Cover Story: The Battle for the R.M.S. TItanic
|by David G. Concannon||
Summer 1999, Vol. 62, No. 2
The story of the great ship's sinking and its discovery have become a staple of modern history. Now exploration of the Titanic is making legal history. On March 24, 1999, the United States Court of Appeals for the Fourth Circuit resolved a seven-year legal battle over access to the Titanic by reversing a United States District Court order indefinitely prohibiting a British tour company, several American citizens, foreign nationals and "all the world" from visiting the Titanic for any purpose, including photography, exploration and scientific study.
The appellate court's decision in R.M.S. Titanic, Inc. v. Deep Ocean Expeditions1, resolved a number of significant legal issues that directly affect the exploration and recovery of historic shipwrecks around the world, including whether U.S. courts can properly assert jurisdiction over shipwrecks located in international waters, whether a federal judge may issue an injunction prohibiting U.S. citizens and foreign nationals from exploring shipwrecks on the high seas, and whether traditional salvage rights include intellectual property rights. The appellate court's decision should pave the way for additional exploration of historic shipwrecks lost in the deep ocean.
On September 1, 1985, Dr. Robert Ballard of the Woods Hole Oceanographic Institution discovered the Titanic using sonar and photographic equipment towed behind the U.S. Navy research vessel Knorr. The wreck was discovered lying in two sections, separated by a large debris field, at a depth of 12,500 feet. The expedition produced a photo mosaic and survey of the wreck site, documenting for the first time the remains of the crow's nest where lookout Frederick Fleet shouted "Iceberg, Right Ahead!" as well as the boat deck, lifeboat davits and the remains of the bridge where Captain Edward J. Smith was last seen before the ship's sinking.
As news of the Titanic's discovery spread around the world, a deep rift quickly developed between members of the 1985 expedition. Three observers from The Institute of France for the Research and Exploration of the Sea (IFREMER) were on board the Knorr when the Titanic was discovered. The French believed that the Americans had stolen the credit for discovering the Titanic and they became increasingly bitter at the attention Ballard received from media. This animosity would deepen, stoking the flames of controversy over whether to salvage the Titanic or leave it undisturbed as a monument to the victims of its tragic sinking.
Ballard returned to the Titanic in 1986 to photograph the wreck using the deep diving submersible Alvin and the remotely operated vehicle Jason Junior. The expedition conducted ten dives and took more than 57,000 photographs of the wreck site, including many that captured the world's imagination. Particularly arresting was the ghostly image of a chandelier hanging forlornly from the ceiling inside the wreck. On his final dive to the Titanic, Ballard placed a bronze plaque on one of the ship's bow capstans commemorating the efforts of those who discovered the Titanic and requesting that "any who may come hereafter leave undisturbed this ship and her contents as a memorial to deep water exploration."
Ballard never permanently recovered any artifacts from the Titanic, nor asserted a claim to the wreck in court. Instead, he worked to promote an international agreement to protect the Titanic from commercial salvage and to obtain passage of the R.M.S. Titanic Maritime Memorial Act of 1986. 2 The Act expresses the sense of Congress that "limited exploration activities concerning the R.M.S. Titanic should continue for the purpose of enhancing public knowledge of its scientific, cultural, and historical significance." 3 The Act also proscribes the assertion of jurisdiction by the United States over the Titanic wreck site because it is located in international waters. 4
The French did not share Ballard's sentiment that the Titanic should remain undisturbed. In August 1987, IFREMER and an American company, Titanic Ventures, L.P., salvaged the first artifacts from the Titanic. Using the submersible Nautile, the expedition conducted thirty-two dives and recovered 1,800 artifacts, including the crow's nest bell rung by lookout Frederick Fleet before the ship's collision with the iceberg, Captain Smith's aluminum megaphone and lapis lazuli china from the first-class dining room. The expedition also recovered a black leather bag containing $62,000 in currency, 300 gold coins and several items of precious jewelry. To the members of the 1987 expedition, the recovery of artifacts symbolized their effort to share the tragedy of the Titanic's sinking with the world. To many others, it symbolized a desecration of the grave of 1,500 souls. The expedition sailed into a storm of international criticism--the London Daily Express called its participants "Gallic Ghouls of the Deep," The Washington Post termed it "Vandalism for Profit," and Discover magazine proclaimed "We All Loot in a Yellow Submarine."
