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September 13, 1990

The Unidentified, Wrecked And Abandoned Vessel, Believed To Be the SB "LADY ELGIN," Defendant; HARRY ZYCH, d/b/a AMERICAN DIVING AND SALVAGE CO., Plaintiff, v. The Unidentified, Wrecked And Abandoned Vessel, Believed To Be the SB "SEABIRD," Defendant

Ilana Diamond Rovner, United States District Judge.

The opinion of the court was delivered by: ROVNER



 The Lady Elgin, built in 1851, was a celebrated sidewheel steamer which carried passengers, mail and freight on Lake Michigan and Lake Superior. On September 8, 1860, she was overloaded with approximately 450 passengers returning to Milwaukee after attending a Democratic Party rally in Chicago for presidential candidate Stephen Douglas. A violent storm arose, decreasing the visibility, and she was fatally rammed by the lumber schooner Augusta. She sank soon afterwards in what is perhaps the most famous shipwreck in the history of the Great Lakes. *fn1" At least 100 passengers were saved, but some 300 perished in the calamity. Those who went down with the ship included so many Irish political activists that the sinking has been credited with transferring the balance of power in Milwaukee from the Irish to the Germans.

 Diving enthusiasts have vied for years to become the discoverer of the Lady Elgin's remains, but until recently Lake Michigan refused to give up her treasure. In 1989, however, after 16 years of searching, plaintiff Harry Zych, who owns and operates American Diving and Salvage Company, discovered what he believes is the wreck of the Lady Elgin. He then filed an in rem complaint in this Court seeking ownership of her remains or, alternatively, a salvage award.

In late March of 1868, the Seabird was brought out of winter lay-up at Manitowoc and made ready for the coming summer season. She was given a thorough going over and freshly painted inside and out.
During midmorning of April 8, 1868, she loaded passengers and freight for her first downbound trip of the new season. Her destination was Chicago with stops scheduled for Milwaukee, Racine, and Kenosha. Departure was at noon from Johnston's pier. Captain John Morris was in command.
A news item and a small ad in the Milwaukee Sentinel on the morning of April 8, 1868, announced that the side-wheel steamer Seabird, Captain John Morris, would leave at 7:00 P.M. for Chicago inaugurating a new service for the season of 1868. The fare was $ 1.00, which was less than by railway, and there was no charge for staterooms.
Everything went well on that first trip until Seabird was off Waukegan, a little after 6:00 A.M. on the morning of April 9. The night had been cold and the large stove in the main cabin had been kept going all night to provide some warmth and comfort for the passengers. As daylight came, the porter cleaned the fire in the cabin stove and then stepped to the rail to throw the still hot ashes over the side. Unfortunately he emptied his container into the wind and the hot ashes, fanned by the brisk northwesterly wind, blew back aboard and into the cargo stowed on the main deck. Some highly varnished tubs, packed in excelsior, were quickly ignited and the dread cry of "Fire!" swept the ship! As the flames made their way topside and into the cabin area they were fed by the newly painted woodwork and the entire steamer was soon engulfed in a mass of flame. There was no place for the terrified passengers and crew to go except over the side into the numbing cold waters of Lake Michigan. Survival in the 36-degree water lasted only a few minutes for most. . . .
Only two passengers were saved. They were A.C. Chamberlain and Edwin Henneberry, both from Sheboygan.

 J. Elliott, Red Stacks Over the Horizon 41-43 (1967).

 The remains of the Seabird lay hidden on the bed of Lake Michigan until they too were discovered by Zych in 1989. Zych then filed an in rem action seeking ownership of the Seabird or a salvage award.

