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A STUDY IN SALVAGE.

TABLE OF CONTENTS

  I. Introduction                                        50
 II. The Curse of the Redhead                            52
     A. Yo Ho (A Pirate's Life For Me)                   52
     B. Dead Men Tell No Tales; Aye, But Dead Ships Do
     Have Some Tales To Tell                             53
III. The Law of Salvage Versus the Law of Finds          55
     A. What is a Shipwreck                              56
     B. Admiralty Procedure and Jurisdiction over
     Shipwrecks                                          56
     C. Proving a Wreck's Identity                       59
     D. Abandonment                                      60
     E. The Law of Salvage                               62
        1. The Ancient Tradition of Salvage              62
        2. The Two Kinds and Three Elements of Salvage   62
        3. The Result of Salvage                         64
        4. The Salvor's Award                            65
     F. The Law of Finds                                 66
        1. The Ancient Tradition of "Finders Keepers"    66
        2. The Three Elements of Finds                   66
        3. The Result of Finds                           67
        G. When and Why Courts Apply Salvage or Finds    68
     H. When Salvage or Finds May Not Be Applied         68
IV. Hoist the Colours and Treasure, Me Hearties          70
 V. Conclusion                                           75


I. INTRODUCTION

Fictional stories such as Treasure Island (1) and Pirates of the Caribbean, (2) television series like Expedition Unknown, (3) and real-life explorations of famous shipwrecks like the VASA warship, (4) the ANT1KYTHERA, (5) the R.M.S. TITANIC, (6) and the QUEEN ANNE'S REVENGE, (7) showcase humanity's inexplicable and hopeless fascination with the pursuit of adventure, the unknown at the bottom of the sea, and treasure beyond our wildest dreams. Advances in technology and maritime archaeology have increased our accessibility to ancient wrecks and, in turn, fueled our eagerness to rediscover ships once thought lost to the sea. (8)

Of course, legal implications quickly abound after the discovery of

shipwrecks. Many of these suits seek to resolve ownership rights to the wreck and the treasure found on the sea floor. The law of salvage and the law of finds control in these cases. However, while both laws derive from ancient tradition, federal courts often conflict on their application, even in similar cases.

This paper addresses many of these issues by presenting the law surrounding the discovery of a shipwreck. Part II will recount the swashbuckling, hypothetical tale of an 18th century pirate and the recovery efforts of the ships she sank. Part III will give a detailed overview of the law of salvage, the law of finds, and other legal issues which may arise in the recovery of ancient or historical shipwrecks. Finally, Part IV will apply the law to the pirate captain's tale and propose the correct solutions to the problems presented therein.

II. THE CURSE OF THE REDHEAD

A. Yo Ho (A Pirate's Life For Me) (9)

Throughout the late seventeenth and early eighteenth centuries, roving pirates terrorized the crystal blue waters of the Caribbean. (10) This Golden Age of Piracy gave rise to many infamous buccaneers: Blackbeard, Anne Bonny, Amaro Pargo, and Sir Francis Drake, to name a few. But only one pirate's name was whispered in fear by superstitious sailors and soldiers alike: the infamous (and fictional) Scarlett Mortdelamer. An encounter with the French pirate captain, known as the "Redhead" on the high seas, and her fleet of commandeered English merchant ships, the OPHELIA, the MIRANDA, and flagship VIOLA, (11) was considered as good as a date with death.

In 1717, the Redhead set her sights on the NUESTRA SENORA BE LA NIEVE, a private Spanish frigate transporting a hoard of treasure from the Canary Islands to the new world at the request of the Spanish monarchy. This treasure consisted of 5,000 gold bars, chests full of emeralds, rubies, and sapphires, and several dozen royal tiaras. Little did the Redhead know, the dangers of piracy in the Caribbean, and the value of the treasure onboard, had forced the crew of the NIEVE to take preemptive measures--requesting an escort by the Spanish warship, EL ESPIRITU INTREPIDO, helmed by Capitan Salazar Santos. The INTREPIDO itself also held a fortune in the form of a cache of weapons and sixty-seven bronze cannons of the highest quality.

On March 18, 1717, the Redhead's fleet cornered the NIEVE and INTREPIDO in the international waters of the Atlantic Ocean off the coast of Haiti. Each of the Redhead's ships were outfitted with a dozen stolen English and French cannons, which she ordered to be used in full effect in the ensuing battle. Afterwards, scholars would claim that the cannon blasts could be heard as far away as Tortuga.

During the battle, the NIEVE crew abandoned the vessel out of fear, allowing the Redhead's crew to successfully invade the ship and steal the treasure. However, as Capitan Santos ordered the INTREPIDO to begin firing on the NIEVE--determined to sink the treasure rather than hand it over to the pirates--the pirate crew quickly evacuated, splitting the treasure between two row boats destined for two of the Redhead's three ships. One group successfully unloaded their chests of jewels onto the VIOLA, but legend conflicts as to which ship received the other chest containing the 5,000 gold bars.

When the cannon smoke cleared, only one ship was left afloat: the Redhead's flagship, VIOLA. During the battle, the OPHELIAs hull had been splintered by a cannon ball and tragically sunk to the ocean floor with the crew still on board. Upon the loss of her ship, the Redhead ordered her remaining crew to evacuate the half-sunk MIRANDA as well and, in a brilliant, possibly insane feat of maritime battle tactics, put the empty ship on a direct course for the INTREPIDO. The unmanned ship collided with the INTREPIDO quite anticlimactically, but the damage was done nonetheless. Capitan Santos ordered his crew to keep fighting, but rising waters from the gaping hole in the hull forced them off the vessel and into their crowded rowboats. Capitan Santos was forced to watch from his tiny boat as the famed INTREPIDO sank to the briny depths below while the Redhead's laughter at his defeat rang in his ears.

In total, four ships, 5,000 gold bars from the NIEVE's treasure, and all of the INTREPIDO's valuable weaponry were lost, and Captain Scarlett Mortdelamer, the infamous Redhead, sailed away, quite a bit richer and already looking for new treasures to pillage and plunder and adventures to be had beyond the horizon.

B. Dead Men Tell No Tales; Aye, But Dead Ships Do

Have Some Tales To Tell

In July 2017, after years of careful research and exploration, Carina Holmes and James Hooper, two maritime archaeologists operating the Poseidon Underwater Research League (PURL) discovered two shipwrecks in international waters off the coast of

Haiti. Based on their location, the accounts of the battle of 1717, and the proximity of the wrecks to each other, they believed these to be the collided MIRANDA and INTREPIDO. Holmes and Hooper immediately began to explore the site. Because of its low-impact collision and minimal damage to its hull, besides the gaping hole in the port bow, the INTREPIDO was mostly intact. The MIRANDA, on the other hand, had obviously sustained heavy cannonball fire that had been exacerbated by the subsequent collision and the three hundred years it had been subjected to the underwater elements. Because of this, the wreck was in danger of being swept away by the current. PURL quickly implemented a preservation strategy and began raising artifacts from the wreck. They found five French cannons and two English cannons, and determined the techniques used in forging the nails found in a piece of planking proved the ship to be English in origin. (12) Shortly thereafter, PURL recovered over three thousand gold bars from the wreck. They also began removing cannons from the other ship they believed to be the INTREPIDO. They were able to find forty bronze cannons, chests of cannon balls, and several 18th century rifles, consistent with ledgers detailing what was stored on the INTREPIDO at the time of its wreck. However, Holmes and Hooper were then forced to pause their exploration for several months due to bad weather and technological issues.

