Global Marine Exploration, Inc. v. Republic of France ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14728
____________________
GLOBAL MARINE EXPLORATION, INC.,
Plaintiff-Appellant,
versus
REPUBLIC OF FRANCE,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cv-00181-AW-MJF
____________________
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2 Opinion of the Court 20-14728
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
LAGOA, Circuit Judge:
This case arises out of the discovery of several shipwrecks
found off the coast of Cape Canaveral, Florida, including La
Trinité, the flagship of the 1565 fleet of the Royal Navy of France,
which was captained by Jean Ribault. In 1565, Ribault was dis-
patched by the French Admiral Gaspard II de Coligny to reinforce
the French Huguenot settlement of Fort Caroline located on the
St. Johns River near what is now Jacksonville, Florida. The Span-
ish, however, also laid claim to what they called La Florida, and
Pedro Menéndez de Avilés had founded the Spanish settlement of
St. Augustine near the French Fort Caroline. King Phillip II of
Spain ordered Menéndez de Avilés to destroy the French settle-
ment. Following a skirmish at the mouth of the St. Johns River
with Spanish ships, Ribault left in pursuit of the Spanish flagship,
the San Pelayo. Ribault encountered a hurricane which destroyed
his fleet and drove Ribault and his surviving crew members ashore.
That same hurricane allowed Menéndez de Avilés to succeed in
capturing Fort Caroline after an overland expedition from St. Au-
gustine. After Fort Caroline was destroyed, no further French set-
tlements were established in Florida.
Global Marine Exploration, Inc. (“GME”), conducts marine
salvage activities and discovers historic shipwreck sites in Florida’s
coastal waters. GME entered into authorization agreements with
the Florida Department of State, Division of Historical Resources
(“FDOS”), to conduct salvage activities in Florida coastal waters off
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20-14728 Opinion of the Court 3
Cape Canaveral. Following a 2015 agreement between GME and
FDOS, GME discovered several shipwreck sites and informed
FDOS of its discovery. Soon after, however, GME learned that
FDOS was in contact with the Republic of France to recover the
shipwreck sites, assuming that one of the sites was La Trinité.
GME subsequently filed an in rem admiralty action against the
“Unidentified, Wrecked and (for Finders-Right Purposes) Aban-
doned Sailing Vessel” in federal court. FDOS and France became
parties to that action, and the Middle District of Florida concluded
that the identity of the res was La Trinité and that La Trinité is
France’s sovereign property. GME did not appeal the in rem ac-
tion. See Glob. Marine Expl., Inc. v. Unidentified, Wrecked & (for
Finders-Right Purposes) Abandoned Sailing Vessel (“GME I”), 348
F. Supp. 3d 1221 (M.D. Fla. 2018).
Following GME I, GME sued France, alleging claims for an
in personam lien award, unjust enrichment, misappropriation of
trade secret information, and interference with its rights and rela-
tions. France moved to dismiss GME’s amended complaint under
Federal Rule of Civil Procedure 12(b)(1), arguing that the district
court lacked subject matter jurisdiction under the Foreign Sover-
eign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602–11, and that the
commercial activity exception to the FSIA, 28 U.S.C. § 1605(a)(2),
was inapplicable. The district court agreed with France, finding
that the FSIA’s commercial activity exception did not apply, and
dismissed GME’s claims. GME now appeals the district court’s
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4 Opinion of the Court 20-14728
dismissal, contending that France engaged in commercial activity
such that the FSIA’s commercial activity exception applies.
For the reasons discussed below, and with the benefit of oral
argument, we conclude that the FSIA’s commercial activity excep-
tion applies. Accordingly, we reverse the district court’s Rule
12(b)(1) dismissal and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
GME is a Florida corporation that conducts marine salvage
activities and discovers historic shipwreck sites in Florida’s coastal
waters. GME conducts its salvage activities under authorization
agreements with FDOS. In these agreements, Florida granted
GME a fixed-term “cultural resource recovery easement for sal-
vage exploration and operational purposes” on Florida-owned sub-
merged lands, as well as permits for GME to use those submerged
lands and navigable waters for construction work. GME then “un-
dertook prolonged and expensive research, survey, reporting, and
identification of shipwrecked sites,” including artifacts, “with rea-
sonable investment-backed expectation[s] and program assurances
that its salvage activity” would be fully compensated in line with
the value of the discovered sites. In doing so, “GME expended mil-
lions of dollars and enormous time and effort.”
