Sea Hunt, Inc. v. the Unidentified Shipwrecked Vessel or Vessels

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SEA HUNT, INCORPORATED,
Plaintiff-Appellee,
and
COMMONWEALTH OF VIRGINIA,
Intervenor-Appellee,
v.
THE UNIDENTIFIED SHIPWRECKED
VESSEL OR VESSELS, THEIR APPAREL,
TACKLE, APPURTENANCES,AND CARGO
LOCATED WITHIN COORDINATES 38
DEGREES 01' 36" NORTH LATITUDE,
75 DEGREES 14' 33" WEST
LONGITUDE; 37 DEGREES 57' 21"
NORTH LATITUDE, 75 DEGREES
13' 00" WEST LONGITUDE; 38
No. 99-2035
DEGREES 01' 36" NORTH LATITUDE,
75 DEGREES 13' 14" WEST
LONGITUDE; 37 DEGREES 57' 33"
NORTH LATITUDE, 75 DEGREES
17' 44" WEST LONGITUDE AND/OR 37
DEGREES 55' 00" NORTH LATITUDE,
75 DEGREES 19' 18" WEST
LONGITUDE; 37 DEGREES 54' 09"
NORTH LATITUDE, 75 DEGREES
17' 00" WEST LONGITUDE; 37
DEGREES 51' 21" NORTH LATITUDE,
75 DEGREES 18' 52" WEST
LONGITUDE; 37 DEGREES 52' 20"
NORTH LATITUDE, 75 DEGREES
21' 05" WEST LONGITUDE, IN REM,
Defendant,
KINGDOM OF SPAIN,
Claimant-Appellant,
and
COMMONWEALTH OF VIRGINIA, ex rel
William A. Pruitt, Commissioner of
Marine Resources and Chairman of
the Virginia Marine Resources
Commission; ALPHA QUEST
CORPORATION; RICHARD L. COOK, an
individual resident of Ocean City,
Maryland,
Claimants,
and
UNITED STATES OF AMERICA;
COLUMBUS-AMERICA DISCOVERY
GROUP; SALVORS, INCORPORATED;
COBB COIN COMPANY, INCORPORATED;
INTERSAL, INCORPORATED; ENTERPRISE
MARINE, INCORPORATED; QUICKSILVER,
INCORPORATED; DEEP SEA RESEARCH,
INCORPORATED; STATE OF NORTH
CAROLINA,
Amici Curiae.
2
SEA HUNT, INCORPORATED,
Plaintiff-Appellant,
and
COMMONWEALTH OF VIRGINIA,
Intervenor-Plaintiff,
v.
THE UNIDENTIFIED SHIPWRECKED
VESSEL OR VESSELS, THEIR APPAREL,
TACKLE, APPURTENANCES,AND CARGO
LOCATED WITHIN COORDINATES 38
DEGREES 01' 36" NORTH LATITUDE,
75 DEGREES 14' 33" WEST
LONGITUDE; 37 DEGREES 57' 21"
NORTH LATITUDE, 75 DEGREES
13' 00" WEST LONGITUDE; 38
No. 99-2036
DEGREES 01' 36" NORTH LATITUDE,
75 DEGREES 13' 14" WEST
LONGITUDE; 37 DEGREES 57' 33"
NORTH LATITUDE, 75 DEGREES
17' 44" WEST LONGITUDE AND/OR 37
DEGREES 55' 00" NORTH LATITUDE,
75 DEGREES 19' 18" WEST
LONGITUDE; 37 DEGREES 54' 09"
NORTH LATITUDE, 75 DEGREES
17' 00" WEST LONGITUDE; 37
DEGREES 51' 21" NORTH LATITUDE,
75 DEGREES 18' 52" WEST
LONGITUDE; 37 DEGREES 52' 20"
NORTH LATITUDE, 75 DEGREES
21' 05" WEST LONGITUDE, IN REM,
Defendant,
3
KINGDOM OF SPAIN,
Claimant-Appellee,
and
COMMONWEALTH OF VIRGINIA, ex rel
William A. Pruitt, Commissioner of
Marine Resources and Chairman of
the Virginia Marine Resources
Commission; ALPHA QUEST
CORPORATION; RICHARD L. COOK, an
individual resident of Ocean City,
Maryland,
Claimants,
and
UNITED STATES OF AMERICA;
COLUMBUS-AMERICA DISCOVERY
GROUP; SALVORS, INCORPORATED;
COBB COIN COMPANY, INCORPORATED;
INTERSAL, INCORPORATED; ENTERPRISE
MARINE, INCORPORATED; QUICKSILVER,
INCORPORATED; DEEP SEA RESEARCH,
INCORPORATED; STATE OF NORTH
CAROLINA,
Amici Curiae.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CA-98-281-2)
Argued: May 1, 2000
Decided: July 21, 2000
Before WILKINSON, Chief Judge, and LUTTIG
and MICHAEL, Circuit Judges.
