Metropolitan Dade County v. One (1) Bronze Cannon

• Decision Date: 23 April 1982
• Docket Number: No. 82-310-CIV-EPS.,82-310-CIV-EPS.
• Citation: 537 F. Supp. 923
• Parties: METROPOLITAN DADE COUNTY, Plaintiff, v. ONE (1) BRONZE CANNON, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

537 F. Supp. 923

METROPOLITAN DADE COUNTY, Plaintiff, v. ONE (1) BRONZE CANNON, et al., Defendants.

No. 82-310-CIV-EPS.

United States District Court, S. D. Florida, Miami Division.

April 23, 1982.

Jack M. Coe, William Y. Sayad, Teresa L. Mussetto, John C. Seipp, Jr., William P. Harris, Miami, Fla., for claimants.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS

SPELLMAN, District Judge:

THIS CAUSE came before the Court on Plaintiff's Emergency Motion for a Temporary Restraining Order and Preliminary Injunction. The parties entered into a stipulation that the cannons would not be removed pending this Court's determination on the Preliminary Injunction. Thereafter, Plaintiff filed a complaint in admiralty and the Claimant, Leonard Wisniewski, moved to dismiss the complaint.

STATEMENT OF THE FACTS

In July of 1970, Marine Exploration Company Inc., Marine Company, entered into an agreement with the Haitian government to conduct treasure salvage operations off the coast of Haiti. As a means of financing this operation, Marine Company entered into a limited partnership with a corporation formed to finance the expedition, Haitian Ventures, Inc. Most of the principals and/or shareholders of Haitian Ventures, Inc., but not all, were also principals or shareholders of Marine Company. Moreover, some of the shareholders of Haitian Ventures, Inc., also physically participated in the treasure salvage expedition in question here.

Sometime in September, 1971, a salvage expedition took place off the coast of Haiti. During this expedition, two bronze cannons were discovered. Marine Company, because of its practical experience in treasure salvage operations became the custodian of the cannons and acted as trustee for all the salvors involved in the expedition in securing an agreement with the Historical Museum of Southern Florida for display.

Since the cannons remained on display at the Historical Museum, none of the claimants disputed the disposition of the cannons. However, on July 6, 1978, Leonard Wisniewski filed suit against the Historical Museum in state court. Wisniewski based his action on a replevin theory, claiming he had purchased the cannons from the president of Marine Company (a Mr. Zepetas). Mr. Zepetas purported to sell a 100% interest in the cannons for the alleged price of $5,000.

Originally, the Historical Association sought to bring suit in Federal Court on a interpleader theory, naming the Republic of Haiti, Leonard Wisniewski, Marine Explorations Company, Inc. and Haitian Ventures, a dissolved Florida corporation as defendants. The District Court (Hoeveler, J.) declined to exercise jurisdiction on the basis of comity and abstention. 78-3222-CIV-WHM.

In the state trial court, the Haitian government intervened as a party defendant, and asserted their desire to have the cannons remain on display in the Dade County Museum. The Trial Court issued a writ of replevin, which was dissolved following a hearing on defendants' motion to dissolve. On appeal, the Third District Court of Appeals reversed and remanded the action with directions to enter a judgment of replevin in favor of Wisniewski. Basically, Wisniewski's claim derives from his being the purchaser and assignee from the Marine Company which loaned the cannons to the Historical Association as a bailee to exhibit them with the understanding that the cannons would be returned on demand. The government of Haiti based its claim on, among other things, an alleged contract with Marine Company which allocated 25% interest to the Haitian government in anything found during the exploration in exchange for exploration rights in Haitian territorial waters.

Meanwhile, on February 5, 1982, Dade County acquired an interest in the cannons through the donation of Lloyd J. Bell, a cosalvor of the cannons. Mr. Bell donated his interest in the cannons to Dade County because of his desire that the cannons be preserved for the benefit and enjoyment of all the residents of Dade County, Florida. Dade County also alleges that other cosalvors are willing to donate their interests to them. Apparently, Dade County believes that the historical valuable cannons will not be preserved if delivered to Mr. Wisniewski. The cannons are believed to contain a percentage of gold alloy estimated to be worth in excess of $50,000. The concern is that the cannons will be melted down for the gold.

