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

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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)

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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)

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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 

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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 

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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 

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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

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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

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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

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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

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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 

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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)

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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
     
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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

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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   

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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

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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).

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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.

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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).

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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.

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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.

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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

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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).

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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-
  
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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

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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.

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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
   
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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.

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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).

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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,

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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,

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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.

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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

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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-

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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
 
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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).

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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
  
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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.

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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).       

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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).

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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

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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.

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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.

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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

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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.

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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).        

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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.

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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).
   
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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
 
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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.

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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-
 
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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-
  
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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.
   
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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
  
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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).

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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.

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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.

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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.  * * *

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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.

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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

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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).