Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, s. 88-1742

• Decision Date: 12 January 1989
• Docket Number: Nos. 88-1742,88-1827,s. 88-1742
• Parties: Richard FITZGERALD, et al., Plaintiffs, Appellees, v. The UNIDENTIFIED WRECKED AND ABANDONED VESSEL, etc., Defendant, Appellee. Harry E. Hauck and Carlos Rivera-Davila, Intervening Plaintiffs, Appellants. Richard FITZGERALD, et al., Plaintiffs, Appellants, v. The UNIDENTIFIED WRECKED AND ABANDONED VESSEL, etc., Defendant, Appellee. Harry E. Hauck and Carlos Rivera-Davila, Intervening Plaintiffs, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

866 F.2d 16

1989 A.M.C. 1075

Richard FITZGERALD, et al., Plaintiffs, Appellees, v. The UNIDENTIFIED WRECKED AND ABANDONED VESSEL, etc.,

Defendant, Appellee.

Harry E. Hauck and Carlos Rivera-Davila, Intervening

Plaintiffs, Appellants.

Richard FITZGERALD, et al., Plaintiffs, Appellants, v. The UNIDENTIFIED WRECKED AND ABANDONED VESSEL, etc.,

Defendant, Appellee.

Harry E. Hauck and Carlos Rivera-Davila, Intervening

Plaintiffs, Appellees.

Nos. 88-1742, 88-1827.

United States Court of Appeals, First Circuit.

Heard Jan. 12, 1989.

Decided Feb. 1, 1989.

Carlos J. Quilichini with whom Domingo Acevedo Bayron and Francisco R. Moya, Hato Rey, P.R., were on brief, for Richard Fitzgerald, et al.

Jose E. Alfaro Delgado and Calvesbert & Brown, San Juan, P.R., on brief, for Harry E. Hauck and Carlos Rivera-Davila.

Jose R. Garcia Perez, Hato Rey, P.R., Federal Litigation Div., with whom Hon. Rafael Ortiz Carrion, Sol. Gen., and Norma Cotti Cruz, Deputy Sol. Gen., were on brief, for intervenors Commonwealth of Puerto Rico and Puerto Rico Institute of Culture.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and PETTINE, ^* Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

The HMS DEFIANCE is believed to have foundered off the coast of Puerto Rico in 1652. In 1986-87, two groups of salvors, the Fitzgerald group and the Hauck group, allegedly discovered the wreck of what some believe to be the DEFIANCE several hundred yards off the beach near Rincon, Puerto Rico. The salvors recovered valuable artifacts, including an astrolabe.

On December 28, 1987, the Fitzgerald group filed this admiralty action in rem in the United States District Court for the District of Puerto Rico. On February 10, 1988, the Hauck group filed an intervening complaint. Each group claimed exclusive title and possession to the wreck and its artifacts and sought a judicial determination in its favor against all claimants and all the world. The Commonwealth of Puerto Rico and the Commonwealth's Institute of Culture intervened specially and moved the district court to dismiss the in rem action, arguing that the action was barred by the Eleventh Amendment since it would necessarily require adjudication of the Commonwealth's rival claims to the wreck and its artifacts. The district court granted this motion. Both the Fitzgerald group and the Hauck group appeal from this decision.

The district court ruled that this case is indistinguishable from Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir.1983). ¹ We agree with the district court and affirm its dismissal of the in rem action brought by the original and intervening plaintiffs.

We think it apparent that the instant proceeding is necessarily directed against the Commonwealth of Puerto Rico. If the in rem action is to accomplish its purpose, which is to determine ownership of the wreck and artifacts, the federal district court must resolve the Commonwealth's claim of ownership, and would do so without the latter's consent. In support of this, we point out the following: 1) The wreck is located within the Commonwealth's territorial waters. 2) The Commonwealth has claimed, and has been litigating in its local courts, so far successfully, the ownership of the wreck and the salvaged items. Thus, well before plaintiffs commenced this action, the Commonwealth's Institute of Culture ² brought an action against plaintiffs in Puerto Rico Superior Court, claiming ownership of the artifacts recovered from the wreck. At oral argument, the parties informed us that the superior court had entered a final judgment in favor of the Commonwealth (we do not know the specifics of this ruling) and that this ruling is now being appealed to the Supreme Court of Puerto Rico. 3) Plaintiffs' complaint in the instant in rem action requests that "governmental agencies be enjoined from interfering with the Plaintiff's title, exclusive possession and property" and also that "all governments, governmental agencies, states ... claiming an interest in the Defendant vessel be cited to appear [in the district court] to show cause why possession of the Defendant vessel should not be delivered to Plaintiffs as having full title." 4) The Commonwealth (along with the Institute of Culture) has been the only party to respond to the complaints filed by the original and intervening plaintiffs. 5) The proceeding is not directed at state officials in a purely individual role. See Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982).

Because it is "self-evident that this [in rem action] was directed against the Commonwealth" and the Commonwealth has not consented to federal adjudication of this dispute, the action is barred by the Eleventh Amendment irrespective of the actual merit of the Commonwealth's claim to the salvaged wreck and its treasures. Maritime Underwater Surveys, Inc., 717 F.2d at 8. Once it is determined that the in rem action is directed against the Commonwealth itself and seeks to have a federal...