PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

R.M.S. TITANIC, INCORPORATED, 

successor in interest to Titanic

Ventures, limited partnership,

Plaintiff-Appellant,

v.

THE WRECKED AND ABANDONED

VESSEL, its engines, tackle apparel,

appurtenances, cargo, etc., located

within one (1) nautical mile of a

point located at 41o 43′ 32′′ North

Latitude and 49o 56′ 49′′ West

Longitude, believed to be the

R.M.S. Titanic, in rem; ROBERT C.

BLUMBERG, Attorney-Advisor, Office  No. 01-2227 of Oceans Affairs, United States

Department of State; OLE VARMER,

Attorney-Advisor, National Oceanic

and Atmospheric Administration,

United States Department of

Commerce; MADELEINE K. ALBRIGHT,

Secretary of State, United States

Department of State; WILLIAM M.

DALEY, Secretary of Commerce,

United States Department of

Commerce; D. JAMES BAKER,

Administrator, National Oceanic and

Atmospheric Administration, United

States Department of Commerce,

Defendants, 
LIVERPOOL AND LONDON STEAMSHIP 

PROTECTION AND INDEMNITY

ASSOCIATION, LIMITED,

Claimant,

DEEP OCEAN EXPEDITIONS;

WILDWINGS WORLDWIDE TRAVEL;

BAKERS WORLD TRAVEL; QUARK

EXPEDITIONS, INCORPORATED; MIKE

MCDOWELL; RALPH WHITE; DON

WALSH, Ph.D.; ALFRED S. MCLAREN,

Ph.D.; CHRISTOPHER S. HAVER; R/V 

AKADEMIK MSTISLAV KELDYSH;

UNITED STATES OF AMERICA;

BLACKHAWK TELEVISION,

Parties in Interest,

JOHN A. JOSLYN,

Movant.

UNIVERSITY OF VIRGINIA APPELLATE

LITIGATION CLINIC; DAVID SHUTTLE,

Amici Curiae. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge;

J. Calvitt Clarke, Jr., Senior District Judge.

(CA-93-902-N)

Argued: February 25, 2002

Decided: April 12, 2002

Before WILKINS, NIEMEYER, and KING, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Wilkins and Judge King joined. 

2 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
COUNSEL

ARGUED: Mark Steven Davis, CARR & PORTER, L.L.C., Portsmouth, Virginia, for Appellant. Neal Lawrence Walters, Appellate

Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,

Charlottesville, Virginia, for Amicus Curiae Clinic. ON BRIEF:

Robert C. Scaro, Jr., Mark A. Stallings, CARR & PORTER, L.L.C.,

Portsmouth, Virginia, for Appellant. Craig A. Markham, ELDERKIN,

MARTIN, KELLY & MESSINA, Erie, Pennsylvania, for Amicus

Curiae Shuttle.

OPINION

NIEMEYER, Circuit Judge: 

R.M.S. Titanic, Inc. ("RMST"), as salvor-in-possession of the submerged wreck of the R.M.S. Titanic and the artifacts salvaged from

it, challenges the district court’s orders of September 26, 2001, and

October 19, 2001. These orders were entered after the court discovered RMST’s plans to sell some of the artifacts and confirmed that the

court’s earlier orders prohibiting the sale of artifacts "were proper and

were necessary when entered." RMST contends that, because in 1994

it was granted absolute title to all the artifacts it retrieved, the district

court cannot now restrict its right, as owner of the artifacts, to sell

them at its discretion. 

Finding that RMST’s arguments are grounded on a fundamental

misunderstanding of its role as salvor-in-possession, we reject its

arguments and affirm the orders of the district court. 

I

In 1985, a joint American-French expedition discovered the wreck

of the Titanic in the North Atlantic Ocean in international waters.

Two years later, Titanic Ventures, a limited partnership, explored the

wreck, bringing up approximately 1,800 artifacts. Thereafter, it sold

its interests in the salvage operations and the artifacts to RMST. 

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 3
In 1993, RMST commenced this in rem action against the Titanic

to become its salvor-in-possession. In its complaint, RMST requested,

among other things, that, under the law of finds, it be declared "the

true, sole and exclusive owner of any items salvaged from the wreck"

or, alternatively, that, under salvage law, it be "awarded a liberal salvage award . . . as may be determined by this Court." Acting under

principles of salvage law and consistent with the inchoate lien that

RMST obtained as salvor, the district court exercised in rem jurisdiction and issued a warrant directing the United States Marshal to arrest

the wreck and all artifacts already salvaged and yet to be salvaged.

Simultaneously, it ordered that RMST be substituted for the Marshal

as the custodian of the wreck, the wreck site, and the artifacts. Notice

of the proceedings was duly published. Following a claim made by

an insurance company and settlement of that claim, the court

approved the settlement and issued an order, dated June 7, 1994,

declaring RMST salvor-in-possession. In its order, the court stated:

The Court FINDS AND ORDERS that R.M.S. Titanic, Inc.

is the salvor-in-possession of the wreck . . . and that R.M.S.

Titanic, Inc. is the true, sole and exclusive owner of any

items salvaged from the wreck of the defendant vessel in the

past and, so long as R.M.S. Titanic, Inc. remains salvor-inpossession, items salvaged in the future, and is entitled to all

salvage rights . . . . 

During the course of the hearing leading to this order, the district

court confirmed its understanding that it was RMST’s "intention to

display these artifacts and to try to get [its] money back out of admissions to the display rather than selling them off." Counsel for RMST

affirmed that understanding and explained further "that the process

[of] going forward with the exhibition of the artifacts and not sell[ing

them] continues and . . . that is the position of the salvors in this case,

that the 1987 artifacts and the 1993 artifacts will not be sold, but

rather will be exhibited." 

