Out of the Ocean and Into the Courtroom

My New Blog - Life Among the Saguaros

2011-10-14T16:21:00.001-07:00

Although I'll still be posting here on occasion, I've decided to begin another blog that will cover a variety of topics. I'm calling it "Life Among the Saguaros" and you can find it here.

Life Among the Saguaros

I hope to see you there!

99th Anniversary of the Sinking

2011-04-15T06:55:00.000-07:00

Today marks the anniversary of the sinking of the Titanic ninety-nine years ago. As I do most years, I spent some time last evening chatting with some online friends I met some time ago and with whom I continue friendships with today. I can't imagine spending the evening with anyone else and with all the memorial cruises, theatrical releases, exhibits, and other such events scheduled leading up to the 100th anniversary next year, I'll probably be spending the evening much the same way I do every year and with the same people who continue to share my interest in the enduring story of the sinking of the Titanic.

To all the people who died in the sinking, or never quite found happiness again after losing friends and family members, may they rest in peace.

This is a photo of of a mortuary bag that was sown aboard the Mackay-Bennett and held the personal effects of Body No. 41, Edmund Stone, who was a thirty-three year old first-class bedroom steward from Southampton. He was buried at sea.

Photo Credit: Maritime Museum of the Atlantic Handout

A Mattress As A Life Raft

2011-01-10T20:15:00.000-08:00

To begin, I’d like to wish all my readers a happy, healthy, and prosperous New Year. I must confess I’m a bit surprised at the number of people visiting this blog, and as long there is interest, I’ll continue to post what I hope is interesting information. I’d like to extend my sincere and heartfelt appreciation to all who visit.

I'm going to begin the New Year by transcribing an article from the "Science and Invention" section of Volume 45, No. 22 of "The Literary Digest". I found this little gem in the basement of a used bookstore in Syracuse, New York while attending law school.

TO PROVIDE the cradle of the deep with floating mattresses would seem a very obvious precaution, but we find the idea hailed as something new. Pneumatic mattresses and pillows have been used to some extent, made with special precaution against a puncture that might let the user down into the billows, and no doubt those on the “Titanic” and other wrecked steamers have wished the directors of the line had installed some such device. It will be recalled that many of the “Titanic” victims were sustained splendidly by the life-preservers, but died from the chill of the icy water. If each passenger could have floated high and dry on his own mattress, the result might have been different. Among the life-saving devices for use on shipboard brought recently before the Army Board on Life-boats and Life-Saving Appliances, was a universal safety mattress for use on shipboard or in localities subject to floods. It was designed and patented by Lieut. S. P. Edmonds, a retired officer of the United States revenue cutter service. From a description in “The Manufacturers’ Record” (Baltimore, October 31) we learn that the mattress is made to fit any bunk or bed, and is as comfortable as any ordinary felt mattress. We read further in substance:

“It is light enough to be carried easily by one person, and when made into a raft can be thrown overboard with a small line attached, and held so that the persons using it may be lowered on a ladder or line to reach the raft, or, if necessary, it may be thrown overboard, and persons jumping into the water will find the raft capable of supporting as many as can get hold of it in the water, or a lesser number may be supported clear of the water by climbing upon it. The necessary lashings and hand-holds form a part of the raft, and are always ready for use.

In the demonstration and tests, the inventor maneuvered the 24-inch mattress as a raft about the harbor basin with one oar, two oars, and by swimming without oars. After this demonstration the raft was weighted in the water and secured along-side the transport “Meade” for a test of its floating endurance. On the fourth day after the test began it was found that the raft showed no signs of sinking.

The two mattresses forming the raft were separated; one of them was sent to the quartermaster depot for examination of the materials of which it is made, and the other was punctured and torn with a number of holes into the filling of the mattress from the six sides. The mattress was then weighted down along-side the Army transport “Meade” for observation as to the length of time it would float. A telegram just received, ten days after the mattress was put over, is as follows:

‘No sign of mattress sinking. Apparently same as put over.’”

Lothrop, Master of Transport “Meade”

Veterans Day and The Veterans History Project

2010-11-11T14:24:00.000-08:00

Please take a moment today to thank a veteran for their service and to think of, and pray for, those who have died preserving our freedoms and protecting our country.

I wanted to also bring attention to something called "The Veterans History Project," which is a project of the American Folklife Center of The Library of Congress. The Veterans Project is dedicated to collecting and preserving the personal accounts of veterans for future generations. I'm in the process of completing this for my Dad.

While reading “The Greatest Generation,” authored by Tom Brokaw, I found myself moved by the stories of those persons about which he wrote. Many just barely out of high school, these men and women left family and friends to willingly face unknown challenges, gaining strength of character, mind, and body along the way. Whether they knew it at the time, they were building a solid foundation of character, strength, and integrity that would carry them not only through their service, but through their lifetimes as well. In his book, Mr. Brokaw asks his readers to encourage family members and friends to share their own stories, and so I did.

Knowing next to nothing about the military, I began looking around on the internet for questions I could ask my Dad and that's when I came across the Veterans History Project. Because I really didn't know anything about this time in my Dad's life, it turned out to be a very rewarding experience. In addition, during the course of working on this, I found out that my Dad had earned, but never received, some awards while serving. I'm now in the process of obtaining those awards for him.

This is a very important project and I encourage everyone to participate. Imagine having your loved one's story archived in the American Folklife Center of the Library of Congress! You can read all about the Veterans History Project at the following link -

Veterans History Project

Gloria Stuart Dies at the Age of 100

2010-09-29T16:26:00.000-07:00

Gloria Stuart, who starred in the movie "Titanic" has died at the age of 100.

New York Times

I'd like to share an autographed photo of her sitting at the Oscars, which is part of my Titanic collection.

Full Text of Recent Court Opinion - RMS Titanic, Inc. v. The Wrecked and Abandoned Vessel

2010-09-10T15:41:00.000-07:00

Although the opinion also included, as Exhibit A, "Revised Covenants and Conditions -
COVENANTS AND CONDITIONS FOR THE FUTURE DISPOSITION OF OBJECTS RECOVERED FROM THE RMS TITANIC BY RMS TITANIC, INC. PURSUANT TO AN IN SPECIE SALVAGE AWARD GRANTED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA," I'm not including it in this post due to the length of the opinion. I'm also not including the footnotes (again, due to the length of the opinion).

---F.Supp.2d---, 2010 WL 3239112 (E.D.Va.)
(At the time of this posting, only the Westlaw citation is currently available.)

United States District Court, E.D. Virginia,
Norfolk Division.
R.M.S. TITANIC, INC., successor-in-interest to Titanic Ventures, limited partnership, Plaintiff,
v.
The WRECKED AND ABANDONED VESSEL, Its Engines, Tackle, Apparel, Appurtenances, Cargo, etc., Located Within One (1) Nautical Mile of a Point Located at 41 43' 32" North Latitude and 49 56' 49" West Longitude, Believed to be the R.M.S. Titanic, In Rem, Defendant.
No. 2:93cv902.

Aug. 12, 2010.

Background: Salvor-in-possession of historic shipwreck and its wreck site moved for salvage award.

Holdings: The District Court, Rebecca Beach Smith, J., held that:
(1) approximation of fair market value of salvaged artifacts in amount of $110,859,200 was appropriate;
(2) labor expended by salvor-in-possession in rendering salvage service weighed strongly in favor of salvage award;
(3) high level of skill exhibited by salvor-in-possession in rendering salvage operations, considering immense level of difficulty in retrieving and caring for shipwreck's artifacts, weighed strongly in favor of salvage award;
(4) technological demands of salvaging historic shipwreck and wreck site weighed strongly in favor of salvage award for salvor-in-possession;
(5) risk incurred by salvor-in-possession in securing property from impending peril weighed strongly in favor of salvage award;
(6) degree of danger from which artifacts upon shipwreck and wreck site were rescued weighed strongly in favor of salvage award;
(7) degree to which salvor-in-possession worked to protect historical and archeological value of wreck and artifacts salved weighed strongly in favor of salvage award;
(8) lack of any co-salvors precluded division of salvage award to be awarded to salvor-in-possession of shipwreck and wreck site; and
(9) deduction from salvage award to salvor-in-possession for revenues earned via possession of artifacts was not appropriate.

Motion granted.

OPINION

REBECCA BEACH SMITH, District Judge.

*1 This matter comes before the court on R.M.S. Titanic, Inc.'s (“RMST”) Motion for a Salvage Award (“Motion”) filed on November 30, 2007.FN1 The court held an evidentiary hearing on RMST's Motion on October 26-29, 2009, and on November 2 and 23, 2009. For the reasons set forth below, the court GRANTS RMST's motion for a salvage award in the amount of ONE HUNDRED PERCENT (100%) the fair market value of the artifacts recovered in the 1993, 1994, 1996, 1998, 2000, and 2004 expeditions to the wreck of the R.M.S. Titanic. The court specifically reserves the right to determine at a later time whether to pay such award in currency or via an in specie award.

It has been nearly one hundred years since the R.M.S. Titanic (“Titanic”) sank in the waters of the North Atlantic in the early hours of April 15, 1912, killing more than 1,500 of the 2,228 people onboard. For over half a century, the Titanic lay undetected, 12,500 feet below the surface, in international waters four hundred nautical miles southeast of Newfoundland, until a joint American-French expedition discovered the wreck in 1985.

In 1987, RMST's predecessor-in-interest, Titanic Ventures Limited Partnership (“TVLP”), participated in a joint expedition with the Institut franais de recherche pour l'exploitation de la mer (“IFREMER”) to begin salvage operations at the site. Over the course of thirty-two dives to the Titanic wreck, TVLP recovered approximately 1,800 artifacts (“1987 artifacts”), which were taken to France for conservation and restoration.FN2

On May 4, 1993, RMST, formerly known as First Response Medical, Inc., acquired all the assets and liabilities of TVLP, including TVLP's interest in the Titanic salvage operations and the 1987 artifacts. In the summer of that year, RMST conducted another expedition to the Titanic wreck site, pursuant to a charter with IFREMER,FN3 recovering approximately 800 artifacts (“1993 artifacts”) and producing 105 hours of videotape over the course of fifteen dives. After bringing the 1993 artifacts to Norfolk, Virginia, RMST commenced the current in rem action on August 26, 1993.

The court issued a warrant directing the United States Marshal to arrest the wreck and all the artifacts that had already been salvaged and that were yet to be salvaged. The court also ordered that RMST be substituted for the Marshal as custodian of the Titanic wreck, the wreck site, and the artifacts. Formal notice of the court's order appeared in The Virginian-Pilot, The Wall Street Journal, and The Journal of Commerce, directing persons who had any claim to the wreck, or any of the associated property, to appear and state their claims. The only party to file a claim was Liverpool and London Steamship Protection and Indemnity Association Limited (“Liverpool & London”), which had insured passenger personal property and baggage on board the Titanic.

On October 20, 1993, a French administrator in the Office of Maritime Affairs of the Ministry of Equipment, Transportation, and Tourism awarded TVLP title to the 1987 artifacts. The 1987 artifacts are not included in the present Motion. FN4

*2 After RMST reached a settlement agreement with Liverpool & London, the court dismissed Liverpool & London's claim on June 7, 1994. By separate order that same day, the court awarded RMST exclusive rights to salvage the Titanic wreck as salvor-in-possession. Thus, in the summer of 1994, RMST and IFREMER conducted another expedition to the wreck, recovering over 1000 more artifacts (“1994 artifacts”) and producing approximately 125 hours of videotape.

Pursuant to Federal Rule of Civil Procedure 60(b), John Joslyn (“Joslyn”) filed a motion on February 20, 1996, asking the court to reconsider the June 7, 1994, Order making RMST salvor-in-possession. Joslyn argued that RMST was not fulfilling its duty as salvor-in-possession on the grounds that RMST had not made an expedition to the site in nearly two years and that it did not have the financial means to do so. On May 10, 1996, the court upheld RMST's status as salvor-in-possession in a Memorandum Opinion and Order, finding RMST had exercised due diligence, had maintained ongoing salvage operations, and had demonstrated its efforts were clothed with a prospect of success. R.M.S, Titanic, Inc. v. Wrecked & Abandoned Vessel, 924 F.Supp. 714, 722-724 (E.D.Va.1996). The court's holding was partially based on the fact that RMST had “promised the Court that it would keep the artifacts together and preserve them for the public,” and, at least until that point, RMST had kept that promise. Id. at 723.

RMST's 1996 expedition to the Titanic, again in conjunction with IFREMER, led to the recovery of 74 artifacts (“1996 artifacts”) and the production of approximately 125 hours of videotape. With the cooperation of RMST, Discovery Communications, Inc. (“Discovery”) joined the expedition, from which it produced three hours of television programming for The Discovery Channel. FN5 Also on the 1996 expedition, efforts began to recover a section of the Titanic hull, known as the “Big Piece,” measuring approximately 26 feet by 20 feet and weighing approximately 20 tons. Nevertheless, efforts to raise the Big Piece on the 1996 expedition were ultimately unsuccessful.

In the summer of 1998, pursuant to another charter with IFREMER, RMST returned to the Titanic site, recovering approximately 70 artifacts (“1998 artifacts”), which included the Big Piece, and producing 350 hours of videotape. Once again, Discovery joined the expedition, producing five hours of television programming, which included the first-ever live broadcast from the Titanic wreck site.

