Bemis v. RMS Lusitania ( 1996 )

    THE RMS LUSITANIA, her engines,
    tackle, apparel, appurtenances,
    cargo, etc., in rem,                                                No. 95-2057
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Norfolk.
    J. Calvitt Clarke, Jr., Senior District Judge.
    Submitted: August 30, 1996
    Decided: September 17, 1996
    Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Richard T. Robol, HUFF, POOLE & MAHONEY, Virginia Beach,
    Virginia, for Appellant.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    F. Gregg Bemis, Jr., filed this in rem action seeking a declaration
    that he is the sole owner of the wreck of the RMS Lusitania. The dis-
    trict court determined that Bemis is indeed the owner of the ship's
    hull, tackle, engines, and appurtenances, but declined to award him
    ownership or a salvage award for the contents of the ship, including
    the cargo and the passengers' possessions. Finding no error in the dis-
    trict court's decision, we affirm.
    The hull of the Lusitania rests on the ocean floor off the coast of
    Ireland, where it was sunk by a torpedo fired by a German Imperial
    Navy U-Boat in 1915. The wreck is below 295 feet of water, in an
    area with a strong current and low visibility, making efforts to salvage
    the contents of the ship extremely difficult.
    Bemis seeks to salvage the contents of the Lusitania. He obtained
    title to the hull of the ship through a series of transfers from the ship's
    original owner, Cunard Steamship Company ("Cunard"), the Liver-
    pool and London War Risks Insurance Association, also known as the
    War Reclamations Board ("Liverpool"), and various private parties
    who have owned interests in the ship over the last eighty years.1
    Bemis has participated in three expeditions to the Lusitania since
    1 Bemis was one of three private owners of the Lusitania. One of the
    other owners, George Macomber, transferred all of his interest in the ship
    to Bemis over the course of several years, with the final conveyance in
    1993. The other private owner, John Light, is deceased. His widow,
    Muriel Light, opposed Bemis's claim in the district court, but Bemis and
    Mrs. Light reached a settlement agreement in 1995, whereby she
    assigned all of her interest in the ship to Bemis.
    1982; on those expeditions, he has photographed the ship, placed a
    plaque on the hull, and conducted salvage operations, attempting to
    recover the cargo and passengers' personal effects from the ship. The
    title to the contents of the ship (both cargo and passengers' personal
    effects), and the right to salvage those contents, are at the heart of the
    action before this Court. Bemis advances several theories in support
    of his claim to the contents of the ship.
    First, Bemis contends that Cunard transferred the cargo and passen-
    gers' personal effects to Liverpool, who paid the insurance carrier
    when the ship sank, and that his entitlement to the contents followed
    the chain of title to the ship.2 Although the district court agreed that
    Bemis had title to the ship, it rejected his claim to the contents on the
    chain-of-title argument.
    Bemis presented no direct evidence regarding the transfer from
    Cunard to Liverpool. If Liverpool paid Cunard, the passengers, and
    the cargo owners for the contents of the ship, the possessions and
    cargo would have been Liverpool's to transfer to Light, and Light's
    to transfer to Macomber and Bemis. Columbus-America Discovery
    Group, Inc. v. Atlantic Mut. Ins. Co., 
    974 F.2d 450
    , 457 (4th Cir.
    1992) (CADG I), cert. denied, 
    507 U.S. 1000
     (1993). However, the
    record contains no evidence that such claims were actually paid by
    Bemis contends that William Andres, the attorney who handled the
    conveyance from Liverpool to Light, and the later conveyance from
    Light to Macomber and Bemis, believed that title to the contents of
    the ship were part of the conveyance. Bemis offered his own state-
    ments, Macomber's testimony, and the statements of Andres's former
    associate, Thomas Swain, regarding their understanding of the title
    2 Bemis also contended that he obtained title to the contents through
    later conveyances. However, as the district court noted, if Cunard did not
    convey title to the contents to Liverpool, no later conveyance could have
    carried title to the contents.
    Bemis relies heavily on a letter from Liverpool to Light, which pro-
    vides in relevant part:
              [T]he Association [Liverpool] paid a total loss claim to the
              Owners and the rights and interests in the vessel passed to
              the Association.
              [T]he Association has sold to you the rights and interests in
              the wreck of the "Lusitania" on the understanding that it will
              not be salved as a whole, repaired and put into commission
              again, and also that the purchaser takes over all liabilities
              and expenses which might attach to the wreck.
    Bemis places great weight on the use of the term"wreck" in the
    Liverpool letter because, under English law, a wreck includes both the
    hull of a sunken ship and its contents. John A. Edington, 3A Benedict
    on Admiralty § 133 (7th ed. 1993 & Supp. 1996). The district court,
    however, found that the use of the term wreck was not dispositive,
    and that the word "vessel" in the conveyance language was determi-
    native; a "vessel" is, in English law, the hull of a sunken ship, exclud-
    ing its contents. See generally 3A Benedict on Admiralty §§ 205-09.
    Both interpretations of the letter are reasonable. However, in the
    absence of evidence about Liverpool's agreement with Cunard, the
    district court did not err in concluding that Liverpool transferred only
    the hull, tackle, and appurtenances of the ship to Light.
