Maple Leaf Sails into Court

THE CASE OF THE MAPLE LEAF SAILS INTO COURT

Submerged beneath the St. Johns River in the thick mud, the vessel Maple Leaf had finally been located by St. Johns Archaeological Expeditions, Inc. Physically, these conditions where at best murky and at worse opaque. The physical conditions made recovery of this significant historical find extremely difficult. Additionally, the state of the law pertaining to the Maple Leaf, historical finds of artifacts, commingled with the Admiralty and Maritime Law of the United States was equally murky and unsettled. Before the adventure and excitement of reclaiming this historically significant material contained within the hull of the sunken wreck, it remained to resolve the unsettled legal position.

The case would involve the interplay of the maritime laws, law of salvage, law of finds, abandonment, sovereign immunity of both the United States of America and the State of Florida, and other significant legal theories. In addition, the practicalities of such recovery and the legal significance of matters recovered would have to be dealt with adroitly in a forum familiar with such cases. My partner, Robert B. Parrish, and I would work on this project and much, if not all, of the innovation belongs to his judgment and effort.

In order to bring this matter to a prompt legal resolution, it was necessary to involve the United States District Court, the government of the United States, the Office of the Attorney General of the United States, and the Admiralty and Mari time laws of the United States, together with the remedies that are afforded by the general maritime law of the United States and the United States Code. What occurred was litigation in the United States District Court. What finally resulted was a Court Order entered by United States District Judge John H. Moore, II, of the Middle District of Florida, that was agreeable to all parties.

In order to place this concluding legal document, i.e. the Final Order, in proper prospective, a review of the proceedings will be set forth, with a brief review of the legal setting into which this legal phase the Maple Leaf now entered.

I. Historical Overview of Maritime Law

The International Beginnings
In this era where new laws are constantly being created by the Congress and State legislatures, it is extraordinary to contemplate that an understanding of maritime law requires one to penetrate the mist of the past. Many areas of admiralty law that were fair and equitable at the beginning of recorded history remain fair.

Admiralty Law since the Framing of the Constitution
When the first Congress met in 1789, the first order of business was the Judiciary Act. This provision, sometimes referred to as the "savings to suitors" clause, significantly affected admiralty. While this statute has been amended since then, it remains in effect today. While there is exclusive admiralty jurisdiction in rem in the Federal Court, there is concurrent jurisdiction with a state forum in in personam matters. The interrelation between state law and the federal maritime law manifests itself in many ways. For example, Congress has en acted significant legislation such as "Inspection and Regulation of Recreational Vessels and State Boating Safety Programs." The federal government has affirmatively shared much of its jurisdiction with states concerning un documented vessels. On the other hand, there are certain areas where a state may not tread. The Supreme Court addressed this issue by setting certain guidelines limiting state power in admiralty matters. As an illustration, these limits apply to attempts to supplement maritime standards of liability. While the power of Congress cannot be delegated, certain state actions remain acceptable.

Salvage Rights and Duties Under Admiralty Law
The Admiralty law of salvage is an often misunderstood concept. A most common misconception is that if one finds a vessel that such finder is automatically the owner.

Salvage had been a concept that had dated from the earliest days of recorded history, as previously described. There are basically two types of salvage that may result in claims. The first is "pure salvage", where services are rendered to a vessel or her owner, but there is no agreement made as to compensation. Secondly, there is "contract salvage" where ser vices are performed but the compensation is set by contract between the owner and salvor. Clearly the second type was not applicable to the Maple Leaf:

Generally speaking, salvage of the sort that we were concerned with involving the Maple Leaf was a reward that would allow St. Johns Archaeological Expeditions, Inc., to recover the significant artifacts.

