California v. Deep Sea Research, Inc.

PETITIONER:California
RESPONDENT:Deep Sea Research, Inc.
LOCATION:United States Department of State

DOCKET NO.: 96-1400
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 523 US 491 (1998)
ARGUED: Dec 01, 1997
DECIDED: Apr 22, 1998

ADVOCATES:
David C. Frederick – On behalf of the United States, as the respondent supporting the petitioners in part
Fletcher C. Alford – Argued the cause for the respondents
Joseph C. Rusconi – Argued the cause for the petitioners

Facts of the case

After several expeditions, Deep Sea Research, Inc. (DSR) located the wreck of the S.S. Brother Jonathan and its cargo which sank off the California coast in 1865. When DSR sought rights to the wreck and her cargo, under Article III, Section 2, federal admiralty jurisdiction, California challenged DSR claiming that it had title to the wreck under the Abandoned Shipwreck Act of 1987 (ASA). The ASA requires the federal government to transfer title over “abandoned shipwrecks” to the states in whose submerged lands the wrecks are found. California also noted that under Section 6313 of its own public code, title to all abandoned shipwrecks found off its coast vests in the state. In light of its claims to the Brother Jonathan, California claimed that DSR’s federal title action violated its rights under the Eleventh Amendment, even though it lacked possession of the wreck.

Question

Does the Eleventh Amendment, limiting federal jurisdiction over maritime matters, bar a federal court’s jurisdiction over an admiralty property claim where the property itself is not within the State’s possession?

William H. Rehnquist:

We’ll hear argument now in Number 96-1400, California and State Lands Commission v. the Deep Sea Research, Inc.–

Mr. Rusconi.

Joseph C. Rusconi:

Mr. Chief Justice, and may it please the Court:

The action below was one in rem by a private party to try title as against all the world and for exclusive salvage rights to a vessel lying upon the sovereign submerged lands of the State of California.

In this situation, California claims title and rights to salvage over that same vessel, and the Eleventh Amendment prevents the adjudication of California’s interests in this case without its consent.

Under this Court’s Eleventh Amendment jurisprudence, the guiding principle in these cases is the effect of the relief requested on the State.

This conclusion is not dependent upon formalisms or upon the manipulation of captions or pleadings.

Had this suit been in personam against the State under the same circumstances there is no doubt that the suit would have been barred by the Eleventh Amendment, and this result cannot be changed by the substitution of the vessel as defendant for the State of California.

Antonin Scalia:

Well, there’s really no such thing as an in rem action, then.

Joseph C. Rusconi:

No, that’s–

Antonin Scalia:

Well, I mean, you cannot possibly adjudicate the rights to a particular piece of property.

You always have at least 50 claimants–

Joseph C. Rusconi:

–Justice Scalia–

Antonin Scalia:

–who can come in and say, no, it’s really mine, and this adjudication was for naught.

Joseph C. Rusconi:

–Justice Scalia, all we’re asking in this case is that the State be dismissed.

Now, they can move forward in this with an in rem judgment against the rest of the world.

David H. Souter:

Then it’s not an in rem judgment.

The whole point, historically, of an in rem judgment in these admiralty actions is that it binds the world, and it seems to me that the implication of what you’re saying here is, a State is always part of the world and, therefore, in any admiralty in rem action a State could come forward and say, got to dismiss it, Eleventh Amendment, can’t bind me.

Joseph C. Rusconi:

Justice Souter, I believe that is what we are saying.

However, the practical effect of that, States are not going to run around willy nilly and make these type of claims.

David H. Souter:

And isn’t the reason that they’re not… isn’t the reason that you’re not going to file this kind of an objection on, let’s say, an East Coast salvage case is that there is no colorable basis, in your mind or anybody else’s, for your doing so, for your having a claim that might be cut off and therefore in fact adjudicated by the in rem action?

Joseph C. Rusconi:

That will be the practical effect, yes.

David H. Souter:

All right.

Then what would be wrong with a rule, and maybe it would be a softer rule than the circuit applied here, which says you have at least got to come forward and make a sufficient showing that you are within the class of those whose interests might, in fact, be adjudicated here?

You’ve done that, in fact, in part by what you’ve done so far.

After all, in this case the original in rem process describes the location, so you said, look, we’re within the class of those geographically that might be affected, and what would be wrong with carrying that one step further and simply saying, all right, make an equally colorable showing that you’re also within the class as defined by other criteria, abandonment, embeddedness, historic register?

It doesn’t mean… this rule would not mean that you have ultimately to prove your entitlement, but it would mean that you’ve got to make a showing that there is a practical reason for stopping this in rem proceeding, and the reason, the justification for that is to avoid the absurd situation in which, simply by claiming that you’re part of the world, you could defeat any in rem proceeding.

What would be wrong with that rule?

Joseph C. Rusconi:

Justice Souter, the problem with that rule is that by inquiring into the location, inquiring into the issues that you mentioned, you’re adjudicating the merits of the claim.

David H. Souter:

No, I’m simply… my suggestion was that you’ve at least got to come forward with a basis for saying, yes, there is a reasonable basis for saying that State interests are involved here, as distinct from the case that would occur if the wreck were beyond the 3-mile limit, or the wreck were in the Gulf of Mexico, or in Europe.

David H. Souter:

And I’m not suggesting that there needs to be a final adjudication, but I’m suggesting that in order to preserve the value of in rem actions there at least ought to be a sufficient showing for the court… from which the court could conclude that you or your State has a serious interest implicated here that justifies recognizing your Eleventh Amendment claim and, in effect, defeating the Federal in rem action, that’s all.

Joseph C. Rusconi:

I understand, Justice Souter, but I do not see as a practical matter how this inquiry that you’re talking about about preliminary matters cannot but implicate a question on the merits, and this is what–

David H. Souter:

Oh, it implicates it, but it doesn’t determine it.

In other words, you’ve got to come forward with some evidence.

That’s a very different thing from saying that you’ve got to, in effect, present a full case and prevail.

Joseph C. Rusconi:

–We think that the… the State of California thinks that the broad concept of sovereign immunity in the Eleventh Amendment means that even the type of preliminary inquiry that you’re asking for is forbidden.

Now, when a State–

Anthony M. Kennedy:

I think I might agree with that, and then suggest that perhaps the Eleventh Amendment doesn’t apply at all to an in rem action where the res is not in the custody, the actual custody of the State.

If you don’t accept Justice Souter’s lifeline it seems to me that this shows that perhaps the in… the utility of in rem actions is substantially destroyed by your position.

Joseph C. Rusconi:

–Well, Your Honor, we don’t think we’re destroying the utility of in rem actions.

There has… this… there has not been a history of States making unsubstantiated claims based on the Eleventh Amendment, and it’s certainly not the case in this case.

Sandra Day O’Connor:

Well, but there is some indication, isn’t there, that when the Framers were drafting the Constitution and when the Eleventh Amendment was adopted that it was thought that certain types of suits in admiralty weren’t covered by the Eleventh Amendment at all.

Joseph C. Rusconi:

I–

Sandra Day O’Connor:

The prize cases, for example… and very possibly in rem cases of this type, where the State isn’t in possession, as such, of the property.