Two years after entry of the June 1994 order appointing RMST

salvor-in-possession, John A. Joslyn filed a motion in this action

requesting that the district court rescind its June 1994 order naming

RMST salvor-in-possession because RMST had failed to salvage the

Titanic diligently and lacked the financial capacity to undertake future

4 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
salvage operations. The district court rejected Joslyn’s claims and

denied his motion. But in doing so, it ordered RMST to make more

frequent reports to the court about its salvage efforts. R.M.S. Titanic,

Inc. v. Wrecked & Abandoned Vessel, the R.M.S. Titanic, 924 F.

Supp. 714, 724 (E.D. Va. 1996). In addition, the district court entered

a preliminary injunction prohibiting Joslyn, as well as anyone else,

from visiting the site of the wreck and from photographing it. R.M.S.

Titanic, Inc. v. Wrecked & Abandoned Vessel, No. 2:93CV902, 1996

WL 650135 (E.D. Va. Aug. 13, 1996). The court reasoned that

because RMST was "not selling artifacts like traditional salvors, it

must be given the rights to other means of obtaining income." Id. at

*2. 

In 1998, when a British Virgin Islands corporation headquartered

on the Isle of Man, Great Britain, began marketing to the public an

expedition to visit the Titanic wreck, which it called "Operation

Titanic," RMST filed a motion for a more specific injunction to prevent that corporation as well as its principals and customers from visiting and photographing the wreck site. The district court issued an

expanded injunction, enjoining that corporation, as well as its principals and a named passenger, from visiting a yet more generously

defined site in the North Atlantic and from photographing the wreck.

R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 9 F. Supp. 2d

624, 626 (E.D. Va. 1998). The court reasoned that because RMST

was not selling the artifacts, it needed a stream of income, and the

exclusive photographic and visitation rights would help insure this

income. Id. at 635-36. We reversed that order, concluding that it was

beyond the power of the district court and inconsistent with salvage

law to confer those rights: "Neither prohibition is justified by the law

of salvage or allowed by the law of free navigation on the high seas."

R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 970 (4th Cir. 1999).

RMST maintains that this refusal to give it exclusive visitation and

photographic rights has had a substantial adverse impact on its

income stream and has impaired its ability to finance further salvage

operations. 

RMST has continued to conduct salvage operations and to display

the artifacts recovered in order to obtain income. In November 1999,

the management of RMST changed, and the new management articulated a new business plan designed "to maximize shareholder value

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 5
while still protecting the archeological and historical value of the

wreck." While the financial strategy of RMST’s previous management had focused on generating earnings through the exhibition of

artifacts, RMST’s new management expanded this strategic plan to

include "the possible disposition of artifacts to increase revenues" and

thereby to maintain its status as salvor-in-possession. But these plans

were undeveloped, and during a hearing in March 2000, the new president of RMST testified before the district court that RMST had "no

plans to sell any portion of the collection." 

Several months later, however, "it [came] to the attention of the

court that there ha[d] been a change in management in R.M.S.

Titanic, Inc. and that there [was] a concern held by some persons and

organizations that R.M.S. Titanic, Inc. [was] considering disposal of

some artifacts recovered." In response to this information, the district

court issued an order sua sponte, dated July 28, 2000, directing

RMST "not [to] sell or otherwise dispose of any artifacts or any

object recovered from the wreck site and further that it must continue

to treat and preserve any such artifacts and objects recovered from the

wreck site." In its order, the court noted that "[t]his court has continued R.M.S. Titanic, Inc. as salvor-in-possession of the wreck of the

Titanic from year to year on the understanding that R.M.S. Titanic,

Inc. would treat and preserve all artifacts recovered and would exhibit

them to the public and would not sell or dispose of any of said artifacts." 

In its periodic report to the court several weeks later, RMST

acknowledged the court’s July 2000 order, stating, "RMST notes that

since it had never sold any artifacts or objects recovered from the

Titanic without first advising the Court (i.e. sales of coal and encumbrance of coins and currencies), and since it had advised the Court

earlier in its July 5, 2000 periodic report that it would not cut into the

wreck, the only new effect of the [July 28] order was the prohibition

on detaching any part of the wreck." Consistent with this position,

RMST did not appeal the district court’s July 2000 order prohibiting

the sale or dispersion of the artifacts. 

In April 2001, RMST sought a clarification of the July 2000 order

to permit it to sell the coal it had recovered from the wreck. During

the hearing on this issue, RMST broached, for the first time, plans to

6 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
form a new foundation which might "explore the acquisition of the

artifact collections at some time in the future." RMST’s counsel

explained that the "desire on the part of [RMST] to explore transfer

. . . raise[d] some questions . . . with the [July 2000] order," which

had confirmed the prohibition against selling any artifacts. On the

issue of whether selling coal — which RMST had already done —

violated the court’s orders, counsel explained that coal recovered

from the site was always treated as "organic matter, rather than artifacts," and that RMST had always felt free to sell coal. After the court

invited RMST to submit a clarifying order authorizing the sale of

coal, the court reiterated its position about selling artifacts:

You have to remember now that during the whole time that

R.M.S. Titanic has worked with the court, they have always

taken the position that they are not going to sell any artifacts, that their purpose in getting them is to get them, preserve them, and put them on display. 

Counsel for RMST confirmed the court’s understanding, stating,

"That is exactly what has been represented to the court. The company

has never taken the position that it wanted to sell the artifacts." In

accordance with the hearing, the district court signed an order dated

April 30, 2001, modifying the July 28, 2000 order "to reflect the fact

that the Salvor remains free to sell or encumber any coal that it has

recovered or that it might recover in the future from the TITANIC

wreck site." Again, RMST did not appeal this modification of the July

2000 order. 

Beginning in July 2001, RMST’s gently leaked idea to form a

foundation became concrete, and RMST submitted a supplemental

report to the court, describing the formation of The Titanic Foundation, Inc. and the Foundation’s interest in purchasing the artifacts

from RMST. Upon receiving the report, the district court issued an

order, again sua sponte, dated July 31, 2001, reiterating that RMST

could not "convey in any manner any of the R.M.S. Titanic’s artifacts" until the court had held a full hearing. 