 The two cases were consolidated because they raised similar issues. Plaintiff moved for an order of default, but before that motion could be ruled on, the Illinois Department of Transportation and the Illinois Historic Preservation Society (collectively, "the State") intervened for the limited purpose of moving to dismiss the cases on the basis of the State's sovereign immunity guaranteed by the Eleventh Amendment of the U.S. Constitution. Plaintiff argued that the Eleventh Amendment did not bar the action, and that even if the Eleventh Amendment would otherwise bar the action, the State had waived its immunity. Plaintiff's arguments included a challenge to the constitutionality of the Abandoned Shipwreck Act of 1987, 43 U.S.C. ยงยง 2101 et seq. Accordingly, the United States intervened and submitted briefs defending the Act's constitutionality. Amicus briefs were also submitted by various interested parties. *fn2"

 While the motion to dismiss was pending, plaintiff formed the Lady Elgin Foundation in order to pursue another avenue of gaining possession of the wreck. The Foundation reached an agreement with CIGNA Property & Casualty Company, which holds a claim of title to the wreck based on its insurance of the hull and cargo of the Lady Elgin and its payment on a claim by its insured. Pursuant to that agreement, CIGNA transferred its ownership interest in the vessel to the Foundation in exchange for twenty percent of the proceeds of any artifacts recovered from the wreck and sold by the Foundation. After reaching this agreement, the Foundation moved to intervene in the Lady Elgin case for the purpose of joining in plaintiff's objections to the State's motion to dismiss. Because this development placed the Lady Elgin case in a very different posture than the Seabird case, the Court vacated its consolidation order. *fn3"


 Analysis of the applicability of the Eleventh Amendment *fn4" in the context of an in rem action concerning a shipwreck is governed by the case of Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S. Ct. 3304, 73 L. Ed. 2d 1057 (1982). That case involved the wreck of a 17th-century Spanish galleon discovered in international waters off the coast of Florida. During litigation over title to the wreck, the plaintiff filed a motion for an order commanding the United States Marshal to arrest and take custody of artifacts which were in the possession of officials of the State of Florida. Florida opposed the motion on the ground of sovereign immunity.

 A plurality of the Supreme Court stated that three questions must be answered in order to resolve the Eleventh Amendment issue:

(a) Is this action asserted against officials of the State or is it an action brought directly against the State of Florida itself? (b) Does the challenged conduct of state officials constitute an ultra vires or unconstitutional withholding of property or merely a tortious interference with property rights? (c) Is the relief sought by Treasure Salvors permissible prospective relief or is it analogous to a retroactive award that requires "the payment of funds from the state treasury"?

 458 U.S. at 690, 102 S. Ct. at 3317. More specifically, an action is barred if it is directly against the state itself; if it challenges the conduct of state officials who have exercised legitimate authority; or if it seeks a retroactive award requiring payment of state funds. The Court held that the motion for arrest was not against the State itself but rather against state officials; that the action of those state officials was taken without legitimate authority; and that the arrest warrant did not seek any attachment of state funds and would impose no burden on the state treasury. Id. at 691-98, 102 S. Ct. at 3318-21. Accordingly, the Eleventh Amendment did not bar the arrest warrant. The Court held, however, that the Eleventh Amendment did bar federal judicial determination of the ownership issue itself. Id. at 700, 102 S. Ct. at 3322.

 A. Nature of Relief Sought

 Because the third Treasure Salvors question -- the nature of relief sought -- is the most straightforward in this case, the Court addresses it first. In Treasure Salvors, the Court found that the relief sought by the plaintiff was permissible prospective relief which comported with the principles of Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). It noted that the arrest warrant in issue "sought possession of specific property" and "did not seek any attachment of state funds and would impose no burden on the state treasury." Id., 458 U.S. at 698, 102 S. Ct. at 3321. The instant case is similar in all relevant aspects. Although the pending issue concerns the in rem action itself rather than an arrest warrant, in both cases the primary goal of the plaintiff is recovery of specific property. See also Cobb Coin Company, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel ("Cobb Coin II"), 549 F. Supp. 540, 554 (S.D. Fla. 1982) (recovery sought in in rem action was consistent with Eleventh Amendment where award would be in form of artifacts rather than payment of funds from state treasury).

 The State contends that the Court must look to plaintiff's request for a salvage award as an alternative form of relief if his claim to ownership of the property is denied. Citing Platoro Ltd. v. Unidentified Remains of a Vessel, 695 F.2d 893, 904 (5th Cir.), cert. denied, 464 U.S. 818, 104 S. Ct. 77, 78 L. Ed. 2d 89 (1983), the State further argues that a salvage award constitutes a monetary award against the state because a salvage award cannot be granted in specie, or in terms of the recovered artifacts themselves.