In August 2017, Abigail Gates and Henry Anderson, two professional shipwreck explorers and co-owners of the National Oceanic Treasure Seekers, LLC (NOTS) discovered two more wrecks not far from the PURL site. The two explorers found three English cannons and one French cannon at one site, as well as the nearly-intact hull of a Spanish-made frigate and several empty crates at the other wreck site. Independent of Holmes and Hooper's discovery, NOTS determined these wrecks were likely the OPHELIA and the NIEVE.

In September 2017, NOTS independently discovered the wreck believed to be the MIRANDA and began an exploration.

They recovered one French cannon and two English cannons, as well as one hundred and one gold bars.

In October 2017, PURL filed an in rem petition with a federal district court sitting in admiralty jurisdiction, claiming ownership and title to the MIRANDA and the INTREPIDO, as well as ownership of all artifacts brought up or that will be brought up from the sea floor. In the alternative, PURL argued that all artifacts be placed in possession of the vessel, therefore entitling the organization to a salvage award in the amount equal to the expenses incurred during their exploration. (13) They also deposited two cannons from each ship, as well as one gold bar, with the court to satisfy constructive in rem jurisdiction over the two wrecks.

In November 2017, NOTS embarked on a second expedition to the MIRANDA. After several days of exploration, Gates and Anderson learned of PURL's investigation at the site and immediately filed a similar petition asking for ownership or, in the alternative, a liberal salvage award, for the OPHELIA and the NIEVE, as well as controverting PURL's claims of ownership or salvage over the MIRANDA. Additionally, they deposited two gold bars and one cannon with the court to satisfy constructive in rem jurisdiction.

The Kingdom of Spain then intervened in the suits, claiming ownership of the wreck of the INTREPIDO, and all artifacts found on board, based on the sovereign immunity of the warship. (14) Both PURL and NOTS opposed Spain's claim. As is standard procedure in such instances, the federal court issued a warrant for the arrest of all four wrecks. (15)

III. THE LAW OF SALVAGE VERSUS THE LAW OF FINDS

The discovery of a shipwreck triggers legal action on the part of the discoverers to claim ownership or possession of the artifacts they found. This determination is often a murky issue for courts, first in considering whether to apply the law of salvage or the law of finds, and second in applying the chosen law to the issues at hand. This determination is even more complicated when multiple "salvor" groups are involved, (16) or when the wreck is located in international waters or a foreign country claims ownership of the vessel and/or its artifacts. The following sections present the law on which courts rely in determining such cases.

A. What is a Shipwreck

The laws of salvage and finds are unique in that they sometimes may be applied to wrecks, not just vessels, as is typical in maritime law. The word "vessel" is defined as "includ[ing] every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." (17) When a vessel completely sinks, either, through collision, allision, battle damage, or any other catastrophe, and is rendered unnavigable, that vessel may be considered a "wreck." (18) And while defining a wreck as "ancient or historical" is not necessarily addressed in shipwreck suits, the age of a shipwreck and the amount of time a wreck or artifact has been lying on the ocean floor may be important in the determination of abandonment, as discussed later in this paper. (19)

B. Admiralty Procedure and Jurisdiction over Shipwrecks

Article III, Section 2, Clause 1 of the United States Constitution grants federal courts the exclusive ability to hear "all Cases of admiralty and maritime Jurisdiction." (20) Federal district courts are further granted exclusive jurisdiction over admiralty disputes by 28 U.S.C. [section] 1333(1), which states, "The district courts shall have original jurisdiction, exclusive of the courts of the States, of... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." (21)

There are three types of admiralty jurisdiction available to claimants in cases involving ancient or historical shipwrecks: in personam, in rem, and quasi in rem. In personam jurisdiction allows the claimant to bring a lawsuit against a vessel's owner because of their personal liability for a breach of contract or tort claim. (22) In contrast, in rem jurisdiction allows the claimant to bring a suit directly against the vessel as the defendant through the fiction of personification. (23) Because in rem actions are "distinctively admiralty proceedings," only federal courts have jurisdiction over in rem admiralty disputes. (24) In rem actions also give courts jurisdiction to adjudicate disputes between competing salvor claimants and ensure their rights against the world. (25)

In rem actions commence when the vessel, wreck, or artifacts are physically seized and taken into the possession, control, and custody of a court officer such as a U.S. marshal. (26) This possession may be actual, in that the wreck is "embedded" within the territorial waters of the United States (27) and where the states have "exert[ed] some element of physical control over the [wreck]," (28) or constructive, a legal fiction based on the "practical impossibility of delivering the entire [wreck] into the actual possession of the court." (29) Constructive possession allows the claimant to deposit a recovered artifact with the court marshal in place of the actual wreck and theoretically give the court jurisdiction over all recovered artifacts. (30) Possession of a part of a wreck or its cargo is equal to constructive possession of the entire wreck. (31)

Lastly, claimants may pursue a hybrid type of jurisdiction called quasi in rem. Quasi in rem jurisdiction is similar to in rem actions in that it commences the moment that the wreck is subject to the jurisdiction of the court--i.e. when the court actually or constructively possesses the wreck. (32) It is similar to in personam jurisdiction in that it is based on the personal liability of the owner of the wrecked vessel, if there is one. (33) The purpose of quasi in rem jurisdiction is to force the owner as defendant to appear in court and participate in the matter involving their wreck. (34) The court may also exercise quasi in rem over property located within or outside of the court's territorial jurisdiction to adjudicate the rights of parties over which it has in personam jurisdiction. (35)

The location of a wreck in international waters does not prohibit a United States federal court from gaining jurisdiction. (36) Rather, courts have found that in rem jurisdiction may be lawfully expanded through constructive possession of wrecks located "beyond the territorial waters or contiguous zone of any sovereign nation." (37) However, a court's judgment may not necessarily be enforceable on the high seas. (38) The United States has no authority to enforce its law in international waters, and to attempt to do so would "disrupt the relationship among nations that serves as the enforcement mechanism of international law and custom." (39) But courts may still make an enforceable judgment over property located in international waters if it is based on a recognized area of the jus gentium, the shared law of sea-faring sovereign nations. (40) In R.M.S. TITANIC v. Haver, the Fourth Circuit held:

We believe that the district court has a "constructive"... in rem jurisdiction over the wreck of the Titanic by having a portion of it within its jurisdiction and that this constructive in rem jurisdiction continues as long as the salvage operation continues.... [internationally recognized rights may be legally declared but not finally enforced. Final enforcement requires the additional steps of bringing either property or persons involved before the district court... Th[e] conclusion that no nation has sovereignty through the assertion of exclusive judicial action over international waters does not leave the high seas without enforceable law. The law of salvage as shared by the nations as part of the jus gentium applies to the high seas, and we are satisfied that it will do no violence to the relationship among nations to enforce these rights to the extent generally recognized on a non-exclusive basis. (41)

Therefore, as long as the claimants properly place the court in constructive possession of the wreck, the court may adjudicate the rights to a wreck located in international waters with respect to the property brought within their jurisdiction and any persons also found therein. (42) It may further require such judgments be enforced through shared sovereignty as long as the recovery operations of the wreck continue, and may proceed to enforce their judgments over persons within their own jurisdiction normally.