That hearing was held on September 24, 2001. The court then

learned in detail about the formation of The Titanic Foundation and

noted that the principals of RMST and The Titanic Foundation were

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 7
the same people, observing "so it is really a one man show; is that not

right?" The court noted that this might create irreconcilable conflicts

of interest with respect to the principals’ duties to both the public corporation and the nonprofit foundation. Counsel for RMST explained

that the foundation would be able to solicit charitable contributions

which then could be used to purchase the artifacts. Counsel justified

the need for the foundation in part by our decision in Haver, in which

we denied RMST exclusive rights to visit the site and to photograph

the wreck. 171 F.3d at 971. At the hearing, the district court did not

reject the notion that the collection of artifacts as a whole — rather

than piecemeal — could possibly be sold pursuant to an acceptable

plan, approved by the court. But counsel then explained a practical

difficulty in having to obtain the court’s approval of any such transfer

of artifacts. As counsel explained, approval "puts the company in a

very awkward position in dealing with those who want to acquire collections, in that you have to say to them, well, do your due diligence,

you go out and get your appraisal, you do everything else that you

have to do, and then we as a company will do the things that we have

to do. . . . So it requires opinions, various things that have to be done

for due diligence, and then to the potential acquirer, we will come to

the court and ask for approval of that." After the court explained the

difficulty in foregoing approval, it stated that, "[t]here is no sense in

the court or your taking the time to decide some abstract question. If

you have got some sort of an agreement or deal worked out, submit

that to the court, and the court will say whether or not it approves it."

Following the hearing and apparently out of concern over the possibility that artifacts might be sold, the district court entered another

order, dated September 26, 2001, stating:

The Court FINDS after the September 24, 2001 hearing that

its previous Orders entered in this case, designed to prevent

sales of individual artifacts recovered from the Wreck of

R.M.S. Titanic, were proper and were necessary when

entered. 

Two weeks later, RMST appealed that order. And after RMST

appealed the September 26 order, the district court entered another

order dated October 19, 2001, amending the September 26 order,

essentially explaining its position, as well as earlier orders. In its

explanation, the court indicated that it first learned in April 2001 of

8 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
the possibility that RMST might convey the collection and recognized

"that circumstances change and it becomes necessary to change plans

and approaches." The court invited further motions on the disposition

of artifacts. RMST appealed this October 19, 2001 order as well. 

Because there was no party in opposition to represent the district

court’s position, this court asked the University of Virginia School of

Law’s Appellate Litigation Clinic to file an amicus brief to serve as

the answering brief. The clinic did so ably, and we have considered

the arguments of both RMST and its counsel as well as counsel from

the clinic. 

II

The amicus appropriately raises the question of whether we have

jurisdiction to review the September 26 and October 19, 2001 orders.

RMST has asserted jurisdiction under 28 U.S.C. § 1292(a)(1) (authorizing appeals of interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or

modify injunctions") and 28 U.S.C. § 1292(a)(3) (authorizing appeals

of interlocutory decrees "determining the rights and liabilities of the

parties to admiralty cases"). 

The amicus argues that RMST cannot appeal under § 1292(a)(1)

because: (1) RMST consented earlier to the same order of July 28,

2000, see Haitian Refugee Ctr. v. Civiletti, 614 F.2d 92, 93 (5th Cir.

1980); (2) no factual or legal change has occurred to justify appealing

an ongoing injunction which RMST did not earlier appeal, see SEC

v. Suter, 832 F.2d 988, 990 (7th Cir. 1987); and (3) the district court

left open alternative avenues of relief, inviting RMST to submit a formal motion for approval of any new deal. Also challenging jurisdiction under § 1292(a)(3), the amicus argues that Congress limited

interlocutory review in admiralty cases to interlocutory decrees that

determine rights and liabilities, and it did not grant a right to appeal

every interim order. See Pickle v. Char Lee Seafood, Inc., 174 F.3d

444, 448 n.1 (4th Cir. 1999); Evergreen Int’l (USA) Corp. v. Standard

Warehouse, 33 F.3d 420, 425 (4th Cir. 1994). 

We agree with the amicus that if RMST is appealing orders under

§ 1292(a)(1) that simply clarify or interpret earlier orders that it failed

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 9
to appeal, its appeal rights would be forfeited by its failure to appeal

the earlier orders. See, e.g., Major v. Orthopedic Equip. Co., 561 F.2d

1112, 1115 (4th Cir. 1977) (holding that court lacked jurisdiction on

appeal from injunction because the order was "simply an interpretation" of an earlier order). This principle is based on the notion that the

more recent appealed orders add nothing in substance to earlier orders

left unappealed. If either of the appealed orders, on the other hand,

modifies the substance of an earlier order or extends its duration, the

new order is appealable under § 1292(a)(1). See, e.g., Pickle, 174 F.3d

at 448 (finding appealable an order that denied a party’s request for

modification of an injunction); Sierra Club v. Marsh, 907 F.2d 210,

213-14 (1st Cir. 1990) (noting that an order that extends or prolongs

the restraint imposed by an earlier order is appealable). Similarly, if

the factual and legal circumstances applicable to an earlier order

change, the substantive effect of a restated injunction may cause it to

become appealable. See, e.g., Suter, 832 F.2d at 990 (suggesting that

"changes in fact of law since [the injunction’s] entry" may justify an

appeal). 

The question of jurisdiction in this case is a close one which RMST

could have made easier by filing in the district court a motion to

vacate or modify the July 28, 2000 injunction, based on the new factual developments. Although RMST filed no such motion, it advances

a persuasive argument that the periodic reports and hearings prior to

the orders appealed in this case provide support for a position that the

circumstances had changed and that, therefore, the September 26 and

October 19, 2001 orders, which were aimed at the new circumstances,

had a new substantive effect. 

As RMST accurately points out, the April 2001 periodic report

indicated that two organizations had expressed interest in purchasing

some or all of the Titanic artifacts, The Titanic Foundation and the

Museums and Galleries of Northern Ireland. To acquire information

about the possible arrangements, the court conducted a hearing on

September 24, 2001, where witnesses testified about the details of a

potential artifact sale to those entities. After hearing testimony about

these new developments, the district court, sua sponte, issued the September 26 and October 19, 2001 orders from which RMST appealed.