Joseph C. Rusconi:

–Your Honor, since the early cases, which we do not believe stand for the citation by the other parties in this case, those cases did not involve in rem actions at all, or possession was not central to the holding.

In this case, title is being… is going to be adjudicated against the State in this in rem action.

In this case, its regulatory authority has been infringed by the orders of the district court, as–

William H. Rehnquist:

Well, Mr. Rusconi, your opponents cite the old Peters case from this Court as standing for the proposition that a Federal court can adjudicate an action so long as the property is not in the possession of the State.

Now, do you disagree with that reading of Peters?

Joseph C. Rusconi:

–Yes, we do.

That case was not an in rem action.

That case was an in personam action by rival claimants against the executrices of the estate of the ex State Treasurer.

Now, in that case, when you look at Justice Marshall’s quote about the State not being able to sit back and then destroy this ongoing action, that makes sense.

Normal principles of estoppel would not bind the State on a judgment in an in personam case when they’re not named, and so there’s no problem.

David H. Souter:

What’s your answer to The Davis?

As I recall, you said in your brief, well, Davis isn’t on point, or… here because the title was not involved, but the question is the Eleventh Amendment applicability, and I would suppose that there’s an Eleventh Amendment violation or not an Eleventh Amendment violation regardless.

Joseph C. Rusconi:

Well, yes, title was not involved in The Davis, and that involved–

David H. Souter:

Well, why should that make a difference here?

Joseph C. Rusconi:

–Because–

David H. Souter:

Regardless of what’s being adjudicated you’re saying we have the right to an Eleventh Amendment immunity even though we weren’t in possession and even though it is in rem.

Joseph C. Rusconi:

–That’s correct.

In The Davis the title to the cargo was not at issue, and it also involved the sovereign immunity of the United States, so it’s not an Eleventh Amendment immunity.

In this case we have–

David H. Souter:

No, but if sovereign immunity of the United States would not have prevailed in that case, there’s at least a pretty fair argument that it’s unlikely that the concept of sovereign immunity recognized in the Eleventh Amendment for State purposes would, in fact, be somehow more powerful or broader.

I mean, I don’t see that as a distinction.

Joseph C. Rusconi:

–Well, I believe that the cases have diverged on the Eleventh Amendment immunity that is given to the States versus the sovereign immunity of the United States.

David H. Souter:

No, but do you take the position that State sovereign immunity in fact is broader than Federal sovereign immunity?

Joseph C. Rusconi:

I believe that under the… let me… I think the best way to answer that is, under this Court’s–

David H. Souter:

Well, how about a yes or no, and then explain?

[Laughter]

Do you take the position that State sovereign immunity is, in fact, a broader concept than Federal sovereign immunity?

Joseph C. Rusconi:

–I think it is broader in that the Congress can change the immunity, sovereign immunity of the United States.

However, Congress cannot change the Eleventh Amendment immunity, and in that way–

David H. Souter:

Well, is there any indication that the concept of sovereign immunity understood at the time of The Davis was in fact a weaker concept under the–

Joseph C. Rusconi:

–No.

David H. Souter:

–Okay.

Joseph C. Rusconi:

I… but I also want to add that we’re talking here about a vessel that is on the sovereign lands of the State of California, and whose title is being tried, and whose… the State is not making a bound… a baseless claim in this case, and the recent jurisprudence of this Court–

David H. Souter:

You say it’s on the–

–All property in California is on the sovereign land of the State of California.

I mean, so any in rem action against any piece of property in California you could say the same thing about, right?

Joseph C. Rusconi:

–Perhaps I misunderstand your question.

Not all property within our jurisdiction is the sovereign lands of the State of California.

Those are… these are lands that were granted according to the… by the Submerged Lands Act.

Antonin Scalia:

You have greater sovereignty over the sea bed than you have over the dry land in California?

Joseph C. Rusconi:

It is held subject to a public trust, a unique trust that all sovereign lands in the State of California are held that are not held, say, on proprietary lands, which may be sold, whereas sovereign lands, it takes a unique statutory scheme to get rid of them.

Antonin Scalia:

I don’t understand.

Well–

–I don’t know where the sovereign lands argument takes you, because if… to the extent that you’re going to rely on sovereign lands rather than Eleventh Amendment immunity, period, it seems to mean you’re open to the argument that the reason you’ve got those lands is that the Congress of the United States gave them to you, and if you’re going to take the benefit of those lands, presumably it would be fair to say you ought to take them subject to the burden of taking them without destroying the utility of in rem actions.

Joseph C. Rusconi:

This is a difficult case, Justice Souter.

However, just last term in the Coeur D’Alene case the Court was very–

David H. Souter:

Well, is my… I… Coeur D’Alene is fine, but I mean, is there something wrong with the, kind of the equity argument that I just made that if you’re going to depend on sovereign lands I think you’ve got to take the burden as well as the benefit?

Joseph C. Rusconi:

–I don’t see what the burden is here.

David H. Souter:

The burden is that you are going to be subject to some incidents of in rem jurisdiction.

Maybe that incident is that you’re going to lose your title, and you don’t have an Eleventh Amendment claim if you’re not in possession.

Maybe that incident is that you’re going to have to make at least a colorable showing that you are in a position at least to claim an interest subject to Eleventh Amendment protection.

But whatever the burden is, the argument is that you got the sovereign lands from the United States, they weren’t your historical entitlement, and you ought to take them subject to this burden.

Joseph C. Rusconi:

A couple of things.

Yes, but we did not get them under the equal footing doctrine, but why should we be treated any differently by the fact that the lands were conveyed by the Submerged Lands Act when they’re adjacent to lands given under the equal footing doctrine?

David H. Souter:

Well, the reason is that you got this boon out of Congress in 1953, and presumably Congress did not intend to destroy the utility of in rem admiralty actions in the course of doing it.

That’s the answer.

Joseph C. Rusconi:

I understand your argument, Justice Souter, but California believes that its title and its regulatory authority transcend questions such as possession.

John Paul Stevens:

May I interrupt you with just one question there?

I understand the Ninth Circuit… because they wrote the opinion, but is it not correct that the issues of title and regulatory authority really are quite different, that it might well be true that the in rem action would bind you as to title, but not necessarily as to regulatory control?

Joseph C. Rusconi:

They are different actions.

However, both of those impact the sovereignty of the State of California in that this… the title question goes right to… it’s as if our Treasury was being invaded.

It is that invasive.

To decide that a piece of property does not belong to the State–

John Paul Stevens:

No, but all I’m saying is, is it not… would you not agree that you might lose on the title argument and still win on the regulatory argument?

Joseph C. Rusconi:

–Correct.

Stephen G. Breyer:

Okay.

Just want to be–

–I am just curious about the practical effects of this.

What is supposed to happen in respect to all of the ships or other pieces of property that for the last 200 years admiralty courts have adjudicated the title of in rem?

Are all of those adjudications, past, present, and future, now not final because any one of 50 sovereigns can say, we weren’t bound?

And my related question is, what’s supposed to happen in bankruptcy proceedings, another instance, I take it, where every day courts decide who owns property as of against the world?

Are now all those property decisions up for grabs?

What do title insurance companies do or say?