In June 1991, a joint Canadian-Russian-American expedition used the Russian research vessel Akademik Mstislav Keldysh and its advanced deep water submersibles, Mir I and Mir II, to study the Titanic's marine environment and film the IMAX documentary Titanica. The expedition recovered steel samples from the debris field for metallurgical testing that subsequently revealed that the steel used to make the Titanic was more brittle than that used today and a loss of its ductility in the cold North Atlantic waters most likely contributed to the damage that led to the ship's sinking. The expedition shot 40,000 feet of 70 mm IMAX film, documented twenty-eight species of animals and fish and collected hundreds of samples of fish, rock, bacteria, specialized coral and core samples from the deep ocean floor. Although the 1991 IMAX expedition did not recover any artifacts, it represented a threat to the salvors? ability to control access to the wreck. The lawyers were about to be engaged.
In 1992, a would-be salvor, Marex Titanic, Inc. (Marex), filed a complaint in the U.S. District Court for the Eastern District of Virginia, Norfolk Division, seeking the exclusive right to salvage artifacts from the Titanic. On August 12, 1992, the court asserted jurisdiction over the Titanic, issued a warrant to "arrest" the shipwreck and ordered the U.S. Marshal to take possession of any artifacts recovered from the Titanic until the court made a determination of ownership. 5 Marex, however, had never performed any salvage operations at the Titanic site. As soon as Titanic Ventures learned of Marex's action, it intervened to assert a superior salvage claim and prohibit Marex from engaging in salvage operations. 6 After a hearing to determine which party had exclusive salvage rights, the court sided with Titanic Ventures and entered an order vacating the August 12, 1992 order. 7 The court's order, however, was later reversed by the Fourth Circuit on technical grounds, which left the question of salvage rights unresolved.
On August 26, 1993, R.M.S. Titanic, Inc. (RMST), the successor in interest to Titanic Ventures, filed a complaint in Norfolk asking the court to declare it to be the sole and exclusive owner of any items salvaged from the Titanic. 8 Relying on the presence of a single wine decanter recovered from the Titanic in the courtroom, U.S. District Judge J. Calvitt Clarke Jr. asserted in rem jurisdiction over the Titanic and the wreck site. 9 The court ordered the U.S. Marshal to arrest the Titanic and the artifacts already recovered pursuant to Supplemental Admiralty Rule C(2), and RMST was appointed substitute custodian of the wreck, wreck site and artifacts recovered, in lieu of the U.S. Marshal. 10
IFREMER and RMST conducted additional salvage expeditions in 1993 and 1994. The salvors recovered thousands of artifacts from the Titanic that were immediately transported to France for restoration. The artifacts were eventually displayed at museum exhibitions in Paris, Stockholm, Oslo, Greenwich, England and St. Petersburg, Florida.
On June 7, 1994, the court entered an order awarding RMST salvor in possession status over the Titanic. 11 Even though salvage activities were ongoing, the court declared that RMST "is the true, sole and exclusive owner of any items salvaged from the wreck in the past, and so long as [RMST] remains salvor in possession, items salvaged in the future, and is entitled to all salvage rights ..." 12 Finally, the court ordered that "default judgment is entered against all potential claimants who have not yet filed claims [to the Titanic or its artifacts] and such claims are therefore barred and precluded so long as [RMST] remains salvor in possession."13
In 1995, RMST learned that Hollywood director James Cameron intended to use the Keldysh and Mir submersibles to conduct location filming of the wreck for his upcoming movie, Titanic. RMST immediately threatened to pursue litigation on the grounds that filming the wreck would violate RMST's rights as salvor in possession. Cameron filmed the Titanic anyway, without seeking permission or a license. His underwater photographic team captured the Titanic in its advanced state of decay and later won an Oscar for cinematography. RMST never fulfilled its threat to pursue litigation. It later explained that it determined not to seek injunctive relief because Cameron only intended to shoot "secondary" photography and not to recover artifacts. 14
RMST did seek injunctive relief in 1996 when John Joslyn, an RMST shareholder, expressed an intention to visit the Titanic to photograph it. 15 On August 9, 1996, Judge Clarke issued an injunction prohibiting him from photographing the wreck. 16
Additionally, on August 13, 1996, Judge Clarke unilaterally entered an amended order expanding RMST's rights as salvor in possession to include the exclusive right to control access to the Titanic "for any purpose," and to control photography of the wreck and wreck site. The court explained that it made this unprecedented expansion of traditional salvage rights because RMST was unable to recoup its salvage expenses through the sale of artifacts and, therefore, it was entitled to the exclusive right to market images of the Titanic as a means of making a profit. 17 The court was apparently unaware of RMST's charter agreement with IFREMER that permitted the sale of Titanic artifacts as a "collection" to "any entity that will make them available for exhibition to the public." The court also failed to recognize that the charter agreement excluded gold, jewelry and currency from the definition of "artifacts," and that RMST had already pledged the contents of the black bag recovered in 1987 as collateral for various loans. More incredibly, the court explained that its decision to award exclusive photographic rights was based largely on its finding that RMST located the Titanic. 18
Joslyn appealed the August 13, 1996 injunction to the Fourth Circuit, but the appeal was dismissed before a hearing on the merits pursuant to a stipulation filed by the parties. The court's injunction, however, would eventually form the basis of the current legal dispute over public access to the wreck.
