Filed: April 28, 1999



No. 98-1934


R.M.S. Titanic, Inc., etc., 

Plaintiff - Appellee,


Christopher S. Haver, et al,

Parties in Interest - Appellants.


The court amends its opinion filed March 24, 1999, as follows: 

On page 27, first full paragraph, line 9 -- the citation to "California, 332 at 34" is corrected to read "Louisiana, 363 U.S. at 34 . . . ."

On page 34, first full paragraph, lines 11-12 -- the citation is corrected to end "The Akaba, 54 F. at 200."

For the Court - By Direction

/s/ Patricia S. Connor 






successor in interest to Titanic

Ventures, limited partnership,





Parties in Interest-Appellants,



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,

No. 98-1934

believed to be the R.M.S. Titanic, in














Parties in Interest,







Amici Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

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


Argued: October 29, 1998

Decided: March 24, 1999

Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.


Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge Niemeyer wrote the opinion, in which Judge Ervin and

Judge Wilkins joined.



ARGUED: Alex Blanton, DYER, ELLIS & JOSEPH, Washington,

D.C., for Appellants. F. Bradford Stillman, MCGUIRE, WOODS,

BATTLE & BOOTHE, L.L.P., Norfolk, Virginia, for Appellee. ON

BRIEF: Michael Joseph, Joseph O. Click, DYER, ELLIS &

JOSEPH, Washington, D.C., for Appellants. Mark S. Davis, Douglas

E. Miller, Lee A. Handford, MCGUIRE, WOODS, BATTLE &

BOOTHE, L.L.P., Norfolk, Virginia, for Appellee. David G. Concan-

non, KOHN, SWIFT & GRAF, P.C., Philadelphia, Pennsylvania, for

Amicus Curiae Explorers Club. John P. McMahon, MCMAHON &


CONNELL, P.C., Charlotte, North Carolina, for Amicus Curiae Advi-

sory Council. Richard T. Robol, COLUMBUS-AMERICA DISCOV-

ERY GROUP, Columbus, Ohio, for Amicus Curiae Columbus-




NIEMEYER, Circuit Judge:

This appeal presents questions about the authority of a United

States court to regulate the salvage rights in the wreck of the luxury

liner, R.M.S. Titanic, which lies in international waters.

The Titanic was launched in 1912 as the "largest and finest steam-

ship ever built" and with the claim that she was "unsinkable." On her

maiden voyage from Southampton to New York, however, with 2,340

passengers on board, the Titanic collided with an iceberg in the North

Atlantic and sank less than three hours later, on April 15, 1912. A

nearby ship saved 745 persons and some lifeboats and took them to

New York. Another ship recovered several hundred bodies and took

them to Halifax, Nova Scotia.

In 1985, the wreck of the Titanic was discovered at the bottom of

the North Atlantic in international waters, approximately 400 miles

off the coast of Newfoundland in 12,500 feet of water. Salvage efforts

began two years later. In 1994, the district court in the Eastern District

of Virginia, exercising "constructive in rem jurisdiction" over the

wreck and the wreck site of the Titanic, awarded exclusive salvage

rights, as well as ownership of recovered artifacts, to R.M.S. Titanic,

Inc., ("RMST"), a Florida corporation. Two years later, the court

rejected a challenge to the exclusive salvage rights of RMST, see

R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, ("Titanic

I"), 924 F. Supp. 714 (E.D. Va. 1996), and shortly thereafter, entered

an injunction dated August 13, 1996, protecting the salvage rights of

RMST against any person in the world "having notice of this Order,"

prohibiting any such person from "conducting search, survey, or sal-

vage operations, or obtaining any image, photographing or recovering

any objects, entering, or causing to enter" the area of the Atlantic


Ocean surrounding the Titanic wreck site. On June 23, 1998, the court

reaffirmed, "personalized and enforced" the 1996 injunction against

new parties. R.M.S. Titanic, Inc. v. The Wrecked and Abandoned

Vessel, ("Titanic II"), 9 F. Supp.2d 624, 626 (E.D. Va. 1998). In that

order, the court enjoined the appellants, Christopher S. Haver, an Ari-

zona resident, and Deep Ocean Expeditions, ("DOE"), a British Vir-

gin Islands corporation, as well as others from:

(i) interfering with the rights of [RMST], as salvor in pos-

session of the wreck and wreck site of the R.M.S. Titanic,

to exclusively exploit the wreck and wreck site, (ii) conduct-

ing search, survey, or salvage operations of the wreck or

wreck site, (iii) obtaining any image, video, or photograph

of the wreck or wreck site, and (iv) entering or causing any-

one or anything to enter the wreck or wreck site with the

intention of performing any of the foregoing enjoined acts.

Id. at 640. The district court declared that the wreck site subject to the

injunction was a 168-square-mile rectangular zone in the North Atlan-

tic bounded by the following points:

41o 46' 25" North Latitude, 050o 00' 44" West Longitude,

then east to 41o 46' 25" North Latitude, 049o 42' West Lon-

gitude, then south to 41o 34' 25" North Latitude, 049o 42'

West Longitude, then west to 41o 34' 25" North Latitude,

050o 00' 44" West Longitude, then returning north to the


Id. DOE had planned an expedition to view and to photograph the

Titanic for the late summer of 1998, and Haver had planned to be a


DOE, never a party to the proceedings in the district court, and

Haver, who filed a declaratory judgment action in the district court to

challenge the court's jurisdiction over the wreck and over him,

appealed to this court to challenge the June 1998 injunction. They

claim (1) that the district court lacked jurisdiction over the wreck and

wreck site, (2) that the court lacked personal jurisdiction over them,

and (3) that the scope of the injunction is too broad. As they summa-

rize their position,


No theory of "constructive in rem jurisdiction" permits a

court to adjudicate the rights of persons over which it lacks

personal jurisdiction with respect to a vessel [in interna-

tional waters] that has never been within the court's terri-

tory. Nor does any such theory authorize an injunction

prohibiting persons from viewing and photographing a

wreck when the salvor is not actively conducting salvage


For the reasons that follow, we affirm in part and reverse in part

the injunctions and remand the case to the district court with instruc-

tions to modify them in accordance with this opinion.


A procedural history, while somewhat involved, is nonetheless nec-

essary for an understanding of the jurisdictional discussions that fol-


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

of the Titanic. Two years later, in the summer of 1987, Titanic Ven-

tures, a Connecticut limited partnership, in conjunction with the Insti-

tute of France for the Research and Exploration of the Sea, the French

government's oceanographic institution, voluntarily undertook efforts

to salvage the wreck. Titanic Ventures conducted 32 dives over 60

days, recovering approximately 1,800 artifacts. It thereafter sold both

its interest in the salvage operation and the artifacts it recovered to

RMST. RMST recovered another 800 artifacts during a second expe-

dition to the Titanic's wreck site in 1993.

In August 1993, RMST filed this action in the Eastern District of

Virginia, requesting, among other things, that the district court exer-

cise in rem jurisdiction over the Titanic to award it exclusive salvage

rights. In support of its request, RMST presented the court with a

wine decanter salvaged from the Titanic and stated that numerous

other artifacts were physically within the Eastern District of Virginia.

The court issued a warrant directing the United States Marshal to

arrest the wreck and all artifacts already salvaged and yet to be sal-

vaged from the wreck and, at the same time, ordered that RMST be

substituted for the Marshal as custodian of the wreck, the wreck site,


and the artifacts. Formal notice of the court's order appeared in three

newspapers, The Virginian-Pilot, The Wall Street Journal, and The

Journal of Commerce.

Only one party, Liverpool and London Steamship Protection and

Indemnity Association ("Liverpool & London"), filed a claim assert-

ing an interest in the wreck. After RMST and Liverpool & London

entered into a settlement agreement, the district court dismissed Liv-

erpool & London's claim on June 7, 1994. On the same day, the court

entered a separate order granting RMST not only exclusive salvage

rights over the wreck and the wreck site of the Titanic, but also "true,

sole and exclusive owner[ship] of any items salvaged from the


In 1996, a competing salvor, John A. Joslyn, filed a motion in the

action under Federal Rule of Civil Procedure 60(b), challenging

RMST's status as exclusive salvor of the Titanic and requesting that

the court rescind its June 1994 order. Joslyn claimed not only that

RMST had failed diligently to salvage the Titanic, but also that

RMST lacked the financial capacity to undertake future salvage oper-

ations. Following a hearing, the district court denied Joslyn's motion,

finding that RMST had successfully undertaken a number of salvage

operations and that its favorable prospects for ongoing and future sal-

vage demonstrated that RMST deserved to remain the exclusive

salvor-in-possession. See Titanic I, 924 F. Supp. at 722-24.