Joseph C. Rusconi:

First question, theoretically yes, but again, I don’t see the practical implication of–

Stephen G. Breyer:

Title companies… I’m interested in that because, of course, the title insurance companies often raise rates a lot when there’s just a theoretical objection, so I’m quite interested.

I don’t want to stop you.

Stephen G. Breyer:

I want to encourage you to–

Joseph C. Rusconi:

–The… I’m not an expert in marine title insurance law.

However, the practical effects of the application of the rule that we’re asking I think, or the State thinks it will be very minimal.

Now, as to bankruptcy, the type of claim which is made in bankruptcy under 106 is something that is almost reduced to money.

It’s a money debt that is owed, and California acknowledges that in bankruptcy if we do not file a proof of claim under operation of law that debt will be discharged as to the State of California, but a suit to quiet title is an entirely different matter.

It is–

Antonin Scalia:

–I don’t understand that.

What… why?

Joseph C. Rusconi:

–Because an… a suit to quiet title is an adjudication of a State’s right.

Under bankruptcy, there is no adjudication.

It is by operation of law that the claim is discharged.

It’s not an adjudication that it’s a bad… it’s… that there was no debt, or that the debt exists.

It is just a simple congressional enactment that unless you file a claim it’s discharged, and that is–

William H. Rehnquist:

We’re talking here about an in rem action in admiralty which I think has long had special characteristics that might not carry over to bankruptcy or to a quiet title action.

Are you agreeing that the… whatever rule we devise or apply in this particular case would carry over totally unchanged into bankruptcy under quiet title actions?

Joseph C. Rusconi:

–No, no, no.

What I’m saying is that they’re apples and oranges, that claims to debts under bankruptcy law is an apple, and a quiet title suit is an orange.

William H. Rehnquist:

Well, but are you equating a quiet title action with this sort of in rem action in admiralty?

Joseph C. Rusconi:

What I’m saying is… yes, that the… the functional equivalent of the admiralty action is a direct quiet title action against the State.

William H. Rehnquist:

Yes, but the difference, traditionally, is that the in rem action adjudicates title against the world.

In a quiet title action, you have to join all the possible defendants, and then you get a quiet title action only as to them, unless you’re dealing with some… the Massachusetts title system, which doesn’t prevail in most places.

Joseph C. Rusconi:

But what’s the effect of that in rem judgment that Deep Sea Research owns the Brother Jonathan?

The effect is that it forecloses the State of California.

The effect is, it’s the same thing as that quiet title–

William H. Rehnquist:

Well, you can intervene in the case if you want to.

I mean, it’s not as if you’re prevented from making California’s claim.

All that you’re prevented from doing is saying… is sitting back and saying you’ve adjudicated title against all the rest of the world but not against us, and you say the Eleventh Amendment entitles you to do that.

Joseph C. Rusconi:

–Correct, we do, and as a practical matter States are not going to sit back.

They’re going to bring actions in their own courts, where these actions belong.

I… we don’t see it as a crippling interference to require that one action against the rest of the world be in Federal court and the other action against the State be in the State court.

Ruth Bader Ginsburg:

Isn’t that practically the end of such actions, because let’s take this case.

You say California is out, but the admiralty court can adjudicate everything else.

Well, what else?

There’s a claim by the United States, and there’s a claim by the salvors, but how could this Federal district court adjudicate finally even those claims, because the State is… won’t be bound by it?

Joseph C. Rusconi:

Well, they adjudicate the claims amongst the claimants that are brought into Federal court, but the Eleventh Amendment–

Ruth Bader Ginsburg:

Well, what kind of litigant would be satisfied with the judgment that has a big player looming out there saying, whatever this district court does, it won’t touch us and we can reargue the whole thing?

Joseph C. Rusconi:

–Well, the litigant is going to have to come into State court against the State, and this type of split jurisdiction is not uncommon.

In the Pennhurst case the–

John Paul Stevens:

Do you think your position is entirely consistent with our Treasure Salvors decision?

Joseph C. Rusconi:

–Yes, we do.

We think that Treasure Salvors, at least eight justices there were quite specific that what the court of appeal did in actually adjudicating the merits of the State’s claim to those artifacts was prevented by the Eleventh Amendment.

John Paul Stevens:

No, but shouldn’t… under your view shouldn’t the action have been dismissed?

Under your view, should not the action have not survived in Federal court at all?

Joseph C. Rusconi:

No, the… as to the State of Florida it should have been dismissed.

John Paul Stevens:

Right, which it was not.

Joseph C. Rusconi:

Which it was not.

John Paul Stevens:

Yes.

We asked you about some of the old cases.

Justice Washington’s case on circuit, The Bright, is really a very strong position for your opponents, is it not?

Joseph C. Rusconi:

It is, but we believe that The Bright case, which purports to say that the Eleventh Amendment does not apply to in rem actions, has very little authority left after the New York number II case, and after Treasure Salvors, which–

Anthony M. Kennedy:

Well, except in the… The Bright is very much like this case, is it not, in that what we are dealing with is a res that was not in the possession of the Government, or is that incorrect, or of the State?

Joseph C. Rusconi:

–No, it was not.

Anthony M. Kennedy:

You see, in New York I and II you could plausibly make the argument that this was a disguised or ineffective damages remedy against the State, but this was the case that Justice Story relied on in his commentaries.

I’m not sure if it was decided subsequently by our Court as authoritative.

Joseph C. Rusconi:

I believe–

Anthony M. Kennedy:

But it does indicate the practice at the time was to recognize that admiralty in rem proceedings ought to be able to proceed efficiently, and that is to bind all of the probable claimants.

Joseph C. Rusconi:

–That may have been what Justice Washington was purporting to hold, but again, I think the recent jurisdiction of this Court gets… has gotten away from the type of formalistic, what pigeon hole does the action fit into, and looks at the effect of the judgment on the State.

William H. Rehnquist:

But in New York, both of those cases were… they did repudiate formalism, and they said that in those cases it was basically an in personam action against the State, so I don’t think that supports your theory here, because this Court did not treat them as in rem actions.

Joseph C. Rusconi:

That’s true, but in the–

William H. Rehnquist:

So why do you cite them for that proposition?

Joseph C. Rusconi:

–In the plurality decision in Welch and also in–

William H. Rehnquist:

But I’m talking to you about the two Ex parte New York cases.

Joseph C. Rusconi:

–Yes, but the Court in both Welch and in the Treasure Salvors case cites the New York number II for the broad concept that the Eleventh Amendment does apply in in rem actions.

It has not been limited to the specific holding in the cases many, as Mr. Frederick–

Antonin Scalia:

Why do you think… just to move on there, I mean, there’s a few other issues in the case.

Why do you think this wreck has been abandoned?

Joseph C. Rusconi:

–This wreck has been abandoned because under general maritime law as it’s developed in this country abandonment can be shown through the passage of time and the failure to salvage on the part of the owner.

In this case, we have a claimant who has alleged claim to one-sixth of the cargo, five-sixths of the cargo and the vessel itself having clearly been abandoned.

Antonin Scalia:

Well, let’s assume in the old days, never mind new technology, that a vessel goes down into a coral reef.

It’s simply… there’s no way to get it up from under the coral reef, and 2 years later… so nobody tries to get it up.

2 years later, a hurricane comes through, lifts it up, and it’s floated to the shore.

