NORTHEAST RESEARCH, LLC, Plaintiff-Appellant, v. ONE SHIPWRECKED VESSEL, Her Tackle, Equipment, Appurtenances and Cargo Located Within Two Nautical Miles of a Circle with the Center Point at the Coordinates 42 Degrees 33 Minutes North Latitude, and 79 Degrees 36 Minutes West Longitude, in rem Defendant-Appellee, and State of New York, Claimant-Appellee.
No. 11-1644-cv.
United States Court of Appeals, Second Circuit.
Sept. 5, 2013.
729 F.3d 197
Submitted: Dec. 10, 2012.
IV.
This trial was marred by significant errors, including: trying the defendant in shackles without a finding of necessity on the record; failing to investigate alleged juror misconduct; and providing an improper Allen charge to the jury. There were also serious evidentiary errors, in particular the improper admission of lay opinion testimony and the failure to strike expert testimony regarding the defendant‘s realization that there were drugs in her rental car. These errors occurred in the context of a short trial in which the evidence was introduced in less than three days. This was a close case that prompted approximately eight hours of jury deliberations and a jury note asking for help because the jury was hopelessly deadlocked. It was only after the Judge instructed the jury that the Court “believe[d]” that they would reach a verdict that the jury did just that.
Individually, these errors may not provide a basis for vacating the defendant‘s conviction. However, when considered together, in the context of this trial, these errors call into serious doubt whether the defendant received the due process guarantee of fundamental fairness to which she and all criminal defendants are entitled. See Taylor v. Kentucky, 436 U.S. 478, 487 n. 15, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); see, e.g., United States v. Al-Moayad, 545 F.3d 139, 178 (2d Cir.2008); United States v. Guglielmini, 384 F.2d 602, 607 (2d Cir. 1967). Therefore, we VACATE the judgment of the District Court and REMAND for proceedings consistent with this opinion.
CONCLUSION
We have considered all of the arguments of the parties. To the extent not specifically addressed above, they are moot. For the reasons explained above, we VACATE the judgment of the District Court and REMAND for proceedings consistent with this opinion.
Peter E. Hess, Law Office of Peter E. Hess, Wilmington, DE, for Plaintiff-Appellant Northeast Research, LLC.
Frank Brady, Assistant Solicitor General (of Counsel), Nancy A. Spiegel, Senior Assistant Solicitor General, Barbara D. Underwood, Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Claimant-Appellee the State of New York.
David J. Bederman, Esq., Atlanta, GA, for Amicus Curiae Odyssey Marine Exploration, Inc.
DEBRA ANN LIVINGSTON, Circuit Judge:
This action arises from the chill depths of Lake Erie, where lies the intact shipwreck of an early nineteenth century wooden schooner. In 2004, Plaintiff-Appellant Northeast Research, LLC (“Northeast“) filed an in rem action in federal court laying claim to the shipwreck under admiralty law as the finder and salvor of the sunken vessel. Claimant-Appellee the State of New York (“New York“) intervened, asserting title to the wreck under state law and the Abandoned Shipwreck Act (“ASA,” or the “Act“),
On summary judgment, the parties disputed whether, as Northeast proposed, the shipwreck was actually the General Wayne, which participated in the Battle of Lake Erie during the War of 1812, or, as New York argued, an abandoned and “nameless 1830s schooner that sank carrying grain.” The district court found that the wreck is abandoned, that no material issue has been raised to the contrary, that New York accordingly proved its claim under the ASA, and that Northeast is not entitled to a salvage award. See Northeast Research, LLC v. One Shipwrecked Vessel, 790 F.Supp.2d 56, 64-66 (W.D.N.Y. 2011). On appeal, Northeast seeks review of the district court‘s holding that New York has title to the wreck pursuant to the ASA, an inquiry that requires this Court to articulate the standard of proof for abandonment under the ASA and whether abandonment of a shipwreck must be express, or may be inferred circumstantially.
For the reasons stated below, we conclude that abandonment may be inferred from circumstantial evidence, and we affirm the judgment of the district court on the basis: (1) that the record demonstrates by clear and convincing evidence that the shipwreck is abandoned within the meaning of the ASA; and (2) that Northeast has failed to raise a material dispute of fact on this issue.