The modern definition of salvage arose in the United States Supreme Court in a case that was decided not long after the Maple Leaf sinking. It was held in The Blackwall 77 U.S. 1 (1869) that salvage was the compensation allowed persons by whose assistance a ship or her cargo have been saved, in whole or in part from impending peril on the sea, or recovering such property from actual loss, as in the case of a shipwreck or derelict vessel. A short time later, the Supreme Court of the United States had an occasion to set forth the legal elements necessary to establish a salvage claim. In The Clarita and The Clara, 90 U.S. 1(1874), the court set forth the elements necessary:

    (a) A marine peril.
    (b) To marine property, (a ship, cargo, and even currency).
    (c) Voluntary rescue service.
    (d) Success in saving the marine property or some portion of it from impending peril.

However, the peculiar circumstances of the Maple Leaf brought far greater issues to bear than a typical salvage case. The inter-twining of state, and other federal laws would have to be contemplated before the final conclusion was to be reached in this legal matter.

II. The Maple Leaf Sails into Court.

Charting the Course
The Maple Leaf had been located by Dr. Holland and his colleagues. Physically she was available for a significant adventure to begin. However, the need then arose to make sure that the legal proceedings involving the Maple Leaf were conducted in the same meticulous fashion that the location, planning, and discovery of the vessel had been conducted.

The planning sessions to consider the legal approach began with an evaluation of our strengths and weaknesses. Basically, the strengths of the Maple Leaf expedition were the stalwart and responsible makeup of the St. Johns Archaeological Expeditions, Inc.; coupled with the fact that there was substantial expertise and knowledge in the manner of excavation. Moreover, an additional strength was the perception that there would be great community support, not only for those who were working as part of this project, but also with those who had a general interest in the historical preservation of matters in this north Florida area.

Soldiers personal writing equipment.
But our position was not without contemplated weaknesses. Our weaknesses grew from uncertainties in various areas. What position would the federal government take? Would the federal government consider the vessel to be abandoned or not? Would the government raise sovereign immunity and other technical legal defenses? How did recent case law impact the project? Would the state claim certain rights and privileges under Florida Statutes, and perhaps claim the entire cargo because the vessel was submerged in the mud. It was felt, after careful study and planning, that our strengths could deal effectively with these uncertainties and issues that may be raised against the project, or our future legal proceedings.

In order to achieve our goals and benefit from our strengths, legal actions were commenced. A genuine community interest was aroused and nourished concerning this worth while project, due to the value of the project to the community and the quality of the persons involved in the project. However, every jurisdiction, especially Florida, is extremely sensitive concerning salvage, exploration of ship wrecks and treasure hunting. These terms are not terms of art. It was imperative that we were not to become involved in legal proceedings that would adversely effect the recovery project.

There were numerous cases addressing legal issues that might arise in our contemplated litigation. To address all of these issues is outside the scope of this article. However, a review of the few cases may be of interest.

The Court of Appeals for the Fifth Circuit once encompassed the states of Florida to Texas. Federal Courts within that geographic region had the law uniformly established by that court. While at the time of our case, Florida was in the Eleventh Circuit, significant law had been established by the Fifth Circuit, which in the main controlled our case.

The Fifth Circuit had been involved in extensive litigation concerning ownership and artifacts in the case of Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978), Treasure Salvors, Inc. v. Unidentified Vessel and Abandoned Sailing Vessel, 640 F.2d 560 (5th Cir. 198 1). There had been litigation, counter suits and protracted litigation dealing with issues of admiralty and ownership of the ship wreck outside the territorial waters of the United States.

The Treasure Salvors cases had first arisen in the courts in 1976. It proceeded from the trial court to the Court of Appeals for the Fifth Circuit in 1978, in a case that was ultimately called Treasure Salvors I. The second legal battle resulted over the rights to the wreckage of the vessel Atocha. The court in Treasure Salvors II concluded that suit was not barred by the Eleventh Amendment to the U. S. Constitution.