4
Affirmed in part and reversed in part by published opinion. Chief
Judge Wilkinson wrote the opinion, in which Judge Luttig and Judge
Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: James Alexander Goold, COVINGTON & BURLING,
Washington, D.C., for Appellant. Richard Alan Olderman, Civil Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Amicus Curiae United States. William Henry Hurd,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-
mond, Virginia; David Jeremy Bederman, Atlanta, Georgia, for
Appellees. ON BRIEF: Robert A. Long, Jr., Kevin C. Newsom, Wil-
liam C. Muffett, COVINGTON & BURLING, Washington, D.C., for
Appellant. David W. Ogden, Acting Assistant Attorney General,
Helen F. Fahey, United States Attorney, Robert S. Greenspan, Bar-
bara A. O'Malley, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Amicus Curiae United
States. Anthony Francis Troy, David K. Sutelan, MAYS & VALEN-
TINE, Richmond, Virginia; Peter E. Hess, Wilmington, Delaware, for
Appellee Sea Hunt. Richard T. Robol, Columbus, Ohio, for Amicus
Curiae Columbus-America. Patrick M. Brogan, DAVEY & BRO-
GAN, P.C., Norfolk, Virginia, for Amici Curiae Salvors, et al.
Michael F. Easley, North Carolina Attorney General, Ronald M. Mar-
quette, Special Deputy Attorney General, Charles J. Murray, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Amicus Curiae North Caro-
lina.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
This in rem admiralty action concerns the sovereign rights of the
Kingdom of Spain to two of its Royal Naval vessels, LA GALGA and
JUNO, which were lost off the shores of present-day Virginia in 1750
and 1802 respectively. Pursuant to the Abandoned Shipwreck Act of
5
1987 (ASA), 43 U.S.C. § 2101-06 (1994), Virginia has asserted own-
ership over the shipwrecks and has issued Sea Hunt permits to con-
duct salvage operations and recover artifacts from the wrecks. These
efforts resulted in the discovery of two wrecks believed to be LA
GALGA and JUNO. Sea Hunt filed an in rem admiralty complaint,
and the district court ordered an arrest of the shipwrecks, appointing
Sea Hunt the exclusive salvor. Spain filed a verified claim asserting
ownership over the shipwrecks. The district court found that Spain
retained title to JUNO, but had expressly abandoned LA GALGA in
the 1763 Definitive Treaty of Peace. See Sea Hunt, Inc. v. Unidenti-
fied, Shipwrecked Vessel or Vessels, 47 F. Supp. 2d 678 (E.D. Va.
1999). The district court also denied Sea Hunt a salvage award.
As sovereign vessels of Spain, LA GALGA and JUNO are covered
by the 1902 Treaty of Friendship and General Relations between the
United States and Spain. The reciprocal immunities established by
this treaty are essential to protecting United States shipwrecks and
military gravesites. Under the terms of this treaty, Spanish vessels,
like those belonging to the United States, may only be abandoned by
express acts. Sea Hunt cannot show by clear and convincing evidence
that the Kingdom of Spain has expressly abandoned these ships in
either the 1763 Treaty or the 1819 Treaty of Amity, Settlement and
Limits, which ended the War of 1812. We therefore reverse the judg-
ment of the district court with regard to LA GALGA, and affirm the
judgment of the district court concerning JUNO and the denial of a
salvage award.
I.
LA GALGA ("The Greyhound") was a fifty-gun frigate commis-
sioned into the Spanish Navy in 1732. LA GALGA left Havana on
its last voyage on August 18, 1750, in order to escort a convoy of
merchant ships to Spain. It carried the Second Company of the Sixth
Battalion of Spanish Marines, Spanish Royal property, and English
military prisoners. On August 25, 1750, the convoy encountered a
hurricane near Bermuda that scattered the ships and forced them west-
ward toward the American coast. LA GALGA eventually sank off the
coast of the Maryland/Virginia border. Most of the crew and passen-
gers reached land safely. When Captain Daniel Houny attempted to
salvage items from the wreck, he found that local residents had
6
already begun looting the vessel. He secured the assistance of Gover-
nor Ogle of Maryland, but any further salvage efforts ended when a
second storm came and broke up what was left of the ship. LA
GALGA remained undisturbed until the recent salvage efforts by Sea
Hunt.
The JUNO, a thirty-four gun frigate, entered the service of the
Spanish Navy in 1790. On January 15, 1802, JUNO set sail from
Veracruz bound for Spain. On board JUNO were the soldiers of the
Third Battalion of the Regiment of Africa, their families, and various
civilian officials. The JUNO was beset by a ferocious storm and
began taking on water. It encountered the American schooner LA
FAVORITA. The two ships sailed together trying to reach an Ameri-
can port before JUNO succumbed to her leaks. As JUNO continued
to take on water, the Captain ordered his passengers and crew to
begin transferring to LA FAVORITA. But only seven persons were
able to transfer before the storm picked up and JUNO was lost in a
heavy fog. LA FAVORITA could come close enough only to hear the
anguished cries for help as JUNO went under. At least 413 sailors,
soldiers, and civilians perished in the sinking of JUNO. Spanish
authorities ordered an investigation into the sinking, but the location
of the wreck was not discovered until Sea Hunt's recent efforts.
