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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GLOBAL MARINE EXPLORATION, 

INC.,

Plaintiff,

v. Case No. 4:20-cv-181-AW-MJF

REPUBLIC OF FRANCE, 

Defendant.

_______________________________/

ORDER GRANTING MOTION TO DISMISS

In 1565, Jean Ribault led a French Royal Navy Fleet to resupply a fort near 

present-day Jacksonville. Glob. Marine Expl., Inc. v. The Unidentified, Wrecked & 

(for Finders-Right Purposes) Abandoned Sailing Vessel (GME I), 348 F. Supp. 3d 

1221, 1228-33 (M.D. Fla. 2018). The flagship of Ribault’s fleet was the vessel la 

Trinité. At the time, France was hoping to colonize Florida. Spain was too, and it 

sent a fleet to find Ribault. The fleets encountered one another near St. Augustine 

inlet, and Spain drove Ribault’s ships out to sea. With the French fleet anchored at 

sea, a hurricane struck, destroying the fleet and its flagship la Trinité. The la Trinité

lay on the ocean floor for nearly 500 years before Plaintiff Global Marine 

Exploration, Inc., (GME) recently found it. Id.

GME, as its name would suggest, is in the business of marine exploration. In 

2015, it secured a permit from the Florida Department of State to conduct salvage 

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activities off the coast of Cape Canaveral. ECF No. 3 (FAC) ¶¶ 13-14. GME 

discovered several shipwrecks (id. ¶¶ 15-17) and filed an in rem action for 

possession of its discovery, claiming ownership and salvage rights. GME I, 348 F. 

Supp. at 1224, 1227-28. Based on earlier discussions with Florida, GME believed it 

would keep eighty percent of what it recovered, with Florida taking the rest. FAC 

¶¶ 14, 21, 64. But France learned of GME’s discovery and intervened in the in rem

action, claiming the res was la Trinité and therefore sovereign French property.

GME I, 348 F. Supp. at 1224. And after reviewing a substantial record of historical 

evidence, the district court agreed. It concluded that the res was indeed la Trinité, 

that France had the exclusive claim to it, and that the court thus lacked subject matter 

jurisdiction. Id. at 1242. It dismissed the case, and GME did not appeal.

France, meanwhile, entered a declaration of intention with the Florida 

Department of State to “[r]ecover this historical and cultural heritage”; “[p]romote 

the common history of the United States and France in Florida”; and study and 

preserve the vestiges of la Trinité. ECF No. 3-2 at 1-2. It did so consistent with 

Section L522-1 of the Heritage Code of France, which makes such activities the 

responsibility of the Ministry of Culture. ECF No. 13-1 ¶ 4.

1 The idea was that 

 

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In addition, France is a party to the 2001 UNESCO Convention on the 

Protection of the Underwater Cultural Heritage, which precludes France from 

commercially exploiting its underwater cultural heritage. ECF No. 13-1 ¶ 5. 

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France and Florida, working together, would protect, recover, preserve, and study la 

Trinité, and promote their shared history. Id.

That all led to this case, which involves many of the same facts as GME I, but 

which presents a different jurisdictional question. The earlier case was an in rem

action against the property; this is an in personam action against France.2 GME no 

longer asserts any claim to the ship itself; it has sued France for damages relating to 

its efforts and the benefits those efforts conferred on France. GME presents four 

claims: (1) in personam lien award, (2) quasi contract/unjust enrichment, (3) 

misappropriation of trade secrets, and (4) interference with rights and relations. FAC 

at 12-20. GME seeks to recover its investment in finding la Trinité. Id. ¶ 1.

France moved to dismiss, arguing that the court lacks jurisdiction. ECF No. 

13. Having considered the evidence submitted and the parties’ arguments, I conclude 

that France is correct. The Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et 

seq., deprives this court of subject matter jurisdiction, so the case must be dismissed. 

