Odyssey Marine Exploration, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel

• Decision Date: 30 July 2010
• Docket Number: No. 8:08-cv-1044-T-23MAP,8:08-cv-1044-T-23MAP
• Parties: ODYSSEY MARINE EXPLORATION, INC., Plaintiff, v. UNIDENTIFIED, WRECKED, AND ABANDONED SAILING VESSEL, Defendant.
• Court: U.S. District Court — Middle District of Florida

727 F.Supp.2d 1341

ODYSSEY MARINE EXPLORATION, INC., Plaintiff,

v.UNIDENTIFIED, WRECKED, AND ABANDONED SAILING VESSEL, Defendant.

No. 8:08-cv-1044-T-23MAP.

United States District Court,

M.D. Florida,

Tampa Division.

July 30, 2010.

Allen K. Von Spiegelfeld, Eric C. Thiel, Banker Lopez Gassler, Melinda Joy MacConnel, Odyssey Marine Exploration, Inc., Tampa, FL, for Plaintiff.

ORDER

STEVEN D. MERRYDAY, District Judge.

The plaintiff, Odyssey Marine Exploration, Inc., recovers artifacts from sunken wrecks. In this case, the plaintiff seeks title to artifacts recovered from Le Marquis Tournay, a French vessel that sank in the English Channel in the late eighteenth century. (Doc. 28 at 2) The plaintiff believes that English privateers owned Le Marquis Tournay at the time of the ship's demise. (Doc. 28 at 2) The wreck, which includes cannon and other valuable artifacts, rests on the floor of the English Channel, at less than 200 meters beneath the surface, and within a five-nautical-mile radius from centerpoint coordinates 49° 46' N., 3° 31' W. (Doc. 1 at 2; Doc. 28-1 at 2) The wreck lies "beyond the territorial waters or contiguous zone of any sovereign nation." (Doc. 1 at 2)

The plaintiff tendered a brick from the wreck as evidence of "symbolic possession," the clerk issued a warrant of arrest in rem, and the plaintiff published notice of the find in The Tampa Tribune and The Times of London. (Doc. 28 at 2) The published notice identifies the wreck as Le Marquis Tournay but withholds the location of the wreck. (Doc. 17) The clerk entered a default on June 30, 2009. (Doc. 21) The plaintiff moved (Doc. 23) for default judgment, and a December 30, 2009, order (Doc. 24) denies the motion for failure to include the coordinates of the wreck. A February 11, 2010, order (Doc. 26) denies the plaintiff's motion to submit the wreck's coordinates under seal.

The plaintiff renews the motion for default judgment and seeks "title and ownership in the artifacts it has recovered, and those it will recover, from the defendant wreck site." (Doc. 28 at 7) The motion asserts that the plaintiff recovered from the wreck a shard of glass, a ship's bell, and a piece of sheething. (Doc. 28 Ex. B) Although the motion includes a blurry picture of a fourth artifact, no description accompanies the picture. (Doc. 28 Ex. B)

Discussion

The plaintiff requests under the law of finds a default judgment awarding to the plaintiff title to the wreck. (Doc. 28) Although admiralty law prefers the law of salvage to the law of finds, the law of finds governs the recovery of a long-abandoned wreck. As is typical in admiralty cases, the plaintiff's claim proceeds in rem against the wreck. In rem jurisdiction requires the presence of the entire res within the territorial jurisdiction of the court. However, the plaintiff seeks title both to the recovered artifacts and to the artifacts that the plaintiff "will recover" from the floor of the English Channel. Because possession of the recovered artifacts bestows jurisdiction to adjudicate title to those artifacts, the plaintiff fails to establish in rem jurisdiction to adjudicate title to the artifacts on the floor of the English Channel, which artifacts remain outside the territorial jurisdiction of the this court.

I. The Law of Finds and the Law of Salvage

Both the law of salvage and the law of finds apply to the recovery of property lost at sea. "Under the law of salvage, rescuers take possession of, but not title to, the distressed vessel and its contents" and realize a compensatory salvageaward. International Aircraft Recovery, L.L.C. v. Unidentified, Wrecked & Abandoned Aircraft, 218 F.3d 1255, 1258 (11th Cir.2000). The law of finds, in contrast, is "summed up succinctly as 'finders keepers.' " 218 F.3d at 1258. The law of salvage and the law of finds "serve different purposes and promote different behaviors," and a claimant cannot "have its cake and eat it too" by invoking both during a single recovery. R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, 435 F.3d 521, 531, 535 (4th Cir.2006) (" Titanic III ").

A. The Law of Salvage

Traceable to antiquity, the law of salvage rewards the voluntary rescue of imperiled property at sea-a result "utterly at variance with terrene common law." Martin J. Norris, 3A Benedict on Admiralty 1-1 (2009). The law of salvage functions as a trust on behalf of the true owner and "imposes duties of good faith, honesty, and diligence in protecting the property in [the] salvors' care." 171 F.3d at 964. A salvor removes property from a wreck in trust for the owner; exploitation of the salvaged property terminates the right to a salvage award. 171 F.3d at 964.

