No. 96-1400 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 STATE OF CALIFORNIA AND STATE LANDS COMMISSION, PETITIONERS v. DEEP SEA RESEARCH, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES AS A RESPONDENT SUPPORTING PETITIONERS IN PART WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General STEPHEN W. PRESTON Deputy Assistant Attorney General DAVID C. FREDERICK Assistant to the Solicitor General ROBERT S. GREENSPAN RICHARD A. OLDERMAN Attorneys Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED Under the Abandoned Shipwreck Act of 1987 (ASA), 43 U.S.C. 2101 et seq., the United States takes title to cer- tain abandoned shipwrecks and then transfers title to the States "in or on whose submerged lands the shipwreck is located." 43 U.S.C. 2105(c). In this case petitioner State of California intervened in an in rem action to assert title, under the ASA, to a shipwreck located on the State's sub- merged lands. The State then claimed that its Eleventh Amendment immunity divested the federal district court of jurisdiction. The questions presented are: 1. Whether a State must carry any evidentiary bur- den in an admiralty in rem proceeding to make a claim that, because it has title to a shipwreck under the provi- sions of the ASA, a federal district court is thereby divested of jurisdiction under the Eleventh Amendment. 2. Whether the lower courts correctly held that the vessel in question was not abandoned within the meaning of the ASA. 3. Whether the ASA preempts Section 6313(a) of the California Public Resources Code (West Supp, 1997), which confers on the State title to "all abandoned ship- wrecks and all archaeological sites and historic resources on or in the tide and submerged lands of California." (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 A. The law of salvage and finds . . . . 2 B. The Submerged Lands Act and conflicts over the ownership of shipwrecks . . . . 3 C. The Abandoned Shipwreck Act of 1987 . . . . 6 D. The proceedings below . . . . 9 Summary of argument . . . . 14 Argument: I. In an in rem action brought in admiralty to establish title to a vessel, a State is not entitled to sovereign immunity if the vessel at issue is not in its actual possession . . . . 17 A. The showing required of a sovereign asserting ownership in an in rem action turns on whether the sovereign has actual possession of the vessel or its cargo . . . . 18 B. Petitioners have not established immunity from this in rem action . . . . 30 II. The court of appeals erred in its assessment of whether the Brother Jonathan and its cargo were "abandoned" . . . . 33 A. An inference of abandonment under the ASA may be drawn from an absence of efforts to recover or claim the vessel . . . . 33 B. The court of appeals erred in its approach to the abandonment question . . . . 39 C. Application of the appropriate standard in this case . . . . 45 (III) ---------------------------------------- Page Break ---------------------------------------- IV Page III. The ASA does not preempt state statutes asserting title to shipwrecks abandoned in state waters . . . . 46 Conclusion . . . . 50 TABLE OF AUTHORITIES Cases: American Dredging Co. v. Miller, 51 U.S. 443 (1994) . . . . 50 Atascadero State Hosp. v. Scanlon, 473 U. S. 234 (1985) . . . . 18, 25 Bemis v. RMS Lusitania, 884 F. Supp. 1042(E.D. Va. 1995), aff'd, 99 F.3d 1129(4th Cir. 1996), peti- tion for cert. pending, No. 96-1448 . . . . 42 Chance v. Certain Artifacts Found and Salvaged From The Nashville, 606 F. Supp. 801(S.D. Ga. 1984), aff'd, 775 F.2d 302 (1lth Cir. 1985) . . . . 7 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S.837(1984) . . . . 33 Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F. Supp. 186(S.D. Fla. 1981) . . . . 5 Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450(4th Cir. 1992), cert. denied, 507 U.S. 1000 (1993) . . . . 41-42 Commonwealth v. Maritime Underwater Surveys, Inc., 531 N.E.2d 549 (Mass. 1988) . . . . 4-5, 36 Compania Espanola de Navegacion Maritima v. The Navemar, 303 U.S. 68 (1938) . . . . 26, 28 Cope v. Vallette Dry-Dock Co., 119 U.S. 625 (1887) . . . . 2 Dugan v. Rank, 372 U.S. 609 (1963) . . . . 26 Eads v. Brazelton, 22 Ark. 499 (1861) . . . . 3 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Fairport Int'1 Exploration, Inc. v. Shipwrecked Vessel Known as the Captain Lawrence 105 F.3d 1078 (6th Cir. 1997), petition for cert. pending, No. 96-1936 . . . . 35-36 Ferguson v. Ray, 77 P. 600 (Or. 1904) . . . . 4 Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (5th Cir. 1989) . . . . 5 Florida Dep't of State v. Treasure Salvers, Inc., 458 U.S. 670 (1982) . . . . 18, 26, 27, 30 Ford Motor Co. v. Department of Treasury, 323 U.S. 132 (1945) . . . . 26 Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828) . . . . 18, 23, 24 Great N. Life Ins. Co. v. Read, 322 U.S. 47 (1944) 26 Idaho v. Coeur d'Alene Tribe, 117 S. Ct. 2028 (1997) . . . . 42-43 Indian River Recovery Co. v. The China, 645 F. Supp. 141 (D. Del. 1986) . . . . 6 Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F. Supp. 1377 (S.D. Fla 1988) . . . . 7 Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F. Supp. 1562 (S.D. Fla. 1983), aff'd, 758 F.2d 1511 (llth Cir. 1985) . . . . 7 Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900) . . . . 19 Land v. Dollar, 330 U.S. 731 (1947) . . . . 26 Madrazzo, Ex parte, 32 U.S. (7 Pet.) 627 (1833) . . . . 24 Madruga v. Superior Court, 346 U.S. 556 (1954) . . . . 19 Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059 (lst Cir. 1987) . . . . 5-6 Marx v. Government of Guam, 866 F.2d 294 (9th Cir. 1989) . . . . 4, 5 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page Mason v. The Blaireau, 6 U.S. (2 Cranch) 240 (1804) . . . . 2 Mexico v. Hoffman, 324 U.S. 30 (1945) . . . . 2 Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371 (1945) . . . . 26 Missouri v. Fiske, 290 U.S. 18 (1933) . . . . 25 Moskal v. United States, 498 U.S. 103 (1990) . . . . 36 Nevada v. Hall, 440 U.S. 410 (1979) . . . . 25 New York, Ex parte: 256 U. S.490(1921) (N. Y. I) . . . . 14, 15, 18, 20-21, 22, 23, 25 256 U. S. 503(1921) (N. Y. I) . . . . 15, 18, 21, 22, 23, 26, 30 Patsy v. Board of Regents, 457 U. S. 496(1982) Pennhurst State School and Hosp. v. Halderman, 465 U. S. 89(1984) . . . . 25 Pennsylvania v. Union Gas Co., 491 U.S. (1989) . . . . 25 Peru, Ex parte, 318 U.S. 578 (1943) . . . . 28 Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959) . . . . 26 Rickard v. Pringle, 293 F. Supp. 981 (E.D.N.Y. 1968) . . . . 37 Rounds v. Cloverport Foundry and Mackine Co., 237 U.S. 303 (1915) . . . . 19 Royal Indemnity Co. v. United States, 313 U.S. 289 (1941) . . . . 44 Russell v. Forty Bales of Cotton, 21 F. Cas. 42 (S.D. Fla.1872) (No. 12,154) . . . . 36 Scheuer v. Rhodes, 416 U. S.232 (1974) . . . . 26 Seas ShippingCo. v. Sieracki, 328 U. S.85 (1946) . 19 Seminole Tribe of Florida v. Florida, 116S. Ct. 1114 (1996) . . . . 25 State Highway Comm'n v. Utah Constr. Co., 278 U. S. 194(1929) . . . . 26 Stratton v. Jarvis, 33 U.S. (8 Pet.) 4 (1834) . . . . 42 ------------------------------------------ Page Break ---------------------------------------- VII Cases-Continued: Page Subaqueous Exploration & Archaeology, Ltd. v. Unidentified, Wrecked and Abandoned Vessel, 577 F. Supp. 597 (D. Md. 1983), aff'd, 765 F.2d 139 (4th Cir. 1985) . . . . 4 The Belcher Co. v M/V Martha Mariner F.2d l161 (5th Cir. 1984) . . . . 19-20 The Blackwall, 77 U. S.(l0 Wall.)1(1869) . . . . 43 The Davis, 77 U. S. (l0 Wall.) 15 (1869) . . . . 28, 29, 32 The Georgiana, 245 F. 321(lst Cir. 1917) . . . . 36 The Hatison, 14 U. S. (l Wheat.) 298 (1816) . . . . 37 The Mary, 13 U.S. (9 Cranch) 126 (1815) . . . . 14, 19 The Moses Taylor, 71 U. S. (4 Wall.) 411 (1866) . . . . 19 The Pesara, 255 U. S. 216 (1921 ) . . . . 27 The Sabine, 101 U.S. 384 (1879) . . . . 2, 3 The Santissima Trinidad, 20 U. S. (7 Wheat.) 283 (1822) . . . . 27, 30 The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812) . . . . 27 The Siren, 74 U.S. (7 Wall.) 152 (1868 ) . . . . 29 The Western Maid, 257 U.S. 419 (1922) . . . . 25, 26 Treasure Salvers, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel: 640 F.2d 560(5th Cir. 1981) . . . . 6, 26 569 F.2d 330 (5th Cir. 1978) . . . . 37 United States v. Alaska: l17 S. Ct. 1888(1997) . . . . 3 422 U.S. 184(1975) . . . . 4 United States v. A Parcel of Land, Buildings, Appurrtenanes, and Improvements, Known as 99 Buena Vista Avenue, 507 U.S. 111 (1993) . . . . 31 United States v. Bright, 24 F. Cas. 1232 (C.C.D. Pa. 1809) (No. 14,647) . . . . 18, 25 United States v. California, 332 U.S. 19 (1947) . . . . 3, 44 United States v. Peters, 9 U.S. (5 Cranch) 115 (1809) . . . . 14, 18, 24-25 ---------------------------------------- Page Break ---------------------------------------- VIII Cases-Continued: Page United States v. Stowell, 133 U.S. 1 (1890) . . . . 31 Watts v. Ward, 1 Or. 86 (1854) . . . . 3 Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468 (1987) . . . . 17, 26 Wiggins v. 1100 Tons, More Or Less, of Italian Marble , 186 F. Supp. 452 (E.D. Va. 1960) . . . . 37 Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937) . . . . 26 Zych v. Unidentified, Wrecked and Abandoned Vessel: 811 F. Supp. 1300 (N.D. Ill. 1992), aff'd, 19 F.3d 1136 (7th Cir.), cert. denied, 513 U.S. 961 (1994) . . . . 4 941 F.2d 525 (7th Cir. 1991) . . . . 7 Constitution, statutes and regulations: U.S. Const.: Art. IV, 3, Cl. 2 . . . . 44 Amend. XI . . . . Passim Abandoned Shipwreck Act of 1987, 43 U.S.C. 2101 et seq . . . . 2 2, 43 U.S.C. 2101 . . . . 2, 34 3(a), 43 U.S.C. 2102 (a) . . . . 7, 34 3(d), 43 U.S.C. 2102(d) . . . . 7, 41 3(f), 43 U.S.C 2102(f) . . . . 7 4(a), 43 U.S.C. 2103(a) . . . . 8 4(a)(2), 43 U.S.C. 2103(a)(2) . . . . 2, 43 4(a)(2)(c), 43 U.S.C. 2103(a)(2)(C) . . . . 43 4(a), 43 U.S.C. 2104(a) . . . . 2, 8, 33 4(a)(4), 43 U.S.C. 2104 (a)(4) . . . . 9 4(c), 43 U.S.C. 2104(c) . . . . 9 6, 43 U.S.C. 2105 . . . . 7-8, 9, 49 6(a), 43 U.S.C. 2105(a) . . . . 7, 8, 34 6(b), 43 U.S.C. 2105(b) . . . . 8, 33 6(c), 43 U.S.C. 2105(c) . . . . 7, 9 ---------------------------------------- Page Break ---------------------------------------- IX Statutes and regulations-Continued: Page 6(d), 43 U.S.C. 2105(d) . . . . 7, 8 6(e), 43 U.S.C. 2105(e) . . . . 7-8 7, 43 U.S.C. 2106 . . . . 13, 16, 48 7(a), 43 U.S.C. 2106(a) . . . . 9,48 7(b), 43 U.S.C. 2106(b) . . . . 9, 16, 46,47, 48, 49 National Historic Preservation Act, 16 U.S.C. 470a . . . . 7 Public Vessels Act, ch. 428, 43 Stat. 1112, 46 U.S.C. App. 781 et seq. . . . . 29 Rivers and Harbors Appropriation Act of 1899, ch. 425, 30 Stat. 1121: 33 U.S.C. 414 . . . . 8 33 U.S.C. 415 . . . . 8 Submerged Lands Act, ch. 65, 67 Stat. 29,43 U.S.C, 1301 et seq . . . . 3 43 U.S.C. 1311(a) . . . . 4 43 U.S.C. 1314 . . . . 8 43 U.S.C. 1314(a) . . . . 4 Suits in Admiralty Act, ch. 95, 41 Stat. 525, 46 U.S.C. App. 741 et seq. . . . . 29 15 U.S.C. 1334 . . . . 48 15 U.S.C. 2617 . . . . 48 28 U.S.C. 1605(b) . . . . 28 29 U.S.C. 1144 . . . . 48 California Public Resource Code (West Supp. 1997): 6313 . . . . 12, 13-14, 16, 46, 47 6313(a) . . . . 10,47 41 C.F.R. 101-45.900 et seq . . . . 44 Miscellaneous: 1 E. Benedict, The American Admiralty: Its Jurisdiction and Practice (5th ed. 1925) . . . . 19, 21 133 Cong. Rec. (1987): p. 7050 . . . . 6 p. 36,578 . . . . 6 ---------------------------------------- Page Break ---------------------------------------- X Miscellaneous-Continued: Page 134 Cong. Rec. (1988): pp. 6616-6617 . . . . 35 p. 6618 . . . . 38 p 6619 . . . . 41 R. Fallon et al., Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 1996) . . . . 20 55 Fed. Reg. (1990): p. 50,116 . . . . 9, 33, 42 p. 50,120 . . . . 33, 42 p. 50,121 . . . . 33 p. 50,132 . . . . 9 60 Fed. Reg. 47,589 (1995) . . . . 12 The Federalist, No. 80 (A. Hamilton) (C. Rossiter ed., 1961) . . . . 20 W. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983) . . . . 20-21 F. Frankfurter & J. Landis, The Business of the Supreme Court (1927) . . . . 20 S. Friedell, Benedict on Admiralty (7th ed. rev. 1997): Vol. 1 . . . . 18 Vol. 3A . . . . 42 S. Friedell & N. Healy, An Introduction to In Rem Jurisdiction and Procedure in the United States, 20 J. Mar. L. & Comm. 55 (1989) . . . . 20 G. Gilmore & C. Black, The Law of Admiralty (2d ed. 1975) . . . . 18 H.R. Rep. No. 514, 100th Cong., 2d Sess. (1988): Pt. 1 . . . . 35 Pt. 2 . . . . 5, 7, 8, 9, 35, 38, 48 3 J. Kent, Commentaries on American Law (12th ed. 1873) . . . . 42 ---------------------------------------- Page Break ---------------------------------------- XI Miscellaneous-Continued: Page A. Lawrence, State Antiquity Laws and Admiralty Salvage: Protecting Our Cultural Resources, 32 U. Miami L. Rev. 291 (1977) . . . . 38 3A M. Norris, Benedict on Admiralty (7th ed. rev. 1997) . . . . 3 1 M. Norris, The Law of Seamen (4th ed. 1985) . . . . 3 S. Rep. No. 223, 66th Cong., 1st Sess. (1919) . . . . 29 S. Rep. No. 241, 100th Cong., 1st Sess. (1987) . . . . 40 2 T. Schoenbaum, Admiralty and Maritime Law (2d ed. 1994) . . . . 36-37 2 J. Story, Commentaries on the Constitution of the United States (3d ed. 1858) . . . . 17, 18 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-1400 STATE OF CALIFORNIA AND STATE LANDS COMMISSION, PETITIONERS v. DEEP SEA RESEARCH, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES AS RESPONDENT SUPPORTING PETITIONERS IN PART OPINIONS BELOW The opinion of the court of appeals, as amended (Pet. App. A1-A19), is reported at 102 F.3d 379. The opinion of the district court (Pet. App. A20-A58) is reported at 883 F. Supp. 1343. JURISDICTION The initial decision of the court of appeals was entered on July 17, 1996. An amended opinion, and a concurrent denial of a timely petition for rehearing, were entered on December 4, 1996. The petition for a writ of certiorari was filed on March 4, 1997, and was granted on June 9, 1997. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT This case concerns the application of the Abandoned Shipwreck Act of 1987 (ASA), 43 U.S.C. 2101 et seq. Un- der that Act, the United States asserts title to certain abandoned shipwrecks and then transfers title to those shipwrecks to the States in order to maximize cultural values, guarantee recreational access, and provide for appropriate public and private recovery of shipwrecks. See 43 U.S.C. 2103 (a)(2), 2104(a). A. The Law of Salvage and Finds For the past three decades, as technological develop- ments have made salvage of shipwrecks more feasible, claims involving title to and compensation for recovery of shipwrecks have typically been brought by salvors in admiralty courts under the legal doctrines of salvage and finds. Salvage is "the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril, or in recovering such property from actual peril or loss, as in cases of shipwreck." The Sabine, 101 U.S. 384, 384 (1879). "Salvageable" property includes "ships and vessels and their cargoes, or those things which have been committed to , or lost in, the sea or its branches, or other public navigable waters, and have been found and rescued." Cope v. Vallette Dry Dock Co., 119 U.S. 625, 629 (1887). The law of salvage has two salutary purposes: saving lives and property, and returning sal- vaged property to its rightful owner. See Mason v. The Blaireau, 6 U.S. (2 Cranch) 240, 266-267 (1804). The sal- vor acquires a lien on the salvaged property and receives expenses and a salvage award, if three conditions are met: the salvage is necessitated by a "marine peril"; the service by the salvor is voluntarily rendered; and the sal- vor achieves success in whole or in part in recovering ---------------------------------------- Page Break ---------------------------------------- 3 property. See The Sabine, 101 U.S. at 384; 1 M. Norris, The Law of Seamen 9:7 (4th ed. 1985). The salver, how- ever, does not acquire title. The law of salvage assumes that the property has an owner who has not abandoned it. Under the law of finds, a finder acquires title in own- erless property-a finders, keepers principle. See 3A M. Norris, Benedict on Admiralty 158, at 11-15 (7th ed. rev. 1997) (Benedict) ("A `find' in maritime law differs from salvage in that in the former instance the property found has never been owned by any person. It therefore belongs to the finder."). The would-be finder must not only have come upon ownerless or abandoned property; he or she must have actual or constructive possession of the property. Eads v. Brazelton, 22 Ark. 499 (1861). If the property turns out not to be ownerless, or there is no actual or constructive possession, the finder is not enti- tled to exercise any ownership or possessor interest with respect to it. Watts v. Ward, Or. 86 (1854). B. The Submerged Lands Act and Conflicts Over the Ownership of Shipwrecks Navigable waters, and the land beneath those waters, are generally held in sovereign hands for the benefit of the public. "Ownership of submerged lands-which car- ries with it the power to control navigation, fishing, and other public uses of water-is an essential attribute of sovereignty." United States v. Alaska, 117 S. Ct. 1888, 1892 (1997). In United States v. California 332 U.S. 19 (1947), this Court held that the United States has para- mount sovereign authority over submerged lands beneath the territorial sea. Congress exercised that authority in 1953 by granting certain submerged lands to the coastal States. See United States v. Alaska, 117 S. Ct. at 1906. Under the Submerged Lands Act (SLA), ch. 65, 67 Stat. 29, 43 U.S.C. 1301 et seq., coastal States such as California ---------------------------------------- Page Break ---------------------------------------- 4 received title from the United States to "submerged lands within three miles of their coastlines," United States v. Alaska, 422 U.S. 184, 187 (1975), as well as "all natural resources" in those lands. See 43 U.S.C. 1311(a). At the same time, Congress provided in the SLA that "[t]he United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional pur- poses of commerce, navigation, national defense, and in- ternational affairs." 43 U.S.C. 1314(a). Although the SLA expressly gave States, title to all "natural resources" in the conveyed lands, 43 U.S.C. 1311 (a), the Act made no mention of non-natural re- sources, such as abandoned shipwrecks. In cases that arose prior to 1987, States generally argued that ship- wrecks embedded in their submerged lands belonged to the State because, at common law, title to abandoned property buried in land belonged to the owner of the property, and not the finder. 1 Courts divided over whether the SLA could properly be viewed as conferring on the States the title to abandoned shipwrecks on state submerged lands. 2 Moreover, while States frequently ___________________(footnotes) 1 See, e.g., Zych v. Unidentified, Wrecked, and Abandoned Vessel, 811 F. Supp. 1300, 1314 (N.D. Ill. 1992), aff'd, 19 F.3d 1136 (7th Cir.), cert. denied, 513 U.S. 961 (1994) (citing cases); Ferguson v. Ray, 77 P. 600 (Or. 1904). 2 Compare Subaqueous Exploration & Archaeology, Ltd. v. Unidentified, Wrecked and Abandoned Vessel, 577 F. Supp. 597, 612 (D. Md. 1983) (SLA gives States power to regulate ownership and recovery of abandoned shipwrecks on submerged state lands), aff'd 765 F.2d 139 (4th Cir. 1985), with Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F. Supp. 186, 215-216 (S.D. Fla. 1981) (SLA does not empower state to claim abandoned wrecks within three mile limit). Compare Marx v. Guam, 866 F.2d 294 (9th Cir. 1989) (holding that Guam had colorable claim to shipwrecked vessels under its local law and SLA) with Commonwealth v. Maritime Underwater ---------------------------------------- Page Break ---------------------------------------- 5 claimed ownership of shipwrecks under the SLA and their own state statutes, some courts found the state stat- utes preempted by the federal admiralty law of salvage and finds. See, e.g., Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F. Supp. 186 (S.D. Fla. 1981) (rejecting invocation of state statute as conflicting with admiralty law); Commonwealth v. Mari time Underwater Surveys, Inc., 531 N.E.2d 549 (Mass. 1988) (rejecting invocation of SLA and applying law of finds). Conflicts inevitably arose after States began to seek ways of preserving cultural resources by claiming title to shipwrecks in their territorial waters. Groups such as treasure salvers wanted to exploit those vessels and their cargo for personal gain, and sport divers sought to en- sure free access to the wrecks for both recreational and preservationist purposes. Conflicts among those interests became more numerous as the technology of underwater discovery and excavation advanced. Deep-diving subma- rines, remote-operated vessels, sonar, advanced metal de- tectors, aerial photography, and improved breathing de- vices aided in the location and recovery of shipwrecks, which in turn produced litigation over their ownership. 3 ___________________(footnotes) Surveys, Inc., 531 N.E.2d 549 (Mass. 1988) ( rejecting SLA and applying law of finds). The House Report accompanying the Abandoned Shipwreck Act noted that Congress had not specified "in the SLA whether the states also owned non-natural objects such as shipwrecks that rested on or within submerged lands," but that "notwithstanding this lack of clarity," many States had asserted title to such shipwrecks. H.R. Rep. No. 514, 100th Cong., 2d Sess. Pt. 2, at 2 (1988). 3 See, e.g., Marx v. Guam, 866 F.2d 294 (9th Cir. 1989) (conflict between Guam's claim to wrecks and explorer who was denied exploration and recovery permit); Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (lst Cir. 1989) (conflict between claims of salvers and Puerto Rico); Martha's Vineyard Scuba ---------------------------------------- Page Break ---------------------------------------- 6 C. The Abandoned Shipwreck Act of 1987 The Abandoned Shipwreck Act of 1987 (ASA) was de- signed to resolve "the conflicts-perceived and real- between salvers, archaeologists, the States and sports di- vers." 133 Cong. Rec. 36,578 (1987) (statement of Sen. Bradley). In introducing the legislation, Senator Bradley commented on the problems with the then-existing sys- tem: The United States is the only country in the world with a substantial number of historic shipwrecks that does not have a Federal law recognizing the impor- tance of preserving some of these sites. There is no Federal law requiring orderly and archaeologically correct excavation when salvage does take place. In- stead, a finders-keepers principle applies to all ship- wrecks in our waters. While this rule makes sense in matters of ongoing maritime commerce, it is as obvi- ously inappropriate for underwater archaeological sites as it would be for ancient ruins on land. Under the current system, Federal courts-sitting in admiralty-have substantial policymaking power, which has resulted in uneven judgments about the historical value of shipwrecks. Id. at 7050 (statement of Sen. Bradley). Under the ASA, the United States asserts title to each of three classes of "abandoned shipwrecks": (1) vessels ___________________(footnotes) Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059 (lst Cir. 1987) (competing claims of salver and discoverer of wreck); Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560 (5th Cir. 1981) (claims of competing salvers); Indian River Recovery Co. v. The China, 645 F. Supp. 141 (D. Del. 1986) (competing claims of salvers and sport scuba divers). ---------------------------------------- Page Break ---------------------------------------- 7 embedded in the submerged lands of a State; 4 (2) vessels embedded in coralline formations protected by a State on its submerged lands; 5 and (3) vessels on the submerged lands of a State and included in, or determined eligible for inclusion in, the National Register of Historic Places. 43 U.S.C. 2105(a). 6 The term "shipwreck" is defined to include "a vessel or wreck, its cargo, and other con- tents," 43 U.S.C. 2102(d), and "submerged lands" are those "lands beneath navigable waters" within the mean- ing of the SLA. 43 U.S.C. 2102(f). The title of the United States to any abandoned shipwreck that is as- serted under 43 U.S.C. 2105(a) is, in turn, transferred by the ASA to the States "in or on whose submerged lands the shipwreck is located." 43 U.S.C. 2105(c). 7 Subsection ___________________(footnotes) 4 This provision corresponds to the common law doctrine that an owner of land is entitled to whatever he or she finds buried in it. See Zych v. Unidentified, Wrecked and Abandoned Vessel, 941 F.2d 525, 529 (7th Cir. 1991); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F. Supp. 1377, 1386 (S.D. Fla. 1988); Chance v. Certain Artifacts Found and Salvaged from The Nashville, 606 F. Supp. 801, 805 (S.D. Ga. 1984), aff'd, 775 F.2d 302 (llth Cir. 1985); Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F. Supp. 1562, 1565-1566 (S.D. Fla. 1983), aff'd, 758 F.2d 1511 (11th Cir. 1985). The House Report accompanying the ASA described it as "consistent with the recognized exception from the law of finds for shipwrecks embedded in submerged lands of a state." H.R. Rep. No. 514, supra, Pt. 2, at 7 (citing Chance, supra). 5 The term "embedded" is defined as "firmly affixed in the submerged lands or in coralline formations such that the use of tools of excavation is required in order to * * * gain access to the shipwreck, its cargo, and any part thereof." 43 U.S.C. 2102(a), 6 The Register is maintained by the Department of the Interior, as provided for by the National Historic Preservation Act, 16 U.S.C. 470a. 7 The House Report states that "[t]he transfer of title takes place immediately upon enactment of the Act and simultaneously with the U.S. assertion of title under [43 U.S.C. 2105( a)]." H.R. Rep. No. 514, supra, Pt. 2, at 7. ---------------------------------------- Page Break ---------------------------------------- 8 (e) of 43 U.S.C. 2105, however, provides that that Section shall not affect any right reserved by the United States under, inter alia, 43 U.S.C. 1314, the provision of the Submerged Lands Act that preserves the United States' rights with respect to navigation and commerce, and 33 U.S.C. 414 and 415, the provisions of the Rivers and Har- bors Appropriations Act of 1899 that concern the removal of sunken vessels obstructing navigation. See H.R. Rep. No. 514, supra, Pt. 2, at 8. 8 The ASA provides that "[t]he public shall be given adequate notice of the location of any shipwreck to which title is asserted" under 43 U.S.C. 2105(a). See 43 U.S.C. 2105 (B). Moreover, for shipwrecks on (as distinguished from embedded in) the submerged lands of a State, the Secretary of the Interior, "after consultation with the appropriate State Historic Preservation Officer," must make a written determination whether "an abandoned shipwreck meets the criteria for eligibility for inclusion in the National Register of Historic Places." 43 U.S.C. 2105(b). The Act declares the policy of Congress that States that have taken title to abandoned shipwrecks shall de- velop policies to protect natural resources and habitat ar- eas; guarantee recreational exploration of shipwreck sites; and allow for appropriate public and private sector recovery of shipwrecks consistent with the protection of historical values and environmental integrity of the shipwrecks and sites. 