The Commonwealth of Virginia has asserted ownership over LA
GALGA and JUNO pursuant to the Abandoned Shipwreck Act of
1987 (ASA), 43 U.S.C. §§ 2101-06 (1994). The ASA gives states title
to shipwrecks that are abandoned and are embedded in the submerged
lands of a state. See id. § 2105(a) & (c). Sea Hunt is a maritime sal-
vage company based in the Eastern Shore of Virginia. The Virginia
Marine Resources Commission granted Sea Hunt permits to explore
for shipwrecks off the Virginia coast and conduct salvage operations.
Sea Hunt began to explore for shipwrecks within its permit areas and
has spent about a million dollars in conducting remote sensing, sur-
vey, diving, and identification operations. Sea Hunt claims that its
efforts have resulted in finding the remains of LA GALGA and
JUNO.
To avoid interference with its operations, Sea Hunt initiated an in
rem admiralty action against the two wrecks on March 11, 1998. Sea
Hunt sought a declaratory judgment that the shipwrecked vessels
7
"have never been subject to the sovereign prerogative of the Kingdom
of Spain and [are] subject to admiralty's laws of abandonment and the
law of finds," that "the Commonwealth of Virginia be adjudged the
true, sole and exclusive owner of the Shipwrecked Vessel(s)," and
that any items salvaged therefrom by Sea Hunt be distributed pursuant
to the permits issued by Virginia. In the alternative, Sea Hunt sought
a liberal salvage award for its efforts. On March 12, 1998, the district
court issued an order directing the arrest of the shipwrecked vessels
and granting Sea Hunt exclusive rights of salvage until further notice.
The court also directed Sea Hunt to send specific notice of the action
to both the United States and to Spain.
In response, the United States moved to intervene and filed a veri-
fied claim on behalf of Spain. The district court found that the United
States lacked authority to appear on behalf of Spain and granted Spain
90 days to refile a verified claim. See Sea Hunt, Inc. v. Unidentified,
Shipwrecked Vessel or Vessels, 22 F. Supp. 2d 521, 526 (E.D. Va.
1998). Spain's verified claim stated that the Kingdom of Spain "was
and still is the true and bona fide owner of the vessels JUNO and LA
GALGA . . . and that title and ownership interest in said vessels has
never been abandoned or relinquished or transferred by the Kingdom
of Spain." Spain put forth affidavits and exhibits showing that at the
time of their sinking both ships were serving as vessels of the Royal
Navy, that both vessels are currently on the register of the Spanish
Navy, and that transfer or abandonment of the vessels would require
formal authorization by the government of Spain.
On April 27, 1999, the district court found that the express aban-
donment standard applied to these shipwrecks and that Spain had
abandoned its claim to LA GALGA under Article XX of the 1763
Definitive Treaty of Peace between France, Great Britain and Spain.
See Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or Vessels, 47
F. Supp. 2d 678, 690 (E.D. Va. 1999). It further found that Spain did
not expressly abandon JUNO in the 1819 Treaty ending the conflict
between Spain and the United States stemming from the War of 1812.
See id. In a later decision the district court held that Sea Hunt could
not rightfully claim a salvage award because Spain, as the acknowl-
edged owner of JUNO, had expressly refused salvage services. The
Kingdom of Spain now appeals the judgment concerning LA
8
GALGA. The Commonwealth and Sea Hunt note a cross-appeal with
regard to JUNO and the denial of a salvage award.
II.
In order for Virginia to acquire title to the shipwrecks and to issue
salvage permits to Sea Hunt, these vessels must have been abandoned
by Spain. Sea Hunt and the Commonwealth argue that the Abandoned
Shipwreck Act requires application of an implied abandonment stan-
dard for shipwrecks in coastal waters, and that Spain has abandoned
LA GALGA and JUNO. Because Spain has asserted an ownership
claim to the shipwrecks, however, express abandonment is the gov-
erning standard. See Columbus-America Discovery Group v. Atlantic
Mutual Ins. Co., 974 F.2d 450, 464-65 (4th Cir. 1992). To adopt a
lesser standard would not only go beyond what the ASA requires. It
would also abrogate America's obligations to Spain under the 1902
Treaty of Friendship and General Relations.
A.
Under the ASA, the United States asserts title to any abandoned
shipwreck that is on or embedded in the submerged lands of a State.
See 43 U.S.C. § 2105(a). Title is then automatically transferred to the
State in whose submerged lands the shipwreck is located. See id.§ 2105(c). "Submerged lands" for the purposes of the ASA includes
coastal waters three miles from shore. Id.§ 2102(f)(1), § 1301(a)(2).
For a state to acquire title to a shipwreck it must be (1) abandoned
and (2) on or embedded in the submerged lands of a state. Id.
§ 2105(a) & (c). It is undisputed that LA GALGA and JUNO are
within Virginia's submerged lands. That, however, is not enough. We
must address whether these frigates were abandoned by Spain. If the
shipwrecks were abandoned, then Sea Hunt would have control over
them in accordance with its state-issued permits.