On May 4, 1998, RMST sought an injunction to prohibit Deep Ocean Expeditions (“DOE”) from organizing tourist expeditions to the Titanic wreck site for the purposes of photographing it. That same day, Christopher Haver (“Haver”), an individual who had paid DOE $32,000 to participate in such an expedition, filed an action in this court seeking a declaratory judgment that he was entitled to enter the Titanic wreck site. After consolidating Haver's action with this in rem proceeding, the court granted RMST's motion for an injunction on June 23, 1998, enjoining DOE, Haver, and others from photographing the Titanic wreck. The court found an injunction necessary, in part, to compensate RMST for its efforts as salvor-in-possession, given that RMST could not sell the artifacts in its care. R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 9 F.Supp.2d 624, 636 (E.D.Va.1998). On appeal, the Fourth Circuit reversed the court's decision to grant an injunction, holding that the court could not enjoin DOE, Haver, and others from traveling to and photographing the Titanic wreck. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 970 (4th Cir.1999) (“Titanic 1999 ”). The Fourth Circuit affirmed, however, this court's decision to name RMST as salvor-in-possession. Id. at 966. On remand, this court entered an order consistent with the Fourth Circuit's ruling, monitoring RMST's salvor-in-possession status with periodic reports and hearings. See R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, No. 2:93cv902 (E.D.Va. July 7, 1999).

*3 RMST completed another expedition to the Titanic wreck site in the summer of 2000, in conjunction with the P.P. Shirshov Institute of Oceanology of Moscow, Russia (“Shirshov Institute”), which provided the research vessel “Akademik Mstislav Keldysh” and two deep manned submersibles, the “MIR-1” and the “MIR-2.” The 2000 expedition consisted of twenty-eight dives and resulted in the recovery of over 900 artifacts (“2000 artifacts”), as well as the discovery of a new debris field.

In the summer of 2001, the court learned that RMST had plans to transfer interest in the Titanic artifacts. After holding a hearing, the court issued an order on September 26, 2001, finding that its previous orders to prevent sales of individual Titanic artifacts “were proper and were necessary when entered.” R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, No. 2:93cv902, at 2 (E.D.Va. Sept. 26, 2001) (“Titanic 2001 ”).FN6 After RMST appealed the September 26, 2001, Order, the court amended that order on October 19, 2001, to further explain its position. RMST then filed an amended notice of appeal, appealing both orders. The Fourth Circuit held an expedited hearing on the matter, and on June 6, 2002, affirmed the position of the court:

The Titanic was a historic ship, and the artifacts recovered from its wreckage therefore have enhanced value. RMST currently has a unique role as the Titanic's exclusive salvor, and, having performed salvage services, it has a lien in the artifacts and is entitled to a reward enforceable against those artifacts. At this stage of the proceedings, however, we cannot conclude that RMST has title to any artifacts. We also cannot conclude that the course that the district court is pursuing violates the law of salvage or amounts to an abuse of discretion.

R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 286 F.3d 194, 210 (4th Cir.2002) (“Titanic 2002 ”).

On February 12, 2004, RMST filed a “Motion for Salvage and/or Finds Award,” pursuant to which the court held a hearing on May 17, 2004. In a Memorandum Opinion and Order, dated July 2, 2004, the court refused to recognize the French administrative judgment awarding title of the 1987 artifacts to RMST's predecessor, under principles of international comity. R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, 323 F.Supp.2d 724, 730-34 (E.D.Va.2004) ( “Titanic 2004 ”). Moreover, the court held that RMST, as salvor-in-possession, could not seek title to the artifacts under the law of finds because it would be “inequitable and inconsistent” for the court “to award a party both the exclusive right to recover objects on the premise that the recovery is being performed for the benefit of the objects' owners, and to award title to the objects once they are recovered on the premise that they were previously unowned.” Id. at 737. On August 2, 2004, the court issued an order staying its proceedings pending RMST's interlocutory appeal. R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 327 F.Supp.2d 664, 666-67 (E.D.Va.2004).

*4 In the summer of 2004, RMST conducted its most recent expedition to the Titanic wreck site, pursuant to charters with Phoenix International, Incorporated (“Phoenix International”) and Secunda Marine Services Limited (“Secunda Marine”). For the first time, RMST relied exclusively on a deep ocean remotely operated vehicle (“ROV”), which permitted round-the-clock underwater operations. The expedition resulted in the recovery of 75 artifacts (“2004 artifacts”), as well as the discovery of another debris field, with remnants of the first class a la carte restaurant.

In 2006, on appeal of this court's decision in Titanic 2004, the Fourth Circuit affirmed this court's ruling that it is the law of salvage and not the law of finds that governs this case. See R .M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 435 F.3d 521, 535 (4th Cir.2006) (“Titanic 2006 ”),FN7 The Fourth Circuit remanded the case to this court to provide RMST with “an appropriate reward, which may include awards in specie, full or restricted ownership of artifacts, limitations on use of the artifacts, rights to income from display and shared research, and future rights to salvage.” Id. at 538.

On October 1, 2007, the court conducted a status hearing, and on October 16, 2007, the court issued a Memorandum Opinion and Order directing RMST to file a motion for a salvage award within sixty days, including all salvage costs through December 31, 2006, or RMST would waive the right to a salvage award up to and including that date. R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, 531 F.Supp.2d 691, 693 (E.D.Va.2007) (“Titanic 2007 ”). Further, the court entrusted the United States Attorney for the Eastern District of Virginia to continue reviewing RMST's operations as salvor-in-possession, as well as responding to any motion for salvage award RMST might file. Id.

On November 30, 2007, RMST filed the instant Motion, along with several volumes of exhibits, seeking a salvage award for all of its efforts salvaging the Titanic wreck site through December 31, 2006.FN8 In the Motion, RMST represented that the fair market value of the artifacts at that time, excluding the artifacts from the 1987 expedition, was $110,859,200. (Motion ¶ 10.) RMST further stated that it was seeking a salvage award between ninety to one hundred percent of the artifact's fair market value. (Id. ¶ 11.)

After receiving an extension of time from the court, on March 17, 2008, the United States filed a motion seeking leave of the court to submit its views on RMST's Motion. With written consent from RMST, the court granted the United States' request, on March 25, 2008, to participate as amicus and ordered that the United States' amicus brief be filed. In its brief, the United States indicated that “an interim in specie award with limitations could serve as an appropriate award mechanism in this case,” and therefore, the United States proposed certain limitations for the court's consideration. (United States' Resp. to RMST's Motion for Salvage Award at 10-16 (Mar. 17, 2008).)

*5 On April 15, 2008, the court issued an order directing RMST to submit proposed restrictive covenants. The court stated:

At minimum, these proposed covenants must ensure that the artifacts are conserved and curated in an intact collection that is available to the public and accessible for historical research, educational purposes, and scientific research, in perpetuity. The proposed covenants shall incorporate safeguards to ensure that they will remain effective in perpetuity, notwithstanding any further changes in circumstances. Furthermore, the proposed covenants shall guard against contingencies that might impair their future effectiveness.

R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, No. 2:93cv902, at 6 n.12 (E.D.Va. Apr. 15, 2008). With regard to the content of the covenants, the court indicated:
Specifically, these covenants, at minimum, must ensure the following: (1) that the collection is maintained as an intact collection that joins those artifacts from the R.M.S. Titanic awarded to RMST by a French maritime tribunal; (2) that the collection is managed according to the professional standards recognized in the NOAA Guidelines, the International Agreement and the Annexed Rules, and the federal regulations governing the curation of the federally owned and administered archaeological collections; (3) that reasonable, ongoing oversight by NOAA is implemented in order to protect the United States' interests in the Titanic wreck site and the artifacts recovered therefrom, and to ensure compliance with all court-imposed covenants; (4) that the collection is protected in perpetuity by ensuring that the covenants run with the collection to any subsequent purchasers and/or successors-in-interest to RMST; and (5) that the collection is protected in the event of insolvency or bankruptcy by RMST.

Id. at 4-5 (footnotes omitted). Further, the court stressed that the covenants would need to protect the Titanic and its artifacts as an international treasure for posterity, as expressed by the R.M.S. Titanic Maritime Memorial Act of 1986, 16 U.S.C. § 450rr et seq., the National Oceanic and Atmospheric Administration's (“NOAA”) Guidelines for Research, Exploration, and Salvage of R.M.S. Titanic, 66 Fed.Reg. 18,905-18,913 (Apr. 12, 2001), the International Agreement Concerning the Shipwrecked Vessel R.M.S. Titanic, and the proposed legislation to implement the International Agreement. Id. 3-4.

RMST submitted its proposed covenants and conditions (“C & Cs”) on June 11, 2008, and a revised version on June 23, 2008. After extensive consultation with the United States, RMST submitted another revised version of the C & Cs on September 12, 2008, in compliance with the court's schedule.FN9 Generally, the C & Cs provide for oversight by NOAA, extensive trustee obligations, a reserve fund, trustee default procedures, collection management, deaccession, bankruptcy procedures, and possible sale in the event of a rival collection. On October 14, 2008, the United States filed its amicus response to the C & Cs, which approved of most provisions, objected to several provisions, and attached an edited version of the C & Cs. The court granted RMST leave to reply to the United States' concerns.

*6 At a hearing on November 18, 2008, the parties addressed the disputed issues, and the court oversaw further revisions. Specifically, the parties agreed to alter language about the trustee's obligations, deaccession, the reserve account, and the bankruptcy proceedings; delete a section about selling the collection if a rival collection emerges; and incorporate extrinsic sources. Taking into account these revisions, the court is satisfied that the current version of the C & Cs complies with the court's order dated April 15, 2008.FN10

Finally, pursuant to the instant Motion for a Salvage Award, the court conducted an evidentiary hearing on October 26-29, 2009, and on November 2 and 23, 2009. On December 21, 2009, RMST submitted its Post-Hearing Memorandum in Support of its Motion for a Salvage Award. The United States opted to make no further submissions to the court. After almost seventeen years since the commencement of this in rem action, RMST's Motion for an interim salvage award is ripe for decision.

II. Analysis

A. Entitlement to a Salvage Award

[1][2][3] Principles of salvage law emerged over three thousand years ago, in the days of Rhodian civilization, and have since become an important part of the maritime law of nations. The purpose of salvage law is “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.” Titanic 1999, 171 F.3d at 962 (citing The Akaba, 54 F. 197, 200 (4th Cir.1893)). In that regard, a salvage award “is not viewed by the admiralty courts merely as pay, on the principle of a cruantum meruit, or as a remuneration PRO OPERE ET LABORE, but as a reward given for perilous services, voluntarily rendered, and as an inducement to seamen and others to embark in such undertakings to save life and property.” The Blackwall, 77 U.S. (10 Wall) 1, 14, 19 L.Ed. 870 (1869). Thus, in order to encourage salvage operations, a salvor is entitled to “liberal compensation.” Id.

[4][5][6] Rather than obtaining title to the salvaged property, a salvor acts on behalf of the property's owner, thereby obtaining a lien against the property saved. The “ Sabine”, 101 U.S. 384, 386, 25 L.Ed. 982 (1879). The salvor's lien is exclusive and prior to all others, including the res owner, and it grants the salvor a possessory interest in the res pending satisfaction of the lien. Titanic 1999, 171 F.3d at 963. A salvor may enforce its lien on the salved property by pursuing an in rem action before an admiralty court. Id.

[7] A salvor must establish three elements to prove entitlement to a salvage award: (1) that the salved property faced a marine peril; (2) that the salvor's services were voluntarily rendered without any preexisting contractual obligation; and (3) that the salvage efforts were successful, in whole or in part. The “Sabine”, 101 U.S. at 384. If any ambiguity still remains as to whether RMST has demonstrated these elements, the court explicitly finds that the prerequisites to a salvage award have been satisfied and that a salvage award is, therefore, warranted in this case. See Titanic 2006, 435 F.3d 538 (directing this court on remand to “apply the principles of traditional salvage law to the wreck of the Titanic in a manner that ... provides an appropriate award to the salvor”).

*7 [8] First, there can be little doubt that the Titanic, which now lies 12,500 feet below the surface, has faced, and continues to face, marine peril. See, e.g., Bemis v. RMS Lusitania, 884 F.Supp. 1042, 1051 (E.D.Va.1995) (“Courts will usually find that underwater shipwrecks are in marine peril, because sunken vessels and their cargoes are in danger of being lost forever.” (citing Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 336-37 (5th Cir.1978))). Second, RMST's salvage efforts were voluntary, in that RMST owed no contractual duty to perform the salvage. Last, RMST's efforts have been successful in retrieving thousands of artifacts from the wreck site. Thus, having determined a salvage award is appropriate, the court must now determine the amount of that award.

B. Factors to be Considered in Calculating the Salvage Award

[9][10] There is no precise formula for calculating a salvage award. Allseas Maritime, S.A. v. M/V Mimosa, 812 F.2d 243, 246 (5th Cir.1987). Because salvage cases are rarely alike, comparisons to previous awards are of little help, and the court must instead focus on the particular circumstances of the case at hand. See B.V. Bureau Wijsmuller v. United States, 702 F.2d 333, 339-40 (2d. Cir.1983) (citations omitted).FN11 In the Fourth Circuit, the fashioning of a salvage award is informed by seven factors, including six factors drawn from The Blackwall: (1) the labor expended by the salvors in rendering the salvage service; (2) the promptitude, skill, and energy displayed in rendering the service and saving the property; (3) the value of the property employed by the salvors in rendering the service, and the danger to which such property was exposed; (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and (6) the degree of danger from which the property was rescued. 77 U.S. (10 Wall) at 14. In Columbus-America Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450 (4th Cir.1992) (“Columbus-America I ”), the Fourth Circuit added a seventh factor: “the degree to which the salvors have worked to protect the historical and archeological value of the wreck and the items salved .” Id. at 468.