43 U.S.C. 2103 (a); see also 43 U.S.C. 2104 (a). The Director of the National Park Serv- ___________________(footnotes) 8 The Act also excepts from the transfer to the States any abandoned shipwreck in or on the public lands of the United States, which remains federal property, and any abandoned shipwrecks on Indian lands, which remain the property of the Indian tribe owning such lands. 43 U.S.C. 2105(d). ---------------------------------------- Page Break ---------------------------------------- 9 ice in the Department of the Interior is responsible for issuing guidelines to assist the States in carrying out the purposes of the Act. See 43 U.S.C. 2104(a)(4), 2104(c); see 55 Fed. Reg. 50,116, 50,132 (1990). Finally, the ASA provides that "[t]he law of salvage and the law of finds shall not apply to abandoned ship- wrecks to which section 2105 of this title applies." 43 U.S.C. 2106(a). At the same time, the ASA "shall not change the laws of the United States relating to ship- wrecks, other than those to which this chapter applies." 43 U.S.C. 2106(b). Thus, while the ASA "carve[s] out a limited exception from general admiralty principles for those classes of shipwrecks to which this Act applies," "[a]ll other shipwrecks * * * remain subject to the uni- form principles of admiralty law, except as may be pro- vided in other federal law." H.R. Rep. No. 514, supra, Pt. 2, at 8. D. The Proceedings Below 1. The Brother Jonathan is a double side-wheeled paddle steamer that sank off the coast of California near Crescent City in 1865. It is estimated that the ship went down with one-half million dollars in currency and gold; some of that gold is believed to belong to the United States. 9 Shortly after the Brother Jonathan sank, five San Francisco insurance companies paid claims totaling $48,490.00 for loss of the insured portion of the vessel's cargo. See Pet. App. A21; J.A. 138-139. Approximately two-thirds of the cargo was uninsured, and the vessel it- self appears to have been uninsured as well. See Pet. App. A21; J.A. 145. 2. In 1991, Respondent Deep Sea Research Corpora- tion (DSR) located the wreck. That same year, DSR ___________________(footnotes) 9 The United States has tiled a claim to that property. See J.A. 305-307. ---------------------------------------- Page Break ---------------------------------------- 10 brought an in rem action in the United States District Court for the Northern District of California seeking an award of title to the Brother Jonathan under the law of finds or, in the alternative, a salvage award under the law of salvage. J.A. 37-57. DSR additionally asserted a right of ownership by its purchase of subrogation inter- ests from the insurers of the vessel's original owners. Pet. App. A22. Petitioners and the United States intervened in the case. 10 Petitioners filed a motion to dismiss the action. contending that the State held title to the Brother Jona- than by virtue of the ASA and that the in rem action was in reality an action against the State and was barred by the Eleventh Amendment. Petitioner also claimed title under Section 6313(a) of the California Public Resources Code, which purports to vest in the State title to "all abandoned shipwrecks and all archaeological sites and historic resources on or in the tide and submerged lands of California." See Cal. Pub. Res. Code 6313(a) (West Supp. 1997); Pet. App. A74-A78. 11 3. The district court rejected petitioners' argument that the State's mere assertion of a claim to the Brother Jonathan was sufficient to divest the court of jurisdic- tion. It ruled that petitioners would have to demonstrate by a preponderance of the evidence that "the vessel is abandoned and embedded in the subsurface or coralline ___________________(footnotes) 10 After petitioners intervened, claiming title to the Brother Jonathan by operation of the Abandoned Shipwreck Act, respondent contended that the Act did not apply and that if it did, the Act was unconstitutional. The United States intervened to defend the constitutionality of the ASA. See J.A. 7. The constitutionality of the ASA was never reached by the lower courts and is accordingly not before this Court for review. 11 Respondent stipulated that the Brother Jonathan was located in state waters. Pet. App. A24. ---------------------------------------- Page Break ---------------------------------------- 11 formation of the territorial waters of the State," or in the alternative, that the vessel "is abandoned" and "eligible for listing [] in the National Register." Pet. App. A26-A27. The court reasoned that if the State met that burden, the ASA would apply, the State would have title, and the admiralty action would have to be dismissed. If the ASA (or the state statute purporting to vest title in the State) did not apply-and the State therefore did not have title-the court would not be divested of jurisdic- tion, and the court could proceed on the merits of re- spondent's claims in admiralty. Id. at A27. Applying that framework, the district court denied petitioners' motion to dismiss the complaint. With respect to abandonment, the district court stated that petitioners must establish "(1) an intent by the original owner to abandon his property; and (2) physical acts carrying that intent into effect." Pet. App. A30. In the court's view, abandonment must be proved by a "clear and unmistak- able affirmative act to indicate a purpose to repudiate ownership." Ibid. Applying that standard, the court concluded that the only evidence on the point introduced by petitioner, which consisted of the testimony of an ex- pert historian, fell short of establishing that there had been a clear and unmistakable act of abandonment or that the Brother Jonathan had been abandoned due to the lapse of time or because the owner failed to undertake salvage efforts. The court also declined to rest a finding of abandonment on the lack of salvage efforts since 1865, because only recently had new technology made salvage feasible. Id. at A35. With respect to the cargo, although the court held that abandonment may be inferred if an owner fails to appear in the judicial proceedings, it none- theless concluded that a finding of abandonment as to any individual items would be "premature." Id. at A36. The court believed that title should be determined only after ----------------------------------------- Page Break ---------------------------------------- 12 notice was published following issuance of a warrant of arrest and completion of salvage operations, which might generate additional publicity and cause additional claim- ants to come forward. Ibid. The court went on to rule that petitioners had also failed to show that the other statutory requirements for transfer of title to the State under the ASA had been sat- isfied. The court found that the State had failed to dem- onstrate by a preponderance of the evidence that the Brother Jonathan was "embedded" within the meaning of the Act and that the shipwreck had been determined eligible for inclusion in the National Register of Historic Places. Pet. App. A37-A43. 12 The court also rejected pe- titioners' claim of title under Section 6313 of the Califor- nia Public Resources Code-which purports to vest title in the State to all ships that have rested on state sub merged lands for 50 years-as plainly conflicting with the ASA. Pet. App. A46. 4. The court of appeals affirmed the denial of the mo- tion to dismiss, rejecting petitioners' contention that Eleventh Amendment immunity divested the district court of jurisdiction as soon as the State made a claim to the sunken vessel. Pet. App. A2-A19. The court of ap- peals deemed it "appropriate for the district court to re- quire the State to present evidence that the ASA applied to the Brother Jonathan, i.e., that it was abandoned and either embedded or eligible for listing in the National Register, before dismissing the case." Id. at All. Oth- erwise, the court observed, "the State could receive im- munity simply by asserting that it was entitled to it ." Ibid. The court further reasoned that because the ASA ___________________(footnotes) 12 While this lawsuit was pending in the court of appeals, the Department of the Interior listed the Brother Jonathan on the National Register. See 60 Fed. Reg. 47,589 (1995). ---------------------------------------- Page Break ---------------------------------------- 13 vests title to an abandoned shipwreck first in the United States, and then subsequently transfers title to the States, "a federal court may adjudicate the question of whether a wreck meets the requirements of the ASA without im- plicating the Eleventh Amendment." Ibid. The court of appeals then ruled that the district court's finding that the State has failed to demonstrate abandonment was not clearly erroneous. Pet. App. A15- A17. The court of appeals stated that abandonment could be found on the basis of either an affirmative renuncia- tion, or and inference from the lapse of time or failure to pursue salvage operations. Id. at A16-A17. But the court concluded that because the technology used to discover sunken vessels was new, a failure on the part of the owner to attempt to salvage the wreck gave rise to no inference of abandonment. Id. at A17. The court re- jected petitioners' argument that there could be partial abandonment of the shipwreck with respect to that por- tion of its cargo that was uninsured. The court believed that result would be inconsistent with both general mari- time law and the intent of Congress as expressed in the ASA, because it would mean that "both the federal court and the state court would be adjudicating the fate of the Brother Jonathan. It is unlikely that Congress intended such a confusing and inefficient approach in adopting the ASA." Id. at A18. Finally, the court of appeals upheld the district court's ruling on preemption. The court reasoned that 43 U.S.C. 2106 "makes clear that Congress intended to transfer title to the states only for shipwrecks that meet the require- ments of the ASA. All other shipwrecks continue to be subject to the exclusive admiralty jurisdiction of the fed- eral courts, as provided by Article III, section 2 of the United States Constitution." Pet. App. A8. Because Sec- tion 6313 of the California Public Resources Code pur- ---------------------------------------- Page Break ---------------------------------------- ports to take title to shipwrecks that do not meet the re- quirements of the ASA, the court found that it was inef- fective to acquire title to shipwrecks that were properly "within the exclusive admiralty jurisdiction of the fed- eral courts.", Pet. App. A8. SUMMARY OF ARGUMENT I. Although the Eleventh Amendment does not in plain terms apply to suits in admiralty, this Court has held that in rem admiralty actions that are in the nature of in personal suits against a State are barred by the Amendment. Ex parte New York, 256 U.S. 490 (1921) (New York I). The Eleventh Amendment does not, how- ever, bar a federal court from adjudicating an in rem ac- tion in admiralty initiated by a private party for, adjudi- cation of its ownership rights to the vessel and its. cargo. For centuries, the in rem action has been recognized as a unique feature of admiralty law. By obtaining jurisdic- tion over the vessel, an admiralty court may adjudicate the rights of parties as against the "whole world." The Mary, 13 U.S. (9 Cranch) 126, 144 (1815). The `general rule has been that an in rem decree binds parties and non- parties alike, because of the interest in having one tribu- nal with exclusive jurisdiction over the vessel determine ownership of it. That general principle applies even when a sovereign asserts ownership of a vessel or cargo. Thus, this Court has sustained the adjudication of the interests of a State in an in rem action when the State was not in possession of the property, see United States v. Peters, 9 U.S. (5 Cranch) 115 (1809). Similarly, although a foreign sover- eign in actual possession of a vessel was historically enti- tled to immunity, when it is not in actual possession, the foreign sovereign must establish its ownership through ---------------------------------------- Page Break ---------------------------------------- 15 an evidentiary showing, just like any other claimant. The same principle has been applied to the United States. This Court's decisions in New York I and Ex parte New York, 256 U.S. 503 (1921) (New York II) do not stand for a contrary position. The in rem action in New York I was in the nature of an in personam maritime tort action against the State, and thus barred by the Eleventh Amendment. New York II likewise was a maritime tort action for damages, and the decision rested not on Elev- enth Amendment grounds, but rather on admiralty principles barring attachment of a public vessel. This case, by contrast, is an in rem action brought to resolve the antecedent question of who owns the vessel, as against the whole world, and the vessel is not in the ac- tual possession of the State. Although the Brother Jona- than is shipwrecked and rests on the State's submerged lands, petitioners' agents apparently do not know the lo- cation of the vessel and are not in actual custody of it. Accordingly, the court below correctly required peti- tioner to establish its ownership of the Brother Jonathan by a preponderance of the evidence. II. In passing on the State's claim of ownership, how- ever, the court of appeals erred in its approach to deter- mining whether a shipwreck is abandoned within the meaning of the Abandoned Shipwreck Act (ASA). Al- though "abandoned" is not defined in the ASA, the other statutory terms in the Act, the legislative history, and the background of admiralty law support the conclusion that abandonment may be inferred when the owner of the vessel does not come forward to establish a claim when the shipwreck is discovered and a long period of time has elapsed since the ship sank. The preservationist purposes of the ASA are best served by an interpretation of "abandoned" that recognizes the State's title in such circumstances. ---------------------------------------- Page Break ---------------------------------------- 16 The contrary ruling below has three basic flaws. First, by holding that abandonment could not be inferred here because modern technology has only recently enabled the shipwreck to be salvaged, the court has effectively re- quired and express renunciation of title. Second, there is no support in the ASA or admiralty law for the court's holding that the Brother Jonathan should be treated as a unified res, even though respondent claims ownership of only a small portion of the ship's cargo as unabandoned. Finally, the court erred in concluding that a partial nonabandonment of the cargo must afford the entire shipwreck the same status, in order to preserve respon- dent's right to adjudication in federal court. As ex- plained in point I, respondent is entitled to have title to the shipwreck adjudicated in federal court and it is fully consistent with both admiralty law and the ASA for the State thereafter to assume responsibility for any portions of the wreck found by the admiralty court to be owned by the State. III. The preemption issue need not be reached if the State is found to have acquired title to the Brother Jona- than pursuant to the ASA. In any event, the court below erred in concluding that Section 7 of the ASA preempts Section 6313 of the California Public Resources Code (West Supp. 1997). Section 7(b) provides that the ASA "shall not change the laws of the United States relating to shipwrecks, other than those to which this chapter ap- plies." 