The ASA does not define the critical term "abandoned." Nothing
in the Act indicates, however, that implied abandonment should be
the standard in a case such as this where a sovereign asserts owner-
ship to its vessels. The Act states in its findings that "abandoned ship-
wrecks" are those "to which the owner has relinquished ownership
rights with no retention." 43 U.S.C. § 2101(b). The statute thus pro-
9
vides that a shipwreck is abandoned only where the owner has relin-
quished ownership rights. When an owner comes before the court to
assert his rights, relinquishment would be hard, if not impossible, to
show. Requiring express abandonment where an owner makes a claim
thus accords with the statutory text. Further, although the legislative
history states that abandonment may be implied, it may be implied "as
by an owner never asserting any control over or otherwise indicating
his claim of possession." H.R. Rep. No. 100-514(I), at 2 (1988),
reprinted in 1988 U.S.C.C.A.N. 365, 366. An owner who comes for-
ward has definitely indicated his claim of possession, and in such a
case abandonment cannot be implied.
The legislative history of the ASA suggests that sovereign vessels
must be treated differently from privately owned ones. The House
Report incorporates a State Department letter, which states, "the U.S.
only abandons its sovereignty over, and title to, sunken U.S. warships
by affirmative act; mere passage of time or lack of positive assertions
of right are insufficient to establish such abandonment." H.R. Rep.
No. 100-514(II), at 13 (1988), reprinted in 1988 U.S.C.C.A.N. at 381.
The implications of this for other sovereign vessels is also under-
scored: "[T]he same presumption against abandonment will be
accorded vessels within the U.S. territorial sea that, at the time of
their sinking, were on the non-commercial service of another State."
Id. Under the ASA, then, an implied abandonment standard would
seem least defensible where, as here, a nation has stepped forward to
assert ownership over its sovereign shipwrecks.
B.
Further, courts have held that the ASA "did not affect the meaning
of `abandoned,' which serves as a precondition for the invocation of
the ASA's provisions." Fairport Int'l Exploration, Inc. v. Ship-
wrecked Vessel, 177 F.3d 491, 499 (6th Cir. 1999). According to the
Supreme Court, "the meaning of `abandoned' under the ASA con-
forms with its meaning under admiralty law." California v. Deep Sea
Research, Inc., 523 U.S. 491, 508 (1998). The Supreme Court never
suggested that by conferring title to the states the ASA somehow
altered the traditional admiralty definition of abandonment. While the
common law of admiralty must be developed consonant with federal
10
statutes, see American Dredging Co. v. Miller , 510 U.S. 443, 455
(1994), here the ASA has not altered the admiralty law background.
Under admiralty law, where an owner comes forward to assert
ownership in a shipwreck, abandonment must be shown by express
acts. See Columbus-America Discovery Group v. Atlantic Mutual Ins.
Co., 974 F.2d 450 (4th Cir. 1992). "[S]hould an owner appear in court
and there be no evidence of an express abandonment," title to the
shipwreck remains with the owner. Id. at 461. This principle reflects
the long standing admiralty rule that when "articles are lost at sea the
title of the owner in them remains." The AKABA, 54 F. 197, 200 (4th
Cir. 1893). When "a previous owner claims long lost property that
was involuntarily taken from his control, the law is hesitant to find an
abandonment." Columbus-America, 974 F.2d at 467-68; see also
Fairport, 177 F.3d at 498; Hener v. United States, 525 F. Supp. 350,
356-57 (S.D.N.Y. 1981). An inference of abandonment is permitted,
but only when no owner appears. See Columbus-America, 974 F.2d
at 464-65 ("Should the property encompass an ancient and longlost
shipwreck, a court may infer an abandonment. Such an inference
would be improper, though, should a previous owner appear and
assert his ownership interest . . . .").
Appellees point us to no case applying an implied abandonment
standard where a sovereign owner has come forward to assert a claim
to its property. Although Sea Hunt and the Commonwealth character-
ize the rule of Columbus-America as an anomaly, it reflects well-
established admiralty law doctrine and existing case law. For
instance, in Fairport the Sixth Circuit adopted a test of "inferential
abandonment." It emphasized, however, that there is a "uniform con-
cern that courts impose a high burden on those who argue that an
owner abandoned property that sank against his will." 177 F.3d at
499; see also id. at 500 ("Proof by inference still requires proof, not
conjecture -- a requirement bolstered by the exacting burden of proof
admiralty law imposes on those who allege abandonment."). The
Sixth Circuit also expressly limited its holding to"vessels formerly
owned by private parties, and express[ed] no view as to the applica-
tion of the express abandonment test to vessels initially owned by the
United States." Id. at 500.
The First and Fifth Circuits have also never suggested that an
implied abandonment standard would govern in a case involving a
11
claim by an original owner to its property. See Martha's Vineyard
Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned
Steam Vessel, 833 F.2d 1059, 1065 (1st Cir. 1987) (emphasizing that
"no person or firm appeared to assert any overall claim of owner-
ship"); Treasure Salvors, Inc. v. Unidentified Wrecked and Aban-
doned Sailing Vessel, 640 F.2d 560, 567 (5th Cir. 1981) (noting that
"salvage of a vessel or goods at sea, even when the goods have been
abandoned, does not divest the original owner of title or grant owner-
ship rights to the salvor, except in extraordinary cases"). Appellees'
attempts to glean a broad implied abandonment standard from circuit
law overlooks one salient point -- none of the cases they rely upon
involved an original sovereign owner's claim to its shipwrecked ves-
sels. To adopt an implied abandonment standard in this context would
casually divest sovereigns of ships which sank against their will and
to which they still lay claim.
