The State, citing Marx, contends that its mere utterance of a claim to the Brother Jonathan under state or federal law makes it "colorable," and that the State need not prove that the laws actually apply to the vessel before the district court is divested of jurisdiction. The State is incorrect. First, the Ninth Circuit made no such holding in Marx, in which the parties' dispute arose before the effective date of the ASA, and the court refused to apply the terms of the new Act. See Marx, 866 F.2d at 295, 300. Second, the Ninth Circuit's more recent holding in ITSI TV Productions v. Agricultural Assoc., 3 F.3d 1289 (9th Cir.1993), makes it clear that a party asserting sovereign immunity will have to at least prove, by a preponderance of the evidence, that the privilege applies. See ITSI, 3 F.3d at 1291-92 ("Like any other defense, that which is promised by the Eleventh Amendment must be proved by the party that asserts it and would benefit from its acceptance."). See also Treasure Salvors, 458 U.S. at 683-99, 102 S.Ct. at 3313-22 (where the Supreme Court first examined, and then rejected, state's claim of sovereign immunity); Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be SB "Seabird", 941 F.2d 525 (7th...