BACKGROUND
I. Facts
In review of the district court‘s grant of summary judgment to New York, we view the facts in the light most favorable to Northeast. Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011). Accordingly, the following facts, unless otherwise noted, are undisputed or construed in Northeast‘s favor.
A. Discovery and Arrest of the Shipwreck
Richard Kullberg formed Northeast in 2004 for the purpose of searching the bottom of Lake Erie for old shipwrecks. Kullberg, who had purchased a set of GPS coordinates indicating the potential location of Lake Erie wrecks, discovered the Defendant-Res in 2003 while searching for another shipwreck by means of a remote-operated vehicle.1 Known as the “Dunkirk Schooner” for the nearby port of Dunkirk, New York, the wreck lies at an approximate depth of 170 feet on submerged New York land in the eastern basin of Lake Erie, where the water temperature remains around 37 degrees Fahrenheit. The depth of the freshwater covering the wreck and the cool temperature have combined to preserve the wooden vessel in relatively pristine condition. Northeast
On August 6, 2004, Northeast filed the instant in rem admiralty action in the Western District of New York, seeking title to the Dunkirk Schooner under the maritime2 law of finds, or, in the alternative, a salvage award, and requesting a preliminary injunction prohibiting any rival salvors from diving or conducting salvage operations within two nautical miles of the wreck site. Northeast also moved for issuance of a Warrant of Arrest3 of the shipwreck and to be appointed her Substitute Custodian in place of the U.S. Marshals. The district court granted both motions, directing Northeast to provide public notice of the action and arrest of the shipwreck, and for any person claiming an interest in the Dunkirk Schooner to make an application to the court. In September 2004, New York responded to that call by filing an answer to the complaint asserting that the Dunkirk Schooner is the sole and exclusive property of the State pursuant to the ASA, the Submerged Lands Act,
B. Excavation of the Dunkirk Schooner
In 2004, following its appointment as custodian of the Dunkirk Schooner, Northeast engaged Kenneth Vrana and Robert Reedy of the Center for Maritime & Underwater Research Management (“CMURM“) as the “archaeological team” that would lead the investigation of the Dunkirk Schooner. Vrana, the president of CMURM, is an underwater archaeologist who specializes in the survey and assessment of historic shipwrecks; Reedy is also an underwater archaeologist and experienced diver. Kullberg, Vrana, and Reedy hoped to partner with New York in order to establish the identity of the wreck and avoid an extended legal battle.4 To that end, Vrana and Reedy prepared a “research design” to guide further archaeological and historical research of the Dunkirk Schooner, a process that included documentation and survey of the site without intrusive testing or excavation. Northeast, through its archaeological team, arranged to store any recovered artifacts at Mercyhurst College in Erie, Pennsylvania. On May 16, 2008, CMURM applied to the New York State Museum, a division of the New York State Education Department, for a permit to collect and excavate archaeological materials at the wreck site. On June 4, 2008, pursuant to
The primary objective of Northeast‘s physical investigation of the Dunkirk Schooner was to determine the identity of the ship, which remained a mystery, by taking measurements, excavating its cargo, and collecting artifacts. The process included “desilting” parts of the wreck, obtaining core samples of the forward hold, and a limited inspection of the after hold. Due to the depth of the wreck, excavating and documenting the Dunkirk Schooner required “technical” diving, “a form of self-contained diving using various mixed gases and requiring special training and experience.”
Although Northeast‘s efforts, including the work of Vrana and Reedy, discovered no identifying marks on the vessel, they did unearth a trove of clues. Core samples from the forward hold yielded a mixture of wheat and barley. The after hold, although not fully excavated, contained hickory nuts. Divers recovered a range of artifacts indicative of daily life aboard a sailing vessel, including ceramic wares, watches, two compasses, lamps, crockery, period furniture, jewelry, book bindings, brass buttons, and coins with dates from 1797 to 1834. Divers working for Northeast—apparently without the knowledge of Vrana and Reedy—also found human bones. Northeast submitted some of these bones to a lab for DNA analysis, which revealed that they mostly likely came from an individual of Caucasian origin.
