SECOND LUSITANIA BEMIS SALVAGE CASE—Part XIII
Michael Sean Quinn*
The first of the Bemis-Salvage cases
was an English case in the Court of the Queen’s Bench Division. In that case, Bemis prevailed in the sense
that he established ownership rights for himself as opposed to—but only as
opposed to--the Crown. Now comes the
next phase. Did he establish such rights
for all of the contents of the ship, or just for some of them. And was he able to block the efforts of others. Bemis v. RMS Lusitania, 884 F.Supp. 1043 (E.D. Va. 1995) aff'd (4th
Cir. 1996).
Several
parties had originally been involved. Bemis settled with one of them, so there
were only two left, and an entity named Fifty Fathom Ventures, Inc. was the other. FFV’s position was roughly, “Look, we dove[--or is it ‘dived’--] down to the ship too,
granted it was in 1994 and Brmis dove down in 1982, but still. . . .” Facts about
the another party, Muriel Light, more or less speaking for her late husband, play a role in the evolution of the
case and in the court's considering chain of title, though I am going to ignore it. One of the questions Bemis placed before the
court was whether he could have an injunction stopping others from following
his lead and making off with artifacts what were really his. So we have
ownership and injunction.
There were some procedural matters discussed
in the opinion, but I am skipping all those too. I am even skipping some of the admiralty
terminology discussions. This essay is about insurance and its aftermath.
Title by Conveyance
The Liverpool
and London War Risks Insurance Association Limited insured the ship against loss
from what happened. It paid Cunard for its loss under the policy and thereby acquired ownership interest and right
in the vessel. In 1967, it sold what it
had to John Light (“Light”), namely,
the rights and interest in the wreck of the LUSITANIA
on the understanding that it would not be salved as a whole, repaired and put
into commission again, and also that the purchaser takes over all liabilities
and expenses which might attach to the wreck. [Emphasis added.]
Less than three weeks later Light
entered into an agreement with the publisher Holt, Rinehart, and Winston, Inc.
(“HRW”), and it paid him in anticipation of a book of photographs. Light sold
his rights to someone else; that someone else sold them to yet another; and
eventually Bemis ended up with title to whatever it was that the insurer had
conveyed. (I'm not sure whether anything happened with Light and his taking photos.)
The case
discusses all this, but I will skip over it, since the insurance policy plays
no role in determining title, although a letter from the insurer relating to
subrogation and title transfer sent to Light does. Still, insurance matters were not in
controversy.[1]
One
of the important questions in this lawsuit was therefore what was conveyed running from the insurer to Bemis. Obviously,
what it did legally convey was only what it could, legally speaking
“convey." The other significant questions pertained to the law of finds
and the law of salvage. These questions
all pertain to the ultimate and essential question, "What did Bemis own?" The answer to this question begins with the
question, "Were the contents that were not part of the ship, i.e., the personal
property that belonged to passengers or which was cargo, abandoned?" That issue comes first.
Law of Finds
What earlier cases have called “the
ancient and honorable principle of ‘finders, keepers,” earlier applied to
maritime property which had never been owned by anyone. In recent times, however, that principle has changed.
Now that principle applies when an owner has abandoned his/her property.
Abandonment is to be inferred if no one comes forward and claims it. The court found that precisely that had
happened and found the contents to be abandoned.
But
a problem now arises. In order to be able to be a finder and have a right of
keeping, the claimant must take possession of the property and that requires
that the claimant exercise “dominion or control over” the claimed
property. But except for what he had
already salvaged, Bemis did not have possession over the property he
claimed. What he had salvaged was what was on the
list of property involved in the Queen’s Bench case and one other item, a spoon
from the the Lusitania's cargo. (I wonder how could know that it was cargo and not a utensil owned and used by Cunard, e.g., to serve passengers. Or how it could be known that it was not the personal property of one of the passengers. Granted, people often travel without any of their spoons.)
The
next question then becomes, "Did Bemis have any type of "possession" of the personal property
not part of the hull that is still at the bottom of the sea?" To possess it
under these circumstances held the court, Bemis would have to have control over
that property and his right to go get it does not imply possession, nor does
the fact that he (and those working for and with him) have gone down two times,
and a third attempt had failed. (One of those trips was a National Geographic magazine
trip to get photos and videos for a TV documentary.)
Law of Salvage
The
court noted that the requirement of possession is much looser under the law of salvage than under the law
of finds. Indeed, the meaning of the term “possession” appears to be quite different.
Nevertheless a liberal salvage award and injunctive relief so that a claimant
may have the sole right to continue salvage operations involves three elements.
First,
the property must be in “marine peril.” This court quoted as follows: “Courts will usually find that underwater
shipwrecks are in marine peril, because sunken vessels and their cargoes are in
danger of being lost forever.” Second, “the salvage service must be voluntary.