    Bemis next asserts that the decision in Pierce v. Bemis: The
    Lusitania, 1 Q.B. 401 (1986), confirms his title to the contents. The
    issue in Pierce was whether the British Crown was entitled to artifacts
    that Bemis and other claimants brought up in a 1982 diving expedi-
    tion. The court concluded that Bemis and his then-partners had title
    to the hull, and that the Crown did not have title to the contents of
    the ship. Further, the court held that Bemis was the owner of the sal-
    vaged artifacts by virtue of possessory title. The English court did not,
    however, determine ownership of the contents that were still on board
    the ship. As the district court recognized, the English court's decision
    was not dispositive as to the title of the contents still on board the
    ship. Further, the district court properly concluded, under the same
    reasoning as that in the Pierce decision, that Bemis was the owner of
    the artifacts recovered in the 1993 and 1994 dives.
    Bemis only has a claim on the contents still on board the ship if he
    can establish that the contents were abandoned and he is entitled to
    relief through the law of finds or the law of salvage. The law of finds
    expresses "the ancient and honorable principle of`finders, keepers.'"
    Martha's Vineyard Scuba HQ, Inc. v. Unidentified, Wrecked & Aban-
    doned Steam Vessel, 
    833 F.2d 1059
    , 1065 (1st Cir. 1987). It applies
    to findings of sunken property abandoned by prior owners. CADG I,
    974 F.2d at 464. A vessel may be considered abandoned if no owner
    comes forward to claim it during an action to claim ownership rights.
    Id. at 461. However, some overt act expressing an intent to abandon
    is also required. Id. A person can be deemed the owner of abandoned
    property if he takes possession of it and exercises dominion or control
    over it. Moyer v. Wrecked & Abandoned Vessel, Known as Andrea
    836 F. Supp. 1099
    , 1106 (D.N.J. 1993). The mere discovery
    of an abandoned vessel is not sufficient to establish possession. Id.
    The district court found that the contents of the Lusitania were
    abandoned because no one, including the Lusitania's passengers or
    their descendants, has come forward to file a claim since Bemis com-
    menced this action. CADG I, 974 F.2d at 465. However, the court
    found that Bemis has only taken possession of the items he salvaged
    from the ship during his past diving expeditions.
    Bemis does not have dominion and control over the remaining con-
    tents of the ship because they are still submerged in the hull at the
    bottom of the ocean, and he does not have a "`high degree of control'"
    over the contents. CADG I, 974 F.2d at 460 (quoting Hener v. United
    525 F. Supp. 350
    , 356 (S.D.N.Y. 1981)). Further, he is not
    conducting an ongoing salvage operation, another ground for deter-
    mining that a salvor has dominion and control over cargo of a ship-
    wreck. Hener, 525 F. Supp. at 355; Treasure Salvors, Inc. v.
    Unidentified Wrecked & Abandoned Sailing Vessel, 
    546 F. Supp. 919
    926 (S.D. Fl. 1981); Eads v. Brazelton, 
    22 Ark. 499
    , 511 (1861). A
    salvor does not obtain title simply by discovery of lost or abandoned
    property; transitory presence is not sufficient to establish control.
    Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing
    640 F.2d 560
    , 571 (5th Cir. 1981) (citing Brady v. S.S. African
    179 F. Supp. 321
     (E.D. Va. 1960)).
    Bemis has gone on three expeditions to the Lusitania, one each in
    1982, 1993, and 1994.3 During these trips he took numerous photo-
    graphs of the wreck, and he recovered ninety-four artifacts on the first
    expedition.4 We find that Bemis's results to date do not amount to a
    showing of actual or constructive possession of the ship's still-
    submerged contents sufficient to declare him the owner of those con-
    tents. See 3A Benedict on Admiralty§ 158. However, as noted above,
    the district court correctly determined that Bemis is the owner of each
    of the items he has actually recovered from the ship.
    Bemis also sought a liberal salvage award and an injunction per-
    mitting him the sole right to conduct salvage operations. A salvor is
    3 The 1993 dive was primarily for the purpose of researching an article
    for National Geographic magazine. Bemis's cooperation with the author
    of the article, Dr. Robert Ballard, was conditioned in part on his ability
    to accompany Ballard on the trip. According to Ballard, Bemis was
    cooperative in the 1993 expedition "in that he did not obstruct or in any
    way try to affect or alter our operational plan that we had submitted to
    4 Bemis contends that the district court should have considered the
    expeditions of Macomber, Light, and others even though Bemis did not
    personally participate in those operations. Bemis is correct in stating that
    he need not personally participate in salvage operations for those opera-
    tions to be attributed to him. He contends that Light and Macomber
    transferred to him any rights they acquired as a result of their salvage
    operations in the 1960s and 1970s. However, as the district court noted,
    Bemis has conducted only three expeditions since 1982. Even if Light
    and Macomber's actions somehow vested in Bemis, the district court
    could fairly have concluded that Bemis's relative inaction over the past
    14 years was determinative.
    entitled to compensation for recovery of the property; he is not gener-
    ally awarded title to the property. CADG I, 974 F.2d at 459.