[11][12][13] When calculating a salvage award, “the court of admiralty becomes a court of equity,” such that the award “may properly be increased, diminished, or wholly forfeited, according to the merit or demerit of the salvor, in relation to the property saved.” Id. (citations omitted). The amount of the salvage award “is primarily a matter of judgment to be exercised by the trial court, and, beyond a careful examination of the facts, little remains for the appellate court except to determine whether the judgment has been exercised in accordance with the general principles respecting salvage.” Columbus-America Discovery Group v. Atl. Mut. Ins. Co., 56 F.3d 556, 569 (4th Cir.1995) (“Columbus-America II ”) (citation omitted). Thus, appellate courts apply an “extremely deferential standard of review” to salvage awards. Id .

*8 [14] Traditionally, the maximum amount that a court would award for a successful salvage was the present market value of the salved property. See Platoro Ltd., Inc. v. The Unidentified Remains of a Vessel, 695 F.2d 893, 904 (5th Cir.1983). Any award higher than that value would have burdened rather than benefitted the property's owner, a “result contrary to the goals of salvage law.” Id. (citation omitted). Nevertheless, the Fourth Circuit has held, “[i]f it becomes apparent to the court that the proceeds of any sale would clearly be inadequate to pay the salvor its full reward, then the court might, as a matter of discretion, award the salvor title to the property in lieu of the proceeds of sale, thus saving the costs of sale.” Titanic 2002, 286 F.3d at 204. Because whether to grant title is a matter of discretion for the court, the court must first determine the amount of the award and then determine how it ought to be paid.

1. The Value of the Property Saved (Blackwall Factor 5)FN12

When performing its analysis under The Blackwall factors, the court need only determine “a rough approximation of the worth of the salved property.” Rand v. Lockwood, 16 F.2d 757, 759-60 (4th Cir.1927). The salved property currently before the court includes all artifacts RMST recovered over the course of six expeditions: 1993, 1994, 1996, 1998, 2000, and 2004 (collectively, the “artifacts”).FN13 If the court decides to grant a monetary award, the ceiling for such an award would be the fair market value of the artifacts currently before the court. See Platoro, 695 F.2d at 904.

[15] According to RMST's experts, Paul Zerler (“Zerler”) and Stephen Rogers (“Rogers”) (collectively, the “appraisers”), the fair market value of the artifacts is currently over one hundred and ten million dollars. (See RMST Evid. Hr'g Ex. 50 at 18 (“2009 Update”).) FN14 That current valuation represents an update of their original appraisal, which began in 2000 and took approximately three and a half years to complete. In performing their initial appraisal, Zerler and Rogers took a “bottom-up” approach, individually inspecting almost every Titanic artifact. (Zerler Decl. ¶ 5 (Nov. 28, 2007) (hereinafter “Zerler Decl.”).) The value of each object was determined based upon “the character of the object, its state of conservation, the scarcity of the item, and other relevant factors.” (Id.) Although the appraisers determined fair market value by comparing the artifacts to “other reasonably comparable assemblages of artifacts and collectibles, ... because of the uniqueness of these artifacts, there are no precise comparables.” (Id.) Because the artifacts before the court are the only ones to originate from the Titanic wreck site, the appraisers believe that the artifacts are worth more as a collection than individually. (See id.)

In 2007, Zerler and Rogers generated an updated appraisal based upon the values established in the original report (“2007 Update”). (See id. Ex. B.) The 2007 Update removed the 1987 artifacts, added the 2004 artifacts, and updated the appraisal figures to reflect market conditions. The appraisers determined that the 1993-2002 artifacts had doubled in value since their initial appraisal. (Id. Ex. B. at “2007 Update Addendum with 2004 Expedition Added.”) FN15 The 2004 artifacts were then appraised by multiplying the 2002 valuation of comparable artifacts by one hundred fifty percent. (Id.) The appraisers justified the increases based on the “art market, the collectables market, the notoriety of the Titanic, the mystery of the Titanic and the fact that it has become a household word and a metaphor for great or major tragedies or mistakes.” (Id.) The increase is also due, in part, to increased notoriety following numerous exhibitions of the artifacts. (See id. at App. A at “Titanic Artifact Appraisal Summary” (2007).)

*9 The 2009 Update, other than correcting a relatively small error in calculation, maintains the findings of the 2007 Update, valuing the collection at $110,859,200. (2009 Update at 18.) The appraisers are of the opinion that the “current financial market volatility does not appear to be affecting unique, high end collectible values.” (Id.) As evidence, the appraisers provide recent sales data from unique collectibles, including items from the Titanic that were recovered either from survivors or from the ship's flotsam and jetsam.FN16 Among those items, the key to the E-Deck of the Titanic recently sold, in April 2009, for £60,000 (approximately $90,000). (2009 Update at 16.) A third-class manifest sheet, written in eight languages, also sold in 2009 for £23,000 (approximately $34,000). (Id. at 14.) In September 2007, the key to the ship's crow's nest sold for £90,000 (approximately $145,000). (Id. at 16.)

The appraisers were careful to emphasize, however, that even these items from the Titanic are not directly comparable to the artifacts before the court. Zerler and Rogers assert that the carefully documented provenance of each artifact recovered from the wreck site drives up that artifact's value by a factor of ten, over any comparable item. (Id. at 6.) Nevertheless, the appraisers maintain that the “current valuation of the collection remains extremely conservative, and may be seen as a bottom beneath which lower valuation does not appear feasible.” (Id. at 10.)

The current valuation excludes RMST's “hard costs,” such as the cost of salvage, preservation, lab operation, exhibition, and storage, as well as the value of slides and video films. (Id. at 18.) FN17 The appraisers indicate those costs could be an additive to the current valuation of as much as $44,000,000 (as of 2007). (Id.) Moreover, Zerler and Rogers properly assumed, for purposes of the appraisal, that the artifacts would stay together as a collection and that none of the artifacts would be sold, either individually or in groups. (Id. at 10-11.)

As evidence of the reliability of the Zerler-Rogers appraisal, RMST also submitted the report and testimony of Richard-Raymond Alasko (“Alasko”), an accredited senior appraiser for the American Society of Appraisers and principal in the Alasko Company. In the report, Alasko “confirms the reliability of the Zerler-Rogers conclusion of the Fair Market Value of the subject properties as $110,859,200 on 23 October 2009.” (RMST Evid. Hr'g Ex. 52 at 22.) At the evidentiary hearing, upon questioning by the court, Alasko testified that he believed, were the court to hire an independent expert to value the collection, that the valuation would be substantially similar to that of Zerler and Rogers.

The court recognizes the inherent difficulty in placing a fair market value on a collection of artifacts that has no real market equivalent. However, other methods of valuation are equally unsatisfactory, as there is no way to calculate the replacement cost of an irreplaceable collection. Similarly, the income method would overlook the intrinsic value of ownership, independent of income potential, possessed by truly rare historic and artistic collections. In the absence of a more attractive alternative, the court embraces the fair market value approach taken by the appraisers.

*10 Under The Blackwall factors, the court is charged with determining a “rough approximation” of the value of the property saved. Rand, 16 F.2d at 759-60. In assessing the reliability of the submitted appraisal, the court notes that Zerler has been a renowned appraiser of artifacts, fine art, and collectibles for over forty-two years. (2009 Update at 3.) Along with Rogers, Zerler spent over 3600 hours valuing the Titanic artifacts. (Zerler Decl. Ex. B. at “Appraisal of Artifacts from the Wreck R.M.S. Titanic September 2000-June 2004 with 2007 Update Supplement” at 1.) Although Zerler could not testify at the evidentiary hearing on account of severe and current health issues, Rogers, a licensed civil engineer who served as a United States Navy Salvage Officer and has worked with Zerler since 1989, did testify. (See RMST Evid. Hr'g Ex. 52; 2009 Update at 4.) Rogers testified that items assessed by Zerler typically sell within ten to twelve percent of their appraised value, with the Atocha artifacts selling within eight percent of Zerler's appraisal.FN18 Moreover, the Zerler-Rogers appraisal was independently reviewed by Alasko, who vouched for its accuracy.

Taking into account the entire record before the court, the court finds $110,859,200 to be an appropriate approximation of the fair market value of the artifacts. That figure is representative of the invaluable service that RMST has provided in its salvage of the Titanic.

2. The Labor Expended by the Salvors in Rendering the Salvage Service (Blackball Factor 1)

[16] The amount of time, money, and energy that RMST has expended since 1993 represents an enormous investment for the salvors. Over the course of six expeditions to the wreck site, RMST has spent over 180 days at sea, logged more than 100 dives, and spent a combined total in submersible operations in excess of 1000 hours. (Geller Decl. ¶¶ 3, 10 (Nov. 29, 2007) (hereinafter “Geller Decl.”).) In expedition costs alone, RMST has spent $9,049,000. (See RMST Evid. Hr'g Ex. 67.) FN19 When considered in conjunction with its efforts conserving and exhibiting the artifacts, RMST has devoted well over 500,000 hours of labor to the salvage of the Titanic. (Geller Decl. ¶ 17.)

The vast majority of salvage operations in search of sunken property last a matter of hours or days, with only a few known cases to have lasted longer than a month. See Columbus-America II, 56 F.3d at 571 (“Our research has revealed only two other sunken property cases in which it was reported that the salvor's operations lasted longer than a month.” (footnote omitted)). Although the time spent on a project is no sure indication of its success, the court recognizes the sheer magnitude of the resources that have been devoted to the salvage of the Titanic. In determining the amount of an appropriate salvage award, the labor expended by RMST weighs greatly in its favor.

3. The Promptitude, Skill, and Energy Displayed in Rendering the Service and Saving the Property (Blackwall Factor 2)

*11 [17] The Titanic lies two and a half miles below the surface of the North Atlantic. Without question, recovering artifacts at such a depth requires state of the art equipment and expertise. As of 2007, there were only five manned submersibles in the world capable of descending to this depth, three of which were employed by RMST. (Dettweiler Decl. ¶ 8 (Nov. 28, 2007) (hereinafter “Dettweiler Decl.”).) Because those vessels were designed for purposes of research, not salvage, RMST was required to invent approximately twenty new tools with which to equip the submersibles. (RMST Evid. Hr'g Ex. 3 (Nargeolet Decl. ¶ 6 (Nov. 28, 2007)).) For example, to avoid crushing fragile objects with the manipulator arm of the submersible, RMST developed a vacuum system for the collection of small artifacts. (Id.) Indeed, such inventions were often artifact-specific, such as the long, flat shovel, designed to recover a stained glass window. (Id.)

By far the most impressive innovation, however, was the system used to raise the Big Piece of the hull. For that task, RMST positioned lift bags, full of diesel fuel, around the Big Piece, and when weights were released, the diesel fuel, being less-dense than water, hoisted the Big Piece towards the surface. (Id. ¶ 5.) The difficulty arose in controlling the ascent of the lift bags, and the first attempt to raise the Big Piece, in 1996, was a failure. (Dettweiler Decl. ¶¶ 14, 15.) The Big Piece was successfully recovered in 1998, and, as it weighed over fifteen tons, it was the largest artifact ever to be recovered from the deep ocean. (Id.)

In addition to RMST's successes, however, the court is equally cognizant as to some of its failures. Kenneth Vrana (“Vrana”), President and Chairman of the Center for Maritime and Underwater Resource Management (“CMURM”), submitted a report to the court on the 2004 expedition, in which he estimated that the damage rate to recovered artifacts was around twenty-one percent (i.e., thirteen out of sixty-three artifacts). (RMST Evid. Hr'g Ex. 64 at 3.) Moreover, due to technical difficulties in operating the ROVs, RMST failed to recover thirteen artifacts, despite serious attempts at their recovery. (Id. at 2.) Lastly, eight out of the ten ROV dives were terminated due to equipment failure, with three dives being terminated before reaching the ocean floor. (Id. at 1.) FN20

While the court is obviously displeased to learn that some artifacts have been damaged due to ROV operations, that fact also emphasizes the fragility of the artifacts that RMST has recovered. Indeed, the salvage operations are far from complete when the artifacts emerge from the ocean. Each artifact undergoes an extensive cataloguing and conservation process that is dictated by the composition of the artifact, whether it be metal, ceramic, paper, or textile. (Savatsky Decl. ¶ 10 (Nov. 29, 2007) (hereinafter “Savatsky Decl.”).) Although most conservation efforts, aside from desalination, are carried out by contract conservators (see RMST Evid. Hr'g Ex. 68 at 4), this action bespeaks the level of care and expertise required, as well as RMST's commitment to preserving the condition of the artifacts.FN21

*12 Considering the immense level of difficulty in retrieving and caring for the Titanic artifacts, the court finds that RMST has shown a high level of skill in its salvage operations.