 

2 An in rem action is “prosecuted to enforce a right to things.” R.M.S. Titanic, 

Inc. v. Haver, 171 F.3d 943, 957 (4th Cir. 1999) (quoting The Sabine, 101 U.S. 384, 

388 (1879)). An action is in personam if it charges an individual personally. Id. A 

judgment in an in rem action affects “only the property before the court,” while in 

personam actions “adjudicate the rights and obligations of individual persons or 

entities.” Id.

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I.

France’s jurisdictional challenge is a factual challenge, which means the court 

may consider matters outside of the pleadings. Odyssey Marine Expl., Inc. v. 

Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011). The 

allegations in GME’s complaint need not be accepted as true, and evidence is not 

viewed in the light most favorable to GME. Id.; see also Carmichael v. Kellogg, 

Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009).

Both parties have submitted evidence. France filed a declaration from 

Florence Hermite, a Magistrate Judge of the Republic of France and Attaché for 

Legal Affairs of the Embassy of France to the United States of America. ECF No. 

13-1. GME filed public website information about private marine archaeological 

recovery projects (ECF No. 16), emails and documents produced from a Florida 

public records request (ECF No. 17), GME’s operating officer’s affidavit (ECF No. 

18), and a statement from Dr. Robert H. Baer, a professional archaeologist (ECF No. 

19).

I considered all the documents. I also considered the attachments to GME’s 

complaint, including the declaration of intention France and Florida entered (ECF 

No. 3-2). The parties confirmed at the telephonic hearing that there were no material 

factual disputes and that no evidentiary hearing was needed. See also Odyssey, 657 

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F.3d at 1170 (finding it within the court’s discretion to determine if an evidentiary 

hearing is needed on a Rule 12(b)(1) factual challenge).

II.

The Foreign Sovereign Immunities Act (FSIA) “provides the sole basis for 

obtaining subject matter jurisdiction over a foreign sovereign in the United States.” 

Guevara v. Republic of Peru, 468 F.3d 1289, 1294 (11th Cir. 2006). Under the FSIA, 

foreign states are generally immune from jurisdiction, 28 U.S.C. § 1604, but there 

are exceptions. Under the relevant exception here, there is no immunity if “the action 

is based upon a commercial activity carried on in the United States by the foreign 

state.” Id. § 1605(a)(2).3 GME says the exception applies and the court has 

jurisdiction. ECF No. 20 at 1-2. France says the exception does not apply and there 

is no jurisdiction. ECF No. 13 at 14-16. 

For our purposes, the first clause of § 1605(a)(2) breaks down into three parts: 

whether (1) “the action is based upon” (2) “a commercial activity” (3) “carried on in 

the United States by the foreign state.” The Supreme Court has provided guidance 

on the meaning of the first two parts (see below), and the third part is straightforward 

and not contested here. France has entered a declaration of intention with Florida. 

ECF No. 3-2. It is a foreign state carrying on activity in the United States. The 

 

3 There are three different commercial-activity exceptions in § 1605(a)(2). 

GME relies solely on the exception in the first clause, quoted above. See ECF No. 

20 at 1, 5-6.

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questions, then, are (i) whether that activity is commercial in nature, and (ii) whether 

GME’s action is based upon that activity. I find against GME on both.

A.

The crux of GME’s argument is that France engaged in commercial activity 

through its “marine archeological recovery project in Florida, undertaken upon 

negotiation and agreement with the Florida Department of State, and involving 

agreements with others, fundraising, task coordination, etc., for recovery, study, 

conservation, and museum displays in Florida of valuable historical artifacts 

excavated from the historic shipwreck sites.” ECF No. 20 at 2. The first question is 

whether this constitutes “commercial activity.” 

The FSIA defines “commercial activity” as “either a regular course of 

commercial conduct or a particular commercial transaction or act.” 28 U.S.C. 

§ 1603(d). It further specifies that “[t]he commercial character of an activity shall be 

determined by reference to the nature of the course of conduct or particular 

transaction or act, rather than by reference to its purpose.” Id. The statutory 

definition, though, “leaves the critical term ‘commercial’ largely undefined.”