C. Proving a Wreck's Identity

Before a court may make a determination on the application of the law of salvage or the law of finds in a case, it must decide whether the wreck is truly the vessel it is purported to be. Identification is critical because a court may then rely on the vessel's history and the facts discovered during the exploration to determine whether the vessel was truly abandoned. (43) The identity of the wreck only needs to be proven by a preponderance of the evidence. (44) The court uses a fact-based analysis by reviewing the legend or documentation of the sinking, the supposed location of its sinking, the type of vessel which sunk, the physical features of the vessel, the legendary or documented cargo on board, and any other facts which may positively point to the wreck's identity. (40) This analysis was used by a Florida district court in Odyssey Marine Exploration v. Unidentified, Shipwrecked Vessel (BLACK SWAN) when it reviewed the evidence found in the unidentified wreck, nicknamed the BLACK SWAN, and positively determined its identity as the NUESTRA SENORA DE LAS MERCEDES.* (6) Through this analysis, the court was then able to determine whether the MERCEDES could be considered abandoned or was still under the ownership of the Kingdom of Spain. (47)

D. Abandonment

Abandonment status is a critical factor in in rem cases involving ancient shipwrecks because it dictates whether the law of salvage or the law of finds may be applied. The application of salvage law requires the wreck to not be abandoned. (48) An application of the law of finds, in contrast, requires that the property be abandoned so that a finder may claim ownership over it. (49)

Courts conflict on whether shipwrecked vessels may ever be considered abandoned. (50) In Hener v. United States, a New York district court stated, "Admiralty courts have adhered to the traditional and realistic premise that property previously owned but lost at sea has been taken involuntarily out of the owner's possession and control by the forces of nature at work in oceans and waterways." (51) The court further opined that "sunken cargo and vessels are in general deemed 'abandoned' in admiralty only in the sense that the owner has lost the power to prevent salvage; a finding that title to such property has been lost requires strong proof, such as the owner's express declaration abandoning title." (52)

This belief was echoed by the Fourth Circuit in R.M.S. TITANIC v. The Wrecked And Abandoned Vessel, (53) which explained there are only two rare situations in which a shipwrecked vessel may truly be considered abandoned: (1) those of express abandonment where the owner declares the relinquishment of their title and (2) those of implicit abandonment where artifacts are recovered from an ancient or historical shipwreck, but no owner comes forward to claim ownership of it in court. (54)

As will be discussed later in this article, many courts prefer to apply the law of salvage over the law of finds if possible. (55) By considering sunken property not abandoned except in very specific circumstances, courts are able to uphold this preferred common-law tradition and apply the law of salvage in many more situations. (56)

However, other courts have claimed that the "[d]isposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths." (57) These courts declare that only the law of finds should govern in cases involving ownership of "long-abandoned" shipwrecked vessels. (58) Further, if the vessel can be accurately identified, and the identified ship belonged to a private citizen or organization long since dead or dissolved, these courts consider the wreck to undoubtedly be abandoned property open to possession under the law of finds. (59)

Additionally, "long-abandoned" does not necessarily require a centuries-long stay underwater. Courts have considered wrecks from fairly recent history to be abandoned for the purposes of applying the law of finds. For example, in Rickard v. Pringle, a New York district court found that a propeller recovered from a wreck that had only sank sixty years earlier could be considered abandoned and allowed the first finder to reduce it to possession and ownership. (60)

There is no presiding consensus to resolve the conflicting court opinions on abandonment. Rather, absent express abandonment, courts seem to first decide the identity of the wreck or whether it should be preserved, then retroactively justify their abandonment determination. A decision between the application of salvage or finds is not necessarily predicated on a clear confirmation of whether the wreck was abandoned or not.

E. The Law of Salvage

1. The Ancient Tradition of Salvage

The law of salvage is considered a part of the jus gentium, making it historically recognized by all sea-faring nations. (61) The codification of salvage law dates back to the Law of Rhodes established around 900 B.C., which was preserved by the conquering Romans and became incorporated into the law of most nations. (62) The purpose of salvage is to encourage would-be salvors to voluntarily help their fellow distressed man or his periled property with the promise of compensation and a reward for their troubles. (63)

2. The Two Kinds and Three Elements of Salvage

There are two types of salvage: contract and pure. (64) Contract salvage is the contractual obligation of one party to perform salvage operations for another party who is obligated to pay some price, pursuant to an agreement between the parties. (65) Because the salvor is obligated to perform salvage services, they are not independently pursuing a shipwreck and therefore this type of salvage is not relevant here. (66)

Pure salvage grants an award to salvors who have independently performed salvage services. (67) A successful claim under pure salvage law requires that three elements be met: (1) the vessel or wreck to be rescued must be in some maritime peril; (2) the services must be intentional, voluntarily rendered, and not owed to the property as a matter of duty; and (3) the salvage effort must have had some degree of success. (68)

A maritime peril exists when a vessel is in some imminent, long term, or speculative danger. (69) Classic examples of marine perils tend to be situations dangerous only to vessels still above the surface, such as loss of power in areas prone to storms during hurricane season, or more classic examples like wind, fire, rain, and pirates. (70) However, courts have found marine perils also exist for sunken shipwrecks. Ancient or historical shipwrecks are in danger of erosion by the current and the pressure and temperature corresponding to the depth of its location. (71)

Salvage is intentional and voluntary if the salvor has a "specific intent to confer a benefit on the salved vessel" and is not otherwise required to perform the salvage services. (72) Services may not be rendered pursuant to a contract, and the salvor must not be otherwise required to save the vessel because of an occupational duty. (73)

The salvage effort must have some degree of success in preserving or recovering the wreck for the owner. (74) "Success is essential to the claim; as if the property is not saved, or if it perish[es], or in case of capture if it is not retaken, no compensation can be allowed."' (0) Further, it is a well-settled fact that there may be more than one salvaging party. (76) "In such cases all who engaged in the enterprise and materially contributed to the saving of the property, are entitled to share in the reward which the law allows for such meritorious service, and in proportion to the nature, duration, risk, and value of the service rendered." (77)