43 U.S.C. 2106(b). That provision contains no ex- press preemption of state laws. It is a savings provision, and does not address whether any federal law other than the ASA-e.g., the admiralty law of salvage and finds- preempts any relevant provision of state law. The dis- trict court should resolve that preemption issue in the first instance, if that court concludes on remand that the ---------------------------------------- Page Break ---------------------------------------- 17 State did not acquire title to some or all of the shipwreck under the ASA. ARGUMENT I. IN AN IN REM ACTION BROUGHT IN ADMI- RALTY TO ESTABLISH TITLE TO A VESSEL, A STATE IS NOT ENTITLED TO SOVEREIGN IMMUNITY IF THE VESSEL AT ISSUE IS NOT IN ITS ACTUAL POSSESSION The Eleventh Amendment provides that "[t]he Judi- cial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prose- cuted against one of the United States by Citizens of an- other State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. The terms of the Amendment do not literally extend to actions brought in admiralty, which this Court has treated as distinct from actions at law or suits in equity. See, e.g., Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 473 (1987) (plurality opinion); see generally 2 J. Story, Com- mentaries on the Constitution of the United States 523 524 (3d ed. 1858). 13 Nonetheless, this Court has read some ___________________(footnotes) 13 Story's view, based on early decisions of this Court, was: It has been doubted, whether [the Eleventh Amendment] extends to cases of admiralty and maritime jurisdiction, where the proceeding is in rem and not in personam. There, the jurisdiction of the court is founded upon the possession of the thing; and if the state should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor. Besides, the language of the amendment is, that "the judicial power of the United States shall not be construed to extend to any suit in law or equity ." But a suit in the admiralty is not, correctly speaking, a suit in law, or in equity but is often spoken of in contradistinction to both. ---------------------------------------- Page Break ---------------------------------------- 18 of its cases as holding that a State enjoys immunity from suit in federal court in certain admiralty contexts. See, e.g., Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 683 n.17 (1982) (plurality opinion) (citing Ex parte New York, 256 U.S. 490 (1921)). This Court's cases do not hold, however, that a State may invoke the Eleventh Amendment in an in rem action brought to establish title to a ship when the State does not have actual possession of the vessel. A. The Showing Required Of A Sovereign Assert- ing Ownership In An In Rein Action Turns On Whether The Sovereign Has Actual Possession Of The Vessel Or Its Cargo 1. An in rem action is a special feature of admiralty law. See generally 1 S. Friedell, Benedict on Admiralty 124, at 8-15 (7th ed. rev. 1997) (describing in rem action as the "distinctive remedy of the admiralty" and "admin- istered exclusively by the United States courts exercising admiralty jurisdiction"). For example, upon occurrences such as a marine mishap, a failure to pay a sailor's wages, or a marine peril giving rise to a claim for salvage, the law of admiralty recognizes a light of the claimant to bring an action directly against the vessel. See generally G. Gilmore & C. Black, The Law of Admiralty 35-36 (2d ed. 1975). The ability to proceed in rem is exclusive to the federal courts: "Admiralty's jurisdiction is `exclusive' only as to those maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel ___________________(footnotes) 2 Story, supra, at 523-524 (citing United States v. Bright, 24 F. Cas. 1232 (C.C.D. Pa. 1S09) (No. 14,647) (Washington, J.); Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828); United States v. Peters, 9 U.S. (5 Cranch) 113, 140 (1809)). See also Atascadero State Hosp. V. Scanlon 473 U.S. 234, 293-294 (1985) (Brennan, J., dissenting) (quoting story). ---------------------------------------- Page Break ---------------------------------------- 19 or thing is itself treated as the * * * defendant by name or description in order to enforce a lien. " Madruga v. Superior Court, 346 U.S. 556, 560 (1954). See also Seas Shipping Co. v. Sieracki, 328 U.S. 85, 88 (1946); The Mows Taylor, 71 U.S. (4 Wall.) 411, 427 (1866). An in rem action for a maritime tort has as its main function securing damages, to be paid through judicial sale of the vessel. The in rem action in this case, by contrast, was brought to resolve the antecedent question of who owns The sunken vessel located by respondent. In that type of in rem action, "[a]n admiralty court by seizure in rem ac- quires jurisdiction of all interests in the res and by decree in rem binds all." 1 E. Benedict, The American Admi- ralty: Its Jurisdiction and Practice 11, at 16 (5th ed. 1925). See, e.g., Rounds v. Cloverport Foundry and Ma- chine Co., 237 U.S. 303, 306 (1915) ("By virtue of domin- ion over the thing all persons interested in it are deemed to be parties to the [in rem] suit; the decree binds all the world and under it the property itself passes and not merely the title or interest of a personal defendant."); The Mary, 13 U.S. (9 Cranch) 126, 144 (1815) (Marshall, C.J.) ("The whole world, it is said, are parties in an ad- miralty cause; and, therefore, the whole world is bound by the decision."). The federal admiralty court's in rem decree awards the successful claimant a title free and un- encumbered by any lien. 14 ___________________(footnotes) 14 See, e.g, Knapp, Stout & Co. v. McCaffrey , 177 U.S. 638, 642-643 (1900) (an in rem decree is exclusive, although an action with respect to the vessel that does not arise in admiralty may be cognizable in state court); The Moses Taylor, 71 U.S. (14 Wall.) at 427 (distinguishing in rem decree, which "gives to the title made under its decrees validity against all the world," with the "common law process," by which "the title acquired can never be better than that possessed by the personal defendant"); The Belcher Co. v. M/V Maratha Mariner, 724 F.2d 1161, ---------------------------------------- Page Break ---------------------------------------- 20 Frankfurter and Landis explained that the foundation for this principle was recognized at the framing of the Constitution, because ''[m]aritime commerce was then the jugular vein of the Thirteen States. The need for a body of law applicable throughout the nation was recognized by every shade of opinion in the Constitutional Conven- tion." F. Frankfurter & J. Landis, The Business of the Supreme Court 7 (1928) (footnote omitted). See also The Federalist No. 80, at 478 (A. Hamilton) (C. Rossiter, 1961) ("The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizance of maritime causes."); W. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1078-1083 (1983) (discussing history of admiralty and Eleventh Amend- ment cases). 2. That traditional analysis is not altered when a State is a claimant in such an in rem proceeding. This Court has never held that a State may obtain the dismissal of an in rem action in federal court-which would encompass even its own claim of ownership-when the purpose be- hind the action is to determine title to a vessel and the State does not have actual possession of the vessel. Al- though occasionally cited for the proposition that the Eleventh Amendment applies in in rem actions, 15. Ex ___________________(footnotes) 1163-1164 (5th Cir. 1984); see generally S. Friedell & N. Healy, An Introduction to In Rem Jurisdiction and Procedure in the United States, 20 J. Mar. L. & Com. 55, 58 (1989) ("[A] judgment for the plaintiff [in an in rem suit] will allow the court to sell the vessel free and clear of all liens-even those that are not before the court."). 15 See, e.g., R. Fallon et al., Hart & Wechsler's The Federal Courts and the Federal System 1051 (4th ed. 1996); W. Fletcher, supra, at 1081 1082. The contemporaneous edition of The American Admiralty, ---------------------------------------- Page Break ---------------------------------------- 21 parte New York, 256 U.S. 490 (1921) (New York I), and Ex parte New York, 256 U.S. 503 (1921) (New York II), stand for much narrower propositions: that an in rem suit may not proceed when it is in the nature of an in perso- nam suit against the State itself or when the State is in actual possession of the vessel. In New York I, privately-owned tugboats were involved in collisions that caused damage to other privately-owned vessels. The vessel owners brought an in rem suit against the tugboats on a theory of maritime tort: the vessels that caused the damage were liable to the injured parties. See 256 U.S. at 495. At the time of the collisions, the tugboats were under charter to the New York Superintendent of Public Works, but that charter had since expired. The owners pointed out that if de- crees were entered against the tugboats, the owners would be called upon for payment even though they were strangers to the collision. They contended that the Su- perintendent ought to be proceeded against in the same suit for damages, in accordance with admiralty rules. The district court ordered the Superintendent to appear and stated that if he did not, it would order the attach- ment of state goods and chattels under his control. Id. at 496. In issuing a writ of prohibition to bar the district court from exercising jurisdiction, this Court explained: "the proceedings against which prohibition is here asked have no element of a proceeding in rem, and are in the nature of an action in personam against Mr. Walsh, not indi- ___________________(footnotes) however, accurately stated the Court's holding in New York II: "A vessel, the property of a State in its possession and control and employed for governrnental uses and purposes, is exempt from process in rem and her public character, at least in the absence of special challenge, is established by the verified suggestion of the attorney general of the State." E. Benedict, supra, 213, at 291. ---------------------------------------- Page Break ---------------------------------------- 22 vidually, but in his capacity as Superintendent of Public Works of the State of New York." 256 U.S. at 501. In the Court's view, the suit was in its nature and effect against the State, because any judgment would be exe- cuted upon state property or funds. Id. at 502-503. Thus, the Court held, "[i]t is not inconsistent in principle to accord to the States, which enjoy the prerogatives of sovereignty to the extent of being exempt from litigation at the suit of individuals in all other judicial tribunals, a like exemption in the courts of admiralty and maritime jurisdiction." Id. at 503. New York II also involved a maritime tort, a collision by the steam tug Queen City that caused a victim to drown. The decedent's administrators filed an in rem action to recover damages for the alleged wrongful death. The New York Attorney General "appeared spe- cially for the purpose of questioning the jurisdiction of the court, and filed a verified suggestion of the want of such jurisdiction * * * for the reason that at all times mentioned in the libel and at present [the Queen City] was the absolute property of the State of New York, in its possession and control, and employed in the public serv- ice of the State for governmental uses and purposes." 256 U.S. at 508. After the district court rejected the State Attorney General's suggestion to dismiss the suit for lack of jurisdiction, this Court issued a writ of prohi- bition. The Court first concluded that the verified suggestion presented by the Attorney General of New York con- cerning a public matter presumably within his official knowledge ''ought to be accepted as sufficient evidence of the fact, at least in the absence of special challenge." 