When Joslyn, nonetheless, expressed an intention to visit the wreck

site for the sole purpose of taking photographs, the district court

issued a temporary restraining order to prevent him from doing so.

The court reasoned that "the need for R.M.S. Titanic, Inc. to have

jurisdiction over the wreck site" brought with it a power to determine

"who could enter the site for any purpose and who could photograph

the ship and the locale." The district court converted the temporary

restraining order to a preliminary injunction, dated August 13, 1996,

enjoining Joslyn as well as "[a]ny other person having notice of this

Order, actual or otherwise," from:

conducting search, survey, or salvage operations, or obtain-

ing any image, photographing or recovering any objects,

entering, or causing to enter, anything on or below the sur-


face of the Atlantic Ocean, otherwise interfering with opera-

tions conducted by plaintiff, or entering the wreck site for

any purpose not approved by R.M.S. Titanic, Inc., within a

ten (10) mile radius of the following coordinates:

Longitude: 41 degrees 43 minutes North

Latitude: 49 degrees 56 minutes West

until further order of Court.

In entering the injunction, the court reasoned that "allowing another

`salvor' to take photographs of the wreck and wreck site is akin to

allowing another salvor to physically invade the wreck and take arti-

facts themselves."

In the spring of 1998, Deep Ocean Expeditions ("DOE"), a British

Virgin Islands corporation headquartered on the Isle of Man, Great

Britain, began marketing an expedition dubbed "Operation Titanic,"

planned for August 1998, that would allow members of the public to

visit the wreck of the Titanic. The expedition was to be conducted

with the assistance of the P.P. Shirshov Institute of Oceanology of the

Russian Academy of Sciences in Moscow, using its research ship, the

R/V Akademik Keldysh, and one of its two deep-sea submersibles, Mir

1 or Mir 2. The Russian submersibles had conducted numerous earlier

dives to the Titanic. DOE announced the cost of participating at

$32,500 per person. One of the subscribers was Christopher S. Haver,

an Arizona resident.

When RMST learned that DOE's "Operation Titanic" would result

in persons' viewing and photographing the Titanic wreck, RMST

filed another motion for a preliminary injunction in this action to pre-

vent DOE, among others, from visiting and photographing the wreck

site. At the same time, Haver filed a separate action against RMST

seeking a declaratory judgment that he had a right to enter the wreck

site to observe, video, and photograph the Titanic. RMST filed a

counterclaim in Haver's action, requesting a preliminary injunction to

prohibit him from visiting the site. The district court consolidated

Haver's action with the ongoing in rem action and conducted a hear-

ing in the consolidated action on May 27, 1998. While Haver thus

appeared by filing his own action to challenge the district court's


jurisdiction over the wreck and the wreck site of the Titanic, as well

as the court's personal jurisdiction over him, DOE did not appear,

having not been served with any process.

Following the hearing, the district court disposed of all the issues

before it in an order dated June 23, 1998. On the challenge to its exer-

cise of in rem jurisdiction over the Titanic, the district court observed

that while "[i]t is undisputed that the wreck lies in international waters

. . . and no state may exercise sovereignty over any part of the high

seas, . . . these rules must be harmonized with the internationally rec-

ognized rules of salvage." Titanic II, 9 F. Supp.2d at 634. Observing

that "internationally recognized principles governing salvage on the

high seas encourage the exercise of in rem jurisdiction over a wreck

site to facilitate the salvage operation itself," the court affirmed its

exercise of "constructive in rem jurisdiction over the R.M.S. Titanic

wreck site to facilitate RMST's salvage operations .. . under interna-

tional law." Id. In reaching this conclusion, the court explained:

It is in the interest of the whole world to have salvage claims

decided in a single forum so that multiple, conflicting litiga-

tion is avoided. The whole world is placed on notice of the

action in this Court by the publication of notice of the in rem

arrest. Moreover, the recognized international rights at stake

are minimally infringed upon. Restricting freedom of navi-

gation over a few square miles of the vast North Atlantic

Ocean is hardly a significant intrusion.

Id. at 634-35.

The district court also rejected Haver's claims that the court did not

have personal jurisdiction over him and that a new complaint for a

preliminary injunction needed to be filed and served on him. The

court noted that Haver consented to the court's jurisdiction by filing

a declaratory judgment action raising the same issues affirmatively

asserted by RMST. See id. at 635.

The district court then addressed the merits of the question of

whether RMST, as salvor-in-possession, had the right to exclude oth-

ers from visiting the wreck site to photograph the wreck. In justifying

the entry of the injunction, the court relied upon general safety con-


cerns caused by the depth and darkness of the North Atlantic waters

around the wreck site, the need to protect RMST's substantial invest-

ment to date in salvaging the Titanic, and the public's interest in pre-

venting unorganized, piecemeal salvaging of the Titanic, a shipwreck

of great historical significance. See id. at 635-36. The court also

observed that those enjoined by its order from personally viewing the

Titanic could enjoy future television broadcasts of RMST's salvage

efforts. See id. at 638. Accordingly, the court enjoined not only DOE

and Haver, but also "anyone else having notice" from obtaining any

image, video or photograph of the wreck or the wreck site and from

"entering or causing anyone or anything to enter the wreck or the

wreck site with the intention of performing any of the foregoing

enjoined acts." Id. at 640. The court defined the wreck site as encom-

passing a 168 square mile area of the North Atlantic surrounding the

wreck of the Titanic. See id. The injunction, by its terms, was to

remain in effect "[u]ntil further order of this Court." Id.

From the district court's June 23, 1998 order, Haver filed this

appeal. While DOE was not made a party to the litigation below, it

too appealed because the injunction entered by the district court was

specifically directed against it.


We resolve first the threshold question of whether DOE, who was

not a party to the proceeding in the district court, may appeal the June

23, 1998 order enjoining it from visiting and photographing the

Titanic. RMST contends that because DOE was a "non-party" in the

action below, its appeal should be dismissed because "[n]on-parties

have no right to appeal."

In the district court, RMST requested a preliminary injunction

against DOE, arguing that DOE was subject to the jurisdiction of the

court. It maintained that DOE had personal notice of the motion

because RMST had made telephone calls to DOE's principal at his

home in Germany informing him of the motion and because RMST

served a copy of the motion on DOE's counsel in Washington, D.C.

Despite this notice, DOE elected not to appear at the hearing. Because

of DOE's failure to appear in the district court, RMST argues that

DOE now has no right to appeal.


Consistent with its position that the district court lacked personal

jurisdiction over it, DOE maintains that it did not appear because it

was never served with process and, in any event, would not be subject

to service of process. It notes, however, that because the court never-

theless granted RMST's motion and issued the June 23, 1998 prelimi-

nary injunction specifically "against Christopher Haver, Deep Ocean

Operators [DOE]," and other related companies and persons, includ-

ing DOE's principal, it is entitled to challenge the ruling.

This sequence of events reveals an inconsistency in RMST's posi-

tion. RMST maintained that the district court had the power to enjoin

DOE, and yet, after it successfully persuaded the court to do just that,

it takes the position that DOE may not challenge entry of the injunc-

tion because DOE elected not to appear before the district court. We

believe that this position is untenable.

Due process dictates and principles of fairness counsel that DOE

be given an opportunity to challenge the district court's assertion of

jurisdiction over it, particularly when the court specifically entered an

injunction against DOE. See Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 110-12 (1969). In Hazeltine, the

Supreme Court permitted Hazeltine, the non-party parent company of

the named counter-defendant, to challenge a money judgment and an

injunction entered against it by the district court even though it was

not a party to the district court's proceedings. The Supreme Court had

little difficulty concluding that although Hazeltine's subsidiary had

entered a pretrial stipulation in the district court that Hazeltine and its

subsidiary were to be considered as one entity for purposes of the liti-

gation, "this fact cannot [now] foreclose Hazeltine, which has never

had its day in court" from being heard on that issue. Id. at 111. Like-

wise, we conclude that DOE should not be foreclosed from being

heard on its jurisdictional challenge and that therefore it properly

invoked 28 U.S.C. § 1292(a) to appeal the district court's jurisdiction

to enter a preliminary injunction against it.


Also as a threshold question, we must determine whether a live

case or controversy within the meaning of Article III of the Constitu-

tion remains, given the parties' representation to us at oral argument


that Operation Titanic, the expedition prompting the district court's

June 1998 order, took place in the fall of 1998. Accordingly, we must

determine whether any decision by us today will make a difference

to the parties by affording meaningful relief. See Church of Scien-

tology of California v. United States, 506 U.S. 9, 12 (1992) ("It has

long been settled that a federal court has no authority `to give opin-

ions upon moot questions or abstract propositions, or to declare prin-

ciples or rules of law which cannot affect the matter in issue before

it'" (quoting Mills v. Green, 159 U.S. 651, 653 (1895))).