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 (1992). But in Weltover, 

the Court concluded that “the meaning of ‘commercial’ is the meaning generally 

attached to that term under the restrictive theory at the time [the FSIA] was enacted.” 

Id. at 612-13. It held “that when a foreign government acts, not as regulator of a 

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market, but in the manner of a private player within it, the foreign sovereign’s actions 

are ‘commercial’ within the meaning of the FSIA.” Id. at 614. It also cautioned 

against considering whether the sovereign’s motives are profit driven or uniquely 

sovereign objectives, indicating instead that the “issue is whether the particular 

actions that the foreign state performs (whatever the motive behind them) are the 

type of actions by which a private party engages in ‘trade and traffic or commerce.’” 

Id.

Applying this standard, the Court concluded in Weltover that Argentina 

engaged in commercial activity by issuing bonds to private parties and then changing 

the terms of those bonds. Id. at 615, 620. The bonds were “garden-variety debt 

instruments” traded in international markets, and nothing about their issuance by a 

government changed their commercial nature. Id. at 615. Applying this same 

standard here, I conclude France’s intergovernmental declaration with Florida—and 

its overall relationship with Florida regarding the shipwreck sites—lacks such a 

commercial nature. 

France is not involved in “the type of actions by which a private party engages 

in ‘trade and traffic or commerce’” Id. at 614. It is not interacting with markets or 

commerce the way a private actor would. See Guevara, 468 F.3d at 1298 (“We read 

Weltover to mean that a foreign state is commercially engaged when it acts like an 

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ordinary private person, not like a sovereign, in the market.” (cleaned up) (emphasis 

added)); accord Odyssey, 657 F.3d at 1177.

It is true, as GME argues, that private actors sometimes engage in marine 

exploration activities and shipwreck recovery and preservation efforts. But that 

alone does not make the nature of France’s activities commercial. It is not that an 

act is commercial unless only a sovereign can do it at some abstract level. Contra 

ECF No. 20 at 2, 12, 14-15. GME, for example, acknowledges that mail delivery can 

take both a governmental and commercial form. See id. at 22 n.3. And “[o]ther 

activities undertaken by a foreign state, although generally resembling conduct 

routinely engaged in by private parties, may also be labeled ‘governmental’ and 

immune from suit under the FSIA.” Rush-Presbyterian-St. Luke’s Med. Ctr. v. 

Hellenic Republic, 877 F.2d 574, 579 (7th Cir. 1989). As just one example, 

“although private entities often rehabilitate buildings to serve as office space, a 

foreign state’s remodeling and operation of a chancery building is not a 

‘commercial’ act, since the construction and operation of a diplomatic office are 

peculiarly sovereign activities.” Id.

As another example, in Saudi Arabia v. Nelson, the Supreme Court found no 

commercial activity after government forces arrested and tortured the plaintiff, 

concluding this was an abusive exercise of state police powers. 507 U.S. 349, 361 

(1993). At the same time, the concurrence noted that the plaintiff could have been 

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arrested and tortured by private security personnel. Id. at 366 (White, J., concurring). 

There was a commercial way to achieve the same result, but Saudi Arabia’s actions 

did not take that form, and that is what mattered. Id.; see also Pablo Star Ltd. v. 

Welsh Gov’t, 961 F.3d 555, 562 & n.6 (2d Cir. 2020). 

Here, the nature of France’s activity is the recovery and disposition of its own 

sovereign military property. If it chooses to recover its property, or if it chooses to 

work with Florida to preserve it, France is not entering a market and behaving as a 

private person would. The declaration of intention showsthat two government actors 

are working together to protect, recover, preserve, and study la Trinité, and to 

promote their shared history. ECF No. 3-2 at 1-2. The declaration is signed by 

government officials, and the individuals involved—such as the French ambassador 

in Washington, D.C., the French consul general in Miami, and Florida’s Secretary 

of State—are government officials. See id. at 2. No one has entered the market or 

engaged in trade or commerce. 