C.
Finally, the express abandonment standard is required by Article X
of the 1902 Treaty of Friendship and General Relations between the
United States and Spain. Article X provides, "In cases of shipwreck,
damages at sea, or forced putting in, each party shall afford to the ves-
sels of the other . . . the same immunities which would have been
granted to its own vessels in similar cases." Treaty of Friendship and
General Relations, July 3, 1902, U.S.-Spain, 33 Stat. 2105. According
to the United States Department of State, "this provision is unique"
in that no other "friendship, commerce and navigation (FCN) treaty
of the United States contains such a broadly worded provision apply-
ing to State ships entitled to sovereign immunity." Statement of Inter-
est, U.S. Dep't of State, ¶ 13 (Dec. 18, 1998). This treaty requires that
imperiled Spanish vessels shall receive the same immunities con-
ferred upon similarly situated vessels of the United States.
United States vessels may only be abandoned by an express, unam-
biguous, and affirmative act. Article IV of the Constitution states,
"Congress shall have power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging
to the United States." U.S. Const. art. IV, § 3. From this it follows that
the Constitution precludes a finding of implied abandonment of fed-
eral lands and property -- dispositions of federal property require
12
some congressional action. "[T]he United States cannot abandon its
own property except by explicit acts." See United States v. Steinmetz,
973 F.2d 212, 222 (3d Cir. 1992). The Supreme Court has empha-
sized that the United States cannot be precluded from asserting its
ownership rights by private property "principles similar to laches,
estoppel or adverse possession." United States v. California, 332 U.S.
19, 39-40 (1947). The government "holds its interests here as else-
where in trust for all the people," and thus cannot relinquish its prop-
erty without express acts. Id. at 40. The House Report for the ASA
also relates the understanding that "U.S. warships and other public
vessels . . . require an affirmative act of abandonment." H.R. Rep. No.
100-514(II), at 5 (1988), reprinted in 1988 U.S.C.C.A.N. at 374.
Thus, one of the immunities granted to United States vessels is that
they will not be considered abandoned without a clear and affirmative
act by the government.
Under the terms of the 1902 Treaty, Spanish vessels can likewise
be abandoned only by express renunciation. Both Spain and the
United States agree that this treaty provision requires that in our terri-
torial waters Spanish ships are to be accorded the same immunity as
United States ships. They also agree that such immunity requires
application of the express abandonment standard."When the parties
to a treaty both agree as to the meaning of a treaty provision, and that
interpretation follows from the clear treaty language, we must, absent
extraordinarily strong contrary evidence, defer to that interpretation."
See Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982).
We cannot therefore adopt an implied abandonment standard in the
face of treaties and mutual understandings requiring express abandon-
ment. Such a standard would supplant the textual framework of nego-
tiated treaties with an unpredictable judicial exercise in weighing
equities.
Applying the express abandonment standard to sovereign vessels
also respects the legitimate interests of the executive branch. While
the ASA confers title to abandoned shipwrecks to the states, it does
not vitiate important national interests or undermine the well-
established prerogatives of sovereign nations. Department of Interior
advisory guidelines on the ASA state that a sovereign vessel that
appears to have been abandoned "remains the property of the nation
to which it belonged at the time of sinking unless that nation has
13
taken formal action to abandon it or to transfer title to another party."
55 Fed. Reg. 50116, 50121 (1990). The State Department has like-
wise emphasized that its policy is "to recognize claims by foreign
governments -- such as in this case by the Government of Spain
regarding the warships JUNO and LA GALGA -- to ownership of
foreign warships sunk in waters of the United States without being
captured, and to recognize that title to such sunken warships is not
lost absent express abandonment by the sovereign ." Statement of
Interest, U.S. Dep't of State, ¶ 9 (emphasis added). Further, the State
Department notes, "U.S. domestic law is consistent with the custom-
ary international law rule that title to sunken warships may be aban-
doned only by an express act of abandonment." Id. ¶ 15.
In a case such as this, it is "not for the courts to deny an immunity
which our government has seen fit to allow." Republic of Mexico v.
Hoffman, 324 U.S. 30, 35 (1945) (involving an in rem admiralty
action against foreign owned merchant vessel). Our Constitution
charges the political branches with the conduct of foreign affairs. See
Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103, 109-10 (1948). The express abandonment standard is regularly
applied by the executive branch in dealing with foreign vessels. It is
simply not for us to impose a looser standard that would interfere with
this long standing political judgment in sensitive matters of interna-
tional law.
III.
