Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel Known as the Captain Lawrence

• Decision Date: 07 March 1997
• Docket Number: No. 95-1783,95-1783
• Citation: 105 F.3d 1078
• Parties: FAIRPORT INTERNATIONAL EXPLORATION, INC., Plaintiff-Appellant, v. The SHIPWRECKED VESSEL KNOWN AS THE CAPTAIN LAWRENCE, in rem, Defendant-Appellee, The State of Michigan, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1078

105 F.3d 1078

FAIRPORT INTERNATIONAL EXPLORATION, INC., Plaintiff-Appellant, v. The SHIPWRECKED VESSEL KNOWN AS THE CAPTAIN LAWRENCE, in rem, Defendant-Appellee The State of Michigan, Intervenor-Appellee.

No. 95-1783.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 15, 1996.

Jan. 30, 1997.

Rehearing Denied March 7, 1997.

Donald C. Adams, Jr. and Ralph F. Mitchell (argued and briefed), Rendigs, Fry, Kiely & Dennis, Cincinnati, OH, for Plaintiff-Appellant.

Stephen F. Schuesler (argued and briefed), Office of the Attorney General, Natural Resources Division, Lansing, MI, for Intervenor-Appellee.

Richard T. Robol, Columbus America Discovery Group, Columbus, OH, for Amicus Curiae.

Before: JONES, RYAN, and MOORE, Circuit Judges.

RYAN, Circuit Judge.

The plaintiff, Fairport International Exploration, Inc., filed an in rem admiralty action seeking salvage rights against The Captain Lawrence, a vessel that sank in Lake Michigan in 1933. The State of Michigan intervened under, inter alia, the Abandoned Shipwreck Act of 1987 (the ASA), 43 U.S.C § § 2101-2106, and filed a motion to dismiss. Fairport appeals from the district court's grant of that motion, arguing that the district court erred in concluding that The Captain Lawrence had been abandoned. For the reasons that follow, we will affirm.

I.

The Captain Lawrence, rebuilt from a yacht originally constructed in 1898, first sank in Lake Michigan in 1931. It was towed into the shallow water of a Milwaukee, Wisconsin, river and sold for $150 to Wilfred H. Behrens. Behrens apparently did what needed to be done to make The Captain Lawrence seaworthy, and the ship departed Milwaukee for Summer Island, Michigan, in August 1933, with Behrens as captain and a crew of four.

According to a Record of Casualties to Vessels filed by Behrens in November 1933, The Captain Lawrence became stranded near Poverty Island, Michigan, on September 19, 1933, and then sank after a "terrific wind came up" and blew the vessel onto some rocks. The Captain Lawrence was contacted by the Coast Guard the next morning, but declined offers of assistance. In the Record of Casualties, Behrens declared the estimated value of the total loss to be $200, and reported that the vessel was carrying no cargo. Testimony in the district court regarding the value of vessels during the 1930s indicated that comparable vessels, when new, would have sold for $14,500.

In arguing on appeal that Behrens and his descendants did not "abandon" The Captain Lawrence after this incident, Fairport's brief claims that

Wilfred Behrens, owner and master of the Captain Lawrence, evidenced the desire and intention to salvage the vessel, building a cabin on Poverty Island and staying there for some time in the hope of salvaging the vessel ... but, because of the loss of the ship and his equipment and strained financial circumstances, was unable to do so.

The transcript page cited by Fairport fails to support this version of events, as it simply recounts the following:

There was an account that after the Captain Lawrence was wrecked they stayed in a log cabin, and we went and found one and there was portions of the wreckage that they had used the door off the Captain Lawrence that they hauled ashore, a door, a roof on this log cabin, and they stayed there till they could get sufficient help to get off the island.

To the extent this testimony suggests anything about Behrens's motive for staying in a log cabin, it suggests that he did so simply as a temporary means of finding shelter after the ship went down; it certainly does not suggest that the crew "stay[ed] there for some time in the hope of salvaging the vessel," and if anything, it contradicts that assertion. Further, we find nothing in our independent consideration of the record that could support Fairport's claim that Behrens "evidenced the desire and intention to salvage the vessel."

Steven Libert, the president of plaintiff Fairport, has a self-proclaimed obsession with "the legend of a Civil War era gold treasure allegedly lost in northern Lake Michigan in the vicinity of Poverty Island." His research on the subject led him to conclude that The Captain Lawrence had been searching for the legendary treasure at the time of the shipwreck, and he hypothesized that the ship was "an important key" to locating the gold. As a result, Libert has been diving intermittently in the Poverty Island vicinity since 1983. He has found two items that he believes belong to The Captain Lawrence: an anchor and a propeller blade.

