R.M.S. Titanic v. The Wrecked and Abandoned Vessel (4th Cir. 2002)

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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R.M.S. TITANIC, INCORPORATED,
successor in interest to Titanic
Ventures, limited partnership,
Plaintiff-Appellant,

THE WRECKED AND ABANDONED
VESSEL, its engines, tackle apparel,
appurtenances, cargo, etc., located
within one (1) nautical mile of a
point located at 41o 43È 32 North
Latitude and 49o 56È 49 West
Longitude, believed to be the
R.M.S. Titanic, in rem; ROBERT C.
BLUMBERG, Attorney-Advisor, Office No. 01-2227
of Oceans Affairs, United States
Department of State; OLE VARMER,
Attorney-Advisor, National Oceanic
and Atmospheric Administration,
United States Department of
Commerce; MADELEINE K. ALBRIGHT,
Secretary of State, United States
Department of State; WILLIAM M.
DALEY, Secretary of Commerce,
United States Department of
Commerce; D. JAMES BAKER,
Administrator, National Oceanic and
Atmospheric Administration, United
States Department of Commerce,
Defendants,
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LIVERPOOL AND LONDON STEAMSHIP
PROTECTION AND INDEMNITY
ASSOCIATION, LIMITED,
Claimant,

DEEP OCEAN EXPEDITIONS;
WILDWINGS WORLDWIDE TRAVEL;
BAKERS WORLD TRAVEL; QUARK
EXPEDITIONS, INCORPORATED; MIKE
MCDOWELL; RALPH WHITE; DON
WALSH, Ph.D.; ALFRED S. MCLAREN,

Ph.D.; CHRISTOPHER S. HAVER; R/V
AKADEMIK MSTISLAV KELDYSH;
UNITED STATES OF AMERICA;
BLACKHAWK TELEVISION,
Parties in Interest,

JOHN A. JOSLYN,
Movant.

UNIVERSITY OF VIRGINIA APPELLATE
LITIGATION CLINIC; DAVID SHUTTLE,
Amici Curiae.
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Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge;
J. Calvitt Clarke, Jr., Senior District Judge.
(CA-93-902-N)

Argued: February 25, 2002

Decided: April 12, 2002

Before WILKINS, NIEMEYER, and KING, Circuit Judges.

__________________________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkins and Judge King joined.

COUNSEL

ARGUED: Mark Steven Davis, CARR & PORTER, L.L.C., Ports-
mouth, Virginia, for Appellant. Neal Lawrence Walters, Appellate
Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Amicus Curiae Clinic. ON BRIEF:
Robert C. Scaro, Jr., Mark A. Stallings, CARR & PORTER, L.L.C.,
Portsmouth, Virginia, for Appellant. Craig A. Markham, ELDERKIN,
MARTIN, KELLY & MESSINA, Erie, Pennsylvania, for Amicus
Curiae Shuttle.

__________________________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

R.M.S. Titanic, Inc. ("RMST"), as salvor-in-possession of the sub-
merged wreck of the R.M.S. Titanic and the artifacts salvaged from
it, challenges the district court's orders of September 26, 2001, and
October 19, 2001. These orders were entered after the court discov-
ered RMST's plans to sell some of the artifacts and confirmed that the
court's earlier orders prohibiting the sale of artifacts "were proper and
were necessary when entered." RMST contends that, because in 1994
it was granted absolute title to all the artifacts it retrieved, the district
court cannot now restrict its right, as owner of the artifacts, to sell
them at its discretion.

Finding that RMST's arguments are grounded on a fundamental
misunderstanding of its role as salvor-in-possession, we reject its
arguments and affirm the orders of the district court.

In 1985, a joint American-French expedition discovered the wreck
of the Titanic in the North Atlantic Ocean in international waters.
Two years later, Titanic Ventures, a limited partnership, explored the
wreck, bringing up approximately 1,800 artifacts. Thereafter, it sold
its interests in the salvage operations and the artifacts to RMST.

In 1993, RMST commenced this in rem action against the Titanic
to become its salvor-in-possession. In its complaint, RMST requested,
among other things, that, under the law of finds, it be declared "the
true, sole and exclusive owner of any items salvaged from the wreck"
or, alternatively, that, under salvage law, it be "awarded a liberal sal-
vage award . . . as may be determined by this Court." Acting under
principles of salvage law and consistent with the inchoate lien that
RMST obtained as salvor, the district court exercised in rem jurisdic-
tion and issued a warrant directing the United States Marshal to arrest
the wreck and all artifacts already salvaged and yet to be salvaged.
Simultaneously, it ordered that RMST be substituted for the Marshal
as the custodian of the wreck, the wreck site, and the artifacts. Notice
of the proceedings was duly published. Following a claim made by
an insurance company and settlement of that claim, the court
approved the settlement and issued an order, dated June 7, 1994,
declaring RMST salvor-in-possession. In its order, the court stated:

The Court FINDS AND ORDERS that R.M.S. Titanic, Inc.
is the salvor-in-possession of the wreck . . . and that R.M.S.
Titanic, Inc. is the true, sole and exclusive owner of any
items salvaged from the wreck of the defendant vessel in the
past and, so long as R.M.S. Titanic, Inc. remains salvor-in-
possession, items salvaged in the future, and is entitled to all
salvage rights . . . .

During the course of the hearing leading to this order, the district
court confirmed its understanding that it was RMST's "intention to
display these artifacts and to try to get [its] money back out of admis-
sions to the display rather than selling them off." Counsel for RMST
affirmed that understanding and explained further "that the process
[of] going forward with the exhibition of the artifacts and not sell[ing
them] continues and . . . that is the position of the salvors in this case,
that the 1987 artifacts and the 1993 artifacts will not be sold, but
rather will be exhibited."