In 1996, RMST and IFREMER returned to the Titanic to raise a large section of the hull dubbed the "Big Piece." After the salvors finished attaching lift bags to the Big Piece using nylon straps, it rose to within 200 feet of the surface. Unfortunately, the salvors misjudged a crucial stage of the recovery process--they did not have divers or equipment capable of attaching stronger steel chains to the Big Piece at a depth of 200 feet. Consequently, the salvors watched helplessly as the lift bags snapped their couplings and the Big Piece sank to the bottom.
The Current Dispute
Two competing expeditions to the Titanic were planned for the month of August 1998. RMST planned to return to the wreck to recover the Big Piece and additional artifacts, and produce the first live television broadcast from the wreck itself. The P.P. Shirshov Institute of Oceanology, which owns the Keldysh and Mir submersibles, planned to return to the Titanic to conduct additional scientific experiments. The scientific expedition was to be financed by a British tour company, Deep Ocean Expeditions (DOE), which proposed to charge an international group of passengers $32,500 each to dive to the wreck and participate in the scientific research. Each dive on the expedition, which was promoted as "Operation Titanic," would be filmed and passengers would receive videotapes of their dives to keep as mementos. DOE and the Shirshov Institute pledged not to recover any artifacts or disturb the Titanic, but they did not seek RMST's permission to visit the wreck. This perceived slight touched off another round of litigation.
When RMST learned of Operation Titanic in April, it was engaged in negotiations with NBC and the Discovery Channel to license the exclusive television broadcast rights to its 1998 expedition for $6 million. RMST wasted little time before filing a motion for a preliminary injunction in its in rem action against the Titanic. RMST's motion requested that any person or entity mentioned in Operation Titanic's promotional material be prohibited from visiting or photographing the Titanic. RMST mailed its motion to most of Operation Titanic's participants. It did not, however, initiate legal proceedings against them by filing a complaint. They were never served with process, and many, if not all, of them lacked any contact with the forum or even the United States.
After RMST filed its motion, Christopher Haver, a passenger who had paid a deposit to participate in Operation Titanic, filed a separate action seeking a declaratory judgment that viewing the Titanic would not injure RMST. The court subsequently consolidated Haver's declaratory judgment action into RMST's in rem proceeding against the shipwreck and denied Haver's requests for discovery on the grounds that it was unnecessary for the court to consider factual evidence in determining the issues raised by the parties.
On May 27, 1998, the court held a one-sided hearing in the consolidated actions. Not surprisingly, none of the individuals named in RMST's motion for a preliminary injunction appeared at the hearing. Despite the court's prior statement that it would not consider factual evidence at the hearing, the court immediately permitted RMST to call its president, George Tulloch, as a witness to testify about the irreparable injury RMST would suffer if Operation Titanic proceeded. The court would not permit Haver's counsel to cross-examine Tulloch on the discovery issue or establish that RMST had nothing to do with discovering the Titanic. Instead, the court described its finding that RMST located the Titanic as "the law of the case," stating: "You are a little bit too late, because I?ve decided to the contrary."
On June 23, 1998, Judge Clarke issued a preliminary injunction prohibiting all of the individuals and entities identified in RMST's motion from taking personal photographs of the Titanic or visiting the Titanic for any reason. 19 The injunction prohibited the expedition participants and "all the world" from entering a 168-square-mile area of the high seas encompassing the Titanic for an indefinite period of time. Judge Clarke reaffirmed that his decision to award RMST the exclusive right to control access to and photography of the Titanic was based on his finding that RMST located the Titanic and was entitled to expanded salvage rights because it had agreed not to sell artifacts. He did not acknowledge any of the prior scientific/photographic expeditions to the Titanic, nor did he consider the multiple documentaries and films that have featured the Titanic or the competing interests of the scientific community. Instead, Judge Clarke criticized the non-parties for failing to appear at the May 27, 1998 hearing and belittled the harm they would suffer if they were enjoined from visiting the Titanic, referring to it as "nostalgic," "minimal," "sentimental" and "speculative." 20 Indeed, Judge Clarke seemed annoyed that he was even forced to consider the non-parties? rights at all, stating, "Even comparing RMST?s harm with the quixotic harm of a band of adventure tourists borders on irrational." 21 In one particularly memorable finding, Judge Clarke rationalized that Operation Titanic?s participants would not suffer any harm because they could each save $32,500 by staying home to watch RMST's live television broadcast from the Titanic. 22
Haver immediately filed a notice of appeal to the Fourth Circuit that was later joined by DOE. Several prominent organizations filed amicus curiae briefs urging the reversal of the injunction, including The Explorers Club, whose members discovered the Titanic and supplied the plaque that Ballard placed on the ship's bow in 1986; the Advisory Council on Underwater Archaeology; and Columbus-America Discovery Group, the successful salvor of the S.S. Central America. Nobody filed amicus curiae briefs on behalf of RMST.