Has that been abandoned, and the people who own the ship and what’s in the ship have lost all claim to it?

Joseph C. Rusconi:

Under general maritime law, there… as it’s developed there must be objective steps taken by the owner of that ship to try and salvage it.

Antonin Scalia:

If it’s… even if it’s not salvageable?

Joseph C. Rusconi:

Even if it’s not salvageable.

Antonin Scalia:

What case do you cite for that proposition?

Joseph C. Rusconi:

The cases that we cite in–

Antonin Scalia:

You must… the… if I understand, you’re saying the law requires you to do what is obviously not doable, is that it?

Joseph C. Rusconi:

–Yes.

That is the way the it has developed.

Antonin Scalia:

The law requires a vain act.

There’s a new proposition of–

Joseph C. Rusconi:

It’s a unique aspect of abandonment law because in that case–

Antonin Scalia:

–It certainly is.

Joseph C. Rusconi:

–In that case a salvager could come in and take that property and be entitled to a salvage award up to and including the full value of the vessel, and so it’s possible under circum… I’m not saying it’s likely in that case, but it’s possible under the circumstances that by the nonaction or the disappearance of the owner of the vessel that you’re talking about it could be abandoned.

William H. Rehnquist:

Thank you, Mr. Rusconi.

Mr. Frederick, we’ll hear from you.

David C. Frederick:

Thank you, Mr. Chief Justice, and may it please the Court:

Although we agree with petitioners that the courts below misconstrued the Abandoned Shipwreck Act, we disagree with them that the Eleventh Amendment applies because this is not a suit against the State.

The State was not a named party, and the coercive process of the Federal court is not necessary to dispossess State agents of property.

David C. Frederick:

The filing of a claim by a State in an admiralty in rem action does not transform that into a suit commenced or prosecuted against the State within the meaning of the Eleventh Amendment.

Just like in a bankruptcy proceeding, if a State is a creditor the filing of a claim by the State does not transform a bankruptcy action into a suit proscribed by the Eleventh Amendment.

Anthony M. Kennedy:

Was this a case within the admiralty jurisdiction of the court?

David C. Frederick:

This one?

Anthony M. Kennedy:

Yes.

David C. Frederick:

Yes.

Anthony M. Kennedy:

And the ASA does not change that?

David C. Frederick:

No.

The ASA–

Anthony M. Kennedy:

So cases under the ASA are within the admiralty jurisdiction of the–

David C. Frederick:

–No.

What happens is in this case the process, the admiralty process brought this case, this vessel within the admiralty jurisdiction of the court.

At that point, when the court exercises in rem jurisdiction it has to decide among the competing claimants who owns what.

The Abandoned Shipwreck Act says that if the statutory requisites are met, the United States assumes title and transfers it to the State, and at that point the ASA divests the Federal court of admiralty jurisdiction with respect to that property that falls within the requisites of the Abandoned Shipwreck Act.

So at the initiation of the proceeding the court has admiralty jurisdiction, but if it is found that the ASA applies to a part of the wreck, or maybe the whole wreck, at that point the court no longer has admiralty jurisdiction.

Anthony M. Kennedy:

–Does that mean the Eleventh Amendment objection of the State then becomes active, whereas… and a problem, whereas before we could have displaced it by saying that historically in rem admiralty jurisdiction is sufficient to bind the State, but once we’re in… within the Federal question jurisdiction the State then makes the argument that the Eleventh Amendment sort of springs back into play?

David C. Frederick:

That becomes a much more difficult proposition, Justice Kennedy, because what happens in practical effect is that once the State owns it by operation of the Abandoned Shipwreck Act there are other consequences that might flow from admiralty courts’ orders, and it might be appropriate at that point for the State to say that the perpetuation and continuation of the suit is in effect an action against the State.

William H. Rehnquist:

Mr. Frederick, do you agree that if the… if this property were in the possession of the State that the Eleventh Amendment would prevent an in rem adjudication of title?

David C. Frederick:

Yes.

This Court’s precedents historically with respect to foreign sovereigns, States, and the United States make clear that the immunity of the sovereign turns on whether its agents are in actual possession or custody of the property that’s being adjudicated, and there were several practical reasons for that.

The first was that courts recognized that they could not issue coercive process against a sovereign’s agents to dispossess those agents and create a conflict between the court and the sovereign’s agents.

There was also the practical reality that if the property wasn’t in the possession of the sovereign’s agents it likely was not doing the sovereign’s work, and so there was a recognition that, as Chief Justice Waite stated while riding on circuit, that the mere fact that a sovereign claims title to property doesn’t make the property part of the sovereignty.

Sandra Day O’Connor:

Well, under the Abandoned Shipwreck Act, if it applies, if the requirements are met, does that automatically then put the State in possession of the wreck?

David C. Frederick:

No.

No, it does not.

They still have to have State agents who go on to the site and take possession, and it would depend upon the court’s adjudication of that, so–

Antonin Scalia:

Here, I gather they don’t even know where it is.

David C. Frederick:

–That’s correct, Justice Scalia.

Sandra Day O’Connor:

Do… is that true now?

I mean, what has happened?

Sandra Day O’Connor:

Is this thing being explored now by the respondents, and are people going down on behalf of the respondents and recovering property?

David C. Frederick:

Yes, Justice O’Connor, I believe that is the case.

What the court did in this case was–

Antonin Scalia:

They’re doing it at night in the dark?

Is that… why doesn’t the State know where these people are?

David C. Frederick:

–Respondent’s counsel is better positioned to know what its officials and representatives are doing than I am, but what the district court did here, Justice O’Connor, was to draw a circle basically and to say that the shipwreck is somewhere within that circle, and allow the salvage to proceed.

Before turning to abandonment I do want to address just one point, and that’s the sovereignty interests of the State here in terms of regulatory authority.

The State did not appeal the district court’s order with respect to an infringement upon its regulatory authority over salvage, so that question is not properly presented in the questions upon which this Court granted certiorari.

Moreover, it’s clear here that Federal interests might supplant State sovereignty interests if shipwrecks are in certain places.

There was… is an express preservation of rights in the Abandoned Shipwreck Act so that if the Brother Jonathan had sunk below the current site of the Golden Gate Bridge, for instance, and the Army Corps of Engineers needed to clear it out for navigation and national defense purposes, there would be no question that the United States could do that.

Ruth Bader Ginsburg:

Mr. Frederick, I’m just curious about where the Government saw the light, because you made a rather strong argument in the Ninth Circuit that the Eleventh Amendment does apply, and that… and now you’ve switched positions on that.

David C. Frederick:

Justice Ginsburg, when the Court granted certiorari in this case we carefully examined the requisites of immunity and when immunity is appropriate in in rem actions, and the courts since the Treasure Salvors case have been in confusion over whether or not a colorable claim needs to be asserted.

We concluded that that is not a helpful way of analyzing an immunity question when the sovereign is not in actual possession of the property, because this Court’s cases uniformly say that when the sovereign is not in possession the colorable claim analysis is really out of the equation.

Ruth Bader Ginsburg:

So you say Treasure Salvors was wrong?

David C. Frederick:

No.

What we’re saying is that Treasure Salvors is what Treasure Salvors is.

The State agents had possession of property there.

