Justice
O’Connor delivered the opinion of the Court.
This action, involving the adjudication
of various claims to a historic shipwreck, requires us to address
the interaction between the Eleventh
Amendment and the in rem admiralty jurisdiction of
the federal courts. Respondent Deep Sea Research, Inc. (DSR),
located the ship, known as the S. S. Brother Jonathan,
in California’s territorial waters. When DSR turned to the
federal courts for resolution of its claims to the vessel, California
contended that the Eleventh
Amendment precluded a federal court from considering DSR’s
claims in light of the State’s asserted rights to the Brother
Jonathan under federal and state law. We conclude that the
Eleventh
Amendment does
not bar the jurisdiction of a federal court over an in rem
admiralty action where the res is not within the State’s
possession.
I
The dispute before us arises out of
respondent DSR’s assertion of rights to both the vessel
and cargo of the Brother Jonathan, a 220-foot, wooden-hulled,
double side-wheeled steamship that struck a submerged rock in
July 1865 during a voyage between San Francisco and Vancouver.
It took less than an hour for the Brother Jonathan to
sink, and most of the ship’s passengers and crew perished.
The ship’s cargo, also lost in the accident, included a
shipment of up to $2 million in gold and a United States Army
payroll that some estimates place at $250,000. See Nolte, Shipwreck:
Brother Jonathan Discovered, San Francisco Chronicle, Feb. 25,
1994, p. 1, reprinted in App. 127—131. One of few parts
of the ship recovered was the wheel, which was later displayed
in a saloon in Crescent City, California. R. Phelan, The Gold
Chain 242 (1987).
Shortly after the disaster, five insurance
companies paid claims totaling $48,490 for the loss of certain
cargo. It is unclear whether the remaining cargo and the ship
itself were insured. See Wreck of the Steamship Brother Jonathan,
New York Times, Aug. 26, 1865, reprinted in App. 140—147.
Prior to DSR’s location of the vessel, the only recovery
of cargo from the shipwreck may have occurred in the 1930’s,
when a fisherman found 22 pounds of gold bars minted in 1865
and believed to have come from the Brother Jonathan. The
fisherman died, however, without revealing the source of his
treasure. Nolte, supra, App. 130. There appears to be
no evidence that either the State of California or the insurance
companies that paid claims have attempted to locate or recover
the wreckage.
In 1991, DSR filed an action in the
United States District Court for the Northern District of California
seeking rights to the wreck of the Brother Jonathan and
its cargo under that court’s in rem admiralty jurisdiction.
California intervened, asserting an interest in the Brother
Jonathan based on the Abandoned Shipwreck Act of 1987 (ASA),
102 Stat. 432, 43 U. S. C. §§2101—2106,
which provides that the Federal Government asserts and transfers
title to a State of any “abandoned shipwreck” that
either is embedded in submerged lands of a State or is on a State’s
submerged lands “and is included in or determined eligible
for inclusion in the National Register,” §2105(a)(3).
According to California, the ASA applies because the Brother
Jonathan is abandoned and is both embedded on state land
and eligible for inclusion in the National Register of Historic
Places (National Register). California also laid claim to the
Brother Jonathan under Cal. Pub. Res. Code Ann. §6313
(West Supp. 1998) (hereinafter §6313), which vests title
in the State “to all abandoned shipwrecks . . . on or in
the tide and submerged lands of California.”
The District Court initially dismissed
DSR’s action without prejudice at DSR’s initiative.
The case was reinstated in 1994 after DSR actually located the
Brother Jonathan four and one-half miles off the coast
of Crescent City, where it apparently rests upright on the sea
floor under more than 200 feet of water. Based on its possession
of several artifacts from the Brother Jonathan, including
china, a full bottle of champagne, and a brass spike from the
ship’s hull, DSR sought either an award of title to the
ship and its cargo or a salvage award for its efforts in recovering
the ship. DSR also claimed a right of ownership based on its
purchase of subrogation interests from some of the insurance
companies that had paid claims on the ship’s cargo.
In response, the State of California
entered an appearance for the limited purpose of filing a motion
to dismiss DSR’s in rem complaint for lack of jurisdiction.
According to the State, it possesses title to the Brother
Jonathan under either the ASA or §6313, and therefore,
DSR’s in rem action against the vessel is an action
against the State in violation of the Eleventh
Amendment. DSR disputed both of the State’s statutory
ownership claims, and argued that the ASA could not divest the
federal courts of the exclusive admiralty and maritime jurisdiction
conferred by Article III, §2, of the United States Constitution.