RMST suggests that not only did the September 26 and October 19,

2001 orders focus on the new developments, but in substance they

10 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
also extended the scope of the earlier injunctions to cover new circumstances. It argues that the district court itself observed that the

court had earlier only prohibited the sale of individual artifacts but

had never enjoined the sale of the artifacts as a collection. With its

September 26 and October 19 orders, the court was enjoining any sale

of the artifacts "as a group." 

We believe that the new developments that preceded the September

26 and October 19 orders were sufficiently material as to justify

RMST’s challenge to the renewed injunctions entered following the

hearing on September 24, 2001. While the court may not have explicitly expanded its earlier injunctions, it acknowledged that the earlier

injunctions were "designed to prevent sales of individual artifacts"

and that it would consider a modification of them if the modification

was "designed to keep the recovered and to-be-recovered artifacts

together as a group." The court also acknowledged that "circumstances change and it becomes necessary to change plans and

approaches." 

Moreover, this case presents the rare circumstance that might render a later review of these interlocutory orders impossible. It is

unclear how long the in rem action will continue because it is unclear

how long salvage will continue. It could be years depending on

RMST’s capacity, will, and diligent performance of salvage services.

Because no final termination of these proceedings is currently in

sight, RMST could be left without a remedy for challenging the two

orders entered in light of the new developments. 

Accordingly, in the peculiar circumstances before us, we conclude

that we have jurisdiction under 28 U.S.C. § 1292(a)(1). We need not,

therefore, reach the question of whether this case presents a decree

appealable under 28 U.S.C. § 1292(a)(3). 

III

On the merits, RMST, relying heavily on language taken from the

district court’s June 7, 1994 order appointing RMST salvor-inpossession, directs our focus to the district court’s declaration in that

order that RMST "is the true, sole and exclusive owner of any items

salvaged from the wreck of the defendant vessel in the past and, so

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 11
long as [RMST] remains salvor-in-possession, items salvaged in the

future, and is entitled to all salvage rights." (Emphasis added). RMST

maintains that, for several reasons, this language confirms that it

became the absolute owner of the artifacts, free and clear, as they

were retrieved from the Titanic and, therefore, that it is entitled to sell

them, notwithstanding its earlier expressions to the court of an intent

not to sell them. 

Specifically, RMST argues first that there were no "contingencies

or exceptions" to the district court’s "in specie" award. Second,

RMST maintains that the maritime law "does not permit a District

Court to impose such restrictions on disposition of artifacts, awarded

in specie, for some perceived public benefit. These restrictions equate

to a ‘taking’ of private property." Third, RMST asserts that the district

court had no justification for "converting statements by RMST

regarding a business plan into a binding restriction upon disposition

of items recovered from the wreck." Fourth, RMST observes that the

district court speaks only through its orders and not through its opinions, whether oral or written, and its June 1994 order contains no

restrictions on disposition. Fifth, RMST argues that the doctrine of

judicial estoppel is inapplicable to its statements of intent about not

selling the artifacts because it never made misleading statements to

the court in order to obtain any benefit. And finally, RMST contends

that the restrictions are substantively "inappropriate" in view of the

public policy behind salvage law, arguing that the restrictions against

resale of the artifacts actually inhibit incentives to perform salvage

operations and that RMST, as a publicly traded company, "has an

obligation to maximize shareholder value," which should be considered. Indeed, the adverse effects of the district court’s orders on the

continuing financial viability of RMST runs throughout RMST’s

arguments that the court acted illegally and inappropriately. 

Before addressing RMST’s specific arguments, it is necessary to

set forth the relevant fundamental principles of salvage law and to

recognize the significance of this case as an in rem proceeding instituted under the salvage law to enforce RMST’s inchoate lien for a salvage reward. 

A

A salvor in admiralty is one who voluntarily saves life or property

at sea. Because of the dangers of the sea and the mutual interest of

12 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
seamen and seafaring nations to traverse the sea notwithstanding its

dangers, the law of admiralty for almost 3,000 years has uniformly

held that those who voluntarily come to the assistance of fellow seamen in distress and perform salvage are entitled to be rewarded.

Haver, 171 F.3d at 962; see generally Martin J. Norris, 3A Benedict

on Admiralty §§ 5-13 (7th ed. 1998). As Chief Justice Marshall eloquently explained, this is a policy for seamen, not landlubbers:

If the property of an individual on land be exposed to the

greatest peril, and be saved by the voluntary exertions of

any person whatever; if valuable goods be rescued from a

house in flames, at the imminent hazard of life by the salvor,

no remuneration in the shape of salvage is allowed. The act

is highly meritorious, and the service is as great as if rendered at sea. Yet the claim for salvage could not, perhaps,

be supported. It is certainly not made. Let precisely the same

service, at precisely the same hazard, be rendered at sea, and

a very ample award will be bestowed in the courts of justice.

Mason v. The Ship Blaireau, 6 U.S. (2 Cranch) 240, 266 (1804). By

saving property at sea, salvors do not become the property’s owner;

rather, they save it for the owners and become entitled to a reward

from the owner or from his property. Haver, 171 F.3d at 963; The

Amethyst, 1 F. Cas. 762, 764 (D. Me. 1840) (No. 330) (stating that

a salvor stands as a "voluntary agent" and thus is "bound to act for

the interest of the owner as well as his own"). The reward provides

an incentive for rendering salvage service at sea, and courts of admiralty have long enforced claims to this award against owners. Mason,

6 U.S. (2 Cranch) at 266 (allowing "a very ample compensation for

those services, (one very much exceeding the mere risk encountered,

and labour employed in effecting them)"). As one court early

explained: 

Salvage, it is true, is not a question of compensation pro

opera et labore. It rises to a higher dignity. It takes its

source in a deeper policy. It combines with private merit and

individual sacrifices larger considerations of the public

good, of commercial liberality, and of international justice.

