Lusitania: Salvage--Some Anyway--Part XII

Lusitania: First Bemis Salvage Case—Part XII

Michael Sean Quinn*

F. Gregg Bemis, Jr. is now an elderly, wealthy, Harvard MBA-type. He says he walked out on his executive employment  in the 1970s at the age of 51 and became a variety of different things, including several types of investors.  A little after he retired, he began diving—and having other dive with and for him. The Lusitania was one of his “targets,” and he found it.  It looks like he made three attempts at salvage. Some of all this will be described in “Lusitania: Second Bemis Salvage Case—Part XIII.

 Thereon lie three different but not separate stories. One was in the Court of the Queen’s Bench Division in England[1]; one was in the federal courts in the United States, both District Court and appellate court; and one involving a dispute with the government of the Republic of  Ireland. Nothing further will be said about Mr. Bemis himself. Superficial material about his is easily findable on the “Net,” as are several photographs.

In any case, Bemis found the Lusitania and bought it from persons who had bought it from the insurance company that had covered it.  (If a property insurer pays for a covered loss to a structure, it becomes the owner of the structure. Of course, often, it is property is totally destroyed, since it no longer exists, there is nothing to own or sell. Or is there? There is, if one counts a complete wreck as total destruction. Moreover, there may be continuing property rights somehow connected to other property rights.)

In any case, in 1982 divers working for Bemis brought up more than a few chattels (aka movable property). Some of it was actually part of the ship, which Bemis has already purchased from others who had purchased it from  London and Liverpool War Risk Associates Ltd, the company that insured the Lusitania for the loss inflicted by the U-boat perhaps among others..[2] Some of what he had brought up  was part of the ship. 

A lawsuit arose over who owned the contents that were not part of the ship.  That is the lawsuit about to be discussed. That problem will arise again in the American lawsuit.

Bemis worked out settlements with some of the folks who thought they might have rights, so in the end the lawsuit was between Bemis and people or entities he “controlled,” on one side, and the British government on the other, i.e., “the Crown.”

The decision of the court is interest reading filed with precedent running back to 1601 and legal terminology which most American’s today have never heard, e.g., “droit”[3] and “ligan”—or have heard and used only as slang, e.g., “flotsam,” “jetsam,” usually meaning some sort of junk.  Even the terms “wreck” and “derelict [ion]” have special meanings in the British vocabulary of maritime law. Pierce and Another v. Bemis and Others (Court of the Queen’s Bench, November 29, 1985).[4] (In American courts this case would be usually be cited 1 Q.B. 401 (1986).

I am going to skip all that, chocked bull of educational tid-bits though it is.   And I am going to skip summarizing the many lengthy quotes pertaining to such topics as the history of how the idea of “droit” was  thought of in history of English admiralty law, fascinating though they are too.

The  issue before the court was, in the end, really quite simple. Who had legal title to the contents brought to the surface, Bemis or the Crown. The latter claimed it at least because it had been brought within British territory after it was found. The court’s decision depended on the correct interpretation of a key British statute, The Merchant Shipping Act of 1894 (and a few subsequent amendments). (There were other, earlier maritime statutes that were discussed. I am going to skip them too.)

Interestingly the court notes that English jurisprudence treats statutory interpretation differently than does America.  This case cites the great Lord Denning in another case where he said this:

In this country we do not refer to the legislative history of an enactment as they to in the United States of America. We do not look at the explanatory memoranda which preface the Bills before Parliament. We do not have recourse to the pages of Hansard.[[5]] All that the courts can do is to take judicial notice of the previous state of the law and of other matters generally know to well-informed people.

Escoigne Properties Ltd. V. Inland Revenue Commissioners [1958] A.C. 549, 566. 

Under English practice,what is important here is that an English court’s job is to determine whether a given statute under consideration changed the previous law.  If I have understood it correctly, this means the judges must focus on earlier statutes and  judge-made law in thinking about the meaning of a new statute, and not to any extent on what the legislative body, as it were, has said to itself about what it was doing or said to others about its intent when it passed the new law.  Truth is: I think I like their system better.

