Wiggins v. 1100 Tons, More or Less, of Italian Marble

• Decision Date: 12 September 1960
• Docket Number: No. 8115.,8115.
• Citation: 186 F. Supp. 452
• Parties: E. H. WIGGINS and W. E. Moulton, Libellants, v. 1100 TONS, MORE OR LESS, OF ITALIAN MARBLE, Respondents.
• Court: U.S. District Court — Eastern District of Virginia

186 F. Supp. 452

E. H. WIGGINS and W. E. Moulton, Libellants, v. 1100 TONS, MORE OR LESS, OF ITALIAN MARBLE, Respondents.

No. 8115.

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

September 12, 1960.

Walter B. Martin, Jr., Norfolk, Va., for libellants.

David H. Batchelder, Jr., Norfolk, Va. (for claimants, Beavers and Burchard).

WALTER E. HOFFMAN, District Judge.

On January 22, 1894, the Norwegian Barkentine Clythia, bound from Genoa, Italy, for Baltimore, Maryland, went aground approximately 250 yards off the shores of Princess Anne County, Virginia, near the Virginia-North Carolina line. The good ship has rested upon the bottom for the past 66 years with only a portion of her top mast visible above the water. After all these years the Clythia has been partially restored to life due to the salvage interests in her cargo consisting of approximately 1100 tons of Italian marble, the value of which is dependent, in part, upon the ability of the seller to find a favorable purchaser.

The libellants have raised and removed from the vessel 123 tons of marble which have been attached under process of this Court at the instance of libellants who desire to be declared as finders of the salved cargo or, in the alternative, they seek that the marble be sold to satisfy the salvage lien.

As far back as 1951, the libellant, Moulton, began making inquiries as to the wreck of the vessel. After ascertaining the whereabouts of the wreck and determining the nature of her cargo, libellants did nothing until 1960 when they entered into a partnership for the purpose of salvaging the cargo of marble. Libellant, Wiggins, owned the vessel Big Wig and the parties expended in excess of $3,000 equipping same. With a crew of five members, they took possession of the Clythia on July 1, 1960. Through the process of dynamiting, libellants successfully brought to the surface and removed 123 tons of marble. Their service was performed in rough seas and under conditions which were decidedly hazardous. On or about July 29, 1960, the storm Brenda, with winds up to 71 m. p. h., severely damaged and beached the Big Wig.

When questioned concerning continued salvage activities, Moulton stated that future plans were uncertain due to the necessity of repairing the Big Wig at considerable expense, the hazard of the undertaking, and the approach of the hurricane season to be followed by cold weather. As to contemplated further action in the spring and summer of 1961, Moulton remained uncertain and, as to this litigation, libellants seek only a determination of their rights as to the 123 tons of marble already salvaged. Apparently it is an "open season" for anyone electing to participate in salvage operations in the future, and such rights will have to be determined as and when they arise. Surely, neither the libellants nor the claimants, Ronald W. Beavers and David V. Burchard, can continue to assert possession of the Clythia and her remaining cargo to the exclusion of all others, where their plans are indefinite and uncertain.

This brings us to a consideration of the claims of Beavers and Burchard who have appeared herein. These individuals, having had considerable experience in diving, first became interested in the Clythia during 1955. Several years later they approached the Army Engineers and were advised that since the wreck was not an obstruction to navigation, the Engineers had no jurisdiction over the matter. In 1959 they approached F. Mason Gamage, the Commissioner of Wrecks for Princess Anne County, Virginia, and secured from him a letter dated September 10, 1959, which reads as follows:

"This is to advise you that you are granted permission to undertake salvage operations on the wreck of the Clythia, located near False Cape, Princess Anne County, Virginia.

"The commissioner of wrecks is entitled to 5% of the value of the salvaged material up to $10,000 in value and 2% thereafter. Salvage rights are granted subject to these conditions.

"This permission will entitle you to exclusive salvage rights for a 12 month period beginning October 1, 1959, to October 1, 1960.

"Contact me at Princess Anne Court House or at Norfolk, Gy 7-3364, 30 days before you undertake this venture."

Gamage, as an individual, knew of the existence of the wreck as he had fished in that area. He also knew of the rumor as to the nature of the cargo. He was appointed Commissioner of Wrecks by former Governor Thomas B. Stanley on some date between January, 1954, and January, 1958, during the administration of Governor Stanley. Gamage serves as Director of Planning for Princess Anne County, and his compensation and duties as Commissioner of Wrecks are governed by Virginia law. Code of Virginia, 1950, § 62-158 to § 62-174, both inclusive.

The Wreck Commissioner concedes that he took no action with respect to the Clythia, other than the writing of the aforesaid letter. He made no inventory of the vessel or its cargo, and took no steps to take possession of same. He hired no guards, employed no laborers, and, in effect, treated the wreck as a derelict available to the public. The background of the letter written by the Wreck Commissioner is that the request was made by Beavers and Burchard, the contents were substantially dictated by them, and Gamage wrote the letter as per their request. He heard nothing further about the matter until a proctor for one of the present libellants inquired with respect to the Clythia during the late spring of 1960.

If the Commissioner of Wrecks had the lawful authority to grant exclusive salvage rights to Beavers and Burchard, there can be little doubt as to the fact that they should prevail. The libellants were fully advised as to the purported grant of exclusive salvage rights when they commenced operations and took possession of the vessel and her cargo.

We do not reach the serious constitutional question as to the right of a state to lay claim to wrecked property, as opposed to the policy of maritime law encouraging the recovery of distressed...