In 1981, Treasure Salvors III arose out of the Treasure Salvors, Inc. controversy with an other alleged salvor; whereas, the earliest cases had been controversies with the state government and the federal government. The court in all of the Treasure Salvors I, II, III cases dealt with the Admiralty Law and the "Law of Finds." The court attempted to separate the Law of Finds from the Law of Salvage. As was held in Treasure Salvors land restated in Treasure Salvors III, inter alia, while a salvor has a valuable interest, i.e. a right of possession of the property, such salvor is confronted with other competing interests. Even when the vessel or other marine property has been deserted the original owner of title is not divested of owner ship rights. However, in the circumstances where marine property has been lost or abandoned for a long time, a different result may occur. Under such extraordinary facts, the Maritime Law of Finds supplements the salvor's possessory interest and vests title by occupancy to the one who does the discovery and reduces it to possession. The court also found it necessary to deal with the Antiquities Act, 16 USCA §1431 which was enacted to facilitate preservation of objects of historical importance.

The Court of Appeals even relied upon an old Florida case, Russell v. Proceeds of 4O Bales Cotton, 21 F. Case 42 (S.D. Fla. 1872). How ever, this case did not seem to impact the Maple Leaf. Even though the Russell case was given great weight by the Court of Appeals, it seemed to address only abandonment of derelict property involved in violation of the Civil War blockade. In any event, the court held that the finder had superior rights.

How all of this impacted on our facts was critical. How these cases described as Treasure Salvors I, II, and III would impact other re ported cases was of equal significance.

Be that as it may, the Maple Leaf did not seem to fit all of the elements of Treasure Salvors. Clearly the derelict or abandoned property was within navigable waters of the United States. Also the Maple Leaf was a vessel under charter to the government during the loss; moreover, as will be seen by Treasure Salvors III even when goods have been abandoned this alone does not divest the original owner of title or grant ownership rights to a salvor, except in extraordinary cases, as where property has been lost or abandoned for a very long time. Also, Treasure Salvors III was of assistance, since it held that one who discovers lost or abandoned property need not always actually have it in hand before he is vested with legal interest, but a finder may be protected by taking such constructive possession of the property as its nature or situation permits. This had been done in our case.

There were two other cases that caused further reflection. Subsequent to the preceding cases, a new Federal Court Judicial Circuit had been created that encompassed Florida, Georgia, and Alabama, and was called the Eleventh Circuit. Since it was originally part of the Fifth Circuit, the Eleventh Circuit adopted all the former Fifth Circuit opinions rendered before October 1, 1981 as procedural decisions, including the ones that have been previously set forth. In Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 568 F. Supp 1562 (S.D. Fla. 1983) affirmed 758 F.2d 1511 (11th Cir. 1985) a significant legal holding was established. A lawsuit was filed by a discoverer/diver of a shipwreck in Florida. The re mains of the vessel claimed by the Plaintiff were lying entirely within the confines of the Biscayne National Park and entirely within the submerged lands of the territorial waters of the United States. The United States Government had never initiated salvage activities on the vessel before the commencement of the law suit.

The District Court held in favor of the government. Basically, the court held that the alleged finder attempting to confirm title to the shipwreck or to a maritime salvage award could not prevail against the vessel in rem or against the intervening claimant of the wreck, the United States. The court further held that the shipwreck was embedded in submerged land that was owned and administered, as well as controlled, by the National Park System belonging to the United States. The Plaintiff, as the alleged finder of the shipwreck, was not entitled to salvage where the government was in constructive possession of the ship. In applying maritime law of salvage to the case, the court addressed the law of finds in the Treasure Salvors cases I, II, and III and dealt with the maritime law of salvage.

    However, the circumstances of the Maple Leaf differed substantially. Whereas the wreck in the southern part of Florida was within a national park and within constructive possession, the government in the Maple Leaf case had affirmatively attempted to destroy the vessel and, we believed, had abandoned any proprietary interest.