3. The Result of Salvage

Unlike the law of finds, which expects the vessel to be abandoned, the law of salvage considers the owner, even a natural or juridical owner long dead or dissolved, to still be involved in some fictional capacity simply by virtue of the wreck never officially being abandoned. The result is that the salvor does not gain ownership of title over the wreck. (78) Rather, the salvor gains the right to explore the wreck site, rescue cargo and artifacts, and, once recovery is completed, bring them before an admiralty court and be granted a proper salvage award. (79) To secure the payment of the award, the salvor is given a maritime lien on the recovered property to the exclusion of other salvors and the vessel's owner. (80) This lien gives the salvor a possessory interest in the property and allows the salvor to proceed in rem against the property to pursue his salvage award. (81)

Because a salvor gains a possessory interest over another's property, the law of salvage imposes duties of "good faith, honesty, and diligence" on the salvor to protect and preserve the property in their care. (82) The salvor acts as a trustee over the property and is subject to any court orders. (83) In addition, "Consistent with trust-law principles, when the salvor violates that trust, it may forfeit its salvage rights, including the right to exclusive possession and a salvage award." (84)

4. The Salvor's Award

Courts use the following factors to determine the proper amount for a salvage award:

(1) the labor expended by the salvors in rendering the salvage service;

(2) the promptitude, skill and energy displayed in rendering the service and saving the property;

(3) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed;

(4) the risk incurred by the salvors in securing the property from the impending peril;

(5) the value of the property saved; and

(6) the degree of danger from which the property was rescued. (85)

A proper analysis of the situation under these factors allows the court to determine the amount of the award owed to the salvors or if the amount alleged by the claimant is reasonable. (86) This can often become a large award because of the archaeological process in preserving shipwrecks and the difficulties and expenses of underwater exploration. (87)

Further, courts have also allowed claimants to demand the actual artifacts discovered since the commencement of the lawsuit as their award. In Cobb Coin Company, Inc., v. Unidentified, Wrecked And Abandoned Sailing Vessel, a Florida district court stated that "the appropriate award for the finding or salvage of such artifacts as those at issue [over 1,000 silver pieces of eight and twelve Royal Eight Escudo gold coins], items uniquely and intrinsically valuable beyond their monetary worth, is an award in specie, i.e. the artifacts themselves." (88) However, any artifacts still unrecovered and left on the ocean floor will not be considered by the court. (89)

F. The Law of Finds

1. The Ancient Tradition of "Finders Keepers"

Unlike the respected tradition of the law of salvage, the law of finds is a "disfavored common-law doctrine incorporated into admiralty but only rarely applied." (90) However, the law of finds is just as old as the law of salvage. It is based on the "ancient and honorable principle of 'finders, keepers,'" (91) and applies just as it would on land: anything considered abandoned reverts to a state of nature and non-possession, and remains unpossessed until it is brought into possession by a finder. (92)

2. The Three Elements of Finds

To establish a claim under the law of finds and gain ownership, a finder must meet three requirements. First, they must show the intent to reduce the property to their possession. (93) Second, they must prove actual or constructive possession of the property in an exercise of a high degree of control. (94) Third, they must prove that the property was either unowned or abandoned prior to the moment they found it. (95) Unlike a salvor's guaranteed award of some level of compensation for their efforts, if a finder fails to show intent or satisfactory possession sufficient to meet the requirements of finds, they will leave the courthouse with nothing. (96)

3. The Result of Finds

Because the law of finds applies to wrecked property that is unowned or abandoned, the first person to reduce the wreck to possession gains ownership over the property and exclusive title against the world. (97) Additionally, unlike the law of salvage, the law of finds imposes no duties on the finder to preserve or protect the property on behalf of another or pursuant to court orders; the finder is the full owner of the property. (98)

If a wreck is found and taken into actual or constructive possession, but is subsequently abandoned by the finder, it reverts to the state of nature and is open to possession again. (99) In addition, because a wreck may be difficult to take into possession immediately after discovery of its location, the finder usually must make some effort to protect the property from later finders. (100) This principle was most notably addressed in Eads v. Brazelton. (101) In the case, Brazelton discovered the sunken wreck of a diving boat but only fastened a buoy to it. (102) He did not return for some time, and upon the day of his return, his boat crossed paths with the boat of another finder; they had just finished raising the vessel. (103) The court determined that, while Brazelton had intended to take possession of the wreck, he had failed to take possession as the nature and situation of the cargo permitted and as the law of finds requires. (104) The court found that, had Brazelton placed his boat over the site to protect it from encroachers, and had he continued his efforts to recover the wreck after his initial finding, his conduct would have created a judicially-recognizable ownership that would guard against later finders claiming possession. (105) Because he had failed to do so, the wreck was still abandoned property open to the next finder who took actual or constructive possession of it.

G. When and Why Courts Apply Salvage or Finds

The law of salvage and the law of finds are mutually exclusive; both may not be applied at once. (106) If possible, admiralty courts traditionally prefer to apply the law of salvage over the law of finds. (10)' The reasoning is fairly straight forward: the law of salvage promotes kinship and kindness while the law of finds theoretically creates an every-man-for-himself, cutthroat race to take possession of a wreck. (108) Would-be salvors are required to give notice of their discovery to the proper persons or risk forfeiting their status as salvors due to misconduct. (109) In contrast, finders feel the need to keep the location of their finds secret to protect against later finders encroaching on the property before they can gain proper possession. (110)

In addition, the law of salvage allows a court to pick the salvor or salvors who will best preserve the wreck when two or more would-be salvors are claiming salvage rights over the wreck. (111) Under the law of finds, the court is limited to awarding ownership to the explorer who can prove they had proper possession first. (112) This difference is an especially important consideration when determining rights to a shipwreck of ancient and/or historical importance that will require recovery plans which persevere the integrity of the ship. As such, courts prefer to apply the law of salvage to protect the public's interest in the ancient or historical wreck. (113)

H. When Salvage or Finds May Not Be Applied

While the laws of salvage and finds may be applied in most shipwreck cases, there are a few situations where neither may be applied. One such example is when a shipwreck is found within the territorial waters of the United States. The Abandoned Shipwreck Act gives the United States "responsibility for management of... certain abandoned shipwrecks, which have been deserted and to which the owner has relinquished ownership rights with no retention." (114) These abandoned shipwrecks which the United States automatically gains title to include those found: "(1) embedded in submerged lands of a State; (2) embedded in coralline formations protected by a State on submerged lands of a State; or (3) on submerged lands of a State and... included in or determined eligible for inclusion in the National Register." (110) Finally, the Act states that "[t]he law of salvage and the law of finds shall not apply to abandoned shipwrecks" controlled by the Act. (116)