We now address whether there has been an express abandonment
of LA GALGA.1 The district court found that Spain had expressly
abandoned LA GALGA in Article XX of the Treaty of 1763. See Sea
Hunt, 47 F. Supp. 2d at 690. This interpretation, however, contra-
_________________________________________________________________
1 We affirm the district court's holding that JUNO was not expressly
abandoned in the 1819 Treaty. Article II of that treaty transferred terri-
tory from Spain to the United States. But, as the district court noted,
"Nothing in Article 2 implies that Spain has ceded anything other than
territory and the structures erected on that territory." Sea Hunt, 47 F.
Supp. 2d at 690. We agree that Spain did not expressly abandon JUNO
in the 1819 Treaty for the reasons stated by the district court. See id. at
690-91.
14
venes the plain language of the 1763 Treaty. It also flies in the face
of the understandings of Spain and Great Britain, the relevant parties
to Article XX. It impairs as well the respect that international law
accords Spain's claim of ownership with regard to its shipwrecks and
the military grave sites that they contain.
A.
Sea Hunt and Virginia must demonstrate express abandonment by
"clear and convincing evidence." Columbus-America, 974 F.2d at
464; see also Fairport, 177 F.3d at 501; accord Falgout Bros., Inc.
v. S/V Pangaea, 966 F. Supp. 1143, 1145 (S.D. Ala. 1997); Hener,
525 F. Supp. at 357. This is a high burden and an"exacting standard."
Fairport, 177 F.3d at 501. The district court found such clear and
convincing evidence of an express abandonment in the 1763 Defini-
tive Treaty of Peace between France, Great Britain, and Spain, which
ended the Seven Years War and transferred most of Spain's territories
in the new world to Great Britain. See Sea Hunt , 47 F. Supp. 2d at
689 ("The sweeping language of Spain's cession in Article XX,
together with the background of the complete change of sovereignty
in the North American colonies, makes it unlikely that Spain intended
to, or would have been allowed by Great Britain to maintain a claim
of ownership over the wreck of LA GALGA . . . .").
We disagree with the district court's interpretation. Article XX of
the 1763 Treaty provides:
[H]is Catholick Majesty cedes and guaranties, in full right,
to his Brittanic Majesty, Florida, with Fort St. Augustin, and
the Bay of Pensacola, as well as all that Spain possesses on
the continent of North America, to the East or to the South
East of the river Mississippi. And, in general, every thing
that depends on said countries and lands, with the sover-
eignty, property, possession, and all rights, acquired by trea-
ties or otherwise. . . . [S]o that the Catholick King cedes and
makes over the whole to the said King and to the Crown of
Great Britain, and that in the most ample manner and form.
. . . It is moreover stipulated, that his Catholick Majesty
shall have power to cause all the effects that may belong to
15
him, to be brought away, whether it be artillery or other
things.
Definitive Treaty of Peace, Feb. 10, 1763, Fr.-Gr. Brit.-Spain, art. 20,
Consol. T.S. 331-32.
The plain language of this treaty provision contains no evidence of
an express abandonment. First, Article XX does not include any of
the common nouns that could refer to LA GALGA. Notably absent
are the terms "shipwreck," "vessels,""frigates," or "warships." Other
provisions of the treaty mention these terms explicitly. For instance,
Article III, which provides for the restoration of prisoners, states "all
the ships of war and merchant vessels which shall have been taken . . .
shall likewise be restored." See also Art. VIII (stating that the British
may remove their belongings in "vessels"); Art. XIX (same). Further,
the treaty also specifically catalogues items other than territory
intended to be conveyed. For instance the treaty transfers control of
"factories," Art. XI, "artillery," Art. XII, "fortresses," Art. XIX, "cas-
tles," Art. XXI, and "papers, letters, documents, and archives," Art.
XXII. When the parties to the 1763 Treaty intended to cede non-
territorial state property, they did so with great particularity. Yet
nowhere does the treaty specifically mention the cession of "ship-
wrecks." "Express" is defined as "firmly and explicitly stated; particu-
lar, specific." Webster's II New College Dictionary 396 (1999).
Without any mention of shipwrecks or any seagoing vessels it is hard
to read Article XX as an express abandonment of LA GALGA.
Second, the cession of state property in Article XX is limited to all
that Spain possesses "on the continent of North America." The plain
meaning of this is that Spain ceded to Great Britain only what was
located on land. Spain did not cede possessions in the sea or seabed.
The district court focused on the fact that the"clause is a sweeping
grant of territory and property," yet overlooked the "on the continent"
limitation. This limitation excludes wrecks like LA GALGA that were
located not on the continent, but in the seabed.
Sea Hunt and the Commonwealth urge that "on the continent"
included coastal waters, and that consequently the 1763 Treaty consti-
tutes an express abandonment of LA GALGA. Yet in a similar provi-
sion of the treaty, the parties specifically cede both land and the
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coasts. Article IV cedes French Canada to Great Britain and specifi-
cally provides for cession of "in general every thing that depends on
the said countries, lands, islands, and coasts " (emphasis added). It
also transfers all rights held "over the said countries, lands, islands,
places, coasts, and their inhabitants" (emphasis added). By contrast,
Article XX states that Spain cedes to Great Britain"in general, every
thing that depends on the said countries and lands," and all rights
"over the said countries, lands, places, and their inhabitants." There
is no mention at all of coasts in Article XX.