They do not here, and it is a much simpler case when State agents do not have possession of property that is subject to the in rem jurisdiction of the court.

Antonin Scalia:

Mr. Alford, I–

–no, please.

Well, I’m trying to get him onto another subject.

I’d like to get him onto–

David C. Frederick:

Yes, and I… may I–

Antonin Scalia:

–Abandonment, which–

David C. Frederick:

–Yes, I would like to address abandonment, Justice Scalia.

I think technology here has been used by the courts below to displace the inferences that might naturally be drawn by the passage of time.

It would be logical to infer that someone who did not have the technological capability to recapture property has in fact abandoned–

Antonin Scalia:

–Why?

I thought that abandonment was a voluntary, I don’t want this property any more.

Suppose I drop a silver dollar down a grate, and I try to bring it up with a piece of gum on a stick, and I can’t do it, and I shrug my shoulders and walk off because I have not gotten it, and then somebody comes up and lifts up the grate and gets my silver dollar.

Antonin Scalia:

Is that his silver dollar?

Have I abandoned it just because I could not get it?

I still think it’s my silver dollar.

I haven’t said, you know, I don’t want it any more.

David C. Frederick:

–Justice Scalia, if you waited 130 years without attempting–

[Laughter]

–to get your silver dollar, it might be appropriate to infer that you have abandoned it.

Antonin Scalia:

You have the insurance companies who paid off the money and who are still in existence.

David C. Frederick:

Well–

Antonin Scalia:

I don’t see how 130 years makes any difference.

If abandonment requires a voluntary… a willing cessation of claim to ownership, it seems to me that is not demonstra… and that’s why I always thought it was.

That is certainly not demonstrated by leaving a wreck where you cannot possibly bring it up.

David C. Frederick:

–Justice Scalia, in this case respondents don’t even know that it was a silver dollar that they lost.

They purchased something from insurance companies who have no records of what property they insured aboard the shipwreck, so to use your analogy, they’re searching for something in the grate, but they don’t know what it is.

Antonin Scalia:

Well, but that’s a different issue as to whether… that’s the issue of who owns it.

David C. Frederick:

No.

Antonin Scalia:

But not the issue of whether the person who owns it has abandoned it or not.

David C. Frederick:

You have to know what property you own before you can know whether or not you did not abandon it.

Stephen G. Breyer:

But your answer, your answer to Justice Scalia… because he’s saying voluntary abandonment.

You’re arguing for two things, voluntary abandonment or the passage of time.

Now, you said 130 years, but apparently with his grate it’s just 3 minutes, and you seem to make some… quite a lot of that, and I want to know what the standard is precisely.

Is it the 2-year hurricane?

Is it the 3 minutes at the grate?

Is it 130 years?

Exactly, in your view, when does the passage of time, in and of itself, amount to an abandonment?

What’s the standard?

David C. Frederick:

Justice Breyer, I can’t give you a firm time.

It’s all based on the–

Stephen G. Breyer:

Give me a hint.

What’s the legal–

Stephen G. Breyer:

[Laughter]

What’s the legal standard?

We’ll have to write something.

There has to be something in words.

David C. Frederick:

–No.

No, you–

Antonin Scalia:

What about lives in being plus 21 years?

That sounds pretty good.

I don’t think you need answer that question.

[Laughter]

Mr. Alford.

Fletcher C. Alford:

Thank you, Mr. Chief Justice, and may it please the Court:

I think it’s quite clear that this case is properly before the admiralty jurisdiction of the Federal court.

Indeed, the Federal admiralty court is the only court where such an action could have been brought.

This Court has consistently held that admiralty in rem actions against shipwrecked vessels are uniquely and exclusively within the jurisdiction of the Federal courts, and this Court has never held that a sovereign, simply by asserting the claim of ownership to the res in the possession of the court divests the court of its constitutionally mandated exclusive jurisdiction.

Rather, this… a long line of this Court’s jurisprudence stands for the proposition that only where the property is within the actual physical possession of the sovereign is the action at that point deemed to be an action against the sovereign itself.

Where the property is not in the actual possession of the sovereign, the rule is that the case may go forward and the sovereign, if it wishes to do so, may enter into the suit and assert a claim and prove that claim just like any other claimant in the world.

David H. Souter:

You don’t want to go the whole hog and say that in fact there simply is no Eleventh Amendment applicability to an admiralty in rem action?

Fletcher C. Alford:

Your Honor, I do not think that is consistent with this Court’s cases, and I certainly don’t think it’s necessary to decide this case.

I think it would be appropriate to decide this case on a narrower rule that–

David H. Souter:

A possession rule.

Fletcher C. Alford:

–A possession rule, that’s right, Your Honor, and the possession rule has been applied not only to States but also to foreign sovereigns and to the Federal Government and, you know, the question is, why should any different rule apply to the States?

William H. Rehnquist:

What does the possession rule mean, strictly speaking?

Supposing there’s a State marina with State water police boats in it, and there’s an admiralty action brought against… to adjudicate title in one of those boats, but actually it isn’t owned by the State, but it’s in this State-owned marina.

Now, would that be in the possession of the State, or does it have to be actually owned by the State?

Fletcher C. Alford:

Well, I don’t think possession and ownership necessarily have to be equated, Your Honor.

I think, if I understand Your Honor’s hypothetical correctly, this is a situation where a slip in a State-owned marina is leased to a private party.

William H. Rehnquist:

Right.

Fletcher C. Alford:

Then certainly in that case the private party would be deemed to be the one in possession of the boat that is in the slip that it has leased from the Government, but–

John Paul Stevens:

Well, can I just vary the Chief Justice’s question a little?

John Paul Stevens:

It seems to me that under your rule it would be wise, if States want to get control of these abandoned vessels, or sunken vessels, as soon as they hear about it, send the local police out in the appropriate vessels and just take possession, and then let the litigation go forward.

Doesn’t this… doesn’t your rule encourage States to use self help in these situations?

Fletcher C. Alford:

–Well, Your Honor, no, I don’t think so.

I think our rule encourages States to locate these wrecks if they want to exercise control over them, and I think that’s certainly the purpose of the Abandoned Shipwreck also, which was to encourage States to locate these wrecks and, indeed, the Abandoned Shipwreck Act requires States to give public notice of the location of wrecks to which it claims title under the ASA, so I think this encourages States, if they really want to exercise dominion over these wrecks, to at least locate them.

That’s a fundamental threshold issue, and–

David H. Souter:

But if they had located them, and had sent a diver down affixing a sign saying, claimed by the State, that would be enough for the possession rule, would it?

Fletcher C. Alford:

–Well, Your Honor, I think so.

In the Navemar, for instance, in a foreign sovereign immunities context, this Court defined actual possession as some act of physical dominion or control, so at a threshold, certainly the State would need to know where the wreck is located.

I mean, it’s absurd to say that the State has possession of something and it doesn’t even know where it’s at, it can’t find it, so that has to be a threshold issue.

Antonin Scalia:

Well, maybe it doesn’t have to send a diver down.

It could just go and drop a big rock.

I mean, get right above it and drop a big rock that says the State owns this.

[Laughter]

Fletcher C. Alford:

Well, Your Honor, there has to be some act of physical dominion and control.

Antonin Scalia:

Well, I mean, the rock hits the… it lands right on the deck.