DSR also filed a motion requesting that the District Court issue
a warrant for the arrest of the Brother Jonathan and its
cargo, as well as an order appointing DSR the exclusive salvor
of the shipwreck.
The District Court held two hearings
on the motions. The first focused on whether the wreck is located
within California’s territorial waters, and the second concerned
the possible abandonment, embeddedness, and historical significance
of the shipwreck, issues relevant to California’s claims
to the res. For purposes of the pending motions, DSR stipulated
that the Brother Jonathan is located upon submerged lands
belonging to California.
After the hearings, the District Court
concluded that the State failed to demonstrate a “colorable
claim” to the Brother Jonathan under federal law,
reasoning that the State had not established by a preponderance
of the evidence that the ship is abandoned, embedded in the sea
floor, or eligible for listing in the National Register as is
required to establish title under the ASA. 883 F. Supp. 1343,
1357 (ND Cal. 1995). As for California’s state law claim,
the court determined that the ASA pre-empts §6313. Accordingly,
the court issued a warrant for the arrest of the Brother Jonathan,
appointed DSR custodian of the shipwreck subject to further order
of the court, and ordered DSR to take possession of the shipwreck
as its exclusive salvor pending the court’s determination
of “the manner in which the wreck and its cargo, or the
proceeds therefrom, should be distributed.” 883 F. Supp.,
at 1364.
The District Court stated that it
was not deciding whether “any individual items of cargo
or personal property have been abandoned,” explaining that
“[a]t this stage in the litigation, DSR is not asking the
court to award it salvage fees from the res of the wreck,
or to otherwise make any order regarding title to or distribution
of the wreck or its contents.” Id., at 1354. The
District Court thought that the most prudent course would be
to adjudicate title after DSR completes the salvage operation.
Following the District Court’s ruling, the United States
asserted a claim to any property on the Brother Jonathan
belonging to the Federal Government.
The State appealed, arguing that its
immunity from suit under the Eleventh
Amendment does not hinge upon the demonstration by a preponderance
of the evidence that the ASA applies to the Brother Jonathan.
102 F. 3d 379, 383 (CA9 1996). According to the State, it
had established sufficient claim to the shipwreck under state
law by “assert[ing] that the Brother Jonathan is
on its submerged lands and that … §6313 vests title
in the State to abandoned shipwrecks on its submerged lands.”
Id., at 385. Underlying the State’s argument was
a challenge to the District Court’s ruling that the ASA
pre-empts the California statute. The State also maintained that
it had a colorable claim to the Brother Jonathan under
the ASA, arguing that it presented ample evidence of both abandonment
and embeddedness, and that the District Court applied the wrong
test by “requir[ing] that abandonment be shown by an affirmative
act on the part of the original owner demonstrating intent to
renounce ownership.” Ibid.
The Court of Appeals for the Ninth
Circuit affirmed the District Court’s orders. The court
first concluded that §6313 is pre-empted by the ASA because
the state statute “takes title to shipwrecks that do not
meet the requirements of the ASA and which are therefore within
the exclusive admiralty jurisdiction of the federal courts.”
Id., at 384. With respect to the State’s claim under
the ASA, the court presumed that “a federal court has both
the power and duty to determine whether a case falls within its
subject matter jurisdiction,” and concluded that “it
was appropriate for the district court to require the State to
present evidence that the ASA applied to the Brother Jonathan,
i.e., that it was abandoned and either embedded or eligible
for listing in the National Register, before dismissing the case.”
Id., at 386. According to the court’s reasoning,
“in addressing the questions of abandonment, embeddedness,
and historical significance of the wreck under the ASA, a federal
court does not adjudicate the state’s rights,” because
the ASA establishes the Federal Government’s title to a
qualifying shipwreck, which is then transferred to a State. Id.,
at 387. Consequently, in the court’s view, “a federal
court may adjudicate the question of whether a wreck meets the
requirements of the ASA without implicating the Eleventh
Amendment.” Ibid.
