Treasure Salvors, Inc. v. UNIDENTIFIED WRECKED, ETC.

• Decision Date: 21 August 1978
• Docket Number: No. 75-1416-Civ-WM.,75-1416-Civ-WM.
• Citation: 459 F. Supp. 507
• Parties: TREASURE SALVORS, INC., a corporation, and Armada Research Corp., a corporation, Plaintiffs, v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, her tackle, armament, apparel and cargo located within 2500 yards of a point at coordinates 24.31.5' north latitude and 82.50 west longitude, said SAILING VESSEL is believed to be the NUESTRA SENORA de ATOCHA, Defendant.
• Court: U.S. District Court — Southern District of Florida

459 F. Supp. 507

TREASURE SALVORS, INC., a corporation, and Armada Research Corp., a corporation, Plaintiffs, v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, her tackle, armament, apparel and cargo located within 2500 yards of a point at coordinates 24.31.5' north latitude and 82.50 west longitude, said SAILING VESSEL is believed to be the NUESTRA SENORA de ATOCHA, Defendant.

No. 75-1416-Civ-WM.

United States District Court, S. D. Florida.

August 21, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David P. Horan, Key West, Fla., for plaintiffs.

Robert L. Shevin, Atty. Gen., by Bernard S. McLendon, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla., for defendant.

ORDER

MEMORANDUM INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW

MEHRTENS, Senior District Judge.

INTRODUCTORY STATEMENT AND CONCLUSIONS OF LAW

This proceeding follows the receipt of the mandate from the United States Court of Appeals in Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, Nuestra Senora de Atocha, etc., 5 Cir., 569 F.2d 330 (C.A. 5th 1978), which affirmed, with certain modifications, the judgment of this Court determining the ownership of salvaged articles from the ship Atocha. In order to effectuate the mandate of the Fifth Circuit, and carry out the judgment of this Court, a warrant for arrest was issued to seize certain salvaged articles in the possession of the Division of Archives, History and Records Management, Department of State, State of Florida, hereinafter, Division of Archives. The Division of Archives obtained a temporary stay of the warrant from the Fifth Circuit. Subsequently, the Court of Appeals dissolved the stay and allowed execution of the warrant. Pursuant to the warrant of arrest, the property in question was seized and is now in control and possession of this Court.

The Florida Division of Archives has challenged the jurisdiction of this Court and, subject to such objection, claims it is entitled to the property in question for various reasons, principally based upon a purported contract between the Division and Treasure Salvors.

For the reasons that follow, this Court holds: it had jurisdiction to issue the warrant of arrest and seize the property in question; the Division of Archives is bound by the earlier judgment of this Court; Treasure Salvors, under the judgment of this Court, as affirmed by the Fifth Circuit, is the owner of the property and entitled to possession; the claims of the Division of Archives to be the owner of the property, and to be accordingly entitled to the possession of such, are wholly without merit; and the present proceedings are not barred by the Eleventh Amendment to the Constitution of the United States nor by the Doctrine of Sovereign Immunity.

Before proceeding with this memorandum's discussion of the facts and reasons in support of the Court's conclusions, prepared to satisfy the requirements of Federal Rule of Civil Procedure 52, it may be helpful to place these proceedings in proper perspective, in particular the role of the agents and employees of the State of Florida, Division of Archives.

The Atocha was lost at sea because of a hurricane in 1622. Spain initially located the wreck and attempted salvage, recovering two cannons. But due to various perils of the sea the wreck was shortly thereafter lost and remained lost for over three centuries.

Then, in 1971, after an arduous search aided by survivors' accounts of the 1622 wrecks, and an expenditure of more than $2 million, plaintiffs located the Atocha. Plaintiffs have retrieved gold, silver, artifacts, and armament valued at $6 million. Their costs have included four lives, among them the son and daughter-in-law of Melvin Fisher, plaintiffs' president and leader of the expedition. 569 F.2d at 333.

As grave as the perils of sea are and were, the gravest perils to the treasure itself came not from the sea but from two unlikely sources. Agents of two governments, Florida and the United States, who have the highest responsibility to protect rights and property of citizens, claimed the treasure as belonging to the United States and Florida.