Two years after entry of the June 1994 order appointing RMST
salvor-in-possession, John A. Joslyn filed a motion in this action
requesting that the district court rescind its June 1994 order naming
RMST salvor-in-possession because RMST had failed to salvage the
Titanic diligently and lacked the financial capacity to undertake future

salvage operations. The district court rejected Joslyn's claims and
denied his motion. But in doing so, it ordered RMST to make more
frequent reports to the court about its salvage efforts. R.M.S. Titanic,
Inc. v. Wrecked & Abandoned Vessel, the R.M.S. Titanic, 924 F.
Supp. 714, 724 (E.D. Va. 1996). In addition, the district court entered
a preliminary injunction prohibiting Joslyn, as well as anyone else,
from visiting the site of the wreck and from photographing it. R.M.S.
Titanic, Inc. v. Wrecked & Abandoned Vessel, No. 2:93CV902, 1996
WL 650135 (E.D. Va. Aug. 13, 1996). The court reasoned that
because RMST was "not selling artifacts like traditional salvors, it
must be given the rights to other means of obtaining income." Id. at
*2.

In 1998, when a British Virgin Islands corporation headquartered
on the Isle of Man, Great Britain, began marketing to the public an
expedition to visit the Titanic wreck, which it called "Operation
Titanic," RMST filed a motion for a more specific injunction to pre-
vent that corporation as well as its principals and customers from vis-
iting and photographing the wreck site. The district court issued an
expanded injunction, enjoining that corporation, as well as its princi-
pals and a named passenger, from visiting a yet more generously
defined site in the North Atlantic and from photographing the wreck.
R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 9 F. Supp. 2d
624, 626 (E.D. Va. 1998). The court reasoned that because RMST
was not selling the artifacts, it needed a stream of income, and the
exclusive photographic and visitation rights would help insure this
income. Id. at 635-36. We reversed that order, concluding that it was
beyond the power of the district court and inconsistent with salvage
law to confer those rights: "Neither prohibition is justified by the law
of salvage or allowed by the law of free navigation on the high seas."
R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 970 (4th Cir. 1999).
RMST maintains that this refusal to give it exclusive visitation and
photographic rights has had a substantial adverse impact on its
income stream and has impaired its ability to finance further salvage
operations.

RMST has continued to conduct salvage operations and to display
the artifacts recovered in order to obtain income. In November 1999,
the management of RMST changed, and the new management articu-
lated a new business plan designed "to maximize shareholder value

while still protecting the archeological and historical value of the
wreck." While the financial strategy of RMST's previous manage-
ment had focused on generating earnings through the exhibition of
artifacts, RMST's new management expanded this strategic plan to
include "the possible disposition of artifacts to increase revenues" and
thereby to maintain its status as salvor-in-possession. But these plans
were undeveloped, and during a hearing in March 2000, the new pres-
ident of RMST testified before the district court that RMST had "no
plans to sell any portion of the collection."

Several months later, however, "it [came] to the attention of the
court that there ha[d] been a change in management in R.M.S.
Titanic, Inc. and that there [was] a concern held by some persons and
organizations that R.M.S. Titanic, Inc. [was] considering disposal of
some artifacts recovered." In response to this information, the district
court issued an order sua sponte, dated July 28, 2000, directing
RMST "not [to] sell or otherwise dispose of any artifacts or any
object recovered from the wreck site and further that it must continue
to treat and preserve any such artifacts and objects recovered from the
wreck site." In its order, the court noted that"[t]his court has contin-
ued R.M.S. Titanic, Inc. as salvor-in-possession of the wreck of the
Titanic from year to year on the understanding that R.M.S. Titanic,
Inc. would treat and preserve all artifacts recovered and would exhibit
them to the public and would not sell or dispose of any of said arti-
facts."

In its periodic report to the court several weeks later, RMST
acknowledged the court's July 2000 order, stating, "RMST notes that
since it had never sold any artifacts or objects recovered from the
Titanic without first advising the Court (i.e. sales of coal and encum-
brance of coins and currencies), and since it had advised the Court
earlier in its July 5, 2000 periodic report that it would not cut into the
wreck, the only new effect of the [July 28] order was the prohibition
on detaching any part of the wreck." Consistent with this position,
RMST did not appeal the district court's July 2000 order prohibiting
the sale or dispersion of the artifacts.

In April 2001, RMST sought a clarification of the July 2000 order
to permit it to sell the coal it had recovered from the wreck. During
the hearing on this issue, RMST broached, for the first time, plans to

form a new foundation which might "explore the acquisition of the
artifact collections at some time in the future." RMST's counsel
explained that the "desire on the part of [RMST] to explore transfer
. . . raise[d] some questions . . . with the [July 2000] order," which
had confirmed the prohibition against selling any artifacts. On the
issue of whether selling coal -- which RMST had already done --
violated the court's orders, counsel explained that coal recovered
from the site was always treated as "organic matter, rather than arti-
facts," and that RMST had always felt free to sell coal. After the court
invited RMST to submit a clarifying order authorizing the sale of
coal, the court reiterated its position about selling artifacts:

You have to remember now that during the whole time that
R.M.S. Titanic has worked with the court, they have always
taken the position that they are not going to sell any arti-
facts, that their purpose in getting them is to get them, pre-
serve them, and put them on display.

Counsel for RMST confirmed the court's understanding, stating,
"That is exactly what has been represented to the court. The company
has never taken the position that it wanted to sell the artifacts." In
accordance with the hearing, the district court signed an order dated
April 30, 2001, modifying the July 28, 2000 order "to reflect the fact
that the Salvor remains free to sell or encumber any coal that it has
recovered or that it might recover in the future from the TITANIC
wreck site." Again, RMST did not appeal this modification of the July
2000 order.

Beginning in July 2001, RMST's gently leaked idea to form a
foundation became concrete, and RMST submitted a supplemental
report to the court, describing the formation of The Titanic Founda-
tion, Inc. and the Foundation's interest in purchasing the artifacts
from RMST. Upon receiving the report, the district court issued an
order, again sua sponte, dated July 31, 2001, reiterating that RMST
could not "convey in any manner any of the R.M.S. Titanic's arti-
facts" until the court had held a full hearing.