The conflict between DOE's intention to continue its business as

advertised and the scope of the district court's injunction protecting

RMST indicates that a live controversy between the parties remains.

Both in its brief and at oral argument, DOE expressed its intention to

continue to undertake expeditions to the Titanic in the near future, and

we have no reason to doubt its capacity to do so. Because the district

court's injunction continues to preclude DOE from making any trips

"[u]ntil further order from this Court," Titanic II, 9 F. Supp.2d at 640,

a live controversy exists.


Beyond these threshold questions of justiciability, both DOE and

Haver challenge the district court's personal jurisdiction over them.

The district court justified its jurisdiction to enter an injunction

against DOE because it had, what it called, "constructive in rem juris-

diction over the wreck itself based on the presence within the judicial

district of physical items salvaged from the wreck." Titanic II, 9 F.

Supp.2d at 632. Believing that United States district courts have juris-

diction to adjudicate salvage claims for wrecks in international

waters, the district court concluded that the proper administration of

a salvage claim required it to take in rem jurisdiction over the Titanic

wreck in international waters and, with that jurisdiction, to "protect

the salvor in possession when it is impossible to bring the entire

wreck into the judicial district at a single point in time." Id. at 633.

"Since the salvor is still performing salvage operations," the court rea-

soned, "the in rem case is still pending, and an injunction may prop-

erly issue pursuant to the Federal Rules of Civil Procedure." Id. at

635. The court thus concluded that its "constructive in rem jurisdic-


tion" authorized it to enjoin DOE and others against interfering with

the salvor's ongoing operations and that this authority extended

against the "whole world." Id. at 634. The court explained:

If notice is provided in a newspaper of general circulation,

the whole world, it is said, are parties in an admiralty cause;

and, therefore, the whole world is bound by the decision.

Id. (omitting internal quotation marks and citations). The court added

that accordingly, "[a]ny current claim of ignorance to the in rem sal-

vage action is necessarily foreclosed." Id. 

In addition to the grounds advanced by the district court, RMST

argues on appeal that not only does the district court have "the ability

to enter orders against the whole world . . . based on its quasi in rem

jurisdiction1 over the wreck and wreck site," it also has the authority

to exercise jurisdiction over "anyone who aids and abets Haver . . .

in violating its orders." RMST contends that by agreeing to take

Haver to the site, DOE was aiding Haver in violating the district

court's injunction. Therefore, in RMST's view, because the district

court had jurisdiction over Haver, it also had jurisdiction over DOE.

DOE maintains that the district court cannot enter an injunction

against it without having personal jurisdiction over it and that in this

case the court never obtained personal jurisdiction over it because: (1)


1 RMST's invocation of "quasi in rem" jurisdiction appears to be mis-

placed. Quasi in rem jurisdiction is invoked as an interim step to obtain

in personam jurisdiction. See Shaffer v. Heitner, 433 U.S. 186, 196

(1977). To be sure, in Shaffer, the Court stated that in a quasi in rem

action, the "only role played by the property is to provide a basis for

bringing the defendant into court." Id. at 209. Articulating the role of

quasi in rem jurisdiction, the Federal Rules of Civil Procedure state that

when a complaint names a defendant who cannot be found within the

district, property of the defendant within the district may be seized either

to compel the defendant's appearance or to give effect to the relief

requested in the complaint. See Fed. R. Civ. P. Supp. R. E(4). This case

has little to do with quasi in rem jurisdiction because the wreck of the

Titanic lies outside the district court's territorial jurisdiction. The proper

inquiry here is whether a court in admiralty can award salvage rights in

a shipwreck outside of United States' territorial waters.


a complaint against it was never filed as required by Federal Rule of

Civil Procedure 3; (2) it was never served with a complaint and a

summons or other process; and (3) such service, if made, would be

ineffective because there is no authority for "worldwide service of

process in admiralty cases . . . even if there were a constitutionally

sufficient relationship between [DOE] and the forum."

Haver also challenges the district court's personal jurisdiction over

him, arguing that he was never made a party to the in rem action initi-

ated by RMST and that his separate declaratory judgment action was

improperly consolidated with the in rem action to make him a party.


To resolve this jurisdictional dispute, we must first emphasize the

distinction between in personam jurisdiction and in rem jurisdiction.

While actions based on both types of jurisdiction are grounded on the

principle that "every State possesses exclusive jurisdiction and sover-

eignty over persons and property within its territory," Pennoyer v.

Neff, 95 U.S. 714, 722 (1877), "[a]ctions in rem are prosecuted to

enforce a right to things," whereas "actions in personam are those in

which an individual is charged personally." The Sabine, 101 U.S. 384,

388 (1879) (emphasis added). Because in rem actions adjudicate

rights in specific property before the court, judgments in them operate

against anyone in the world claiming against that property. See The

Moses Taylor, 71 U.S. (4 Wall.) 411, 427 (1866) (describing in rem

jurisdiction and stating that "[i]t is this dominion of the suit in admi-

ralty over the vessel or thing itself which gives to the title made under

its decrees validity against all the world"); see also Darlak v.

Columbus-America Discovery Group, Inc., 59 F.3d 20 (4th Cir.

1995). Consequently, judgments in in rem actions affect only the

property before the court and possess and carry no in personam sig-

nificance, other than to foreclose any person from later seeking rights

in the property subject to the in rem action. See Pennoyer, 95 U.S. at

724. The court's authority to exercise in rem jurisdiction does not

carry with it a concomitant, derivative power to enter ancillary in

personam orders. See The Sabine, 101 U.S. at 388.

In personam actions, on the other hand, adjudicate the rights and

obligations of individual persons or entities. It is well established that


due process precludes courts from adjudicating in personam the rights

or obligations of persons in the absence of personal jurisdiction. See

Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co. Ltd. , 484 U.S. 97, 104

(1987); Zenith Corp., 395 U.S. at 110; Koehler v. Dodwell, 152 F.3d

304, 306-07 (4th Cir. 1998). To obtain personal jurisdiction over a

defendant, a court must have (1) proof of "notice to the defendant,"

(2) "a constitutionally sufficient relationship between the defendant

and the forum," and (3) "authorization for service of a summons on

the defendant." Omni Capital, 484 U.S. at 104; ESAB Group, Inc. v.

Centricut, Inc., 126 F.3d 617, 622 (4th Cir. 1997).

Injunctive relief, by its very nature, can only be granted in an in

personam action commenced by one party against another in accor-

dance with established process. Consequently, a party cannot obtain

injunctive relief against another without first obtaining in personam

jurisdiction over that person or someone in legal privity with that per-

son. See Fed. R. Civ. P. 65(d).

By contrast, injunctive relief ordered in an in rem action would be

meaningless because things or property cannot be enjoined to do any-

thing. Likewise, personal jurisdiction need not be exercised in a pure

in rem proceeding because, in the simplest of terms, a piece of prop-

erty and not a person serves as the defendant. See The Moses Taylor,

71 U.S. at 431 ("The distinguishing and characteristic feature of . . .

[an in rem] suit is that the vessel or thing proceeded against is itself

seized and impleaded as the defendant, and is judged and sentenced

accordingly"). In rem actions only require that a party seeking an

interest in a res bring the res into the custody of the court and provide

reasonable, public notice of its intention to enable others to appear in

the action to claim an interest in the res. See Roller v. Holly, 176 U.S.

398, 403-06 (1900); see also Fed. R. Civ. P. Supp. R. C(4) (requiring

public notice as part of an in rem admiralty proceeding).

Thus, when DOE and Haver argue that the district court lacked per-

sonal jurisdiction over them, they do not, of necessity, challenge

RMST's status as exclusive salvor, and their personal jurisdiction

challenge has no implication for the validity of the in rem proceedings

or the order entered in 1994 awarding RMST its status as exclusive

salvor of the wreck Titanic. DOE's challenge aims solely at the dis-


trict court's authority to enter an in personam order against it absent

personal jurisdiction over it.


Turning now to consider these requirements in the present context,

it becomes readily apparent that the district court did not obtain in

personam jurisdiction over DOE. While the district court had subject

matter jurisdiction over this admiralty action, see 28 U.S.C. § 1333,

this did not give it authority to issue process for extraterritorial ser-

vice on DOE. Moreover, it is undisputed that RMST did not actually

file a complaint against DOE, nor did it purport to serve DOE with

any process. RMST's process consisted merely of filing a motion for

preliminary injunction against DOE in the pending in rem action, to

which DOE had never been made a party, and giving DOE informal

notice of the motion's pendency.