4. The Value of the Property Employed by the Salvors in Rendering the Service/ and the Danger to which such Property was Exposed (Blackwall Factor 3)

[18] As previously mentioned, as of 2007, there were only five manned submersibles in the world capable of descending to the depth of the Titanic wreck site, 12,500 feet below the ocean surface. FN22 For that reason, RMST entered into a series of charters over the course of its six expeditions to obtain access to manned submersibles, ROVs, and surface support ships. (See RMST Evid. Hr'g Ex. 3 at Ex. 1 (“Schedule of Vessels and Major Equipment Used in Titanic Salvage Operations”).) The most frequently used vessels include the Nadir, a surface support ship, and the Nautile, a manned submersible, which RMST chartered from IFREMER for the 1993, 1994, 1996, and 1998 expeditions. At the time of these expeditions, the Nadir had an estimated value of $10,000,000, whereas the Nautile was worth approximately $44,000,000. (Id.) The court accepts these figures as representative of the highly specialized equipment necessary to perform the salvage of the Titanic wreck site.

As RMST did not own this equipment, however, the court views this factor to be less important than the others.FN23 This factor's relevance exists solely in exemplifying the technological demands of salvaging the Titanic wreck site, and to that extent, the factor weighs in RMST's favor.

5. The Risk Incurred by the Salvors in Securing the Property from the Impending Peril (Blackwall Factor 4)

[19][20] In order to induce salvors to come to the aid of distressed persons and property, salvage law must reward those who risk their own safety and property when assisting the distressed vessel. See The Blackwall, 77 U.S. (10 Wall) at 14. As discussed under the previous factor, however, RMST did not actually own the vessels it used in salvaging the Titanic. Moreover, under the 1993, 1994, and 1996 charters, IFREMER explicitly assumed the risk of loss to property and liability for personal injury arising out of the operation of the leased vessels, with the exception of injury to persons specifically invited on board by RMST (e.g., journalists and media). (See RMST Evid. Hr'g Exs. 4, 5, and 6 at ¶ 24.2.) FN24 In 2000, the Shirshov Institute also assumed the risk of loss to its equipment, unless due to the direct negligence of RMST, as well as the risk of injury or death to its employees, unless caused by RMST's acts, omissions, or negligence. (See Geller Decl. Ex. 3 at ¶¶ 2.6, 13.1.) Lastly, in 2004, both Phoenix International, the owner of the ROV employed, and Secunda Marine, the owner of the surface ship, assumed the risk of loss to their vessels and the risk of personal injury to their employees, even if caused by RMST's negligence. (See Geller Decl. Ex. 2 at ¶ 6(c),(d), and Ex. 1 at Part II.12(a).) Taking these provisions together, the courts finds it improper, in conducting the Blackwall analysis, to reward RMST for any risk that it expressly contracted away.

*13 Nevertheless, the court is cognizant of the risks that RMST did face, not the least of which is the possibility of death or serious bodily injury faced by those RMST personnel participating in expeditions. In Columbus-America II, the Fourth Circuit noted that the vessel's 160-mile distance from shore “meant that treatment for the most severe injuries was hours away.” 56 F.3d at 572. By comparison, the Titanic wreck site lies approximately 400 nautical miles offshore, in an area of the North Atlantic in which the only “open weather window” occurs in the summer, in the midst of hurricane season. (Geller Decl. ¶ 11.) Indeed, salvage operations were suspended on several occasions due to approaching hurricanes and storms. (Id.)

The dangers on the surface, however, pale in comparison to the dangers faced by the passengers of the manned submersibles diving to the ocean floor. The water pressure at that depth is 6,300 pounds per square inch, meaning that a breach in, or even significant damage to, the hull of the submersible would cause the instantaneous death of the entire crew. (Dettweiler Decl. ¶ 11.) Moreover, it takes approximately three hours to travel to the wreck site and four hours to return, with approximately eleven hours spent on the bottom. (RMST Evid. Hr'g Ex. 9 (Sinclair Dep. at 18:1-11 (Oct. 9, 2009)).) With temperatures inside the submersible dipping below 50 degrees Fahrenheit, and tight quarters requiring crew members to remain flat on their stomachs during the dives (Dettweiler Decl. ¶¶ 12, 13), crew members faced not only the risk of death, but also continuous hours of physical discomfort.

Although RMST was not contractually liable for all of the risks involved with salvaging the Titanic, particularly the risk of loss to the vessels, employees of RMST were amongst those that took their lives in their hands to descend to the wreck site in order to collect the artifacts that are the subject of this proceeding. It is that type of risk-taking that the salvage award is meant to compensate, in order to encourage and induce such efforts in the future, and the court recognizes the high level of risk faced by those individuals with RMST.

6. The Degree of Danger from which the Property was Rescued (Blackwall Factor 6)

[21] In Columbus-America II, the Fourth Circuit evaluated the danger from which the salvaged gold was rescued as follows:

While it is true that the ocean itself presents no danger to the essential nature of gold and similar substances, it is also true that any value that our society attributes to gold depends entirely on the ability of someone to assert a property interest in it. Because property is far less certain of being recovered once it has sunk, especially when it has sunk in deep water, we perceive that its sinking sharply increases the degree of danger to its continued existence and utility as property. We have little doubt that, if the BLACKWALL Court were transported over 125 years into the future to decide this case, it would consider Columbus-America's salvage of the CENTRAL AMERICA to be the ultimate rescue from the ultimate peril.

*14 56 F.3d at 573. Similarly, the Titanic artifacts were previously lost on the bottom of the ocean, depriving the public of all social utility in their historic symbolism and cultural beauty. Instead, RMST has recovered those items from a fate of being lost to future generations. As in Columbus-America II, such a rescue can be considered “the ultimate rescue from the ultimate peril,” Id.

Moreover, the wreck of the Titanic itself is in a process of bio-deterioration that, in one projection, may lead to the deterioration of the promenade decks by the year 2030, with the decking at all levels continuing to collapse towards the keel as the walls fail. (RMST Evid. Hr'g Ex. 20 at 94-95.) FN25 Although the court need not make a precise determination as to the exact rate of bio-deterioration of the Titanic wreck site, the court does properly acknowledge the serious danger from which these artifacts have been recovered as being another factor supporting a liberal salvage award.

7. The Degree to which the Salvors have Worked to Protect the Historical and Archeological Value of the Wreck and the Items Salved (Columbus-America I Factor)

In its role as salvor-in-possession, RMST has been charged by this court with the care and preservation of the artifacts pending the outcome of this proceeding. Indeed, RMST has been in possession of some of the artifacts before the court for almost seventeen years. In that time, RMST has been dedicated not only to preserving the condition of the artifacts, but also to exhibiting them to the public in a series of exhibitions around the world.

[22] From the moment artifacts are pulled from the water, RMST is working to stabilize their condition to prevent deterioration. The process required depends on the type of artifact. Ferrous metals, for example, are at risk of oxidation upon being removed from the low-light, low-oxygen environment of the wreck site, and, therefore, such items are immediately placed back in water for transport to RMST's warehouse in Atlanta. (Savatsky Decl. ¶ 10.) Textiles and paper, on the other hand, which are extremely delicate from the exposure to salt water, are freeze-dried or frozen upon recovery. (Id.) Once transported to the lab, textiles and paper, like other objects, are subjected to a desalination process, a process which can take from six months to two years, depending on the type of object. (Id.) Ceramics take the least amount of time to desalinate, although it can take longer if the piece is broken. (Id.)

Other than desalination, RMST contracts with professional conservators to perform the vast majority of the stabilization efforts. (See RMST Evid. Hr'g Ex. 68 at 4; Ex. 33.) RMST tracks the condition of its artifacts through condition reports (see, e.g., RMST Evid. Hr'g Ex. 40), and RMST's 10,080 square foot facility in Atlanta is specifically designed and maintained for the artifacts' preservation.FN26 For example, the warehouse is equipped with a climate-controlled “bubble” to house metal, glass, and ceramic artifacts at approximately thirty-five to forty percent humidity. (Savatsky Decl. ¶¶ 5, 6.)

*15 RMST has created an extensive database for every artifact that it has recovered from the wreck site, which tracks information such as the object's exhibition and conservation history. (See, e.g., RMST Evid. Hr'g Ex. 38.) The amount of information contained in the RMST database is impressive; the examples submitted to the court are themselves voluminous. Such efforts are critical to preserving the historical value of the artifact collection. In that regard, RMST has devoted substantial resources to the in situ study of the Titanic wreck site, gathering data and images to create a map of the debris field, in hopes that such information will provide greater insight into the interrelationship between and among the artifacts. For example, much can be learned from this data about how the vessel sank. (Vrana Decl. ¶ 6 (Nov. 29, 2007).) FN27

RMST has further promoted the historical significance of the Titanic through the worldwide exhibition of the recovered artifacts. RMST has displayed the artifacts on four continents to nearly twenty million people. (See Geller Decl. ¶ 17; RMST's Post-Hr'g Mem. Supp. Mot. for Salvage Award at 30 (Dec. 21, 2009).) RMST has approximately five exhibitions running at any given time, with about thirty percent of the artifacts on display. (Savatsky Decl. ¶ 4.) RMST has developed various educational programs to accompany its exhibits, including an impressive teaching guide for various school grade-levels and a special program for senior citizens. (See RMST Evid. Hr'g Exs. 58, 60.)

Moreover, when the artifacts are on tour, RMST takes great lengths to ensure their preservation. RMST installs all exhibitions itself, as compared with most museums, which allow host venues to install the exhibitions themselves. (Savatsky Decl. ¶¶ 17, 18.) RMST sends with the artifacts a “Security and Log Notebook,” providing the venue with information regarding the proper environment and treatment of the artifacts, as well as requiring the constant monitoring of such factors as temperature and humidity. (See, e.g., RMST Evid. Hr'g Ex. 32.) After artifacts are placed on tour, if necessary, they are then returned to the warehouse for a period of “resting” to prevent deterioration. (Savatsky Decl. ¶ 16.)

As RMST has requested an in specie award granting it title to the artifacts, it comes as no surprise to the court that RMST has invested significant time, energy, and resources in the care and preservation of the artifacts. Such efforts are not properly perceived as a sacrifice for the public interest, but rather as RMST making what it thinks to be a good investment in its business. Similarly, the display of the artifacts is a profitable venture, whether or not it also shares the story of the Titanic with the world. Nonetheless, the issue before the court is the degree to which the salvors have worked to protect the historical and archeological value of the artifacts, and not their motive for doing so. There is extensive evidence before the court of RMST's efforts at conservation, education, and exhibition, and thus, the court finds RMST's efforts to be deserving of a salvage award that includes recognition of these efforts.

C. Potential Deductions

1. Disqualifying Salvor Misconduct

*16 [23] In seeking a salvage award, a salvor must come to the court with clean hands, acting “in entire good faith and with honesty of purpose.” Columbus-America II, 56 F.3d at 569 (citation omitted). If a salvor comes to the court with unclean hands, its award may be reduced or entirely forfeited, depending on the level of misconduct. See Columbus-America I, 974 F.2d at 468 (citation omitted). Thus, the court must determine whether RMST has engaged in any disqualifying salvor misconduct.

Nevertheless, “it is not entirely clear what constitutes bad faith.” Adams v. Unione Mediterranea di Sicurta, 220 F.3d 659, 676 (5th Cir.2000). In Adams, a salvor purported to sell its rights in a deposit of sunken steel, although it was later determined that the salvor, in fact, did not have title at the time of the purported sale. Id. at 676-77. The district court found, and the Fifth Circuit affirmed, that such action did not constitute “bad faith.” Id. The court found that, although the salvor “may not have acted entirely in good faith,” the salvor had “some basis to believe it could salvage the steel and at least transfer a possessory interest.” Id. In sum, the salvor and the purchaser of the steel had “acted negligently but their behavior did not rise to bad faith under the law.” Id.

Over the course of these lengthy proceedings, the court has grown tired of the repeated attempts of RMST to assert title to the artifacts, despite its established position as salvor-in-possession. See, e.g., Titanic 2007, 531 F.Supp.2d at 693 n. 4 (“The court will no longer tolerate these maneuvers by RMST to circumvent the court's final ruling that RMST is the salvor, and not the owner, of the artifacts. Further circumvention efforts will be met with appropriate sanctions under Federal Rule of Civil Procedure 11 and a review by this court of RMST's status and privilege to remain as salvor-in-possession of the R.M.S. Titanic.” (emphasis in original)). Ultimately, the court's concerns stem from RMST's prior attempts to sell the artifacts that have been entrusted in its care.FN28 Indeed, those concerns are magnified by the non-adversarial nature of these proceedings.

[24] Nevertheless, to the court's knowledge, RMST has not actually sold any artifacts.FN29 Although the court wonders what would have happened without the court's intervention, see Titanic 2001, RMST's plans to sell artifacts, to which it lacked title, does not rise to a level of bad faith that would require a substantial reduction in the amount of the salvage award. See Adams, 220 F.3d at 676-77 (finding sale of interest in salvaged property, without title to that property, did not amount to bad faith, when salvor had some basis to believe it had a possessory interest in the property). Although RMST may not have acted in the utmost good faith in all of its dealings with this court, the court holds that RMST has not engaged in disqualifying salvor misconduct, so as to forfeit its right to a salvage award or to warrant a substantial reduction in such award.

2. Contributions of Co-Salvors

*17 [25] The total salvage award must include the contributions of all co-salvors. Platoro, 695 F.2d at 904 n. 15. After calculating the total award, the court must then allocate the award among co-salvors “according to each co-salvor's contribution to the recovery.” Id. at 903. Thus, the court directed RMST to submit evidence as to any uncompensated or undercompensated entities or individuals assisting with the salvage. Titanic 2004, 323 F.Supp.2d at 742-44.