That hearing was held on September 24, 2001. The court then
learned in detail about the formation of The Titanic Foundation and
noted that the principals of RMST and The Titanic Foundation were

the same people, observing "so it is really a one man show; is that not
right?" The court noted that this might create irreconcilable conflicts
of interest with respect to the principals' duties to both the public cor-
poration and the nonprofit foundation. Counsel for RMST explained
that the foundation would be able to solicit charitable contributions
which then could be used to purchase the artifacts. Counsel justified
the need for the foundation in part by our decision in Haver, in which
we denied RMST exclusive rights to visit the site and to photograph
the wreck. 171 F.3d at 971. At the hearing, the district court did not
reject the notion that the collection of artifacts as a whole -- rather
than piecemeal -- could possibly be sold pursuant to an acceptable
plan, approved by the court. But counsel then explained a practical
difficulty in having to obtain the court's approval of any such transfer
of artifacts. As counsel explained, approval "puts the company in a
very awkward position in dealing with those who want to acquire col-
lections, in that you have to say to them, well, do your due diligence,
you go out and get your appraisal, you do everything else that you
have to do, and then we as a company will do the things that we have
to do. . . . So it requires opinions, various things that have to be done
for due diligence, and then to the potential acquirer, we will come to
the court and ask for approval of that." After the court explained the
difficulty in foregoing approval, it stated that,"[t]here is no sense in
the court or your taking the time to decide some abstract question. If
you have got some sort of an agreement or deal worked out, submit
that to the court, and the court will say whether or not it approves it."
Following the hearing and apparently out of concern over the possi-
bility that artifacts might be sold, the district court entered another
order, dated September 26, 2001, stating:

The Court FINDS after the September 24, 2001 hearing that
its previous Orders entered in this case, designed to prevent
sales of individual artifacts recovered from the Wreck of
R.M.S. Titanic, were proper and were necessary when
entered.

Two weeks later, RMST appealed that order. And after RMST
appealed the September 26 order, the district court entered another
order dated October 19, 2001, amending the September 26 order,
essentially explaining its position, as well as earlier orders. In its
explanation, the court indicated that it first learned in April 2001 of

the possibility that RMST might convey the collection and recognized
"that circumstances change and it becomes necessary to change plans
and approaches." The court invited further motions on the disposition
of artifacts. RMST appealed this October 19, 2001 order as well.

Because there was no party in opposition to represent the district
court's position, this court asked the University of Virginia School of
Law's Appellate Litigation Clinic to file an amicus brief to serve as
the answering brief. The clinic did so ably, and we have considered
the arguments of both RMST and its counsel as well as counsel from
the clinic.

The amicus appropriately raises the question of whether we have
jurisdiction to review the September 26 and October 19, 2001 orders.
RMST has asserted jurisdiction under 28 U.S.C. S 1292(a)(1) (autho-
rizing appeals of interlocutory orders "granting, continuing, modify-
ing, refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions") and 28 U.S.C. S 1292(a)(3) (authorizing appeals
of interlocutory decrees "determining the rights and liabilities of the
parties to admiralty cases").

The amicus argues that RMST cannot appeal under S 1292(a)(1)
because: (1) RMST consented earlier to the same order of July 28,
2000, see Haitian Refugee Ctr. v. Civiletti, 614 F.2d 92, 93 (5th Cir.
1980); (2) no factual or legal change has occurred to justify appealing
an ongoing injunction which RMST did not earlier appeal, see SEC
v. Suter, 832 F.2d 988, 990 (7th Cir. 1987); and (3) the district court
left open alternative avenues of relief, inviting RMST to submit a for-
mal motion for approval of any new deal. Also challenging jurisdic-
tion under S 1292(a)(3), the amicus argues that Congress limited
interlocutory review in admiralty cases to interlocutory decrees that
determine rights and liabilities, and it did not grant a right to appeal
every interim order. See Pickle v. Char Lee Seafood, Inc., 174 F.3d
444, 448 n.1 (4th Cir. 1999); Evergreen Int'l (USA) Corp. v. Standard
Warehouse, 33 F.3d 420, 425 (4th Cir. 1994).

We agree with the amicus that if RMST is appealing orders under
S 1292(a)(1) that simply clarify or interpret earlier orders that it failed

to appeal, its appeal rights would be forfeited by its failure to appeal
the earlier orders. See, e.g., Major v. Orthopedic Equip. Co., 561 F.2d
1112, 1115 (4th Cir. 1977) (holding that court lacked jurisdiction on
appeal from injunction because the order was "simply an interpreta-
tion" of an earlier order). This principle is based on the notion that the
more recent appealed orders add nothing in substance to earlier orders
left unappealed. If either of the appealed orders, on the other hand,
modifies the substance of an earlier order or extends its duration, the
new order is appealable under S 1292(a)(1). See, e.g., Pickle, 174 F.3d
at 448 (finding appealable an order that denied a party's request for
modification of an injunction); Sierra Club v. Marsh, 907 F.2d 210,
213-14 (1st Cir. 1990) (noting that an order that extends or prolongs
the restraint imposed by an earlier order is appealable). Similarly, if
the factual and legal circumstances applicable to an earlier order
change, the substantive effect of a restated injunction may cause it to
become appealable. See, e.g., Suter, 832 F.2d at 990 (suggesting that
"changes in fact of law since [the injunction's] entry" may justify an
appeal).

The question of jurisdiction in this case is a close one which RMST
could have made easier by filing in the district court a motion to
vacate or modify the July 28, 2000 injunction, based on the new fac-
tual developments. Although RMST filed no such motion, it advances
a persuasive argument that the periodic reports and hearings prior to
the orders appealed in this case provide support for a position that the
circumstances had changed and that, therefore, the September 26 and
October 19, 2001 orders, which were aimed at the new circumstances,
had a new substantive effect.