Similarly, the public records GME filed show discussions about the “scientific 

and ethical investigation of the wreck(s),” the “protection of the site,” and the “public 

education that accompanies such work.” ECF No. 17-1 at 5. This sentiment is 

repeated in Hermite’s declaration. See ECF No. 13-1 ¶¶ 4-6. There, Hermite notes 

that “[t]hese activities are undertaken as government functions that are within the 

responsibility of the Ministry of Culture under the Heritage Code of France Section 

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L522-1.” Id. ¶ 4. That law “prescribes measures aimed at the detection, conservation 

of safeguarding by scientific study of the heritage archaeological.” Id. (translated). 

It also matters to some extent that France’s agreement is with Florida and not 

a private actor. Cf. Guevara, 468 F.3d at 1292, 1299-1300 (finding that Peru engaged

in commercial activity when it offered to reward private parties for information 

relating to a fugitive); Honduras Aircraft Registry, Ltd. v. Gov’t of Honduras, 129 

F.3d 543, 547 (11th Cir. 1997) (finding that Honduras engaged in commercial 

activity when it “ventured into the marketplace” and contracted with private parties

for their expertise in establishing a modern civil air program). By engaging with 

Florida, and not a private actor, France has not ventured out into the marketplace.

Cf. Guevara, 468 F3.d at 1297 (“Commercial activities and private activities are 

often spoken of together and in a way that distinguishes them from sovereign or 

public acts.”).

The conclusion that France’s activities are not commercial finds further 

support in the Second Circuit’s recent conclusion that Greece did not engage in 

commercial activity when it claimed ownership of an ancient Greek figurine and 

sent a letter to Sotheby’s to prevent the relic’s sale. Barnet as Tr. of the 2012 Saretta 

Barnet Revocable Tr. v. Ministry of Culture & Sports of the Hellenic Republic, 961 

F.3d 193, 195, 197-98 (2d Cir. 2020). In that case, the court found that Greece was 

acting pursuant to the country’s patrimony laws in declaring the artifact Greek 

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property. Id. at 195, 200-03. While sending a letter to Sotheby’s “was an act that a 

private party may typically undertake in the marketplace,” the letter could not rightly 

be characterized as commercial activity when its nature was based in the sovereign 

act of Greece’s adopting and enforcing patrimony laws. Id. at 200-01. Likewise, 

though “claiming ownership or encouraging cultural heritage are not uniquely 

sovereign activities,” they are when “connected to the sovereign activity of claiming 

ownership through nationalization and enforcement of patrimony laws.” Id. at 202.

Here too, while entering a contract relating to shipwreck recoveries can be a 

commercial activity, the nature of France’s agreement with Florida lacks 

commercial characteristics.

Last, this case is unlike Pablo Star, on which GME relies.

4 See ECF No. 20 at 

13. In Pablo Star, the plaintiff sued the Welsh Government for copyright 

infringement after it used the plaintiff’s photos to promote tourism. 961 F.3d at 559.

The court found Wales had engaged in commercial activity, notwithstanding the 

Welsh Government’s argument that it was “acting to promote Welsh culture and 

tourism pursuant to its statutory mandate under the Government of Wales Act 2006.” 

 

4 GME cites a host of cases that reiterate Weltover’s commercial-activity 

analysis, but none have facts similar to our case. See ECF No. 20 at 11-15; see also

ECF No. 26. For example, many involve contracts between private plaintiffs and 

government defendants. See id. The issues presented in Pablo Star are closest to 

those presented here.

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Id. at 562. The court determined that this broad framing of the Welsh Government’s 

activities focused on its purpose, not its nature. Id. at 562. The nature of the Welsh 

Government’s activities was advertising. It was reaching out into the market to 

encourage private actors to visit Wales. See id.

France has done nothing like what the Welsh Government did. Instead, it 

engaged with another state actor to perform activities pursuant to government 

mandates. It has not entered a market or engaged in trade or commerce, and its 

actions are not aimed at influencing the commercial activities of private parties like 

they were in Pablo Star.