DOE is a British Virgin Islands corporation with its principal place

of business on the Isle of Man in Great Britain. Its principal resides

in Germany where he concededly received notice by telephone of

RMST's motion for preliminary injunction. DOE's counsel in Wash-

ington, D.C. also received a copy of the motion. In addition, construc-

tive notice of the underlying in rem proceeding had been provided in

1993 through publication in The Virginian-Pilot, The Wall Street

Journal, and The Journal of Commerce. Thus, there can be no dispute

that DOE had actual notice of RMST's motion for an injunction. But

this does not alone meet the formal requirements for obtaining per-

sonal jurisdiction over DOE.

Because DOE did not appear in the district court either in 1994 to

claim an interest in the wreck of the Titanic or in 1998 to challenge

RMST's motion for a preliminary injunction, it did not voluntarily

subject itself to the court's jurisdiction. Further, there is no evidence

in the record at this point to suggest that DOE conducts any business

in the United States. Its operations are conducted in Great Britain, and

the expeditions it would be conducting to the Titanic would take place

in international waters. It does, however, market its expedition in the

United States through United States corporations. Indeed, it appears

that through those marketing efforts, Haver learned of the expedition

and subscribed to participate in it.


Whether DOE's contacts with the United States would justify ser-

vice of process pursuant to Federal Rule of Civil Procedure 4(k) to

obtain personal jurisdiction cannot be determined on this record. But

it is clear that process against DOE never issued, nor was service of

process ever attempted. As we have noted, while a district court hav-

ing jurisdiction over a res is entitled to adjudicate salvage rights with

respect to the res, when enforcing orders to give effect to those rights

against a third party who, through conduct, challenges them, the court

must obtain in personam jurisdiction over the third party through the

service of process. Because such process was neither issued nor

served on DOE in this case, the injunction against DOE must be

vacated for lack of personal jurisdiction.

We also note that DOE's agreement to take Haver on an expedition

to the Titanic does not place DOE in privity with Haver to entitle

RMST to rely on jurisdiction over Haver to reach DOE. See Fed. R.

Civ. P. 65(d). There is no evidence from which to infer that DOE con-

spired with or encouraged Haver to violate the district court's injunc-

tion, nor is there evidence that Haver actually violated its injunction.


As for Haver, we find his challenges to the district court's personal

jurisdiction over him without merit. It is true that process did not

issue from the in rem action to make Haver a party to that action. But

that would not be otherwise, because the in rem action only addressed

rights to the res of the Titanic wreck. And in challenging the district

court's personal jurisdiction over him, Haver has asserted no right to

the res.

Significantly, however, Haver commenced his own in personam

action against RMST, seeking a declaratory judgment that, notwith-

standing the August 1996 injunction entered in the in rem action, he

was entitled "to enter the site of, and to observe, photograph, and vid-

eotape, the wrecked vessel R.M.S. Titanic." RMST filed a counter-

claim against Haver in the declaratory judgment action seeking an

injunction against him in that action just as it was seeking in the in

rem action. Thus, Haver was a party to an action in which injunctive

relief against him was sought.


The district court consolidated Haver's declaratory judgment action

with the pending in rem action by order dated May 12, 1998. In its

consolidation order, the district court stated that the in personam

action "will no longer exist as a separate case." This consolidation

was well within the district court's discretion. See Fed. R. Civ. P.

42(a) (authorizing consolidation of "actions involving a common

question of law or fact"); see also Fed. R. Civ. P. 9(h) (authorizing

unified actions but preserving, within actions, the nature of maritime


By filing an in personam action in the district court seeking a

declaratory judgment, Haver consented to the district court's personal

jurisdiction over him, and RMST's counterclaim was part of that

action. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Baux-

ites de Guinee, 456 U.S. 694, 703 (1982) (stating that an individual

submits to a court's jurisdiction by appearance). When the district

court granted RMST's motions for injunctive relief, which were filed

both in the in rem action and in Haver's action and later consolidated,

Haver was a party. By consolidating the cases, the court surely did not

relinquish its jurisdiction over Haver.

In short, Haver was properly before the district court as a party, and

the district court had in personam jurisdiction to enter a preliminary

injunction against him.


Because the district court had personal jurisdiction over Haver, we

must address his claim that the district court could not have exercised

jurisdiction over the wreck and the wreck site of the Titanic because

the wreck lay in international waters. Haver maintains that while the

presentation of a wine decanter and other artifacts from the wreck to

the district court in the Eastern District of Virginia might have

enabled the district court to exercise in rem jurisdiction over those

artifacts, there exists no principle that authorized the district court to

exercise in rem jurisdiction over the wreck itself which is beyond the

territorial waters of the United States. Without in rem jurisdiction,

Haver argues, the district court had no power to adjudicate salvage

rights and therefore had no power to enter an injunction giving effect

to salvage rights.


Any analysis regarding the authority of a United States court to

adjudicate salvage rights in shipwrecks in international waters

requires inquiry first into several fundamental principles of admiralty:

(1) the nature and scope of admiralty jurisdiction, (2) the applicability

of salvage law as part of the common law of maritime nations, i.e.,

the jus gentium, and (3) the reach of an admiralty court's in rem juris-

diction. Only after we have explicated these principles can we address

the existence and scope of authority of a United States court over the



Article III of the Constitution extends the judicial power of federal

courts to "all Cases of admiralty and maritime Jurisdiction." U.S.

Const. art. III, § 2, cl. 1. And Congress implemented Article III by

conferring on district courts exclusive, original jurisdiction of "[a]ny

civil case of admiralty or maritime jurisdiction" and "[a]ny prize

brought into the United States and all proceedings for the condemna-

tion of property taken as prize." 28 U.S.C. § 1333. Maritime law was

placed under national control "because of its intimate relation to navi-

gation and to interstate and foreign commerce." Panama R.R. Co. v.

Johnson, 264 U.S. 375, 386 (1924).

The body of admiralty law referred to in Article III did not depend

on any express or implied legislative action. Its existence, rather, pre-

ceded the adoption of the Constitution. It was the well-known and

well-developed "venerable law of the sea" which arose from the cus-

tom among "seafaring men," see United States v. W. M. Webb, Inc.,

397 U.S. 179, 191 (1970), and which enjoyed "international comity,"

see The Belgenland, 114 U.S. 355, 363 (1885). Nations have applied

this body of maritime law for 3,000 years or more. Although it would

add little to recount the full history here, we note that codifications

of the maritime law have been preserved from ancient Rhodes (900

B.C.E.), Rome (Justinian's Corpus Juris Civilis) (533 C.E.), City of

Trani (Italy) (1063), England (the Law of Oleron) (1189), the Hanse

Towns or Hanseatic League (1597), and France (1681), all articulat-

ing similar principles. And they all constitute a part of the continuing

maritime tradition of the law of nations -- the jus gentium.

The framers drafted Article III with this full body of maritime law

clearly in view. This is not to say that the Constitution recognized an


overarching maritime law that was to bind United States courts. On

the contrary, the Constitution conferred admiralty subject matter juris-

diction on federal courts and, by implication, authorized the federal

courts to draw upon and to continue the development of the substan-

tive, common law of admiralty when exercising admiralty jurisdic-

tion. See The Lottawanna, 88 U.S. 558, 572-78 (1874); see also 1

Benedict on Admiralty § 105, at 7-11 (7th ed. 1998). As Chief Justice

Marshall observed:

A case in admiralty does not, in fact, arise under the Consti-

tution or laws of the United States. These cases are as old

as navigation itself; and the law, admiralty and maritime, as

it has existed for ages, is applied by our Courts to the cases

as they arise.

The American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511,

544-45 (1828).

Since the Founding, federal courts sitting in admiralty jurisdiction

have steadfastly continued to acquiesce in this jus gentium governing

maritime affairs. Indeed, the Supreme Court has time and again

admonished that "courts of this and other commercial nations have

generally deferred to a non-national or international maritime law of

impressive maturity and universality." Lauritzen v. Larsen, 345 U.S.

571, 581 (1953); see also United States v. W.M. Webb, Inc., 397 U.S.

at 191 (1970) (observing that the "[m]aritime law . . . provides an

established network of rules and distinctions that are practically suited

to the necessities of the sea"). This body of maritime law "has the

force of law, not from extraterritorial reach of national laws, nor from

abdication of its sovereign powers by any nation, but from acceptance

by common consent of civilized communities of rules designed to fos-

ter amicable and workable commercial relations." Larsen, 345 U.S. at

581-82. Thus, when we say today that a case in admiralty is governed

by the general maritime law, we speak through our own national sov-

ereignty and thereby recognize and acquiesce in the time-honored

principles of the common law of the seas. See Ex Parte Western

Maid, 257 U.S. 419, 432 (1922).