As RMST accurately points out, the April 2001 periodic report
indicated that two organizations had expressed interest in purchasing
some or all of the Titanic artifacts, The Titanic Foundation and the
Museums and Galleries of Northern Ireland. To acquire information
about the possible arrangements, the court conducted a hearing on
September 24, 2001, where witnesses testified about the details of a
potential artifact sale to those entities. After hearing testimony about
these new developments, the district court, sua sponte, issued the Sep-
tember 26 and October 19, 2001 orders from which RMST appealed.

RMST suggests that not only did the September 26 and October 19,
2001 orders focus on the new developments, but in substance they

also extended the scope of the earlier injunctions to cover new cir-
cumstances. It argues that the district court itself observed that the
court had earlier only prohibited the sale of individual artifacts but
had never enjoined the sale of the artifacts as a collection. With its
September 26 and October 19 orders, the court was enjoining any sale
of the artifacts "as a group."

We believe that the new developments that preceded the September
26 and October 19 orders were sufficiently material as to justify
RMST's challenge to the renewed injunctions entered following the
hearing on September 24, 2001. While the court may not have explic-
itly expanded its earlier injunctions, it acknowledged that the earlier
injunctions were "designed to prevent sales of individual artifacts"
and that it would consider a modification of them if the modification
was "designed to keep the recovered and to-be-recovered artifacts
together as a group." The court also acknowledged that "circum-
stances change and it becomes necessary to change plans and
approaches."

Moreover, this case presents the rare circumstance that might ren-
der a later review of these interlocutory orders impossible. It is
unclear how long the in rem action will continue because it is unclear
how long salvage will continue. It could be years depending on
RMST's capacity, will, and diligent performance of salvage services.
Because no final termination of these proceedings is currently in
sight, RMST could be left without a remedy for challenging the two
orders entered in light of the new developments.

Accordingly, in the peculiar circumstances before us, we conclude
that we have jurisdiction under 28 U.S.C. S 1292(a)(1). We need not,
therefore, reach the question of whether this case presents a decree
appealable under 28 U.S.C. S 1292(a)(3).

III

On the merits, RMST, relying heavily on language taken from the
district court's June 7, 1994 order appointing RMST salvor-in-
possession, directs our focus to the district court's declaration in that
order that RMST "is the true, sole and exclusive owner of any items
salvaged from the wreck of the defendant vessel in the past and, so

long as [RMST] remains salvor-in-possession, items salvaged in the
future, and is entitled to all salvage rights." (Emphasis added). RMST
maintains that, for several reasons, this language confirms that it
became the absolute owner of the artifacts, free and clear, as they
were retrieved from the Titanic and, therefore, that it is entitled to sell
them, notwithstanding its earlier expressions to the court of an intent
not to sell them.

Specifically, RMST argues first that there were no "contingencies
or exceptions" to the district court's "in specie" award. Second,
RMST maintains that the maritime law "does not permit a District
Court to impose such restrictions on disposition of artifacts, awarded
in specie, for some perceived public benefit. These restrictions equate
to a `taking' of private property." Third, RMST asserts that the district
court had no justification for "converting statements by RMST
regarding a business plan into a binding restriction upon disposition
of items recovered from the wreck." Fourth, RMST observes that the
district court speaks only through its orders and not through its opin-
ions, whether oral or written, and its June 1994 order contains no
restrictions on disposition. Fifth, RMST argues that the doctrine of
judicial estoppel is inapplicable to its statements of intent about not
selling the artifacts because it never made misleading statements to
the court in order to obtain any benefit. And finally, RMST contends
that the restrictions are substantively "inappropriate" in view of the
public policy behind salvage law, arguing that the restrictions against
resale of the artifacts actually inhibit incentives to perform salvage
operations and that RMST, as a publicly traded company, "has an
obligation to maximize shareholder value," which should be consid-
ered. Indeed, the adverse effects of the district court's orders on the
continuing financial viability of RMST runs throughout RMST's
arguments that the court acted illegally and inappropriately.

Before addressing RMST's specific arguments, it is necessary to
set forth the relevant fundamental principles of salvage law and to
recognize the significance of this case as an in rem proceeding insti-
tuted under the salvage law to enforce RMST's inchoate lien for a sal-
vage reward.

A salvor in admiralty is one who voluntarily saves life or property
at sea. Because of the dangers of the sea and the mutual interest of

seamen and seafaring nations to traverse the sea notwithstanding its
dangers, the law of admiralty for almost 3,000 years has uniformly
held that those who voluntarily come to the assistance of fellow sea-
men in distress and perform salvage are entitled to be rewarded.
Haver, 171 F.3d at 962; see generally Martin J. Norris, 3A Benedict
on Admiralty SS 5-13 (7th ed. 1998). As Chief Justice Marshall elo-
quently explained, this is a policy for seamen, not landlubbers:

If the property of an individual on land be exposed to the
greatest peril, and be saved by the voluntary exertions of
any person whatever; if valuable goods be rescued from a
house in flames, at the imminent hazard of life by the salvor,
no remuneration in the shape of salvage is allowed. The act
is highly meritorious, and the service is as great as if ren-
dered at sea. Yet the claim for salvage could not, perhaps,
be supported. It is certainly not made. Let precisely the same
service, at precisely the same hazard, be rendered at sea, and
a very ample award will be bestowed in the courts of justice.