256 U.S. at 509. Having accepted the Attorney General's re- presentations of ownership and possession, the Court put to one side the question whether an in rem suit brought ---------------------------------------- Page Break ---------------------------------------- 23 against property owned by a State "is not in effect a suit against the state," barred by New York I. 256 U.S. at 510. The Court instead relied upon a general principle, applicable in admiralty as in other settings, barring at- tachment of public property, including public vessels. The Court explained that, under international law, a sov- ereign's vessel could not be seized and subjected to admi- ralty process, so the same rule of comity should apply to vessels owned and operated by States, as well as by mu- nicipal corporations that are not entitled to the full sov- ereign immunity of States: "The principle so uniformly held to exempt the property of municipal corporations employed for public and governmental purposes from seizure by admiralty process in rem, applies with even greater force to exempt public property of a State used and employed for public and governmental purposes. " Id. at 511. In short, both New York cases involved maritime torts in which the injured parties were attempting to use the in rem form to avoid bringing an in personam action naming the State as a defendant. In New York I, the State was not in possession of the vessel and relief in the nature of damages was sought against a state officer. In New York II, the Court did not rest its decision on Elev- enth Amendment grounds. Neither New York case in- volved an in rem action to determine the antecedent question of the ownership of a vessel. Nor were the results in those cases novel. Long before the two New York decisions, this Court had rejected various attempts to use admiralty in rem process when the underlying action was essentially a suit against a State. Thus, in Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828), the Court disallowed an effort to file an in rem action against the Governor of Georgia. The Court held that the district court sitting in admi- ---------------------------------------- Page Break ---------------------------------------- 24 ralty lacked in rem jurisdiction because the subject mat- ter of the suit "was not in possession of the district court," but rather in the possession of the Governor on behalf of the State. Ibid.; see id. at 123. See also Ex parte Madrazzo, 32 U.S. (7 Pet.) 627, 632 (1833) (holding) in rem suit improper because slaves who were the subject of the dispute and the proceeds of their sale were not in the possession of the court, and holding that the suit, which sought compensation, was in the nature of a "personal suit against the state"). By the same token, the Court had also made clear long before the two New York cases that the mere assertion of an interest in an in rem proceeding is not enough to di- vest the federal court of jurisdiction. In United States v. Peters, 9 U.S. (5 Cranch) 115 (1809), the Court had to re- solve whether private claimants or the Commonwealth of Pennsylvania owned the proceeds of an admiralty prize sale. In explaining the parameters of Eleventh Amend- ment immunity, Chief Justice Marshall wrote for the Court: The [eleventh] amendment simply provides, that no suit shall be commenced or prosecuted against a state. The state cannot be made a defendant to a suit brought by an individual; but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one state against citizens of a different state, where a state is not nec- essarily a defendant. In this case, the suit was not instituted against the state, or its treasurer, but against the executrices of David Rittenhouse, for the proceeds of a vessel condemned in the court of admi- ralty, which were admitted to be in their possession. If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the ---------------------------------------- Page Break ---------------------------------------- 25 disclosure of that fact would have presented a case on which it is unnecessary to give an opinion; but it certainly can never be alleged, that a mere sugges- tion of title in a state, to property in possession of an individual, must arrest the proceedings of the court, and prevent their looking into the suggestion, and examining the validity of the title. Id. at 139. See also United States v. Bright, 24 F. Cas. 1232, 1236 (C. C. D. Pa. 1809) (No. 14,647) (Washington, J.) (holding that the Eleventh Amendment does not apply to in rem admiralty suits in which "the property in dispute is generally in the possession of the court," because "[a]ll the world are parties to such a suit, and of course are bound by the sentence. The state may interpose her claim and have it decided. But she cannot lie by, and, after the decree is passed, say she was a party, and there- fore not bound, for want of jurisdiction in the court."). In none of this Court's subsequent cases has contrary position been upheld. Indeed, although New York I has been cited for the proposition that the Eleventh Amend- ment bars a suit against an unconsenting State, 16. it has more often been cited for the related proposition that a suit in the nature of an in personam action will be barred ___________________(footnotes) 16 See Seminole Tribe of Florida V. Florida, 116 S. Ct. 1114, 1122 n.7 (1996); Pennsylvania v. Union Gas Co., 491 U.S. 1, 22 (1989) (plurality opinion); id. at 38 (Scalia, J., concurring in part and dissenting in part); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239 n.2 (19S5); Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89,99 (1984); id. at 141 n.18 (Stevens, J., dissenting); Patsy v. Board of regents, 457 U.S. 496, 528 (1982) (Powell, J., dissenting); Nevada v. Hall 440 U.S. 410, 441 n.5(1979) (Rehnquist, J., dissenting); Missouri v. Fiske, 290 U.S. 18,26(1933); The Western Maid, 257 U.S. 419, 434 (1922). ---------------------------------------- Page Break ---------------------------------------- 26 if the proceeding is essentially against the State. 17 New York has been cited for the proposition that a vessel or property in the sovereign's possession cannot be arrested in an in rem action. 18 In Treasure Salvors, this Court had no occasion to decide whether a State could invoke Elev- enth Amendment immunity in an in rem action when the property was not in the possession of the State, because in that case the state agents had custody of the disputed ar- tifacts. See 458 U.S. at 697 (plurality opinion) (leaving open extent to which federal court exercising in rem ad- miralty jurisdiction may adjudicate rights to property as against sovereign that did not appear and voluntarily as- sert claims against the res); id. at 710 & n.7 (White, J., concurring in the judgment in part and dissenting in part) (analogizing state sovereign immunity to federal and foreign sovereign immunity and declaring that "[o]nly when a vessel is not in the sovereign's possession[] is there controversy over the proper means by which the foreign government may assert its ownership''). 19 ___________________(footnotes) 17 See Welch, 483 U.S. at 473; Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 698 (1982) (plurality opinion); Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Dugan v. Rank, 372 U.S. 609, 620 (1963); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 277 (1959); Land v. Dollar, 330 U.S. 731, 738 (1947); Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 374 (1945); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945); Great N. Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944); Worcester County Trust Co. v. Riley, 302 U.S. 292, 296 (1937); State Highway Comm'n v. Utah Constr. Co., 278 U.S. 194, 199 (1929). 18 See Welch, 483 U.S. at 489 (plurality opinion); Treasure Salvors, 458 U.S. at 698 (plurality opinion); Mexico v. Hoffman, 324 U.S. 30, 34 (1945); Compania Espanola de Navegacion Maritima v. The Navemar, 303 U.S. 68, 72 (1938); The Western Maid, 257 U.S. at 433. 19 The court below used the term "colorable claim" to measure whether the State could properly invoke immunity under the Eleventh Amendment. We do read this Court's passing use of that phrase in ------------------------------------------ Page Break ---------------------------------------- 27 3. The requirement that a State must prove its claim in an admiralty in rem action is not dissimilar to the treatment historically given to foreign sovereigns and the United States. a. With respect to foreign sovereigns, this Court's de- cisions suggest that two different levels of proof were imposed, depending on whether the vessel was in the ac- tual possession of the foreign government or in the pos- session of a private party against whom the foreign gov- ernment asserted ownership. In the former situation, that government was required to come forward with at least some proof of ownership in a federal admiralty court; its mere assertion of title was insufficient. See, e.g., The Pesaro, 255 U.S. 216, 219 (1921). Where the for- eign government had a certificate of title or commission- ing document, such document "imports absolute verity, and the title is not examinable. The property must be taken to be duly acquired, and cannot be controverted." The Santissima Trinidad, 20 U.S. (7 Wheat.)" 283, 336 (1822). And even if the libellant who had brought the in rem action believed "clear proof" existed that ownership was improperly obtained by the foreign sovereign, the court would not entertain such evidence "unless the fact be established beyond all reasonable doubt." Id. at 339- 340. See also The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 147 (1812) (title to vessel under for- eign sovereign control would not be questioned where it was clear the vessel was under actual possession and con- trol of that sovereign). ___________________(footnotes) Treasure Salvors (see 458 U.S. at 694 (plurality opinion); id. at 711 (White, J., concurring in the judgment in part and dissenting in part)) to require an inquiry distinct from that required by this Court's cases where, as here, a sovereign claims ownership but is not in possession of the vessel. ---------------------------------------- Page Break ---------------------------------------- 28 By contrast, in cases in which the vessel was not in the actual possession of the foreign government, this Court imposed a more stringent evidentiary requirement on the government claiming ownership. Thus, in Compania Espanola de Navegacion Maritima v. The Navemar, 303 U.S. 68 (1938), the Court rejected the Spanish govern- ment's assertion of immunity based on a suggestion of ownership of the vessel in question. The Court upheld the district court's having undertaken an evidentiary as- sessment of whether the foreign sovereign possessed the vessel, and reversed the court of appeals' "mistaken" conclusion that the Spanish government's assertion of ownership must be accepted by the court at face value. Id. at 73-74. If the foreign sovereign opted to make a formal claim in the court, "the want of admiralty juris- diction because of the alleged public status of the vessel and the right of the Spanish Government to demand pos- session of the vessel as owner if it so elected, were appro- priate subjects for judicial inquiry upon proof of the mat- ters alleged." Ibid. 20 b. With respect to assertions of immunity by the United States, this Court has also required an eviden- tiary showing of proof of claims in in rem actions when United States government agents did not have actual possession of the property. In The Davis, 77 U.S. (10 Wall.) 15 (1869), cotton owned by the United States had been transported aboard a vessel that had confronted a marine peril. A salvor saved the cotton, and when it was delivered to its final destination, the salvor filed an in ___________________(footnotes) 20 By contrast, when the United States filed a suggestion of immunity on behalf of the foreign sovereign, the suggestion was conclusive. See 303 U.S. at 74; Ex parte Peru, 318 U.S. 578 (1943). Congress has since abrogated the sovereign immunity of foreign governments in certain admiralty contexts. See 28 U.S.C. 1605(b). ---------------------------------------- Page Break ---------------------------------------- 29 rem action against the cotton for a salvage award. The Court held that a maritime lien was enforceable against the United States under the rule that "proceedings in rem to enforce a lien against property of the United States are only forbidden in cases where, in order to sus- tain the proceeding, the possession of the United States must be invaded under process of the court." Id. at 20. The Court further concluded that the possession by the government "must be an actual possession, and not that mere constructive possession which is very often implied by reason of ownership under circumstances favorable to such implication." Id. at 21. The rationale for the rule requiring actual possession was "to prevent any unseemly conflict between the court and the other departments of the government, and which is consistent with the princi- ple which exempts the government from suit and its pos- session from disturbance by virtue of judicial process." Ibid.; see also The Siren, 74 U.S. (7 Wall.) 152, 159 (1868) (the ability of a claimant to proceed in rem to enforce lien against the United States depends on whether the vessel was in the government's custody, "because of the exemp- tion of the government from a direct proceeding in rem against the vessel whilst in its custody "). 