Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be the Seabird

Decision Date21 August 1991
Docket NumberNo. 90-3187,90-3187
Citation941 F.2d 525
PartiesHarry ZYCH, d/b/a American Diving & Salvage Co., Plaintiff-Appellant, v. UNIDENTIFIED, WRECKED AND ABANDONED VESSEL, BELIEVED TO BE THE "SEABIRD," etc., Defendant, and Illinois Department of Transportation and the Illinois Historic Preservation Society and United States of America, Intervening Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Paul N. Keller, Park Ridge, Ill., for Harry Zych.

James R. Carroll, William K. Kane, Asst. Attys. Gen., Chicago, Ill., for Unidentified, Wrecked and Abandoned Vessel, Believed to be the "Seabird".

James R. Carroll, William K. Kane, Asst. Attys. Gen., Richard Linden, argued, Office of the Attorney General, Chicago, Ill., for Illinois Dept. of Transp. and Illinois Historic Preservation Agency.

Barbara B. O'Malley, Dept. of Justice, Torts Branch, Civil Div., Washington, D.C., for U.S.

Lenore E. McQuilling, Walker & Corsa, New York City, for amicus curiae American Sport Divers Ass'n.

Robert W. Gettleman, Jamie Kittel, D'Ancona & Pflaum, Chicago, Ill., Elizabeth Sherrill Merritt, Thompson McCord Mayes, Andrea C. Ferster, David A. Doheny, Nat. Trust for Historic Preservation in U.S., Washington, D.C., for amic. curiae Society of Professional Archaeologists, Society of Historical Archaeology, Advisory Council on Underwater Archaeology, Society of American Archaeology, Council of American Maritime Museums, Association for Great Lakes Maritime History, Landmarks Preservation Council of Illinois, Inc. and National Trust for Historic Preservation in the United States.

Before CUMMINGS, CUDAHY and KANNE, Circuit Judges.

CUMMINGS, Circuit Judge.

The prospect of raising the "Seabird," a 638-ton sidewheel steamer that has lain on the bed of Lake Michigan for the past 123 years, raises some fascinating and complex questions of admiralty law, federalism and state sovereign immunity. The issues are prematurely presented in this appeal, however, and we therefore must remand for a key factual finding.


The Seabird's story involves neither fabulous buried treasure nor a maritime tragedy of epic proportions. Undeniably, though, there is pathos in its more ordinary tale. The Seabird, newly painted for the summer season, sailed from Manitowoc, Wisconsin, on April 8, 1868, bound for Chicago via Milwaukee, Racine and Kenosha. About one hundred passengers were aboard and each had paid a fare of one dollar. The first evening on the lake was chilly. In the early morning hours of April 9, while the Seabird was off the shore of Waukegan, a porter emptied the stove which had been warming the passengers in the main cabin. He threw the load of hot ashes off the side of the boat, but the wind blew the ashes back aboard, and some varnished tubs on deck ignited. Soon the ship was aflame. The passengers who jumped overboard perished quickly in the 36-degree water. The ship sank and only two passengers survived.

Harry Zych, who operates a commercial salvage business, found the Seabird in the On November 20, 1989, the Illinois Department of Transportation ("IDOT") and the Illinois Historic Preservation Agency ("IHPA") (together "the state") 1 intervened as defendants for the limited purpose of moving to dismiss the case against the state on Eleventh Amendment grounds. The state claimed title to the shipwreck under three state statutes 2 and two federal statutes, namely the Abandoned Shipwreck Act of 1987, 43 U.S.C. § 2101 et seq. (1988), and the Submerged Lands Act, 43 U.S.C. § 1301 et seq. (1988). When in response Zych challenged the constitutionality of the Abandoned Shipwreck Act, the United States intervened to defend the statute's constitutionality.

                summer of 1989 after ten days of diving and hours of library research.   He located portions of the hull, boilers, machinery and other ship components.   He filed this admiralty action in rem on August 29, 1989, naming the wreck as the defendant and representing that it was located within the territorial jurisdiction of the Northern District of Illinois.   As relief, Zych sought title to the shipwreck under the law of finds or a salvage award under the laws of salvage.   He asked that his title or salvage award be confirmed against "all claimants and all the world" and requested further that "all governments * * * [or] states * * * be cited to appear * * * and show cause why possession should not be delivered to plaintiff."