In addition, the law of salvage and the law of finds may not be applied if the ship wrecked is granted sovereign immunity by a treaty or act effective between the United States and the owner nation. (117) This issue was at the center of the BLACK SWAN case. The BLACK SWAN, later determined to be the NUESTRA SENORA DE LAS MERCEDES, was a Spanish frigate commandeered as a warship that was destroyed during a battle with the English in 1804. (118) At the time, it had been carrying Spanish treasure in the form of gold and silver coins. (119) Its final resting place was discovered in 2007 by Odyssey Marine

Exploration, Inc. (Odyssey), which immediately filed for an award under the law of salvage or ownership of the then-unidentified wreck under the law of finds. (120) The Kingdom of Spain then filed a claim against Odyssey, asserting that the wreck was the MERCEDES, Spain had not abandoned its sovereignty over the vessel, United States courts did not have subject-matter jurisdiction over the wreck because it was the property of a foreign state, and applicable treaties required the United States to treat the foreign warship's wreck as it would its own. (121)

The evidence in the case supported Spain's assertion that the wreck was in fact the MERCEDES. (122) In addition, the presiding court determined that because Spanish officials had notified Odyssey early on in the proceedings that they considered the wreck to be a naval vessel, Spain had not abandoned its sovereignty over the warship. (123) The court also determined that the Treaty of Friendship and General Relations between the United States and Spain "requires that imperiled Spanish vessels shall receive the same immunities conferred upon similarly situated vessels of the United States," (124) and that "[t]he United States protects its sunken warships." (125) Finally, the court determined that it had no subject-matter jurisdiction over the wrecked warship because the Foreign Sovereign Immunities Act (FSIA) gives a foreign state or its property immunity from the jurisdiction of the United States courts, including the arrest of wrecked vessels, unless excepted by law. (126) Further, FSIA "grants immunity to a foreign state's property in the United States from attachment, arrest and execution except as provided in specific provisions of the Act." (127)

BLACK SWAN's jurisprudence unequivocally exempts wrecked warships belonging to foreign nations from the jurisdiction of the United States and renders the ownership of the vessel with the country. Without subject-matter jurisdiction, United States federal courts may not adjudicate the merits of the law of salvage and the law of finds in relation to the wreck.

IV. HOIST THE COLOURS AND TREASURE, ME HEARTIES (128)

There are three issues at play in the hypothetical illustrated in Part II of this paper. The first is NOTS's claim for ownership under the law of finds or reward under the law of salvage for their discovery and exploration of the NIEVE and the OPHELIA. The second is PURL and NOTS' competing claims of ownership or salvage of the MIRANDA. Finally, the last issue is PURL and Spain's competing claims to the ownership of the INTREPIDO. PURL claims ownership under the law of finds or reward under the law of salvage for their discovery and exploration of the INTREPIDO, while Spain claims ownership of the warship and exception from arrest under the applicable treaties and law.

The remains of the OPHELIA, MIRANDA, NIEVE, and INTREPIDO are all clearly wrecks under the definition set out early in this paper. (129) And although such a determination is unnecessary, they may all be considered ancient or historical shipwrecks as well; they have been underwater for centuries and sunk in battle during the historically significant Golden Age of Piracy. Additionally, the types of cannons, the recovered cargo, and the discovery of gold bars like those stolen by the Redhead, in addition to the kinds of vessels found, their country of origin, the damage they sustained, and their location, all sufficiently point to the wrecks being the OPHELIA, MIRANDA, NIEVE, and INTREPIDO.

The federal court would have jurisdiction in this case over the OPHELIA, MIRANDA, and NIEVE. There is no need to pursue in personam jurisdiction in this case because the parties were not bound to each other or otherwise personally liable for anything that must be resolved in the suit. Rather, because the parties are seeking ownership or possession of the wrecks and have deposited parts of the wrecks with the court marshal, the court has constructive in rem jurisdiction over the entire wrecks and can adjudicate rights to the artifacts already brought up from the ocean floor. Either party could also argue for quasi in rem jurisdiction because the court is being asked to adjudicate the rights of parties within its territorial jurisdiction (assuming the parties are within it), but constructive in rem jurisdiction would most likely suffice here. The fact that the wrecks are located in international waters also does not affect the jurisdiction of the court as long as law recognized by all sea-faring nations is applied. The only effect of the location of the wrecks is that the United States may not assert ownership because the wrecks are not embedded in submerged lands of this country, as required by the Abandoned Shipwreck Act. (130) As such, the Abandoned Shipwreck Act is not applicable and the law of salvage or the law of finds may be applied to the wrecks.

In contrast, the court does not have jurisdiction over the INTREPIDO under FSIA. Like the BLACK SWAN, the INTREPIDO is a Spanish warship sunk in battle. Also like the BLACK SWAN, it is exempt from arrest by the United States and the ownership of the wreck and all of its cargo is retained by Spain. Therefore, neither the law of salvage nor the law of finds may be applied to the wreck and PURL will lose their claim for ownership of the INTREPIDO and/or a liberal salvage award for its efforts. PURL may still independently negotiate a contract for the exploration and recovery of the vessel with Spain. (131)

That leaves the OPHELIA, MIRANDA, and NIEVE available for a determination between the law of salvage and the law of finds. The first issue that must be addressed is whether the wrecks may be considered abandoned. The pro-finds law court in Odyssey Marine Exploration v. Unidentified, Wrecked, And Abandoned Sailing Vessel (LE MARQUIS TOURNAY) stated that vessels belonging to private citizens, such as the sunken, privateer-owned LE MARQUIS TOURNAY, may be considered abandoned. (132) Other courts have determined the belief that a vessel lost for centuries is not abandoned too ridiculous to be considered. This is a valid view point, as in most cases, the private owner of the vessel is dead or dissolved.

However, the argument that no vessel may truly be abandoned through its sinking without an express declaration by the owner is also valid. No rational person would consider their vessel abandoned if it was sunk during a hurricane, just as no rational person would consider their vessel abandoned if it was sunk as a result of a naval battle between a pirate and the Spanish navy.

Here, the OPHELIA and the NIEVE were both sunk during the battle through no fault of the parties on board, but the MIRANDA was purposefully crashed in a counterattack. All three ships were privately owned by long-dead natural persons. A determination of abandonment could go either way. But because courts seem to retroactively consider abandonment status to justify their choice of law, the abandonment status of the three wrecks need not be resolved yet.

Because of the ancient and historical nature of the vessels and the need for proper preservation of the wrecks, the law of finds should not be applied to the hypothetical. While the law of finds may be used in cases involving ancient or historical wrecks, these three ships are in danger from the elements and a court would consider it to be in the public's best interest to preserve the sites. The law of finds would give the finders complete ownership of the wrecks and leave the court with no way to force them to prudently take preservation measures. In addition, there are two salvors competing for the MIRANDA, and while PURL began preserving of the wreck, they left the property unprotected, allowing NOTS to find it and begin their own exploration. Under the law of finds, a court may find that PURL let the MIRANDA fall back into a state of nature and let NOTS successfully reduce it to possession by having continuous work at the site.