Moreover, in light of eighteenth century understandings, this "on
the continent" language would hardly amount to clear and convincing
evidence of an express abandonment of property in coastal waters. In
fact, the three-mile coastal belt, well-recognized today, had no clear
counterpart in eighteenth century international law. Ownership of the
three-mile belt in the eighteenth century was but a"nebulous sugges-
tion." United States v. California, 332 U.S. at 32. When "in 1776 the
American colonies achieved independence and when in 1783 the
Treaty of Paris was concluded, neither the British crown nor the colo-
nies individually had any right of ownership of the seabed of the sea
adjacent to the American coast." Report of Special Master Maris,
O.T. 1973, No. 35 Orig. at 47, adopted by United States v. Maine, 420
U.S. 515 (1975). Sovereign rights to the territorial sea were not estab-
lished in international law until some time in the nineteenth century.
See California, 322 U.S. at 33; accord Maine , 420 U.S. at 524. Nine-
teenth century and present-day views of territorial cession are hardly
dispositive of what mid-eighteenth century treaty signatories
intended. See Shively v. Bowlby, 152 U.S. 1, 57 (1894); United States
v. Ancgog, 190 F. Supp. 696, 698 (D. Guam 1961).
Third, Article XX provides that Spain ceded "every thing that
depends on the said countries and lands." The district court found that
this included the wreck of LA GALGA. See Sea Hunt, 47 F. Supp.
2d at 689. It is anything but clear, however, given eighteenth century
understandings, that "every thing that depends" can be interpreted to
include this shipwreck. When interpreting this same clause of Article
XX, Chief Justice Marshall noted, "By the 20th article of the [1763]
treaty, Spain ceded Florida, with its dependencies, and all the country
she claimed east or south-east of the Mississippi, to Great Britain."
Johnson and Graham's Lessee v. McIntosh, 21 U.S. (8 Wheat.) 543,
17
584 (1823) (emphasis added). At the time, "dependencies" meant
other territories that were dependent upon the sovereign country. A
dependency was "a territory distinct from the country in which the
supreme sovereign power resides, but belonging rightfully to it, and
subject to the laws and regulations which the sovereign may think
proper to prescribe." United States v. THE NANCY, 27 F. Cas. 69, 71
(C.C.D. Pa. 1814) (No. 15,854); see also Webster's II 303 (defining
"dependency" as a "territory or state under the jurisdiction of another
country from which it is separated geographically"). Under the
Supreme Court's relatively contemporaneous interpretation, "every
thing that depends" does not include Spanish property such as the
shipwrecks, but rather refers to "dependencies" such as nearby
islands.
Fourth, Article XX provides that "his Catholick Majesty shall have
power to cause all the effects that may belong to him, to be brought
away, whether it be artillery or other things." There is no deadline for
the right to take this property away. Rather the right is guaranteed
irrespective of the time elapsed. By contrast, other provisions of the
Treaty specifically set time limits for certain actions. For instance,
Article XX itself states that Spanish subjects may"bring away their
effects, as well as their persons . . . the term limited for this emigra-
tion being fixed to the space of eighteen months." See also Art. VIII
(providing four months for the demolition of fortresses); Art. XIII
(eighteen months for the emigration of British subjects from Guada-
loupe); Art. XXIV (providing different time periods for various "resti-
tutions" and "evacuations"). His "Catholick Majesty," however, has
no limitation whatsoever on the removal of state property. In treaty
interpretation as in statutory interpretation, particular provisions may
not be divorced from the document as a whole. See Kolovrat v. Ore-
gon, 366 U.S. 187, 195-96 (1961) (refusing to interpret a treaty provi-
sion in isolation). Where such specific time limits were included for
a variety of different actions but not included for the clause at issue
here, there is a strong presumption that no time limit applies.
In sum, Article XX does not contain "clear and convincing" evi-
dence of express abandonment. While the language of Article XX
encompasses a great deal of land and property, it does not mention
vessels or shipwrecks, nor does Article XX refer to Spanish property
in the sea or on the seabed. Such general treaty language does not
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come close to an "express declaration abandoning title," Columbus-
America, 974 F.2d at 464, and therefore cannot amount to clear and
convincing evidence of an express abandonment.
B.
This view of the treaty is not ours alone. Both parties to Article XX
of the 1763 Treaty agree that the Kingdom of Spain did not abandon
LA GALGA. Such agreement is significant. When "the parties to a
treaty both agree as to the meaning of a treaty provision . . . we must,
absent extraordinarily strong contrary evidence, defer to that interpre-
tation." Sumitomo Shoji, 457 U.S. at 185; see also El Al Israel Air-
lines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999) (the terms
of a treaty must be given a "meaning consistent with the shared
expectations of the contracting parties" (internal quotation marks
omitted)). "Treaties are contracts between sovereigns, and as such,
should be construed to give effect to the intent of the signatories."
Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir. 1996). Postratification
understandings of the contracting parties are traditionally considered
as aids to treaty interpretation. See El Al Israel Airlines, 525 U.S. at
167.