In 2014, FDOS and GME entered into six agreements gov-
erning salvage activity for six different, three-square mile areas off
the coast of Cape Canaveral. On August 14, 2015, FDOS and GME
entered into a seventh agreement—designated as Permit No. 2015-
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03—authorizing GME to survey another designated three-square
mile area off Cape Canaveral and to locate and report any ship-
wreck sites discovered. GME discovered five separate shipwrecks
and six historic shipwreck sites in this designated area, and GME’s
mapped conclusions of the area were provided as part of its report
and request to FDOS for approval to proceed with recovery. GME
also excavated small artifact items (and took photos and videos as
identification of other monuments) from one of the shipwreck
sites. GME provided FDOS with the photos and videos. And
FDOS directed GME to submit the location coordinate infor-
mation incident to the agency’s oversight and inventory of histori-
cal resources division. According to GME, the coordinate infor-
mation would remain confidential and would be commercially
used only by GME.
At some point, GME learned that FDOS was “collaborating
and negotiating” with France to recover the shipwreck sites discov-
ered by GME without its involvement, as FDOS and France be-
lieved that the shipwreck was France’s La Trinité—the flagship of
the 1565 fleet of the Royal Navy of France that sank during a hur-
ricane off the coast of Florida. Concerned by this development,
GME filed the in rem admiralty action—GME I—in September
2016, and FDOS and France became parties to that action. See 348
F. Supp. 3d at 1224. In connection with filing that in rem action,
GME deposited with the district court several small artifacts (e.g.,
ballast stones) from the site.
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The next month, FDOS demanded GME turn over those
same artifacts to it, suspended GME’s salvage activity permit, and
prohibited GME from proceeding with full recovery of the discov-
ered shipwreck sites. The GME I district court later conferred tem-
porary in rem custody to FDOS and precluded any shipwreck re-
covery pending its decision. Ultimately, the GME I district court
granted France’s motion to dismiss the action for lack of subject
matter jurisdiction because it concluded that the res at issue was La
Trinité, which was France’s sovereign property. See id. at 1242.
GME did not appeal that order.
Following GME I, France and FDOS entered into a “Decla-
ration of Intention Between the State of Florida and the Republic
of France On the shipwrecks of Jean Ribault’s fleet”(the “Declara-
tion of Intent”). The Declaration of Intent stated that, as a result
of the district court’s decision in GME I, France was authorized “to
begin recovery operations” of La Trinité and that the signatories
would cooperate “concerning research on, and protection and
preservation of” La Trinité. FDOS and France further agreed to:
(1) protect the shipwreck sites “to prevent any form of plundering”;
(2) recover the shipwreck sites and present those discoveries to the
public in Florida, e.g., through exhibitions or publications; (3) pro-
mote the common history of the United States and France in Flor-
ida; and (4) identify, evaluate, mobilize, and oversee resources and
organizations to fulfill the Declaration of Intent’s objectives. The
Declaration of Intent also established a steering committee to im-
plement the agreement.
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In April 2020, GME sued France, alleging that “France is
sending missions to Florida to oversee the project and provide sci-
entific expertise” under the Declaration of Intent and that “work is
on-going.” GME also asserted that France was performing com-
mercial activity in Florida through France’s agreement with FDOS
and others, “and by activities undertaken or to be undertaken, in
relation to GME’s discovered shipwreck sites for which GME
claims rights and interest.”
GME asserted four claims against France: (1) an in personam
salvage lien; (2) “quasi contract/unjust enrichment”; (3) misappro-
priation of GME’s trade secret information; and (4) interference
with GME’s rights and relations. As to its lien claim, GME alleged
that it was entitled to compensation because without GME’s ser-
vices the shipwreck sites would not have been discovered and
therefore GME’s services significantly benefit any “full recovery of
the historic shipwreck sites.” In its count for unjust enrichment,
GME asserted that it had conferred a substantial benefit to France
based on its services related to the shipwreck sites. As to its misap-
propriation of trade secret claim, GME alleged that “[t]he precise
locations of GME’s discovered shipwreck sites and the methods
used to identify those locations were proprietary and confidential
information owned by GME” and that France’s use of that infor-
mation was unauthorized and without GME’s consent. And, as to
its interference claim, GME alleged that France knew of GME’s
contractual rights and advantageous business and contractual rela-
tions with FDOS but intentionally acted to influence, induce, and
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8 Opinion of the Court 20-14728
collaborate with FDOS for the latter to abrogate its obligations to,
and relations with, GME.