Toward the end of the summer of 2008, the relationship between Northeast and CMURM hit rough waters, in part as a result of the discovery of the human remains, and Vrana and Reedy took no part in field investigations after August 15, 2008. On October 21, 2008, the State Museum notified Vrana of alleged violations of the excavation permit, including the recovery of human remains without notification to the State, continued diving by Northeast after the expiration of the permit on September 30, 2008, and the removal of planks from the roof of the Dunkirk
On March 4, 2009, based on an application by the New York State Office of Parks, Recreation and Historic Preservation, the National Park Service deemed the Dunkirk Schooner Site eligible for placement on the National Register of Historic Places.
II. Procedural History
A. The Dispute Over the Identity of the Dunkirk Schooner
On July 31, 2009, New York moved for summary judgment on the ground, inter alia, that the Dunkirk Schooner is abandoned within the meaning of the ASA such that title automatically vests with the State.8 Northeast filed a cross-motion for partial summary judgment on August 4, 2009, disputing New York‘s claim to title and, in the alternative, requesting a salvage award. The parties’ summary judgment arguments and materials in the record, including the CMURM Report and other analyses, focused largely on the issue of abandonment, specifically, whether the Dunkirk Schooner could be positively identified as the General Wayne, which Northeast asserted was not abandoned.
Kullberg proposed the General Wayne, originally christened the Caledonia, as a possible candidate for the identity of the Dunkirk Schooner after he and Northeast‘s videographer discovered a line drawing of the Caledonia in the Erie Maritime Museum. Vrana and Reedy‘s archival research into the Caledonia, as detailed in the CMURM Report, laid bare the following history: Built in 1799 in present-day Windsor, Canada, the Caledonia was a merchant vessel for the North West Company and was employed in the fur trade on Lake Erie. When the War of 1812 transformed Lake Erie into a battle front-line, the British armed the Caledonia with cannons and deployed her in the attack on Fort Michilimackinac in 1812. She was later captured on the Niagara River and converted into an American warship, and in that guise the Caledonia played a role in Commodore Perry‘s key victory in the Battle of Lake Erie in 1813. By 1814, an American captain reported that “[t]he Caledonia is unseaworthy, from natural decay,” and recommended her for sale. Newspaper accounts and a bill of sale show that in 1815, John Dickson and Rufus S. Reid of Erie, Pennsylvania bought the Caledonia and retrofitted or rebuilt her, renaming her the General Wayne. The last reported mention of the General Wayne was in the year 1818. No reliable reports of her sinking or other disposition have surfaced.
In support of its motion for summary judgment, New York offered the expert report of Arthur B. Cohn, executive director of the Lake Champlain Maritime Museum. Cohn concluded “with a high degree of confidence” that the Dunkirk Schooner is not the General Wayne, but an unidentified merchant vessel built shortly before 1829 and which sank sometime between 1834 and 1844. He reached this
Cohn also offered testimony to support New York‘s contention that the Dunkirk Schooner was abandoned long ago. Cohn opined that the technology to locate and recover the vessel existed at or about the time of its sinking. He alluded, specifically, to the salvage of the Steamboat Atlantic, which sank in about 160 feet of water in Lake Erie in 1852, and was salvaged by hardhat divers working in 1852 and 1855 and descending to 139 feet and 155 feet, respectively. Cohn noted that the Dunkirk Schooner‘s masts rise to about 100 feet from the surface, making it at least a potential candidate for salvage, and yet there is no evidence that any salvage effort was ever made. Cohn opined, finally, that the schooner‘s “mixed cargo of grain and hickory nuts would not have provided the economic incentive to drag the lake and
In support of Northeast‘s assertion that it had found the wreck of the General Wayne, Northeast submitted an archaeological site assessment by James Sinclair (the “Sinclair Report“).11 The Sinclair Report concluded that the cumulative physical evidence, including the Dunkirk Schooner‘s distinctive “fiddlehead” bow, the notched rudder, measurements taken by divers, and other architectural features, “substantiates the fact that the Dunkirk Schooner is none other than the storied former warship and Underground Railroad freedom boat, the CALEDONIA/GENERAL WAYNE.” According to Sinclair, all other theories for the identity of the shipwreck could be scuttled based on inconsistencies with the Dunkirk Schooner. Sinclair also noted that the Dunkirk Schooner‘s lack of identifying markings would be consistent with the purported use of the General Wayne in the smuggling of slaves to freedom. Sinclair reported that the General Wayne‘s owners, Reid and Dickson, were active in the abolitionist movement and their houses in Erie, Pennsylvania, “feature extensive labyrinths of underground passageways reputedly used to hide fugitive slaves prior to their final journey to freedom in Canada.” He speculated that the ship may have been carrying fugitive slaves at the time it sunk.
