                                                                          PUBLISH

                    IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                           ________________________________

                                      No. 97-4309
                           ________________________________
                                                                        FILED
                                                      U.S. COURT OF APPEALS
                      D.C. Docket No. 96-10119-CV-JLK   ELEVENTH CIRCUIT
                                                             10/02/98
                                                         THOMAS K. KAHN
SEA SERVICES OF THE KEYS, INC., a                             CLERK
Florida Corporation d.b.a. Sea Two Islamorada,

                                                 Plaintiff-Appellee,


       versus


STATE OF FLORIDA, The Department of
Environmental Protection,
                                                 Defendant-Appellant.


_________________________________________________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
_________________________________________________________________
                                  (October 2, 1998)


Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH, Senior Circuit
Judge.

HATCHETT, Chief Judge:
       The principal issue in this case is whether Florida may invoke Eleventh Amendment

immunity in an in rem admiralty action when the res is not within the state’s possession.

Answering in the negative as did the district court, we affirm.

                                             FACTS

       On October 7, 1996, after receiving radio transmissions from two commercial fishermen

reporting an abandoned boat off Islamorada, Florida, appellee Sea Services of the Keys, Inc.

(Sea Tow) responded and found the boat.1 Because bad weather had caused rough waters in that

area, Sea Tow determined that the boat was in peril of sinking, and decided to tow it to a nearby

marina. Sea Tow then contacted the Florida Marine Patrol about the boat. After the Florida

Marine Patrol discovered that the boat did not have a required hull identification number (see

Fla. Stat. § 328.07 (1997)), the Marine Patrol declared the boat contraband, subjecting it to the

Florida Contraband Forfeiture Act (Act) and seized it.2 See Fla. Stat. §§ 328.07(3)(b)

(permitting seizure of a boat that does not have a hull identification number as contraband

property and subjecting it to forfeiture under the Act); 932.701 - 932.707 (Act).

                                  PROCEDURAL HISTORY

       Sea Tow then filed a verified in rem admiralty complaint in the District Court for the

Southern District of Florida, seeking an in rem warrant for arrest of the defendant boat and title

to and/or a marine salvage award against it. The district court issued the warrant for an in rem



       1
          The fisherman contacted the Florida Marine Patrol and the United States Coast Guard
about this boat. Sea Tow determined that neither agency planned to take immediate action
regarding the boat.
       2
        Sea Tow rescued a 29 foot “Midnight Express” motor boat and two 200 horsepower
Mercury Offshore outboard motors. The two motors had identification numbers.

                                                 2
arrest of the boat, but appellant Florida refused to allow the United States Marshals to serve the

arrest warrant. Florida also sent a letter to Sea Tow indicating its plans to initiate forfeiture

proceedings against the defendant boat. The district court granted Sea Tow’s motion for

expedited service, and Florida became substitute custodian. Florida thereafter moved to dismiss

this action for lack of jurisdiction, alleging that the Eleventh Amendment barred suit against the

state. The district court denied Florida’s motion, holding that Sea Tow’s action was not against

Florida, but an action against the defendant boat.

                                    STANDARD OF REVIEW

       We review de novo the district court’s denial of Florida’s motion to dismiss based on

Eleventh Amendment immunity. See Seminole Tribe of Florida v. Florida, 11 F.3d 1016, 1021

(11th Cir. 1994), aff’d, 517 U.S. 44 (1996).

                                           DISCUSSION

       Florida contends that the district court erred in dismissing its action because: (1) the

contraband nature of the defendant boat precludes exercising jurisdiction over it in the district

court; and (2) it took legal possession of the defendant boat before Sea Tow filed this action, and

therefore the Eleventh Amendment precluded an action against Florida because it had a

colorable claim against the boat. We disagree and affirm because: (1) Florida did not have

lawful possession of the boat pursuant to the Act, and therefore could not invoke Eleventh

Amendment immunity; and (2) no liability imposed against the defendant boat would result in

payments from the public funds in Florida’s treasury.

       According to the Supreme Court’s decision in California v. Deep Sea Research, Inc., “the

Eleventh Amendment does not bar the jurisdiction of a federal court over an in rem admiralty


                                                  3
action where the res is not within the State’s possession.” 118 S. Ct. 1464, 1467 (1998).

Florida’s seizure of the defendant boat pursuant to Florida Statute section 328.07 subjected it to

the Act’s rules on forfeiture. The Act provides that seizure alone does not vest Florida with legal

possession of the boat. Instead, the Act requires Florida to bring a forfeiture action in the state

court, and:

        Upon clear and convincing evidence that the contraband was being used in
        violation of the Florida Contraband Forfeiture Act, the court shall order the seized
        property forfeited to the seizing law enforcement agency. The final order of
        forfeiture by the court shall perfect in the law enforcement agency right, title, and
        interest in and to such property, subject only to the rights and interests of bona
        fide lienholders, and shall relate back to the date of seizure.

Fla. Stat. § 932.704(8); see also United States v. 92 Buena Vista Avenue, 507 U.S. 111, 125-26

(1993) (construing the forfeiture provision of the amendments to the Comprehensive Drug

Abuse and Prevention Act to find that retroactive vesting is not self-executing; instead the

government must win a judgment of forfeiture before title vests). At the time the United States

Marshals executed the in rem arrest warrant on the defendant boat, Florida had not received a

final order of forfeiture in the state court pursuant to the Act. Florida has therefore not perfected

lawful possession of the defendant boat, and the Eleventh Amendment did not bar Sea Tow’s

action in the district court pursuant to Deep Sea Research.

        Additionally, Sea Tow’s seeking of title to and/or a marine salvage award against the

defendant boat imposes no liability against public funds in Florida’s treasury. See Edelman v.

Jordan, 415 U.S. 651, 663-64 (1973) (holding that the Eleventh Amendment bars a suit that

seeks a liability that the state must pay from the public funds in its treasury); Jackson v. Georgia

Dept. of Transp., 16 F.3d 1573, 1577 (11th Cir.) (“The general test in determining whether the

state is the real party in interest . . . is whether the relief sought against the nominal defendant

                                                   4
would in fact operate against the state, especially by imposing liability damages that must be

paid out of the public fisc.”), cert. denied, 513 U.S. 929 (1994). Thus, we conclude that the

district court did not err in denying Florida’s motion to dismiss based on Eleventh Amendment

immunity.

                                                 AFFIRMED.



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BLACK, Circuit Judge, specially concurring:



        I concur in the result.




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