The Foundation has submitted a number of documents and affidavits in support of its claim. The Foundation relies heavily on the affidavit of Ivan Avery, an expert in insurance archival matters and an officer of a subsidiary of CIGNA. Avery reviewed a Letter Book containing correspondence from July 23, 1860, through March 5, 1861, and found six letters relating to the Lady Elgin wreck. He notes that the Letter Book would only have contained the most significant correspondence due to the difficulty and expense of copying documents at that time.
The first document is a letter dated September 11, 1860, from Thomas Alexander, an officer of Aetna, to Gordon Hubbard and a Mr. Hunt. Hubbard was an agent of Aetna and also owned the Lady Elgin, and Hunt was his partner. In the letter, Alexander states that he has been informed of the loss and expresses hope that the company will escape claims on the cargo.
Also on September 11, 1860, Alexander wrote to Captain E.P. Dorr, the surviving captain of the Lady Elgin, inquiring as to ongoing litigation against the owners of the schooner Augusta, which had caused the Lady Elgin to sink by ramming her during a storm.
On September 13, 1860, Aetna President E.G. Ripley wrote to J.B. Bennett, an Aetna agent based in Cincinnati. He noted that the Aetna policies applicable to the Lady Elgin were for $ 5000 for the hull and $ 2500 for the cargo. Ripley wrote to Hubbard and Hunt on September 22, 1860, instructing them to pay on the Lady Elgin claims as soon as possible upon the receipt of invoices.
On October 10, 1860, Alexander wrote again to Hubbard and Hunt. After an apparent discussion of the interest on the claim, he writes, "permit us to confirm Capt. Dorr instructions not to accept an abandonment of the vessel, for the reason which he informs us he gave you on his recent visit to Chicago."
The final document is a letter from Alexander to Hubbard and Hunt on November 15, 1860, noting the payment of $ 11,993.20 to Hubbard "in full of policy on Lady Elgin."
The Foundation also submits the affidavit of Christopher Parson, its Executive Director. Parson states that the Lady Elgin has been the subject of intensive search efforts by a number of prominent salvors and underwater explorers as well as many less organized efforts by sport divers. Parson also describes the search methods which were used in conducting both Zych's earlier, unsuccessful efforts to locate the wreck and those used in his recent, successful effort. Because of the location of the wreck, in very deep water and spread out among boulders and large stones in the lake bed, the wreck could not have been found without the state-of-the-art technology which Zych used to discover the wreck and which was not available until the late 1980's.
Zych does not dispute the facts asserted by the Foundation based on this evidence. In fact, the parties have stipulated that the documents show that Aetna insured the Lady Elgin's hull and cargo, that Aetna received claims and supporting documentation for the loss, that Aetna paid the claims in full for $ 11,993.20, and that Aetna instructed its agents not to abandon the Lady Elgin. Zych also concedes that Aetna acquired title to the Lady Elgin by subrogation. However, Zych disputes the legal significance of these facts. He argues that Aetna abandoned the wreck through the lapse of time and the failure to take any steps to recover the vessel. See Wiggins v. 1100 Tons of Marble, 186 F. Supp. 452, 456 (E.D. Va. 1960) (although lapse of time and "nonuser" are not sufficient in themselves to constitute abandonment, they did imply an intent to abandon when considered along with the failure to conduct sufficient efforts to recover the property).