Mason v. The Ship Blaireau, 6 U.S. (2 Cranch) 240, 266 (1804). By
saving property at sea, salvors do not become the property's owner;
rather, they save it for the owners and become entitled to a reward
from the owner or from his property. Haver, 171 F.3d at 963; The
Amethyst, 1 F. Cas. 762, 764 (D. Me. 1840) (No. 330) (stating that
a salvor stands as a "voluntary agent" and thus is "bound to act for
the interest of the owner as well as his own"). The reward provides
an incentive for rendering salvage service at sea, and courts of admi-
ralty have long enforced claims to this award against owners. Mason,
6 U.S. (2 Cranch) at 266 (allowing "a very ample compensation for
those services, (one very much exceeding the mere risk encountered,
and labour employed in effecting them)"). As one court early
explained:

Salvage, it is true, is not a question of compensation pro
opera et labore. It rises to a higher dignity. It takes its
source in a deeper policy. It combines with private merit and
individual sacrifices larger considerations of the public
good, of commercial liberality, and of international justice.
It offers, a premium, by way of honorary award, for prompt
and ready assistance to human sufferings; for a bold and

fearless intrepidity; and for that affecting chivalry, which
forgets itself in an anxiety to save property, as well as life.

The Henry Ewbank, 11 F. Cas. 1166, 1170 (D. Mass. 1833) (No.
6,376).

The principal method of enforcing a salvor's award is through the
recognition of a salvor's lien in the property saved. The Sabine, 101
U.S. 384, 386 (1879) (explaining that a salvage lien "ordinarily
affords the best mode of securing the payment of [a salvor's]
claims"); Haver, 171 F.3d at 963. This maritime lien arises from the
moment salvage service is performed, United States v. ZP Chandon,
889 F.2d 233, 237 (9th Cir. 1989), and, as with any other lien, secures
the payment of the as-yet-to-be-determined salvage award. Such liens
are a temporary encumbrance of the property saved, lasting only until
payment of a salvage award can be made. The Everosa, 93 F.2d 732,
735 (1st Cir. 1937).

Although there are substantive differences between maritime and
common law liens, see generally Grant Gilmore & Charles Black, Jr.,
The Law of Admiralty S 9.1 - 9.2 (2d ed. 1975), the maritime lien
enforcement process -- i.e., the execution of the lien -- parrots the
lien foreclosure process in civil law. The process begins when the sal-
vor commences an in rem proceeding in admiralty against the prop-
erty. Fed. R. Civ. P., Supp. R. C(1)(a) (stating that "[a]n action in rem
may be brought . . . [t]o enforce any maritime lien"); see also Haver,
171 F.3d at 963; Treasure Salvors, Inc. v. The Unidentified Wrecked
& Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir. 1981). The
salvor must provide notice of the in rem proceeding to the owner,
other lienholders, and potential claimants to the property. Fed. R. Civ.
P., Supp. R. C(4) (requiring public notice of the action and arrest if
the property has not been released under Rule E).

If the owner appears and pays the salvage reward determined by
the court,* the lien is discharged and the owner takes the property
__________________________________________________________________________________
*In determining the appropriate award, courts generally rely on the six
factors set out in The Blackwall, 77 U.S. (10 Wall.) 1, 14 (1869):

(1.) The labor expended by the salvors in rendering the salvage
service. (2.) The promptitude, skill, and energy displayed in ren-

clear of the salvage lien. Cf. Ferrous Financial Servs. Co. v. O/S Arc-
tic Producer, 567 F. Supp. 400, 401 (W.D. Wash. 1983) (permitting
judicial sale to go forward because owner was in default and could
not obtain bond to release arrested ship). On the other hand, if the
owner does not appear, then the case continues as an in rem action,
and the court determines the award, sells the property, and, from the
proceeds, pays the salvor. Fed. R. Civ. P., Supp. R. E(9)(c). Any
remainder from the sale is remitted to the owner. If the owner is no
longer living, the court presumably pays the excess to the owner's
heirs, and, if there are no heirs, to the state according to its escheat
law.

If the sale of the salvaged property yields too little to satisfy the
salvor's lien for a reward, then all of the proceeds from the sale of the
salvaged property are paid to the salvor. Courts have held that an
award cannot exceed the value of the property itself. Even if it does,
though, in an in rem proceeding, there certainly cannot be a defi-
ciency judgment against the owner because the action is against the
property and any judgment therefore is limited to the value of the
property. See Allseas Maritime, S.A. v. M/V Mimosa, 812 F.2d 243,
246 (5th Cir. 1987) ("The salvage award is therefore limited by the
value of the property saved after all of the appropriate factors are
taken into account"); Lambros Seaplane Base, Inc. v. The Batory, 215
F.2d 228, 237 (2d Cir. 1954) (concluding that where owner did not
appear to claim a salvaged seaplane, the owner could not be held per-
sonally liable to the salvor). 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 sav-
ing the costs of sale. The salvor does not have a direct right, however,
to title in the property. See Platoro Ltd. v. Unidentified Remains, 695
F.2d 893, 903-04 (5th Cir. 1983) ("We cannot find a case where the
salvage award was expressed in terms of the res rather than in dol-
__________________________________________________________________________________
dering 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 impend-
ing peril. (5.) The value of the property saved. (6.) The degree
of danger from which the property was rescued.

lars"); Chance v. Certain Artifacts Found & Salvaged from The Nash-
ville, 606 F. Supp. 801, 808 (S.D. Ga. 1984) (declining "to accept the
in specie award as a valid award in a salvage action"), aff'd 775 F.2d
302 (11th Cir. 1985). Rather, the salvor has only a lien on the prop-
erty which may, upon execution or foreclosure and in the discretion
of the court, be satisfied by the court's conveying title to the salvor
after the court determines that the appropriate amount of award can-
not be satisfied by a sale of the property. Haver, 171 F.3d at 966.

Thus, hypothetically, if RMST were to recover an artifact valued
at $50 million (we know, for instance, that paintings have at times
sold for more) and the court were to determine that the appropriate
salvage award was $5 million, the court could not give the property
to RMST in satisfaction of its salvage lien because the lien exists only
to the extent of $5 million. The court instead would have to sell the
property and remit to RMST $5 million from the proceeds. On the
other hand, if RMST were to recover an artifact valued at $2 million
(a historic vase, for example) and the court were to determine, again,
that the appropriate salvage award was $5 million, a sale would be
useless. In lieu of a sale to foreclose the salvage lien, the court could
simply convey title in the $2 million vase to RMST, essentially pro-
viding RMST what is analogous to a "deed in lieu of foreclosure."

