Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel

Decision Date15 September 1987
Docket NumberNo. 87-1281,87-1281
Citation833 F.2d 1059
PartiesMARTHA'S VINEYARD SCUBA HEADQUARTERS, INC., Plaintiff, Appellant, v. The UNIDENTIFIED, WRECKED AND ABANDONED STEAM VESSEL, etc., et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Dean E. Cycon, Providence, R.I., for plaintiff, appellant.

Leo G. Kailas with whom Armen R. Vartian was on brief for defendant, appellee Marshallton, Inc.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

When Erasmus mused that "[a] common shipwreck is a source of consolation to all", Adagia, IV.iii.9 (1508), he quite likely did not foresee inconcinnate free-for-alls among self-styled salvors. To the exact contrary of what the Dutch scholar had blithesomely predicted, the petitioner-appellant in this case, Martha's Vineyard Scuba Headquarters, Inc. (Mavis), took not a particle of comfort when an order was entered in a federal district court awarding title to various artifacts retrieved from a sunken ship to a rival, Marshallton, Inc. (Marshallton). Mavis appeals. We affirm.

I. THE BRINY DEEP

On August 12, 1982, after a period of substantial undersea exploration, Mavis discovered the resting place of the S.S. Republic, a White Star ocean liner which plummeted to a watery grave in 1909. The wreck was found three hundred feet (more or less) under the surface, some sixty miles south of Nantucket Island, encroaching upon a so-called Traffic Separation Scheme (TSS)--a delineated international shipping route. On December 7, 1982, Mavis commenced an action in rem before the United States District Court for the District of Massachusetts seeking, inter alia, salvage rights and title to the sunken vessel and its contents. In mid-1983, the district court allowed petitioner to proceed with salvage operations. 1

There followed a series of skirmishes in the district court, not involving Marshallton and not now material. In the interim, Mavis's recovery efforts were characterized by considerable backing and filling. We need not recite chapter and verse; it suffices to say that the petitioner accomplished little of note. The ship remained unsalvaged until 1986. 2 Early that year, Marshallton moved to intervene. It claimed that Mavis had been too laggardly in salving the vessel, denigrated the petitioner's decision to postpone any further reclamation effort until July 1986, and sought permission to conduct a cargo recovery expedition of its own. On April 16, the district court found that Mavis had been dilatory and allowed intervention. This finding is well documented in the record and has not been challenged on appeal. And it is hornbook law that a would-be salvor, upon discovery of a wreck, does not automatically acquire rights to it in perpetuity. See 3A M. Norris, Benedict on Admiralty: The Law of Salvage, Sec. 152 (7th ed. 1983). The salvor must remain "ready, willing and able to complete the salvage project". Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir.1981) (Treasure Salvors III ). To maintain its franchise to the exclusion of others, the salvor's efforts must be (1) undertaken with due diligence, (2) ongoing, and (3) clothed with some prospect of success. See Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 525 F.Supp. 186, 204 (S.D.Fla.1981); Hener v. United States, 525 F.Supp. 350, 359 (S.D.N.Y.1981). It seems plain that petitioner did not meet this standard.

After ruling that Mavis had dropped the ball, the district court found Marshallton (the present appellee) to be, in effect, ready, willing, and able to proceed immediately with salvage. It gave appellee until June 30 to mount a recovery expedition--to get to the bottom of things, as it were. The court's grant of permission was conditioned upon Marshallton's compliance "with any applicable law and regulations," and upon its pledge to halt operations and vacate the site by the June 30 deadline. All items retrieved by the intervenor were to be safely preserved pending further order and petitioner was allowed to renew recovery efforts once Marshallton had departed. (In this regard, it should be noted that, even before Marshallton put its oar in the water, Mavis had planned to resume its labors no earlier than July 1.)

After trying unsuccessfully for a time to secure the imprimatur of the U.S. Coast Guard for its anticipated efforts (see infra n. 9), Marshallton finally gained to windward of its problems. The intervenor commissioned the Twin Drill, a ship of Panamanian registry, and sent it to the locus of the wreck. The vessel anchored in an outbound lane of the Off New York TSS. Salvage operations began on June 1. On June 10, Mavis moved to enjoin Marshallton from working on the site because, by anchoring the Twin Drill in a TSS, Marshallton was--as the movant saw it--out of compliance with applicable law (and thus, athwart the April 16 order). A hearing was held in the district court and the matter was taken under advisement. No restraint was imposed. Marshallton went about its business and the Twin Drill remained in place. It hauled anchor on June 30, in pursuance of the court's April 16 order.

