Lathrop v. Unidentified, Wrecked & Abandoned Vessel

• Decision Date: 09 April 1993
• Docket Number: 90-605-Civ-ORL-20.,No. 88-37-Civ-ORL-20,88-37-Civ-ORL-20
• Citation: 817 F. Supp. 953
• Parties: Randy L. LATHROP, Plaintiff, v. The UNIDENTIFIED, WRECKED & ABANDONED VESSEL, Defendant. STATE of FLORIDA, et al., Plaintiffs, v. Randy L. LATHROP, Defendant.
• Court: U.S. District Court — Middle District of Florida

817 F. Supp. 953

Randy L. LATHROP, Plaintiff, v. The UNIDENTIFIED, WRECKED & ABANDONED VESSEL, Defendant.

STATE of FLORIDA, et al., Plaintiffs, v. Randy L. LATHROP, Defendant.

Nos. 88-37-Civ-ORL-20, 90-605-Civ-ORL-20.

United States District Court, M.D. Florida, Orlando Division.

April 9, 1993.

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Edward W. Horan, Key West, FL, for plaintiffs.

Kendall Wherry, Asst. U.S. Atty., Orlando, FL, Eric J. Taylor, Esq., Tallahassee, FL, Caroline Zander, Washington, DC, for defendant.

ORDER

SCHLESINGER, District Judge.

This cause is before the Court on Plaintiff Randy L. Lathrop's Motion for Preliminary Injunction (Doc. No. 66) filed in Case No. 88-37 (in rem action). The United States has filed an Amicus Curiae Response in Opposition to Plaintiff's Motion for Preliminary Injunction (Doc. No. 81, filed on April 6, 1992).

I PROCEDURAL BACKGROUND

These two consolidated cases involve a dispute over an alleged unidentified shipwreck located within 2,500 yards of a point with coordinates 80 degrees, 41.5' west longitude and 28 degrees, 44' north latitude. This dispute originated in November 1984, when Plaintiff was exploring the shallow coastal area north of Cape Canaveral, Florida. While diving, Plaintiff found several Spanish coins, covered in green from immersion in salt water, which he believes are part of the remains of a sunken eighteenth century Spanish galleon. These coins were milled in Mexico City, Mexico from 1777 through 1782, and they bore the bust of King Charles III.

Because the coins were all minted in Mexico City within the same time period, Plaintiff postulates that the coins were part of a larger shipment, a mint shipment, which sank before reaching its final destination. Plaintiff hypothesizes that an eighteenth century ship lay submerged in the Cape Canaveral National Seashore and off the coast of Florida for over two hundred years.¹ Believing this to be true, Plaintiff filed a complaint in rem in January 1988 seeking ownership of the alleged unidentified vessel or a salvage award for his services. The Court arrested the vessel on January 27, 1988, and appointed Plaintiff as substitute custodian.

After the alleged vessel was arrested, Plaintiff published notice of this in rem action in the Florida Today, a newspaper of general circulation in Brevard County, Florida on March 10, 1988. No one either responded to this publication or asserted an interest in the alleged vessel. Plaintiff then filed a Motion for Entry of Default which the clerk entered on June 7, 1988.

Shortly thereafter, Plaintiff began to experience problems with the U.S. Park Service for conducting what he thought were legitimate salvage activities. Park rangers arrested Plaintiff's assistants for carrying metal detectors within the Cape Canaveral National Seashore. At that time, the park rangers were not aware that Plaintiff obtained an order arresting the alleged vessel. Thereafter, the charges were dismissed, and Plaintiff was allowed on the premises. For the remainder of the year, Plaintiff conducted very little salvage activities.

In August 1989, Plaintiff began organizing salvage activities. First, he employed James Sinclair, an archaeologist who specializes in historic shipwrecks and President of SAS, Inc., to document the archaeological history of the wreck. Sinclair helped to formulate a research design, produce a map of the wreckage, and verify that the magnetometer readings truly identified an historic shipwreck. Also, Plaintiff hired Shipwrecks, Inc., to assist in a preliminary magnetometer survey and excavation of the alleged vessel.

Salvage operations from August 1989 through September 1989 consisted mainly of magnetometer and remote sensing surveys of the alleged vessel. During this time, Cape Canaveral was preparing for a space shuttle launch carrying sensitive Jupiter Probes which required heightened security. Under these circumstances, extensive salvage operations became nearly impossible. Thus, Plaintiff's salvage activities were limited by security concerns and involved additional magnetometer surveys.