21 21 With respect to to United States vessels, Congress enacted certain exceptions to sovereign immunity in the Public Vessels Act, ch. 428, 43 Stat. 1112,46 U.S.C. App. 781 et seq., and the Suits in Admiralty Act, ch. 95, 41 Stat. 525, 46 U.S.C. App. 741 et seq. The general purpose behind those statutes was to authorize in personam actions against the United States when public vessels were involved in maritime torts, in order to avoid tying up those vessels in in rem actions. As the legislative history of the Suits in Admiralty Act shows, the courts had held that vessels purchased, leased, and chartered by the United States Shipping Board to the Emergency Fleet Corporation for merchant use during World War I had been held to lack sovereign immunity. Accordingly, the statute permitted in personam suits but prohibited in rem suits. See S. Rep. No. 223, 66th Cong., 1st Sess. 2-3 (1919). ---------------------------------------- Page Break ---------------------------------------- 30 B. Petitioners Have Not Established Immunity From This In Rem Action Under the foregoing principles, the district court in this in rem action was obliged to conduct fact-finding on whether the State was in "actual possession" of the Brother Jonathan before assessing whether its claim of immunity required dismissal. The purpose of the immu- nity rule is that a court will not interfere with the sovereign's ownership and use of the vessel when it is in the sovereign's actual possession, at least unless that pos- session is clearly wrongful. The threshold issue of actual possession, however, may be examined by the court. In New York II, for example, this Court imposed a re- quirement on the State's Attorney General to provide a verified submission that the vessel was owned and pos- sessed by the State, and the Court further understood that the verified submission might be open to evidentiary challenge. See 256 U.S. at 509. Similarly, in Treasury Salvers, the plurality engaged in sufficient analysis of the facts to ascertain that "the State does not have even a colorable claim to the artifacts pursuant to these con- tracts." 458 U.S. at 694 (analyzing the provisions in the contract between Treasure Salvers and the State). The plurality's decision, therefore, rested on the fact that the state agents wrongfully possessed the artifacts. See also The Santissima Trinidad, 20 U.S. (7 Wheat.) at 339-340. And although the dissenters in Treasure Salvors disa- greed with the proposition that it was appropriate to ex- amine whether the sovereign's possession of the property was wrongful, that assessment was based on their view that sovereign immunity applied when "the property to be arrested was in the possession and ownership of the State." 458 U.S. at 708 (White, J., concurring in the ---------------------------------------- Page Break ---------------------------------------- 31 judgment in part and dissenting in part). 22 When the property is not in the sovereign's possession, the cases cited by the Treasure Salvors dissenters establish that judicial inquiry into the bona fides of the sovereign's ownership claim is appropriate. Nor does it seem an the present record that petitioners can plausibly assert that it is in "actual possesion" of the Brother Jonathan. Its agents apparently do not even know where the vessel is located. See Pet. App. A24 n.4. The fact that a shipwreck may be resting on state sub- merged lands is insufficient for a claim of actual ___________________(footnotes) 22 We disagree with one aspect of the court of appeals' reasoning by which it justified inquiring into petitioner's claim to ownership of the Brother Jonathan notwithstanding its invocation of immunity. The court asserted that, "in addressing the questions of abandonment, embeddedness, and historical significance of the wreck under the ASA, a federal court does not adjudicate the state's rights [because the] ASA does not vest title to wrecks that satisfy its requirements directly in the state. Rather, it provides that the federal government may assert title to such wrecks." Pet. App. A13-A14. In our view, the transfer provision of the ASA is automatic-once the statutory requisites have occurred, the transfer to the State is complete, although judicial proceedings may be required, after discovery of the shipwreck, to perfect that title. Cf. United States v. A Parcel of Land, Buildings, Appurtenances, and Improvements, Known as 92 Buena Vista Avenue, 507 U.S. 111, 126-127 (1993) (plurality opinion); United States v. Stowell, 133 U.S. 1, 16-17 (1890). The court below seemed to rely upon the statutory provision as justification for a per se rule permitting inquiry into a State's claim of title under the ASA. The court's rule, however, would also seemingly apply when the State was in actual possession of the shipwreck, through the discovery and salvage efforts of its agents. We agree that the derivative nature of the State's title reinforces the rejection of Eleventh Amendment immunity here, but absent some affirmative indication, we do not read the ASA's initial assertion of title by the United States to displace, for the States, the usual rule that immunity applies when the vessel is owned and possessed by the sovereign. ---------------------------------------- Page Break ---------------------------------------- 32 possession. In The Davis, the Court explained that "[t]he possession of the government can only exist through some of its officers, using that phrase in the sense of any person charged on behalf of the government with the control of the property, coupled with its actual posses- sion." 77 U. S. (10 Wall.) at 21. Once the district court determined that the requisites for its assertion of in rem jurisdiction had been satisfied, its jurisdiction over the Brother Jonathan was absolute and its final decree will be conclusive as to the whole world. There is no support in this Court's cases for a State to "opt out" of an in rem proceeding and then to declare that the court's in rem decree does not apply to it, when the State is not in actual possession of the vessel it claims to own-just as the United States has never been permitted to do so when the property is not in its actual possession. Accordingly, it was appropriate for the courts below to require petitioner to establish its owner- ship of the Brother Jonathan by the standard of proof any claimant must demonstrate in an in rem action: proof by preponderance of the evidence. 23 ___________________(footnotes) 23 The United States intervened in this action to defend the constitutionality of the Abandoned Shipwreck Act. The government's brief in the court of appeals took the position (Gov't C.A. Br. 16-22) that the court did not have to reach that question because respondent's in rem action was barred by the Eleventh Amendment. Upon a thorough reexamination of the issue in connection with the preparation of this brief, we have concluded that that position was incorrect. ---------------------------------------- Page Break ---------------------------------------- 33 II. THE COURT OF APPEALS ERRED IN ITS ASSESSMENT OF WHETHER THE BROTHER JONATHAN AND ITS CARGO WERE "ABANDONED" Notwithstanding our belief that petitioner cannot in- voke the Eleventh Amendment to avoid the district court's resolution of title in an in rem action unless the State is in actual possession of the shipwreck, we nonethe- less believe that, at least on the record as it stood at the time the district court ruled on the State's motion to dismiss, the State could establish its claim to ownership of the Brother Jonathan under a proper construction of the ASA. Where there is no evidence that the original owner attempted to recover the vessel or come forward to claim it in the in rem action, the courts may properly infer abandonment under the ASA. A. An Inference Of Abandonment Under The ASA May Be Drawn From An Absence Of Efforts To Recover Or Claim The Vessel Congress did not expressly define the term "abandoned" in the ASA. 24 The proper construction of ___________________(footnotes) 24 In regulations promulgated by the Department of the Interior, the agency entrusted with administering the ASA and in registering historic vessels (see 43 U.S.C. 2104(a), 2105(b)), the term "abandoned shipwreck" means "any shipwreck to which title voluntarily has been given up by the owner with the intent of never claiming a right or interest in the future and without vesting ownership in any other person." 55 Fed. Reg. 50, 116, 50, 120 (1990). In addition, the regulations provide that ''[w]hen the owner of a sunken vessel is paid the full value of the vessel (such as receiving payment from an insurance underwriter) the shipwreck is not considered to be abandoned. In such cases, title to the wrecked vessel is passed to the party who paid the owner." Id. at 50,120-50,121. Although that construction is entitled to deference, see Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984), it does not directly answer the ---------------------------------------- Page Break ---------------------------------------- 34 that term may be ascertained, however, from other pro- visions of the Act, its legislative history, the background usage of that term in admiralty, and the purposes of the ASA. 1. Section 2 of the ASA, 43 U.S.C. 2101, states Con- gress's findings with respect to abandoned shipwrecks: The Congress finds that - (a) States have the responsibility for management of a broad range of living and non-living resources in State waters and submerged lands; and (b) included in the range of resources are certain abandoned shipwrecks, which have been deserted and to which the owner has relinquished ownership rights with no retention. Accordingly, Congress contemplated that an "aban- doned" shipwreck would be one that has been "deserted" and "to which the owner has relinquished ownership rights with no retention." Ibid. In addition, the ASA specifies that one situation in which an abandoned vessel is covered by the Act is if the vessel is "embedded." See 43 U.S.C. 2105(a). The term "embedded" is defined as "firmly affixed in the submerged lands or in coralline formations such that the use of tools of excavation is required in order to move the bottom sediments to gain access to the shipwreck, its cargo, and any part thereof." 22 U.S.C. 2102(a). The fact that a shipwreck is "embedded" is itself some evidence that it has been "abandoned, " because the physical process by which a ___________________(footnotes) abandonment questions posed in this case: whether abandonment may be inferred by the passage of time and whether partial abandonment may defeat an assertion by the State to title to the abandoned vessel and cargo. ---------------------------------------- Page Break ---------------------------------------- 35 shipwreck becomes "embedded" is typically quite lengthy, thereby leading to an inference that the vessel's owner has relinquished any interest in it. See 134 Cong. Rec. 6616-6617 (1988) (statement of Rep. Bennet). The legislative history of the ASA establishes that Congress intended for abandonment to be determined based on the surrounding circumstances when the actual intentions of the owner are not otherwise known. "The Committee notes that the term 'abandoned' does not re- quire the original owner to actively disclaim title or own- ership. The abandonment or relinquishment of owner- ship rights may be implied or otherwise inferred, as by an owner never asserting any control over or otherwise indicating his claim of possession of the shipwreck." H.R. Rep. No. 514, supra, Pt. 1, at 2. The House Report further states that "[a]bandoned shipwrecks within the scope of this Act include those which have been deserted and to which the owner has relinquished all ownership rights. Except in the case of U.S. warships or other pub- lic vessels (which require an affirmative act of abandon- ment), abandonment may be implied or inferred from the circumstances of the shipwreck as when an owner has never asserted any control over or otherwise indicated a claim of possession." H.R. Rep. No. 514, supra, Pt. 2, at 5. 25 As a general rule, then, Congress did not intend a strict standard of abandonment under the ASA. See, e.g., Fairport Int'l Exploration, Inc. v. The Shipwrecked Vessel Known As The Captain Lawrence, 105 F.3d 1078, 1085 (6th Cir. 1997) ("Common sense makes readily ap- parent that the [ASA] did not contemplate a court's re- ___________________(footnotes) 25 See H.R. Rep. No. 514, supra, Pt. 2, at 13 (letter from Assistant Secretary of State expressing view that the presumption against abandonment of U.S. vessels should be accorded to sunken vessels that previously were in the non-commercial service of a foreign state). ---------------------------------------- Page Break ---------------------------------------- 36 quiring express abandonment; such explicit action is ob- viously rare indeed, and application of such a rule would render the ASA a virtual nullity."), petition for cert. pending, No. 96-1936. 