[26] After a careful review of the record, the court is satisfied that there are no co-salvors in this case. Although RMST chartered the equipment necessary to carry out its salvage operations, those charter agreements represent arms-length transactions at market rates. Indeed, the charters themselves contain provisions in which the vessels' owners specifically denounce any ownership interest in the recovered objects. (See, e.g., RMST Evid. Hr'g Exs. 4, 5, and 6 at ¶ 21.1.) FN30 The court finds that the vessels' owners were properly compensated for their assistance with salvage operations. (See, e.g., RMST Evid. Hr'g Ex. 63 (listing payments received by IFREMER for the 1994 expedition and indicating no outstanding balance).)

Similarly, there is no indication that the conservators employed by RMST received below-market rates for their services. (See, e.g ., RMST Evid. Hr'g Ex. 41 at 16-19 (invoices from Northeast Document Conservation Center).) As no entity or individual has been uncompensated or undercompensated by RMST in relation to its salvage efforts, the court finds that there are no co-salvors that would be entitled to share in the total salvage award with RMST.

3. Revenues from Possession of the Artifacts

This court has previously held that RMST's salvage award must be reduced by any amount previously received by virtue of its possession of the artifacts. The court explained:

Finally, because a salvage award is a reward for performing salvage service, see The Blackwall, 77 U.S. (10 Wall.) at 14, rather than payment for the property recovered by the salvor, to the extent that a salvor has already been monetarily rewarded by virtue of its possession of salvaged artifacts, its salvage award should be accordingly reduced. In this regard, RMST's salvage of the Titanic wreck presents a novel circumstance. In no other case known to the court, in which a salvage award was calculated following an evidentiary hearing, has the property saved had significant pre-salvage award exhibition value that has been a major source of income for the salvor-in-possession. The salvor should not receive additional reward for his services simply because the court chose not to sell the saved property immediately after it came within the court's jurisdiction. Cf. The Blackwall, 77 U.S. (10 Wall.) at 15 (holding that one salvor does not benefit from the fact that another salvor chooses not to seek an award in the in rem proceeding). Thus, principles of equity dictate that the salvage award should be reduced by any amount of payment already received on account of the performance of the salvage service, in particular, the monetary benefits of the exhibitions of the recovered artifacts.

*18 Titanic 2004, 323 F.Supp.2d at 743.

At the court's direction, RMST submitted evidence as to its revenues and expenses through the fiscal year ending on February 28, 2007. Two major problems existed, however, in calculating RMST's revenue and expenses from the audited financial statements submitted to the Securities and Exchange Commission (“SEC”) by Premier Exhibitions, Inc. (“Premier”), RMST's parent company. (Kellar Decl. ¶ 3.) First, Premier's overall figures included revenue and expenses from the 1987 artifacts, which are not currently before the court. FN31 Thus, RMST needed to isolate the revenue and expenses attributable to the 1993-2004 artifacts. Second, Premier's overall figures included revenue and expenses, in fiscal years 2005-2007, from Premier's other operations, primarily its “Bodies” exhibit that involves the display of human cadavers. Therefore, RMST also needed to separate out those revenues and expenses that were wholly unrelated to the Titanic artifacts before this court for the present salvage award.

In order to arrive at estimates of RMST's revenue and expenses attributable only to those artifacts before the court, RMST went through a series of assumptions and calculations involving Premier's filings with the SEC. As a preliminary matter, RMST excluded all revenue and expenses associated with non-Titanic operations, including the “Bodies” exhibit. (See id. ¶ 9 and Ex. 2.) Moreover, RMST removed gains and losses from the sale/disposal of assets not directly related to the Titanic. (Id. Ex. 1.) RMST also removed the revenue and expenses associated with Titanic merchandise, as these amounts did not apply to the artifacts. (Id.) RMST then removed all tax amounts and applied a statutory rate of forty percent. (Id.)

Additionally, RMST opted to extract the expedition costs from the overall expenses, so that these costs could be considered separately. This was done in order to standardize the data, in light of a change in accounting practices that was ordered by the SEC in 2002. (Id. ¶ 7 and Ex. 6.) FN32 The expedition costs summed to a total of $9,049,000.FN33

Finally, RMST attempted to exclude those revenues and expenses related to the 1987 artifacts. In order to accomplish that goal, RMST excluded approximately $7,700,000 in losses during 1993-1995, on the assumption that the “bulk of this activity was attributable to the 1987 artifacts.” (Id. ¶ 6.) Such exclusion was intended to be a conservative assumption, with the effect of artificially increasing the apparent amount of net income attributable to the 1993-2004 artifacts. (Id.) For the remaining years, RMST assumed that the revenues and expenses attributable to the 1987 artifacts were forty-two percent of the total figures, on the grounds that each exhibit is comprised of approximately forty-two percent of 1987 artifacts and fifty-eight percent of 1993-2004 artifacts. (Id. ¶ 11.) Such apportionment was applied generally to all revenues and expenses in the relevant period (see id. Ex. 4), with the exception of conservation costs prior to 1998, which were excluded in their entirety because of unclear corporate records. (Id. ¶ 12 and Ex. 5.) That exclusion, again, artificially increased the revenue attributable to the 1993-1994 artifacts.

*19 Based upon the forgoing assumptions and calculations, RMST generated $1,937,305 during the fiscal years 1996-2007 from the 1993-2004 artifacts. (Id. Ex. 4.) Subtracting the $9,049,000 in expedition costs from those rev revenues, RMST suffered a net loss during fiscal years 1996-2007 of $7,111,695. FN34

The court recognizes the inherent difficulty in isolating the revenue and expenses generated by the artifacts before the court from the revenues and expenses generated by the 1987 artifacts. Although the approach taken by RMST undoubtedly over-simplifies the process, the court finds the approach to be a reasonable approximation of the revenue generated by the 1993-2004 artifacts before 2007, especially in light of RMST's exclusion of roughly $7,700,000 in losses between 1993-1995. The court's main concern is with RMST's subtraction of its expedition costs from those exhibition revenues.

RMST argues that the court must consider the expedition costs in association with the exhibition revenues, as those exhibition revenues were only made possible by the costs RMST expended in retrieving the artifacts. (See RMST's Mem. Supp. Mot. for Salvage Award at 37-38 (Nov. 30, 2007).) While the court understands such an argument, it also finds it to be inconsistent with RMST's request for prejudgment interest. (See Motion ¶ 15.)

[27][28] In maritime cases, “the awarding of prejudgment interest is the rule rather than the exception, and, in practice, is well-nigh automatic.” U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir.1992) (citations omitted). Typically, prejudgment interest serves “as compensation for the use of funds to which the claimant was rightfully entitled.” Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir.1980). In this case, however, RMST's expenses in obtaining the artifacts led to accruing exhibition revenues; in other words, RMST was not truly deprived of the use of its funds, as it received a return on its initial investment. Thus, the court does not find it appropriate to award prejudgment interest, if RMST has already been compensated, in some form, for the use of its funds.

Thus, the court originally proposed to place RMST in the position of a typical salvor by deducting its operational profits. Under normal circumstances, a salvor would expend money and labor in assisting a distressed vessel, after which the salvor would receive a salvage award, with interest for the delay in the salvor's recompense. By subtracting from the salvage award the money RMST had received from possessing the artifacts, the court intended to place RMST in that position of the typical salvor, as one who expended time and resources in conducting salvage operations, and who would then be entitled to a salvage award, along with prejudgment interest. The court does not understand, however, how RMST would be entitled to both its operational profits and prejudgment interest.

[29][30] In sum, the court will accept RMST's position that it has failed to accumulate any profits from possession of the artifacts, in light of the costs incurred in salvaging the artifacts. Therefore, the court will decline to make a deduction from the salvage award for revenues earned via possession of the artifacts. Nevertheless, consistent with that position, the court also declines to award prejudgment interest, finding this to be a particularly unusual case. See U.S. Fire Ins., 966 F.2d at 828 (“A district court, however, may decline to award prejudgment interest when ‘peculiar circumstances' would render such an award inequitable.” (citation omitted)). RMST has been compensated for its investment via its operational revenues for the period 1996-2004, and therefore, the court finds a further award of prejudgment interest would not be equitable in this case.

4. Summary of Potential Deductions

*20 Based on the foregoing, the court finds no deductions to be attributable to salvor misconduct, contributions of co-salvors, or revenues from possession of the artifacts, but declines an award of prejudgment interest. As such, the court will determine the amount of the award solely based upon the principles of salvage law represented by the Blackwall/Columbus-America I factors, as discussed above.

D. Amount of the Award

[31] In determining the amount of a salvage award, the court may either fix a sum certain, or the court may award the salvor a percentage of the market value of the property. See, e.g., Columbus-America II, 56 F.3d at 573 (affirming salvage award of ninety percent the fair market value of the salved property); see also Margate Shipping Co. v. M/V Orgeron, 143 F.3d 976, 989 (5th Cir.1998) (“[O]ur analysis of the economic foundations of the Blackwall rule indicates that the value of the salved property is one of the most important of the factors. The most natural way to effectuate its salient character is simply to make the award a function of that value.” (citations omitted)).

Michael Anderson (“Anderson”), an expert in marine salvage operations and salvage compensation, testified regarding his opinion as to the appropriate level of the award. A previous expert in the Columbus-America case, Anderson has experience, inter alia, in negotiating salvage contracts on behalf of the governments of various nations, as well as insurance companies worldwide. (RMST Evid. Hr'g Ex. 24 at 4.) Anderson testified at the evidentiary hearing in October 2009, that, in order to properly induce salvage operations similar to those undertaken by RMST, an award of at least ninety-five percent of the fair market value of the artifacts would be appropriate. Anderson based his opinion on the difficulty of the salvage operations, including such factors as the depth of the wreck site, the distance off-shore, the condition of the wreck site, and the fragility of the artifacts.FN35

As discussed at great lengths above, the court agrees that the salvage of the Titanic has involved unprecedented feats of skill and dedication, both in the salvage of the artifacts and their conservation and exhibition. Weighing the Blackwall/Columbus-America I factors, in particular the labor and resources expended and the skill involved, the court finds that RMST is entitled to a salvage award of ONE HUNDRED PERCENT (100%) the fair market value of the artifacts recovered in the 1993, 1994, 1996, 1998, 2000, and 2004 expeditions to the R.M.S. Titanic.FN36

E. Payment of the Award

[32] The court has yet to decide the manner by which to pay the salvage award. Although RMST has sought an in specie award, the decision whether to grant an in specie award lies solely within the court's discretion. Titanic 2002, 286 F.3d at 204 (“If it becomes apparent to the court that the proceeds of any sale would clearly be inadequate to pay the salvor its full reward, then the court might, as a matter of discretion, award the salvor title to the property in lieu of the proceeds of sale, thus saving the costs of sale. The salvor does not have a direct right, however, to title in the property.” (emphasis added) (citation omitted)). Although the court has found that an award of the entire fair market value of the artifacts would be appropriate in this case, the court maintains reservations about granting RMST title to the artifacts, for fear that the court would end up in a perpetual legal battle with RMST over the meaning and scope of the covenants and conditions that the United States, through the United States Attorney, has negotiated and finalized with RMST and the court.FN37

*21 Thus, the court reserves its discretion to sell the artifacts in a judicial sale, until which time it may determine that no appropriate buyer for the collection, capable of maintaining and preserving the artifacts for the public interest, has interest in purchasing the collection at a fair market price. The court will make such determination no later than August 15, 2011. Until that time, RMST may maintain possession of the artifacts pending a final decision in this case.FN38

III. Conclusion

For the reasons set forth in this Opinion, the court hereby GRANTS RMST a salvage award in the amount of ONE HUNDRED PERCENT (100%) the fair market value of the artifacts recovered in the 1993, 1994, 1996, 1998, 2000, and 2004 expeditions to the wreck of the R.M.S. Titanic. The court specifically reserves the right to determine the manner in which to pay the award, which decision will be made no later than August 15, 2011. RMST may maintain possession of the artifacts pending the court's decision.

The Clerk is DIRECTED to send a copy of this Opinion to counsel of record, and to Lawrence R. Leonard, Assistant United States Attorney.

IT IS SO ORDERED.FN39

Judge Rebecca Beach Smith Grants R.M.S. Titanic, Inc. Salvage Award

2010-09-08T17:57:00.000-07:00

In an opinion dated August 12, 2010, Judge Rebecca Beach Smith held that the approximation of fair market value of salvaged artifacts in the amount of $110,859,200 was appropriate; labor expended by salvor-in-possession in rendering salvage service weighed strongly in favor of salvage award; high level of skill exhibited by salvor-in-possession in rendering salvage operations, considering immense level of difficulty in retrieving and caring for shipwreck's artifacts, weighed strongly in favor of salvage award; technological demands of salvaging historic shipwreck and wreck site weighed strongly in favor of salvage award for salvor-in-possession; risk incurred by salvor-in-possession in securing property from impending peril weighed strongly in favor of salvage award; degree of danger from which artifacts upon shipwreck and wreck site were rescued weighed strongly in favor of salvage award; degree to which salvor-in-possession worked to protect historical and archeological value of wreck and artifacts salved weighed strongly in favor of salvage award; lack of any co-salvors precluded division of salvage award to be awarded to salvor-in-possession of shipwreck and wreck site; and deduction from salvage award to salvor-in-possession for revenues earned via possession of artifacts was not appropriate.

I haven't read the entire opinion yet, but I've located it and will post the text of it in full hopefully before the end of this weekend. After briefly skimming over the holdings of the case, it looks like it will be an interesting read.