On September 5, Marshallton moved for an award of title to the property recovered during its expedition and for exclusive salvage rights anent future operations at the site. The district court properly assumed in rem jurisdiction over the artifacts, Marshallton having brought them into Massachusetts. See Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 508 F.2d 1113, 1115 (5th Cir.1975). By memorandum and order dated February 23, 1987, the district court granted Marshallton title to all of the property which it had recovered, but declined to assign it exclusive salvage rights. The court likewise refused to enjoin Mavis--which, despite its assurances to the court, had failed to mount any semblance of a salvage party after the Twin Drill unmoored in late June--from undertaking a future expedition. In that decision, the district court specifically rejected Mavis's argument that Marshallton should forfeit the harvested fruits of its endeavors because its sortie was in knowing breach of the Convention on the International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, 28 U.S.T. 3459, T.I.A.S. No. 8587 (entered in force on July 15, 1977) (COLREGS), and hence, violative of the court's April 16 order. The court found, in effect, that Marshallton's posture vis-a-vis the COLREGS was inconsequential; and that, in any event, its salvage operation was not unlawful within the meaning and intendment of the order. At the bottom line, the court discerned no equitable reason to keep from the intervenor the prizes, such as they were, 3 which had accrued in consequence of its search. Petitioner appeals that portion of the February 23, 1987 order which awarded Marshallton title to the bibelots it had extracted from the briny deep.

II. A FISH OUT OF WATER?

We turn first to the question of appellate jurisdiction. Because the underlying action remains pending in the district court and future salvage rights remain up for grabs, the order awarding the artifacts to Marshallton is not a "final decision[ ]" in the sense required by 28 U.S.C. Sec. 1291. See Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) ("A 'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."). Thus, unless some other statute or rule confers jurisdiction, the appeal is not properly before us.

Although the waters are murky in this area of the law, we believe that 28 U.S.C. Sec. 1292(a)(3) has pertinence to the issue. That section provides as follows:

(a) ... the courts of appeals shall have jurisdiction of appeals from:

* * *

* * *

(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

28 U.S.C. Sec. 1292(a)(3).

The statute has deep and venerable roots. It was enacted in response to the penchant of admiralty courts to bifurcate the trial of certain maritime matters. Liability would first be adjudicated. If a party were found liable, the case would then be shipped to a commissioner or master to fix damages. As Professor Moore has put it:

The purpose of Sec. 1292(a)(3) was to permit a party found liable to take an immediate appeal from that [liability phase] finding and thereby possibly avoid an oftentimes costly and protracted trial of the damage issues.

9 J. Moore, Moore's Federal Practice, p 110.19 at 210 (1985). See generally St. Louis Shipbuilding & Steel Co. v. Petroleum Barge Co., 249 F.2d 905, 907 (8th Cir.1957).

Over time, the scope and purport of Sec. 1292(a)(3) have been altered gradually; yet, the resultant mutation has been relatively little discussed. It is generally recognized that the statute represents a departure from the usual juridical policies barring most intermediate appeals, and thus, should be "somewhat narrowly construed." In Re Northern Transatlantic Carriers Corp., 423 F.2d 139, 141 (1st Cir.1970). Further, we agree with Professor Moore that Sec. 1292(a)(3) was unaffected by the unification of civil and admiralty practice, and that it applies to:

(1) claims that are cognizable only in admiralty; [and] (2) claims that are within the admiralty and maritime jurisdiction but are also within the jurisdiction of the district court on some other ground, if such claims are identified as admiralty or maritime claims by the statement authorized by Rule 9(h) of the Federal Rules of Civil Procedure.

9 J. Moore, supra, p 110.19 at 209. In harmony with this formulation, the referenced rule provides in pertinent part that:

A pleading or count setting forth a claim for relief within the admiralty and maritime...

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