Many courts openly state that the law of salvage is the better choice in cases with ancient or historical shipwrecks, and even more so if there are multiple salvors involved. That belief should be continued here; the law of salvage is the better choice in this case and would probably be applied to all three shipwrecks. The OPHELIA, MIRANDA, and NIEVE may not be considered abandoned, as they were clearly lost at sea due to perils outside of the owners' control and there is no proof the owners later expressly abandoned the ships. The hypothetical also clearly presents a case of pure maritime salvage, as there is no evidence that PURL or NOTS were contractually obligated to recover the wrecks. Both organizations' owners, as professionals in the shipwreck archaeology and recovery field, intentionally searched for the wrecks of their own free will.

The three elements of the law of salvage are present in the hypothetical. The three wrecks face a real maritime peril from the elements underwater because of their deteriorating nature, the salvage services of all parties were obviously voluntarily rendered, and the services were successful in part because some items have been recovered from the wrecks.

NOTS alone discovered the OPHELIA and the NIEVE, therefore only NOTS is asking the court to be put in possession of the wrecks and awarded a salvage award for its recovery efforts. There is no reason for the court to deny NOTS' request. In addition, NOTS may ask for the artifacts recovered themselves in lieu of the salvage award. However, as the recovery of the NIEVE only resulted in the discovery of several empty crates, and only four cannons were discovered from the wreck of the OPHELIA, the costs of the exploration will likely outweigh the profits from the "treasure." (133) Therefore, NOTS would be better off pursuing a traditional salvage award by providing evidence to support the factors listed earlier in this paper. (134) In addition, the court may allow NOTS to continue exploring the wrecks.

The last issue is the fate of the MIRANDA and its golden treasure. Under the law of salvage, the determination between two salvors claiming possession of the wreck is simple. Salvage law places a duty on salvors to protect and preserve the property, and in choosing between multiple salvors, courts prefer to grant possession and salvage rights to the salvor who has developed and/or implemented the best plan for the preservation of the wreck. (130) Here, Holmes and Hooper, through PURL, have already created and implemented a preservation plan to ensure the MIRANDA is not further deteriorated by the elements. Gates and Anderson, through NOTS, have only discovered the wreck and removed a few items. Unless NOTS can create their own preservation plan and prove that plan is better than PURL's, PURL is clearly the better choice between the competing salvors and will be awarded salvage rights by the court. PURL will also be allowed to exclusively continue their exploration of the wreck and may pursue a salvage award in the form of money or, the more preferable option, the gold already recovered.

To summarize, the law of salvage will apply in the hypothetical. PURL will prevail as the best salvor for the MIRANDA and will gain possession of the golden treasure, NOTS will be granted salvage rights over the treasure-less OPHELIA and NIEVE, and the ownership of the INTREPIDO and its cache of cannons and weaponry will remain with the Kingdom of Spain.

V. CONCLUSION

Humanity is obsessed with the idea of finding sunken treasure. The technology used in the search for ancient, historical, and treasure-filled shipwrecks is ever-advancing, which means that more and more shipwrecks will be discovered in the years to come. More and more lawsuits controverting the ownership and/or possessory rights in these discoveries will necessarily follow. Therefore, the difference between the law of salvage and the law of finds, and the situations in which they should be applied, as well as the law behind the smaller issues that may arise in such cases, will only become more important as these cases come before the federal courts. Application of the proper law is crucial to the preservation of these historical shipwrecks, lest the ships be forgotten, washed away by the elements, and resigned to Davy Jones' Locker in the briny depths below.

Jessica Victoria Hidalgo (*)

(*) Juris Doctor with a Certificate in Law, Technology, and Entreprcneurship, cum laude, and Crowe Scholar for Top Ten Percent Distinction, Loyola University New Orleans College of Law, 2018; Bachelor of Business Administration, magna cum laude, and member of the University Honors Program, Loyola University New Orleans, 2015. I currently serve as a judicial law clerk for the Office of Administrative Law Judges in the Department of Labor, where 1 often deal with cases arising under the Longshore and Harbor Workers' Compensation Act. During law school, I was the Managing Editor of Substance and Citation on the Loyola Law Review and a member of the Loyola Moot Court. I would like to thank Professor Arthur Crais, Former Maritime Editor-in-Chief Ainsley Fagan, and the current editorial staff of the Loyola Maritime Law Journal for their assistance during the drafting and publication of this article. I would also like to thank my family for their love and support, and for proofreading this article over and over again.

(1) ROBERT LOUIS-STEVENSON, TREASURE ISLAND (1883).

(2) Pirates of the Caribbean: The Curse of the Black Pearl (Walt Disney Pictures 2003).

(3) See, e.g., Expedition Unknown: Captain Morgan's Lost Gold (Travel Channel television broadcast Feb. 19, 2015); Expedition Unknown: Captain Kidd's Treasure (Travel Channel television broadcast Feb. 22, 2017); Expedition Unknown: Lost Spanish Fortune Found (Travel Channel television broadcast June 14. 2017).

(4) Vasa History, Vasa Museet, http://www.vasamuseet.se/en (last visited Dec. 1, 2017). The VASA was a Swedish warship that sank in the Stockholm harbor minutes after its launch in 1628. It was recovered in 1961.

(5) See Jo Best, 2,000 Year Old 'Computer' Discovered: How Tech and Shipwrecks are Rewriting Human History, TECHREPUBLIC, https://www.techrepublic.com/article/2000-year-old-computer-discovered (last visited Nov. 27, 2018). The ANTIKYTHERA was an Ancient Roman vessel from the first century B.C. It was found in Greece in 1900.

(6) See generally James Cameron: Exploration's in Our DNA, CBS News (Apr. 12, 2012, 10:52 AM), https://www.cbsnews.com/news/james-cameron-explorations-in-our-dna. The TITANIC sank on April 12, 1912, taking 1,500 souls with it. It was found in 1985 off the coast of Newfoundland.

(7) Expedition Unknown: Blackbeard's Hidden Gold (Travel Channel television broadcast Oct. 21, 2015). The QUEEN ANNE'S REVENGE was the main ship used by the infamous pirate, Blackboard. It ran aground in 1718 and was found off the coast of North Carolina in 1996.

(8) See Robert Ballard on Technology's Impact on Scientific Discovery and Exploration, CIO (Sept. 22, 2003, 8:00 AM), https://www.cio.com/article/2441931/consumer-technology/robert-ballard-on-technology-s-impact-on-scientific-discovery-and-exploration; Sarah Pruitt, This Ancient Greek Vessel is the World's Oldest Intact Shipwreck. History.com, https://www.history.com/news/oldest-shipwreck-discovery-ancient-greece (Oct. 23, 2018); Best, supra note 5. Such advances include remote operated vehicles (ROVS) and experimental underwater exosuits.

