R.M.S. Titanic, Inc. v. Wrecked and Abandoned Vessel

• Decision Date: 02 July 2004
• Docket Number: No. ACT.NO. 2:93CV902.,ACT.NO. 2:93CV902.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: R.M.S. TITANIC, INC., successor-in-interest to Titanic Ventures, limited partnership, Plaintiff, v. THE WRECKED AND ABANDONED VESSEL, Its Engines, Tackle Apparel, Appurtenances, Cargo, etc., Located Within One (1) Nautical Mile of a Point Located at 41 43' 32&#34; North Latitude and 49 56' 49&#34; West Longitude, Believed to be the R.M.S. Titanic, <I>in rem</I>, Defendant.

Page 724

323 F.Supp.2d 724

R.M.S. TITANIC, INC., successor-in-interest to Titanic Ventures, limited partnership, Plaintiff, v. THE WRECKED AND ABANDONED VESSEL, Its Engines, Tackle Apparel, Appurtenances, Cargo, etc., Located Within One (1) Nautical Mile of a Point Located at 41 43' 32" North Latitude and 49 56' 49" West Longitude, Believed to be the R.M.S. Titanic, in rem, Defendant.

No. ACT.NO. 2:93CV902.

United States District Court, E.D. Virginia. Norfolk Division.

July 2, 2004.

COPYRIGHT MATERIAL OMITTED

J. Ridgely Porter, III, Esquire, Carr & Porter LLC, Portsmouth, VA, Counsel for RMS Titanic, Inc.

Lawrence R. Leonard, Assistant U.S. Attorney, Norfolk, VA, Counsel for USA.

MEMORANDUM OPINION AND ORDER

REBECCA BEACH SMITH, District Judge.

This matter is before the court on plaintiff R.M.S. Titanic, Incorporated's ("RMST's") "Motion for Salvage and/or Finds Award," which is scheduled for a salvage award hearing to begin on October 18, 2004. In its motion, RMST requested that the court rule on two preliminary matters prior to the hearing: (1) whether the court will recognize a 1993 Proces-Verbal issued by a French maritime official which purports to award RMST title to 1,800 artifacts raised from the wreck of the R.M.S. Titanic in 1987, and (2) whether RMST will be permitted to present evidence and argument at the October 18, 2004 hearing that it should be awarded title to all 5,900 Titanic artifacts presently in its possession under the law of finds. On May 17, 2004, the court held a hearing on these two preliminary issues. For the reasons set forth below, the court will not recognize the 1993 Proces-Verbal and RMST is estopped from arguing that it is the owner of the artifacts under the law of finds. See infra, Part II. Also set forth below, for the purpose of assisting RMST in preparing for the October 18, 2004 hearing, is an explanation of the factors the court will consider in fashioning RMST's salvage award. See infra Part III.

I. Factual and Procedural History

This in rem action has been pending for over a decade, and has resulted in the publication of numerous opinions by both the United States Court of Appeals for the Fourth Circuit and this court.¹ These opinions thoroughly review much of the factual and procedural history relevant to this extended litigation and that history will not be repeated in detail here.

On April 15, 1912, the luxury liner R.M.S. Titanic ("Titanic") sunk in the North Atlantic Ocean, killing 1,523 of the 2,228 passengers and crew onboard. In 1985, a joint American-French expedition discovered the wreck of the Titanic in international waters about 400 miles south of Newfoundland. The discoverers of the sunken vessel did not take any artifacts from the wreckage.

In the summer of 1987, RMST's predecessor-in-interest, Titanic Ventures limited partnership ("TVLP"), working in conjunction with the Institut francais de recherche pour l'exploitation de la mer ("IFREMER"), recovered 1,800 artifacts over the course of thirty-two dives to the Titanic wreck.² All of the 1987 artifacts were taken to France, where they underwent conservation and restoration processes at the government-owned laboratories of Electricite de France, and at LP3, a privately-owned conservation laboratory in Semur-en-Auxois.

By 1993, RMST had acquired both TVLP's interest in the Titanic salvage operation and TVLP's interest in the 1987 artifacts. In June, 1993, RMST, again in conjunction with IFREMER, conducted fifteen dives to the Titanic wreck, recovering 800 artifacts. All of these artifacts were brought to Norfolk, Virginia, and on August 26, 1993, RMST filed its verified complaint in this case, requesting, inter alia, that it be awarded the exclusive right to recover artifacts from the Titanic wreck as salvor-in-possession.

On October 20, 1993, a French Maritime Affairs Administrator, M. Chapalain, representing the Head of the Headquarter of Lorient, and then-managing partner of TVLP, George Tulloch ("Tulloch"), executed a proces-verbal³ ("the Proces-Verbal").