The exercise of admiralty subject matter jurisdiction has never

been limited to maritime causes arising solely in the United States ter-


ritorial waters. On the contrary, maritime causes arising from matters

on the high seas anywhere in the world have traditionally been

brought to courts of admiralty, subject only to a discretionary exercise

of the doctrine of forum non conveniens. See Offshore Logistics, Inc.

v. Tallentire, 477 U.S. 207, 218-19 (1986); see also Mason v. Ship

Blaireau, 6 U.S. (2 Cranch) 240 (1804); The Belgenland, 114 U.S. at

362-63 (in rem admiralty jurisdiction proper in action arising out of

collision on the high seas between two foreign vessels); Treasure Sal-

vors, Inc. v. The Unidentified Wrecked & Abandoned Sailing Vessel,

640 F.2d 560, 567 (5th Cir. 1981) ("Since the admiralty jurisdiction

of United States courts is not limited by the nationality of ships, sail-

ors or seas involved and since the principles of the law of salvage are

part of the jus gentium, i.e., the international maritime law, United

States courts have long adjudicated salvage claims involving foreign

vessels, alien salvors and salvage operations occurring on the high

seas"); Grant Gilmore & Charles Black, Jr., The Law of Admiralty

§ 1-19, at 51-52 (2d ed. 1975) (stating that "[t]he courts of the United

States take jurisdiction, subject to some reservations imposed by their

own application of the doctrine of forum non conveniens, of suits on

maritime claims arising out of transactions and occurrences anywhere

in the world" (footnotes omitted)).

Even though admiralty courts may adjudicate matters arising on

navigable waters anywhere in the world, that recognition of subject

matter jurisdiction does not imply that American courts in admiralty

have the power to command that any person or any ship appear before

a United States court sitting in admiralty. Stated differently, Article

III of the Constitution and 28 U.S.C. § 1333 do not amount to an

attempt by the United States to extend its sovereignty over persons (in

personam) or things (in rem) beyond the territorial limits of the

United States. While we note this important distinction between a

broad subject matter jurisdiction and the limitation imposed by terri-

torial jurisdiction, we discuss the territorial limitation in more detail,



The general maritime law of nations includes a law of finds and a

law of salvage, and courts of admiralty apply one to the exclusion of

the other, as appropriate, to resolve claims in property discovered and


recovered in navigable waters by those other than the property's own-

ers or those taking through them. See Columbus-America Discovery

Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 459-60 (4th Cir. 1992).

Under the law of finds, a person, who discovers a shipwreck in navi-

gable waters that has been long lost and abandoned and who reduces

the property to actual or constructive possession, becomes the proper-

ty's owner. See Martha's Vineyard Scuba Headquarters, Inc. v. The

Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059,

1065 (1st Cir. 1987); Hener v. United States, 525 F. Supp. 350, 354-

57 (S.D.N.Y. 1981) (cited and quoted with approval in Columbus-

America Discovery, 974 F.2d at 460).

Because the law of finds deprives the true owner of a property

right, the courts of admiralty disfavor its application and prefer to

apply the law of salvage in its stead. They have reasoned that the law

of salvage better serves the needs of maritime commerce by encour-

aging the saving of property for the benefit of its owner rather than

the secretive discovery of property in an effort to deprive the owner

of title. See Columbus-America Discovery, 974 F.2d at 464; Hener,

525 F. Supp. at 354 ("salvage law assumes that the property being

salved is owned by another, and thus that it has not been abandoned").

Accordingly, the law of finds is most often applied in the context of

long-lost shipwrecks. See, e.g., Treasure Salvors, Inc. v. The Uniden-

tified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th

Cir. 1978) (applying the law of finds to the recovery of a Spanish ves-

sel which sunk near the Florida Keys in 1622, stating that "disposition

of a wrecked vessel whose very location has been lost for centuries

as though its owner were still in existence stretches the fiction to

absurd lengths"); see also 3A Benedict on Admiralty § 158, at 11-17

(7th ed. Supp. 1991) (recommending "limit[ing] the doctrine of `find'

relative to marine disasters to long-lost wrecks . .. or where the own-

ers of maritime properties have publicly abandoned them" (footnote

omitted)). Neither the parties nor the district court has urged the appli-

cation of the law of finds in this case, leaving for application the law

of salvage.

The principles of salvage law are intended to encourage persons to

render prompt, voluntary, and effective service to ships at peril or in

distress by assuring them compensation and reward for their salvage

efforts. See The Akaba, 54 F. 197, 200 (4th Cir. 1893). Absent the


promise of compensation and reward, we question whether a party,

even one with the capacity to save the Titanic itself, would incur the

costs to do so. See M/V JA Orgeron, 143 F.3d at 986 n.12 (observing

that "if the costs of performing a salvage are too high or the benefits

to be derived are too low, the parties might well agree to call it a day

and let the sea claim its prize"); see also William M. Landes & Rich-

ard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescu-

ers: An Economic Study of Law and Altruism, 7 J. Leg. Stud. 83, 100

(1978) (arguing that the law of salvage exists to "encourage rescues

in settings of high transaction costs by simulating the conditions and

outcomes of a competitive market").

The policies of salvage law have existed as an important part of the

general maritime law of nations as long as there has been navigation.

See M/V JA Orgeron, 143 F.3d at 985 ("This simple rule has been an

integral part of maritime commerce in the western world since the

western world was civilized"). Indeed, the 3,000-year old Rhodian

Code provided:

Article XLV. "If a ship be surprised at sea with whirl-

winds, or be shipwrecked, any person saving anything of the

wreck, shall have one-fifth of what he saves."

Reprinted in 3A Benedict on Admiralty § 5, at 1-8. And as to salvage

from shipwrecks, the Rhodian Code provided:

Article XLVII. "If gold, or silver, or any other thing be

drawn up out of the sea eight cubits deep, he that draws it

up shall have one-third, and if fifteen cubits, he shall have

one-half, because of the depth."

Id. The Code also provided that those illegally pillaging a wreck

would be required to restore fourfold. See id. The same principles of

salvage were included in the Law of Oleron, codified about 2,000

years after the Rhodian Law and adopted in England in the 12th cen-

tury. See id. § 8, at 1-11. And they continue to apply as part of the

jus gentium today. See, e.g., International Convention on Salvage,

April 29, 1989, preamble (providing that international salvage law

should "ensure that adequate incentives are available to persons who

undertake salvage operations in respect of vessels and other property


in danger"); see also United Nations Convention on the Law of the

Sea, Dec. 10, 1982, 21 I.L.M. 1245, 1326 art. 303 (providing that the

Convention respects "the rights of identifiable owners, the law of sal-

vage or other rules of admiralty").

When providing salvage service, a salvor acts on behalf of the

owner in saving the owner's property even though the owner may

have made no such request or had no knowledge of the need. The law

of salvage presumes that the owner desires the salvage service. And

it is the assurance of compensation and reward that provides the "in-

ducement to seamen and others to embark in such undertakings to

save life and property." The Blackwall, 77 U.S. 1, 14 (1870) (citation

omitted). As the Court in Blackwall explained, "Public policy encour-

ages the hardy and adventurous mariner to engage in these laborious

and sometimes dangerous enterprises, and with a view to withdraw

from him every temptation to embezzlement and dishonesty, the law

allows him, in case he is successful, a liberal compensation." Id.

(footnote omitted). If the salvor fails in his salvage efforts, however,

he can claim no compensation or reward.

To establish a salvage claim for compensation and award, a person

must demonstrate (1) that he has rendered aid to a distressed ship or

its cargo in navigable waters; (2) that the service was voluntarily ren-

dered without any preexisting obligation arising from contract or oth-

erwise to the distressed ship or property; and (3) that the service was

useful by effecting salvage of the ship or its cargo, in whole or in part.

See The Sabine, 101 U.S. 384, 384 (1879); Brown v. Johansen, 881

F.2d 107, 109 (4th Cir. 1989).

Upon rendering salvage service, a salvor obtains a lien in the saved

property by operation of law to secure payment of compensation and

award due from the property owner. See The Sabine, 101 U.S. at 386;

see also Amstar Corp. v. S/S Alexandros T., 664 F.2d 904, 909 (4th

Cir. 1981). This lien attaches to the property to the exclusion of all

others, including the property's true owner. And to facilitate enforce-

ment of the lien, the salvor enjoys a possessory interest in the prop-


2 Although the United States signed the United Nations Convention in

1994, the Senate has not yet provided the necessary advice and consent

for ratification.


erty until the salvor is compensated. See S/S Alexandros T., 664 F.2d

at 908-09. Because the salvor's lien is exclusive and prior to all oth-

ers, so too, the salvor's possessory interest in the res is enjoyed to the

exclusion of all others, including the res' true owner.