    Some months before the Complaint was filed in the Maple Leaf case, the case arose of Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F. Supp. 801 (S.D. Ga. 1984). The District Court held that a side-wheel steamer, which sank in the Georgia River in 1863, was "imbedded" in the river bottom within the meaning of appropriate definition of the maritime law of finds. Thus, title to the steamer was vested in the State of Georgia, where the vessel had remained in its location for 120 years despite strong tidal currents, violent storms, and dynamite operations seeking to dislodge it. The court went onto add that what was affixed to the land be longed to the owner of that land, i.e. the State of Georgia. The court held that, notwithstanding the Plaintiff divers' (who were the divers who discovered the wreck) love of history, and their desire to share the relics with the public, their continuing activities involved acts of trespass and would not be allowed.

    The holding of the court in the Chance case basically established the right of the State of Georgia over well meaning discovery divers who had good intentions. However, much was to be learned from this case. The Plaintiff had applied for a state permit to excavate the wreck and the State of Georgia had denied such request. Notwithstanding the denial, diving operations had commenced in 1979 and, in fact, artifacts had been removed. When the State of Georgia found out about the diving without a state permit, the Georgia Department of Natural Resources ordered Plaintiff to cease and desist. Subsequently, the Plaintiff! divers filed suit in Federal Court seeking title to the artifacts and alternatively a salvage award.

    There was another aspect of the Plaintiff's case in Chance that had to be considered as a legal factor. However, this factor was far off set by the meticulous and professional manner in which St. Johns Archaeological Expeditions, Inc. intended to protect objects ultimately re covered. In Chance the court held that Plain tiff/divers had not taken adequate steps to ensure the conservation of the artifacts. The deficiencies of the Plaintiff in Chance was a matter to reckon with, but Dr. Holland and his colleagues had planned and prepared for conservation long before any thoughts of lawsuits or the need for legal action had been contemplated. Accordingly, the planning stage clearly was more favorable for St. Johns Archaeological Expeditions, Inc. than had been for the Plaintiff in the Chance case.

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    Confronted with this state of the law, an Amended Complaint was filed consisting of three counts. The concept behind the Amended Complaint was to bring forth the best attributes of the St. Johns Archaeological Expeditions, Inc.'s actions, while at the same time making sure that it was clear to the court that any of the deficiencies or downfalls of the Plaintiffs in the other reported cases did not exist with regard to St. Johns Archaeological Expeditions, Inc.

    Count I of the Amended Complaint sought to confirm Plaintiff's title to the Maple Leaf and that any and all persons or governments be called into Admiralty Court. As an alternative ground a salvage award was sought.

    Count II of the Amended Complaint sought declaratory relief pursuant to 28 U.S.C. § 2201. It was alleged that the United States of America had abandoned the vessel. It was alleged that the court should recognize such abandonment. It was also alleged that the United States had no right or title or interest in the vessel, and that title or interest should be awarded through these admiralty proceedings.

    Count III of the Amended Complaint was for injunctive relief. It sought the court to protect Plaintiff's rights and interests so as to allow Plaintiff to conduct proper exploration and salvage operations consistent with proper archaeological and historical principles. It was further alleged that because of the unique historical and archaeological significance of the Maple Leaf, that no other adequate remedy at law existed. Thus, the court was requested to enjoin the United States and any individual from diving on the Maple Leaf from touching or causing mechanical devices to touch the Maple Leaf or from exploring by way of electronic devices or otherwise the wreck site.

    The case was filed in the United States District Court for the Middle District of Florida and assigned to the Honorable John H. Moore, II, who was not only an experienced federal trial judge, but prior to his elevation to the Federal Court, had been a state trial judge and a state judge in the Court of Appeals.

    The case became at issue when the government, acting through their scholarly and astute counsel, Damon Miller, who had extensive civil practice in admiralty before his experience with the U.S. Government, raised several issues. The government denied most of the allegations in the Amended Complaint and demanded that the case proceed to trial. The Federal Rules of Civil Procedure authorize and allow parties to determine information by the filing of discovery methods. Upon the initiation of the suit, St. Johns Archaeological Expeditions, Inc. filed and served such discovery procedures. These procedures are for the purpose of gaining Requests for Admissions, obtaining documentary information, approaching matters so as to narrow legal issues for trial.

    Various aspects of discovery ensued with documents being admitted by the government and certain issues and parameters refined. At the conclusion of this, the court was able to proceed with the scheduling order to call the matter on for trial.

    With the issues fully joined, and with public support fully behind the Maple Leaf project, discussions began among the government, numerous agencies of the government, and the Plaintiff St. Johns Archaeological Expeditions, Inc. As a catalyst to this compromise effort, were Judge Moore's actions to cut through the numerous legal issues and addressing the significant matters of this case, not the least of which, was the issue of what was in the best interest of the public.

    After numerous conferences, telephone conferences, exchanges of correspondence, and internal meetings, "landfall" of the com promise was in sight. It was hoped that, trial, subsequent appeals, cost and delays of this project would be avoided.

Safe Harbor
After exchange of many ideas and concepts, a stipulation was drafted, re-drafted, and continually refined. The compromise agreement had multiple paragraphs; however, these paragraphs may basically be categorized in four general areas. The first general area was the Plaintiff St. Johns Archaeological Expeditions' rights and duties. These were basically as follows:

(a) St. Johns Archaeological Expeditions, Inc. had the right to explore the wreck, (paragraph I).

(b) The United States retained certain rights, (paragraphs 7, 11, and 12).

(d) St. Johns Archaeological Expeditions, Inc. could publish any information relating to its adventure.

But the rights of St. Johns Archaeological Expeditions, Inc. were not unfettered or un limited. Paragraph 2, when read with paragraph 13, stated that Plaintiff would have the right to continue, so long as it continued to diligently work at the salvage site. Paragraph 13 allowed Plaintiff to reserve the right to temporarily suspend operations for a year with notice and some activities for two years. Additionally, paragraph 5 forbade any assignment without permission.

Along with its rights, St. Johns Archaeological Expeditions, Inc. had certain duties that it must perform. These duties may be enumerated as follows:

(a) St. Johns Archaeological Expeditions, Inc. must comply with all federal, state and local laws (paragraph 3).

(b) St. Johns Archaeological Expeditions, Inc. was responsible for the care, preservation, and security of all property found and recovered, and was to prevent loss and damage (paragraph 4).

(d) A cross section of the artifacts would be presented to the United States and shall comprise twenty percent of the artifacts salvaged (paragraph 8).

(e) There would be an inventory of every thing recovered (paragraph 10).

(f) St. Johns Archaeological Expeditions, Inc. agreed to indemnify the government for any loss or damages (paragraph 14).

(g) Upon cessation of any salvage activities, St. Johns Archaeological Expeditions, Inc. agreed to restore the site (paragraph 15).

(h) St. Johns Archaeological Expeditions, Inc. would pay any costs involved in the salvage operation (paragraph 16). Additionally, there were some general matters of significance that held that the parties would use their best efforts to resolve in good faith any disputes that could arise concerning the contract. Failing to do so, there would be arbitration. More important, there was an agreement that the court keep jurisdiction over this matter.

    The stipulation was approved by Richard K. Williard, Asst. Attorney General of the United States, Robert M. Merkle, United States Attorney, and executed by the Asst. U.S. Attorney John E. Lawler and Damon C. Miller as attorney for the Torts Branch, Civil Division, United States Department of Justice. Honorable John H. Moore, II, entered the order fully approving the stipulation on September 16, 1986.

    The entire matter had effectively worked as it had been planned. From the time of the service of the Amended Complaint until the final compromise settlement had been ordered by the court, only approximately nine months had elapsed. The parties' actions in the civil lawsuit reflected good will toward each other and encouragement toward the project. The court had made sure that the parties effectively liaised with one another so that the public would be not only protected but would be benefited by the project.

    The community, as reflected by favorable newspaper editorials and articles, as well as television commentary, was happy that at long last, the Maple Leaf, legally speaking, could drop her anchor in a safe harbor with the results being a benefit, culturally and historically, to this community and the nation.

CW 3/01/05