It offers, a premium, by way of honorary award, for prompt

and ready assistance to human sufferings; for a bold and

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 13
fearless intrepidity; and for that affecting chivalry, which

forgets itself in an anxiety to save property, as well as life.

The Henry Ewbank, 11 F. Cas. 1166, 1170 (D. Mass. 1833) (No.

6,376). 

The principal method of enforcing a salvor’s award is through the

recognition of a salvor’s lien in the property saved. The Sabine, 101

U.S. 384, 386 (1879) (explaining that a salvage lien "ordinarily

affords the best mode of securing the payment of [a salvor’s]

claims"); Haver, 171 F.3d at 963. This maritime lien arises from the

moment salvage service is performed, United States v. ZP Chandon,

889 F.2d 233, 237 (9th Cir. 1989), and, as with any other lien, secures

the payment of the as-yet-to-be-determined salvage award. Such liens

are a temporary encumbrance of the property saved, lasting only until

payment of a salvage award can be made. The Everosa, 93 F.2d 732,

735 (1st Cir. 1937). 

Although there are substantive differences between maritime and

common law liens, see generally Grant Gilmore & Charles Black, Jr.,

The Law of Admiralty § 9.1 - 9.2 (2d ed. 1975), the maritime lien

enforcement process — i.e., the execution of the lien — parrots the

lien foreclosure process in civil law. The process begins when the salvor commences an in rem proceeding in admiralty against the property. Fed. R. Civ. P., Supp. R. C(1)(a) (stating that "[a]n action in rem

may be brought . . . [t]o enforce any maritime lien"); see also Haver,

171 F.3d at 963; Treasure Salvors, Inc. v. The Unidentified Wrecked

& Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir. 1981). The

salvor must provide notice of the in rem proceeding to the owner,

other lienholders, and potential claimants to the property. Fed. R. Civ.

P., Supp. R. C(4) (requiring public notice of the action and arrest if

the property has not been released under Rule E). 

If the owner appears and pays the salvage reward determined by

the court,* the lien is discharged and the owner takes the property

*In determining the appropriate award, courts generally rely on the six

factors set out in The Blackwall, 77 U.S. (10 Wall.) 1, 14 (1869): 

(1.) The labor expended by the salvors in rendering the salvage

service. (2.) The promptitude, skill, and energy displayed in ren14 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
clear of the salvage lien. Cf. Ferrous Financial Servs. Co. v. O/S Arctic Producer, 567 F. Supp. 400, 401 (W.D. Wash. 1983) (permitting

judicial sale to go forward because owner was in default and could

not obtain bond to release arrested ship). On the other hand, if the

owner does not appear, then the case continues as an in rem action,

and the court determines the award, sells the property, and, from the

proceeds, pays the salvor. Fed. R. Civ. P., Supp. R. E(9)(c). Any

remainder from the sale is remitted to the owner. If the owner is no

longer living, the court presumably pays the excess to the owner’s

heirs, and, if there are no heirs, to the state according to its escheat

law. 

If the sale of the salvaged property yields too little to satisfy the

salvor’s lien for a reward, then all of the proceeds from the sale of the

salvaged property are paid to the salvor. Courts have held that an

award cannot exceed the value of the property itself. Even if it does,

though, in an in rem proceeding, there certainly cannot be a deficiency judgment against the owner because the action is against the

property and any judgment therefore is limited to the value of the

property. See Allseas Maritime, S.A. v. M/V Mimosa, 812 F.2d 243,

246 (5th Cir. 1987) ("The salvage award is therefore limited by the

value of the property saved after all of the appropriate factors are

taken into account"); Lambros Seaplane Base, Inc. v. The Batory, 215

F.2d 228, 237 (2d Cir. 1954) (concluding that where owner did not

appear to claim a salvaged seaplane, the owner could not be held personally liable to the salvor). If it becomes apparent to the court that

the proceeds of any sale would clearly be inadequate to pay the salvor

its full reward, then the court might, as a matter of discretion, award

the salvor title to the property in lieu of the proceeds of sale, thus saving the costs of sale. The salvor does not have a direct right, however,

to title in the property. See Platoro Ltd. v. Unidentified Remains, 695

F.2d 893, 903-04 (5th Cir. 1983) ("We cannot find a case where the

salvage award was expressed in terms of the res rather than in doldering the service and saving the property. (3.) The value of the

property employed by the salvors in rendering the service, and

the danger to which such property was exposed. (4.) The risk

incurred by the salvors in securing the property from the impending peril. (5.) The value of the property saved. (6.) The degree

of danger from which the property was rescued. 

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 15
lars"); Chance v. Certain Artifacts Found & Salvaged from The Nashville, 606 F. Supp. 801, 808 (S.D. Ga. 1984) (declining "to accept the

in specie award as a valid award in a salvage action"), aff’d 775 F.2d

302 (11th Cir. 1985). Rather, the salvor has only a lien on the property which may, upon execution or foreclosure and in the discretion

of the court, be satisfied by the court’s conveying title to the salvor

after the court determines that the appropriate amount of award cannot be satisfied by a sale of the property. Haver, 171 F.3d at 966. 

Thus, hypothetically, if RMST were to recover an artifact valued

at $50 million (we know, for instance, that paintings have at times

sold for more) and the court were to determine that the appropriate

salvage award was $5 million, the court could not give the property

to RMST in satisfaction of its salvage lien because the lien exists only

to the extent of $5 million. The court instead would have to sell the

property and remit to RMST $5 million from the proceeds. On the

other hand, if RMST were to recover an artifact valued at $2 million

(a historic vase, for example) and the court were to determine, again,

that the appropriate salvage award was $5 million, a sale would be

useless. In lieu of a sale to foreclose the salvage lien, the court could

simply convey title in the $2 million vase to RMST, essentially providing RMST what is analogous to a "deed in lieu of foreclosure." 