By rendering salvage service, the salvor thus acquires a limited

property interest in the goods saved -- a first lien and exclusive pos-

session -- until the salvor has been paid or his right against the prop-

erty has been enforced. See The Emblem, 8 F. Cas. 611, 614 (D. Me.

1840); 3A Benedict on Admiralty § 143, at 10-8 (quoting The

Emblem). While this interest attaches only to saved property, to pro-

tect a salvor's general salvage rights, a court of admiralty will protect

the inchoate right of salvors in yet-to-be salved property for a reason-

able period. See Treasure Salvors, Inc. v. The Unidentified Wrecked

and Abandoned Sailing Vessel, 546 F. Supp. 919, 929 (S.D. Fla.


Although a salvor may enforce its claim for salvage service by fil-

ing an in personam action against the owner, the salvor may also exe-

cute on the lien which attached to the ship and its cargo by filing an

in rem action. The lien can be enforced only through the institution

of an in rem action, and the admiralty court exercises in rem jurisdic-

tion only to enforce a maritime lien. Thus, "[t]he lien and the proceed-

ing in rem are . . . correlative - where one exists, the other can be

taken, and not otherwise." S/S Alexandros, 664 F.2d at 909 (internal

quotation marks omitted); see also Fed. R. Civ. P. Supp. R. C(1). To

execute on the lien, the court may order the sale of the property, or,

if a sale would yield an amount insufficient to fund an award to the

salvor, the court may transfer title to the property to the salvor.

While the law of salvage provides substantial protection to salvors

to encourage their saving of life and property at sea, it also imposes

duties of good faith, honesty, and diligence in protecting the property

in salvors' care. Thus, salvors have to exercise a trust over the prop-

erty for the benefit of the owner and subject to any orders of a court.

See The Barque Island City, 66 U.S. (1 Black) 121 (1861). In this

vein, salvors are not entitled to remove property from the wreck for

their own use or to use the property for their own use. When a viola-

tion of this trust occurs, the salvage claim is forfeited. See Danner v.

United States, 99 F. Supp. 880 (S.D.N.Y. 1951). Indeed, it has been


held that even when salvors have mistakenly misunderstood their

rights and have taken property for their own use, they forfeited their

right to a salvage award. See, e.g., id.; see also The Mable, 61 F.2d

537, 540 (9th Cir. 1932).


An in rem action, which is the most common process for enforcing

a claim for salvage service, depends on the court's having jurisdiction

over the res, the property which is named as defendant. See Pennoyer,

95 U.S. at 724. Only if the court has exclusive custody and control

over the property does it have jurisdiction over the property so as to

be able to adjudicate rights in it that are binding against the world. See

Darlak v. Columbus-America Discovery Group, Inc., 59 F.3d 20, 22-

23 (4th Cir. 1995). Accordingly, to exercise in rem jurisdiction over

a ship or its cargo, the ship or cargo must be within the district in

which the in rem complaint is filed. See The Brig Ann, 13 U.S. (9

Cranch) 289, 291 (1815); see also Platoro Ltd., Inc. v. The Unidenti-

fied Remains of a Vessel, 695 F.2d 893 (5th Cir. 1983); see also Fed.

R. Civ. P. Supp. R. E(3) (providing that process in rem may only be

served within the district).

While the res must be in custodia legis (in the court's possession),

this possession may be actual or constructive. See The Brig Ann, 13

U.S. at 291. Constructive possession connotes something less than

physical seizure of a res by a court. Just last term, for instance, the

Supreme Court implicitly recognized the propriety of a district court's

exercise of in rem admiralty jurisdiction over a shipwreck in Califor-

nia's territorial waters after a salvor presented "china, a full bottle of

champagne, and a brass spike from the ship's hull" to the district

court. See California v. Deep Sea Research, Inc., 118 S. Ct. 1464,

1467 (1998). The propriety of exercising in rem jurisdiction over an

entire ship wreck within the court's territorial jurisdiction when only

part of that wreck is actually presented to a court rests upon the fic-

tion that the res is not divided and that therefore possession of some

of it is constructively possession of all. See id. at 1473.

But when the res is not in the court's actual or constructive posses-

sion, traditional principles of in rem jurisdiction dictate that the court

may not adjudicate rights to the res and effectively bind others who


may have possession. See Pennoyer, 95 U.S. at 724; see also Fed. R.

Civ. P. Supp. R. E(3). Consequently, a court could not exercise in rem

jurisdiction, as traditionally understood, so as to vest rights in prop-

erty outside of its territory, such as in a shipwreck lying in interna-

tional waters. This conclusion is compelled by a recognition of the

sovereign limits of the United States and the open nature of the high


The sovereign limits of a nation are defined by those territorial

boundaries within which it exercises supreme and exclusive power.

Where a nation has boundaries contiguous to the high seas, interna-

tional law defines the nation's sovereign limits by dividing navigable

waters generally into three categories "distinguished by the nature of

the control which the contiguous nation can exercise over them."

United States v. Louisiana, 394 U.S. 11, 22 (1969) (footnote omitted).

Navigable waters that lie inland of a nation's borders are within the

nation's complete control as with any real property within its borders.

See id.; see also The Schooner Exchange v. McFaddon, 11 U.S. (7

Cranch) 116, 136 (1812) (Marshall, C.J.) (stating that the "jurisdiction

of the nation within its own territory is necessarily exclusive and

absolute"). Likewise within the general sovereign sphere of a nation

are its territorial waters, defined as those navigable waters lying up

to 12 nautical miles beyond a nation's shoreline. See United States v.

California, 332 U.S. 19, 35 (1947) (stating that the extension of our

territorial jurisdiction "is but a recognition of the necessity that a gov-

ernment next to the sea must be able to protect itself from dangers

incident to its location"). And beyond the territorial waters lie the

high seas, over which no nation can exercise sovereignty. See

Louisiana, 394 U.S. at 23; see also United States v. Louisiana, 363

U.S. 1, 33-34 (1960) (stating that the "high seas, as distinguished

from inland waters, are generally conceded by modern nations to be

subject to the exclusive sovereignty of no single nation"); California,

332 U.S. at 34 (stating that the United States, "throughout its exis-

tence has stood for freedom of the seas, a principle whose breach has

precipitated wars among nations"); The Vinces, 20 F.2d 164, 172

(E.D.S.C. 1927) (stating that the high seas "are the common property

of all nations"). The mutual access to the high seas is firmly etched

into the jus gentium. See, e.g., United Nations Convention on the Law

of the Sea, Dec. 10, 1982, 21 I.L.M. 1245, 1286-87 arts. 87, 89 (pro-


viding that the high seas shall be open to all nations and that "no State

may validly purport to subject any part of the high seas to its


Any extension of jurisdiction into the high seas by a nation must

be "subject to the consent of other nations." See Louisiana, 363 U.S.

at 34; see also California, 332 U.S. at 35 (stating that "whatever any

nation does in the open sea, which detracts from its common useful-

ness to nations, or which another nation may charge detracts from it,

is a question for consideration among nations as such, and not their

separate governmental units" (footnote omitted)). We do, however,

acknowledge that the law of nations sanctions limited extraterritorial

exercises of jurisdiction. See, e.g., Louisiana, 363 at 34 n.60 ("For

example, the United States has long claimed the right to exercise

jurisdiction over domestic and foreign vessels beyond the three-mile

limit for purposes of customs control and for defense purposes and

this practice is recognized by international law" (citations omitted));

Hudson & Smith v. Guestier, 10 U.S. (6 Cranch) 281, 284 (1810)

(recognizing that a seizure of property on the high seas, beyond the

territorial limits of all nations, for breach of a municipal revenue rais-

ing regulation is warranted by the jus gentium).

In sum, because the exercise of in rem jurisdiction depends on the

court's exercise of exclusive custody and control over the res, the lim-

its of in rem jurisdiction, as traditionally understood, are defined by

the effective limits of sovereignty itself.


3 Under the 1982 United Nations Convention, an exclusive economic

zone is recognized, beginning at the outer limit of the territorial waters

and extending to 200 nautical miles from the nation's shoreline. Within

this economic zone, a nation may exercise exclusive control over eco-

nomic matters involving fishing, the seabed, and the subsoil, but not over

navigation. See United Nations Convention on the Law of the Sea, Dec.