Once the lien is executed and the salvor as lienholder is paid its
reward, whether in money or in kind, the reward becomes the prop-
erty of the salvor to do with what it wants. Point Landing Inc. v. Ala-
bama Dry Dock & Shipbuilding Co., 261 F.2d 861, 866 (5th Cir.
1958) ("The [judicial] sale cuts off the rights of all non-parties. The
title from the marshal is good against the world.").

It is critical to note that under salvage law, the salvor receives a
lien in the property, not title to the property, and as long as the case
remains a salvage case, the lienholder cannot assert a right to title
even though he may end up with title following execution or foreclo-
sure of the lien. See, e.g., The Akaba v. Burg, 54 F. 197, 200 (4th Cir.
1893) ("When articles are lost at sea the title of the owner in them
remains"); see also Adams v. Unione Mediterranea di Sicurta, 220
F.3d 659, 670-71 (5th Cir. 2000) (explaining that the owner of the sal-
vaged goods "does not lose title even though the property may
become the subject of salvage services," because, through the lien, the

salvor obtains only a "right of possession" in the property and not
"ownership or title to the salved property") (quoting Benedict on
Admiralty S 150); Treasure Salvors, 640 F.2d at 567 ("Although the
law of salvage grants the salvor a right to possession of the property,
the salvage of a vessel or goods at sea, even when the goods have
been abandoned, does not divest the original owner of title or grant
ownership rights to the salvor"); Continental Ins. Co. v. The Clayton
Hardtop Skiff, 367 F.2d 230, 236 (3d Cir. 1966) ("The salvor has the
right to salvage but he does not achieve ownership of the vessel by
salving it"); Chance, 606 F. Supp. at 804 (stating that "even though
a vessel is abandoned without the hope of recovery or return, the title
of the vessel remains in her owner" and "[t]he salvor of property has
a right to an award or a lien against the property"), aff'd 775 F.2d 302
(11th Cir. 1985); Hener v. United States, 525 F. Supp. 350, 357
(S.D.N.Y. 1981) (explaining that salvage law grants the salvor "only
a superior right of possession, and not title, until a court has passed
on title and the salvage fee" (citing The Alaska, 54 F. 197 (4th Cir.
1893)); The Port Hunter, 6 F. Supp. 1009, 1011 (D. Mass. 1934)
(stating the salvors have a claim "paramount to all others" and the
control to enforce the claim, "[b]ut `their interest in the goods did not
amount to ownership. . . . Th[e] right is merely a lien, a right to retain
the goods till the salvage be paid'") (quoting Whitwell v. Wells, 24
Pick (Mass.) 25, 30 (1834)); The Carl Schurz, 5 F. Cas. 84, 86 (W.D.
Tenn. 1879) (No. 2414) (stating that the salvor "is, to all intents and
purposes, a joint owner" of the property along with the original
owner); The Amethyst, 1 F. Cas. at 763 ("The finder of property, left
derelict at sea, does not acquire the dominion or the absolute property
in what is found. He acquires the right of possession only, with a title
to a reasonable reward for his services").

This principle, while firm in the salvage law, does not mean that
a salvage case could not be converted into a finds case. See Platoro
Ltd., 695 F.2d at 904 (noting that salvage awards can be made by
award of title to the res under the law of finds); Treasure Salvors, Inc.
v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330,
336-37 (5th Cir. 1978) (recognizing that title to lost ships can be
divested from the owner under the law of finds). Under finds law,
"title to abandoned property vests in the person who reduces that
property to his or her possession." Id. at 337. Before such a conver-
sion is made, however, the prerequisites for divesting title under the

law of finds must be satisfied. See, e.g., Columbus-America Discovery
Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 464-65 (4th Cir. 1992)
(requiring clear and convincing evidence of abandonment before the
law of finds is applied).

Turning to the specifics in the case before us, RMST, as salvor,
obtained an inchoate lien in the artifacts upon performing salvage ser-
vice in connection with the Titanic, and it became entitled to enforce
that lien through the in rem proceeding which is now pending before
the district court. It did not, however, obtain a lien in any property
that it merely discovered; discovery alone does not amount to salvage
service, although it can lead to salvage service. The Sabine, 101 U.S.
384, 384 (1879) (setting out three requirements for a salvage award:
existence of a marine peril, voluntary action by the salvor, and suc-
cessful salvage). When RMST performed salvage service, the district
court exercised "constructive" in rem jurisdiction over the wreck and
declared RMST the sole salvor-in-possession of the Titanic. Haver,
171 F.3d at 967. And through that order, the court gave RMST the
exclusive right to salvage artifacts from the Titanic and to obtain a
reward through enforcement of its salvor's lien in the artifacts. If and
when RMST abandons its role as salvor or the court dispossesses
RMST of that role, the unsalvaged wreck will remain as any other
unsalvaged wreck at the bottom of the sea, subject to salvage service
by others.

Many of these basic principles of salvage and lien law have been
overlooked by RMST in its arguments. In addition to claiming title
as a lien-holder, it has, for example, also extensively argued that the
district court should have taken into account RMST's financial viabil-
ity. But this issue has no relevance to whether RMST is entitled to
enforce its salvage lien against the artifacts that it salvaged. When
RMST voluntarily salvaged property -- even with profit in mind --
it became entitled only to a yet-to-be-determined reward, enforceable
against the property. The Camanche, 75 U.S. (8 Wall.) 448, 475
(1869) (allowing recovery even by those salvors "whose business it
is to be always ready and at command whenever assistance is
required"); B.V. Bureau Wijsmuller v. United States, 702 F.2d 333,
339 (2d Cir. 1983). RMST is not entitled to a guarantee that it remain
in business as a viable company to conduct salvage services. Surely
if RMST abandoned its efforts, others would take over. In this case,

other potential salvors have unsuccessfully petitioned the district
court to do exactly that. See R.M.S. Titanic, Inc. v. Wrecked & Aban-
doned Vessel, 924 F. Supp. 714 (E.D. Va. 1996) (rejecting claim of
potential salvor to rescind RMST's salvor-in-possession rights). And
if no others were to do so, then the wreck of the Titanic would lie uns-
alvaged as it did for the first 75 years after it sank.