Northeast also commissioned an opinion paper from Rindlisbacher, the marine artist who specializes in Great Lake vessels, regarding the “likelihood that the Dunkirk wreck is actually the CALEDONIA” based on the shipwreck‘s “design features, deck fittings and present conditions.” Rindlisbacher compared the Dunkirk Schooner with known examples of the design features of ships contemporary to the Caledonia, concluding that the shipwreck‘s “design features, deck fittings and other characteristics ... are consistent with the supposed appearance of the CALEDONIA to a significant extent,” and that nothing had “convincingly exclude[d]” the Caledonia as a possible candidate. Rindlisbacher recognized, however, that “[v]ery little” is known about the physical aspects of the historic Caledonia, a circumstance which “adds increased difficulty to evaluating whether the present wreck is actually the original CALEDONIA.” Rindlisbacher also acknowledged that the “most difficult fact” weighing against identifying the shipwreck as the General Wayne/Caledonia is that, assuming that she sank sometime after 1834 (the date of the newest coin on the wreck), she would have been at least 35 years old at her sinking (based on a 1799 launch date), and “[t]he general wisdom is that these early schooners seldom had that long a lifespan.” Nevertheless, “if we allow that CALEDONIA was repaired or refurbished at least once and perhaps additionally through her career, and finally foundered in an end-stage barge condition,” Rindlisbacher offered, “it is conceivable that she might have been afloat for all those 35 or more years before her loss.”
Finally, Northeast located Hannah Reed Mays, one of the descendants of Rufus S. Reid, the General Wayne‘s co-owner. Northeast obtained from her an assignment to Northeast of her ownership interest in the General Wayne (the “Mays Assignment“), which it proffered as additional evidence in support of its claim that the Dunkirk Schooner is not abandoned.12
In a Report and Recommendation dated May 27, 2010, the magistrate judge (Leslie G. Foschio, Magistrate Judge) to whom the case was referred recommended granting New York‘s motion for summary judgment and denying Northeast‘s request for a salvage award. See Northeast Research, 790 F.Supp.2d at 66-89 (appending Report and Recommendation). With regard to New York‘s claim under the ASA, Magistrate Judge Foschio found that “even if the [v]essel is, as [Northeast] urges, the Caledonia/General Wayne,” id. at 81, “clear and convincing evidence in the record establishes an inference of abandonment,” id. at 80, and thus the State has title to the Dunkirk Schooner.13
Northeast filed objections to the Report and Recommendation, and the district court held oral argument on September 9, 2010. Id. at 61. On March 25, 2011, the district court issued a Decision and Order finding that New York had established its claim that the Dunkirk Schooner is abandoned and that Northeast had failed to raise a material issue to the contrary, entitling the State to title pursuant to the ASA. The court adopted the Report and Recommendation “to the extent set forth herein,” granted the State‘s motion for summary judgment, and denied Northeast‘s salvage award request. Id. at 66. In reaching these conclusions, the district court identified a purported split among circuit courts regarding whether abandonment under the ASA must be proved by express relinquishment of title or may be inferred from surrounding circumstances, and decided to adopt an inferential standard for proving abandonment. Id. at 63-64. The court also agreed with the magistrate judge that abandonment must be shown by clear and convincing evidence, rather than a preponderance of the evidence. Id. at 64. The district court referenced Cohn‘s opinion that the technology to salvage the vessel has existed since 1850 and noted that Northeast had “provided no evidence to support” its assertion that the Dunkirk Schooner could not have been discovered, much less salvaged, without the advent of modern technology. Id. at 65. “Moreover,” the district court continued, “even if a salvage operation would have been unsuccessful, as plaintiff contends, there is no evidence that any salvage effort was attempted.” Id. The court determined that the Mays Assignment was insufficient to create a material dispute on the issue of abandonment, particularly as no evidence demonstrated any effort by descendants “to locate the vessel in the 150 years since its sinking.” Id. at 66. “In sum,” the district court held,
the passage of over 150 years since the sinking of the vessel along with the absence of any effort to locate or salvage the vessel by the owners or their de[scendants] despite the existence of technology to do so demonstrates an intent to abandon by clear and convincing evidence.