10, 1982, 21 I.L.M. 1245, 1280, arts. 56(1), 57. Even though the United

States has not yet ratified this treaty, see supra note 2, it generally recog-

nizes this 200-mile economic zone. See Thomas J. Schoenbaum, 1

Admiralty and Maritime Law, § 2-16, at 35 (2d ed. 1994) (collecting leg-

islation enacted by Congress in accordance with the Law of the Sea Con-




In applying these principles to a wreck lying in international

waters, obvious complexities emerge. In rem jurisdiction, which

depends on sovereignty over property, cannot be given effect to prop-

erty beyond a nation's boundaries of sovereignty. See Pennoyer, 95

U.S. at 722 (stating "that every State possesses exclusive jurisdiction

and sovereignty over persons and property within its territory").

Where both persons and property are beyond a nation's zone of exclu-

sive legal power, its ability to adjudicate rights as to them is limited,

but not meaningless.

When nations agree on law to apply on the high seas, they agree

to an order even beyond their sovereign boundaries which, while they

hope will be honored on the high seas, can only be enforced com-

pletely and effectively when the people or property are brought within

a nation's zone of power -- its sovereignty.

So it must be with the Titanic. The jus gentium, the law of all mari-

time nations, is easy to define and declare. But its enforcement must

depend on persons or property involved in such a declaration coming

into the zone of power of participating nations. We now turn to

observe how these intersecting principles operate in this case.


First, Haver presents us with no reason to upset the district court's

findings that RMST (and its predecessors) represented the first party

successfully to salvage the wreck of the Titanic and that RMST has

continued and plans to continue its substantial efforts. As the district

court recognized, salvaging the wreck of the Titanic has presented a

challenge of unprecedented proportion. Because the wreck lies under

2.5 miles of water, where there is virtually no light, the water is frigid,

and the water pressure beyond general comprehension, only the most

sophisticated oceanographic equipment can explore the site and

recover property. Doing so is time consuming, expensive, and danger-


Since 1993, RMST has overcome these challenges, conducting

research and recovery expeditions in June 1993, July 1994, and


August 1996. From these expeditions, it has been able to recover over

3,600 artifacts from the wreck and to gather thousands of photographs

and hundreds of hours of video footage. As the district court

observed, "RMST has exhibited considerable zeal as salvor in posses-

sion despite the fact that salvaging the wreck is extremely time-

consuming, dangerous, and expensive." Titanic II, 9 F. Supp.2d at


As the first successful salvor, RMST obtained an inchoate lien as

a matter of law in the wreck as well as the artifacts from the wreck

to enforce its claim for compensation and reward. And with its lien,

RMST obtained the right to exclusive possession, not only of the arti-

facts removed from the wreck of the Titanic, but also of the wreck

itself, so that no other person is entitled lawfully to intrude as long

as salvage operations continue. See Treasure Salvors, Inc., 640 F.2d

at 567.

Because RMST has necessarily acted on behalf of the owners of

the property even if the owners did not or could not know of RMST's

efforts, its interest in the property is limited to an exclusive posses-

sory right, not for its own use, but for the purpose of bringing the

property within the jurisdiction of a court in admiralty to enforce its

maritime lien securing its claim for compensation and reward. But

once the property is brought in custodia legis, the court can execute

on RMST's lien and sell the property, or if the sale of the property

would prove insufficient to compensate RMST fairly, the court can

award title in the property to RMST.

These conclusions reached by the district court about RMST's

rights are consistent with the salvage law which is part of the jus

gentium, and we expect that whether RMST had returned property

from the Titanic to an admiralty court in England or France or Can-

ada, the court would, by applying the same principles, have reached

the same conclusions. The need for courts of admiralty to apply the

law similarly is fundamentally important to international commerce

and to the policies supporting order on the high seas. It is therefore

prudent for us, as one such court sitting in admiralty, to assure

enforcement in harmony with these shared maritime principles. And

to this end, we are satisfied that to the extent the district court applied


these principles, it acted in accordance with the jus gentium in award-

ing RMST exclusive salvage rights in the wreck of the Titanic.


Although the district court applied principles of the jus gentium to

award RMST exclusive salvage rights in the Titanic, the question

peculiar to this case remains how, if at all, can a court in admiralty

enforce these salvage rights with respect to property that does not lie

within its jurisdiction, nor, for that matter, within the jurisdiction of

any admiralty court.

RMST argues, somewhat boldly and apparently without any direct

legal authority, that an admiralty court can simply assert in rem juris-

diction over wrecks lying in international waters, beyond the territo-

rial limits of the court's jurisdiction, and enter orders to enforce that

jurisdiction. But this fails to account for the limits of courts' jurisdic-

tion and, indeed, the limits of national sovereignty.

In rem jurisdiction is traditionally justified by the presence of the

res within the jurisdiction of the court. Having exclusive legal cus-

tody over the res, whether actual or constructive, enables the court to

issue orders respecting the res that are exclusive as against the whole

world. With in rem jurisdiction, therefore, a court has the power,

among others, to order the seizure, the sale, or the transfer of the res.

It follows that when the res is outside the jurisdiction of the court,

indeed, beyond the territorial limits of the United States, the court

cannot exercise in rem jurisdiction over it, at least in the traditional


In this case, the district court recognized this limitation and rested

its authority over the wreck of the Titanic on what it called "construc-

tive in rem" jurisdiction. Obviously, any power exercised in interna-

tional waters through "constructive in rem" jurisdiction could not be

exclusive as to the whole world. For example, a French court could

presumably have just as well issued a similar order at the same time

with no less effect. But this non-exclusive control over the res would

not defeat the district court's first purpose of declaring salvage rights

to the wreck as against the world. In fact, we believe that the jus

gentium authorizes an admiralty court to do so, even though the


exclusiveness of any such order could legitimately be questioned by

any other court in admiralty. The ultimate resolution could only occur

at such time as property is removed from the wreck and brought

within the jurisdiction of an admiralty court, giving it exclusive in

rem jurisdiction over the property or when the persons involved in

any dispute over the property are before the court in personam.

But this limitation on the jurisdiction exercised by the district court

does not mean that its declaration with respect to the res was ineffec-

tive. We believe that the district court has a "constructive" -- to use

the district court's term -- in rem jurisdiction over the wreck of the

Titanic by having a portion of it within its jurisdiction and that this

constructive in rem jurisdiction continues as long as the salvage oper-

ation continues. We hasten to add that as we use the term "construc-

tive," we mean an "imperfect" or "inchoate" in rem jurisdiction which

falls short of giving the court sovereignty over the wreck. It represents

rather a "shared sovereignty," shared with other nations enforcing the

same jus gentium. Through this mechanism, internationally recog-

nized rights may be legally declared but not finally enforced. Final

enforcement requires the additional steps of bringing either property

or persons involved before the district court or a court in admiralty

of another nation.

Testing the effect of a United States court's attempt to assert exclu-

sive jurisdictional power over property located beyond the territorial

limits of the United States quickly brings a pragmatic response. When

a nation seeks to exert sovereignty through exclusive judicial action

in international waters, the effort prompts the obvious question of

how the jurisdiction is to be enforced. But even beyond this pragmatic

consideration lies the yet more significant consideration that asserting

sovereignty through a claim of exclusive judicial action beyond the

territorial limits of a nation would disrupt the relationship among

nations that serves as the enforcement mechanism of international law

and custom. What would occur if an English or French court were to

exercise similar power? The necessary response to probes such as

these leads to the now well-established norm of international law that

no nation has sovereignty over the high seas. See, e.g., United Nations

Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1245,

1287 art. 89 (providing that "no state may validly purport to subject

any part of the high seas to its sovereignty").


This conclusion that no nation has sovereignty through the asser-

tion of exclusive judicial action over international waters does not

leave the high seas without enforceable law. The law of salvage as

shared by the nations as part of the jus gentium applies to the high

seas, and we are satisfied that it will do no violence to the relationship

among nations to enforce these rights to the extent generally recog-

nized on a non-exclusive basis. For this reason, we conclude that the

district court was correct in declaring that RMST has salvage rights

in the wreck of the Titanic and that these rights include the right

exclusively to possess the wreck for purposes of enforcing the mari-

time lien that RMST obtained as a matter of law. It also follows that

the district court acted properly in entering an injunction against per-

sons over whom it had jurisdiction, prohibiting them from interfering

with the salvage efforts being pursued by RMST. We believe that

these aspects of the district court's declaration and injunction would

be recognized by all maritime nations and similarly be enforced by

their courts.4


4 In reaching this conclusion, we reject Haver's argument that the

R.M.S. Titanic Maritime Memorial Act of 1986, 16 U.S.C. § 450rr et

seq., precluded the district court from exercising jurisdiction over the

wreck of the Titanic. That statute, while recognizing the "major national

and international cultural and historical significance" of the Titanic, 16

U.S.C. § 450rr(a)(3), merely exists to encourage the United States (or

more specifically, the President) to coordinate cooperative international

efforts "for conducting research on, exploration of, and if appropriate,

salvage of the R.M.S. Titanic." 16 U.S.C. § 450rr(b)(3). The statute also

specifically expresses Congress' sense that "research and limited explo-

ration activities concerning the R.M.S. Titanic should continue for the

purpose of enhancing public knowledge of its scientific, cultural, and his-

torical significance" pending the consummation of such international

efforts. 16 U.S.C. § 450rr-5.