With these important principles in hand, we now turn to address
RMST's specific arguments ad seriatim.

The first and most fundamental issue raised by RMST is the mean-
ing to be given to the district court's June 7, 1994 order. Resting on
its contention that this order gave RMST full, unrestricted title to the
salvaged artifacts, RMST argues as a matter of property law that the
court cannot now reverse itself to impose restrictions on the disposi-
tion of the artifacts which belong to RMST.

First, it must be pointed out that the June 1994 order, drafted by
counsel for RMST, is inherently ambiguous, repeating the language
of RMST's complaint in which it appears that RMST sought both
absolute title in the artifacts through the law of finds and salvage
rights through the law of salvage. Because RMST pursued only sal-
vage rights and the court only declared it a salvor, not a finder, any
suggestion that it obtained title to the wreck of the Titanic is mis-
placed. Yet, the order submitted to give RMST salvage rights uses
both salvage language and finds language. It says:

The court FINDS AND ORDERS that R.M.S. Titanic, Inc.
is the salvor-in-possession of the wreck and wreck site of
the R.M.S. Titanic, including without limitation the hull,
machinery, engine, tackle, apparel, appurtenances, contents
and cargo, and that R.M.S. Titanic, Inc. is the true, sole and
exclusive owner of any items salvaged from the wreck of
the defendant vessel in the past and, so long as R.M.S.
Titanic, Inc. remains salvor in possession, items salvaged in
the future, and is entitled to all salvage rights, and that
default judgment is entered against all potential claimants
who have not yet filed claims and such claims are therefore

barred and precluded so long as R.M.S. Titanic, Inc. remains
salvor in possession, and the Court accordingly enters judg-
ment in favor of R.M.S. Titanic, Inc.

Just as this order gives property rights, it also takes them away. It
appears to give ownership of the artifacts to RMST -- declaring
RMST the "true, sole and exclusive owner" -- but then in the same
sentence states that RMST "is entitled to all salvage rights" as long
as it maintains its role as salvor. Indeed, the lead-in to the same sen-
tence also states that RMST is the salvor-in-possession -- not the
finder -- of the wreck and the wreck site. Because the court was
clearly applying the law of salvage and not the law of finds, it could
only convey possession, not title. Haver, 171 F.3d at 961-62.

Moreover, contemporaneously with entry of the June 1994 order,
the parties expressed their unequivocal intent that RMST's role be
that of salvor, not finder. And RMST has never argued that the
Titanic had been abandoned and that it was entitled to full title to the
entire ship and the artifacts from it, as would be required if this case
progressed under the law of finds. See Fairport Int'l Exploration, Inc.
v. Shipwrecked Vessel, 177 F.3d 491, 498 (6th Cir. 1999) (explaining
that under law of finds, claimant must show that the property has been
abandoned and that courts apply a presumption against abandon-
ment); Columbus-America, 974 F.2d at 461, 464-65 (explaining that,
in maritime law, "a strong actus element [is] required to prove the
necessary intent" of abandonment, such as express declaration aban-
doning title). RMST's position that it was only the salvor is consistent
with admiralty law's strong preference for recognizing persons who
discover wrecks as salvors rather than finders. See Haver, 171 F.3d
at 961; Columbus-America, 974 F.2d at 464 (explaining that "when
sunken ships or their cargo are rescued from the bottom of the ocean
by those other than the owners, courts favor applying the law of sal-
vage over the law of finds").

Also contemporaneous with the entry of the June 1994 order, the
district court and RMST understood the order's language to give
RMST exclusive possession of the artifacts to permit RMST to earn
money through the exhibition of the artifacts as an interim advance
to fund further salvage efforts. But it was clear that RMST was not
authorized to sell the artifacts. At the hearing before entry of the June

1994 order, the court sought reconfirmation from RMST that it had
in fact advised the court of its "intention to display these artifacts and
to try and get [its] money back out of admissions to the display rather
than selling them off. Is that still the intention of the Titanic people?"
Counsel for RMST stated unequivocally, "Yes, sir, Your Honor." Co-
counsel for RMST then explained further "that the 1987 artifacts and
the 1993 artifacts will not be sold, but rather will be exhibited."

But of overarching importance to the party's contemporaneous
understanding of the June 1994 order was the nature and status of the
court proceedings. RMST had filed an in rem action against the
Titanic to enforce its salvage lien. The fact that no claimants appeared
-- other than an insurance company, which settled -- does not mean
that RMST's lien in the artifacts automatically became converted to
title to the artifacts. RMST must first complete the salvage service
that it intends to perform and have its reward determined, unless it
intends to seek periodic awards. Only after its reward is determined
can it seek to enforce the lien against the artifacts themselves.

Yet none of these necessary steps had taken place as of 1994. No
determination of a reward had been made; no one had submitted an
appraisal of the artifacts or testified that sale of the artifacts would
produce an inadequate sum to satisfy the lien. The determination of
the reward itself is an involved process that encompasses evaluation
of the salvage services in light of the Blackwall factors. See, e.g.,
Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 984-85 (5th
Cir. 1998) (describing the extensive district court process of evaluat-
ing Blackwall factors). Thus, at the early stage of the proceedings in
1994, the court could only have given RMST exclusive possession of
the artifacts pending further necessary proceedings.

But even if this understanding was not apparent to RMST, the
court's July 28, 2000 order made it apparent. That order, confirming
what the court believed about its June 1994 order, categorically pro-
hibited the sale of artifacts as follows:

This court has continued RMS TITANIC, Inc. as salvor in
possession of the wreck of the TITANIC from year to year
on the understanding that RMS TITANIC, Inc. would treat
and preserve all artifacts recovered and would exhibit them

to the public and would not sell or dispose of any of said
artifacts. . . .