2. The predominant admiralty law definition given to the word "abandoned" further supports a broad con- struction of that term in the ASA. As a general matter, if Congress adopts a term that has a certain meaning in admiralty law and does not define it differently in the words of the statute, the term should be given its admi- ralty law meaning. Cf. Moskal v. United States, 498 U.S. 103, 114 (1990). And where multiple definitions ex- ist and there is some doubt as to the precise meaning that Congress may have intended to import into the legisla- tion, it is "more appropriate to inquire which of the [admiralty] law readings of the term best accords with the overall purposes of the statute." Id. at 116. The majority view has always been that the process of determining abandonment is an inferential one based on the totality of the circumstances, in which an abandon- ment could be inferred by "the absence of a claimant or the neglect to claim." Russell v. Forty Bales Cotton, 21 F. Cas. 42, 46 (S.D. Fla. 1872) (No. 12,154). Very few cases involve an express renunciation by an owner, 26 thereby leading courts generally to look to factors such as the passage of time, the use or non-use of property, and the failure to launch a search for the property as indicators of abandonment. See, e.g, Commonwealth v. Maritime Underwater Surveys, Inc., 531 N.E.2d 549, 552 (Mass. 1988) ("[S]ince the Wydah has rested undisturbed and undiscovered beneath the sea for nearly three centu- ries, it is proper to consider the wreck abandoned."); 2 T. ___________________(footnotes) 26 But see The Georgiana, 245 F. 321 (lst Cir. 1917), where abandonment was expressly stated. ---------------------------------------- Page Break ---------------------------------------- 37 Schoenbaum, Admiralty and Maritime Law 16-7, at 340 (2d ed. 1994) ("In virtually all of the treasure salvage cases involving wrecks of great antiquity, the law of finds, not salvage, is appropriate because '[d]isposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths.' ") (quoting Treas- ure Salvors, Inc. v. Unidentified, Wrecked and Aban- doned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978)). 27 Admiralty courts traditionally have also drawn conclu- sions from who appears (and does not appear) in the ad- miralty proceedings to claim title to property; if no one other than the salvor appears, the property may be pre- sumed to have been abandoned. As Justice Story wrote in The Harrison, 14 U.S. (1Wheat.) 298, 299 (1816): Whenever a prize is brought to adjudication in the admiralty, if, upon the hearing of the cause, upon the ship's papers, and the evidence taken in prepara- tory, the property appears to belong to enemies, it is immediately condemned. If its national character appear doubtful, or even neutral, and no claim is in- terposed, the court[s] do not proceed to a final de- cree, but the cause is postponed, with a view to en- able any person, having title, to assert it, within a reasonable time, before the court. This reasonable time has been, by the general usage of nations, fixed at a year and a day after the institution of the prize ___________________(footnotes) 27 See also Rickard v. Pringle, 293 F. Supp. 981, 984 (E.D.N.Y. 1968) (ship's propeller that had been on the ocean floor for 60 years presumed abandoned); Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F. Supp. 452, 456 (E.D. Va. 1960) (derelict vessel and cargo presumed abandoned where they had remained in known location for 66 years). ---------------------------------------- Page Break ---------------------------------------- 38 proceedings; and if no claim be interposed within that period, the property is deemed to be abandoned. See also A. Lawrence, State Antiquity Laws and Admi- ralty Salvage; Protecting Our Cultural Resources, 32 U. Miami L. Rev. 291, 294 (1977) ("In addition to drawing an inference of abandonment from prolonged inaction, ad- miralty has attempted a partial solution of the abandon- ment problem by providing a means for all known claimants of the salvaged property to be noticed and heard. If no one other than the salvor appears, aban- donment may be presumed."). 3. The foregoing construction of the term "abandonment" for non-public vessels furthers the pur- poses of the ASA. Congress intended the Act to enable States to exercise managerial control over and acquire title to historic shipwrecks for the public's benefit: "[O]ur nation's Maritime heritage * * * is best pro- tected by states acting through their historic preserva- tion programs consistent with federal guidance." H.R. Rep. No. 514, supra, Pt. 2, at 8. The ASA thus seeks to preserve historic vessels and their contents for future generations. "These irreplaceable treasures of our past should not be the exclusive domain of a few people, whether they be salvors, divers, or archaeologists. By making them the property of the States, we put them in the hands of the public institutions best able to manage them." 134 Cong. Rec. 6618 (1988) (statement of Rep. Udall). The ASA provides for historic shipwrecks to be treated like other cultural property that is to be pro- tected for public preservation and enjoyment. That pur- pose is best served by a general presumption that ship- wrecks are "abandoned" within the meaning of the Act when no owner has appeared to assert title to the vessel ---------------------------------------- Page Break ---------------------------------------- 39 or its cargo and a long period of time has elapsed since the shipwreck occurred. B. The Court of Appeals Erred In Its Approach To The Abandonment Question The court of appeals recognized the "traditional ap- proach to abandonment which allows abandonment to be inferred on the basis of circumstantial evidence" (Pet. App. A15), but it nonetheless affirmed the district court's holding that petitioners had not established that the Brother Jonathan was abandoned. The court of appeals' decision rested on three propositions. First, that aban- donment should not be inferred because recovery of the vessel only recently became technologically feasible. Sec- ond, that the res-i.e., the vessel and its cargo-should not be divided into abandoned and unabandoned parts. And third, that because part of the cargo was "unabandoned" the rest of the vessel and its cargo should be assumed to be unabandoned as well. Each of those propositions is incorrect. 1. Even though the court below stated that a wreck is not abandoned unless "title is affirmatively renounced" or "abandonment can be inferred from the lapse of time or failure to pursue salvage efforts on the part of the owners" (Pet. App. A16), it nonetheless held that "[w]hen the technology to conduct salvage operations has been developed recently, failure on the part of an owner to attempt to salvage the wreck does not give rise to an in- ference that the owner has abandoned title to the vessel" (id. at A17). The logical import of the court's holding is that all vessels sunk before modern technology created the means for their discovery and salvage will be pre- sumptively unabandoned. That test essentially requires an express statement that the owner has relinquished all rights in the vessel and its cargo. ---------------------------------------- Page Break ---------------------------------------- 40 The Ninth Circuit's resistance to inferring abandon- ment constrains the States' management of historic re- sources and thereby undermines one of the principal purposes of the ASA. Indeed, a major impetus for en- actment of the ASA was to assure protection for historic and recreational interests in light of the development of new technologies that allowed recovery of long sub- merged and abandoned shipwrecks. S. Rep. No. 241, 100th Cong., 1st Sess. 6 (1987). Certainly the availability of technology to discover and salvage the vessel may be a relevant factor in assessing the circumstances surround- ing an alleged abandonment-e.g., where the original ves- sel owner has manifested a continued ownership claim through some affirmative acts, but has not previously undertaken or succeeded in any actual salvage activities. But divorced from any other indication that the owner has asserted an interest, a prior inability to salvage a shipwreck as a technological matter should not defeat an inference that the vessel owner has abandoned the vessel. To the contrary, the absence of any feasible means to re- cover a sunken vessel would normally reinforce an infer- ence that the owner had given up any prospect of doing so. Moreover, if the development of new technology prevents a finding of abandonment and passage of title to the State, yet the true owner does not come forward in the admiralty proceedings to claim the vessel, the ship- wreck will remain in legal limbo without any identified owner. Such a rule would defeat the very purposes of the in rem proceeding: to definitively resolve the ques- tion of ownership as against the whole world. 2. The court of appeals further erred by holding that the Brother Jonathan and its cargo should be treated as a unified res. See Pet. App. A18. The court concluded that dividing the Brother Jonathan into abandoned and unabandoned parts would be both inconsistent with gen- ------------------------------------------- Page Break ---------------------------------------- 41 eral maritime law and ill-advised, because it would mean that both a federal court and a state court might be adju- dicating the issues concerning the fate of the Brother Jonathan. Ibid. That analysis is incorrect. Nothing in the ASA forecloses a finding of partial abandonment. The Act defines "shipwreck" conjunc- tively to include the "vessel or wreck, its cargo, and other contents." 43 U.S.C. 2102 (d). As we have ex- plained, moreover, the Act has two principal aims: to preserve historic shipwrecks and their contents and to ensure appropriate management of shipwreck sites even when the State does not have title to the entire ship- wreck. Congress entrusted the States with stewardship of those aims. As Representative Moody observed during congressional debates on the ASA, "[t]he States are better qualified to manage historic shipwrecks. Where admi- ralty courts focus on salvage interests, the States balance the interests of the salvager with the interests of the en- vironment, historic preservation, and recreation. States are clearly in the best position to regulate and protect our irreplaceable historic and cultural artifacts." 134 Cong. Rec. 6619 (1988). The cargo and personal possessions on board the Brother Jonathan are submerged cultural artifacts- every bit as important historically as the vessel itself (and typically of principal importance to the finder, for it is by recovering cargo that finders earn their name "treasure" salvors). Historic preservation is clearly served by allowing the State to take title to those arti- facts that have rested at the bottom of the sea for over 130 years and were neither insured nor claimed by any- one. See Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 465 & n.6 (4th Cir. 1992) (holding that "an abandonment may be found * * * as to any recovered parts of the ship, all passenger posses- ---------------------------------------- Page Break ---------------------------------------- 42 sions, and any cargo besides the insured shipments," since no party appeared to claim those items), cert. denied, 507 U.S. 1000 (1993). That approach is consistent with the ASA guidelines issued by the Secretary of the Interior. The guidelines provide that a vessel is not abandoned "when the owner of a sunken vessel is paid the full value of the vessel" by an underwriter. 55 Fed. Reg. 50, 116-50, 120 (1990) (emphasis added). Where full value has not been paid for an item of property (the vessel or a piece of its cargo), however, there is no reason to treat that property as unabandoned. Recognition of partial abandonment also is consistent with the law of salvage, under which the saving of some or all of the cargo, apart from the ship, is a salvage serv- ice and therefore compensable. 3A Benedict, supra, 23, at 2-16. That is the ancient rule of admiralty. See 3 J. Kent, Commentaries on American Law 245 (12th ed. 1873) (salvage is "compensation allowed to persons by whose assistance a ship or its cargo has been saved in whole or in part from impending danger," etc.). There is no reason, in common sense or law, for considering the ship and its contents as a unified res not subject to partial abandonment. See Stratton v. Jarvis, 33 U.S. (8 Pet.) 4, 9-10 (1834) (property of several different owners on the vessel treated as distinct property under law of salvage); Bemis v. RMS Lusitania, 884 F. Supp. 1042 (E.D. Va. 1995) (hull, cargo and personal property distinct and may be salvaged independent of one another), aff'd, 99 F.3d 1129 (4th Cir. 1996), petition for cert. pending, No. 96- 1448. If a wreck is only partially abandoned (and there- fore only partially owned by the State), salvors would not thereby be authorized to recover the remainder in man- ner that is inconsistent with state regulations designed to ensure archaeologically and environmentally sound op- erations. Cf. Idaho v. Coeur d'Alene Tribe, 117 S. Ct. ---------------------------------------- Page Break ---------------------------------------- 43 2028, 2041 (1997) (title to submerged lands confers regulatory jurisdiction on the States); The Blackwall, 77 U.S. (10 Wall.) 1, 14 (1869) (even in law of salvage, skill of salvor is relevant in making an award). Moreover, the "[r]ights of access" specified in the ASA itself declare a congressional policy for States to "develop appropriate and consistent policies so as to * * * allow for appropriate public and private sector recovery of shipwrecks." 43 U.S.C. 2103 (a) (2). For shipwrecks that contain unabandoned property, a State may issue permits for the recovery of such property in a manner "consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites." 43 U.S.C. 2103 (a) (2) (C). Upon recovery, the State may readily establish procedures for the return of any un- abandoned property to its rightful owner. 