John Jacob Astor left son $3,000,000

2010-09-06T17:13:00.001-07:00

Until I looked around some more and found a New York Times article titled "Son For Mrs. Astor; Named For Father" (published on August 15, 1912) I was under the impression that the child with whom Madelain was pregnant while on the Titanic was unintionally disinherited. However, according to the article, while he was not mentioned by name, John Jacob Astor had provided for any posthumous children, which is what John Jacob Astor VI was. He was left $3,000,000 in trust.

Son For Mrs. Astor; Named For Father

According to the following New York Times article titled "27,593 To Maintain Astor Baby For A Year" published on April 29, 1916, the trust earned an income in 1915 in excess of $150,000.

27,593 To Maintain Astor Baby For A Year

Ninety-Eight Years Ago Today . . .

2010-04-14T17:11:00.000-07:00

USS Arizona's Signal Mast and Anchor - Remembering Pearl Harbor Part V

2010-02-21T22:26:00.000-08:00

To read parts 1-4, click on the "USS Arizona" tag on the right of the page.

In the last of this series on Pearl Harbor, I'd like to share some pictures I took of the USS Arizona's signal mast and anchor, which are located in the Wesley Bolin Memorial Plaza in Phoenix, Arizona. While gazing upon the mast and anchor, it's difficult not to be reminded of the many lives that were lost when the USS Arizona was attacked on December 7, 1941.

Remembering Pearl Harbor - Part IV

2010-02-21T18:52:00.000-08:00

To read parts 1-3, click on the "USS Arizona" tag on the right of the page.

The following, dated September 9, 1917, is a letter to Captain J.D. Burgess informing him that the Battleship Arizona Silver Service is paid for. To read the letter, click on the photo to enlarge it.

The following photos are of the Superstitions Bread Basket and a candelabra. I found this particularly interesting as I've hiked in the Superstitions. Also in this display case is Montezuma's Castle Bread Basket, USS Arizona Bread Basket, and Hualpai Village Bread Basket. Montezuma's Castle is an ancient Sinagua cliff dwelling located in central Arizona, and Hualpai Village is a Native American village located in northern Arizona.

In one of the display cases were a number of serving platters, including one engraved with a view of the San Francisco Mountains in Flagstaff, one engraved with an image of the first Captial building in Prescott and the territorial seal of Arizona, and one engraved with an image of the historic Capital building in Phoenix, the current home of the Arizona Capital Museum.

The following photos are of a water pitcher and glass tray. The pitcher features an image of the Casa Grande Ruins in central Arizona.

I've posted photos of just some of the pieces in the museum. The museum houses many more pieces as well as many other things, including a model of the USS Arizona and a sewing kit (circa 1918-19) owned by USS Arizona crewman Guy Winston. I highly recommend a visit to this amazing museum if you should ever find yourself in Phoenix.

Remembering Pearl Harbor - Part III

2010-02-21T15:11:00.000-08:00

To read parts 1 and 2, click on the "USS Arizona" tag on the right of the page.

I meant to post these pictures sooner, but I've been a bit busy so I decided to take some time and get it done today. In previous posts, I posted some photos of a piece of the USS Arizona's superstructure that had been salvaged in 1942 and is now in the Arizona State Capital Museum, along with some other items housed in the museum. To view those posts, just click the "USS Arizona" tag on the right of the page.

Prior to the attack, there were a number of beautiful pieces of silver and silver sets on board. This silver service is now on display in the Arizona State Capital Museum. In "Battleship Arizona An Illustrated History" by Paul Stillwell there is a picture of the silver service on display on the quarterdeck soon after the USS Arizona was modernized. In the last shipyard period took place an activity referred to as "strip ship." When war seemed a question of when and not if, items that were not necessary during war were removed from the ship. Among these items were the pieces that made up the silver service. So, the pieces that you see in the museum were not recovered from the hulk at Pearl Harbor. According to Stillwell, after World War II the silver was put aboard the light cruiser "Tucson" and in the 1950s was on the ship "Adirondack". Clicking on the photos will give you a better view.

This photo shows "The Cowboy Compotes" - engraved pieces that honor Arizona's cattle industry, and "Pima Chief Compotes" - two small compotes engraved with a portrait of a Pima Chief to honor the Native American tribes in Arizona. The candelabra in the picture is one of two with the Navy emblem and saguaro cactus and features feet that look like dolphins. The vases are two of four vases used on the USS Arizona. Pine tree decoration recognizes the diverse ecology of Arizona.

This centerpiece is engraved with images of the Carnegie Laboratory and a Gila Monster. I found this interesting as I've seen two Gila Monsters in the wild while hiking, which is a bit rare. They aren't often seen in the wild. The goblets make up a set of twelve and are decorated with an image of Arizona Rough Rider Buckey O'Neil's Monument in Prescott.

The eagle was broken off the centerpiece before the silver was returned to Arizona.

The humidor in this photo is engraved with ranching scenes and Tumacacori Mission in southern Arizona. It was used to store cigars and other tobacco products.

This is a set of two smoking trays. They contained tobacco products and were used to prevent fires aboard ship.

Estate Planning Attorney Francis X. Morrissey, Jr. Has Been Disbarred

2010-02-21T08:53:00.000-08:00

Photo Credit: daylife

By operation of law, Francis X. Morrissey, Jr., who did estate planning for Brooke Astor and was a co-defendant in the recent trial involving her estate, has been disbarred.

Matter of Morrissey

Brooke Astor's Son Sentenced to 1 - 3 years

2010-01-13T06:27:00.000-08:00

Brooke Astor’s only son, Anthony D. Marshall, was sentenced on December 21, 2009, to one to three years in prison for defrauding his mother, stealing millions of dollars from her as she suffered from Alzheimers. (A co-defendant, Francis X. Morrissey Jr., a lawyer who did estate planning for Mrs. Astor, was also convicted of a series of fraud and conspiracy charges, as well as one count of forging Mrs. Astor’s signature on an amendment to her will.)

Credit: The New York Times

In addition to the legal issues involved, this story caught my attention due to my interest in the transatlantic liners of the early to mid-1900s. On April 14, 1912, the R.M.S. Titanic struck an iceberg in the middle of the North Atlantic and subsequently foundered on April 15, 1912 at approximately 2:20 a.m., sinking to the bottom of the ocean and taking over 1,500 souls with her.

One of the many people to die in the sinking was John Jacob Astor IV. After assisting his young, pregnant wife Madelaine into a lifeboat, Mr. Astor stood back with the other men while the other women and children entered the lifeboats, which was customary back then.

John Jacob Astor IV Credit: Picture History

Madelaine Astor Credit: Titanic-Titanic

It was Vincent Astor, son of John Jacob Astor IV, and married to Brooke Astor at the time of his somewhat sudden death of a heart attack on February 3, 1959, who brought his father's body back to New York (his body was recovered from the Atlantic after the sinking) and presided at his funeral after the sinking. In 1948, Vincent set up the Vincent Astor Foundation and, upon his death, half of his $130 million estate went to the Foundation which his widow, Brooke, was to administer.

Over the course of her life, Brooke Astor carried out her husband's wishes, donating over $200 million to various charities during her lifetime. Although, unfortunately, her good work might be overshadowed by the recent events involving her estate, this classy lady can rest in peace knowing she carried out her late husband's wishes.

Brooke Astor Credit: Fox News

A life ring, a teapot, a boatswain's pipe, a bugle, and a bottle of champagne . . . Remembering Pearl Harbor - Part II

2009-12-10T15:56:00.000-08:00

To read part 1, click on the "USS Arizona" tag on the right of the page.

Here are some photos of some of the items in the State Capital Museum. (Click the photos to see the items in greater detail.)

Remembering Pearl Harbor - Part I

2009-12-07T08:34:00.000-08:00

Today, December 7, 2009, marks the 68th anniversary of the attack on Pearl Harbor. I was downtown a little while back and had some time, so I stopped into the Arizona State Capital Museum where there is located a piece of the USS Arizona that was removed from the superstructure in 1942 and stored at Waipio Point, Oahu until 1995 when it was transferred to Arizona by the U.S. Navy.

The museum also houses a life ring, teapot, a boatswain’s pipe, and a bugle owned by Maurice Vincent, who played with the USS Arizona band in the late 1930s, among other items. Also included in the museum’s collection are a number of beautiful silver, copper, and silver and copper serving sets which were not on the ship at the time of the attack. They are some of the most beautiful pieces I’ve seen.

Outside, located in the Wesley Bolin Memorial Plaza, is an anchor from the USS Arizona as well as a signal mast. I’d seen those before as I’ve been to the plaza for a number of events, but hadn’t known about the piece of the superstructure inside.

Here are some photos of the piece of the superstructure. I'll be posting photos of some of the other things I saw in upcoming posts.

And the Widow Wore White . . .

2009-11-18T19:59:00.000-08:00

In a post dated September 22, 2009, I mentioned a magazine I found while digging around in some boxes that were in the basement of a charming little used book store in New York. In a different issue of the same magazine, in a section titled "Mainly About Men And Women" I discovered the following. The issue is dated September, 1912.What I found is a little blurb about Mrs. John Jacob Astor and her announcement that she would wear nothing but pure white for six months.

It reads -

Probably ten years from now black will not be worn at all as a badge of mourning. That is the conclusion of those who have been drawn into a discussion of the subject by the announcement that Mrs. John Jacob Astor will wear nothing but pure white for the next six months. "Personally I have always thought the only important question in regard to mourning apparel concerns not the putting it on, but the taking it off," declares one authority. "The lady who 'goes into colors' after a polite period of gloom seems to symbolize so blatantly the transient nature of her grief. Mourning outght to be worn forever. At least that is my feeling about it." Why not vote on it? Which do you favor? White or black? Or none at all?

Brooke Astor's Son Found Guilty

2009-11-18T12:35:00.000-08:00

I have a book on the Astors, and I think there are a number of interesting issues going on with the family members involved (or not, some might argue), and I also plan to follow the appeal, so I'll be posting more on this story.

Vincent Astor, who brought his father's body back to New York and presided over his funeral after the sinking, was married to Brooke at the time of his somewhat (doctors had diagnosed a cardiovascular condition that fluctuated over the five months before his death) unexpected death of a heart attack on February 3, 1959. I can't help but think that he's smiling down over this verdict, and perhaps somewhat relieved. It's my understanding that sentencing will take place on December 8, and I hope the judge sticks it to the lawyer involved.

Article

On a side note, Vincent left his half-brother nothing. I don't think I'll ever be able to watch "the movie" again without being reminded of the fact that the kid with whom Madelaine was pregnant while on the Titanic and, in my opinion unintentionally disinherited, is, ironically, the one responsible (he left a son and grandson when he died in July of 1992) for carrying on the Astor name in the United States. I find it a bit interesting that Vincent left him nothing, as he had to have known that his father would have wanted to provide for him and, although it's my understanding that Vincent didn't like him (his half-brother) much and didn't respect his choices in life, it's interesting that he didn't do the right thing, so to say.

Millvina Dean's Ashes Scattered

2009-10-26T22:34:00.000-07:00

Bruno Nordmannis, Millvina's lifelong friend, places floral wreaths in the water after Millvina's ashes were scattered.

Photo Credit: Daily Echo

Millvina Dean's ashes have been scattered in the water where Titanic departed Southampton almost one hundred years ago. Millvina died on May 31, 2009, which was the 98th anniversary of Titanic's launch in Belfast.

Article

Premier Exhibitions, Inc. Regains Compliance With NASDAQ Listing Rules

2009-10-17T08:10:00.000-07:00

Article

Fredrick Fleet

2009-10-15T07:58:00.000-07:00

Photo Credit: Find A Grave

On this day in the year 1887, Fredrick Fleet was born in Liverpool, England. Fleet was a lookout on the Titanic and was on duty when she struck an iceberg and sank approximately two and one half hours later. Unfortunately, Fredrick Fleet would be among the Titanic survivors who would eventually end their own lives. He committed suicide in 1965 after the death of his wife a couple of weeks earlier. He's buried in Hollybrook Cemetery, located in Southampton.

Love Me Tender

2009-10-14T19:44:00.000-07:00

The Nomadic lying in dry dock in Belfast waiting for restoration to begin.
Photo Source: Belfast Telegraph

According to an article in BBC News, police were called in when the Nomadic Preservation Society removed two ornate doors from the historic tender. A spokesperson for the Nomadic Preservation Society said it had purchased the doors in Paris and claimed they possessed proof of ownership. The society now wants an apology from the Nomadic Trust, which is the government-appointed body which called the police and eventually described the event as a misunderstanding.

There is also a dispute between the Nomadic Preservation Society and the Nomadic Trust over a lifeboat that once belonged to the Nomadic, with the Nomadic Preservation Society claiming it bought the lifeboat, and the Nomadic Trust claiming it had been gifted to the Trust.

The two entities are also arguing over the multimillion pound project to restore the Nomadic. Members of the Nomadic Preservation Society are reluctant to hand over the funds they have raised to the Nomadic Trust because it is unclear what the Trust intends to do with the funds. The doors are now in storage and it is unclear when they will be reunited with the tender.

According to an article in the Belefast Telegraph, an expert in restoration projects has offered to step in and act as mediator to help resolve issues between the Nomadic Preservation Society and the Nomadic Trust.