It has come to the attention of the court that there has been
a change of management in RMS TITANIC, Inc. and that
there is a concern held by some persons and organizations
that RMS TITANIC, Inc. is considering disposal of some of
the artifacts recovered. . . .

It is ORDERED that RMS TITANIC, Inc. and any of its
employees, agents or subcontractors may not sell or other-
wise dispose of any artifacts or any object recovered from
the TITANIC wreck site and further that it must continue to
treat and preserve any such artifacts or objects recovered
from the wreck site.

No one suggests that this July 2000 order did not unequivocally
restate that RMST was still the appointed salvor and confirm that it
was not authorized to "sell or dispose of any of said artifacts." More-
over, when, in April 2001, RMST proposed an amendment to the July
2000 order to permit the sale of coal, an amendment to which the
court agreed, RMST agreed with the court's interpretation of its June
1994 order. During the hearing that led to entry of the April 30, 2001
order permitting the sale of coal, the court also stated that "[i]t had
earlier in 1994 issued an order awarding R.M.S. Titanic salvor-in-
possession status, and that was based in part upon the understanding,
I believe, of the court that the company intended to conserve and
exhibit artifacts recovered from the wreck site."

Moreover, RMST never took issue with the court's clarifications
and interpretations of the June 1994 order made in the July 2000 and
April 2001 orders. It did not appeal either order. Any question about
what the June 1994 order meant, therefore, was answered by the
court's unappealed July 2000 order, as restated in the court's April
2001 order. Now, some 18 months after entry of the July 2000 order,
RMST is simply not free to reargue that order, nor the April 2001
order.

In sum, while the language of the June 1994 order declaring RMST
salvor-in-possession may have been ambiguous with respect to own-

ership of the artifacts, the contemporaneous understanding between
the court and RMST at least put in doubt any claim to absolute own-
ership. More importantly, the court could not legally have awarded
title to the artifacts to enforce RMST's salvage lien until the amount
of the lien was decided and the value of the artifacts determined or
evidence taken that the sale would produce less than the amount of
the lien. As everyone understood, these determinations had not been
made. Finally, the court construed its June 1994 order by its July 2000
and April 2001 orders, interpretations with which RMST agreed and
which it did not appeal. Accordingly, we will not now permit RMST
to take a few words from the June 1994 order out of their context --
both the context of that order and the context of the legal proceedings
-- to claim that it was granted absolute title to the artifacts at that
time.

The remaining arguments do not require much discussion because
they depend on RMST's reading of the June 1994 order as giving it
absolute title to the artifacts as they were removed from the Titanic.

RMST's position that once it was awarded the artifacts "in specie,"
the district court was not free to restrict the disposition of the property
and any such restriction amounted to a "taking of private property"
may be a tenable position. But as pointed out above, the district court
did not award RMST absolute title in the property, nor could it have
in the circumstances. As a condition to such an award in a salvage
proceeding, it would have had to complete execution or foreclosure
of RMST's salvor's lien. Indeed, the reward secured by the salvor's
lien had not yet been determined. Accordingly, this argument, while
probably correct as an abstract statement, is irrelevant to what
occurred in these proceedings.

Similarly, RMST may have a valid point when it asserts that
RMST's expression of business plans cannot be converted to restric-
tions on property awarded to it as its reward. But again, this position
is irrelevant because it assumes incorrectly that RMST had full title
to the artifacts.

On another argument, RMST asserts correctly that its expression of
business plans cannot form the basis for application of the doctrine of

judicial estoppel. See generally King v. Herbert J. Thomas Mem'l
Hosp., 159 F.3d 192, 196-97 (4th Cir. 1998); Lowery v. Stovall, 92
F.3d 219, 223-24 (4th Cir. 1996). In making this argument, however,
RMST assumed that it owned the artifacts and that judicial estoppel
should not improperly be applied to deny it ownership. Again, this
position is only hypothetical in the context of this case.

Finally, RMST argues that restrictions now in place that prohibit
the sale and distribution of the artifacts are substantively "inappropri-
ate." But this argument is also made in the context of RMST's posi-
tion that it owned the artifacts. When it is acknowledged that the
district court had not yet determined RMST's reward and had not yet
executed RMST's salvor's lien, it must also be recognized that the
property at this stage was in custodia legis, pending further proceed-
ings, even though RMST had physical possession of the property. If
the court in its discretion had determined that it would await comple-
tion of RMST's salvage services before determining an award, the
court would not have acted inappropriately. Maintaining the artifacts
in a single collection accommodates the possibility that their value in
any subsequent sale might be greater in a collection than in pieces. On
the other hand, the court would not need to await completion of
RMST's salvage services as it could determine awards on a periodic
basis. See, e.g., Cobb Coin Co. v. Unidentified, Wrecked & Aban-
doned Sailing Vessel, 549 F. Supp. 540, 561 (S.D. Fla. 1982) (retain-
ing jurisdiction in ongoing salvage effort "[t]o adjudicate the
plaintiff's claim to a salvage award on a periodic basis" and requiring
the salvor to file periodic reports that "catalogu[e] the artifacts saved
in the previous calendar year" in order to determine each individual
award). At the most recent hearing conducted by the district court in
this case, the court expressed a willingness to consider a proposal to
sell the artifacts, objecting only to deciding this question in the
abstract. It invited RMST to submit an appropriate proposal. But, as
of now, pending further decisions by the district court, RMST has not
demonstrated that maintaining the artifacts as a collection is inappro-
priate or illegal. Indeed, in the end, RMST's lien might become more
readily satisfiable by maintaining the artifacts as a collection at this
time.

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.
Accordingly, the orders of the district court, dated September 26,
2001, and October 19, 2001, are affirmed.

AFFIRMED