The only reported case which the Court and the parties have been able to locate in which an insurer has asserted title to a shipwreck is Columbus-America. In that case, the court determined that the insurance companies had abandoned a vessel which was wrecked in 1857. The insurers had submitted, as proof of ownership, newspaper articles from the time of the wreck which indicated that the insurers stated they would pay the claims upon presentation of proper proof. 742 F. Supp. at 1344. The court assumed that payments had actually been made in accord with this intent. Id. However, the court emphasized that it had not been provided with the types of documents it would expect were involved in the transactions, such as an invoice, a bill of lading, a draft or bill of exchange evidencing the payment itself, and an insurance certificate. Id. The court then stated:
The insurance carriers destroyed their records relating to the events of the Central America. Exactly when is not shown, but evidence establishes it was their custom to keep records for some five year periods, and thereafter destroy them. However, one expert on marine insurance testified that if a company intended to assert its right to subrogation, it always maintained its documents of proof of the claim and that it had paid the claim, and the fact it disposed of such documents was an indication it abandoned its claim. It is difficult to believe that a company claiming an asset or property worth $ 150,000.00 in the 1800's or even early 1900's would destroy all evidence of its claim if it had any intention to pursue it, or any hope of recovery. How could one better demonstrate their intention to abandon a claim to or interest in property than to intentionally destroy every evidence of its claim, right or title thereto. . . . Their actions speak clearly. They had no hope or idea they could locate the Central America, and even if they located it, they had no hope they could recover anything from it. They destroyed the documents and intended thereby to abandon any claim they might have.
Id. at 1344-45. The court also emphasized that the insurers had not joined or assisted in any of several well-publicized expeditions after the technology capable of locating the wreck became available. Id. at 1345.
This case, of course, differs from Columbus-America in that there is no affirmative act, such as the destruction of documents, which indicates an intent by Aetna to abandon the wreck. Indeed, one of the documents appears to show a specific intent not to abandon it.
There remains, however, the argument that the failure to take any steps to recover the wreck is sufficient evidence of intent to abandon, when considered in light of the lapse of 130 years. The Foundation contends that Aetna's failure to act is inconsequential because the technology has not previously been available to locate the wreck -- as evidenced both by the affidavit of Parsons and by the lack of previous success in locating the Lady Elgin despite numerous search efforts. Zych might respond that the lack of late-1980's technology did not dissuade others from attempting to locate the wreck. In light, however, of the law's hesitancy to find abandonment and the concomitant requirement that abandonment be supported by strong and convincing evidence, the Court finds that Aetna was not required to engage in efforts to recover the wreck in order to avoid abandoning its interest when such efforts would have had minimal chances for success.
Zych has not provided sufficient evidence from which a reasonable fact-finder could conclude that Aetna abandoned the wreck of the Lady Elgin. Accordingly, the Court finds that the Foundation's claim to the wreck must be upheld and Zych's claim for ownership must be dismissed.
III. SCOPE OF THE JUDGMENT
The Foundation further seeks an order establishing its ownership rights over the wreck as against the State. In determining that the State was immune, the Court found that the action was, in part, against the State because the State had a colorable claim of ownership pursuant to the common law of finds and, alternatively, the Abandoned Shipwreck Act, 43 U.S.C. §§ 2101 et seq. Both of these bases for the State's ownership claim rest on the assumption that the vessel has been abandoned. The Foundation reasons that because the Court has now found that the vessel was not abandoned, it is now clear that the State does not have a colorable ownership interest in the vessel. Accordingly, the State is not immune, and the judgment should run against the State along with the rest of the world.
The Foundation's logic makes sense on its face. Ordinarily, in an abundance of caution, the Court would enter a rule to show cause why the judgment should not enter against the State as well, and afford the State an opportunity to respond. However, the State was aware of the Foundation's desire that the judgment run against the State. That desire was expressed in the Foundation's memorandum of November 19, 1990, and was also addressed in Zych's memorandum filed the same date. Both of those memoranda were served upon the State's attorney, William Kane. A hearing was then held in open court on November 26, 1990. With respect to the State, the following colloquy occurred:
THE COURT: . . . Now, Mr. Kane, tell me this, does the State intend to take any position in these proceedings?
MR. KANE: No, Your Honor, it's the State's position we are no longer a party before this Court. And your order that was entered I believe on September has been appealed. In fact, the plaintiffs have filed their brief and we'll be responding. So it's our position we are not -- not involved in this case any more.