Third and finally, “the salvage must be successful, in whole or in part,” and the salvage process
must be a continual process, though it need not be continuous.
Although
it was an odd way to put it, the court held that Bemis had not “demonstrated
the requisite amount of possession over the contents to qualify for the
exclusive right to salvage in the future.” He had not exercised “due diligence
or continuing salvaging operations[.]” (And the court spends a couple of pages
describing gaps in Bemis’s salvage efforts.)
So
that was that, and I cannot find clear evidence of further efforts by Bemis since the
court’s ruling, but there is some unclear evidence that there were some, at least financed by him. At the time, Bemis’s principal opponent, FFV, was ordered by the
court to turn over to him the items it had recovered. The reason was
interesting. All of those items seem to
have been part of or attached to the hull (actually making they part of it);
Bemis did own that by conveyance.[2] I have found no evidence that FFV continued its efforts.
So
far as I can tell, there have been a few further attempts to visit if not salvage
from the Lusitania in the last two decades.
(1) The opinion of the Fourth United States Court of Appeals which has
jurisdiction over federal district courts in Virginia and which affirmed Judge
Clarke’s decision noted in passing that one Polly Tapson, a Brit, and her
chums, had talked about taken a “stab” at a salvage effort around 1994. She was a "big time" diver, so maybe she kept going. The
Internet does not have clear evidence that her plans ever happened, even once.[3]
(2) Eoin McGarry claims to a dived down to what he and Bemis call “the Old
Lady” 30 times. (3) And apparently Bemis may have financed some further
“visits.”[4]
There
is a completely different story floating around about Bemis’s conflicts with
the government of the Republic of Ireland and most especially its National
Monuments Service which apparently now has jurisdiction over the ship, since
the United Nations Law of the Seas statute extended territorial waters from 3
miles to 12.[5]
(The reader will remember that the Lusitania is positioned at 11.5 miles from
the Irish coast.) There is a decision of the Irish Supreme Court recounting
parts of this conflict,[6]
but that will have to await the next Part of the blog telling that story.
Michael Sean Quinn, Ph.D.,
J.D., C.P.C.U. . . .
The Law Firms of Michael Sean Quinn and
Quinn and Quinn
1300 West Lynn Street, Suite 208
Austin,
Texas 78703
(512)
296-2594
(512)
344-9466 - Fax
E-mail: mquinn@msquinnlaw.com
[1]
In note 5 the District Judge, one Clarke, states this: “The Court notes that
Bemis did not present any evidence covering the insurance contract between
Cunard and Liverpool and London.
Therefore, the Court looks to the letter sent by Liverpool and London to
Light on March 2, 1967 in an effort to determine the scope of insurance
coverage.” I conjecture that if Bemis
had the policy, he would have produced it, probably as an exhibit to the
Complaint. Hence, I conclude that he did not have it. Why not? That strikes me as rather
strange. I have undertaken to lay my
hands on it in various ways. I have not,
however, gone to the Clerk of the Queen’s Bench, yet and asked for it. Shame on me.
Still if that Court does not have it, Why not?
[2]Stolley,
see note 4 below, reports that the
objects FV was required to hand over to Bemis were turned over by him to an
Irish museum.
[3]
According to some of the questions found on the Internet, she is a bit of a
mystery. She did some videos, some
photos, and led some fun expeditions. But it looks like she may have died in
the early 2000s. John Chatterton may have also done some independent diving.
[4]
He wants to prove that what sank the ship so fast was a munitions explosion in
or near a boiler room. That is contrary
to the received view that no such thing happened. See Richard B. Stolley,
Lusitania: The Epic Battle Over Its Biggest Mystery, found in a 2015 issue of
FORTUNE magazine and on the Internet.
[5]
The Service Bemis may not be on the best terms. Stolley describes Bemis’s
reactions to it as “colorful, unsparing criticism of the country’s cultural
mandarins.” Again according to Stolley,
what the Service says it is doing is protecting a historical, archeological object,
a historic monument, and as a cemetery. Even Bemis’s own lawyer has said that
he is a bit of a “pain in the ass” when it comes to the Service.
[6] Bemis v. Minister for the Arts, Heritage, Gaeltacht and The Islands [2007]IESC
10, [2007]3 IR 255. The decision—3
justices with 2 writing opinions can be found on the Internet under “Supreme
Court of Ireland Decisions” (So what does the word "Gaeltacht" mean? It is an Irish-language word used to denote any primarily Irish-speaking region. There is a Wikipedia articles using that word as the title, Mainly they are geographical areas in Ireland recognized by the government where a meaningful-to-significant fraction of the population speak the native language on a daily basis. That population is apparently shrinking.
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