[Laughter]

That’s physical.

What about putting a buoy, as divers often do.

Yes.

Putting a buoy on the surface, above where the wreck is.

Fletcher C. Alford:

Your Honor, I do think that would be sufficient.

If the State knew where the wreck was located and marked it as State property, I think that would be sufficient, but that is… it’s undisputed that that has not happened here.

Antonin Scalia:

Well, you’re not talking about possession, then.

You’re just simply… an assertion of ownership.

Is that the same thing as possession?

Fletcher C. Alford:

No, Your Honor.

I think–

Antonin Scalia:

I thought possession and an assertion of ownership are two different things.

Fletcher C. Alford:

–They absolutely are, Your Honor, but taking physical… some act that shows physical dominion over the property I think is possession.

Sandra Day O’Connor:

Well, why would posting a buoy above it be an act of possession?

Fletcher C. Alford:

Well, Your Honor, traditionally that’s the way that it’s indicated in the admiralty law with the case of sunken property.

For instance, a salvor, when it locates a shipwreck, often posts a buoy on the site and, in the traditional Federal admiralty law, when the court arrests sunken property it often puts a buoy on the site with the arrest papers on the buoy, so I think by analogy, if the State were to locate the wreck and mark the wreck with its sign in some way, then I think that would be possession.

Sandra Day O’Connor:

Are you going to talk about the abandonment issue?

Fletcher C. Alford:

Yes, Your Honor.

The State and the Federal Government suggest that there’s some dispute or uncertainty about the definition of abandonment.

I disagree.

I think abandonment is a fundamental, well-known concept in the common law.

As Justice Scalia noted, it has to be some type of voluntary relinquishment of ownership to property.

If it’s not a voluntary relinquishment, then it’s a taking, so there has to be some indication of a voluntary relinquishment of title.

David H. Souter:

Well, can we infer a voluntary relinquishment simply on the basis of insufficient activity to pursue the claim?

In other words, I don’t… I assume I don’t have… one way to abandon would be to stand there and say, I wash my hands of it.

I want nothing more to do with it.

But another way, I suppose, would be simply to do nothing for too long a period of time in which the relinquishment would be inferred.

Do you agree there?

Fletcher C. Alford:

I agree certainly, Your Honor, that abandonment can be inferred from the circumstances.

I do not agree that simply the passage of time without any kind of notice would be sufficient.

I think that would be a due process problem.

I think it would also be a takings problem.

For instance, in this case–

John Paul Stevens:

But you have it in your adverse possession all the time in real estate.

If somebody else gets on your land and stays there whatever the period of time is, you’ve lost it.

Fletcher C. Alford:

–That’s true, Your Honor, but it’s my understanding in those cases that the possession has to be open and notorious, such that it would give any claimant notice that another person is occupying the property, and that’s certainly not the case here.

I think there’s a fundamental distinction–

Anthony M. Kennedy:

Well, except you know you’ve lost something.

Fletcher C. Alford:

–You certainly know you’ve lost something, Your Honor, that’s correct.

Anthony M. Kennedy:

Under your rule, I… if there has to be some voluntary act relinquishing all claim of title, I suppose that no one would ever do that.

Fletcher C. Alford:

Well, Your Honor–

Anthony M. Kennedy:

You’d teach a child when you’re 3 years old, don’t ever abandon that dollar in the steam grate, because some day it might be yours.

I’m not sure the law requires that.

Fletcher C. Alford:

–I agree with Your Honor.

Fletcher C. Alford:

I do not think the law requires any kind of explicit act, and I think the lower courts did not interpret the law in that manner, but in any event, it requires some evidence of a voluntary relinquishment of ownership.

It doesn’t require an explicit statement, but some evidence of intent on the part of the original owner to relinquish ownership.

Stephen G. Breyer:

What about the Park Service that they quote in the amicus brief?

The Park Service in the House report say that you could indicate that intent in one of two ways at least.

There may be others.

But one way is that you never assert any control and, of course, there they couldn’t do it.

The technology wasn’t there.

And the other way was not otherwise indicating a claim, i.e., you didn’t mark it.

And I guess, suppose 100 years passes and nobody says anything.

They don’t have to get a submarine, but they could at least announce, you know, put a buoy up or do something, and if they don’t have to do anything like that, how would we ever decide these cases?

There could be a million heirs.

You know, there could be 10 million heirs from the year 1520, each of which owns a nickel’s worth of gold.

I mean, why don’t you have to at least say that you want to keep it?

Fletcher C. Alford:

Well, Your Honor, there has to be some evidence that there is a relinquishment of ownership or, on the converse, there has to be some evidence.

Stephen G. Breyer:

The evidence is, they never marked it.

The evidence is, 130 years passed, and not only didn’t they go there, which is understandable, but they never even said to anybody, even in their annual report, or even passing it down by family tradition, or even putting up a buoy or a flag, they did none of that.

Fletcher C. Alford:

Well, Your Honor, the problem is we don’t know whether that’s this case.

We simply don’t know, and–

Anthony M. Kennedy:

Well, so far as the standard is concerned, are you… are we trying to find a subjective state of mind, or are we trying to determine what objectively is reasonable so far as ownership of ancient property?

Fletcher C. Alford:

–Well, Your Honor, I think it’s part of both.

I think there has to be some subjective intent to relinquish ownership, but it certainly can be proven by objective factors.

Anthony M. Kennedy:

Well, subjective, I’m never sure… I’m not sure you’re ever going to be able to show it.

Fletcher C. Alford:

I think you can, Your Honor.

I think it would be appropriate in certain circumstances to infer from all the facts that the original owner had an intent to abandon the property.

Antonin Scalia:

You don’t mean subjective.

You wouldn’t really insist that if I had a secret subjective intent not to abandon ownership, but I… all my actions suggest the contrary, that I have an abandonment.

Fletcher C. Alford:

Well, Your Honor, I think the fundamental issue is, is the owner’s intent, but certainly the court can look to objective factors and–

Antonin Scalia:

So your answer to my question is yes.

If I have a secret intent, and I even… I put a sign on it that says, I don’t own this any more.

I don’t care about it.

Antonin Scalia:

I have a sign on it.

But deep in my heart, I really do care.

[Laughter]

My real intent is that I… you wouldn’t say that, would you?

Fletcher C. Alford:

–No, Your Honor.

Antonin Scalia:

Of course not.

So it isn’t the subjective intent that matters.

It’s the objective manifestations.

Fletcher C. Alford:

That’s right.

I think it’s the objective manifestations of a subjective intent.

William H. Rehnquist:

Well, but that’s exactly contrary to the–

If you say that the objective manifestations are useful only as a basis from which one can infer subjective intent, you’re saying that the basic criterion remains subjective intent.

Now, in the light of Justice Scalia’s withering example do you still–

[Laughter]

Do you still adhere to that?

Fletcher C. Alford:

If I understand Your Honor’s question correctly, yes, I think it is… ultimately that subjective intent is the key issue, but it can be proven by objective factors.

William H. Rehnquist:

Well, so here, whose intent do we look for?

Is it the chief executive officer of the various insurance companies in the year 1868, or whenever it was that the Brother Jonathan went down?

Fletcher C. Alford:

I think it’s that, Your Honor, but it’s also more.