Id.
This appeal followed.
DISCUSSION
On appeal, Northeast argues that the district court erred in granting New York‘s motion for summary judgment. Northeast principally asserts that, in finding that the Dunkirk Schooner is abandoned, the district court failed to apply the proper burden of proof, made impermissible factual findings, and failed to draw reasonable inferences in favor of Northeast.14 We address each of these arguments in turn.
We review de novo a district court‘s grant of summary judgment, “construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir.2010) (internal quotation marks omitted). “[W]e affirm only where we are able to conclude that ‘there is no genuine issue of dispute as to any material fact and the movant is entitled to judgment as a matter of law.‘” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011) (quoting
B. The Abandoned Shipwreck Act
The ASA provides in relevant part that the United States asserts title to any abandoned shipwreck that is:
- embedded in submerged lands of a State;
- embedded in coralline formations protected by a State on submerged lands of a State; or
- on submerged lands of a State and is included in or determined eligible for inclusion in the National Register [of Historic Places].
The ASA displaces the maritime law of salvage and the law of finds that otherwise govern shipwrecks not falling within the Act‘s terms. See
In enacting the ASA, Congress sought to preserve and protect abandoned, embedded and historic shipwrecks by entrusting states with their management and encouraging states to develop sound policies for: (1) the protection of natural resources and habitat associated with such wrecks; (2) the guarantee of recreational exploration of shipwreck sites; and (3) the appropriate recovery of wrecks so as to protect historical values and the integrity of the shipwrecks and their sites. See
1. Abandonment under the ASA
Northeast concedes that the Dunkirk Schooner is a historically significant shipwreck embedded in the submerged lands of New York, but disputes that it is “abandoned” within the meaning of the Act. As Magistrate Judge Foschio succinctly explained, “[i]f ... the Dunkirk Schooner is not abandoned, then neither the ASA nor the maritime law of finds applies, and although title would vest in neither North[e]ast nor New York, [Northeast] could be granted a salvage award.” Northeast Research, 790 F.Supp.2d at 78. If the wreck is abandoned, then it belongs to New York pursuant to the ASA.
The ASA does not define the term “abandoned.” However, the Supreme Court has stated that “the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law.” California v. Deep Sea Research, Inc., 523 U.S. 491, 508, 118 S.Ct. 1464, 140 L.Ed.2d 626 (1998). In admiralty cases, courts do not assume that ship owners have abandoned their vessels simply because the vessels have wrecked. See Dluhos v. Floating & Abandoned Vessel, Known as “New York,” 162 F.3d 63, 74 (2d Cir.1998). Rather, courts employ an “assumption of nonabandonment,” anchored on the “realistic premise that property previously owned but lost at sea has been taken involuntarily out of the owner‘s possession and control by the forces of nature at work in oceans and waterways.” Columbus-Am. Discovery Grp., 974 F.2d at 460-61 (quoting Hener v. United States, 525 F.Supp. 350, 356-57 (S.D.N.Y.1981)); see Fairport III, 177 F.3d at 498 (“Intent on protecting the property rights of owners, admiralty courts recognize a presumption against finding abandonment.“). Thus, abandonment under admiralty law “means much more than merely leaving the property, for it has long been the law that when articles are lost at sea the title of the owner in them remains.” Columbus-Am. Discovery Grp., 974 F.2d at 461 (internal quotation marks and alteration omitted).