As to the specifics of the State’s
claim under the ASA, the court held that the District Court did
not err in concluding that the State failed to prove that the
Brother Jonathan is abandoned within the meaning of the
statute. The court reasoned that, in the absence of a definition
of abandonment in the ASA, “Congress presumably intended
that courts apply the definition of abandonment that has evolved
under maritime law.” Ibid. In maritime law, the court
explained, abandonment occurs either when title to a vessel has
been affirmatively renounced or when circumstances give rise
to an inference of abandonment. Here, the Court of Appeals concluded,
the District Court’s “failure to infer abandonment
from the evidence presented by the State was not clearly erroneous,”
given the insurance companies’ claims to the ship’s
insured cargo and undisputed evidence presented by DSR that the
technology required to salvage the Brother Jonathan has
been developed only recently. Id., at 388. The court also
rejected the State’s bid to treat the uninsured portion
of the wreck as abandoned, explaining that the District Court
did not address the status of individual items of cargo or personal
property, and that “divid[ing] the wreck of the Brother
Jonathan into abandoned and unabandoned portions for the
purposes of the ASA” would lead to both federal and state
courts adjudicating the wreck’s fate, which, in the court’s
view, would be “confusing and inefficient,” and also
“inconsistent with the general rule in maritime law of treating
wrecks as a legally unified res.” Id., at
389.
Summarizing its reasoning, the court
stated that, “[b]ecause the law is reluctant to find abandonment,
and because a finding of partial abandonment would deprive those
holding title to the unabandoned portion of the wreck access
to the federal forum, we hold that the Brother Jonathan
is not abandoned.” Ibid. (internal citation omitted).
The court reserved the question whether there might be some point
at which the insured portion of a shipwreck “becomes so
negligible” that the entire wreck would be abandoned under
the ASA. Ibid. The court also declined to take judicial
notice of evidence that, during pendency of the appeal, the Brother
Jonathan was determined eligible for inclusion in the National
Register.
By concluding that the State must
prove its claim to the Brother Jonathan by a preponderance
of the evidence in order to invoke the immunity afforded by the
Eleventh
Amendment, the Ninth Circuit diverged from other Courts of
Appeals that have held that a State need only make a bare assertion
to ownership of a res. See Zych v. Wrecked Vessel Believed
to be the Lady Elgin, 960 F. 2d 665, 670 (CA7), cert.
denied, 506
U.S. 985 (1992); Maritime Underwater Surveys, Inc.
v. The Unidentified, Wrecked and Abandoned Sailing Vessel,
717 F. 2d 6, 8 (CA1 1983).1 We granted certiorari to address whether
a State’s Eleventh
Amendment immunity in an in rem admiralty action depends
upon evidence of the State’s ownership of the res, and to
consider the related questions whether the Brother Jonathan
is subject to the ASA and whether the ASA pre-empts §6313.
520 U. S. ___ (1997).
II
The judicial power of federal courts
extends “to all Cases of admiralty and maritime Jurisdiction.”
Art. III, §2, cl. 1. The federal courts have had a unique
role in admiralty cases since the birth of this Nation, because
“[m]aritime commerce was . . . the jugular vein of
the Thirteen States.” F. Frankfurter & J. Landis, The Business
of the Supreme Court 7 (1927). Accordingly, “[t]he need
for a body of law applicable throughout the nation was recognized
by every shade of opinion in the Constitutional Convention.”
Ibid. The constitutional provision was incorporated into
the first Judiciary Act in 1789, and federal courts have retained
“admiralty or maritime jurisdiction” since then. See
28
U.S.C. § 1333(1). That jurisdiction encompasses “maritime
causes of action begun and carried on as proceedings in rem,
that is, where a vessel or thing is itself treated as the offender
and made the defendant by name or description in order to enforce
a lien.” Madruga v. Superior Court of Cal., County
of San Diego, 346
U.S. 556, 560 (1954).
The jurisdiction of the federal courts
is constrained, however, by the Eleventh
Amendment, under which “[t]he Judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” Although the Amendment, by its terms,
“would appear to restrict only the Article III diversity
jurisdiction of the federal courts,” Seminole Tribe of
Florida v. Florida, 517
U.S. 44, 54 (1996), the Court has interpreted the Amendment
more broadly. See, e.g., Blatchford v. Native
Village of Noatak, 501
U.S. 775, 779 (1991). According to this Court’s precedents,
a State may not be sued in federal court by one of its own citizens,
see Hans v. Louisiana, 134
U.S. 1 (1890), and a state official is immune from suit in
federal court for actions taken in an official capacity, see
Smith v. Reeves, 178
U.S. 436 (1900).