After recovering lost property, the salvor obtains a maritime lien that allows the salvor to proceed in rem to secure a salvage award. The Sabine, 101 U.S. 384, 386, 25 L.Ed. 982 (1879); R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 963 (4th Cir.1999) (" Titanic I "). The salvor also gains exclusive "possession" over the salvaged property to allow for the uninterrupted delivery of the property to the court-appointed custodian. See Titanic I, 171 F.3d at 966. The value of the recovered property governs the salvage award, and, if the salvage award exceeds the value of the salvaged property, the salvor receives title to the property. See 3A Benedict on Admiralty § 228; Titanic I, 171 F.3d at 963.

B. The Law of Finds

The law of finds allows a finder to acquire title to abandoned property by "reduc[ing] the property to his or her possession." Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985). Unlike the law of salvage, the law of finds imposes no trust on the finder, who acquires the property for his own benefit. "To establish a claim under the law of finds, a finder must show (1) intent to reduce property to possession, (2) actual or constructive possession of the property, and (3) that the property is either unowned or abandoned." Titanic III, 435 F.3d at 532 n. 3. The finder of abandoned property cannot exclude others from attempting to reduce discovered property to possession. Titanic III, 435 F.3d at 534-35. Unlike the law of salvage, an ancient part of the jus gentium, the law of finds is a "disfavored common-law doctrine incorporated into admiralty but only rarely applied." Titanic III, 435 F.3d at 532. Because the law of salvage presumes that property lost at sea is not "abandoned" (and thus the true owner retains title to the lost property), the law of finds traditionally applies only to objects (such as flora and fauna) never owned. 435 F.3d at 532.

However, the law of finds governs the recovery of an abandoned historical wreck. International Aircraft Recovery, 218 F.3d at 1258. In Treasure Salvors I, the plaintiff asserted title to the discovered wreck of the Spanish frigate Nuestra Señora de Atocha, which sank off the Florida Keys in 1622 while carrying precious metals from the new world. 569 F.2d at 333. Treasure Salvors I concludes that "[d]isposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths." 569 F.2d at 337; see also Klein 758 F.2d at 1512-14 (holding that the law of finds rather thanthe law of salvage applies to the recovery of a two-hundred-year-old wreck privately owned at its sinking). Accordingly, Treasure Salvors I holds that the law of finds applies to an abandoned wreck.

C. The Law of Finds Applies in the Present Case

Under Treasure Salvors I, the law of finds governs the plaintiff's claim. The plaintiff believes that the res sank more than two hundred years ago, and no owner claims the wreck. If the plaintiff correctly identifies the ship, the original owners were private citizens who passed away more than two centuries ago. Therefore, the plaintiff correctly asserts that the law of finds governs this claim.

II. Jurisdiction

"[T]he entry of a default judgment is not automatic, and ... a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant." Mwani v. bin Laden, 417 F.3d 1, 6 (D.C.Cir.2005). The plaintiff must provide only a prima facie showing of personal jurisdiction. 417 F.3d at 6. Generally, in rem jurisdiction "derives entirely from [the court's] control over the defendant res." United States v. One Lear Jet Aircraft, Serial No. 35A-280, Registration No. YN-BVO, 836 F.2d 1571, 1573 (11th Cir.1998). By controlling the res, a court declares rights in the res against the world. Titanic I, 171 F.3d at 964. In this case, jurisdiction extends to the recovered artifacts listed in Exhibit B of the plaintiff's amended motion for default judgment. (Doc. 28) However, jurisdiction fails to extend to the artifacts on the floor of the English Channel (despite the plaintiff's assurances that those artifacts eventually will arrive in this jurisdiction).

A. The Artifacts in the United States

Exhibit B of the motion (Doc. 28) for default judgment lists a shard of glass, a piece of sheething, and a ship's bell as the artifacts that the plaintiff recovered and transported to the United States. A June 19, 2008, order (Doc. 10) appoints the plaintiff as the substitute custodian of the res. Therefore, in rem jurisdiction attaches to the artifacts the plaintiff recovered and brought to the United States, which jurisdiction enables an adjudication of the plaintiff's title to these artifacts. Accordingly, the plaintiff's motion (Doc. 28) for default judgment is GRANTED to the extent that the plaintiff is awarded title under the law of finds to the shard of glass, the piece of sheething, and the ship's bell.

B. The Artifacts on the Floor of the English Channel

In rem jurisdiction fails to extend to the artifacts that remain in international water, and this want of jurisdiction prevents an adjudication in rem. If justice requires a judgment, however, "rigid legalisms" should not defeat jurisdiction. Treasure Salvors, Inc. v....