Once the lien is executed and the salvor as lienholder is paid its

reward, whether in money or in kind, the reward becomes the property of the salvor to do with what it wants. Point Landing Inc. v. Alabama Dry Dock & Shipbuilding Co., 261 F.2d 861, 866 (5th Cir.

1958) ("The [judicial] sale cuts off the rights of all non-parties. The

title from the marshal is good against the world."). 

It is critical to note that under salvage law, the salvor receives a

lien in the property, not title to the property, and as long as the case

remains a salvage case, the lienholder cannot assert a right to title

even though he may end up with title following execution or foreclosure of the lien. See, e.g., The Akaba v. Burg, 54 F. 197, 200 (4th Cir.

1893) ("When articles are lost at sea the title of the owner in them

remains"); see also Adams v. Unione Mediterranea di Sicurta, 220

F.3d 659, 670-71 (5th Cir. 2000) (explaining that the owner of the salvaged goods "does not lose title even though the property may

become the subject of salvage services," because, through the lien, the

16 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
salvor obtains only a "right of possession" in the property and not

"ownership or title to the salved property") (quoting Benedict on

Admiralty § 150); Treasure Salvors, 640 F.2d at 567 ("Although the

law of salvage grants the salvor a right to possession of the property,

the salvage of a vessel or goods at sea, even when the goods have

been abandoned, does not divest the original owner of title or grant

ownership rights to the salvor"); Continental Ins. Co. v. The Clayton

Hardtop Skiff, 367 F.2d 230, 236 (3d Cir. 1966) ("The salvor has the

right to salvage but he does not achieve ownership of the vessel by

salving it"); Chance, 606 F. Supp. at 804 (stating that "even though

a vessel is abandoned without the hope of recovery or return, the title

of the vessel remains in her owner" and "[t]he salvor of property has

a right to an award or a lien against the property"), aff’d 775 F.2d 302

(11th Cir. 1985); Hener v. United States, 525 F. Supp. 350, 357

(S.D.N.Y. 1981) (explaining that salvage law grants the salvor "only

a superior right of possession, and not title, until a court has passed

on title and the salvage fee" (citing The Alaska, 54 F. 197 (4th Cir.

1893)); The Port Hunter, 6 F. Supp. 1009, 1011 (D. Mass. 1934)

(stating the salvors have a claim "paramount to all others" and the

control to enforce the claim, "[b]ut ‘their interest in the goods did not

amount to ownership. . . . Th[e] right is merely a lien, a right to retain

the goods till the salvage be paid’") (quoting Whitwell v. Wells, 24

Pick (Mass.) 25, 30 (1834)); The Carl Schurz, 5 F. Cas. 84, 86 (W.D.

Tenn. 1879) (No. 2414) (stating that the salvor "is, to all intents and

purposes, a joint owner" of the property along with the original

owner); The Amethyst, 1 F. Cas. at 763 ("The finder of property, left

derelict at sea, does not acquire the dominion or the absolute property

in what is found. He acquires the right of possession only, with a title

to a reasonable reward for his services"). 

This principle, while firm in the salvage law, does not mean that

a salvage case could not be converted into a finds case. See Platoro

Ltd., 695 F.2d at 904 (noting that salvage awards can be made by

award of title to the res under the law of finds); Treasure Salvors, Inc.

v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330,

336-37 (5th Cir. 1978) (recognizing that title to lost ships can be

divested from the owner under the law of finds). Under finds law,

"title to abandoned property vests in the person who reduces that

property to his or her possession." Id. at 337. Before such a conversion is made, however, the prerequisites for divesting title under the

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 17
law of finds must be satisfied. See, e.g., Columbus-America Discovery

Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 464-65 (4th Cir. 1992)

(requiring clear and convincing evidence of abandonment before the

law of finds is applied). 

Turning to the specifics in the case before us, RMST, as salvor,

obtained an inchoate lien in the artifacts upon performing salvage service in connection with the Titanic, and it became entitled to enforce

that lien through the in rem proceeding which is now pending before

the district court. It did not, however, obtain a lien in any property

that it merely discovered; discovery alone does not amount to salvage

service, although it can lead to salvage service. The Sabine, 101 U.S.

384, 384 (1879) (setting out three requirements for a salvage award:

existence of a marine peril, voluntary action by the salvor, and successful salvage). When RMST performed salvage service, the district

court exercised "constructive" in rem jurisdiction over the wreck and

declared RMST the sole salvor-in-possession of the Titanic. Haver,

171 F.3d at 967. And through that order, the court gave RMST the

exclusive right to salvage artifacts from the Titanic and to obtain a

reward through enforcement of its salvor’s lien in the artifacts. If and

when RMST abandons its role as salvor or the court dispossesses

RMST of that role, the unsalvaged wreck will remain as any other

unsalvaged wreck at the bottom of the sea, subject to salvage service

by others. 

Many of these basic principles of salvage and lien law have been

overlooked by RMST in its arguments. In addition to claiming title

as a lien-holder, it has, for example, also extensively argued that the

district court should have taken into account RMST’s financial viability. But this issue has no relevance to whether RMST is entitled to

enforce its salvage lien against the artifacts that it salvaged. When

RMST voluntarily salvaged property — even with profit in mind —

it became entitled only to a yet-to-be-determined reward, enforceable

against the property. The Camanche, 75 U.S. (8 Wall.) 448, 475

(1869) (allowing recovery even by those salvors "whose business it

is to be always ready and at command whenever assistance is

required"); B.V. Bureau Wijsmuller v. United States, 702 F.2d 333,

339 (2d Cir. 1983). RMST is not entitled to a guarantee that it remain

in business as a viable company to conduct salvage services. Surely

if RMST abandoned its efforts, others would take over. In this case,

18 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
other potential salvors have unsuccessfully petitioned the district

court to do exactly that. See R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 924 F. Supp. 714 (E.D. Va. 1996) (rejecting claim of

potential salvor to rescind RMST’s salvor-in-possession rights). And

if no others were to do so, then the wreck of the Titanic would lie unsalvaged as it did for the first 75 years after it sank. 