The finding of a great treasure from the days of the Spanish Main is not a cherished dream of only the United States and Florida citizens; countless people from other lands have shared such thoughts. It would amaze and surprise most citizens of this country, when their dream, at the greatest of costs, was realized, that agents of respective governments would, on the most flimsy of grounds, lay claim to the treasure. As previously determined by this Court, the wreck site is outside the territorial boundaries of the United States and Florida, and under provisions of applicable treaties, which are the supreme law of the land, no claim can be made on the basis of sovereign ownership. This Court and the Fifth Circuit rejected a sovereign prerogative argument of the United States that all treasure found by its citizens anywhere in the world belonged to the United States as the American "Crown."

The zeal of the United States in claiming the salvaged articles of the Atocha has been exceeded by the agents of the State of Florida. Although occasionally state employees are faulted for failure to protect state property, certainly this does not apply to the personnel of the Division of Archives who, in their unstinting efforts to claim property belonging to Treasure Salvors, have reacted as though Treasure Salvors were attempting to steal the old Capital Building as well as the great Seal of the State.

The ship Atocha's association with Florida is tangential at best and certainly is not integral to the heritage and development of the State. The ship was bound on a voyage from Havana to Cadiz when the storm of 1622 drove it close to, but outside of, the boundaries of the later State of Florida. Its cargo was not connected or associated with the Florida peninsula. Nevertheless, agents from the Division of Archives have persisted in wrongfully attempting to lay claim to the salvage recovered by Treasure Salvors or an interest therein. The Division of Archives did not find the Atocha or its cargo, and there is no basis in fact for suggesting that the Division ever could have located it, much less recovered it. Merely because agents of the State covet the treasure, does not give the agents the right to take it in the name of the State. It is ironic that the agents of the State are able to use resources of the State to deprive Treasure Salvors of what it justly and rightfully owns, especially when the record reflects that Treasure Salvors was willing at one time to donate a portion of the salvaged articles to the State.

After presentation of evidence and argument before this Court, both the Division of Archives and Treasure Salvors filed extensive briefs. The Court agrees substantially with the reasons and arguments of Treasure Salvors.

THE DIVISION OF ARCHIVES IS IN PRIVITY AND BOUND BY JUDGMENT OF THIS COURT AS AFFIRMED BY THE FIFTH CIRCUIT

In resolving the jurisdictional issues and the arguments advanced by the Florida Division of Archives, it is significant that the present proceeding is not a new independent action, but concerns an appropriate issuance of an ancillary warrant of arrest in a pending admiralty case over which this Court's jurisdiction is not questioned and where such ancillary warrant is necessary to carry out the judgment of this Court and the Fifth Circuit. Because of the importance of the nature of this proceeding and the relevancy of certain facts to the jurisdictional issues concerning the Eleventh Amendment and sovereign immunity, the discussion of those issues will be made at the conclusion of this memorandum.

If the Division of Archives is in privity there is no question that it would be bound by the judgment and its argument against jurisdiction would be of no avail. The Fifth Circuit ruled:

To summarize, the district court properly adjudicated title to all those objects within its territorial jurisdiction and to those objects without its territory as between plaintiffs and the United States. In affirming the district court, we do not approve that portion of its order which may be construed as a holding that plaintiffs have exclusive title to, and the right to immediate and sole possession of, the vessel and cargo as to other claimants, if any there be, who are not parties or privies to this litigation. (Emphasis added) 569 F.2d at 335-336.

The crux of the Division of Archives' argument on the jurisdiction of this Court to issue the ancillary warrant of arrest is the assumption that it is not in privity nor bound by the judgment. The Division of Archives contends, in reference to the issuance of the warrant filed in this Court:

The State of Florida was not at any time a party to this proceeding and had no interest whatsoever therein . . . The State of Florida was not a party on appeal. In affirming the District Court, this Court expressly ruled:

We do not approve that portion of its Order which may be construed as holding that plaintiffs have exclusive title to, and the right to immediate and sole possession of the vessel and cargo as to other claimants, if any there be, who are not parties or privies to the litigation. Division of Archives' Reply to the Order to Show Cause, P. 3.

By the above argument, the Division of Archives fully recognizes that, if it is bound by the judgment, its argument on lack of jurisdiction necessarily fails. The record reflects an involvement by the Division of Archives with the United States, together with a bypassing of an opportunity to intervene, which warrants a holding that the Division is and should be bound.

The Division of Archives did not intervene in the proceeding below, though it had an absolute right to do so. The Division of Archives had a contract with Treasure Salvors regarding the disposition of the treasure and a dispute arose concerning...