France moved to dismiss GME’s amended complaint under
Rule 12(b)(1), arguing that the district court lacked subject matter
jurisdiction under the FSIA and that GME failed to show that the
commercial activity exception to the FSIA applied. In particular,
France contended that the core conduct at issue was its “intergov-
ernmental cooperation for the historic preservation of [its] military
vessel,” which was manifestly a governmental function. France
submitted a declaration from Florence Hermite, a “Magistrat de Li-
aison – Legal Attaché,” who attested that France entered into the
Declaration of Intent under the Heritage Code of France Section
L522-1, which provides, as translated into English, that France
“prescribes measures aimed at the detection, conservation of safe-
guarding by scientific study of the heritage archaeological, desig-
nates the scientific manager of any preventative archeology opera-
tion and carries out control and evaluation missions for these op-
erations.”
The district court granted France’s motion to dismiss. The
district court explained that the commercial activity exception had
three components: whether “(1) the action is based upon (2) a com-
mercial activity (3) carried on in the United States by a foreign
state.” The district court concluded that the action at issue was
“France’s intergovernmental declaration with Florida—and its
overall relationship with Florida regarding the shipwreck sites,”
which “lack[ed] . . . a commercial nature” because France was not
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20-14728 Opinion of the Court 9
involved in “the type of actions by which a private party engages
in trade and traffic or commerce.” While noting that private actors
sometimes engage in marine exploration and shipwreck recovery
and preservation efforts, the district court reasoned “that alone did
not make France’s activities commercial.” The district court ex-
plained that “the nature of France’s activity is the recovery and dis-
position of its own sovereign military property” and that its choice
to recover or preserve the property was not like “entering a market
and behaving as a private person would.” The district court noted
that the Declaration of Intent, signed by government actors,
showed that France and FDOS were working together to protect
and preserve La Trinité and that, as such, France had not entered
the market or engaged in trade or commerce.
The district court also concluded that, even if France’s activ-
ities were commercial in nature, GME’s claims against France were
not “based upon” those activities. The district court determined
that “the foundation” for GME’s alleged injuries was not France’s
intergovernmental declaration with Florida or activities related to
that declaration, i.e., GME was not injured by the fact that France
sought to preserve its culture or recover its shipwreck’s artifacts.
Rather, the district court reasoned GME’s injuries were based upon
the fact that France took ownership of La Trinité, which occurred
in GME I, and that GME could not claim ownership of the res. The
district court therefore concluded it lacked subject matter jurisdic-
tion under the FSIA.
This timely appeal ensued.
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10 Opinion of the Court 20-14728
II. STANDARD OF REVIEW
“When evaluating a district court’s conclusions on a Rule
12(b)(1) motion, ‘[w]e review the district court’s legal conclu-
sions de novo and its factual findings for clear error.’” Odyssey Ma-
rine Expl., Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159,
1169 (11th Cir. 2011) (alteration in original) (quoting Carmichael v.
Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir.
2009)). And we review de novo a district court’s determination of
whether it had jurisdiction under the FSIA. Devengoechea v. Bol-
ivarian Republic of Venezuela, 889 F.3d 1213, 1220 (11th Cir. 2018).
III. ANALYSIS
On appeal, GME argues that the district court erred in dis-
missing its amended complaint for two reasons. First, GME asserts
that the district court erroneously determined that the FSIA’s com-
mercial activity exception to foreign sovereign immunity did not
apply to France’s activities in the case. Second, GME contends that
its action against France was “based upon” France’s commercial ac-
tivities such that subject matter jurisdiction existed under the FSIA.
We address these arguments in turn.
A. Whether France’s activities are “commercial activities” under
the FSIA
The FSIA “supplies the ground rules for ‘obtaining jurisdic-
tion over a foreign state in the courts of this country.’” Federal
Republic of Germany v. Philipp, 141 S. Ct. 703, 709 (2021) (quoting
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
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443 (1989)). The FSIA “creates a baseline of immunity from suit,”
id.; accord 28 U.S.C. § 1604, and “unless a specified exception ap-
plies, a federal court lacks subject-matter jurisdiction over a claim
against a foreign state,” Saudi Arabia v. Nelson, 507 U.S. 349, 355
(1993).
One such exception is the “commercial activity” exception
contained in the first clause of 28 U.S.C. § 1605(a)(2). The excep-
tion provides that “[a] foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States in any
case . . . in which the action is based upon a commercial activity
carried on in the United States by the foreign state.” § 1605(a)(2).
Title 28 U.S.C. § 1603(d) defines “commercial activity” as “either a
regular course of commercial conduct or a particular commercial
transaction or act,” and states that “[t]he commercial character of
an activity shall be determined by reference to the nature of the
course of conduct or particular transaction or act, rather than by
reference to its purpose.”
While the definition in § 1603(d) “leaves the critical term
‘commercial’ largely undefined,” the Supreme Court has explained
that “when a foreign government acts, not as regulator of a market,
but in the manner of a private player within it, the foreign sover-
eign’s actions are ‘commercial’ within the meaning of the FSIA.”
