Smith v. The Abandoned Vessel
| Decision Date | 27 April 2009 |
| Docket Number | Civil Action No. H-07-784. |
| Citation | 610 F.Supp.2d 739 |
| Parties | Nathan SMITH, Plaintiff, v. THE ABANDONED VESSEL, in rem. |
| Court | U.S. District Court — Southern District of Texas |
Richard A. Schwartz, Adraon D. Greene, Schwartz Junell Greenberg and Oathout LLP, Houston, TX, for Plaintiff.
Ronald B. Walker, Terry M. Carroll, Jr., Walker Keeling and Carroll, LLP, Victoria, TX, for Intervenor Marie O'Connor Sorenson.
FINDINGS OF FACT & CONCLUSIONS OF LAW
On December 29, 2008, the Court commenced a non-jury trial in the above entitled matter. During the course of the two-day proceeding, the Court took evidence and heard sworn testimony. Having considered the evidence, testimony and oral argument presented during the trial, posttrial submissions, and applicable law, the Court now enters the following findings of fact and conclusions of law.1 Any finding of fact that should be construed as a conclusion of law is hereby adopted as such. Any conclusion of law that should be construed as a finding of fact is hereby adopted as such.
This is an in rem action brought under the Court's admiralty jurisdiction. Plaintiff Nathan Smith ("Smith"), a self-described "musician by birth" turned movie director, music producer, and treasure hunter from Los Angeles, California,2 claims to have discovered a lost barkentine treasure ship from the 1820s near a small lake in Refugio (pronounced re-fury-oh) County, Texas.3 Smith seeks title to the vessel under the law of finds, or alternatively, the right to salvage it and obtain a just award under the law of salvage. Further, Smith seeks an order enjoining all others from obstructing him from proceeding with his recovery efforts. Finally, Smith asserts that Intervenor Marie Sorenson ("Sorenson") lacks standing to contest his claims because Sorenson failed to file a verified claim to the vessel.4 Sorenson, owner of the land under which Smith claims the vessel is located, contests the existence of the alleged vessel and the Court's jurisdiction and moves the Court to dismiss the case for lack of subject matter jurisdiction.
1. Smith first became interested in treasure hunting when he and a colleague ran out of money while producing a movie.5
2. Inspired by the film National Treasure, starring Nicolas Cage, Smith determined to fund his movie venture by hunting for and finding lost and hidden treasures.
3. Shortly thereafter, Smith discovered the book Lost Treasures of American History by W.C. Jameson ("Jameson") while browsing in a Borders bookstore. In the book, Jameson recites the legend of Barkentine Creek in Refugio County, Texas.
4. According to the legend, sometime around 1822, four Spanish treasure ships laden with casks of gold and silver set sail from Vera Cruz, Mexico bound for Galveston, Texas on their way to Spain to deliver their bounty to the King.
5. Unfortunately, during the voyage the fleet encountered a hurricane. Three of the ships were lost in the storm.
6. However, the captain of the fourth vessel, in an attempt to outmaneuver the storm and avoid the fate of his three camaradas, navigated his barkentine inland from the Gulf of Mexico, into Copano Bay, up the Mission River, and further into a creek, where she ran aground.
7. Legend has it the captain and crew then abandoned the ship and encountered a tribe of native cannibals known as the Karankawas. The Spaniards quickly met an ignominious demise.
8. Some fifty years later, the story goes, Comanche Indians discovered the vessel, which by then was partially buried in the stream.
9. The Comanches discovered the vessel's rich cargo and took some of the gold for themselves. But they, too, soon became dinner for the Karankawas.
10. It is said, however, the Comanches who found the gold buried it during the battle and it remains buried there to this day.
11. Later, one of the early settlers of the area, a man named Nicholas Fagan, reportedly found the remnants of the lost ship and took lumber and iron off of it to build a house, not knowing of the vast treasure buried below his feet.
12. In Lost Treasures of American History, Jameson claims the vessel ran aground in Barkentine Creek in Refugio County. Jameson wrote that the finder of the lost barkentine would "possess wealth beyond imagining."
13. The legend of Barkentine Creek and its namesake has been told by many others throughout the years, including Tom Townsend in Texas Treasure Coast, an article in the Victoria Advocate, and an article entitled Nicholas Fagan, Texas Patriot written in 1958 by Mrs. Tom O'Connor.
14. Upon reading Jameson's account, Smith became determined to find the lost barkentine, despite having no previous training or experience in historical research, map-reading, general navigation, or locating and salvaging lost treasures or abandoned shipwrecks.
15. Smith first looked at satellite images of Barkentine Creek on the Internet and saw it did not connect to Mission River. Smith surmised the barkentine must have gone into a different creek.