It’s the present claimants, and I think that’s one of the problems here.

At this early stage in the litigation I submit that the district court had no choice but to–

William H. Rehnquist:

Well, the present claimants claim only by virtue of an assignment from the insurance company, don’t they?

Fletcher C. Alford:

–No.

There are other claims as well, Your Honor.

For instance, the United States claims that it had original title to the property.

William H. Rehnquist:

Yes, but don’t your clients, or at least some of them, claim by virtue of assignment from the insurance company?

Fletcher C. Alford:

That’s correct, Your Honor.

They also have a salvage claim which is not an ownership claim–

William H. Rehnquist:

Yes, but–

Fletcher C. Alford:

–but it’s a claim based on Federal law.

William H. Rehnquist:

–let’s analyze the claim that you get by assignment from the insurance company.

Is it the intent of some person or persons at the insurance company in 1868 that we look for?

Fletcher C. Alford:

I think it’s the intent of the company as a whole, Your Honor, and I think–

William H. Rehnquist:

And how do we find that out?

Fletcher C. Alford:

–Factors that the court can consider… well, I think it would be inappropriate for the Court to constrain the district court’s discretion in this regard, but, for example, factors the district court might consider are whether the insurance company’s ever made any effort to locate the vessel–

William H. Rehnquist:

Well, now we’re talking about objective factors.

Fletcher C. Alford:

–That’s right.

William H. Rehnquist:

But you say the subjective intent we’re looking for is the,

“the intent of the company as a whole? “

Fletcher C. Alford:

That’s correct, Your Honor, but as evidenced by objective factors, and I think the objective factors in this case, for instance, could include whether the company ever made any effort to locate the vessel, whether they… whether it was technologically feasible for them to locate the vessel, whether they wrote it off as a loss on their books–

Anthony M. Kennedy:

It seems to me we can almost take judicial notice that no one, especially an insurance company, ever wants to give up claim of ownership to anything it might have.

[Laughter]

Fletcher C. Alford:

–Well, Your Honor, I assume that’s true, but again I think there’s a fundamental distinction here between property that’s lost and property that is abandoned, and property that’s lost is not necessarily abandoned.

There’s no doubt this wreck was lost to the original owners, but the question is, has it been abandoned by them, and I think Justice–

Sandra Day O’Connor:

Well now, let’s talk specifically about the property here.

The ship contained considerable property.

Only part of it was property that was covered by insurance, I take it.

Fletcher C. Alford:

–That’s correct, Your Honor.

That was indicated in one newspaper article, but that’s another problem.

Sandra Day O’Connor:

And so do we look at specific pieces of property to determine whether that property has been abandoned, or do we treat it as a whole somehow?

Fletcher C. Alford:

Your Honor, I think it has to be treated as a whole, particularly under the ASA.

Sandra Day O’Connor:

Why?

I mean, I would think if you have cargo, discrete cargo and it was different types of things… you were carrying gold bullion that belonged to the United States, and you were carrying something else of value that belonged to other people… conceivably you might have some of it abandoned and others not.

Fletcher C. Alford:

Your Honor, under the Abandoned Shipwreck Act, section 2102(e), I believe, of the act, it defines a shipwreck as

“a vessel or wreck, its cargo and other contents. “

A single, unified entity.

It doesn’t parse the wreck up into separate pieces.

It says that a shipwreck is a single thing.

Antonin Scalia:

Well, which way do you treat it?

You say you treat it as a unit.

Antonin Scalia:

Does that mean if some of it is not abandoned, all of it is not abandoned, or does it mean that if some of it is abandoned, all of it is abandoned?

Fletcher C. Alford:

Your Honor, I think–

Antonin Scalia:

Is there any reason to pick one rather than the other?

Fletcher C. Alford:

–Well, there is, Your Honor, because–

Antonin Scalia:

What’s that?

Fletcher C. Alford:

–Because if the court finds that because part of the property was abandoned the entire property is abandoned, then you certainly have a takings problem, particularly in a context like this, where no notice was given to particular claimants.

Antonin Scalia:

I see.

Fletcher C. Alford:

That’s why it was essential for the district court to find at this stage that the wreck was not abandoned, because there was no notice to potential claimants.

Sandra Day O’Connor:

Was that a preliminary finding of some kind?

I thought the district court didn’t really resolve that issue.

Fletcher C. Alford:

That’s correct, Your Honor.

The district court found that it was convinced the wreck was not abandoned, but it was not prepared to say that specific items of property either were or were not abandoned, because again the court stressed that notice had not been given to potential claimants, and that once notice had been given to the world by publication, claimants might continue to come forward.

Sandra Day O’Connor:

How do you read the Ninth Circuit opinion on the abandonment issue?

Did it go further than the district court?

Fletcher C. Alford:

I don’t think the Ninth Circuit did, Your Honor.

I think the Ninth Circuit simply affirmed the district court’s finding that at that stage of the litigation the district court could not say that the wreck was abandoned because no notice had been given to any potential claimants.

And in fact the district court’s judgment in this regard has been validated, because potential claimants have continued to come forward since publication of the notice, and it would have been entirely premature at that stage of the litigation for the district court to say that the property was abandoned and therefore cut off all potential claimants.

John Paul Stevens:

May I ask you, under your view of abandonment, was the gold in the hull of the ship that was involved in the Treasure Salvors case abandoned by the Spanish?

Fletcher C. Alford:

Your Honor, I–

John Paul Stevens:

There’s no evidence of affirmative, you know, voluntary relinquishment of interest in all that money.

Fletcher C. Alford:

–Right.

I don’t completely know the facts of that case, but as I–

John Paul Stevens:

Well, let me give them to you, then.

A ship is found that went down in 14 or 1500, somewhere back… loaded with gold that everybody knew belonged to Spain at the time the ship went down.

Was it abandoned, or not?

That’s all you know.

Fletcher C. Alford:

–I believe so, Your Honor, because it’s my understanding the Government did not come forward after notice in that case.

In other words–

John Paul Stevens:

The abandonment took place after the finding of the vessel, then.

Fletcher C. Alford:

–Well, the finding of abandonment was appropriate once the court issued notice to the public and no claimants came forward.

John Paul Stevens:

No, but I don’t… the word finding was bad.

The time the abandonment occurred was after the discovery of the vessel.

Is that your view?

Fletcher C. Alford:

I don’t know the answer to that question, Your Honor.

I’m sorry.

John Paul Stevens:

It seems to me it’s precisely the same situation we have here, except instead of Spanish gold it’s American dollars.

Fletcher C. Alford:

Well, the critical difference, Your Honor, is that in Treasure Salvors notice was given to the public and no one came forward claiming ownership.

That is perhaps–

William H. Rehnquist:

But that’s almost a default type of thing rather than abandonment, isn’t it?

Fletcher C. Alford:

–Well, Your Honor–

William H. Rehnquist:

Default of judicial proceedings.

Fletcher C. Alford:

–That’s true, Your Honor.

I think that abandonment could be found by default in that circumstance.

William H. Rehnquist:

Well, no.

I’m suggesting that you can have a concept of default in a judicial proceeding, failure to appear and assert a claim, that may have nothing to do with historical abandonment.