3. After erroneously concluding that it could not find partial abandonment, the court of appeals compounded its mistake by ruling that the existence of some unaban- doned property on the shipwreck required a finding that the entire vessel and its contents are unabandoned. "Because the law is reluctant to find abandonment, and because a finding of partial abandonment would deprive those holding title to the unabandoned portion of the wreck access to the federal forum," the court held, "the Brother Jonathan was not abandoned." Pet. App. A19 (citation omitted). That concern is misplaced. As we have explained in point I, respondent is entitled to a federal forum, in this in rem proceeding, to determine title to the Brother Jonathan and its items of cargo. If the federal court finds that the vessel and certain of its cargo are aban- doned (and meet the other conditions of the ASA), it will decree title of that property to the State. At that point, it is entirely appropriate that management of the State's ----------------------------------------- Page Break ---------------------------------------- 44 property would be turned over to state authorities, 28. and the ASA contemplates that States will set up their own policies and procedures to do so. It also is appropriate for state tribunals to determine the adequacy of those proce- dures, so long as they do not conflict with the exclusive in rem jurisdiction of the federal admiralty court. The court of appeals' unified res rule of abandonment under the ASA, by contrast, would frustrate the pur- poses of the Act. If the court's analysis were correct, no shipwreck containing any property owned by the United States could ever be covered by the ASA (and thus would be subject in its entirety to the admiralty laws of finds and salvage), because the United States does not abandon its property except by express renunciation of title. 29 The same would be true so long as it could be shown that some property on the vessel was, and continues to be, owned by someone (perhaps unknown) other than the State. Thus, as in this case, a subrogee of an insurance claim to a por- tion of the vessel's cargo would always be able to defeat a contention that the ASA applied to any other portion of the cargo or to the vessel itself. That result would upset the regulatory scheme envisioned by the ASA by creat- ing an incentive for would-be finders in admiralty to frustrate the ASA's transfer of title to the State through the purchase, where possible, of insurers' rights. ___________________(footnotes) 28 Nothing in the ASA creates exclusive jurisdiction in federal courts over claims arising under the Act. Thus, a plaintiff could sue in state court for a declaration that the ASA did not apply. Such a suit would not have the advantage of an in rem decree against the whole world, but it would definitively resolve a State's claim to title under the ASA. 29 See U.S. Const. Art. IV, 3, Cl. 2. See generally United States v. California, 332 U.S. 19 (1947); Royal Indemnity Co. v. United States, 313 U.S. 289, 294 (1941); see also 41 C.F.R. 101-45.900 et seq. (agency determinations for abandonment of federal property). ---------------------------------------- Page Break ---------------------------------------- 45 C. Application Of The Appropriate Standard In This Case With the foregoing principles in mind, the record compiled to date would support a finding that the Brother Jonathan itself was "abandoned" within the meaning of the ASA because of the time that has passed since the shipwreck (130 years) and the, failure of any pu- tative owner to claim title to the ship or to search for the property. The existence of claims by the United States and others to ownership of unabandoned property aboard the Brother Jonathan does not alter that result. There is no evidence that the owner of the vessel has made any claim of ownership or any attempt to locate the vessel since the Brother Jonathan sank in 1865. Respon- dent asserts that insurance claims on the vessel were paid in 1865 and that the insurers' successors-in-interest have assigned their subrogation interests to it. A newspaper article introduced during the district court hearing (J.A. 138-145) lists insurance claims paid by five underwriters for losses aboard the vessel (Pet. App, A31 n.9), but there was no evidence that the ship itself was insured (id. at A4). 30. Given that there is no dispute that those subro- gated claims involve only a portion of the cargo-leaving aside whether they are valid claims at all-there is no apparent basis for the court to deny petitioner's conten- tion that the Brother Jonathan and most of her cargo were abandoned. A ruling for the State to that extent would permit the application of state procedures for the management of the site with due consideration of the in- ___________________(footnotes) 30 The district court decision states that five insurance companies paid claims totaling 48,490 and that approximately two-thirds of the cargo was uninsured. Pet. App. A21. ---------------------------------------- Page Break ---------------------------------------- 46 terests of the United States and respondent as the succes- sor-in-interest to other property. 31 III. THE ASA DOES NOT PREEMPT STATE STATUTES ASSERTING TITLE TO SHIP- WRECKS ABANDONED INSTATE WATERS If, as the record suggests, California is entitled to own- ership of the Brother Jonathan and portions of its cargo under the ASA and to exercise its regulatory powers to ensure appropriate recovery of the unabandoned portions of the shipwreck, there would be no need to decide whether the ASA preempts Section 6313 the California Public Resources Code (West Supp. 1997), as the court below held. A finding of abandonment under the ASA would render moot whether a provision of state law would also vest title in the Brother Jonathan in the State. The parties stipulated that the Brother Jonathan is located in state waters, and the vessel has been deter- mined eligible for inclusion on the Historic Register since October 12, 1995. Accordingly, even if there is some doubt concerning whether the vessel is embedded, the Brother Jonathan would meet the standards of the ASA for transfer of title to the State: it is historic, abandoned, and in state waters. On the other hand, if the Brother Jonathan is definitively found on remand not to be aban- doned within the meaning of the ASA, petitioners' reli- ance on the state statute would become significant. The narrow preemption issue before this Court is whether Section 7(b) of the ASA, 43 U.S.C. 2106(b), pre- ___________________(footnotes) 31 The existing record was developed in connection with petitioners' motion to dismiss on Eleventh Amendment grounds. Because the courts below properly denied that relief, the district court presumably must now decide in the first instance whether any further evidence should be received on abandonment or other issues going to the merits of petitioners' and respondents' claims. ---------------------------------------- Page Break ---------------------------------------- 47 empts Section 6313 of the California Public Resources Code 32. for shipwrecks not covered by the ASA. Section 7(b) provides that the ASA "shall not change the laws of the United States relating to shipwrecks, other than those to which this chapter applies." 43 U.S.C. 2106(b). The court of appeals read that provision as a clear state- ment that "Congress intended to transfer title to the states only for shipwrecks that meet the requirements of the ASA," and that "[a]ll other shipwrecks continue to be ___________________(footnotes) 32 Section 6313 of the California Public Resources Code (West Supp. 1997) provides, in pertinent part: (a) The title to all abandoned shipwrecks and all archaeological sites and historic resources on or in the tide and submerged lands of California is vested in the state. All abandoned shipwrecks and all submerged archaeological sites and submerged historic resources of the state shall be in the custody and subject to the control of the commission for the benefit of the people of the state of California. * * * (b) As used in this section, "submerged archaeological site" and "submerged historic resource," shall be given the broadest possible meaning, to include any submerged object, structure, building, watercraft, or vessel and any associated cargo, armament, tackle, fixture, human remains, or remnant thereof, or any site, area, person, or place, which is historically or archaeologically significant, or significant in the prehistory or history o[f] exploration, settlement, engineering, commerce, militarism, recreation, or culture of California and which is partially or wholly embedded in or resting on state submerged or tidal lands. (c) Sites with archaeological or historic significance shall be determined by reference to their eligibility for inclusion in the National Register of Historic Places. Any submerged archaeological site or submerged historic resource remaining in state waters for more than 50 years shall be presumed to be archaeologically or historically significant. * * * ---------------------------------------- Page Break ---------------------------------------- 48 subject to the exclusive admiralty jurisdiction of the fed- eral courts." Pet. App. A8. The court misread the Act. Nothing in Section 7 of the ASA expresses an intent to preempt state statutes. Unlike other federal statutes that unequivocally occupy a certain regulatory field, 33. Section 7 operates in a quite different way. Section 7(a) merely states that the ASA's provisions apply only to certain abandoned shipwrecks that meet the Act's crite- ria. If a shipwreck meets those criteria, the ASA applies and other federal laws do not. If a shipwreck does not meet the ASA's criteria, however, Section 7(b) expresses an intent not to affect the operation of any other federal law -e.g., the law of salvage and finds-with respect to such shipwrecks. In that event, it would become neces- sary to look to that other federal law to determine whether the state statute is preempted. The ASA would have no remaining preemptive force in its own right. 34 Contrary to the court of appeals' belief, nothing in Sec- tion 7(b) states that "[a]ll other shipwrecks continue to be the subject of the exclusive admiralty jurisdiction of the federal courts." Pet. App. A8. Section 7(b) provides only that the ASA "shall not change the laws of the ___________________(footnotes) 33 See, e.g., 29 U.S.C. 1144 (employee benefit plan preemption clause); 15 U.S.C. 1334 (tobacco regulation); 15 U.S.C. 2617 (hazardous chemicals). 34 Nothing in the ASA itself expresses an intent to occupy the field of shipwreck regulation or to preempt state law. To the contrary, the ASA obviously contemplates state ownership and management of abandoned, historic shipwrecks located within state waters. The House Report accompanying passage of the ASA makes clear that "the Committee intends that states should have title to historic and certain other abandoned shipwrecks in state waters, thereby eliminating the assumption that there is no owner of these wrecks. * * * [O]ur nation's maritime heritage * * * is best protected by states acting through their historic preservation programs consistent with federal guidance." H.R. Rep. No. 514, supra, Pt. 2, at 8. ---------------------------------------- Page Break ---------------------------------------- 49 United States relating to shipwrecks, other than those to which this chapter applies," 43 U.S.C. 2106(b) (emphasis added), without saying what the preemptive force of those (unchanged) laws is. The court apparently misun- derstood the interrelationship between Section 7(a) and (b) of the ASA. Section 7(a) states that ''[t]he law of sal- vage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies." 43 U.S.C. 2106(a). The court seemed to think that Section 7(b)'s savings clause was intended to ensure that "[t]he law of salvage and the law of finds shall * * * apply" to shipwrecks not covered by the Act. But Section 7(b) does not provide the inverse of Section 7(a). Instead, it simply expresses an intent not to change any laws of the United States except with respect to shipwrecks covered by the Act. Whether any other "laws of the United States" may properly be found to preempt any applicable provision of California state law was not analyzed by the court below. That question is best left for determination in the first instance by the district court on remand. If the court concludes that the Brother Jonathan and certain of its cargo are covered by the ASA, title to that property will be confirmed in the State. The question of application of the state statute to that property would then never arise. If the district court determines that the property is not covered by the ASA, the court would retain its admiralty jurisdiction. At that point, the question whether any provisions of state law that petitioners invoke are pre- empted by federal admiralty law would be ripe for con- sideration in a concrete context's. 35 ___________________(footnotes) 35 Questions of preemption of state statutes by federal maritime law are often quite complex. As this Court has observed, "[i]t would be idle to pretend that the line separating permissible from impermissible ---------------------------------------- Page Break ---------------------------------------- 50 CONCLUSION The judgment of the court of appeals should be reversed and the case should be remanded for further proceedings. Respectfully submitted, WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General STEPHEN W. PRESTON Deputy Assistant Attorney General DAVID C. FREDERICK Assistant to the Solicitor General ROBERT S. GREENSPAN RICHARD A. OLDERMAN Attorneys AUGUST 1997 ___________________(footnotes) state regulation is readily discernible in our admiralty jurisprudence." American Dredging Co. v. Miller, 510 U.S. 443,452 (1994).