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612, 614
(1992). Additionally, because the FSIA “provides that the commer-
cial character of an act is to be determined by reference to its ‘na-
ture’ rather than its ‘purpose,’ the question is not whether the
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12 Opinion of the Court 20-14728
foreign government is acting with a profit motive or instead with
the aim of fulfilling uniquely sovereign objectives.” Id. at 614(quoting § 1603(d)). Instead, we must determine “whether the par-
ticular actions that the foreign state performs (whatever the motive
behind them) are the type of actions by which a private party en-
gages in ‘trade and traffic or commerce.’” Id. (quoting Black’s Law
Dictionary 270 (6th ed. 1990)). Thus, whether a foreign state is act-
ing in the manner of a private party “is a question of behavior, not
motivation.” Nelson, 507 U.S. at 360. For example, a foreign
state’s “issuance of regulations limiting foreign currency exchange
is a sovereign activity, because such authoritative control of com-
merce cannot be exercised by a private party” while “a contract to
buy army boots or even bullets is a ‘commercial’ activity, because
private companies can similarly use sales contracts to acquire
goods.” Weltover, 504 U.S. at 614–15.
In Weltover, the Supreme Court concluded that Argentina’s
issuance of bonds as part of a plan to stabilize its currency was a
commercial activity within the meaning of the FSIA. Id. at 620.
The Court explained that the “commercial character” of the bonds
was demonstrated by the fact that they were “in almost all respects
garden-variety debt instruments,” e.g., “[t]hey [could] be held by
private parties, they [were] negotiable and [could] be traded on the
international market[,] . . . and they promise[d] a future stream of
cash income.” Id. at 615. And the Court rejected Argentina’s argu-
ment that “the line between ‘nature’ and ‘purpose’ rests upon a
‘formalistic distinction [that] simply is neither useful nor
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warranted’” because that argument was “squarely foreclosed by
the language of the FSIA.” Id. at 617. It was thus “irrelevant why
Argentina participated in the bond market in the manner of a pri-
vate actor; it matter[ed] only that it did so.” Id.Subsequently, in Nelson, the Supreme Court found that, un-
like Argentina’s activities in Weltover, the intentional conduct al-
leged by the plaintiffs—“wrongful arrest, imprisonment, and tor-
ture” by the Saudi Government—did not qualify as commercial ac-
tivity because the conduct at issue “boil[ed] down to abuse of the
power of its police by the Saudi Government” and “a foreign state’s
exercise of the power of its police has long been understood for
purposes of the restrictive theory as peculiarly sovereign in na-
ture.” 507 U.S. at 361. The Court explained that “[s]uch acts as
legislation, or the expulsion of an alien, or a denial of justice, cannot
be performed by an individual acting in his own name,” and “can
be performed only by the state acting as such.” Id. at 362 (quoting
Hersch Lauterpacht, The Problem of Jurisdictional Immunities of
Foreign States, 28 Brit. Y.B. Int’l L. 220, 225 (1952)). Thus, the
Court concluded that the “[e]xercise of the powers of police and
penal officers is not the sort of action by which private parties can
engage in commerce.” Id. And regardless of the Saudi Govern-
ment’s motivation for its allegedly abusive treatment of the plain-
tiff, e.g., to resolve commercial disputes, the Court explained that
argument went to the activity’s purpose, which was “irrelevant to
the question of an activity’s commercial character” under the FSIA.
Id. at 362–63; accord Honduras Aircraft Registry, Ltd. v.
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14 Opinion of the Court 20-14728
Government of Honduras, 129 F.3d 543, 548 (11th Cir. 1997) (“[I]n
ascertaining whether the FSIA commercial exception applies, it is
irrelevant that Honduras may have had a possible profit motive or
that Honduras may have intended only to fulfill its unique sover-
eign objectives.”).