The Court has not always charted a
clear path in explaining the interaction between the Eleventh
Amendment and the federal courts’ in rem admiralty
jurisdiction. Early cases involving the disposition of “prize”
vessels captured during wartime appear to have assumed that federal
courts could adjudicate the in rem disposition of the
bounty even when state officials raised an objection. See United
States v. Peters, 5 Cranch 115, 139—141 (1809).
As Justice Story explained, in admiralty actions in rem,
“the jurisdiction of the [federal] court is founded upon
the possession of the thing; and if the State should interpose
a claim for the property, it does not act merely in the character
of a defendant, but as an actor. Besides, the language of the
[Eleventh] [A]mendment is, that ‘the judicial power of the
United States shall not be construed to extend to any suit in
law or equity.’ But a suit in the admiralty is not,
correctly speaking, a suit in law or in equity; but is often
spoken of in contradistinction to both.” 2 J. Story, Commentaries
on the Constitution of the United States §1689, pp. 491—492
(5th ed. 1891).
Justice Washington, riding Circuit, expressed the same view
in United States v. Bright, 24 F. Cas. 1232,
1236 (No. 14,647) (CC Pa. 1809), where he reasoned:
“[I]n cases of admiralty and maritime jurisdiction the
property in dispute is generally in the possession of the court,
or of persons bound to produce it, or its equivalent, and the
proceedings are in rem. The court decides in whom the right is,
and distributes the proceeds accordingly. In such a case the
court need not depend upon the good will of a state claiming
an interest in the thing to enable it to execute its decree.
All the world are parties to such a suit, and of course are bound
by the sentence. The state may interpose her claim and have it
decided. But she cannot lie by, and, after the decree is passed
say that she was a party, and therefore not bound, for want of
jurisdiction in the court.”
Although those statements might suggest
that the Eleventh
Amendment has little application in in rem admiralty
proceedings, subsequent decisions have altered that understanding
of the federal courts’ role. In Ex parte New York,
256
U.S. 490 (1921) (New York I), the Court explained
that admiralty and maritime jurisdiction is not wholly exempt
from the operation of the Eleventh
Amendment, thereby rejecting the views of Justices Story
and Washington. Id., at 497—498. On the same day,
in its opinion in Ex parte New York, 256
U.S. 503 (1921) (New York II), the Court likewise
concluded that the federal courts lacked jurisdiction over a
wrongful death action brought in rem against a tugboat
operated by the State of New York on the Erie Canal, although
the Court did not specifically rely on the Eleventh
Amendment in its holding.
The Court’s most recent case
involving an in rem admiralty action, Florida Dept.
of State v. Treasure Salvors, Inc., 458
U.S. 670 (1982), addressed whether the Eleventh
Amendment “bars an in rem admiralty action seeking to
recover property owned by a state.” Id., at 682 (internal
quotation marks omitted). A plurality of the Court suggested
that New York II could be distinguished on the ground
that, in Treasure Salvors, the State’s possession
of maritime artifacts was unauthorized, and the State therefore
could not invoke the Eleventh
Amendment to block their arrest. Id., at 695—699
(citing Ex parte Young, 209
U.S. 123 (1908), and Tindal v. Wesley, 167
U.S. 204 (1897)). As the plurality explained, “since
the state officials do not have a colorable claim to possession
of the artifacts, they may not invoke the Eleventh
Amendment to block execution of the warrant of arrest.”
458 U. S., at 697.
That reference to a “colorable
claim” is at the crux of this case. Both the District Court
and the Ninth Circuit interpreted the “colorable claim”
requirement as imposing a burden on the State to demonstrate
by a preponderance of the evidence that the Brother Jonathan
meets the criteria set forth in the ASA. See 102 F. 3d,
at 386; 883 F. Supp., at 1349. Other Courts of Appeals have
concluded that a State need only make a bare assertion to ownership
of a res in order to establish its sovereign immunity
in an in rem admiralty action. See, e.g., Zych,
960 F. 2d, at 670.
By our reasoning, however, either
approach glosses over an important distinction present here.