            In any case, the statute said that if objects like those at issue in the Bemis case were found within Britain’s territorial waters and they were unclaimed by previous owners, they went to the Crown.  The chattels at issue in this case were not in English territorial waters, therefore--well, what? Who was to get them?

            In the end the judge said that there was no law as to the Crown having a property right in/over what is, in effect, abandoned property lost in and found in international waters.  The fact that there was not specific law about this merely entail that there is a “lacuna” in the law, as the court  called it.  But since no one can make a plausible claim to have a legal right to any of the objects and since Bemis possesses them, there are to be regarded as his.

            Under the circumstances, this strikes me as a just result, particularly since he spent a fair amount of money procuring them.  But this is not the end of the story. What about the contents not brought up and still remaining at the bottom of the sea, though only about the length of a football field down. 

As a sort of footnote is is worth reporting a magazine articles by one Richard B. Stolley, entitled LUSITANIA; THE EPIC BATTLE OVER ITS BIGGEST MYSTERY (2015) reports that the 1982 dive--Bermis's first salvage attempt--was conducted partly to determine whether an estimated $12M could be recovered if the ship were sold commercially as scrap.  Apparently Bemis had hired an independent firm to do most of the work, although he apparently did some of the diving. It ended up with a lot of the "treasure," and Bemis did not  make much. 

Michael Sean Quinn, Ph.D., J.D., C.P.C.U. . . .

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[1] “The Queen's Bench Division in England and Wales today consists of the Lord Chief Justice and fourteen puisne judges, exercising original jurisdiction and also appellate jurisdiction from the county courts and other inferior courts, in practice being exercised by a division of the Queen's Bench only. Other sub-divisions include the Commercial, the Admiralty Court and the Administrative Court. The abbreviation QB (or KB) in legal citation is used in the Law Reports to denote cases heard in the Queen's (or King's) Bench Division.” I took this from as Wikipedia article, “Queen’s Bench.” Obviously, there’s lots more to say.

[2] Interestingly, it is not always clear exactly what the name of the insurer was. Some say it was a Lloyds Syndicate, and maybe it was.  However, in the American case, Bemis v. RMS Lusitania,884 F.Supp. 1042 (E. D. Va. 1915), aff’d 99 F.3d 1129 (4^th Cir. 1996), the insurer is called the Liverpool and London War Risks Insurance Association Limited. Of course, one doubts that the discrepancy really matters, except. . . .

[3] OK. I’ll back down for “droit,” but only an inch or two. The term comes from the French meaning a right. In the present context, the word would be used to determine who had a property  in a lots object to which no one was making a claim based upon a property interest. In olden days, in England, it might be the Lord of the Manor, or it might be the Crown. Interestingly, the word “adroit” has the same origin. It means really skillful. My guess is that it worked this way: a person was so consistently good at something that it looked like he had a right to be able to do it.  “He can do it so well—better than absolutely everybody, or (at least) the few who have tried--and has been doing it for so long, as everyone knows, that it’s like his property so he has the right to say that it is really his.” Granted, this guess is not exactly compelling, but it would not mean that someone was simply getting things very right.  The term “maladroit” is simply the opposite of “adroit.”

[4] There may also be differences in other sorts of usages, as well. Virtually the first, if not the out-and-out first, sentence in this case reads in part as follows: “The Lusitania, a passenger liner outward bound for New York. . . .” In think in American English it would be said in virtually the opposite way, namely, “The Lusitania, a passenger liner outward bound from New York for Liverpool. . . .”

[5]“Hansard is the traditional name of the transcripts of Parliamentary Debates in Britain and many Commonwealth countries. It is named after Thomas Curson Hansard (1776–1833), a London printer and publisher, who was the first official printer to the parliament at Westminster.” Copied from a Net entry.