In short, I conclude that France’s activities are not commercial in nature. 

B.

Next, though my conclusion that France’s activities are not commercial is 

enough to end the jurisdictional inquiry, I also find that even if France’s activities 

are commercial, GME’s case is not “based upon” those activities. 

In Nelson, the Court found that the statutory phrase “based upon” “denot[es] 

conduct that forms the ‘basis,’ or ‘foundation,’ for a claim.” 507 U.S. at 357 (citing 

Black’s Law Dictionary 151 (6th ed. 1990)). It said that “based upon” “is read most 

naturally to mean those elements of a claim that, if proven, would entitle a plaintiff 

to relief under his theory of the case.” Id. In that case, the plaintiff sued Saudi Arabia,

contending the FSIA’s commercial-activity exception applied because he was 

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employed by a government hospital. Id. at 352-53, 358. But the Court concluded that 

the action was not based upon that employment. Rather, the plaintiff’s action was 

based upon his arrest and torture, which arose from the state’s exercise of its police 

powers—not the employment arrangement. Id. at 361. The commercial activity (his 

hospital employment) may have led to his injury, but his injury was ultimately based 

upon noncommercial activity (his arrest and torture by government police). Id. at 

358. 

Building on Nelson, the Court clarified in OBB Personenverkehr AG v. Sachs

that in determining what an action is “based upon,” courts should not do “an 

exhaustive claim-by-claim, element-by-element analysis” or consider matters like 

choice of law. 577 U.S. 27, 34 (2015). Instead, “an action is ‘based upon’ the 

‘particular conduct’ that constitutes the ‘gravamen’ of the suit.” Id. at 35. In other 

words, courts must zero in on the “core” of the suit. See id.

In Sachs, the plaintiff sued Austria after she was injured while boarding a train 

there. Id. at 30. As for commercial activity, she pointed to her purchasing a Eurail 

train pass in the United States. Id. at 35-36. But the Court found that her suit was not 

based on this activity. Id. Instead, it concluded that the gravamen of her suit occurred 

abroad; the “foundation” for her injury remained in Austria. Id.

Here, the foundation for GME’s injury is not France’s declaration with 

Florida, or activities related to that declaration. GME is not injured because France 

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wishes to preserve its culture or recover shipwreck artifacts. GME would be in the 

same position it is now regardless of France’s agreement with Florida. GME’s action 

is based upon the fact that France took ownership of the ship. But that loss (if there 

were any) occurred the moment the Middle District concluded that the res was la 

Trinité and belonged to France. It was at that moment that GME lost any rights to 

its own discovery. 

At bottom, GME’s action is based upon the fact that it did all the work to find 

the site and has nothing to show for it, while France enjoys the benefit of GME’s

discovery. See FAC ¶¶ 41-45, 47-49; see also Williams v. Nat’l Gallery of Art, 

London, No. 16-CV-6978 (VEC), 2017 WL 4221084, at *7 (S.D.N.Y. Sept. 21, 

2017) (finding that the core of the suit was a title dispute over a painting and was 

not “based upon” the commercial activity of a refusal letter sent from London to 

New York), aff’d sub nom. Williams v. Nat’l Gallery, London, 749 F. App’x 13 (2d 

Cir. 2018). GME’s asserted injury stems not from France’s activities but from 

GME’s inability to claim ownership of the res. This is an independent reason why 

the commercial-activity exception does not apply and why the case must be 

dismissed. 

III.

The § 1605(a)(2) commercial-activity exception does not apply. This means 

the court lacks subject matter jurisdiction. France’s Motion to Dismiss (ECF No. 13) 

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is therefore GRANTED. The clerk will enter a judgment that says, “This case is 

dismissed without prejudice for lack of subject matter jurisdiction.” The clerk will 

then close the file.

SO ORDERED on November 16, 2020. 

s/ Allen Winsor

United States District Judge

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