In this case, unlike in Treasure Salvors, DSR asserts
rights to a res that is not in the possession of the State. The
Eleventh
Amendment’s role in that type of dispute was not decided
by the plurality opinion in Treasure Salvors, which decided
“whether a federal court exercising admiralty in rem
jurisdiction may seize property held by state officials under
a claim that the property belongs to the State.” 458 U. S.,
at 683; see also id., at 697 (“In ruling that the
Eleventh
Amendment does not bar execution of the warrant, we need
not decide the extent to which a federal district court exercising
admiralty in rem jurisdiction over property before the
court may adjudicate the rights of claimants to that property
as against sovereigns that did not appear and voluntarily assert
any claim that they had to the res”).
Nor did the opinions in New York
I or New York II address a situation comparable to
this case. The holding in New York I explained that, although
the suit at issue was styled as an in rem libel action
seeking recovery of damages against tugboats chartered by the
State, the proceedings were actually “in the nature of an
action in personam against [the Superintendent of Public
Works of the State of New York], not individually, but in his
[official] capacity.” 256 U. S., at 501. The action
in New York II was an in rem suit against a vessel
described as being “at all times mentioned in the libel
and at present . . . the absolute property of the State
of New York, in its possession and control, and employed in the
public service of the State for governmental uses and purposes
. . . .” 256 U. S., at 508. As Justice White explained
in his opinion in Treasure Salvors:
“The In re New York cases
… reflect the special concern in admiralty that maritime
property of the sovereign is not to be seized. … [They]
are but the most apposite examples of the line of cases concerning
in rem actions brought against vessels in which an official
of the State, the Federal Government, or a foreign government
has asserted ownership of the res. The Court’s consistent
interpretation of the respective but related immunity doctrines
pertaining to such vessels has been, upon proper presentation
that the sovereign entity claims ownership of a res in its
possession, to dismiss the suit or modify its judgment accordingly.”
458 U. S., at 709—710 (opinion concurring in judgment
in part and dissenting in part) (emphasis added).
It is true that statements in the
fractured opinions in Treasure Salvors might be read to
suggest that a federal court may not undertake in rem
adjudication of the State’s interest in property without
the State’s consent, regardless of the status of the res.
See, e.g., id., at 682 (plurality opinion) (“The
court did not have power . . . to adjudicate the State’s
interest in the property without the State’s consent”);
id., at 711 (White, J., concurring in judgment in part
and dissenting in part) (“It is … beyond reasonable
dispute that the Eleventh
Amendment bars a federal court from deciding the rights and
obligations of a State in a contract unless the State consents”).
Those assertions, however, should not be divorced from the context
of Treasure Salvors and reflexively applied to the very
different circumstances presented by this case. In Treasure
Salvors, the State had possession–albeit unlawfully–of
the artifacts at issue. Also, the opinion addressed the District
Court’s authority to issue a warrant to arrest the artifacts,
not the disposition of title to them. As the plurality explained,
“[t]he proper resolution of [the Eleventh
Amendment] issue . . . does not require–or
permit–a determination of the State’s ownership of
the artifacts.” Id., at 699 (emphasis added); see
also id., at 700 (noting that while adjudication of the
State’s right to the artifacts “would be justified
if the State voluntarily advanced a claim to [them], it may not
be justified as part of the Eleventh
Amendment analysis, the only issue before us”). Thus,
any references in Treasure Salvors to what the lower courts
could have done if they had solely adjudicated title to the artifacts,
rather than issued a warrant to arrest the res, do not control
the outcome of this case, particularly given that it comes before
us in a very different posture, i.e., in an admiralty
action in rem where the State makes no claim of actual
possession of the res.
Nor does the fact that Treasure
Salvors has been cited for the general proposition that federal
courts cannot adjudicate a State’s claim of title to property,
see, e.g., Idaho v. Coeur d’Alene Tribe
of Idaho, 521 U. S. ___, ___—___ (1997) (slip op.,
at 2—4) (O’Connor, J., concurring in part and concurring
in judgment); id., at ___—___ (slip op., at 9—11)
(Souter, J., dissenting), prevent a more nuanced application
of Treasure Salvors in the context of the federal courts’
in rem admiralty jurisdiction. Although the Eleventh
Amendment bars federal jurisdiction over general title disputes
relating to State property interests, it does not necessarily
follow that it applies to in rem admiralty actions, or
that in such actions, federal courts may not
exercise jurisdiction over property that the State does not actually
possess.
