R.M.S. Titanic v. Haver (4th Cir. 1999)

Filed: April 28, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 98-1934
(CA-93-902-N)

R.M.S. Titanic, Inc., etc.,
Plaintiff - Appellee,
versus
Christopher S. Haver, et al,
Parties in Interest - Appellants.

O R D E R

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

Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
R.M.S. TITANIC, INCORPORATED,
successor in interest to Titanic
Ventures, limited partnership,
Plaintiff-Appellee,
v.
CHRISTOPHER S. HAVER; DEEP OCEAN
EXPEDITIONS,
Parties in Interest-Appellants,
and
THE WRECKED AND ABANDONED VESSEL,
its engines, tackle, apparel,
appurtenances, cargo, etc., located
within one (1) nautical mile of a point
located at 41^o 43' 32" North Latitude
and 49^o 56' 49" West Longitude,
No. 98-1934
believed to be the R.M.S. Titanic, in
rem,
Defendant,
LIVERPOOL AND LONDON STEAMSHIP
PROTECTION AND INDEMNITY ASSOCIATION
LIMITED,
Claimant,
WILDWINGS WORLDWIDE TRAVEL;
BAKERS WORLD TRAVEL; QUARK
EXPEDITIONS, INCORPORATED; MIKE
MCDOWELL; RALPH WHITE; DON WALSH,
Ph.D.; ALFRED S. MCLAREN, Ph.D.;
R/V AKADEMIK MSTISLAV KELDYSH;
BLACKHAWK TELEVISION,
Parties in Interest,
and
JOHN A. JOSLYN,
Movant.
THE EXPLORERS CLUB; THE ADVISORY
COUNCIL ON UNDERWATER ARCHAEOLOGY;
COLUMBUS-AMERICA DISCOVERY GROUP,
Amici Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CA-93-902-N)
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.
_________________________________________________________________
COUNSEL
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 &
2
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-
America.
_________________________________________________________________
OPINION
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
3
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:
41^o 46' 25" North Latitude, 050^o 00' 44" West Longitude,
then east to 41^o 46' 25" North Latitude, 049^o 42' West Lon-
gitude, then south to 41^o 34' 25" North Latitude, 049^o 42'
West Longitude, then west to 41^o 34' 25" North Latitude,
050^o 00' 44" West Longitude, then returning north to the
start.
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
passenger.
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,
4
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
operations.
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.
I
A procedural history, while somewhat involved, is nonetheless nec-
essary for an understanding of the jurisdictional discussions that fol-
low.
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,
5
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
wreck."
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-
6
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
7
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-
8
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.
II
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.
9
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.
III
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
10
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.
IV
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-
11
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.
12
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.
A
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
13
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-
14
trict court's authority to enter an in personam order against it absent
personal jurisdiction over it.
B
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.
15
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.
C
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.
16
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
claims).
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.
V
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.
17
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
Titanic.
A
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
18
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-
19
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,
below.
B
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
20
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
21
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
22
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").2
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.
23
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.
1981).
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
24
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).
C
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
25
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
seas.
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-
26
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
sovereignty").3
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-
vention).
27
VI
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.
A
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-
ous.
Since 1993, RMST has overcome these challenges, conducting
research and recovery expeditions in June 1993, July 1994, and
28
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
627.
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
29
these principles, it acted in accordance with the jus gentium in award-
ing RMST exclusive salvage rights in the wreck of the Titanic.
B
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
sense.
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
30
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").
31
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.
32
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.
VII
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-
33
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
wreck.
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
34
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).
35
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.
VIII
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.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
36