As a consequence of the presumption against abandonment, courts in this Circuit and elsewhere have traditionally imposed a stringent burden of proof of abandonment in the admiralty context. See, e.g., The C.P. Minch, 73 F. 859, 865 (2d Cir.1896) (holding that circumstances must show abandonment of a vessel was “absolute, without hope or expectation of recovery“); Adams, 220 F.3d at 671; Trueman v. Historic Steamtug New York, 120 F.Supp.2d 228, 233 (N.D.N.Y.2000); Thomas J. Schoenbaum, 2 Admiralty and Maritime Law § 16-7 (stating that application of law
We also agree with the district court that abandonment pursuant to the ASA need not be proved by express or explicit statements of intent to abandon, but rather may be inferred from circumstantial evidence (provided such evidence is sufficiently strong as to satisfy the clear and convincing burden). Although the district court identified a circuit split regarding inferential abandonment under the ASA, those Circuits that have broached the subject in fact agree on the following: that for ships last owned by a private party, abandonment may be inferred from circumstantial evidence in appropriate cases, at least when there is no owner presently claiming an interest in the vessel.17 Compare Fairport III, 177 F.3d at 500 (holding that “a State may prove by inference that a shipwreck last owned by a private party is ‘abandoned’ “), and Deep Sea Research, Inc. v. Brother Jonathan, 89 F.3d 680, 688 (9th Cir.1996), vacated on other grounds by California v. Deep Sea Research, Inc., 523 U.S. 491, 496, 118 S.Ct. 1464, 140 L.Ed.2d 626 (1998) (applying “traditional approach” to abandonment that “allows abandonment to be inferred on the basis of circumstantial evidence“), with Sea Hunt, 221 F.3d at 641 (noting that “[a]n inference of abandonment is permitted, but only when no owner appears“).
This approach comports with the treatment of abandonment in admiralty cases. Indeed, even before enactment of the ASA, courts applying traditional admiralty principles had begun to reject the notion that “[d]isposition of a wrecked vessel whose very location has been lost for centuries” must proceed “as though its owner were still in existence.” Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978). See Martha‘s Vineyard Scuba Headquarters, 833 F.2d at 1065 (applying law of finds to long-lost ship without requiring express abandonment); Dluhos, 162 F.3d at 74 (recognizing trend away from legal fiction “under which an owner ... retains title” to a ship that has “rested for centuries under fathoms of open ocean“). As the Ninth Circuit has observed:
Traditionally, maritime law has found abandonment when title to a vessel has been affirmatively renounced, or when circumstances give rise to an inference that the vessel has been abandoned; courts have found abandonment, for instance, when a vessel is “so long lost that time can be presumed to have eroded any realistic claim of original title.”
Deep Sea Research, 89 F.3d at 688 (quoting Martha‘s Vineyard Scuba Headquarters, 833 F.2d at 1065). Requiring express abandonment in all ASA cases would be inconsistent with these admiralty cases and, as the Sixth Circuit has observed, would “render the ASA a virtual nullity,” since “such explicit action is obviously rare indeed,” Fairport Int‘l Exploration, Inc. v. Shipwrecked Vessel Known as the Captain Lawrence (Fairport II), 105 F.3d 1078, 1085 (6th Cir.1997), vacated on other grounds by 523 U.S. 1091, 118 S.Ct. 1558, 140 L.Ed.2d 790 (1998).
For obvious reasons, discovering the identity of a vessel, if ascertainable, is helpful in determining whether it is abandoned. See Fathom Exploration, L.L.C. v. Unidentified Shipwrecked Vessel or Vessels, 857 F.Supp.2d 1269, 1272-73 n. 4 (S.D.Ala.2012) (in suit involving claims under the ASA, noting that “the identity of Shipwreck # 1 is of vital importance to the parties’ underlying claims and rights in this matter“). But it does not follow that a shipwreck must be positively identified in order to adjudicate a state‘s claim to title under the ASA. See id. at 1279 (provisionally identifying shipwreck as British barque the Amstel for purposes of determining whether it was abandoned pursuant to the ASA even absent any “hard evidence” to support that theory as the “definitive truth“); cf. Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (in pre-ASA case, applying law of finds to determine ownership of unidentified shipwreck); Smith v. Abandoned Vessel, 610 F.Supp.2d 739, 754 (S.D.Tex.2009) (inferring that unidentified and potentially non-
C. The Dunkirk Schooner is Abandoned under the ASA
The question before this Court is whether the district court erred in determining that New York established its case by clear and convincing evidence, and that Northeast failed to raise a material issue of fact as to whether the Dunkirk Schooner is abandoned. We conclude that the district court did not err in granting summary judgment to New York. There are admittedly questions of fact regarding the identity of the Dunkirk Schooner—questions that Lake Erie has perhaps permanently obscured. But in this case, the district court properly determined that this mystery need not impede adjudication of title to the shipwreck.