In considering whether the Eleventh
Amendment applies where the State asserts a claim in admiralty
to a res not in its possession, this Court’s decisions in
cases involving the sovereign immunity of the Federal Government
in in rem admiralty actions provide guidance, for this
Court has recognized a correlation between sovereign immunity
principles applicable to States and the Federal Government. See
Tindal v. Wesley, 167 U. S., at 213; see also
Treasure Salvors, supra, at 710 (White, J., concurring
in judgment in part and dissenting in part) (discussing analogy
between immunity in “in rem actions brought against
vessels in which an official of the State, the Federal Government,
or a foreign government has asserted ownership of the res”).
In one such case, The Davis, 10 Wall. 15 (1870), the Court
explained that “proceedings in rem to enforce a lien
against property of the United States are only forbidden in cases
where, in order to sustain the proceeding, the possession of
the United States must be invaded under process of the court.”
Id., at 20. The possession referred to was “an actual
possession, and not that mere constructive possession which is
very often implied by reason of ownership under circumstances
favorable to such implication.” Id., at 21; see also
The Siren, 7 Wall. 152, 159 (1869) (describing “exemption
of the government from a direct proceeding in rem against
the vessel whilst in its custody”). The Court’s jurisprudence
respecting the sovereign immunity of foreign governments has
likewise turned on the sovereign’s possession of the res
at issue. See, e.g., The Pesaro, 255
U.S. 216, 219 (1921) (federal court’s in rem
jurisdiction not barred by mere suggestion of foreign government’s
ownership of vessel).
While this Court’s decision in
The Davis was issued over a century ago, its fundamental
premise remains valid in in rem admiralty actions, in
light of the federal courts’ constitutionally established
jurisdiction in that area and the fact that a requirement that
a State possess the disputed res in such cases is “consistent
with the principle which exempts the [State] from suit and its
possession from disturbance by virtue of judicial process.”
The Davis, supra, at 21. Based on longstanding
precedent respecting the federal courts’ assumption of in
rem admiralty jurisdiction over vessels that are not in the
possession of a sovereign, we conclude that the Eleventh
Amendment does not bar federal jurisdiction over the Brother
Jonathan and, therefore, that the District Court may adjudicate
DSR’s and the State’s claims to the shipwreck. We have
no occasion in this case to consider any other circumstances
under which an in rem admiralty action might proceed in
federal court despite the Eleventh
Amendment.
III
There remains the issue whether the
courts below properly concluded that the Brother Jonathan
was not abandoned for purposes of the ASA. That conclusion was
necessarily influenced by the assumption that the Eleventh
Amendment was relevant to the courts’ inquiry. The Court
of Appeals’ determination that the wreck and its contents
are not abandoned for purposes of the ASA was affected by concerns
that if “the vessel had been partially abandoned, both the
federal court and the state court would be adjudicating the fate
of the Brother Jonathan.” 102 F. 3d, at 389.
Moreover, the District Court’s inquiry was a preliminary
one, based on the concern that it was premature “for the
court to find that any individual items of cargo or personal
property have been abandoned.” 883 F. Supp., at 1354.
In light of our ruling that the Eleventh
Amendment does not bar complete adjudication of the competing
claims to the Brother Jonathan in federal court, the application
of the ASA must be reevaluated. Because the record before this
Court is limited to the preliminary issues before the District
Court, we decline to resolve whether the Brother Jonathan
is abandoned within the meaning of the ASA. We leave that issue
for reconsideration on remand, with the clarification that the
meaning of “abandoned” under the ASA conforms with
its meaning under admiralty law.
Our grant of certiorari also encompassed
the question whether the courts below properly concluded that
the ASA pre-empts §6313, which apparently operates to transfer
title to abandoned shipwrecks not covered by the ASA to the State.
Because the District Court’s full consideration of the application
of the ASA on remand might negate the need to address the pre-emption
issue, we decline to undertake that analysis.
Accordingly, the judgment of the Court
of Appeals assuming jurisdiction over this case is affirmed,
its judgment in all other respects is vacated, and the case is
remanded for further proceedings consistent with this opinion.
Notes
1. While the petition
for certiorari in this case was pending, the United States Court
of Appeals for the Sixth Circuit adopted the reasoning of the
Ninth Circuit. See Fairport Int’l
Exploration, Inc. v. Shipwrecked Vessel Known as The Captain
Lawrence, 105 F. 3d 1078 (CA6 1997), cert. pending,
No. 96—1936.