    To obtain a salvage award, a claimant must establish three ele-
    ments. First, the property must be in marine peril; underwater ship-
    wrecks are usually considered in marine peril because of the risk of
    loss. Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned
    Sailing Vessel, 
    569 F.2d 330
    , 336-37 (5th Cir. 1978); 3A Benedict on
    Admiralty § 63. Next, the salvage service must be voluntary. 3A
    Benedict on Admiralty §§ 15, 23, 68. Third, the salvage must be suc-
    cessful, in whole or in part. Id. at § 88. In addition, a salvor must
    establish possession of the property. Hener, 525 F. Supp. at 357. In
    the alternative, the salvor must show that he has acted with due dili-
    gence and that his salvage operations are ongoing. Treasure Salvors,
    Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 640 F.2d
    at 567; Andrea Doria, 836 F. Supp. at 1107. A salvor "`must have the
    intention and capacity to save the property involved, but the [salvor]
    need not have the intention to acquire it.'" CADG I, 974 F.2d at 460
    (quoting Hener, 525 F. Supp. at 357-58).
    The district court correctly found that Bemis was not entitled to a
    salvage award. Although the contents of the Lusitania are in marine
    peril and Bemis is performing salvage operations voluntarily, the
    court concluded that Bemis had not had enough success to warrant a
    salvage award. "`It is not what salvors offer or attempt to do that enti-
    tles them to compensation, but what they succeed in doing to the ben-
    efit of the property.'" 3A Benedict on Admiralty § 89 (quoting Curry
    v. The Loch Goil, 
    6 F. Cas. 995
     (S.D. Fl. 1877) (No. 3495)). Bemis
    has expended significant resources in his attempts to salvage the Lusi-
    tania's cargo; however, he has retrieved very few artifacts from the
    Further, Bemis's three expeditions over thirteen years did not con-
    stitute due diligence. Although Bemis recovered many artifacts in his
    1982 dive, the 1993 dive was run primarily by the National Geo-
    graphic Society as a photographic expedition. The 1994 dive was
    unsuccessful; the expedition lasted only two days instead of the
    planned two weeks, and no artifacts were recovered. These facts fully
    support the district court's conclusion that Bemis does not have an
    "ongoing" operation, and that his chance of future success is slim.
    Bemis contends finally that he should be given a salvage award and
    an injunction preventing other divers from taking artifacts from the
    ship because of the scientific, historical, and archaeological signifi-
    cance of the wreck.5 See Treasure Salvors, Inc. v. Unidentified
    Wrecked & Abandoned Sailing Vessel, 546 F. Supp. at 927-28. The
    historical, scientific, and archeological value of a shipwreck is a "sig-
    nificant element" in the district court's consideration of a claim for an
    exclusive salvage award. CADG I, 974 F.2d at 468 n.9. As the district
    court recognized, Bemis has conducted several expeditions to the
    ship. However, his expeditions have been sporadic and not highly
    successful.6 "It matters not how arduously or skillfully the salvors
    may have labored . . . salvage remuneration is dependant upon the
    property's being saved." 3A Benedict on Admiralty § 88. Because
    Bemis has not participated in sustained, successful salvage operations,
    the court properly found that an exclusive salvage award was not war-
    Most troubling is Bemis's contention that "rogue" divers are
    exploring the shipwreck and taking artifacts to which they are not
    entitled. One group of divers, known as Fifty Fathoms Ventures, took
    several items from the wreck; upon the district court's order, these
    items have been turned over to Bemis, who now has title to them.
    Another group of divers, led by British diver Polly Tapson, planned
    a 1994 dive to the wreck.7 Bemis submitted as evidence a letter from
    Tapson to the other divers in her group, stating that their dive would
    have to be surreptitious because Bemis had not approved it. She
    referred to the divers' being able to "send [ ] up anything we want to
    5 Bemis's argument in this regard is somewhat disingenuous. He relies
    largely on the deposition testimony of Dr. Robert Ballard, an oceanogra-
    pher with whom he travelled to the Lusitania in 1993. Dr. Ballard stated
    that he is "opposed to the recovery of artifacts" from historic shipwrecks.
    However, Bemis testified that he wishes to bring artifacts up from the
    wreck to create a travelling exhibition for museums.
    6 As the district court noted, much of the photography and research
    which resulted in the National Geographic article is attributable to Dr.
    Ballard, not to Bemis.
    7 The record does not clearly reflect whether the dive actually took
    from the Lusitania," and said that "[t]he Irish we met seemed a bit
    funny about us taking anything from the wreck," but would "turn a
    blind eye rather than risk losing the [group's] charter." She also said
    that the group's "wreck robbing instincts might have to be a tiny bit
    restrained." Bemis contends, perhaps correctly, that unless he is
    awarded an injunction, other divers will take artifacts from the ship.
    Although the loss of artifacts would be unfortunate, Bemis simply has
    no right to the injunction absent an ownership interest in the contents
    of the ship, and he has not established such an interest. Consequently,
    we find that the district court did not err in declining to issue an
    We affirm the district court's decision. We deny Bemis's motion
    to expedite as moot.