The information obtained from these surveys indicated a pattern of magnetic anomalies (or abnormalities beneath the ocean floor) which could be the scattered remains of an historic shipwreck. To confirm this finding, Plaintiff needed to pinpoint selected areas, excavate them, and examine any objects producing the anomalies. Only then would Plaintiff know whether objects causing the anomalies were the remains of an historic shipwreck or some other objects (such as coke cans and other debris). Plaintiff recovered various objects, but none were ancient artifacts or other items belonging to an eighteenth century Spanish galleon. In addition, these objects did not prove the existence of an historical shipwreck.

Salvage activity from October 1989 through December 1989 consisted of additional magnetometer and remote sensing surveys. There were no recoveries. Similarly, salvage activities from January 1990 through March 1990 remained similarly idle, but due to poor weather conditions.

While Plaintiff prepared to resume salvage activities in April, Plaintiff encountered a series of misfortunes. First, the State of Florida required Plaintiff to abide by its regulatory scheme and obtain a permit before conducting salvage operations. Although Plaintiff disagreed with the State's authority to impose its regulations on activity conducted within a federal domain, he applied for a state permit.

Plaintiff applied to the State of Florida Division of Historical Resources. After reviewing Plaintiff's application, James J. Miller, State Archaeologist and Chief of the Bureau of Archaeological Research, informed him (in a letter dated May 25, 1990) that a salvage contract would be inconsistent with the agreement specifying the land's proper use. Plaintiff's permit was, therefore, denied.

Plaintiff did not apply for a permit with the United States Park Service, but Plaintiff did discuss the matter with Assistant United States Attorney Gregory N. Miller. The United States Government took a similar position regarding salvage activities in the Cape Canaveral National Seashore. Miller opined (in a letter dated May 31, 1990) that the "terms of the dedication prohibit the United States of America from granting Mr. Lathrop permission to conduct salvage operations within the Canaveral National Seashore." Plaintiff's Motion for Preliminary Injunction, Exhibit C. Also, the letter stated that if the Park were used contrary to the dedication's purpose, the reverter clause would terminate the United States' interest, causing the land to revert to the State of Florida. The United States fearing that it would lose an important national park reaffirmed its adherence to park regulations requiring a permit. See 36 C.F.R. § 2.1.

One month later, Plaintiff filed a Motion for Preliminary Injunction (the first motion), seeking to invoke this Court's admiralty jurisdiction and to enjoin the United States from interfering with Plaintiff's maritime right of salvage. Plaintiff alleged that imposing a federal requirement to obtain a permit from the United States before conducting salvage activities—primarily excavation —in the Cape Canaveral National Seashore interfered with his right of salvage. The Court conducted a hearing on Plaintiff's Motion on July 23, 1990. The United States filed an amicus curiae brief opposing Plaintiff's Motion and appeared at the hearing.²

On August 6, 1990, Judge G. Kendall Sharp granted Plaintiff's Motion for a Preliminary Injunction,³ and enjoined the United States for ninety days from interfering with the Court's continuing in rem jurisdiction over the alleged vessel and with Plaintiff's ongoing salvage operations. In granting that injunction, the Court determined that the United States did not have "constructive possession" which would establish its claim of ownership and thereby defeat Plaintiff's claim. Moreover, the Court held that general admiralty law principles award ownership to a salvor or finder who locates abandoned property and then exercises dominion and control over the found property. According to the Court, applying an "embeddedness" theory would conflict with admiralty law. Therefore, federal statutes could not be construed to displace general admiralty law because those statutes conflict with established maritime principles. The Court did not address the State's claim of title.

With the injunction firmly in place, Plaintiff resumed salvage operations. Plaintiff had contracted with Cobb Coin Company, Inc. ("Cobb"), and its Operations Manager, John Brandon, to help salvage the vessel. During August 1990, Cobb conducted a preliminary magnetometer survey twenty-two miles south of Ponce de Leon Inlet. The objective of this survey was to determine the presence of ferrous or other objects within the area thought to contain a sunken shipwreck.

A seven person crew led by Kim Fisher, Captain and Vice President of Cobb, was dispatched to the alleged vessel site. This crew conducted preliminary magnetometer surveys. The crew's analysis of the preliminary survey led them to conclude that no identifiable correlation existed between the anomalies. The area, which Plaintiff believed to contain an historic shipwreck, instead, could be a natural trap for metallic debris washed in from the sea. Without acquiring additional knowledge of the depth of the sand and shell overburden covering the bedrock, it was impossible to calculate the size of the objects producing the magnetic fluctuations or anomalies.

After the surveys were completed, Plaintiff began excavating selected areas in search of the alleged vessel. Cobb's crew would anchor the boat and utilize the boat's prop-wash deflectors to steer prop-wash into the ocean floor and excavate a pinpoint area. Although this was an effective technique, it created large craters in the soil. These craters were examined...