16. Smith next obtained an 1851 map of Refugio County from the Texas General Land Office and compared it to recent satellite images obtained from Google Earth and other sources.
17. Smith noticed that the 1851 map showed Melon Creek running from north to south directly into Mission River.
18. The later satellite images showed a change in direction of Melon Creek.
19. Instead of running in a straight line directly from north to south, Melon Creek diverted to the east and then back to the west and south into Mission River.
20. Smith asked himself what might have caused this change of direction.
21. Using Google Earth, Smith detected an image he believes to be the shape of a vessel situated near the southern shore of Melon Lake and between Melon Lake and Mission River. Smith believes this "shoe-print" shape is the wreckage of the abandoned barkentine.6
22. By extrapolating from the satellite image, Smith identified the area in which he believes the abandoned vessel lies as a rectangular area approximately six-hundred square feet in size (the "Work Area"), which is positioned between Mission River and Melon Lake.
23. Melon Lake lies to the north of Mission River.
24. Melon Creek runs from north to south on the eastern edge of Melon Lake and enters Mission River.
25. Mission River generally flows southward into Mission Bay, which opens into Copano Bay and the Gulf of Mexico.
26. Melon Lake is connected to Melon Creek via a slough or tributary (the "Tributary").7
27. Smith consulted with a purported barkentine reconstruction specialist in Michigan and a magnetometer company and provided each his satellite images.
28. Those conversations reinforced Smith's belief that he had found a buried vessel in that area.
29. Smith has been to the location of the alleged abandoned vessel on four occasions.
30. In October of 2005, Smith went to the site for the first time.
31. Smith and a companion, Katherine Brown ("Brown"), initially went to the area of Mission River looking for the alleged shipwreck but forgot to take any maps to locate the specific site and did not have a Global Positioning System ("GPS") device to find the coordinates.
32. Smith and Brown arrived at Mission Bridge near midnight. They initially planned to swim Mission River in order to get to the area of the alleged shipwreck, but they decided against it and waited until dawn to cross the river.
33. The next morning they found an "abandoned" flat-bottom rowboat, complete with oars, on the shore of Mission River.
34. Smith and Brown reached the site of the alleged abandoned vessel using the rowboat they "borrowed." They rowed up Mission River, into Melon Creek, into the Tributary, and then into Melon Lake.
35. Within one-hundred feet of the area in which Smith claims the alleged vessel rests, the water is shallow, about six inches to one foot deep, so Smith got out of the rowboat and walked through the water about one-hundred feet to the alleged vessel's location.
36. Smith believes he found the alleged shipwreck's location because no vegetation grows in the area—due to, Smith asserts, creosote from the ship's lumber—and because there is a distinct marking upon the ground that Smith claims has the appearance of a vessel's "capstan."8
37. On Christmas of 2006, Smith again went to the site of the alleged vessel. That time, Smith and Brown, along with Alan Mezaratti, drove from Los Angeles directly to the town of Refugio, Texas. They stayed in a hotel in Refugio and went to the site the next morning.
38. The trio walked along the edge of Melon Lake from the Highway 2678 bridge to the alleged vessel's location.
39. According to Smith, the water was about four to five inches deep at the alleged vessel's location.
40. Smith also took a metal detector, which, he claims, showed gold and silver readings over the area under which he claims the vessel lies.
41. According to Smith's testimony, these metal detector readings confirmed that the alleged vessel and its rich contents extended northward into Melon Lake.
42. On this second trip, Smith had a camera with which he took photographs of the location to document his discovery. However, these photographs were lost in a computer hard-drive crash and none were offered as evidence.
43. In October 2007, Smith returned to the location for a third time, again with a metal detector and also a video camera. Smith made a video of the location and the metal detector readings, which again, he claims, demonstrated the existence of gold and silver at the location.
44. Unfortunately, the video taken on this third trip to the location also was lost in the computer hard-drive crash that destroyed the earlier-taken still photographs.
45. Smith also testified that on this trip he found a small piece of wood with what appeared to be saw marks.
46. Indeed, Smith produced a...
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...waterway to be “the critical question” as to whether the district court has admiralty jurisdiction. See Smith v. The Abandoned Vessel,610 F.Supp.2d 739, 748–49 (S.D.Tex.2009). The Court notes, however, that “[federal] courts have preferred to read congressional grants of admiralty jurisdict......
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...waterway to be “the critical question” as to whether the district court has admiralty jurisdiction. See Smith v. The Abandoned Vessel, 610 F.Supp.2d 739, 748–49 (S.D.Tex.2009). The Court notes, however, that “[federal] courts have preferred to read congressional grants of admiralty jurisdic......
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