With these important principles in hand, we now turn to address

RMST’s specific arguments ad seriatim. 

B

The first and most fundamental issue raised by RMST is the meaning to be given to the district court’s June 7, 1994 order. Resting on

its contention that this order gave RMST full, unrestricted title to the

salvaged artifacts, RMST argues as a matter of property law that the

court cannot now reverse itself to impose restrictions on the disposition of the artifacts which belong to RMST. 

First, it must be pointed out that the June 1994 order, drafted by

counsel for RMST, is inherently ambiguous, repeating the language

of RMST’s complaint in which it appears that RMST sought both

absolute title in the artifacts through the law of finds and salvage

rights through the law of salvage. Because RMST pursued only salvage rights and the court only declared it a salvor, not a finder, any

suggestion that it obtained title to the wreck of the Titanic is misplaced. Yet, the order submitted to give RMST salvage rights uses

both salvage language and finds language. It says:

The court FINDS AND ORDERS that R.M.S. Titanic, Inc.

is the salvor-in-possession of the wreck and wreck site of

the R.M.S. Titanic, including without limitation the hull,

machinery, engine, tackle, apparel, appurtenances, contents

and cargo, and that R.M.S. Titanic, Inc. is the true, sole and

exclusive owner of any items salvaged from the wreck of

the defendant vessel in the past and, so long as R.M.S.

Titanic, Inc. remains salvor in possession, items salvaged in

the future, and is entitled to all salvage rights, and that

default judgment is entered against all potential claimants

who have not yet filed claims and such claims are therefore

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 19
barred and precluded so long as R.M.S. Titanic, Inc. remains

salvor in possession, and the Court accordingly enters judgment in favor of R.M.S. Titanic, Inc. 

Just as this order gives property rights, it also takes them away. It

appears to give ownership of the artifacts to RMST — declaring

RMST the "true, sole and exclusive owner" — but then in the same

sentence states that RMST "is entitled to all salvage rights" as long

as it maintains its role as salvor. Indeed, the lead-in to the same sentence also states that RMST is the salvor-in-possession — not the

finder — of the wreck and the wreck site. Because the court was

clearly applying the law of salvage and not the law of finds, it could

only convey possession, not title. Haver, 171 F.3d at 961-62. 

Moreover, contemporaneously with entry of the June 1994 order,

the parties expressed their unequivocal intent that RMST’s role be

that of salvor, not finder. And RMST has never argued that the

Titanic had been abandoned and that it was entitled to full title to the

entire ship and the artifacts from it, as would be required if this case

progressed under the law of finds. See Fairport Int’l Exploration, Inc.

v. Shipwrecked Vessel, 177 F.3d 491, 498 (6th Cir. 1999) (explaining

that under law of finds, claimant must show that the property has been

abandoned and that courts apply a presumption against abandonment); Columbus-America, 974 F.2d at 461, 464-65 (explaining that,

in maritime law, "a strong actus element [is] required to prove the

necessary intent" of abandonment, such as express declaration abandoning title). RMST’s position that it was only the salvor is consistent

with admiralty law’s strong preference for recognizing persons who

discover wrecks as salvors rather than finders. See Haver, 171 F.3d

at 961; Columbus-America, 974 F.2d at 464 (explaining that "when

sunken ships or their cargo are rescued from the bottom of the ocean

by those other than the owners, courts favor applying the law of salvage over the law of finds"). 

Also contemporaneous with the entry of the June 1994 order, the

district court and RMST understood the order’s language to give

RMST exclusive possession of the artifacts to permit RMST to earn

money through the exhibition of the artifacts as an interim advance

to fund further salvage efforts. But it was clear that RMST was not

authorized to sell the artifacts. At the hearing before entry of the June

20 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
1994 order, the court sought reconfirmation from RMST that it had

in fact advised the court of its "intention to display these artifacts and

to try and get [its] money back out of admissions to the display rather

than selling them off. Is that still the intention of the Titanic people?"

Counsel for RMST stated unequivocally, "Yes, sir, Your Honor." Cocounsel for RMST then explained further "that the 1987 artifacts and

the 1993 artifacts will not be sold, but rather will be exhibited." 

But of overarching importance to the party’s contemporaneous

understanding of the June 1994 order was the nature and status of the

court proceedings. RMST had filed an in rem action against the

Titanic to enforce its salvage lien. The fact that no claimants appeared

— other than an insurance company, which settled — does not mean

that RMST’s lien in the artifacts automatically became converted to

title to the artifacts. RMST must first complete the salvage service

that it intends to perform and have its reward determined, unless it

intends to seek periodic awards. Only after its reward is determined

can it seek to enforce the lien against the artifacts themselves. 

Yet none of these necessary steps had taken place as of 1994. No

determination of a reward had been made; no one had submitted an

appraisal of the artifacts or testified that sale of the artifacts would

produce an inadequate sum to satisfy the lien. The determination of

the reward itself is an involved process that encompasses evaluation

of the salvage services in light of the Blackwall factors. See, e.g.,

Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 984-85 (5th

Cir. 1998) (describing the extensive district court process of evaluating Blackwall factors). Thus, at the early stage of the proceedings in

1994, the court could only have given RMST exclusive possession of

the artifacts pending further necessary proceedings. 

But even if this understanding was not apparent to RMST, the

court’s July 28, 2000 order made it apparent. That order, confirming

what the court believed about its June 1994 order, categorically prohibited the sale of artifacts as follows:

This court has continued RMS TITANIC, Inc. as salvor in

possession of the wreck of the TITANIC from year to year

on the understanding that RMS TITANIC, Inc. would treat

and preserve all artifacts recovered and would exhibit them

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 21
to the public and would not sell or dispose of any of said

artifacts. . . . 

It has come to the attention of the court that there has been

a change of management in RMS TITANIC, Inc. and that

there is a concern held by some persons and organizations

that RMS TITANIC, Inc. is considering disposal of some of

the artifacts recovered. . . . 