Despite the injunction, both expeditions went forward in 1998. In August, RMST succeeded in raising the Big Piece and presenting the first live television broadcast from the Titanic wreck. A few days after RMST left the wreck site, the Keldysh arrived with a team of scientists and a dozen passengers. On September 9, 1998, the passengers dived to the Titanic, in defiance of the district court's June 23, 1998 injunction. A week later, RMST filed a notice requesting that Judge Clarke hold the expedition participants in criminal contempt of court for violating his injunction.
The Fourth Circuit heard oral arguments in Richmond, Virginia on October 29, 1998. An undercurrent of tension ran through the arguments, as each side was bombarded with questions exposing strengths and weaknesses in their positions. The fact that an expedition had gone forward despite the injunction overshadowed the proceedings, as it was clear that expeditions to the Titanic would continue with or without the court's permission.
On March 24, 1999, the Fourth Circuit issued its decision affirming the district court's order in part, reversing in part and remanding with instructions to the district court to modify its order. 23 The Fourth Circuit rejected RMST's argument that an injunction is valid against a non-party who merely received a copy of a motion for a preliminary injunction in the mail, as opposed to an actual party who is named in a complaint, served with process and enjoined after an opportunity to appear and be heard. Therefore, the appellate court reversed the injunction because the district court lacked personal jurisdiction over the participants in Operation Titanic.
The court also rejected RMST?s argument that it deserved the exclusive right to control access to and photography of the Titanic as a "bonus" for agreeing not to sell artifacts. The court found that no precedent existed to support such a merger of intellectual property rights and traditional salvage rights. Indeed, the court found that such a merger was contrary to the purpose of salvage law, which is to recover ships lost at sea, because it would encourage salvors to leave ships in place and collect revenue by licensing access and photographic rights.
On the other hand, the court affirmed RMST's right to recover artifacts without direct interference from others while it is on site. The court also decided that a U.S. court can properly assert jurisdiction over a shipwreck located in international waters, finding that the precedent for such an assertion exists in the 300-year history of international maritime law. The court specifically rejected Haver's argument that the R.M.S. Titanic Memorial Act strips the federal court of jurisdiction over the wreck site.
Future expeditions to the Titanic are likely to continue, although infrequently. Because the Titanic sits at such an extreme depth, it is impossible to reach the wreck without using extraordinarily sophisticated and expensive underwater equipment. Currently, there are only four submersibles in the world that can reach the wreck: Nautile, Mir I, Mir II and Shinkai 6500. It is prohibitively expensive to transport the Japanese Shinkai 6500 from Asia to the North Atlantic, and therefore not commercially viable. Consequently, any future expeditions are contingent upon the availability of the Nautile, Mir I and Mir II submersibles at reasonable rates.
RMST makes no assurance that it will ever return to the Titanic. Its salvage expeditions historically have been conditioned upon the availability of the Nautile, which it cannot guarantee, and its ability to license photography, which it can no longer do. IFREMER, which operates the Nautile, will not take travelers to the Titanic, although it has retained the right to take competing salvors so long as it provides RMST with a right of first refusal. Finally, scientific and photographic expeditions are likely to continue utilizing the Mir I and Mir II submersibles. In fact, tour companies began marketing 1999 expeditions using the Russian submersibles within days of the Fourth Circuit?s decision.
Since its discovery, images of the Titanic have appeared in documentaries, books, magazines and one of the most successful films of all time. More than 5,000 artifacts have been recovered from the wreck site and seen by millions at phenomenally successful exhibitions around the world. The Fourth Circuit has decided that the ocean is large enough to accommodate continued multiple uses of the Titanic, including scientific study, photography and the recovery of artifacts. It is fitting that the Titanic, which was the largest man-made movable object on Earth when it sank, has become a legal leviathan that has had a dramatic impact on the laws of salvage, international comity, intellectual property and due process.