Platoro Ltd., Inc. v. Unidentified Remains of A Vessel

• Decision Date: 27 February 1975
• Docket Number: No. 74-1540,74-1540
• Citation: 508 F.2d 1113
• Parties: PLATORO LIMITED, INC., Plaintiff-Appellee-Cross-Appellant, v. The UNIDENTIFIED REMAINS OF A VESSEL, her cargo, etc., Defendants, State of Texas, Movant-Appellant-Cross-Appellee, Jefferson T. Burke and Billy Russell Algoe, Intervenors- Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1113

508 F.2d 1113

PLATORO LIMITED, INC., Plaintiff-Appellee-Cross-Appellant, v. The UNIDENTIFIED REMAINS OF A VESSEL, her cargo, etc Defendants, State of Texas Movant-Appellant-Cross-Appellee Jefferson T. Burke and Billy Russell Algoe Intervenors- Appellees.

No. 74-1540.

United States Court of Appeals, Fifth Circuit.

Feb. 27, 1975.

John L. Hill, Atty. Gen. of Tex., Larry F. York, First Asst. Atty. Gen., Elizabeth Levatino, Austin, Tex., for movant-appellant.

Thomas G. Sharpe, Jr., Brownsville, Tex., for Platoro Limited.

Roger Butler, Robston, tex., Gordon L. Briscoe, Harlingen, Tex., Eduardo Roberto Rodriguez, Brownsville, Tex., for Jefferson T. Burke, and others.

Appeals from the United States District Court for the Southern District of Texas.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

In 1555 several Spanish vessels sank off the coast of Padre Island, Texas, in the Gulf of Mexico during a hurricane. The wreckage remained there practically undisturbed until September 9, 1967. ¹ On that date Platoro Limited, Inc., an Indiana corporation, began operations to recover the remains of the vessels. Platoro successfully located some artifacts, and, as the items were recovered, it shipped them to Gary, Indiana. Recovery operations took place from September until December 13, 1967, when the 28th Judicial District Court for the State of Texas issued a temporary restraining order prohibiting Platoro from conducting further salvage operations. The State of Texas had instituted the state court suit under former 147a & 147b of the Texas Penal Code. ²

Shortly after the state court suit was filed, Jerry Sadler, then the Texas Land Commissioner, opened negotiations with Platoro regarding the recovered items. After considerable negotiation, Platoro and Sadler agreed to a contract dividing the articles already recovered, and arranging for continued exploration of the Padre Island area. An officer of Platoro signed the contract, but no representative of the State of Texas ever did. Pursuant to the negotiations, Platoro returned the recovered items to Austin, texas, where they were held by the General Land Office. In September 1969, the state judicial district court ordered the items transferred to the Texas Archaeological Research Library, also located in Austin.

On August 6, 1969 Platoro filed an in rem suit in the federal district court for the Southern District of Texas. Platoro's complaint sought a declaration that title to the recovered items was vested in Platoro, or alternatively a salvage award for the recovery operations. The State of Texas appeared in the district court, filing a plea of immunity from suit and requesting dismissal for lack of jurisdiction. The district court refused to dismiss the suit, and enjoined the state district court from disposing of the res. After a hearing, the court ruled that Platoro was entitled to a salvage award for its actions in recovering the items. In its memorandum and order of December 26, 1973, the district court held that (1) the district court had in rem jurisdiction and subject matter jurisdiction over Platoro's claim; (2) that Texas had title to the artifacts; (3) and Platoro should receive a salvage award of $131,248.00. The State of Texas appeals the district court's judgment on several grounds: (1) lack of in rem jurisdiction; (2) lack of subject matter jurisdiction since (a) Texas did not waive sovereign immunity, and (b) no maritime peril existed; and (3) improper computation of the salvage award. We reverse on the in rem jurisdiction point, and therefore find it unnecessary to consider the other claims. ³

To establish in rem jurisdiction in admiralty the res must be present in the district when the suit is filed or during the pendency of the action. Rule C(2), Supplemental Rules for Certain Admiralty and Maritime Claims provides: 'In actions in rem the complaint . . . shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action.' Rule E(3)(a) of the Supplemental Rules states: 'Process in rem and of maritime attachment and garnishment shall be served only within the district.' The fact that the artifacts originally lay within the Southern District does not establish in rem jurisdiction. See American Bank of Wage Claims v. Registry of District Court, 431 F.2d 1215 (9th Cir. 1970). Platoro itself removed the artifacts from the Southern District of Texas long before filing the suit there, and, when the monition issued the artifacts were in the Western District of Texas.

In its jurisdictional ruling, the district court acknowledged that the artifacts were not within the Southern District. It felt, however, that this case fell within exception to the general rule that removal of the res destroys a court's jurisdictional base. Where the res is accidentally, fraudulently, or improperly removed from the district, the court's in rem jurisdiction is not destroyed. The Rio Grande, 90 U.S. (23 Wall.) 458, 23 L.Ed. 158 (1874); American Bank of Wage Claims v. Registry of District Court,supra; Martin v. The Bud, 172 F.2d 295 (9th Cir. 1949). The exception cannot apply, however, where the district court did not...