After the district court issued its judgment, the United Kingdom
issued a formal Diplomatic Note clarifying that Article XX of the
1763 Treaty "cannot be interpreted as involving an express abandon-
ment by Spain of its rights to the shipwreck of`LA GALGA.' . . .
[T]he intention behind Article XX was to transfer sovereignty over
the territories mentioned in that Article, and not to deal with, or other-
wise affect, the quite separate issue of the ownership of shipwrecks
on the waters adjacent to these or other territories in North America."
Spain also issued a Diplomatic Note reaffirming its view that the
1763 Treaty "was not a cession or abandonment of H.M. Frigate `LA
GALGA' or other shipwrecked vessels of Spain.""While courts inter-
pret treaties for themselves, the meaning given them by the depart-
ments of government particularly charged with their negotiation and
enforcement is given great weight." Kolovrat , 366 U.S. at 194. We
decline to disregard the position of the relevant treaty signatories that
Article XX was not intended to include movable property located in
coastal waters. Given that their view accords with the language and
structure of the Treaty itself, it can hardly be contended that Sea Hunt
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has put forward "extraordinarily strong contrary evidence," to rebut
the parties' interpretation.
C.
Although we believe the standard of express abandonment controls
in the circumstances of this case, it would be difficult under any test
to conclude that LA GALGA was abandoned. The mere passage of
time since a shipwreck is not enough to constitute abandonment. See
Columbus-America, 974 F.2d at 461; Fairport , 177 F.3d at 499(length of time "one factor among several relevant to whether a court
may infer abandonment"). Spain attempted salvage after LA GALGA
sank, maintained LA GALGA on its naval registry, and asserted a
claim after Sea Hunt brought its admiralty action. Moreover, the ship-
wreck lies scattered and buried in the sand beneath the water, and
technology has only recently become available for its salvage. See
Yukon Recovery, L.L.C. v. Certain Abandoned Property , 205 F.3d
1189, 1194 (9th Cir. 2000) ("[L]ack of technology is one factor to
consider in determining whether inaction constitutes abandonment.").
In other cases where abandonment was found for Spanish wrecks,
Spain made no claim of ownership. See Treasure Salvors, Inc. v. The
Unidentified Wrecked and Abandoned Sailing Vessel , 569 F.2d 330,
337 (5th Cir. 1978) (noting that "[t]he modern day government of
Spain has expressed no interest in filing a claim in this litigation as
a successor owner"); Lathrop v. Unidentified, Wrecked & Abandoned
Vessel, 817 F. Supp. 953, 956 (M.D. Fla. 1993) (finding that "no one
. . . asserted an interest in the alleged vessel"). By contrast, Spain has
vigorously asserted its interest in the wreck of LA GALGA and
wishes to maintain it as a sacred military gravesite. In light of these
circumstances, even a finding of implied abandonment would be
improper.
D.
The United States has strenuously defended Spain's ownership
over these vessels. The government maintains that this is required by
our obligations under the 1902 Treaty as well as general principles of
international comity. The United States "is the owner of military ves-
sels, thousands of which have been lost at sea, along with their crews.
In supporting Spain, the United States seeks to insure that its sunken
20
vessels and lost crews are treated as sovereign ships and honored
graves, and are not subject to exploration, or exploitation, by private
parties seeking treasures of the sea." Amicus Curiae Br. of U.S. at 1.
Protection of the sacred sites of other nations thus assists in prevent-
ing the disturbance and exploitation of our own. Here the govern-
ment's interest is rooted in customary international law. See 8 Digest
of U.S. Practice in International Law 999, 1006 (1980) (noting that
interference with sunken military vessels, "especially those with
deceased individuals," is "improper" and that foreign governments'
requests to have such views respected "should be honored").
It bears repeating that matters as sensitive as these implicate impor-
tant interests of the executive branch. Courts cannot just turn over the
sovereign shipwrecks of other nations to commercial salvors where
negotiated treaties show no sign of an abandonment, and where the
nations involved all agree that title to the shipwrecks remains with the
original owner. Far from abandoning these shipwrecks, Spain has vig-
orously asserted its ownership rights in this proceeding. Nothing in
the law of admiralty suggests that Spain has abandoned its dead by
respecting their final resting place at sea.
IV.
We reverse the judgment of the district court that the Kingdom of
Spain abandoned the vessel LA GALGA. We affirm the judgment of
the district court as to JUNO. Both vessels remain the property of Spain.2
The judgment of the district court is accordingly
AFFIRMED IN PART AND REVERSED IN PART.
_________________________________________________________________
2 We affirm the district court's denial of a salvage award to Sea Hunt.
The district court found, "It is the right of the owner of any vessel to
refuse unwanted salvage. Sea Hunt knew before bringing this action that
the JUNO was a Spanish ship and that Spain might make a claim of own-
ership and decline salvage. . . . Because Sea Hunt had prior knowledge
of Spain's ownership interests and had reason to expect Spain's owner-
ship claim and refusal to agree to salvage activity on JUNO, Sea Hunt
can not be entitled to any salvage award."
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