Fairport asserts title to the wreck of The Captain Lawrence based on its execution of a Salvage Bill of Sale with Gladys Nally, a surviving heir of Behrens who, in turn, is the assignee of the interests of all the other surviving heirs. Fairport filed this in rem admiralty action in June 1994, seeking to perfect its title to and salvage rights in the wreck.

The State of Michigan intervened and moved to dismiss in August 1994, arguing that the wreck belonged to Michigan under the ASA. Under the ASA, the federal government asserts title to certain historic wrecks, and then transfers that title to the state on whose submerged lands the wrecks are found. 43 U.S.C. § 2105. A shipwreck meets the requirements of the ASA if it is (1) abandoned; (2) located on the state's submerged lands; and (3) either embedded in the sea floor or eligible for listing in the National Register of Historic Places. Michigan argued that the wreck met the requirements of the ASA, and that the district court accordingly lacked subject-matter jurisdiction over Fairport's claim; that is, the suit was in reality against the State of Michigan and thus barred by the Eleventh Amendment.

Although initially noting its "very serious reservations as to whether Plaintiff has in fact found any evidence of the Captain Lawrence," the district court assumed for purposes of its analysis that the "evidence [was] sufficient to identify the res." Concluding that the second and third prongs of an ASA claim were satisfied because the vessel asserted to be The Captain Lawrence was embedded in the sea floor of Michigan's submerged lands, the district court then reasoned that "in order to show that the ASA applies, the State has the burden of showing by a preponderance of the evidence that the vessel was abandoned." Such proof would give rise to the conclusion that Michigan had a "colorable claim" within the meaning of the ASA, thus divesting the district court of jurisdiction. The court concluded that The Captain Lawrence had in fact been abandoned:

The Captain Lawrence is a relatively recent wreck. It did not sink in deep water. It was stranded on Poverty Island. Assuming the evidence Plaintiff has found is from the Captain Lawrence, the vessel is in pieces close to shore in only 40-60 feet of water. It was not technologically unfeasible to locate or to salvage the Captain Lawrence in the 1930's. Modern technology was not essential to the recover of the vessel.

The evidence, although circumstantial, clearly demonstrates Wilfred Behrens' intent to abandon the vessel. He valued the vessel at only $200, had no insurance on it, and wrote it off as a "total loss." Had he wanted to salvage the vessel, the best time would have been immediately after it was stranded on the beach. Yet there is no evidence that he attempted any salvage operations immediately after the wreck. The evidence shows that Behrens was offered assistance from the Coast Guard immediately after the storm, but declined it. The evidence shows that Behrens was an experienced salvager, and continued his salvage diving for over ten years after the shipwreck. Yet there is no evidence that he ever attempted to salvage the Captain Lawrence in the years after the wreck.

Behrens did not discuss the location of the Captain Lawrence with his family. He died intestate. He did not leave his interest in the vessel to his family or to anyone else. There is no evidence that his crew showed any interest in returning to the Captain Lawrence. Behrens' family did not seek out salvage divers to help locate the remains of the Captain Lawrence. They showed no interest in finding the Captain Lawrence until Libert told them of the possibility of a link between the Captain Lawrence and the legendary gold treasure.

Based on these facts, the court concluded that Michigan had "met its burden of showing by a preponderance of the evidence that the Captain Lawrence was abandoned by Wilfred Behrens."

From the judgment of dismissal, Fairport filed this timely appeal.

II.

In considering a motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. Rule 12(b)(1), the district court may look beyond the jurisdictional allegations in the complaint and consider whatever evidence is submitted. See Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990). We then consider de novo the district court's legal conclusion that it lacked subject-matter jurisdiction. See United States v. Moncini, 882 F.2d 401, 403 (9th Cir.1989). Likewise, the question of whether Eleventh Amendment immunity applies is a question of law, the determination of which we review de novo. See Williams v. Commonwealth of Kentucky, 24 F.3d 1526, 1543 (6th Cir.1994). Whether a vessel has been abandoned, however, is a question of fact, to be reviewed for clear error only. See Deep Sea Research, Inc. v. The Brother Jonathan, 89 F.3d 680, 684, 688 (9th Cir.1996).

III.

A.

The ASA provides that "States have the responsibility for management of a broad range of living and nonliving resources in State waters and submerged lands," including "certain abandoned shipwrecks, which have been deserted and to which the owner has relinquished ownership rights with no retention." 43 U.S.C. § 2101(a) & (b). To implement these congressional findings, the statute provides that the "United States asserts title to any abandoned shipwreck that is ......