In addition, it appears that on February 18, 1982, the cannons were impounded by Federal Marshals at the Museum pursuant to a writ of execution on a judgment entered against Marine Company in Pan American Bank v. Oil Screw, Denise, Tracor Marine, Inc. and Tug Tami W. etc., et al., 77-1618-CIV-JE, 77-254-CIV-JE and 77-283-CIV-JE. T.H.E. Investment Co., a Massachusetts corporation, is the successor in interest to the prevailing party in the above-styled suits. It is not clear from the record just what the above suit involved, but T.H.E. Investment Co. has filed a response, as judgment creditor of the Marine Company and wants the Historical Association of Southern Florida to be appointed custodian of the cannons until the court can resolve this matter.

On March 8, 1982, Wisniewski filed a motion to dismiss Metropolitan Dade County's complaint in this action. Wisniewski characterized this suit as an attempt to litigate through the ruse of admiralty law what is a complaint in interpleader to determine owners which was expressly dismissed by Judge Hoeveler in 1978, case number 78-3222-CIV-WMH. Claimant, Wisniewski also asserts that this action is barred by 46 U.S.C. § 730 which provides:

A suit for the recovery of remuneration for rendering assistance or salvage services shall not be maintainable if brought later than two years from the date when such assistance or salvage was rendered, unless the court in which the suit is brought shall be satisfied that during such period there had not been any reasonable opportunity of arresting the assisted or salved vessel within the jurisdiction of the court or within the territorial waters of the country in which the libelant resides or has his principal place of business.

Relying on the above language, Wisniewski contends that since the cannons have been in the possession of the Historical Museum since September, 1972, the time for bringing this action has expired. Lastly, Claimant, Wisniewski, contends that this court lacks jurisdiction. Specifically, he asserts that based on 28 U.S.C. § 1333 this court does not have subject matter jurisdiction. The statute states in pertinent part that:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize. Emphasis Added.

Wisniewski claims that the saving to suitors language in 28 U.S.C. § 1333 enables maritime litigants to pursue available common law remedies, if they prefer them to those supplied in admiralty. Pacific Far East Line, Inc. v. Ogden Corp., 425 F.Supp. 1239 (D.C.N.D.Cal.1977). Based on the above reasoning, Wisniewski pursued an action for replevin in state court, received a writ of replevin and he now claims that should be the end of it.

In light of the above situation, there are several issues to be decided. Those issues are as follows:

(1) Whether this court lacks subject matter jurisdiction because pursuant to the saving to suitors language in § 1333, all rights to possession were decided under state law in the replevin action?

(2) Whether this is a valid admiralty action or a mere attempt to litigate through the admiralty law what is a complaint in interpleader which Judge Hoeveler has previously dismissed based upon abstention and comity?

(3) Whether 46 U.S.C. § 730 bars recovery in this action?

I. SUBJECT MATTER JURISDICTION

A. TITLE 28 U.S.C. § 1333

Pursuant to § 1333 the District Courts have original jurisdiction exclusive of the state courts of all cases involving admiralty or maritime claims. As early as 1804, the Supreme Court recognized that salvage claims fall within the confines of federal admiralty jurisdiction. Mason v. The Blaireau, 6 U.S. (76 U.S.) 240 (1804); Treasure Salvors v. Unidentified Wrecked and Abandoned Sailing Vessels, 640 F.2d 560, 566, n.5 (5th Cir. 1981) Treasure Salvor III. The Fifth Circuit in discussing admiralty jurisdiction noted that a very common type of legal claim arising from salvage operations "involves a salvor's assertion of his right to a monetary award which maritime law provides as an incentive to encourage persons to assist distressed or endangered vessels." 640 F.2d at 567. Evidently, a maritime lien is created by the rendering of salvage services, and the salvors "may assert his right to a salvage award either in an in rem proceeding against the salved vessel or cargo, or in an in personam proceeding against the owner of the salved property." Id. Moreover, the award in such a suit is not limited to the value of the services rendered and may "include a bounty or award based upon the risk involved in the operation and the skill with which it was performed." Id. (citing 3A M. Norris, Benedict in Admiralty: The Law of Salvage, § 235 (7th ed. 1980)).

As applied in this case, the claims are based on the maritime law of salvage and finds. The Plaintiff is asking this court to make a determination of equitable rights in the cannons in question. The Haitian government has an alleged interest in the cannons which were discovered off the Haitian coast. Others who financed and participated in the salvage expedition during which the cannons were raised also may have an interest as salvors. Furthermore, since the courts have indicated that "an in rem action for a salvage award against artifacts recovered from the remains of a centuries old shipwreck...