Lloyd's Maritime and Commercial Law Quarterly
STATE CLAIMS TO SHIPWRECKS IN THE US
The Brother Jonathan
The US Supreme Court decision in California and State Lands Commission v. Deep Sea Research Inc. (The Brother Jonathan),1 that the Eleventh Amendment2 of the US Constitution does not bar the jurisdiction of a Federal Court in an in rem admiralty action where the res is not within the possession of the State, will have a profound effect on the way in which title disputes over historic shipwrecks located in State’s territorial waters will be conducted in the future. No longer will a State be able to prevent an in rem admiralty case being considered by the Federal Court simply by asserting that it has title to that wreck under the Abandoned Shipwreck Act of 1987 (“ASA”)3 or under State legislation. The State will shoulder the burden of proving this assertion. State historic shipwreck protection agencies will therefore have lost a valuable weapon in what they consider to be the fight against the destruction of historic shipwrecks by commercial salvors. The salvage community, on the other hand, consider the Supreme Court ruling to be a major victory, not only because the State will now be in the same position as any other claimant, but also because a dispute may now be heard before a Federal Admiralty Court, which has tended to treat historic shipwrecks as commercial property rather than archaeological or historic artefacts in need of protection.4
Judicial history: the US District Court for the Northern District of California and the US Court of Appeal for the Ninth Circuit 5
The dispute before the Supreme Court arose from the assertion by the respondent (DSR) of rights to the wreck of the Brother Jonathan, a 220-ft wooden sidewheeled steamship which sank in 1865 off the coast of Northern California with considerable loss of life. It
1. No. 96–1400; Lexis 2788. (Also cited as WestLaw document: 1998 W.L. 186794; 140 L.Ed. 2d 626; 66 U.S.L.W. 4286; 98 Cal. Daily Op. Service 3000; 98 Daily Journal DAR 4083; 11 Fla.Law W.Fed. S 460).
2. The Eleventh Amendment states that: “The Judicial power of the United States shall not be construed to extend to any suit in law or equality, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
3. 102 Stat. 432; 43 U.S.C. 2101 et seq.
4. At a Congressional hearing, Senator Bradley stated that: “Under the current system, Federal courts—sitting in admiralty—have substantial policy-making power, which has resulted in uneven judgements about the historical value of shipwrecks.” See S. L. McLauglin, “Roots, Relics and Recovery: What went Wrong with the Abandoned Shipwreck Act of 1987” (1995) 19 Columbia VLA Journal of Law and Arts 159.
5. See C. J. Shapreau, “Treasure Salvors win a Victory in the Ninth Circuit” (1997) 2 Art, Antiquity and Law 52.
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