(9) XAVIER ATENCIO, PAUL FREES, THURL RAVENSCROFT, J. PAT O'MALLEY & THE MELLOMEN, YO HO (A PIRATE'S LIFE FOR ME) (Walt Disney Records 1967).

(10) See, e.g., BENERSON LITTLE, THE GOLDEN AGE OF PIRACY: THE TRUTH BEHIND PIRATE MYTHS (2016).

(11) WILLIAM SHAKESPEARE, HAMLET; WILLIAM SHAKESPEARE, THE TEMPEST; WILLIAM SHAKESPEARE, TWELFTH NIGHT.

(12) This is based on a real-life investigation on the television show, Expedition Unknown. During one episode, scientists x-rayed debris from an ancient shipwreck to find a horseshoe with nails made in a distinctive Spanish style and a number of chests that matched the documented cargo of a Spanish ship that sank in the area where the wreck was found. Expedition Unknown: Captain Morgan's Lost Gold (Travel Channel television broadcast Feb. 19, 2015).

(13) See also R.M.S. TITANIC v. The Wrecked and Abandoned Vessel, 435 F.3d 521, 524 (4th Cir. 2006).

(14) See Odyssey Marine Exploration, Inc., v. Unidentified Shipwrecked Vessel, 675 F. Supp. 2d 1126, 1130 n. 3, 1131 (M.D. Fla. 2009) [hereinafter BLACK SWAN].

(15) See also St. Michael Press Publ'g Co. v. One Unknown Wreck Believed to be the ARCHANGEL MICHAEL, No. 12-80596-CIV, 2013 WL 12177992, at *1 (S.D. Fla. July 17, 2013).

(16) I use the word salvors in quotation marks here to denote that, though the groups are acting as salvors by recovering a wreck, they are not truly salvors until the court decides to apply the law of salvage to a case.

(17) 1 U.S.C.A. [section] 3 (2016). See also Stewart v. Dutra Const. Co. 543 U.S. 481, 488-97 (2005) (discussing the definition of "vessel").

(18) M.J. Rudolph v. Lumber Mut. Fire Ins. Co., 371 F. Supp. 1325, 1327 (E.D.N.Y. 1974) ("Apparently a sunken vessel damaged to an extent of being rendered unnavigable is a wreck. The vessel here was completely sunk, rendered unnavigable and therefor a wreck.").

(19) See infra Part III, Section D.

(20) St. Michael, 2013 WL 12177992, at *2: U.S. CONST, art. III, [section] 2, cl. 1.

(21) 28 U.S.C. [section] 1333(1) (2006).

(22) ROBERT FORCE, ADMIRALTY AND MARITIME LAW 30-31 (Kris Markarian ed., 2nd ed. 2013).

(23) Id. at 31.

(24) St. Michael, 2013 WL 12177992, at *2; FORCE, supra note 22, at 33.

(25) Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F. Supp. 540. 548 (S.D. Fla. 1982); Odyssey Marine Expl., Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1171 (11th Cir. 2011) ("Only if the court has exclusive custody and control over the property does it have jurisdiction over the property so as to be able to adjudicate rights in it that are binding against the world.").

(26) FORCE, supra note 22, at 33; see also St. Michael, 2013 WL 12177992, at *2 ("The exclusive power of federal courts to adjudicate in rem suites against a vessel is dependent on the court's jurisdiction over the [vessel], the property named as the defendant."); Cobb, 549 F. Supp. at 548 ("This Court has jurisdiction in rem over the artifacts which have actually been brought up and turned over to the United States Marshall.").

(27) Odyssey Marine Expl., Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 727 F. Supp. 2d 1341, 1345-46 (M.D. Fla. 2010) [hereinafter LE MARQUIS TOURNAY]; 43 U.S.C. [section] 2105(a)(1) (2007).

(28) St. Michael, 2013 WL 12177992, at *3.

(29) Id.

(30) FORCE, supra note 22, at 33.

(31) BLACK SWAN, 675 P. Supp. 2d at 1142.

(32) FORCE, supra note 22, at 31.

(33) Id.

(34) Id.

(35) LE MARQUIS TOURNAY, 727 P. Supp. 2d at 1346.

(36) Shipwrecks found within the territorial waters of the United States are controlled by the Abandoned Shipwrecks Act, 43 U.S.C.A. [section][section] 2104, 2105, and 2106, which will be discussed later in this paper. See infra Part III, Section H. Such shipwrecks are exempt from the law of salvage and finds. 43 U.S.C.A. [section] 2106(a) (2007).

(37) LE MARQUIS TOURNAY, 727 F. Supp. 2d at 1346 ("[Established in the litigation over the RMS TITANIC, . in rem jurisdiction [is extended] by constructive possession and allows the declaration of an exclusive right to salvage a wreck in international water.").

(38) See R.M.S. TITANIC, Inc. v. Haver, 171 F.3d 943, 966-69 (4th Cir. 1999) [hereinafter Haver].

(39) Id. at 968.

(40) See id.

(41) See id. at 967-68

(42) See id. at 966-69.

(43) See BLACK SWAN, 675 F. Supp. 2d at 1132-34, 1336; see also. Best, supra note 5 (describing how explorers used the history and legend of the Swedish warship MARS to determine whether the wreck they found was the vessel).

(44) BLACK SWAN, 675 P. Supp. 2d at 1133.

(45) Id. at 1134-36.

(46) See id. at 1130 n. 3, 1133-34, 1336, 1136 ("The debris field's location, coins, cannons, and artifacts persuasively match the MERCEDES'S historical record. That Odyssey, which set out to discover the MERCEDES, found this mix strewn about in an area a few football fields square where the vessel met its explosive ending makes the conclusion even more compelling. The [wreck] is the MERCEDES.").

(47) Mat 1136-46.

(48) Hener v. United States, 525 F. Supp. 350, 356 (S.D.N.Y. 1981).

(49) Id. at 355.

(50) Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 336-37 (5th Cir. 1978) [hereinafter ATOCHA I].

(51) Hener, 525 F. Supp. at 356-37.

(52) Id. at 337 (citing Brady v. THE S.S. AFRICAN QUEEN, 179 F. Supp. 321, 324 (E.D. Va. 1960).

(53) R.M.S. TITANIC, 435 F.3d at 532 (citing Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 461 (4th Cir. 1992)).

(54) Id.

(55) See infra Part III, Section G.

(56) R.M.S. TITANIC, 435 F.3d at 536.

(57) ATOCHA I, 569 F.2d at 337.

(58) LE MARQUIS TOURNAY, 727 F. Supp. 2d at 1343.

(59) Id. at 1345.

(60) Rickard v. Pringle, 293 F. Supp. 981, 984 (E.D.N.Y. 1968).

(61) BLACK SWAN, 675 F. Supp. 2d at 1136.

(62) Columbus-Am. Discovery Group, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, No. 87-363-N, 1993 WL 580900, at *10-11 (E.D. Va. Nov. 18, 1993), decision rescinded sub nom. Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 56 F.3d 556 (4th Cir. 1995).