 The Court finds this argument to be flawed in two respects. First, because the lawsuit seeks a salvage award only as an alternative request in case the primary relief is denied, the request for a salvage award is not determinative of the nature of the action. Second, the Court does not agree that a salvage award is necessarily the type of relief forbidden by the Eleventh Amendment. In Platoro, the issue was not whether a salvage award made the Eleventh Amendment applicable but rather whether the district court erred in ordering, as a salvage award, that the state either surrender the artifacts to the salvor or auction the artifacts and give the proceeds to the salvor. The Court stated that it could find no precedent in which "the salvage award was expressed in terms of the res rather than in dollars, except where the salvage award was made alternatively with an award of title to the res under the law of finds." 695 F.2d at 903-04. The court cited, as one example, Treasure Salvors v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978), in which the court expressly stated that "salvage awards may include the entire derelict property." The validity of Platoro's statement is doubtful. For instance, in Cobb Coin II, the court stated: "The appropriate form of [salvage] award in a case like this should differ from traditional awards. It should be given in specie because the property saved is uniquely and intrinsically valuable beyond its monetary value." 549 F. Supp. at 561. See also Owen, Legal Troubles with Treasure, 16 J. Mar. L. & Comm. 139, 170 (1985) ("An award may also be made in specie, and this is particularly suitable in treasure salvor cases."). In any event, plaintiff here does seek a salvage award only as an alternate form of relief, and even the logic of Platoro would suggest that a salvage award consisting of artifacts themselves would thus be permissible.

 The State also argues that even if the lawsuit seeks only injunctive relief, it is barred by the Eleventh Amendment pursuant to Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). This argument is unpersuasive. Pennhurst concerned only actions in federal court seeking to compel state officials to conform their conduct to state law. Plaintiff's in rem complaint in this case does not rely on state law, and Pennhurst is therefore inapplicable.

 The Court concludes that the form of relief sought by plaintiff is not inconsistent with the Eleventh Amendment.

 B. Action Against State

 1. Nature of Inquiry

 In a case, such as this one, where the plaintiff has not challenged any specific action by state officials and the state seeks dismissal of the underlying in rem action, the three-question test set forth in Treasure Salvors must be altered somewhat. It no longer makes sense to ask the second question as framed in Treasure Salvors -- whether the conduct of the state officials is ultra vires or unconstitutional. See Cobb Coin II, 549 F. Supp. at 551 ("Presumably, the second question is immaterial if the state officials are not named defendants."). However, this second question resurfaces in another form when courts attempt to answer the first question -- whether the suit is brought directly against the state. In rem suits to determine ownership of abandoned shipwrecks generally seek title against "all the world," including "states." Thus although they are not brought directly against states, they implicate states' interests in the same way they implicate the interests of any other possible claimants. The minority position, in answer to the first Treasure Salvors question, is that such an in rem action simply is not a suit brought directly against the state. See Cobb Coin II, 549 F. Supp. at 551-52. *fn5" Cf. Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel, 895 F.2d 116 (3d Cir. 1990). *fn6" More often courts appear to have assumed that actions seeking to determine ownership against "all the world" are, in effect, suits against states because states are included in the concept of "all the world." See Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (1st Cir. 1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir. 1983); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F. Supp. 1377 (S.D. Fla. 1988); Subaqueous Exploration v. Unidentified, Wrecked and Abandoned Vessel, 577 F. Supp. 597 (D. Md. 1983). See also Marx v. Government of Guam, 866 F.2d 294 (9th Cir. 1989). *fn7" However, as these courts have implicitly recognized, if a particular state would have no colorable claim of title, then the lawsuit cannot legitimately be treated as an action against that state. In other words, for a state to show that it is a defendant and thus is entitled to assert sovereign immunity, the state must show that it has a colorable claim of ownership. See Owen, ...

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