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Second Circuit Holds That New York Owns Title to “Dunkirk Schooner” Shipwreck

by mjpospis on September 6, 2013

in Uncategorized

In Northeast Research LLC v. One Shipwrecked Vessel, 729 F.3d 197 (2nd Cir. Sept. 5, 2013), the Second Circuit held that the State of New York was the legal owner of the “Dunkirk Schooner” shipwreck – discovered in the “chill depths of Lake Erie” – under the Abandoned Shipwreck Act, 43 U.S.C. § 2101 et seq (ASA).

The ASA provides, in relevant part (at 43 U.S.C. § 2105), that the United States asserts title to any abandoned shipwreck that is:

(1) embedded in submerged lands of a State; (2) embedded in coralline formations protected by a State on submerged lands of a State; or (3) on submerged lands of a State and is included in or determined eligible for inclusion in the National Register [of Historic Places].

“If a shipwreck qualifies as property of the United States under § 2105(a), the ASA automatically transfers title to the state ‘in or on whose submerged lands the shipwreck is located.'” Furthermore, “for a state to acquire title to a shipwreck under the ASA it must be (1) abandoned and (2) on or embedded in the submerged lands of a state.”

Since it was undisputed that the wreck was embedded in submerged New York land, the court turned to whether there was any issue of fact as to whether it was “abandoned”.

After diving into case law interpreting the Abandoned Shipwreck Act and recounting the history of the wreck, the court concluded that it was indeed abandoned:

Considering all of the known factors, the clear and convincing evidence proves that even assuming the Dunkirk Schooner is the General Wayne, this ship has rested at the bottom of Lake Erie, utterly forgotten and undisturbed, for at least 150 years. As further circumstantial evidence of abandonment, the General Wayne ‘s hold was filled with spoilable goods and she was nearing the end of her working days. While the lack of technology available to salvage a shipwreck at the time of its disaster might in some cases excuse inaction, that factor does not suffice to create a material dispute of fact necessitating trial here, where the ship has gone undisturbed for such a lengthy period during which no recovery effort was ever made. … The lapse of time, alone, does not necessarily establish abandonment, and an owner’s failure to return to a shipwreck site does not necessarily prove abandonment. But here, given the surrounding circumstances, the Dunkirk Schooner is a vessel so long lost that time can be presumed to have eroded away any realistic claim of original title.

Thus, the court affirmed summary judgment for New York.

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