We also refuse to construe the language in § 450rr-6 of the statute --

"By enactment of sections 450rr to 450rr-6 of this title, the United States

does not assert sovereignty, or sovereign or exclusive rights or jurisdic-

tion over, or the ownership of, any marine areas or the R.M.S. Titanic"

-- as stripping the federal courts of jurisdiction over the wreck for pur-

poses of recognizing, consistent with the jus gentium, RMST as the

wreck's exclusive salvor. Read in the context of the entire R.M.S. Titanic

Memorial Act, we believe that language has no bearing in this appeal.


But we hasten to point out, again, that the power of an American

court to enforce such orders is effectively limited until persons and

property are brought within its territorial jurisdiction. These are limits

that any court faces, regardless of the nation involved. Shared rights

to the high seas may be exercised by all nations, and the assertion by

any nation of exclusive sovereignty over a portion would interfere

with those rights. This notion of "shared sovereignty" does not, how-

ever, preclude all nations from enforcing the internationally recog-

nized laws of salvage in courts with respect to persons and property

within their jurisdiction, nor even from exercising this form of shared

sovereignty for matters on the high seas.

If we were to recognize an absolute limit to the district court's

power that would preclude it, or essentially any other admiralty court,

from exercising judicial power over wrecks in international waters,

then we would be abdicating the order created by the jus gentium and

would return the high seas to a state of lawlessness never experienced

-- at least as far as recorded history reveals. We refuse to abdicate

in this manner.


While we affirm the district court's order enjoining Haver from

interfering with the ongoing salvage operations of RMST, we must

still address the additional terms to which he objects: (1) whether sal-

vage rights include the right to exclude others from visiting, observ-

ing, and photographing the wreck; and (2) whether, in enjoining

others from interfering with the ongoing salvage operations, the dis-

trict court could exclude others from an area within a 10-mile radius

(the 314-square mile circular area protected by its August 1996 order)

or a 168-square mile rectangular area (protected by its June 1998

order), both of which lie entirely within international waters.

The June 1998 injunction provided in pertinent part:

Until further order of this Court, these parties[including

Haver] are ENJOINED from (i) interfering with the rights

of RMST, as salvor in possession of the wreck and wreck

site of the R.M.S. TITANIC, to exclusively exploit the

wreck and wreck site, (ii) conducting search, survey, or sal-


vage operations of the wreck or wreck site, (iii) obtaining

any image, video, or photograph of the wreck or wreck site,

and (iv) entering or causing anyone or anything to enter the

wreck or wreck site with the intention of performing any of

the foregoing enjoined acts.

Titanic II, 9 F. Supp.2d at 640. This injunction was a reiteration of

the court's August 1996 injunction in which it, for the first time,

explicitly prohibited others from photographing the wreck or wreck

site of the Titanic. In entering the 1996 order, the court expanded tra-

ditional salvage rights to include the right to exclusive photographing

of the wreck and the wreck site. The court explained:

[I]f R.M.S. TITANIC is not selling artifacts like traditional

salvors, it must be given the rights to other means of obtain-

ing income. The court finds that in a case such as this,

allowing another "salvor" to take photographs of the wreck

and wreck site is akin to allowing another salvor to physi-

cally invade the wreck and take artifacts themselves.

The court pointed out that photographs could be marketed like any

other physical artifact and therefore that the rights to record images

of the Titanic belonged to RMST, the salvor in possession of the


The district court's expansion of salvage rights to include the right

exclusively to photograph or otherwise record images of the wreck for

the purpose of compensating salvors for their effort is both creative

and novel. We are aware of no case in the United States or in the body

of jus gentium, however, that has expanded salvage rights to include

this type of a right. More importantly, we are not satisfied that the law

of salvage would be properly extended to give salvors exclusive

image recording rights in yet to be saved property. The underlying

policy of salvage law is to encourage the voluntary assistance to ships

and their cargo in distress. See, e.g., The Sabine, 101 U.S. 384;

Columbus-America, 974 F.2d at 459; The Akaba, 54 F. at 200.

And the salvage service is useful to owners only when it

effects a saving of the specific property at risk. The law does not

include the notion that the salvor can use the property being salvaged

for a commercial use to compensate the salvor when the property

saved might have inadequate value. Traditionally, the inducement for

salvage service is limited to the court's award of compensation and


reward, which may be enforced in personam against the owner with-

out regard to the property saved, or in rem against the property saved.

To award, in the name of salvage service, the exclusive right to

photograph a shipwreck, would, we believe, also tend to convert what

was designed as a salvage operation on behalf of the owners into an

operation serving the salvors. The incentives would run counter to the

purpose of salvage. Salvors would be less inclined to save property

because they might be able to obtain more compensation by leaving

the property in place and selling photographic images or charging the

public admission to go view it.

Even if we were to assume that the salvors had full title to the yet

to be recovered shipwreck, as would be the case if the law of finds

were applied, it is doubtful that such title to property lying in interna-

tional waters would include the right to exclude others from viewing

and photographing it while in its public site. Exclusive viewing and

photographing of property is usually achieved by exercising exclusive

possession and removing the property to a private or controllable

location where it cannot be viewed or photographed except under

conditions controlled by the owner. But a property right does not nor-

mally include the right to exclude viewing and photographing of the

property when it is located in a public place.5

In addition, if we were now to recognize, as part of the salvage law,

the right to exclude others from viewing and photographing a ship-

wreck in international waters, we might so alter the law of salvage as

to risk its uniformity and international comity, putting at risk the ben-

efits that all nations enjoy in a well-understood and consistently-

applied body of law. This risk is heightened when it is understood that

such an expansion of salvage rights might not encourage salvage and

might, additionally, discourage free movement and navigation in

international waters.

For these reasons, we conclude that the district court erred in

extending the law of salvage to vest in RMST exclusive rights to visit,

view, and photograph the wreck and wreck site of the Titanic at its

location in international waters.


5 For instance, even under American copyright law, where an architect

has a copyright in the design of a building, that right does not extend to

prevent the viewing and photographing of the building, if it is located at

a public site or is visible from a public place. See 17 U.S.C. § 120(a).


The district court's August 1996 injunction also prohibited anyone

from entering within a 10-mile radius of the wreck site to search, sur-

vey, or obtain any image of the wreck or wreck site, and the court's

June 1998 order prohibited anyone from entering, for a similar pur-

pose, a rectangular area around the wreck site computed to be 168-

square miles. Neither prohibition is justified by the law of salvage or

allowed by the law of free navigation on the high seas. For the same

reasons that we gave in denying exclusive viewing and photographing

rights -- that to do so would alarmingly expand salvage law and

interfere with the right of free navigation -- we also reverse these

aspects of the district court's orders. This does not mean, however,

that a court may not enforce salvage rights by prohibiting a party over

whom it has personal jurisdiction from conducting salvage operations

or interfering with the first salvor's exclusive possession of the wreck

for purposes of salving it.


In summary, we conclude that this appeal presents us with a case

or controversy as understood under Article III of the Constitution. We

also consider DOE's appeal of the June 1998 injunction directed

against it, even though DOE was not a party to the district court pro-

ceedings, and agree with DOE that the injunction against it is not

enforceable because it was never made a party through proper service

of process nor was it in privity with the party. We reject, however,

Haver's personal jurisdictional challenge. With respect to Haver's

challenge to the injunctions themselves, we affirm in part and reverse

in part. We affirm the district court's injunctions insofar as they

enjoin parties and persons in privity with them from conducting sal-

vage operations of the Titanic wreck and interfering with the salvage

operations of RMST. We reverse them insofar as they purport to pro-

hibit the visiting, viewing, searching, surveying, photographing, and

obtaining images of the wreck or the wreck site, as long as these

activities do not constitute any salvage effort or interfere with

RMST's salvage rights.