According to another article in the Belefast Telegraph, the restoration of the Nomadic, the tender that ferried first and second-class passengers on board the Titanic from Cherbourg, will begin in the spring of 2010. There had been concerns of a funding shortfall, and it was beginning to look doubtful that the tender would be reopened to the public ahead of the 100th anniversary of her launch. Thanks to a grant from the Northern Ireland Tourist Board, there are now sufficient funds in place for restoration of the Nomadic to begin. (Other funders who have contributed to the project include Belfast City Council, Belfast Harbour, Titanic Quarter Ltd, Ulster Garden Villages, and the Better Belfast project.) Both the Titanic and the Nomadic were launched from Harland and Wolff, located in Belfast, in 1911.

Check the following link for some nice pictures of the Nomadic when she was docked at Le Havre, France, and after coming home to Belfast, Ireland. Notice the photo in which the White Star Line company flag is flying proudly from her stern.

Department for Social Development

A Queen Is Launched

2009-09-28T08:01:00.000-07:00

September 26th marked the 75th anniversary of the launch of the R.M.S. Queen Mary in Scotland. Here, courtesy of the National Library of Scotland, you can see a short (about one minute and ten seconds) but amazing video of her launch.

Video

Ismay Arrives In Liverpool

2009-09-22T19:23:00.001-07:00

I found this little gem while digging around in some boxes that were in the basement of a charming little used book store in New York. As I was looking through the boxes, I came across a copy of a magazine called "Home Life" magazine on the cover of which someone had written "1912" in what looked like colored pencil. Needless to say, I was curious, so I opened it up and had a look inside. Toward the beginning of the magazine is a section called "In The Wake Of The News." In this section is a picture of Ismay and his wife arriving in Liverpool. I'll post another interesting little tidbit from this issue in a future blog entry.

The following caption reads:

"TITANIC SURVIVORS AT LIVERPOOL
In this picture J. Bruce Ismay, the president

of the company owning the ill-fated Titanic,

and one of the first men to take a place in the

lifeboats when he knew the ship was in danger,

is seen coming down the gangway with his wife

at his side. The Ismay smile would not seem

to indicate that he has felt the sting of the

criticism that has been leveled at him. Preceding

them is Sir John Hare, the English actor, returned

from a recent trip to Canada."

This shows the picture came from Volume Twenty-Two, Number Seven, dated August, Nineteen Twelve.

George Whitelock's Response to Mellor - Part VI (final part)

2009-08-11T16:26:00.000-07:00

To read from the beginning, please see blog entry dated June 9, 2009.
To read Part II, please see blog entry dated June 11, 2009.
To read Part III, please see blog entry dated June 21, 2009.
To read Part IV, please see blog entry dated July 15, 2009.
To read Part V, please see blog entry dated August 8, 2009.

This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).

(continued from Part V)

Now the issue of negligence vel non not having been yet adjudicated in America, what then may result to the death claims if the Company presses its petition for limitation of liability under American law? To repeat: A statute has never been adopted by the American Congress for recovery of damages for loss of life by negligence on the high seas, and no present right of recovery therefore exists either by the general maritime law of the United States, or by federal statute. If the fund of $91,805.54 is finally distributed under the petition of the Oceanic Steam Navigation Company, Ltd., the cases of The Hamilton and La Bourgogne will be controlling authority to admit the death claimants to participation therein.

But if, on the other hand, the application to limit the liability of the Company is finally disallowed because of the Company’s own negligence, will there be any redress at all for the death claimants? They cannot, as shown, recover under American law; and the period of time limitation under Lord Campbell’s Act will preclude the institution of new suits in England. Will American Judges relieve the asperity of the law of their own forum by applying for the benefit of such claimants, in direct suits for damages, the law of the flag (that is, of Great Britain), as American Judges applied the law of France to the case of La Bourgogne in proceedings to limit liability? The future can alone determine. Thus far the Supreme Court has dealt only with the remedy; it has said nothing about rights. Its wisdom is indisputable in holding that persons who elect to sue in American Courts are limited in recovery by the American Statute irrespective of foreign enactment.

Two phases of existing law of the United States merit special comment here. First, the omission to provide a clear and direct right of recovery of damages for death by negligence at sea; secondly, the establishment of the present maximum of pecuniary liability as that of the value of salved property plus freight pending. The world disaster of the Titanic throws strong light on both of these propositions, and the necessity of reformatory legislation.

Six years ago I sought to demonstrate the need of a remedial statute by Congress to assimilate the law of the United States to that of Europe in respect of the right of dependants to recover damages for death of a relative by negligence at sea. It is not expedient to repeat my reasons here.

Since my original address was delivered at Buda-Pesth the Maritime Law Association of the United States and the American Bar Association have continued their earnest advocacy of the proposed reform, the arguments for which have been so tragically reinforced by the case of the Titanic. The American Congress seems at last aroused; and it is believed that the Peters Bill introduced on June 17, 1913, in the House of Representatives, and favorably reported with amendments from the Judiciary Committee on December 22, 1913, will be duly enacted as the law of the American Courts of Admiralty. It is entitled “A Bill Relating to the Maintenance of Actions for Death on the High Seas and other Navigable Waters.”

But it is obvious, I think, that neither the foreign law nor an American Statute can do adequate justice in American Courts so long as the standard established by the Act of 1851, furnishes the limit of a shipowner’s liability. The subject of the limitation thereof has been considered in international conference and the draft of an international convention has been already distributed. That draft looks to international unification of the rules relating to the limitation of shipowners’ liability in the case of sea-going vessels; the only method by which justice can be rendered both exact and uniform. In this reform, too, the Maritime Law Association of the United States is actively interesting itself. An able committee was appointed at its last meeting in New York on May 1, 1914, to consider the general subject of limitation of the liability of shipowners with special reference to the proposed draft convention and to report thereon to the Association. This great and salutary reform is at least in posse.

George Whitelock

(The text of the Peters Bill was also included in a footnote.)

George Whitelock's Response to Mellor - Part V

2009-08-08T16:39:00.000-07:00

To read from the beginning, please see blog entry dated June 9, 2009.
To read Part II, please see blog entry dated June 11, 2009.
To read Part III, please see blog entry dated June 21, 2009.
To read Part IV, please see blog entry dated July 15, 2009.

This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).

(continued from part IV)

But it may be here pertinently observed that while the issue of fact has not yet been determined in the Courts of America, a jury in England has already awarded damages for the death of four of he steerage passengers of the Titanic, having found negligence of the Company. The verdicts were rendered in the cases of Ryan et al. v. Oceanic Steam Navigation Company, brought under the provisions of the English Death Statute, called Lord Campbell’s Act. On review before the Court of Appeal upon application for a new trial, a re-hearing was refused and the appeals were dismissed on February 9, 1914. Lord Justice Vaughan Williams, speaking for the Appellate Court, said: “There was one question common to all these cases – namely, whether the loss of the Titanic was due to negligent navigation; and the jury found that it was.” Considering the question of negligence in fact, his Lordship further said that “there was no doubt that the Captain of the Titanic had diverted his course and adopted anther way of precaution to avoid ice of which he was warned by marconigrams from the Caronia and Baltic, but his Lordship thought it impossible to say that there was no evidence upon which the findings of negligence could be based, and added: “I think that the danger in this case was neither unforeseen or unforeseeable. There was warning, to my mind, of dangerous ice ahead, and the jury might reasonably come to the conclusion that in the circumstances a prudent master ought thereupon to have slowed down, or even to have stopped, and if the master failed to perform this duty he cannot say, ‘I am excused because the state of things which the ship afterwards encountered was unforeseen or unforeseeable,’ as the accident might not have happened if he had slowed down.”

And Lord Justice Kennedy, who also delivered judgment, arrived at the same conclusion that the appeals should be dismissed.

(To be continued in Part VI of George Whitelock’s Response to Mellor.)

George Whitelock's Response to Mellor - Part IV

2009-07-15T10:19:00.000-07:00

To read from the beginning, please see blog entry dated June 9, 2009.
To read Part II, please see blog entry dated June 11, 2009.
To read Part III, please see blog entry dated June 21, 2009.

This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).

(continued from part III)

(We left off with a quote by Justice Holms and now continue with Whitelock’s response.)

The far-reaching significance to the Oceanic Steam Navigation Company of this preliminary victory will be appreciated when it is noted that the application of the British standard of limitation of liability – fifteen pounds per gross ton – would have provided for distribution among claimants a fund of $2,500,000, as against the trivial sum of $91,805.54, thus determined to be the limit of liability if the owner of the Titanic is in fact entitled to limit its responsibility – an issue not yet decided by the American Courts, and whose determination depends on proofs to be hereafter adduced. Thus far the Supreme Court has merely sustained the Company’s contention that the American statute and not the British will furnish the gauge of the amount for distribution, provided the Company is not precluded by the conditions of the American law from availing itself of the right of limitation. It is to be borne in mind that the right of a shipowner to limit liability under the Act of Congress is predicated on the fact that the negligent act committed was done without his privity or knowledge. In the case of a corporation, the privity or knowledge of the president, or other high officer, would of course be the privity or knowledge of the corporation itself, and would defeat its right to the exemption. Here the Company has appropriately alleged in its petition that “the collision aforesaid and the loss, damage, injury and destruction resulting therefrom were due to inevitable accident, and were not caused or contributed to by any negligence or fault on the part of the petitioner, or of those in charge of the steamship Titanic, and were occasioned and incurred without the privity or knowledge of the petitioner.” But if it be ultimately established that the Compnay itself was at fault, and that the accident in fact occurred with its privity and knowledge, then the Company’s petition must be dismissed, and in such event its liability will be unlimited. The press of New York is authority for the statement of one of counsel for the claimants, made since the decision at Washington, that the claimants will contend that there was not only negligence in the navigation of the Titanic, but that J. Bruce Ismay, the executive head of the Company, knew of the dangers, was privy to them and nevertheless permitted the vessel to continue her course and speed. It is hardly necessary to say that the Company, on the other hand, expressly “claims exemption from liability, as owner of the steamship Titanic, for the losses, damages, injuries, and destruction occasioned or incurred by the collision and sinking aforesaid, and for the claims for damages that have been made, or hereafter may be made, and it alleges that it has valid defenses thereto on the facts and under the provisions of the contracts for the carriage of the cargo and of the passengers and their baggage.”

(To be continued in Part V of George Whitelock’s Response to Mellor.)

George Whitelock's Response to Mellor - Part III

2009-06-21T15:04:00.000-07:00

To read from the beginning, please see blog entry dated June 9, 2009.
To read Part II, please see blog entry dated June 11, 2009.

This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).

(continued from part II)

Mr. Justice Holmes said in the course of a luminous and scholarly judgment delivered by him on behalf of the Supreme Court (Mr. Justice McKenna alone dissenting) that:

“It is true that the Act of Congress does not control or profess to control the conduct of a British ship on the high seas. It is true that the foundation for a recovery upon a British tort is an obligation created by British law. But it also is true that the laws of the forum may decline altogether to enforce that obligation on the ground that it is contrary to the domestic policy, or may decline to enforce it except within such limits as it may impose. It is competent, therefore, to Congress to enact that in certain matters belonging to admiralty jurisdiction parties resorting to our Courts shall recover only to such extent or in such way as it may mark out. The question is not whether the owner of the Titanic by this proceeding can require all claimants to come in and can cut down rights vested under English law, as against, for instance, Englishmen living in England who do not appear. It is only whether those who do see fit to sue in this country are limited in their recovery irrespective of the English law. That they are so limited results in our opinion from the decisions of the Court.

It is not necessary to consider whether the Act of Congress may not limit the rights of shippers or American vessels to recover for injuries in our waters or on the high seas, so that if they sued in a foreign court they could not be allowed to recover more than the Act allows if our construction of the law were followed. A law that limits a right in one case may limit a remedy in another. This statute well might be held to announce a general policy, governing both obligations that arise within the jurisdiction and suits that are brought in the Courts of the United States. It clearly limits the remedy, as we have shown, in cases where it has nothing to say about the rights.

We see no absurdity in supposing that if the owner of the Titanic were sued in different countries, each having a different rule affecting the remedy there, the local rule would be applied in each case. It can be imagined that in consequence of such diverse proceedings, the owner might not be able to comply with the local requirements for limitation, as it also is conceivable that if it sought the advantage of an alien law it might as a condition have to pay more than its liability under the law of its flag in some cases. But the imagining of such possible difficulties is no sufficient reason for not applying the statute as it has been construed; on the whole, it would seem with good effect.”

(To be continued in Part IV of Whitelock's Response to Mellor.)

George Whitelock's Response to Mellor - Part II

2009-06-11T06:20:00.001-07:00

To read from the beginning, please see blog entry dated June 9, 2009.

This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).

(continued from Part I)

When the Titanic sank at sea in collision with an iceberg, the vessel had never been in a port of the United States. In such circumstances, the Court of first instance at New York denied all right of the Company to limit its liability under American law. The point had been taken by claimants at the very outset that upon the facts shown in the petition itself, the petitioner’s right of limitation, if it existed at all, was that granted by the terms of the British statute conferring a right of limitation and not by the American. And on April 21, 1913, Judge Holt then sitting, it was held below that three universal principals were decisive against the limitation claimed by the British Company under American law. Those principles were, the Judge said: (1) The rule that the law of no nation has any extra-territorial effect; (2) The rule that a ship on the high seas is a part of the country to which she belongs; (3) The rule that liability for a tort is governed by the lex loci delicti.