The Proces-Verbal, as translated, is entitled "Minutes of Delivery to the Salvagor of the Artifacts Recovered from the Titanic Wreck in 1987 (Article 13 of the decree n 61-1547 dated December 21, 1961 determining the regime of the wreck at sea)." In its entirety, the Proces-Verbal states as follows:

[i]n accordance with its decision dated October 12, 1993, taken pursuant to the provisions of the decree n 61-1547 dated December 26, 1961 determining the regime of the wreck at Sea, M. Chapalain, representing the Head of the Headquarter of Maritime Affairs of Lorient, has carried out this day the delivery of artifacts recovered from the Titanic wreck in 1987 and whose legal owners or heirs have not been identified pursuant to the publicity measures implemented by the French Authorities, to Titanic Ventures Limited Partnership, in its capacity as salvagor. The list of artifacts is exhibited to the present minutes together with the letter of intent of Titanic Ventures Limited Partnership dated September 22, 1993.

(See Mem. in Support of Finds/Salvage Award, at Ex. C.) The "October 12, 1993 decision" referred to in the Proces-Verbal consists of a letter signed by M. Tricot, the "maritime affairs administrator of 2 class." It states that, pursuant to Article 13 of the decree n 61-1547, the 1987 artifacts will be "delivered" to TVLP. Tricot further states:

As regards this delivery, I took good note of your intention mentioned in your letter dated September 22, 1993, by which you undertake to make a respectful use of the said artifacts in memory or their initial owners and not to make any commercial operations of these artifacts nor any sale of even one of them whichever it would be, nor any operation which would lead to their dispersion except for exhibition purposes.

(See Letter to the Court, Jan. 4, 1994, at Attachment (emphasis added)). The letter referred to by Tricot is dated September 22, 1993, addressed to M. Tricot, and signed by Tulloch. It states in relevant part that TVLP, "wishes to own" the 1987 artifacts. "[O]n behalf of" TVLP, Tulloch then states that the company "intends to make a respectfull [sic] use of the artifacts recovered from the Titanic in 1987 in memory of their initial owners." He further states that "[i]n this view, I indicate [to] you that the artifacts will only be used on [sic] a cultural purpose and will not, therefore, be part of any operations which would lead to their dispersion, but to the exception of exhibition purposes, and none of the artifacts will be sold." Id.

Thus, relying on TVLP's representation that the artifacts would never be commercially exploited or separated from one another, except for purposes of their public exhibition, the Proces-Verbal transfers title of all of the artifacts pursuant to Article 13 of the decree n 61-1547 dated December 21, 1961, determining the regime of the wreck at sea.

On June 7, 1994, this court issued an order in the above-captioned in rem action, awarding RMST the status of exclusive salvor-in-possession of the Titanic wreck. That summer, again in conjunction with IFREMER, RMST conducted another expedition to the wreck site, recovering approximately 1,000 artifacts.

On February 20, 1996, John Joslyn ("Joslyn") filed a motion pursuant to Federal Rule of Civil Procedure 60(b) asking the court to reconsider its June 7, 1994 Order and rescind RMST's salvor-in-possession status, on the basis that RMST was not fulfilling its duty as salvor-in-possession to diligently salvage the Titanic wreck. Joslyn's motion was primarily based upon the fact that RMST had not made an expedition to the site of the Titanic wreck in nearly two years and that it was financially incapable of doing so.

In opposition to Joslyn's motion, RMST argued that, notwithstanding its extended absence from the site of the wreck, it should be permitted to remain salvor-in-possession because of its extensive on-shore restoration, conservation, and exhibition activities. (Pl. Mem. in Opp. to Mot. of John Joslyn, Mar. 1., 1996, at 16-17.) For the purpose of supporting its opposition to Joslyn's motion, RMST also filed the affidavit of Tulloch, then-president of RMST and a member of the board of directors. Among other things, Tulloch's affidavit addressed RMST's intent in recovering and preserving Titanic artifacts. In this regard, Tulloch stated that RMST, "has founded, together with the National Maritime Museum, an International Advisory Committee [("IAC")] to safeguard the future of the Titanic wreck site and objects raised from it and to ensure that they are conserved to the highest standards and saved for future generations in a Titanic Memorial Museum." (Aff. of George Tulloch, Mar. 1, 1996, at ¶ 4.)

Further, in a periodic report on the status of the salvage operation submitted to the court on April 25, 1996, RMST stated that it would continue to "protect the archeological and historical integrity" of the Titanic "[w]ith the direction of the International Advisory Committee." (Periodic Report of RMST on the Progress of Recovery Operations, Apr. 25, 1996, at 7.)

At the conclusion of a May 1, 1996 evidentiary hearing, the court denied Joslyn's motion from the bench and stated that it would issue a written opinion detailing the reasons for its denial at a later date. On May 10, 1996, a written Memorandum Opinion and Order was filed. See R.M.S Titanic, Inc. v. Wrecked and Abandoned Vessel ... believed to be the R.M.S. Titanic, 924 F.Supp. 714 (E.D.Va.1996) (Titanic 1996). The Titanic 1996 Opinion explains that the court's factual finding that "RMST has kept its promise to maintain and preserve the TITANIC artifacts," was largely based on the establishment of the IAC "to address issues related to the future of both the wreck site and the retrieved artifacts." Titanic 1996, 924 F.Supp. at 718. Further, the court's factual finding that RMST had fulfilled its duties as salvor-in-possession was...