A Shipwreck and Sovereign Immunity

by Duncan Hollis

Over the last year, we’ve hosted a number of discussions centered on immunity issues and how US courts deal with them.  For the most part, however, these discussions focused on individuals claiming immunity from becoming the subject of criminal or civil proceedings.  Last week, however, the 11th Circuit gave us a very different type of immunity case — the sovereign immunity a State has over its naval shipwrecks.  In 2007, Odyssey Marine Exploration, Inc. discovered the remains of a 19th Century Spanish vessel in international waters west of the Straits of Gibraltar.  It instituted admiralty proceedings in Florida to effectuate its claim to the sunken treasure it found there (including thousands of silver coins being transported at the behest of private Spanish interests) and the vessel’s remains. Spain, among others then intervened, claiming the vessel was the Mercedes, part of a Spanish squadron that had met the following fate:

On the morning of October 5, 1804, when the Spanish squadron was only one day’s sail from Cadiz, it was intercepted by a British squadron. Four Royal British Navyships, under the command of Commodore Graham Moore, had been sent by the British Navy Admiralty to intercept Spanish warships transporting treasure back to Spain. The Spanish frigates, having sighted the British frigates headed towards them, assumed a combat formation. A British officer was sent aboard [one of the Spanish vessels] and informed the Spanish that the British King had ordered the British Navy to detain the Spanish squadron and take it to England. The Spanish refused the British order, and what was to become known as the Battle of Cape Saint Mary soon commenced. Only a few minutes after the battle began, the Mercedes exploded. . . Except for fifty sailors, everyone aboard the Mercedes was killed . . . The remaining three Spanish frigates surrendered and were taken by the British squadron to England.  Partly as a consequence of the Battle of Cape Saint Mary, Spain declared war against Great Britain and entered into the Napoleonic Wars as an ally of France.

Based on the wreck’s identity as the Mercedes, Spain asserted sovereign immunity over the res of not only the vessel, but its cargo.  Odyssey objected as to the identity of the ship, the application of sovereign immunity to its cargo, and invoked a commercial activity exception to any immunity findings.  The District Court, however, concluded the res was the Mercedes and that it was entitled to sovereign immunity.

On appeal, the 11th Circuit affirmed the District Court decision that the vessel was the Mercedes and that Spain was entitled to a presumption of immunity under Section 1609 of the Foreign Sovereign Immunities Act:

Section 1609 of the FSIA states: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment[,] arrest[,] and execution except as provided in sections 1610 and 1611 of this chapter.”  28 U.S.C. § 1609.  The Mercedes is Spain’s sovereign property that is within the United States.  While the Mercedes itself is not within the United States, that alone does not defeat the court’s ability to obtain jurisdiction over it.  A court may have either actual or constructive possession over the res . . . A salvor is thus able to bring a shipwreck found in international waters constructively within a court’s territorial jurisdiction by having a portion of the shipwreck within the jurisdiction.  R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943,967-69 (4th Cir. 1999) (concluding a shipwreck found in international waters can “constructively” be considered within the jurisdiction of the district court, although the district court’s sovereignty over the wreck is a “‘shared sovereignty,’ shared with other nations enforcing the same [law of all nations]”).  Odyssey has deposited parts of the Mercedes with the district court, constructively bringing the shipwreck within the court’s territorial jurisdiction.  Because this is an in rem action based on the arrest of sovereign property, § 1609 provides the Mercedes with presumptive immunity from arrest.

Odyssey did not invoke either of the statutory exceptions to Section 1609, but instead invoked the “subject to existing international agreements” language in Section 1609, arguing that the 1958 High Seas Convention’s restrictive approach to immunity should govern the case.  The Court disagreed, finding that, for Spain, “providing protection and safe passage to property of Spanish citizens was a military function of the Spanish Navy, especially in times of war or threatened war.”

All of the foregoing seems pretty sensible with respect to the Spanish vessel, but why give the cargo the same immunity if it hadn’t actually belonged to Spain?  The 11th Circuit invokes a 1902 Treaty as requiring it to do so:

In 1902, the United States and Spain signed a treaty mandating “[i]n cases of shipwreck . . . each party shall afford to the vessels of the other, whether belonging to the state or to individuals, the same assistance and protection and the same immunities which would have been granted to its own vessels in similar cases.” 1902 Treaty of Friendship and General Relations Between the United States of America and Spain, art. X, July 3, 1902, 33 Stat. 2105.  Under this treaty, the United States must afford the Mercedes, as a shipwrecked Spanish warship, the same protection it would give a shipwrecked United States military vessel.  The United States considers the cargo of a shipwrecked U.S. military vessel part of the shipwreck and gives it the same immunities as the shipwreck.  Under the [Sunken Military Craft Act], the rights, title and interest of the United States in any sunken military craft are protected absent an “express divestiture of title.”  § 1401, 118 Stat. at 2094. The definition of a “sunken military craft” includes a sunken warship or other military vessel, as well as “all or any portion of . . . the associated contents of a craft.”  § 1408(3)(C), 118 Stat. at 2098.  “Associated contents” are defined as “the equipment, cargo, and contents of a sunken military craft that are within its debris field . . . [and] the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.”  § 1408(1), 118 Stat. at 2097 (emphasis added).  Thus, under the 1902 treaty, the Mercedes and its cargo are entitled to the same immunities provided by the SMCA.

It’s an interesting opinion, both for the close statutory analysis of the FSIA, but also for giving judicial effect to the 1902 treaty (albeit, I assume, because Section 1609 requires that effect, although its possible I suppose one might alternatively see the 1902 Treaty as self-executing).  I wonder what those readers expert in sovereign immunity issues make of this case?


One Response

  1. Would I be right in thinking that the Court required full proof that the ship in question really was the Mercedes, and was therefore Spanish state property?
    As I understand it, British practice on this point is somewhat different. There, immunity in rem does not require that the foreign state prove its title to the rem at issue, because the immunity of the foreign state is considered to prevent just that decision. The Court cannot determine whether the foreign state has title, so its jurisdiction is ousted by less than full proof of title.
    That does not mean, however, that a mere claim of title is enough. Rather, English law is (I believe) encapsulated by this passage from the case of Ysmael & Co. Ltd. v. Government of the Republic of Indonesia [1955] AC 72 (PC) (at p 4 of the pdf):
    “In their Lordships’ opinion the view […] that the mere assertion of a claim by a Foreign Government the subject of an action compels the Court to stay the action and decline jurisdiction is against the weight of authority, and cannot be supported in principle. In their Lordships’ opinion a Foreign Government claiming that its interest in property will be affected by a judgment in an action to which it is not a party, is not bound as a condition of obtaining immunity to prove its title to the interest claimed but it must produce evidence to satisfy the Court that its claim is not merely illusory, nor founded on a title manifestly defective. The Court must be satisfied that conflicting rights have to be decided in relation to the Foreign Government’s claim. When the Court reaches that point it must decline to decide the rights and must stay the action, but it ought not to stay the action before that point is reached.”
    This test has survived the change from absolute to qualified immunity; see I Congreso del Partido [1978] 1 QB 500, 519-20 (Goff J).
    The logic of not requiring full proof of title seems seductive, but I suppose it is also proper to decline jurisdiction only if there really are foreign sovereign interests involved. Is there a concluded line of U.S. authority on this point?

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