The Supreme Court of the United States has reached in its recent decision an entirely different conclusion than Judge Holt, the Court of final appeal holding that the owner of a British vessel can legally maintain such proceedings under American law in case of disaster upon the high seas where only that vessel is concerned, although there are claimants of many different nationalities; and further ruling that this right of limitation exists where there is nothing before the American Court to show what, if any, is the British law, touching the owner’s liability for the disaster, as well as where it affirmatively appears in such a case that the British law makes a provision for limitation of liability on terms and conditions different from those afforded by the American statutes.

In consequence of these views it was decided that the Courts of the United States will in such proceedings to limit the owner’s liability, enforce the American law and will not enforce the law of Great Britain.

(To be continued in Part III of George Whitelock’s Response to Mellor.)

George Whitelock's Response to Mellor - Part I

2009-06-09T00:27:00.000-07:00

In Oceanic Steam Navigation Company, Limited, as Owner of the Steamship Titanic v. Mellor, the Supreme Court answered the following three questions certified to the Court by the United States Court of Appeals for the Second Circuit – 1) whether an owner of a vessel of British nationality, involved in a collision that gave rise to claimants of many different nationalities, was entitled to maintain a proceeding to limit its liability, 2) whether the owner was able to maintain such a proceeding in the United States if the law of the foreign country to which the vessel belonged made provision for limitation upon different terms, and 3) if the answer to the second question was in the affirmative, whether the courts of the United States enforced the law of the United States or of the foreign country. The Supreme Court answered “yes” to the first two questions. Regarding the third question, the Court answered that the laws of the United States were to be enforced because limitation of the owner’s liability was considered to be remedial in nature.

Oceanic Steam Navigation Company, Limited, as Owner of the Steamship Titanic v. Mellor, 233 U.S. 718 (1914).

In upcoming blog entries, beginning with this one, I’ll transcribe George Whitelock’s response to the decision, first published in the American Law Review in 1915. George Whitelock served as Chairman of the Special Committee to Present Bills to Congress Relating to Courts of Admiralty. (I’ll be transcribing one of the Committee’s recommendations in an upcoming blog entry.)

George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).

Damages For Death By Negligence At Sea – The Titanic

A recent decision of the Supreme Court of the United States (May, 1914) concerning the loss of the Titanic (233 U.S. 718) induces an extension of my remarks on recovery of damages for death by negligence at sea submitted to the International Law Association six years ago. The profound and universal interest in that awful tragedy is the justification for additional comment.

It will be recalled that the existing law of the United States confers no right of civil recovery for loss of life by negligence on the high seas. Derived from the common law of England, the archaic principle that there can be no pecuniary recompense for the death of a human being still prevails, unless abrogated by statute, in all jurisdictions in which that system of law is operative. Decisions by the United States Supreme Court in 1907 and 1908 caused a statement of my views on such damages to the meeting at Buda-Pesth [sic]. The cases in point were The Hamilton (207 U.S. 398), an American steamer, and La Bourgogne (210 U.S. 95), a French vessel. Each case arose out of a surrender by the shipowner of the remains of his property after collision, together with the freight pending, the purpose of the suits being a limitation of the shipowner’s liability under the provisions of the Act of 1851 of the American Congress. These decisions were a definite advance in the application of extra-territorial law to extra-territorial marine torts. But death claimants having been merely admitted to participation in funds voluntarily paid into Court by shipowners under statutory proceedings to limit their liability, the cases are not authority for the maintenance of direct suit to recover for death by negligence at sea.

Litigation in America concerning the loss of the Titanic on April 14, 1912, has now assumed the same form as the litigation concerning The Hamilton and the litigation concerning La Bourgogne, in which the above mentioned decisions were respectively rendered. The Oceanic Steam Navigation Company, Limited, owner of the Titanic, and a British corporation, has undertaken by petition in the American admiralty to limit its liability under American law to $91, 805.54, an amount representing the aggregate of salved property and freight pending, the claims asserted against the Company in actions for loss of life and personal injuries in the Courts of America running into the millions. By the Company’s own petition it is asserted that the steamship Titanic was a total loss, and that nothing was saved from the wreck except 13 lifeboats, together with their equipment, and one collapsible boat, which was subsequently picked up by the steamship Oceanic and brought to New York.

(To be continued in Part II of George Whitelock’s Response to Mellor)

So Many (Valid) Interests . . . So Little Time

2009-05-31T20:58:00.000-07:00

Below, you’ll find a link to the transcript of the hearing held before the Committee on Merchant Marine and Fisheries, held on October 29, 1985, on the issue of the R.M.S. Titanic Memorial Act. I found it interesting that the chairman felt the need to hold a separate hearing due to the fact that the wreck of the Titanic was of “ . . . such unique significance as to merit its own hearing.” The Committee heard arguments from a variety of people, both “pro-salvage” and “anti-salvage”. Among the persons testifying were Dr. Robert Ballard who, along with scientists and engineers on a joint expedition which included the United States and France, discovered the wreck in 1985; Jon Hollis of the Titanic Historical Society, Mrs. Louis Pope (survivor), Jack Grimm, William B.F. Ryan, John P. Lee, Nancy Foster (NOAA), Brian J. Hoyle (U.S. Dept. of State), and Frank L. Wiswall, Jr. (admiralty attorney). (Also included in the transcript is a rather lengthy statement by Captain W.F. Searle, Jr., USN (Retired), Chairman, Searle Consultants, Ltd., which I have not read.) It’s a bit dry in places, depending on your interests, but an interesting read overall.

Dr. Ballard’s testimony focused on the research that led to the development of the instruments/instrument systems that were used in locating the wreck, his initial focus when engaging in underwater exploration, the difficulties one faces when exploring the deep sea, the technology utilized to find the wreck, strategy used when searching for the wreck, how the effort was funded, the scientific importance of the discovery of the wreck, and the effect the Titanic has had on him personally. He also talked about the first passes over the ship, which was interesting. In his statement, he makes clear his feelings that the wreck should not be salvaged (although he is in favor of the recovery of artifacts outside the hull of the ship), gives credit to the French for their contributions, and suggests that it is France that should be the first nation approached in establishing an international agreement with other nations concerning the Titanic, among other suggestions.

Jon Hollis begins by presenting the history of the Titanic Historical Society, benefits to members, its goals, and the number and variety of projects in which it is involved. Mr. Hollis considers the site a graveyard, and asks on behalf of the Titanic Historical Society that the Committee decree the site a memorial site. He presented to the committee a number of letters from a commercial salvager who, despite being a salvager, feels that the Titanic should not be salvaged, as well as letters from noted marine authors and maritime artifact collectors and sellers, and survivors and families of victims. (Letters from Peter Gimbel, Joan and Ted Hindmarsh, Robert Cambrola, George Thomas – survivor, Marilyn Powers for Caroline Horvath – survivor, John Malcolm Brinnin, and Becky McElroy are included in the transcript.) He suggests that an amendment be added to the bill to prevent the commercial sale of any artifact retrieved from the wreck site, as well as the retrieval of artifacts for personal collection or gain. He asks how one would feel if it were their relative who had died in the sinking, which I found to be quite thought provoking and an interesting read.

Mrs. Louis Pope, a survivor of the sinking from Milwaukee, Wisconsin, testified next. She was four years old at the time of the sinking, and what she knows of it is what her mother told her. All she remembers was the cotton blanket and the shoes on her feet. Her testimony is very short, but interesting nonetheless.

Jack Grimm testified next. Grimm, along with his associates, were in favor of the bill with the exception of one part – that is the portion of the bill restricting access to the wreck without prior government approval. Grimm begins his testimony by talking about his contribution to ocean sciences and the government. He also talked a bit about his trips to the wreck site, which was interesting.

William B.F. Ryan, who is an associate professor at Columbia University and who has worked closely with Grimm, testified as to the activities of the Texas corporations with regard to the Titanic, and pointed out that they had paid careful attention to the legal jurisdictional issues involved. In his report, he questions whether a bill of Congress enacted into law is “ . . . the appropriate vehicle for establishment of a sanctuary status.” He gives a number of reasons for this argument that are worth reading. He also talks in some detail about the three expeditions to the wreck site, taking place in 1980, 1981, and 1983. There is quite a bit more information in his statement, which I have not yet read in its entirety, as it’s quite lengthy, and I simply haven’t had the time.

John. P. Lee, Jack Grimm’s attorney, testified that they were concerned that, after all the time and money they had invested up to this point, they would be limited or restricted in what they consider their right to explore and do research on Titanic, given that it is laying in international waters and, in his opinion, outside the jurisdiction of the United States. They are also concerned with the fact that people from the United States will be prohibited from going to the wreck site while those from other nations go down to the wreck site and perform research and possible salvage activities.

I think it’s important to note that, in addressing Mr. Lee, the chairman made it clear that the legislation would not be binding until it was also implemented by the other nations involved. He made it clear that an international agreement was called for, and there was quite a bit of discussion on this.

Nancy Foster (NOAA) was the next to testify, and focused her attention on the NOAA’s experience in protecting shipwrecks.

Brian J. Hoyle, of the U.S. Departement of State testified next, emphasizing the importance of working with other nations to reach the goals set out. He also spoke about Canada and jurisdictional issues, which I found interesting, and that the administration agrees with Grimm’s concern over regulation, but understands the need for basic regulation.

Frank L. Wiswall, Jr., an admiralty attorney, then testified. Because it was the end of the day, most of his testimony was entered by way of his written statement. He pointed out that, currently, the only law in the United States that applied to the wreck was admiralty law. He recommends the International Maritime Organzation as an appropriate forum for negotiation (among others such as UNESCO and the General Assemby of the United Nations) and the main purpose of his testimony is to encourage the Committee to do so. In fact, he points out, the International Maritime Organization can be traced directly to the disaster. His written statement is filled with information on SOLAS and is an interesting read.

Although he didn’t testify, Dr. Robert L. Scheina, a U.S. Coast Guard Historian with the U.S. Coast Guard, submitted testimony by way of a written statement. In it, he talks about the extent to which the sinking influenced maritime legislation and regulation. He talks about the International Ice Patrol as well. It’s a bit much to summarize, but worth the read as it contains a lot of good information.

Rear Admiral John B. Mooney, USN, Chief of Naval Research, also submitted a prepared statement focusing on the Navy’s role in the discovery of the Titanic. Again, it’s a bit much to summarize, but worth reading.

Also worth a look is a statement prepared by Charles Ira Sachs, of the Oceanic Navigation Research Society, and a statement prepared by Fay Coutts Blettner, whose father, grandmother, and uncle were survivors of the sinking.

http://www.gc.noaa.gov/documents/hr3272-house_merchant_hearing.pdf

This Marriage Is Sunk

2009-05-26T21:45:00.000-07:00

I thought I’d begin this blog by summarizing a case I find rather amusing, brought to us courtesy of the Court of Appeals of Ohio, First Appellate District, Hamilton County. It seems Ms. Nadine Proctor made an attempt to use the sinking as a means to having her divorce decree vacated, but the court wasn’t buying it.

Percy and Nadine Procter were married in London in 1909. Percy subsequently brought a petition for divorce against Nadine, personal service was made on her, after which she filed an answer admitting the marriage, but denying all other allegations of the petition. A decree of divorce was granted to Percy after the case was tried in the common pleas court in Nadine’s absence. The Court also found that, by reason of a written agreement entered into by Nadine and Percy, she was not entitled to any alimony. Approximately seven months after the decree was entered (which was on June 8, 1912), Nadine filed a petition to vacate the decree (on January 4, 1913, to be exact).

In her petition to vacate the decree, Nadine claimed she was unable to attend the trial due to “unavoidable casualty and misfortune” because it was necessary for her to return to Europe after the summons was served to attend to business matters. Further, she claimed she made arrangements with attorneys, whom she didn’t name, to see to it that the case was not tried until her return. When she received notice of the upcoming trial, Nadine claimed she left Europe on Titanic.

After Titanic hit the iceberg, Nadine claimed she became severely injured while being lowered into a lifeboat, and that she was so shocked by being out in the middle of the ocean, that she became unconscious and remained so until waking up in a hospital in London, where she remained until traveling, on May 12, to Russia where her mother lived. She then sailed for the United States and arrived on August 15, 1912, aboard the steamship President Lincoln to find that a decree had been entered in her case the preceding June.

Nadine was relying on a section of the General Code, which empowers the common pleas court to vacate or modify a judgment or order “for unavoidable casualty or misfortune, preventing the party from prosecuting or defending.” The court points out the code authorizes the setting aside of a judgment for unavoidable casualty or misfortune only when it is of such a character as prevents the party from prosecuting or defending, not when it only prevents a person from attending a trial in person.

The court notes she could have given her deposition while in London in May of 1912 and filed it in the common please court of Hamilton County before the decree was rendered on June 8, 1912, because she was able to travel from London to St. Petersburg during that time. They also point out that it would be inconceivable for the court to have denied her a delay if she had, indeed, been a survivor of the sinking and had asked for one. They also note she had failed to employ counsel after summons had been served on her, among other things. Finally, the court wonders the following –

“If it be true as she avers, and the truth of the averment must be assumed for the purposes of this case, that she was a passenger on the steamship Titanic at the time it collided with an iceberg, then the query naturally arises how she came to be thereafter in a hospital in London, in view of what is said to be well-known current history that the survivors of that shipwreck were picked up at sea by a steamer which landed them at an American port.”

Hmmmmm . . .

Procter v. Procter, 245 Ohio App., 245 (1915).

About This Blog . . . continued

2009-05-24T19:15:00.000-07:00

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