It is ORDERED that RMS TITANIC, Inc. and any of its

employees, agents or subcontractors may not sell or otherwise dispose of any artifacts or any object recovered from

the TITANIC wreck site and further that it must continue to

treat and preserve any such artifacts or objects recovered

from the wreck site. 

No one suggests that this July 2000 order did not unequivocally

restate that RMST was still the appointed salvor and confirm that it

was not authorized to "sell or dispose of any of said artifacts." Moreover, when, in April 2001, RMST proposed an amendment to the July

2000 order to permit the sale of coal, an amendment to which the

court agreed, RMST agreed with the court’s interpretation of its June

1994 order. During the hearing that led to entry of the April 30, 2001

order permitting the sale of coal, the court also stated that "[i]t had

earlier in 1994 issued an order awarding R.M.S. Titanic salvor-inpossession status, and that was based in part upon the understanding,

I believe, of the court that the company intended to conserve and

exhibit artifacts recovered from the wreck site." 

Moreover, RMST never took issue with the court’s clarifications

and interpretations of the June 1994 order made in the July 2000 and

April 2001 orders. It did not appeal either order. Any question about

what the June 1994 order meant, therefore, was answered by the

court’s unappealed July 2000 order, as restated in the court’s April

2001 order. Now, some 18 months after entry of the July 2000 order,

RMST is simply not free to reargue that order, nor the April 2001

order. 

In sum, while the language of the June 1994 order declaring RMST

salvor-in-possession may have been ambiguous with respect to own22 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
ership of the artifacts, the contemporaneous understanding between

the court and RMST at least put in doubt any claim to absolute ownership. More importantly, the court could not legally have awarded

title to the artifacts to enforce RMST’s salvage lien until the amount

of the lien was decided and the value of the artifacts determined or

evidence taken that the sale would produce less than the amount of

the lien. As everyone understood, these determinations had not been

made. Finally, the court construed its June 1994 order by its July 2000

and April 2001 orders, interpretations with which RMST agreed and

which it did not appeal. Accordingly, we will not now permit RMST

to take a few words from the June 1994 order out of their context —

both the context of that order and the context of the legal proceedings

— to claim that it was granted absolute title to the artifacts at that

time. 

C

The remaining arguments do not require much discussion because

they depend on RMST’s reading of the June 1994 order as giving it

absolute title to the artifacts as they were removed from the Titanic.

RMST’s position that once it was awarded the artifacts "in specie,"

the district court was not free to restrict the disposition of the property

and any such restriction amounted to a "taking of private property"

may be a tenable position. But as pointed out above, the district court

did not award RMST absolute title in the property, nor could it have

in the circumstances. As a condition to such an award in a salvage

proceeding, it would have had to complete execution or foreclosure

of RMST’s salvor’s lien. Indeed, the reward secured by the salvor’s

lien had not yet been determined. Accordingly, this argument, while

probably correct as an abstract statement, is irrelevant to what

occurred in these proceedings. 

Similarly, RMST may have a valid point when it asserts that

RMST’s expression of business plans cannot be converted to restrictions on property awarded to it as its reward. But again, this position

is irrelevant because it assumes incorrectly that RMST had full title

to the artifacts. 

On another argument, RMST asserts correctly that its expression of

business plans cannot form the basis for application of the doctrine of

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 23
judicial estoppel. See generally King v. Herbert J. Thomas Mem’l

Hosp., 159 F.3d 192, 196-97 (4th Cir. 1998); Lowery v. Stovall, 92

F.3d 219, 223-24 (4th Cir. 1996). In making this argument, however,

RMST assumed that it owned the artifacts and that judicial estoppel

should not improperly be applied to deny it ownership. Again, this

position is only hypothetical in the context of this case. 

Finally, RMST argues that restrictions now in place that prohibit

the sale and distribution of the artifacts are substantively "inappropriate." But this argument is also made in the context of RMST’s position that it owned the artifacts. When it is acknowledged that the

district court had not yet determined RMST’s reward and had not yet

executed RMST’s salvor’s lien, it must also be recognized that the

property at this stage was in custodia legis, pending further proceedings, even though RMST had physical possession of the property. If

the court in its discretion had determined that it would await completion of RMST’s salvage services before determining an award, the

court would not have acted inappropriately. Maintaining the artifacts

in a single collection accommodates the possibility that their value in

any subsequent sale might be greater in a collection than in pieces. On

the other hand, the court would not need to await completion of

RMST’s salvage services as it could determine awards on a periodic

basis. See, e.g., Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F. Supp. 540, 561 (S.D. Fla. 1982) (retaining jurisdiction in ongoing salvage effort "[t]o adjudicate the

plaintiff’s claim to a salvage award on a periodic basis" and requiring

the salvor to file periodic reports that "catalogu[e] the artifacts saved

in the previous calendar year" in order to determine each individual

award). At the most recent hearing conducted by the district court in

this case, the court expressed a willingness to consider a proposal to

sell the artifacts, objecting only to deciding this question in the

abstract. It invited RMST to submit an appropriate proposal. But, as

of now, pending further decisions by the district court, RMST has not

demonstrated that maintaining the artifacts as a collection is inappropriate or illegal. Indeed, in the end, RMST’s lien might become more

readily satisfiable by maintaining the artifacts as a collection at this

time. 

The Titanic was a historic ship, and the artifacts recovered from its

wreckage therefore have enhanced value. RMST currently has a

24 R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL
unique role as the Titanic’s exclusive salvor, and, having performed

salvage services, it has a lien in the artifacts and is entitled to a reward

enforceable against those artifacts. At this stage of the proceedings,

however, we cannot conclude that RMST has title to any artifacts. We

also cannot conclude that the course that the district court is pursuing

violates the law of salvage or amounts to an abuse of discretion.

Accordingly, the orders of the district court, dated September 26,

2001, and October 19, 2001, are affirmed.

AFFIRMED

R.M.S. TITANIC, INC. v. THE WRECKED AND ABANDONED VESSEL 25