The district judge subsequently dismissed Zych's suit. The court first held, in a detailed opinion, that the in rem action could be considered one against the state for Eleventh Amendment purposes if the state had a colorable claim to the shipwreck. The judge then examined the possible grounds for the state's claim of ownership. She found two of the state statutes invoked by the state to be inapplicable and declined to interpret the terms of the third. 3 These findings are not challenged on appeal. The judge ultimately held that the state's claim of title was colorable on the basis of the law of finds, in conjunction with the federal Submerged Lands Act ("SLA"). The law of finds, developed originally at common law and then incorporated into admiralty, gives legal force to the venerable maxim "finders-keepers." Under an exception to the rule, if a find is embedded in someone's land, the owner of the land is the keeper. Because under the SLA the owner of the lakebed is Illinois, the judge ruled that the state had colorable title to the Seabird, which she believed "likely embedded in submerged lands." Zych v. Unidentified, Wrecked & Abandoned Vessel, Believed to be SB "Lady Elgin," 746 F.Supp. 1334, 1343 (N.D.Ill.1990).

The judge ruled alternatively that the Abandoned Shipwreck Act ("ASA") supported the state's claim. By the provisions of the ASA, the United States claimed title to all shipwrecks "embedded" in the submerged lands of a state and simultaneously transferred title of those wrecks to the states in which they are located. After rejecting Zych's challenges to the constitutionality of the Act, the court found that the ASA, like the law of finds, supported the colorability of the state's claim. Because the state had a colorable claim, Zych's suit was an action against the state barred by the Eleventh Amendment. The court dismissed the suit with respect to the state. The court then dismissed the case in its entirety, finding that "further proceedings in federal court would be superfluous because the primary dispute involves the State and the State is thus an indispensable party, see Fed.R.Civ.P. 19(b)." Id. at 1351.

Zych appeals, arguing that the state has no colorable claim and thus that the Eleventh Amendment presents no bar to his suit. He notes that though the district court's holding turns on "embeddedness," the court never actually found the Seabird to be embedded. He stresses that the effect of the ruling below is to deprive him of any forum to litigate his claim. His suit in federal court was dismissed because he is unable to sue the state in federal court without contravening the Eleventh Amendment, but a state court suit is impossible because federal jurisdiction over maritime matters is exclusive. See 28 U.S.C. § 1333. Zych also renews his arguments about the constitutionality of the ASA, contending that it impermissibly interferes with admiralty jurisdiction and destroys the uniformity of admiralty law. Finally Zych asks that even if the state prevails on the above arguments, the case be remanded with instructions that the district court adjudicate his rights in the wreck with respect to parties other than the state.

We agree that the case turns on the question of embeddedness, though we interpret the relevance of this question differently than the parties or the district judge. We remand to the district court for a finding on whether the Seabird is in fact embedded and if so, whether the ASA is constitutional so as to allow its application to this case.


Unlike the district judge, we focus exclusively on the Abandoned Shipwreck Act of 1987, 43 U.S.C. § 2101 et seq., a brief statute that has not previously been invoked or challenged in litigation. If the ASA applies to this case, and is found constitutional, it is dispositive. The ASA explicitly precludes a claimant to an "embedded" wreck from invoking the law of finds or the law of salvage. Because these are the only two admiralty causes of action stated in Zych's complaint, if the ASA constitutionally can be applied to the Seabird, Zych has simply failed to state a right to relief. The Eleventh Amendment bar is irrelevant, as is any "colorability" analysis. 4 However, as explained infra, the entry of judgment against Zych in this suit would not necessarily leave Zych without a forum in which to adjudicate his dispute. We believe the ASA, if constitutional, opens the way for a state court to determine title to the Seabird.

Congress enacted the ASA in an attempt to clear longstanding confusion over whether the states or the federal government owned and had responsibility for managing historic wrecks. The House Report noted the existing confusion:

over the ownership and authority to manage abandoned shipwrecks. States have claimed title to, and regulatory authority over, abandoned historic shipwrecks located on submerged lands under their jurisdiction. The Federal Admiralty Courts have also claimed jurisdiction over the salvage of these resources.

H.R.Rep. No. 100-514(I), 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 365, 366 [hereinafter House Report]. While 28 states had passed legislation relating to the management of historic shipwrecks at the time the ASA was being considered, they had achieved only limited success in enforcing their laws. Id. at 366. Some federal courts had held that cases involving shipwrecks were within their exclusive admiralty jurisdiction and applied either the law...

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1 books & journal articles
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