(63) Haver, 171 F.3d at 962.

(64) FORCE, supra note 22, at 163.

(65) Id. at 170.

(66) See The 'SABINE', 101 U.S. 384, 390 (1879) ("There is a broad distinction ... between salvors who volunteer to go out and salvors who are employed by a ship in distress. Salvors who volunteer go out at their own risk for the chance of earning reward, and if not successful they are entitled to nothing, the rule being that it is success that gives them a title to salvage remuneration. But if men are engaged to go out to the assistance of a ship in distress they are to be paid according to their efforts, even though the labor and service may not prove beneficial to the vessel or cargo.").

(67) FORCE, supra note 22, at 164.

(68) See, e.g., THE 'SABINE', 101 U.S. at 384.

(69) ATOCHA I, 569 F.2d at 337 n. 13.

(70) Id. at 337.

(71) See Cobb, 549 F. Supp. at 557 ("[If a vessel is] still in the peril of being lost through the action of the elements or of pirates and was not being successfully salved when the plaintiff undertook its salvage operation, it [is] subject to a 'marine peril' for purposes of the plaintiffs salvage claim."). See also ATOCHA I, 569 F.2d at 337 ("Even after discovery of the vessel's location it is still in peril of being lost through the actions of the elements.").

(72) FORCE, supra note 22, at 165.

(73) Id.

(74) 67B AM. JUR. 2D SALVAGE [section]9 (2017).

(75) THE BLACKWALL, 77 U.S. 1, 12 (1869).

(76) Id.

(77) Id.

(78) LE MARQUIS TOURNAY, 727 F. Supp. 2d at 1343-44.

(79) Cobb, 549 F. Supp. at 556.

(80) Haver, 171 F.3d at 963; R.M.S. TITANIC, 435 F.3d at 531-32.

(81) Haver, 171 F.3d at 963; LE MARQUIS TOURNAY, 727 F. Supp. 2d at 1344.

(82) Haver, 171 F.3d at 963-64.

(83) Id. at 964.

(84) R.M.S. TITANIC, 435 F.3d at 532.

(85) Cobb, 549 F. Supp. at. 557.

(86) Id. at 557-58.

(87) Id. at 558.

(88) Id. at 554.

(89) LEMARQUIS TOURNAY. 727 F. Supp. 2d at 1341.

(90) R.M.S. TITANIC, 435 F.3d at 532.

(91) LE MARQUIS TOURNAY, 727 F. Supp. 2d at 1344; Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir. 1987).

(92) R.M.S. TITANIC, 435 F.3d at 532.

(93) Id. at 532 n. 3.

(94) Id.; JTR Enterprises, LLC v. An Unknown Quantity of Colombian Emeralds. Amethysts & Quartz Crystals, 922 F. Supp. 2d 1326, 1334 (S.D. Fla. 2013).

(95) R.M.S. TITANIC, 435 F.3d at 532 n. 3.

(96) Hener, 525 F. Supp. at 356.

(97) Id. at 354; LE MARQUIS TOURNAY, 121 F. Supp. 2d at 1344; BLACK SWAN, 675 F. Supp. 2d at 1131 n. 4; ATOCHA I 569 F.2d at 336-37 (citing Richard, 293 F. Supp. at 984).

(98) Hener, 525 F. Supp. at 356-57.

(99) Id. at 354.

(100) Eads v. Breazelton, 22 Ark. 499, 511-12 (1861); Hener, 525 F. Supp. at 354-55.

(101) Id.

(102) Id.

(103) Id.

(104) Id.

(105) Eads, 22 Ark. at 511-12.

(106) BLACK SWAN, 675 F. Supp. 2d at 1131 n. 4.

(117) See, e.g., Hener, 525 P. Supp. at 353 ("For several reasons, the law of salvage is the preferable set of principles to apply, even though the property sought to be salvaged may ultimately be found to have been abandoned.").

(108) See id. at 356.

(109) Id. at 358; JTR Enterprises, 22 P. Supp. 2d at 1334 (citing Haver, 171 F.3d at 963-94).

(110) Hener, 525 F. Supp. at 356.

(111) Id. at 359.

(112) R.M.S. TITANIC, 435 F.3d at 532.

(113) R.M.S. TITANIC, 435 F.3d at 536.

(114) 43 U.S.C.A. [section]2101(2012).

(115) 43 U.S.C.A. [section] 2105(a)(l)-(3) (2012).

(116) 43 U.S.C.A. [section] 2106(a) (2012).

(117) See BLACK SWAN, 675 F. Supp. 2d at 1143 (finding the 1902 Treaty of Friendship and General Relations between the Unites States and Spain required that imperiled Spanish ships be given the same immunities as United States vessels).

(118) Id. at 1133.

(119) Id. at 1134.

(120) Id. at 1130-31.

(121) Id. at 1131.

(122) BLACK SWAN, 675 F. Supp. 2d at 1136; See supra Part 111, Section D.

(123) Id, at 1130 n. 2,

(124) Id. at 1143 (citing Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 642 (4th Cir. 2000)).

(125) Id.

(126) Id. at 1138.

(127) BLACK SWAN, 675 F. Supp. 2d at 1139 (quoting Venus Lines Agency v. CVG Industria Venezolana De Aluminio, C.A., 210 F.3d 1309, 1311 (11th Cir. 2000) (citing 28 U.S.C. [section] 1609 (Westlaw through P.L. 115-90)).

(128) ATENCIO, supra note 9.

(129) Supra Part III, Section A.

(130) 43 U.S.C.A. [section] 2105(a) (2012).

(131) BLACK SWAN, 675 F. Supp. 2d at 1130.

(132) LE MARQUIS TOURNAY, 727 F. Supp. 2d at 1345.

(133) See also Martha's Vineyard, 833 F.2d at 1062 n. 3 ("To this point, the game may well have been worth appreciably less than the candle. Rather than retrieving the rumored cache of American gold eagles which, gossip had it, were aboard the Republic as part of a loan from France to the Czar, Marshallton found a motley assortment of waterlogged commercial cargo and bric-a-brac, e.g., a set of monogrammed coffeepots and half a bedpan.").

(134) See supra Part III, Section E, Sub-Part 4.

(135) Jonathan Joseph Bergen Segarra, Cursing Under a Star-Dogged Moon: Why The Legal Regime Concerning the Recovery of Ancient or Historical Vessels Must Change, 25 U.S.F. Mar. L. J. 93, 101-03 (2013); see also Hener, 525 F. Supp. at 359 ("The groups competing for the right to salvage the cargo all include individuals with sufficient background, experience, and credibility to warrant some degree of confidence in their capacity to recover the cargo sought; and all are volunteers. Each party has developed a plan for recovering the cargo that seems to have reasonable prospects for success.... Finally, two of the groups have expended considerable resources and energy in attempting to implement their plans, and may already have contributed services that could ultimately lead to a salvage award.").
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