In reviewing the grant of summary judgment to New York, we view the evidence in the light most favorable to Northeast and assume that the Dunkirk Schooner is the War of 1812 battleship the General Wayne, née Caledonia. Even so, New York has demonstrated abandonment by clear and convincing evidence: there were no efforts to locate the wreck for over 150 years; General Wayne‘s poor working condition and spoilable contents strongly call into question the economic worth of the vessel and the then-owners’ continued interest in recovery; and the alleged owners’ descendants have no proof of their ownership of the vessel, further suggesting abandonment by the original owners. We therefore uphold the district court‘s conclusion that the Dunkirk Schooner was abandoned.
Proceeding on the assumption that Northeast discovered the wreck of the General Wayne, the following undisputed facts emerge: Originally built in 1799, the Caledonia, a wooden schooner, sank sometime after 1833 with some unfortunate souls on board. This means that she was at least 34 years old when she sank and, as Northeast‘s own evidence suggests, nearing the end of her expected lifespan even if she was retrofitted in 1815, after her purchase by Dickson and Reid.18 At the time of her disaster, the hold of the Caledonia, renamed the General Wayne, contained grain and hickory nuts, which were undoubtedly ruined by the water and rendered valueless. After 1818, moreover, the General Wayne disappears from the history books, and there is no record of her sinking. Assuming, then, that the Dunkirk Schooner is the General Wayne, she has rested at the bottom of Lake Erie for at least 150 years. And there is no evidence—none—that her former owners Reid and Dickson (or anyone else connect-
Pointing to the abolitionist ties of Reid and Dickson and the lack of identifying markings on the Dunkirk Schooner, Northeast speculates that the General Wayne was used to ferry fugitive slaves to Canada as part of the Underground Railroad—so that Reid and Dickson had an incentive not to attempt to find the vessel containing proof of their illegal activities immediately after it sunk. However, even if we assume that the General Wayne was carrying escaped slaves when it wrecked—an inference supported only by Sinclair‘s bald speculation—that fact still does not support a finding of non-abandonment. While in some circumstances, “lack of overt efforts to claim the ship may comport as much with a concern for secreting [treasure] as with an intent to abandon the ship,” such is not the case here. Fairport III, 177 F.3d at 501 n. 4 (discussing possible intent of ship‘s owner to return to gold that might lie with the ship). Whereas the “secreting” of treasure is presumably done with the intent to return to the booty and retain a claim to it, a decision to leave the evidence of an illegal act carries no such implication—especially where the evidence, as here, was an old ship and a ruined cargo.
The parties disagree about whether the technology existed to salvage the General Wayne after it sank, and whether the Mays Assignment is a legitimate claim of ownership that creates a genuine issue of material fact regarding abandonment. On the issue of technology, we agree with Northeast that the district court erred in concluding that no issue of fact exists as to whether hardhat divers could have recovered the Dunkirk Schooner beginning in 1852. New York‘s expert, Cohn, noting that the Dunkirk Schooner‘s masts rise to about 100 feet from the surface of Lake Erie, based his conclusion that hardhat divers could have salvaged the Dunkirk Schooner near the time of its wreck on his observation that “[o]n Lake Erie the Steamboat Atlantic which sank in 160 feet of water in 1852 was salvaged by hardhat divers descending to 139 and 155 feet in 1852 and 1855.” However, the record also contains evidence that “technical diving,” which relies on modern technology, is required today to reach the wreck. Moreover, the ability of hardhat divers to reach the top of the General Wayne‘s mast (the ship itself lies at 170 feet) hardly demonstrates the technological feasibility of recovery, let alone a likelihood of successful salvage. See Zych, 755 F.Supp. at 216. Based on our review of the record, we therefore conclude that the technological possibility of salvage in the mid-1850s remains a disputed issue.