We have since applied the principles of Weltover and Nel-
son several times in analyzing whether a foreign state’s activities
are commercial activities under the FSIA. For example, in Hondu-
ras Aircraft, Honduras had decided to “upgrade and modernize” its
“civil aeronautics program to comply with international aviation
laws.” 129 F.3d at 545. In so doing, Honduras contracted with the
plaintiffs to provide goods and services to help Honduras achieve
this goal, including setting up a data base for Honduras’s aircraft
registry, writing regulations, training government personnel, and
providing “the other things needed to register, inspect and certify
aircraft.” Id. at 547. Ultimately, Honduras breached the contract,
and plaintiffs sued. Honduras moved to dismiss for lack of subject
matter jurisdiction, arguing that the FSIA’s commercial activity ex-
ception did not apply because “the inspection and registration of
aircraft are powers peculiar to sovereigns, as private persons can-
not grant airworthiness certificates and register aircraft.” Id. We
disagreed, explaining that while “registering aircraft under the
Honduras flag is an act peculiar to its sovereignty,” plaintiffs were
not contending that the contract at issue “gave them the right to
register aircraft.” Id. at 548. Rather, the plaintiffs sought to enforce
their contract with Honduras, in which “they contracted to provide
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goods and services to Honduras in connection with its expanded
civil air program by inspecting and certifying aircraft airworthiness
so that Honduras would be able to appropriately register the air-
craft under its flag.” Id. Indeed, the contract provided “only that
plaintiffs would provide the means and do the technical work,” and
we reasoned that “[a]ny party, sovereign or not, could contract for
those goods and services.” Id. Thus, we explained that Honduras
commercially entered the market as a private player to secure tech-
nical assistance and upgrades for its civil air program. Id. at 548–
49.
Similarly, in Guevara v. Republic of Peru, 468 F.3d 1289(11th Cir. 2006), we addressed “whether a foreign state’s offer of a
reward in return for information enabling it to locate and capture
a fugitive” fell within FSIA’s commercial activity exception and we
concluded that it did so. Id. at 1292. We noted that “[t]he location
and capture of a fugitive by law enforcement officials of a country
may be a sovereign act.” Id. at 1298. But we explained that the
reward offer at issue “did not promise that in return for the infor-
mation it was seeking Peru would locate and capture” the fugitive,
and the plaintiff was not seeking to compel the fugitive’s capture.
Id. at 1298–99. Instead, the plaintiff sought the monetary reward
that Peru offered in exchange to anyone who furnished infor-
mation “that enabled Peru to capture” the fugitive. Id. at 1299. We
found the facts in Guevara similar enough to those in Honduras
Aircraft to compel the same result—instead of using its sovereign
powers to search for the fugitive, Peru ventured into the
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16 Opinion of the Court 20-14728
marketplace to buy the information needed to locate the fugitive.
Id. The plaintiff provided that information for a price—Peru’s
monetary reward offer. Id. Thus, we concluded that “[t]he under-
lying activity at issue—the exchange of money for information—
[was] ‘commercial in nature and of the type negotiable among pri-
vate parties.’” Id. (quoting Honduras Aircraft, 129 F.3d at 547); see
also Devengoechea, 889 F.3d at 1221, 1224 (explaining that the
plaintiff’s claims based on Venezuela’s failure to pay the plaintiff
for artifacts was commercial activity because, similar to a private
purchaser, Venezuela met with the seller, examined the artifacts,
and negotiated to examine them further and to possibly purchase
them). We also rejected Peru’s argument that “commercial activ-
ity” only included activities “done for a profit motive,” as “a ‘mo-
tive’ test tread[ed] too closely to an examination of ‘purpose.’”
Guevara, 468 F.3d at 1302.
By contrast, in Beg v. Islamic Republic of Pakistan, 353 F.3d
1323, 1326 (11th Cir. 2003), we concluded that the Pakistani gov-
ernment’s alleged actions of expropriating Plaintiff’s land involved
the power of eminent domain—a sovereign power—and were
therefore not commercial. We explained that “[c]onfiscation of
real property is a public act because private actors are not allowed
to engage in ‘takings’ in the manner that governments are” and that
“[d]etermining whether or how to compensate property owners
for takings is also a sovereign function, not a market transaction.”
Id. at 1326–27. Thus, even though the Pakistani government alleg-
edly failed to provide the plaintiff with alternative property,
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“the nature of the foreign government’s act is public and not com-
mercial.” Id. at 1327.
And, in Odyssey, a shipwreck recovery business, Odyssey,
discovered the remains of a Spanish vessel in international waters
and filed an in rem admiralty action against the vessel and its cargo.
657 F.3d at 1166. Odyssey did not concern the FISA’s commercial
activity exception in § 1605(a) but rather 28 U.S.C. § 1609, the sec-
tion of the FSIA that provides that a foreign state’s property in the
United States “shall be immune from attachment[,] arrest[,] and ex-
ecution except as provided in [28 U.S.C. §§] 1610 and 1611.” See
Odyssey, 657 F.3d at 1175–76. Odyssey, however, did not invoke
the exceptions provided in §§ 1610 or 1611; instead, it argued for “a
commercial activity exception to § 1609’s immunity to arrest.” Id.
at 1176. This Court rejected Odyssey’s argument, as the interna-
tional treaty that Odyssey asserted was incorporated into § 1609 did
not “appear to create a commercial activity exception to § 1609’s
immunity to arrest.” Id. We also noted that, even if such an ex-
ception existed, the Spanish vessel at issue was not engaged in com-
mercial activity, as defined by § 1603(d), because it was not acting
like an ordinary private person in the marketplace. See id. at 1176–
77. We explained that at the time it sank the ship “was ‘act[ing] . . .
like a sovereign’ by transporting [Spanish coins and cargo] during
a time of threatened war” as part of the Spanish Navy. See id. at
1177 (some alterations in original) (quoting Guevara, 468 F.3d at
1298).
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18 Opinion of the Court 20-14728
With these precedents in mind, we turn to the case before
us. In its dismissal order, the district court determined that
France’s activities in the case consisted of “France’s intergovern-
mental declaration with Florida—and its overall relationship with
Florida regarding the shipwreck sites”—and that these activities
were not commercial in nature. While recognizing that private ac-
tors engage in marine exploration activities and shipwreck recov-
ery efforts, the district court reasoned that those activities alone did
not make the nature of France’s activities commercial, comparing
the case to mail service, which can take both governmental and
commercial forms. The district court construed “the nature of
France’s activity [as] the recovery and disposition of its own sover-
eign military property” and explained that, regardless of whether
France chose to recover its property or work with Florida to pre-
serve it, France was “not entering a market and behaving as a pri-
vate person would.” The district court also reasoned that it mat-
tered “to some extent” that France’s agreement was with Florida,
not a private actor.
GME contends that the district court erred in finding that
France’s activities—a “marine archeological recovery project for
recovery of six historical shipwreck sites in Florida”—did not con-
stitute “commercial activity” under the FSIA. GME argues that the
“what” of France’s activity—effecting archaeological salvage re-
covery of historic shipwreck sites—and the “means” employed for
the activity—e.g., negotiating agreements with Florida and others;
directing, coordinating, and participating in recovery efforts;
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securing private and grant source fundings; and conserving and ar-
ranging for the exhibition of artifacts—are commercial in nature.
GME notes that similar types of activity are performed in com-
merce by private entities, including GME itself, “with which
[FDOS] proposed to ‘partner’ for the same project.” And GME as-
serts that the district court improperly looked to the “governmen-
tal direction or purpose” of France’s activities, which is irrelevant
to the question of an activity’s commercial nature.
We agree with GME and conclude that the nature of
France’s activities here are commercial under the FSIA. As set forth
by the Declaration of Intent, France, in cooperation with FDOS,
planned to engage in a marine archaeological recovery project of
the shipwreck sites off the coast of Cape Canaveral. And the Dec-
laration of Intent provides that, to conduct this project, France will
identify, evaluate, mobilize, and oversee “public and/or private re-
sources and organizations.” In other words, France, along with
FDOS, planned to acquire funding and to hire organizations or
businesses to conduct its shipwreck recovery efforts. And, accord-
ing to GME’s amended complaint, France has performed actions
and entered into agreements with FDOS and others in connection
with the shipwreck recovery project. These actions—fundraising,
contracting with organizations and businesses to carry out excava-
tions of shipwreck sites (i.e., asset recovery), and overseeing the
logistics of the project—are “commercial in nature and of the type
negotiable among private parties.” Guevara, 468 F.3d at 1299(quoting Honduras Aircraft, 129 F.3d at 547).
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20 Opinion of the Court 20-14728
The district court focused on the fact that France had en-
tered into the Declaration of Intent with another sovereign power
(Florida) in order to recover and preserve the shipwreck sites, in-
cluding La Trinité, and to promote the shared history of the United
States and France in Florida. But the district court’s analysis of
France’s activities was too narrow and “purpose” oriented. “[T]he
question is not whether the foreign government is acting with a
profit motive or . . . with the aim of fulfilling uniquely sovereign
objectives.” Guevara, 468 F.3d at 1298 (quoting Weltover, 504 U.S.
at 614). “Rather the issue is whether the particular actions that the
foreign state performs . . . are the type of actions by which a private
party engages in ‘trade and traffic or commerce.’” Id. (quoting
Weltover, 504 U.S. at 614). Therefore, although the purpose of
France’s shipwreck recovery efforts may be to protect, recover, and
preserve the shipwreck sites, and to promote its common history
with the United States in Florida, “it is irrelevant why [France en-
gaged in this shipwreck recovery project] in the manner of a private
actor; it matters only that it did so.” Weltover, 504 U.S. at 617.
France, however, argues that its activities are not commer-
cial in nature because they are “required by the patrimony laws of
France,” as explained by the Hermite declaration it submitted in
support of its motion to dismiss. In support of its position, France
relies on the Second Circuit’s decision in Barnet v. Ministry of Cul-
ture & Sports of the Hellenic Republic, 961 F.3d 193 (2d Cir. 2020),
which the district court also relied on in dismissing GME’s
amended complaint. In Barnet, the Second Circuit faced the
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20-14728 Opinion of the Court 21
question of whether Greece’s assertion of ownership over an an-
cient Greek artifact constituted commercial activity under the
FSIA. Id. at 195. An auction house announced it planned to auc-
tion the Greek artifact on behalf of a trust. When Greek officials
learned of the auction, they emailed the auction house a demand
letter, stating that the artifact belonged to Greece under its “patri-
mony laws” that declared Greek artifacts to be Greece’s property.
Id. The auction house withdrew the artifact from the auction, and
both the trust and auction house filed suit against Greece, seeking
declaratory relief on the disputed issue of ownership and asserting
that the commercial activity exception—specifically, the third
clause of § 1605(a)(2)—to the FSIA applied. Id.; see § 1605(a)(2) (“A
foreign state shall not be immune from the jurisdiction of courts of
the United States . . . in which the action is based . . . upon an act
outside of the United States in connection with a commercial ac-
tivity of the foreign state elsewhere and that act causes a direct ef-
fect in the United States.”).
On appeal, the Second Circuit explained that Greece’s pred-
icate act—sending its demand letter to the auction house—was not
taken “in connection with a commercial activity” by Greece out-
side of the United States. Barnet, 961 F.3d at 200 (quoting
§ 1605(a)(2)). The Second Circuit explained that “Greece under-
took the act of sending the letter in connection with its claim of
ownership over the figurine pursuant to its patrimony laws” and
found that this act was sovereign in nature—Greece claimed own-
ership of the artifact “by adopting legislation that nationalizes
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22 Opinion of the Court 20-14728
historical artifacts and by enforcing those patrimony laws.” Id. at
200–01. The Second Circuit reasoned that “[n]ationalizing prop-
erty is a distinctly sovereign act” and that Greece was “acting in a
sovereign capacity by enforcing laws that regulate ownership and
export of nationalized artifacts.” Id. at 201. And the Second Circuit
found that Greece’s “insistence on recognition of and obedience to
its patrimony laws [were] not ‘the type of actions by which a pri-
vate party engages in trade and traffic or commerce,’” nor “analo-
gous to a private commercial transaction.” Id. (quoting Weltover,
504 U.S. at 614, 616). Thus, the Second Circuit concluded that the
adoption and pursuit of compliance with patrimony laws estab-
lished that the nature of Greece’s “activity was sovereign rather
than commercial.” Id. at 201–02.
But France’s activities here are not like Greece’s activity in
Barnet. Therefore, we do not find Barnet persuasive here. To
begin with, the activity at issue in Barnet—the sending of a letter
claiming ownership of an artifact—is both narrower in scope and
different in type than France’s activities here, i.e., planning and ex-
ecuting a shipwreck recovery project with FDOS. More critically,
we find that focusing on the foreign state’s “patrimony laws” in this
case would be akin to the “motive” test we warned of in Guevara
that “treads too closely to an examination of ‘purpose.’” 468 F.3d
at 1302. While France’s motive in pursuing the shipwreck recovery
project may be to comply with its patrimony laws, “the Supreme
Court has instructed us that the FSIA ‘unmistakably commands’
that we consider the nature, rather than the purpose of a
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20-14728 Opinion of the Court 23
transaction.” Id. at 1302. We must therefore look to the nature of
underlying activity and determine whether it is commercial in na-
ture, e.g., the type of activity that is “negotiable among private par-
ties.” Id. at 1299 (quoting Honduras Aircraft, 129 F.3d at 547); see
Devengoechea, 889 F.3d at 1221 (“[W]hether a foreign government
acts out of a profit motive or out of a desire to fulfill ‘uniquely sov-
ereign objectives’ is entirely irrelevant to the analysis of whether
an activity qualifies as ‘commercial.’” (quoting Weltover, 504 U.S.
at 614)). And as we have already discussed, fundraising, entering
into contracts with third parties to engage in marine excavation
and asset recovery, and overseeing the logistics of that project are
commercial in nature, as they are the type of activities that private
parties (including GME) engage in.
France further relies on Odyssey, but that case is also distin-
guishable from the case before us. As explained above, in Odyssey,
we faced an in rem action to determine ownership of a shipwreck
and the application of § 1609, not § 1605, of the FSIA. Odyssey
asked us to create a commercial activities exception to § 1609’s im-
munity to arrest, arguing that the Spanish ship was engaged in
commercial activity when it sank. In rejecting this argument, we
concluded that there was not “a commercial activity exception to
§ 1609’s immunity to arrest.” Odyssey, 657 F.3d at 1176. We also
noted that, even if such an exception existed, Spain’s activities in
operating the ship, during the late 18th and early 19th centuries,
were sovereign in nature. Id. at 1176–77. Unlike Odyssey, GME’s
claims concern France’s current-day activities in pursuing recovery
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24 Opinion of the Court 20-14728
efforts with FDOS of the shipwreck sites—the same activities GME
was pursuing with FDOS—not the military activities that France
was pursuing when La Trinité and other ships of the Royal Navy
of France sank in 1565. Thus, while Odyssey may have some rele-
vance to GME I—the earlier in rem proceeding—it does not apply
to this case where GME seeks damages based on the nature of
France’s present-day activities.
We therefore conclude that France’s activities here are com-
mercial activities under the FSIA.
B. Whether GME’s action is “based upon” France’s commercial
activities
Although we conclude that France’s activities are commer-
cial under the FSIA, our inquiry under § 1605’s commercial activity
exception does not end there. Under § 1605(a)(2), we must also
determine whether GME’s action is “based upon” France’s com-
mercial activities. See Nelson, 507 U.S. at 356. To do so, “we must
identify the conduct upon which the suit is based” by looking at
“the ‘particular conduct’ that constitutes the ‘gravamen’ of the
suit,” i.e., “the ‘core’ of the suit.” Devengoechea, 889 F.3d at 1222
(quoting OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 35
(2015)); see also Nelson, 507 U.S. at 358 (explaining that the only
reasonable reading of the term “based upon” is that it “calls for
something more than a mere connection with, or relation to, com-
mercial activity.”). But we do not undertake an “exhaustive claim-
by-claim, element-by-element analysis” of the plaintiff’s cause of
action. Sachs, 577 U.S. at 34.
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20-14728 Opinion of the Court 25
For example, in Devengoechea, the plaintiff filed suit against
Venezuela for failing to pay for or return to him artifacts belonging
to Simón Bolívar. 889 F.3d at 1217. In determining whether the
plaintiff’s action was “based upon” Venezuela’s commercial activ-
ity, we explained that the conduct that injured the plaintiff—and
made up the gravamen of his suit—was Venezuela’s failure to pay
for or return the artifacts. Id. at 1223.
Here, the district court assumed, for the sake of this part of
its analysis, that France’s activities were commercial in nature and
found that GME’s injury was not “based on” the Declaration of In-
tent and that France’s activities were not related to the Declaration,
i.e., the shipwreck recovery project. Rather, the district court
found that GME’s action was “based upon the fact that France took
ownership of the ship,” which “occurred the moment the [GME I
district court] concluded that the res was La Trinité and belonged
to France.” GME contends that this characterization of its suit
against France was in error. Rather, GME argues, the gravamen of
its suit is France’s activities related to the shipwreck recovery pro-
ject and France’s failure to compensate GME for a substantial ben-
efit it conferred to France—the value of its services that led to the
discovery of the shipwreck sites including La Trinité. And GME
argues that, without its services, France could not have undertaken
the shipwreck recovery project.
While we pass no judgment on the merits of GME’s claims,
we find that the “gravamen” of GME’s suit is France’s activities in
executing the shipwreck recovery project and its failure to
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26 Opinion of the Court 20-14728
compensate GME for the value of the services. Indeed, the core of
GME’s claims against France—claims for an in personam salvage
lien award, unjust enrichment, misappropriation of trade secret in-
formation, and interference with its rights and relations—is
France’s failure to compensate GME for the value of GME’s salvag-
ing services. See Devengoechea, 889 F.3d at 1223 (“The conduct
that actually injured Devengoechea—and therefore that makes up
the gravamen of Devengoechea’s lawsuit—is Venezuela’s failure
to return the Bolívar Collection to Devengoechea or to pay him for
it.”). GME’s salvage services led to the discovery of La Trinité and
the other shipwreck sites, which, in turn, led to France’s joint ship-
wreck recovery project with FDOS, as set forth by the Declaration
of Intent. And, as explained above, France’s activities in planning
and executing the shipwreck recovery project qualify as “commer-
cial activity.”
We therefore hold that the FSIA’s commercial activity ex-
ception to foreign sovereign immunity applies because GME’s ac-
tion is “based upon” France’s commercial activity in the United
States. Accordingly, the district court had subject matter jurisdic-
tion over GME’s suit against France.
IV. CONCLUSION
For these reasons, we reverse the district court’s order dis-
missing GME’s amended complaint for lack of subject matter juris-
diction and remand for further proceedings.
REVERSED and REMANDED.