Fletcher C. Alford:

That’s correct, Your Honor, but I think the issues are related in at least one respect and that is, in a sense, if notice was given to the public and no one comes forward claiming the property, that is, I think, powerful evidence that the property is abandoned.

It’s not only a legal default, but I think it also goes to evidence of intent to relinquish ownership of the property.

No one’s come forward to claim it.

Stephen G. Breyer:

But if we have a rule like the Ninth Circuit rule, which is bothering me, what we do about the Ninth Circuit’s statement?

Their statement seems to be that if a long time passes, hundreds of years, and nobody does anything, it’s not abandoned.

Now, if that’s the rule, then I guess once we announce it you won’t have problems with people coming forward.

Maybe I have a claim.

Who knows?

There may be thousands of people who have little bits of claims, and they’ll all come forward.

Why do we think any bit of this was abandoned?

And so why do we think there’s parts that wasn’t abandoned?

They just don’t know they have a right to it yet, but they’ll know.

Now, my question is, am I right in that worry, and if so, what do you think we should do about it?

Fletcher C. Alford:

No, Your Honor, I do not think you’re right in that worry.

Again, claimants have to come forward and prove their claims.

Fletcher C. Alford:

It’s not enough for them to come forward and say, I understand that property is never abandoned, therefore I own a piece of it.

They would be required to prove that they–

Stephen G. Breyer:

No, no, somebody’s great-great-grandmother had some cargo and she left a will, and those things can be traced.

I overstated hundreds.

It’s only 130, 135 years ago, whatever, and those things can be traced through wills and so forth.

It’s those thousands of people now, perhaps divided as property passed intestate.

It’s those, not millions of people but hundreds or thousands that might come forward.

That’s my worry.

Fletcher C. Alford:

–Well, Your Honor, I think the passage of time in itself, without anything more, is not sufficient to infer abandonment where claimants actually come forward.

The loss should not start with a presumption that the property is abandoned.

California speaks in its brief about a presumption of abandonment.

There’s absolutely no authority for that position.

I think that if claimants come forward they ought to be allowed to prove their claim, and–

Anthony M. Kennedy:

That’s consistent with what I take it to be your answer to Justice Stevens.

I just infer this, that if the Spanish Government had come forward that would have been sufficient, even though they had done nothing for 500 years.

Fletcher C. Alford:

–No, Your Honor.

Anthony M. Kennedy:

And that seems to me a very extraordinary position.

Fletcher C. Alford:

No, Your Honor.

The fact that they simply come forward is not enough in itself to prove not abandoned… nonabandonment.

My point, however, inartfully made, perhaps, was that before we even give notice–

Anthony M. Kennedy:

Would it be fair to say that it’s your point that the Spanish are not foreclosed unless it has been shown that they affirmatively took some act to abandon?

Fletcher C. Alford:

–No, Your Honor.

I don’t think abandonment needs to be proven by some affirmative act.

It can be proven by inference from the circumstances, and that was certainly recognized by the lower courts here.

Sandra Day O’Connor:

Now, if, in fact, this shipwreck was abandoned, if at the bottom line that’s the finding, then your clients are just out, I take it.

They get no salvage rights because the Federal act eliminates that.

They get no finder’s law, because it eliminates that.

They’re just out.

They will have done all of this work, made all of this effort, and they will get nothing.

Is that the bottom line if the wreck is determined to be abandoned?

Fletcher C. Alford:

That’s exactly correct, Your Honor, because of the operation of the Abandoned Shipwreck Act.

John Paul Stevens:

May I ask just one other question?

Or, I guess, two parts to this.

One, is it perfectly clear that the term abandoned in this statute has the same meaning it had at admiralty law before the statute was enacted?

That’s my first question.

My second question is, is it not likely that Congress assumed that this statute would apply to a lot of sunken vessels, and if we adopt your view of abandonment, it won’t apply to any?

Fletcher C. Alford:

Well, Your Honor, on the first question, I think we have to start from the presumption that Congress did not intend to change the fundamental concept of abandonment that has been applied for years both in the common law and in the general maritime law, and indeed that Congress is not free to define abandonment in some way other than as a voluntary process, and there’s no evidence, certainly, in the legislative record that Congress intended to depart from the traditional standard of abandonment.

Certainly–

John Paul Stevens:

But there is evidence that they thought the statute would apply to a large number of vessels.

Fletcher C. Alford:

–That’s correct, Your Honor.

John Paul Stevens:

And I don’t think, under your view, it would apply to any.

Fletcher C. Alford:

Well, I respectfully disagree, Your Honor.

Again, if no claimants come forward, then certainly the court would be justified in finding, both as a matter of default and as a matter of evidence, that the property is abandoned.

Ruth Bader Ginsburg:

But that’s the line that you draw… for example, the United States.

The United States didn’t do anything to get the gold.

All it did was, when it found out it was there, it filed a claim.

Fletcher C. Alford:

Well, we don’t know yet, Your Honor, and that’s the problem.

That’s the essential feature here.

Ruth Bader Ginsburg:

But suppose that’s the case.

Suppose the United States was just sitting there doing nothing about this, thinking that ship would never be found, but the moment it was found, put in a claim, would you say that the United States, because it had done absolutely nothing, is not claiming that it’s done anything… it abandoned it because it didn’t step forward until someone else found the vessel, and then it said, we have stuff on it.

Fletcher C. Alford:

Your Honor, an inference of abandonment might well be appropriate in those circumstances.

Antonin Scalia:

Well, not against a sovereign.

Sovereigns have covered this, haven’t they?

Fletcher C. Alford:

Well, that’s true.

The United States says that it has–

Antonin Scalia:

Abandonment never applies against a sovereign.

Fletcher C. Alford:

–That’s right, but barring that, that complication, I think an inference of abandonment would be appropriate.

Antonin Scalia:

The United States might well be on the other side of this issue if there were not that convenient rule.

Fletcher C. Alford:

That’s correct, Your Honor.

[Laughter]

Sandra Day O’Connor:

But you say it’s all or nothing, that the fact that the Federal Government hasn’t abandoned the gold under legal theory means nothing, because we’re going to look at this as one unit.

Fletcher C. Alford:

Well, Your Honor–

Sandra Day O’Connor:

And it’s just too bad for the United States.

Fletcher C. Alford:

–No, to the contrary, Your Honor, the United States claim is preserved.

They have a claim here, and they are certainly capable of proving that.

Sandra Day O’Connor:

But your position was that it can’t… it isn’t severable, that the abandonment is of the wreck and all it’s contents, or nothing.

Fletcher C. Alford:

Well, Your Honor.

Sandra Day O’Connor:

It’s all or nothing.

That was what you told me.

Fletcher C. Alford:

It’s all or nothing if one–

Sandra Day O’Connor:

Can’t parcel it out.

Can’t determine that the gold bars belong to the Federal Government and it’s still theirs.

Can’t do that.

Fletcher C. Alford:

–Your Honor, I partly agree with that, and I say partly because it would be inappropriate for this Court to say that because part of the property on the wreck is abandoned the whole thing is abandoned.

That would constitute a relinquishment of the rights of the owners.

William H. Rehnquist:

Thank you, Mr. Alford.

Fletcher C. Alford:

Thank you.

William H. Rehnquist:

The case is submitted.