Nevertheless, even assuming that technological infeasibility barred recovery in the 1850s, the Dunkirk Schooner remained undisturbed for 150 years thereafter, despite advances in deep-water salvage in the intervening years. See Columbus-Am. Discovery Grp., 974 F.2d at 467 (mentioning “drastic advances in deep water salvage” by the late 1970s). Long past fear of repercussion for illegally helping fugitive slaves, and long past any time in which deep-water salvage was out of the question, no owner of the General Wayne, or any successor in interest, made efforts to locate or recover the wreck. To the extent Northeast relies on the Mays Assignment as a demonstration of continued owner interest, moreover, this applies to Mays as well.
Regarding the Mays Assignment, we conclude, contrary to Northeast‘s claim, that it creates no genuine issue of material
Considering all of the known factors, the clear and convincing evidence proves that even assuming the Dunkirk Schooner is the General Wayne, this ship has rested at the bottom of Lake Erie, utterly forgotten and undisturbed, for at least 150 years. As further circumstantial evidence of abandonment, the General Wayne‘s hold was filled with spoilable goods and she was nearing the end of her working days. While the lack of technology available to salvage a shipwreck at the time of its disaster might in some cases excuse inaction, that factor does not suffice to create a material dispute of fact necessitating trial here, where the ship has gone undisturbed for such a lengthy period during which no recovery effort was ever made. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.“); cf. Fairport Int‘l Exploration, Inc. v. Shipwrecked Vessel Known as the Captain Lawrence (Fairport V), 245 F.3d 857, 863-64 (6th Cir.2001) (affirming district court‘s conclusion that state proved abandonment despite evidence of owner‘s financial inability to return to shipwreck). The “lapse of time, alone, does not necessarily establish abandonment, and an owner‘s failure to return to a shipwreck site does not necessarily prove abandonment.” Fairport III, 177 F.3d at 499 (citation omitted). But here, given the surrounding circumstances, the Dunkirk Schooner is a vessel “so long lost that time can be presumed to have eroded any realistic claim of original title,” Martha‘s Vineyard Scuba Headquarters, 833 F.2d at 1065. Northeast has failed to point to any fact in the record sufficient to create a genuine issue of material fact to the contrary. See Scotto, 143 F.3d at 114 (“[T]he non-movant [opposing a motion for summary judgment] must produce specific facts indicating that a genuine factual issue exists.” (internal quotation marks omitted)). Accordingly, summary judgment was properly granted to New York.
CONCLUSION
We have considered Northeast‘s remaining arguments and find them to be without merit. We conclude that dismissing the case on summary judgment was proper because the Dunkirk Schooner is abandoned and title vests in New York pursuant to the ASA. For the foregoing reasons, we AFFIRM the judgment of the district court.
DEBRA ANN LIVINGSTON
CIRCUIT JUDGE
Notes
The approval by the parties to this agreement and any determination by the State with respect to this application shall not prejudice any claim or defense of either party in this litigation but rather is being done as a gesture of good faith within the context of the instant underlying admiralty litigation. Further, any granting of a permit by the State pursuant to this application shall not prejudice or commit either party with respect to the need for, or the denial of, any subsequent applications by Northeast, or with respect to any position of the State with respect to enforcement of its laws.
Maritime commerce between Lake Erie and Lake Ontario during this time period was greatly enhanced by the completion of the Welland Canal in 1829. However, the dimensions of the Welland Canal also affected the design of vessels by shipwrights in order to take advantage of commercial opportunities between the upper and lower lakes.... The dimensions of the Dunkirk Schooner are less than the dimensions of the [Welland Canal], and therefore, indicate that this vessel could have participated in the Lake Ontario trade after 1829.
(a) States have the responsibility for management of a broad range of living and nonliving 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.
[I]t is the declared policy of the Congress that States carry out their responsibilities under this chapter to develop appropriate and consistent policies so as to—
(A) protect natural resources and habitat areas;
(B) guarantee recreational exploration of shipwreck sites; and
(C) allow for appropriate public and private sector recovery of shipwrecks consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites.