11-1644-cv
Northeast Research, LLC v. One Shipwrecked Vessel



                    United States Court of Appeals
                              FOR THE SECOND CIRCUIT

                                       August Term 2012

   (Submitted: December 10, 2012                           Decided: September 5, 2013)

                                     No. 11-1644-cv
                         _____________________________________

                                 NORTHEAST RESEARCH, LLC
                                    Plaintiff-Appellant,

                                                    -v.-

 ONE SHIPWRECKED VESSEL, HER TACKLE, EQUIPMENT, APPURTENANCES AND
 CARGO LOCATED WITHIN TWO NAUTICAL MILES OF A CIRCLE WITH THE CENTER
POINT AT THE COORDINATES 42 DEGREES 33 MINUTES NORTH LATITUDE, AND 79
                 DEGREES 36 MINUTES WEST LONGITUDE,
                      in rem Defendant-Appellee,

                                                -and-

                                  STATE OF NEW YORK,
                                   Claimant-Appellee.
                         _____________________________________

Before:        POOLER, HALL, and LIVINGSTON, Circuit Judges.

       In this in rem admiralty action, Plaintiff-Appellant Northeast Research,
LLC (“Northeast”) appeals from a judgment of the United States District Court
for the Western District of New York (Arcara, J.) granting summary judgment
to Claimant-Appellee the State of New York (“New York”) pursuant to the
Abandoned Shipwreck Act (“ASA”), 43 U.S.C. § 2101 et seq., and denying
Northeast’s salvage claim for its discovery of an historic Lake Erie shipwreck.
On appeal, Northeast argues, inter alia, that the district court erred in holding
that the shipwreck is abandoned within the meaning of the ASA. We conclude
that clear and convincing evidence establishes that the shipwreck is abandoned,
vesting title in New York, and that Northeast has raised no material issue of fact
to the contrary. Accordingly, we AFFIRM the judgment of the district court.


                               PETER E. HESS, Law Office of Peter E. Hess,
                               Wilmington, Delaware, for Plaintiff-Appellant
                               Northeast Research, LLC.

                               FRANK BRADY, Assistant Solicitor General (Of
                               Counsel), NANCY A. SPIEGEL, Senior Assistant
                               Solicitor General, BARBARA D. UNDERWOOD,
                               Solicitor General, for ERIC T. SCHNEIDERMAN,
                               Attorney General of the State of New York,
                               Albany, New York, for Claimant-Appellee the
                               State of New York.

                               DAVID J. BEDERMAN, Esq., Atlanta, Georgia, for
                               Amicus Curiae Odyssey Marine Exploration,
                               Inc.

DEBRA ANN LIVINGSTON, Circuit Judge:

      This action arises from the chill depths of Lake Erie, where lies the intact

shipwreck of an early nineteenth century wooden schooner. In 2004, Plaintiff-

Appellant Northeast Research, LLC (“Northeast”) filed an in rem action in

federal court laying claim to the shipwreck under admiralty law as the finder

and salvor of the sunken vessel. Claimant-Appellee the State of New York (“New

York”) intervened, asserting title to the wreck under state law and the

Abandoned Shipwreck Act (“ASA,” or the “Act”), 43 U.S.C. § 2101 et seq., which

vests title to certain abandoned shipwrecks in the state on whose land they rest.




                                        2
         On summary judgment, the parties disputed whether, as Northeast

proposed, the shipwreck was actually the General Wayne, which participated in

the Battle of Lake Erie during the War of 1812, or, as New York argued, an

abandoned and “nameless 1830s schooner that sank carrying grain.” The district

court found that the wreck is abandoned, that no material issue has been raised

to the contrary, that New York accordingly proved its claim under the ASA, and

that Northeast is not entitled to a salvage award. See Northeast Research, LLC

v. One Shipwrecked Vessel, 790 F. Supp. 2d 56, 64-66 (W.D.N.Y. 2011). On

appeal, Northeast seeks review of the district court’s holding that New York has

title to the wreck pursuant to the ASA, an inquiry that requires this Court to

articulate the standard of proof for abandonment under the ASA and whether

abandonment of a shipwreck must be express, or may be inferred

circumstantially. For the reasons stated below, we conclude that abandonment

may be inferred from circumstantial evidence, and we affirm the judgment of the

district court on the basis: (1) that the record demonstrates by clear and

convincing evidence that the shipwreck is abandoned within the meaning of the

ASA; and (2) that Northeast has failed to raise a material dispute of fact on this

issue.




                                        3
                                  BACKGROUND

                                     I. Facts

      In review of the district court’s grant of summary judgment to New York,

we view the facts in the light most favorable to Northeast. Anemone v. Metro.

Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011). Accordingly, the following facts,

unless otherwise noted, are undisputed or construed in Northeast’s favor.

A.    Discovery and Arrest of the Shipwreck

      Richard Kullberg formed Northeast in 2004 for the purpose of searching

the bottom of Lake Erie for old shipwrecks. Kullberg, who had purchased a set

of GPS coordinates indicating the potential location of Lake Erie wrecks,

discovered the Defendant-Res in 2003 while searching for another shipwreck by

means of a remote-operated vehicle.1 Known as the “Dunkirk Schooner” for the

nearby port of Dunkirk, New York, the wreck lies at an approximate depth of

170 feet on submerged New York land in the eastern basin of Lake Erie, where

the water temperature remains around 37 degrees Fahrenheit. The depth of the

freshwater covering the wreck and the cool temperature have combined to

preserve the wooden vessel in relatively pristine condition. Northeast avers that

its “ultimate goal” is to raise the Dunkirk Schooner and place it on permanent

display in a museum on the Buffalo, New York waterfront.

      1
       Northeast’s statement of undisputed facts asserts that Northeast first dived
the wreck in the early 1990s, but that assertion is not supported in the record.

                                         4
      On August 6, 2004, Northeast filed the instant in rem admiralty action in

the Western District of New York, seeking title to the Dunkirk Schooner under

the maritime2 law of finds, or, in the alternative, a salvage award, and

requesting a preliminary injunction prohibiting any rival salvors from diving or

conducting salvage operations within two nautical miles of the wreck site.

Northeast also moved for issuance of a Warrant of Arrest3 of the shipwreck and

to be appointed her Substitute Custodian in place of the U.S. Marshals. The

district court granted both motions, directing Northeast to provide public notice

of the action and arrest of the shipwreck, and for any person claiming an interest

in the Dunkirk Schooner to make an application to the court. In September

2004, New York responded to that call by filing an answer to the complaint

asserting that the Dunkirk Schooner is the sole and exclusive property of the

State pursuant to the ASA, the Submerged Lands Act, 43 U.S.C. § 1301 et seq.,

and New York Education Law § 233.


      2
         Admirality and maritime “are used synonymously today” and we do not depart
from this usage. Thomas J. Schoenbaum, 1 Admiralty and Maritime Law § 1-1 (5th
ed. 2011). Traditionally, however, they are distinct terms. “[M]aritime law . . . refer[s]
to the entire body of laws, rules, legal concepts and processes that relate to the use of
marine resources, ocean commerce, and navigation. Admiralty law . . . is narrower in
the sense that it refers only to the private law of navigation and shipping; it is broader
in that it covers inland as well as marine waters.” Id. (emphases omitted and internal
footnote).
      3
        “In an in rem admiralty action, the arrest of a shipwreck is the procedure by
which a salvor establishes jurisdiction in federal court.” Great Lakes Exploration Grp.,
LLC v. Unidentified Wrecked & (for Salvage-Right Purposes), Abandoned
SailingVessel, 522 F.3d 682, 686 (6th Cir. 2008).

                                            5
B.        Excavation of the Dunkirk Schooner

      In 2004, following its appointment as custodian of the Dunkirk Schooner,

Northeast engaged Kenneth Vrana and Robert Reedy of the Center for Maritime

& Underwater Research Management (“CMURM”) as the “archaeological team”

that would lead the investigation of the Dunkirk Schooner. Vrana, the president

of CMURM, is an underwater archaeologist who specializes in the survey and

assessment of historic shipwrecks; Reedy is also an underwater archaeologist

and experienced diver. Kullberg, Vrana, and Reedy hoped to partner with New

York in order to establish the identity of the wreck and avoid an extended legal

battle.4 To that end, Vrana and Reedy prepared a “research design” to guide

further archaeological and historical research of the Dunkirk Schooner, a process

that included documentation and survey of the site without intrusive testing or

excavation. Northeast, through its archaeological team, arranged to store any

recovered artifacts at Mercyhurst College in Erie, Pennsylvania. On May 16,

2008, CMURM applied to the New York State Museum, a division of the New

York State Education Department, for a permit to collect and excavate

archaeological materials at the wreck site. On June 4, 2008, pursuant to New




      4
         In his deposition, Kullberg explained, “I filed for a museum permit, a [New
York Education Law §] 233 permit, so we could work together, so the State of New
York would know what I was doing and we could work together, you know, step-by-
step, to find out the great history on the shipwreck.”

                                         6
York Education Law § 233,5 the State granted a permit allowing excavation of

the Dunkirk Schooner through August 30, 2008. Eventually, the State extended

the permit through September 30, 2008. The permit contained a number of

conditions, including that “[i]n the event that human remains are recovered from

the shipwreck, the State Museum must be contacted in decision-making related

to the removal and/or analysis of these remains.”6

       The primary objective of Northeast’s physical investigation of the Dunkirk

Schooner was to determine the identity of the ship, which remained a mystery,

by taking measurements, excavating its cargo, and collecting artifacts. The



       5
        New York Education Law § 233 provides in relevant part that “no person shall
investigate, excavate, remove, injure, appropriate or destroy any object of
archaeological, historical, cultural, social, scientific or paleontological interest situated
on, in or under lands owned by the state of New York, without the written permission
of the commissioner of education.” N.Y. Educ. Law § 233(4).
       6
         The permit also required that Northeast prepare and submit a report on the
project to the State Museum by November 30, 2008, and that, “[i]f the shipwreck site
is ultimately determined by the court to be under the jurisdiction of the State of New
York,” Northeast enter into a curation agreement with the State Museum for any
artifacts recovered. A letter from the New York State Museum approving the permit
and detailing conditions included the following disclaimer:

              The approval by the parties to this agreement and any
       determination by the State with respect to this application shall not
       prejudice any claim or defense of either party in this litigation but rather
       is being done as a gesture of good faith within the context of the instant
       underlying admiralty litigation. Further, any granting of a permit by the
       State pursuant to this application shall not prejudice or commit either
       party with respect to the need for, or the denial of, any subsequent
       applications by Northeast, or with respect to any position of the State
       with respect to enforcement of its laws.


                                             7
process included “desilting” parts of the wreck, obtaining core samples of the

forward hold, and a limited inspection of the after hold. Due to the depth of the

wreck, excavating and documenting the Dunkirk Schooner required “technical”

diving, “a form of self-contained diving using various mixed gases and requiring

special training and experience.”

      Although Northeast’s efforts, including the work of Vrana and Reedy,

discovered no identifying marks on the vessel, they did unearth a trove of clues.

Core samples from the forward hold yielded a mixture of wheat and barley. The

after hold, although not fully excavated, contained hickory nuts.         Divers

recovered a range of artifacts indicative of daily life aboard a sailing vessel,

including ceramic wares, watches, two compasses, lamps, crockery, period

furniture, jewelry, book bindings, brass buttons, and coins with dates from 1797

to 1834. Divers working for Northeast — apparently without the knowledge of

Vrana and Reedy — also found human bones. Northeast submitted some of

these bones to a lab for DNA analysis, which revealed that they mostly likely

came from an individual of Caucasian origin.

      Toward the end of the summer of 2008, the relationship between

Northeast and CMURM hit rough waters, in part as a result of the discovery of

the human remains, and Vrana and Reedy took no part in field investigations

after August 15, 2008. On October 21, 2008, the State Museum notified Vrana


                                        8
of alleged violations of the excavation permit, including the recovery of human

remains without notification to the State, continued diving by Northeast after

the expiration of the permit on September 30, 2008, and the removal of planks

from the roof of the Dunkirk Schooner’s cabin.7 Vrana and Reedy eventually

submitted a Report of Investigations on the Dunkirk Schooner (the “CMURM

Report”) to the State, detailing their excavation work through August 30, 2008.

      On March 4, 2009, based on an application by the New York State Office

of Parks, Recreation and Historic Preservation, the National Park Service

deemed the Dunkirk Schooner Site eligible for placement on the National

Register of Historic Places.

                               II. Procedural History

A.    The Dispute Over the Identity of the Dunkirk Schooner

      On July 31, 2009, New York moved for summary judgment on the ground,

inter alia, that the Dunkirk Schooner is abandoned within the meaning of the

ASA such that title automatically vests with the State.8 Northeast filed a cross-


      7
         Northeast maintains that other unauthorized divers damaged the shipwreck,
and that it took every effort to protect the Dunkirk Schooner from further destruction,
including requesting an injunction from the district court (which was denied) and
installing mooring blocks so that vessels could tie up without damaging the wreck.
Northeast also maintains that it never removed the human bones from the wreck site,
but placed them in a “bone bag” on the shipwreck; however, it is undisputed that
Northeast sent certain bone fragments to a lab for DNA analysis.
      8
        Additionally, New York asserted title to the Dunkirk Schooner under the
federal Submerged Lands Act and New York law, and argued that the Eleventh

                                          9
motion for partial summary judgment on August 4, 2009, disputing New York’s

claim to title and, in the alternative, requesting a salvage award. The parties’

summary judgment arguments and materials in the record, including the

CMURM Report and other analyses, focused largely on the issue of

abandonment, specifically, whether the Dunkirk Schooner could be positively

identified as the General Wayne, which Northeast asserted was not abandoned.

      Kullberg proposed the General Wayne, originally christened the Caledonia,

as a possible candidate for the identity of the Dunkirk Schooner after he and

Northeast’s videographer discovered a line drawing of the Caledonia in the Erie

Maritime Museum. Vrana and Reedy’s archival research into the Caledonia, as

detailed in the CMURM Report, laid bare the following history: Built in 1799 in

present-day Windsor, Canada, the Caledonia was a merchant vessel for the

North West Company and was employed in the fur trade on Lake Erie. When

the War of 1812 transformed Lake Erie into a battle front-line, the British

armed the Caledonia with cannons and deployed her in the attack on Fort

Michilimackinac in 1812. She was later captured on the Niagara River and

converted into an American warship, and in that guise the Caledonia played a

role in Commodore Perry’s key victory in the Battle of Lake Erie in 1813. By


Amendment divested the district court of admiralty jurisdiction over the action, that
equity mandated that Northeast’s claims should fail as a matter of law, and that
sovereign immunity barred Northeast’s salvage claim.

                                         10
1814, an American captain reported that “[t]he Caledonia is unseaworthy, from

natural decay,” and recommended her for sale. Newspaper accounts and a bill

of sale show that in 1815, John Dickson and Rufus S. Reid of Erie, Pennsylvania

bought the Caledonia and retrofitted or rebuilt her, renaming her the General

Wayne. The last reported mention of the General Wayne was in the year 1818.

No reliable reports of her sinking or other disposition have surfaced.

      In the CMURM Report, Vrana and Reedy discussed four possible historic

ships, including the General Wayne, that could be the Dunkirk Schooner, but

refrained from offering a definite conclusion regarding the identity of the wreck

and recommended that further historical and archival research is necessary to

positively identify the shipwreck. The CMURM Report does conclude that the

Dunkirk Schooner’s probable career dated from the 1820s to the1840s, and that

her cargo of hickory nuts and mixed grains was typical of ingredients used in the

production of whiskey in distilleries around the Great Lakes in the nineteenth

century. During his deposition, Vrana reiterated that he had no opinion “either

which way” regarding whether the Dunkirk Schooner is the General Wayne.

      In support of its motion for summary judgment, New York offered the

expert report of Arthur B. Cohn, executive director of the Lake Champlain

Maritime Museum. Cohn concluded “with a high degree of confidence” that the

Dunkirk Schooner is not the General Wayne, but an unidentified merchant


                                       11
vessel built shortly before 1829 and which sank sometime between 1834 and

1844.        He reached this conclusion based in part on the architecture and

measurements of the Dunkirk Schooner, which he found were consistent with

ships built to traverse the Welland Canal, completed in 1829,9 and inconsistent

with the drawing of the Caledonia in the Erie Maritime Museum.10 The General

Wayne, Cohn noted, had a reported length of 56 feet, which is nearly 20 feet

shorter than the length of the shipwreck.




        9
             As the CMURM Report explains,

               Maritime commerce between Lake Erie and Lake Ontario during
        this time period was greatly enhanced by the completion of the Welland
        Canal in 1829. However, the dimensions of the Welland Canal also
        affected the design of vessels by shipwrights in order to take advantage
        of commercial opportunities between the upper and lower lakes. . . . The
        dimensions of the Dunkirk Schooner are less than the dimensions of the
        [Welland Canal], and therefore, indicate that this vessel could have
        participated in the Lake Ontario trade after 1829.


         Cohn’s expert report and the CMURM Report both note that the line drawing
        10

of the Caledonia in the Erie Maritime Museum is a modern-day rendering by maritime
artist Kenneth Atkins in 1997, and was based on secondary sources, identified as the
“tonnage reports, Bell draught, [and] proportions of General Hunter[, another ship],
and pictures.” As Cohn explained, “The rendering is drawn from images of boats
contemporary with Caledonia to create a reasonable estimation of what a boat of that
time period and with those dimensions might have looked like.” Northeast, in order
to bolster the reliability of the Atkins drawing as proof of the Caledonia’s physical
appearance, submitted an affidavit by Peter J. Rindlisbacher, a marine artist
specializing in vessels of the Great Lakes, attesting that Atkins usually sought
primary sources as the basis for his drawings and that “Mr. Atkins’ renderings . . . of
the CALEDONIA can be relied upon as highly accurate depictions of the historic
vessel.”

                                          12
      Cohn also offered testimony to support New York’s contention that the

Dunkirk Schooner was abandoned long ago. Cohn opined that the technology to

locate and recover the vessel existed at or about the time of its sinking. He

alluded, specifically, to the salvage of the Steamboat Atlantic, which sank in

about 160 feet of water in Lake Erie in 1852, and was salvaged by hardhat

divers working in 1852 and 1855 and descending to 139 feet and 155 feet,

respectively. Cohn noted that the Dunkirk Schooner’s masts rise to about 100

feet from the surface, making it at least a potential candidate for salvage, and

yet there is no evidence that any salvage effort was ever made. Cohn opined,

finally, that the schooner’s “mixed cargo of grain and hickory nuts would not

have provided the economic incentive to drag the lake and attempt to recover the

cargo, despite the technological feasibility of that type of effort at the time.”

      In support of Northeast’s assertion that it had found the wreck of the

General Wayne, Northeast submitted an archaeological site assessment by

James Sinclair (the “Sinclair Report”).11 The Sinclair Report concluded that the

cumulative physical evidence, including the Dunkirk Schooner’s distinctive

“fiddlehead” bow, the notched rudder, measurements taken by divers, and other

architectural features, “substantiates the fact that the Dunkirk Schooner is none


      11
        Sinclair holds an M.A. in Historic Maritime Archaeology and is the vice-
president of a firm specializing in the “private-public management of shipwreck
resources.”

                                        13
other than the storied former warship and Underground Railroad freedom boat,

the CALEDONIA/GENERAL WAYNE.” According to Sinclair, all other theories

for the identity of the shipwreck could be scuttled based on inconsistencies with

the Dunkirk Schooner. Sinclair also noted that the Dunkirk Schooner’s lack of

identifying markings would be consistent with the purported use of the General

Wayne in the smuggling of slaves to freedom. Sinclair reported that the General

Wayne’s owners, Reid and Dickson, were active in the abolitionist movement and

their houses in Erie, Pennsylvania, “feature extensive labyrinths of underground

passageways reputedly used to hide fugitive slaves prior to their final journey

to freedom in Canada.” He speculated that the ship may have been carrying

fugitive slaves at the time it sunk.

      Northeast also commissioned an opinion paper from Rindlisbacher, the

marine artist who specializes in Great Lake vessels, regarding the “likelihood

that the Dunkirk wreck is actually the CALEDONIA” based on the shipwreck’s

“design features, deck fittings and present conditions.” Rindlisbacher compared

the Dunkirk Schooner with known examples of the design features of ships

contemporary to the Caledonia, concluding that the shipwreck’s “design features,

deck fittings and other characteristics . . . are consistent with the supposed

appearance of the CALEDONIA to a significant extent,” and that nothing had

“convincingly exclude[d]” the Caledonia as a possible candidate. Rindlisbacher


                                       14
recognized, however, that “[v]ery little” is known about the physical aspects of

the historic Caledonia, a circumstance which “adds increased difficulty to

evaluating whether the present wreck is actually the original CALEDONIA.”

Rindlisbacher also acknowledged that the “most difficult fact” weighing against

identifying the shipwreck as the General Wayne/Caledonia is that, assuming

that she sank sometime after 1834 (the date of the newest coin on the wreck),

she would have been at least 35 years old at her sinking (based on a 1799 launch

date), and “[t]he general wisdom is that these early schooners seldom had that

long a lifespan.” Nevertheless, “if we allow that CALEDONIA was repaired or

refurbished at least once and perhaps additionally through her career, and

finally foundered in an end-stage barge condition,” Rindlisbacher offered, “it is

conceivable that she might have been afloat for all those 35 or more years before

her loss.”

      Finally, Northeast located Hannah Reed Mays, one of the descendants of

Rufus S. Reid, the General Wayne’s co-owner. Northeast obtained from her an

assignment to Northeast of her ownership interest in the General Wayne (the

“Mays Assignment”), which it proffered as additional evidence in support of its

claim that the Dunkirk Schooner is not abandoned.12


      12
        The record also contains the affidavit of Nancy Potter, a descendant of John
Dickson, affirming that Northeast contacted her and requested that she assign her
ownership interest in the General Wayne to Northeast, but that she refused to do so.

                                        15
B.    The District Court’s Decision

      In a Report and Recommendation dated May 27, 2010, the magistrate

judge (Leslie G. Foschio, Magistrate Judge) to whom the case was referred

recommended granting New York’s motion for summary judgment and denying

Northeast’s request for a salvage award. See Northeast Research, 790 F. Supp.

2d at 66-89 (appending Report and Recommendation). With regard to New

York’s claim under the ASA, Magistrate Judge Foschio found that “even if the

. . . [v]essel is, as [Northeast] urges, the Caledonia/General Wayne,” id. at 81,

“clear and convincing evidence in the record establishes an inference of

abandonment,” id. at 80, and thus the State has title to the Dunkirk Schooner.13

      Northeast filed objections to the Report and Recommendation, and the

district court held oral argument on September 9, 2010. Id. at 61. On March 25,

2011, the district court issued a Decision and Order finding that New York had

established its claim that the Dunkirk Schooner is abandoned and that

Northeast had failed to raise a material issue to the contrary, entitling the State

to title pursuant to the ASA.           The court adopted the Report and

Recommendation “to the extent set forth herein,” granted the State’s motion for

summary judgment, and denied Northeast’s salvage award request. Id. at 66.


      13
         Magistrate Judge Foschio first determined that the Eleventh Amendment did
not divest the court of jurisdiction over the suit, even though New York had a
“colorable” claim to the shipwreck. 790 F. Supp. 2d at 74-76.

                                        16
In reaching these conclusions, the district court identified a purported split

among circuit courts regarding whether abandonment under the ASA must be

proved by express relinquishment of title or may be inferred from surrounding

circumstances, and decided to adopt an inferential standard for proving

abandonment. Id. at 63-64. The court also agreed with the magistrate judge

that abandonment must be shown by clear and convincing evidence, rather than

a preponderance of the evidence. Id. at 64. The district court referenced Cohn’s

opinion that the technology to salvage the vessel has existed since 1850 and

noted that Northeast had “provided no evidence to support” its assertion that the

Dunkirk Schooner could not have been discovered, much less salvaged, without

the advent of modern technology. Id. at 65. “Moreover,” the district court

continued, “even if a salvage operation would have been unsuccessful, as

plaintiff contends, there is no evidence that any salvage effort was attempted.”

Id. The court determined that the Mays Assignment was insufficient to create

a material dispute on the issue of abandonment, particularly as no evidence

demonstrated any effort by descendants “to locate the vessel in the 150 years

since its sinking.” Id. at 66. “In sum,” the district court held,

      the passage of over 150 years since the sinking of the vessel along with the
      absence of any effort to locate or salvage the vessel by the owners or their
      de[scendants] despite the existence of technology to do so demonstrates an
      intent to abandon by clear and convincing evidence.

Id.

      This appeal followed.

                                        17
                                     DISCUSSION

      On appeal, Northeast argues that the district court erred in granting New

York’s motion for summary judgment. Northeast principally asserts that, in

finding that the Dunkirk Schooner is abandoned, the district court failed to

apply the proper burden of proof, made impermissible factual findings, and

failed to draw reasonable inferences in favor of Northeast.14 We address each of

these arguments in turn.

A.    Standard of Review

      We review de novo a district court’s grant of summary judgment,

“construing the evidence in the light most favorable to the non-moving party and

drawing all reasonable inferences in its favor.” Fincher v. Depository Trust &

Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal quotation marks


      14
         Northeast spends a considerable portion of its brief arguing that, under
California v. Deep Sea Research, Inc., 523 U.S. 491 (1998), because New York does not
have actual possession of the Dunkirk Schooner, the state cannot have its ownership
claim adjudicated until Northeast completes its salvage operations. This argument
holds no water. Deep Sea Research held only that the Eleventh Amendment does not
bar federal jurisdiction over an in rem admiralty action so long as the state does not
have actual possession (as opposed to constructive possession) of the res to which it
claims ownership. Id. at 507-08; see also Fairport Int’l Exploration, Inc. v. Shipwrecked
Vessel (Fairport III), 177 F.3d 491, 497 (6th Cir. 1999) (Deep Sea Research “definitively
instructs us that, if a State does not possess a shipwreck, the Eleventh Amendment
does not prevent a federal court from entertaining claims under the ASA to the
shipwreck.”). We agree with the district court that the Eleventh Amendment does not
bar the exercise of jurisdiction here — an argument that New York has, in any event,
abandoned on appeal. We also conclude, however, that Northeast’s reliance on Deep
Sea Research is misplaced, as Deep Sea Research did not discuss and does not clarify
a salvor’s rights, if any, in the absence of a state’s actual possession of the wreck.

                                           18
omitted). “[W]e affirm only where we are able to conclude . . . that ‘there is no

genuine issue of dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” Costello v. City of Burlington, 632 F.3d 41, 45 (2d

Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

B.    The Abandoned Shipwreck Act

      The ASA provides in relevant part 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].

43 U.S.C. § 2105(a). 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.” Id. § 2105(c). Thus, “[f]or 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.” Sea Hunt, Inc. v.

Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 640 (4th Cir. 2000).

As it is undisputed that the Dunkirk Schooner is a wreck embedded in the

submerged lands of New York, this case turns on whether a material issue of

fact exists as to its abandonment.




                                        19
      The ASA displaces the maritime law of salvage and the law of finds that

otherwise govern shipwrecks not falling within the Act’s terms. See 43 U.S.C.

§ 2106(a) (“The law of salvage and the law of finds shall not apply to abandoned

shipwrecks to which section 2105 of this title applies.”); Great Lakes Exploration

Grp., LLC v. Unidentified Wrecked & (For Salvage-Right Purposes), Abandoned

Sailing Vessel, 522 F.3d 682, 688 (6th Cir. 2008). Although “there appears to be

no clear line of demarcation between property that is ‘salvaged’ and ‘finds,’”

Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 670 (5th Cir. 2000)

(internal quotation marks and alterations omitted), traditionally, courts have

applied the law of salvage when the original owner of a ship or cargo lost at sea

retains an ownership interest in the property — albeit also granting a “very

liberal” award to the salvor for its recovery of the res.15 Columbus-Am. Discovery

Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450, 459 (4th Cir. 1992); Thomas J.

Schoenbaum, 2 Admiralty and Maritime Law § 16.7 (5th ed. 2011); cf. Int’l

Aircraft Recovery, L.L.C. v. Unidentified, Wrecked & Abandoned Aircraft, 218

F.3d 1255, 1258 (11th Cir. 2000) (“The law of salvage generally governs efforts

to save vessels in distress. Under the law of salvage, rescuers take possession

of, but not title to, the distressed vessel and its contents.”). Conversely, the law


      15
         Technically, “[b]y performing a voluntary and successful [salvage] act, the
salvor obtains a maritime lien on the salved property, which he can enforce in rem in
an admiralty court.” Adams, 220 F.3d at 670 (internal quotation marks omitted).

                                         20
of finds vests title to property that is abandoned, or which has never been owned,

in the finder. See Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified,

Wrecked & Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir. 1987)

(applying “the ancient and honorable principle of ‘finders, keepers,’” to steam

vessel the Republic, “given the passage of so many decades” since its sinking);

cf. Columbus-Am. Discovery Grp., 974 F.2d at 460 (noting that “[a] relatively

recent trend in the law . . . has seen the law of finds applied to long lost and

abandoned shipwrecks”).      But since the ASA, where applicable, precludes

application of both the law of salvage and finds, “[i]f a diver now discovers a

long-lost ship embedded in the submerged lands of a State, a finding of

abandonment leaves the diver with neither title nor a salvage award.” Fairport

Int’l Exploration, Inc. v. Shipwrecked Vessel (Fairport III), 177 F.3d 491, 498

(6th Cir. 1999).

      In enacting the ASA, Congress sought to preserve and protect abandoned,

embedded and historic shipwrecks by entrusting states with their management

and encouraging states to develop sound policies for: (1) the protection of natural

resources and habitat associated with such wrecks; (2) the guarantee of

recreational exploration of shipwreck sites; and (3) the appropriate recovery of

wrecks so as to protect historical values and the integrity of the shipwrecks and




                                        21
their sites. See 43 U.S.C. §§ 2101, 2103.16 The ASA does not prohibit the

activities of commercial salvors but rather encourages states to regulate “private

sector recovery of shipwrecks consistent with the protection of historical values

and environmental integrity of the shipwrecks.” 43 U.S.C. § 2103(a). The Act

reflects Congress’s judgment, however, that states are the best guardians of

abandoned wrecks of historical significance found in their waters (and of other

abandoned shipwrecks embedded in state lands), and that a policy of settling

ownership of such shipwrecks with states promotes the best interests of the

public. See Zych v. Unidentified, Wrecked & Abandoned Vessel, Believed to Be


      16
           The ASA’s “Congressional statement of findings” provides:

      (a) States have the responsibility for management of a broad range of
      living and nonliving resources in State waters and submerged lands; and
      (b) included in the range of resources are certain abandoned shipwrecks,
      which have been deserted and to which the owner has relinquished
      ownership rights with no retention.

43 U.S.C. § 2101. Moreover, the ASA states that

      [I]t is the declared policy of the Congress that States carry out their
      responsibilities under this chapter to develop appropriate and consistent
      policies so as to —
              (A) protect natural resources and habitat areas;
              (B) guarantee recreational exploration of shipwreck sites; and
              (C) allow for appropriate public and private sector recovery of
              shipwrecks consistent with the protection of historical values and
              environmental integrity of the shipwrecks and the sites.

Id. § 2103(a) (“Access rights”). In that vein, “States are encouraged to create
underwater parks or areas to provide additional protection for such resources.” Id. §
2103(b) (“Parks and protected areas”).

                                           22
the “Seabird,” 19 F.3d 1136, 1140 (7th Cir. 1994) (“Congress passed the ASA to

clear up any confusion over who owns certain abandoned shipwrecks.”).

      1. Abandonment under the ASA

      Northeast concedes that the Dunkirk Schooner is a historically significant

shipwreck embedded in the submerged lands of New York, but disputes that it

is “abandoned” within the meaning of the Act. As Magistrate Judge Foschio

succinctly explained, “[i]f . . . the Dunkirk Schooner is not abandoned, then

neither the ASA nor the maritime law of finds applies, and although title would

vest in neither North[e]ast nor New York, [Northeast] could be granted a salvage

award.” Northeast Research, 790 F. Supp. 2d at 78. If the wreck is abandoned,

then it belongs to New York pursuant to the ASA.

      The ASA does not define the term “abandoned.” However, the Supreme

Court has stated that “the meaning of ‘abandoned’ under the ASA conforms with

its meaning under admiralty law.” California v. Deep Sea Research, Inc., 523

U.S. 491, 508 (1998). In admiralty cases, courts do not assume that ship owners

have abandoned their vessels simply because the vessels have wrecked. See

Dluhos v. Floating & Abandoned Vessel, Known as “New York,” 162 F.3d 63, 74

(2d Cir. 1998). Rather, courts employ an “assumption of nonabandonment,”

anchored on the “realistic premise that property previously owned but lost at sea

has been taken involuntarily out of the owner’s possession and control by the


                                       23
forces of nature at work in oceans and waterways.” Columbus-Am. Discovery

Grp., 974 F.2d at 460-61 (quoting Hener v. United States, 525 F. Supp. 350, 356-

57 (S.D.N.Y. 1981)); see Fairport III, 177 F.3d at 498 (“Intent on protecting the

property rights of owners, admiralty courts recognize a presumption against

finding abandonment.”). Thus, abandonment under admiralty law “means much

more than merely leaving the property, for it has long been the law that when

articles are lost at sea the title of the owner in them remains.” Columbus-Am.

Discovery Grp., 974 F.2d at 461 (internal quotation marks and alteration

omitted).

      As a consequence of the presumption against abandonment, courts in this

Circuit and elsewhere have traditionally imposed a stringent burden of proof of

abandonment in the admiralty context. See, e.g., The C.P. Minch, 73 F. 859, 865

(2d Cir. 1896) (holding that circumstances must show abandonment of a vessel

was “absolute, without hope or expectation of recovery”); Adams, 220 F.3d at

671; Trueman v. Historic Steamtug New York, 120 F. Supp. 2d 228, 233

(N.D.N.Y. 2000); Schoenbaum, 2 Admiralty and Maritime Law § 16-7 (stating

that application of law of finds “requires strong proof” that the property was

lost). Those circuits that have decided the issue, moreover, have adopted a

heightened “clear and convincing evidence” standard for states attempting to

prove abandonment under the ASA. See Fairport III, 177 F.3d at 500-01


                                       24
(holding that state must prove abandonment by clear and convincing evidence);

Sea Hunt, 221 F.3d at 644 (same). We agree that the clear and convincing

“burden of proof accords with maritime law and with the protection of private

property rights against appropriation by the state,” Fairport III, 177 F.3d at

501, and therefore hold that abandonment for ASA purposes must be shown by

clear and convincing evidence by the party arguing for abandonment — the

state.

         We also agree with the district court that abandonment pursuant to the

ASA need not be proved by express or explicit statements of intent to abandon,

but rather may be inferred from circumstantial evidence (provided such evidence

is sufficiently strong as to satisfy the clear and convincing burden). Although

the district court identified a circuit split regarding inferential abandonment

under the ASA, those Circuits that have broached the subject in fact agree on

the following: that for ships last owned by a private party, abandonment may be

inferred from circumstantial evidence in appropriate cases, at least when there

is no owner presently claiming an interest in the vessel.17 Compare Fairport III,




         The Sixth Circuit limited its holding in Fairport III to shipwrecks last owned
         17

by a private party and “express[ed] no view” as to whether express abandonment is
required as to “vessels initially owned by the United States.” Fairport III, 177 F.3d at
500. See also Sea Hunt, 221 F.3d at 643 (applying express abandonment test in context
of in rem action against two Spanish ships claimed by Spain). We similarly limit our
holding and analysis.

                                          25
177 F.3d at 500 (holding that “a State may prove by inference that a shipwreck

last owned by a private party is ‘abandoned’”), and Deep Sea Research, Inc. v.

Brother Jonathan, 89 F.3d 680, 688 (9th Cir. 1996), vacated on other grounds by

California v. Deep Sea Research, 523 U.S. 496 (1998) (applying “traditional

approach” to abandonment that “allows abandonment to be inferred on the basis

of circumstantial evidence”), with Sea Hunt, 221 F.3d at 641 (noting that “[a]n

inference of abandonment is permitted, but only when no owner appears”).

      This approach comports with the treatment of abandonment in admiralty

cases. Indeed, even before enactment of the ASA, courts applying traditional

admiralty principles had begun to reject the notion that “[d]isposition of a

wrecked vessel whose very location has been lost for centuries” must proceed “as

though its owner were still in existence.” Treasure Salvors, Inc. v. Unidentified

Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978). See

Martha’s Vineyard Scuba Headquarters, 833 F.2d at 1065 (applying law of finds

to long-lost ship without requiring express abandonment); Dluhos, 162 F.3d at

74 (recognizing trend away from legal fiction “under which an owner . . . retains

title” to a ship that has “rested for centuries under fathoms of open ocean”). As

the Ninth Circuit has observed:

      Traditionally, maritime law has found abandonment when title to
      a vessel has been affirmatively renounced, or when circumstances
      give rise to an inference that the vessel has been abandoned; courts


                                       26
      have found abandonment, for instance, when a vessel is “so long lost
      that time can be presumed to have eroded any realistic claim of
      original title.”

Deep Sea Research, 89 F.3d at 688 (quoting Martha’s Vineyard Scuba

Headquarters, 833 F.2d at 1065). Requiring express abandonment in all ASA

cases would be inconsistent with these admiralty cases and, as the Sixth Circuit

has observed, would “render the ASA a virtual nullity,” since “such explicit

action is obviously rare indeed,” Fairport Int’l Exploration, Inc. v. Shipwrecked

Vessel Known as the Captain Lawrence (Fairport II), 105 F.3d 1078, 1085 (6th

Cir. 1997), vacated on other grounds by 523 U.S. 1091 (1998).

      In determining whether clear and convincing circumstantial evidence

supports inferring abandonment, courts consider a variety of factors, including

lapse of time, the location and circumstances of the wreck, whether parties

presently claim ownership, whether such parties have attempted to locate or

salvage the vessel, and the availability of technology to do so. While mere non-

use and lapse of time alone may not be enough to establish abandonment, “a

combination of several facts, proved clearly and convincingly, . . . may support

a finding than an owner has abandoned a shipwreck.” Fairport III, 177 F.3d at

500; see also Trueman, 120 F. Supp. 2d at 234; Moyer v. Wrecked & Abandoned

Vessel, Known as The Andrea Doria, 836 F. Supp. 1099, 1105 (D.N.J. 1993)

(“Factors such as lapse of time and nonuse by the owner may give rise to an


                                       27
inference of intent to abandon. Other factors include the place of the shipwreck

as well as the actions and conduct of the parties having ownership rights in the

vessel.” (citations omitted)). For example, an owner’s failure to salvage a vessel

despite the availability of technology to do so may support an inference that the

owner has abandoned his property, while the technical infeasibility of salvage

may deprive the owner’s inaction of evidentiary significance. Compare Zych v.

Unidentified, Wrecked & Abandoned Vessel Believed to be the “SB Lady Elgin”,

755 F. Supp. 213, 216 (N.D. Ill. 1991) (finding that insurance company “was not

required to engage in efforts to recover the wreck in order to avoid abandoning

its interest when such efforts would have minimal chances for success” due to

lack of enabling technology) with Fairport Int’l Exploration, Inc. v. Shipwrecked

Vessel (Fairport IV), 72 F. Supp. 2d 795, 798-801 (W.D. Mich. 1999) (inferring

abandonment based in part on evidence of failure to attempt salvage despite

technological feasibility), and Moyer, 836 F. Supp. at 1105 (insurer’s “failure to

engage in salvage efforts” not excused where technology to salvage the wreck

was available shortly after its sinking).

      For obvious reasons, discovering the identity of a vessel, if ascertainable,

is helpful in determining whether it is abandoned. See Fathom Exploration

L.L.C. v. Unidentified Shipwrecked Vessel or Vessels, 857 F. Supp. 2d 1269, 1272-

73 n.4 (S.D. Ala. 2012) (in suit involving claims under the ASA, noting that “the


                                        28
identity of Shipwreck #1 is of vital importance to the parties’ underlying claims

and rights in this matter”). But it does not follow that a shipwreck must be

positively identified in order to adjudicate a state’s claim to title under the ASA.

See id. at 1279 (provisionally identifying shipwreck as British barque the Amstel

for purposes of determining whether it was abandoned pursuant to the ASA even

absent any “ hard evidence” to support that theory as the “definitive truth”); cf.

Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514

(11th Cir. 1985) (in pre-ASA case, applying law of finds to determine ownership

of unidentified shipwreck); Smith v. Abandoned Vessel, 610 F. Supp. 2d 739, 754

(S.D. Tex. 2009) (inferring that unidentified and potentially nonexistent vessel

was abandoned). Common sense suggests that in some circumstances, especially

in the case of old and ancient wrecks, “100% certainty as to the vessel’s identity

is not possible,” even after “untold hours of laborious research[.]” Fathom

Exploration, 857 F. Supp. 2d at 1272 n.4. Imposing such a requirement (which,

at any rate, is not to be found in the text of the ASA) would thus undermine the

statute by condemning some wrecks and the artifacts associated with them to

a watery limbo, vulnerable to further deterioration and destruction. Thus,

although ascertaining the identity of a vessel is certainly helpful in making the

determination whether the vessel has been abandoned, this is not a precondition

for determining abandonment under the ASA.


                                         29
C.    The Dunkirk Schooner is Abandoned under the ASA

      The question before this Court is whether the district court erred in

determining that New York established its case by clear and convincing

evidence, and that Northeast failed to raise a material issue of fact as to whether

the Dunkirk Schooner is abandoned. We conclude that the district court did not

err in granting summary judgment to New York.              There are admittedly

questions of fact regarding the identity of the Dunkirk Schooner — questions

that Lake Erie has perhaps permanently obscured. But in this case, the district

court properly determined that this mystery need not impede adjudication of

title to the shipwreck.

      In reviewing the grant of summary judgment to New York, we view the

evidence in the light most favorable to Northeast and assume that the Dunkirk

Schooner is the War of 1812 battleship the General Wayne, née Caledonia. Even

so, New York has demonstrated abandonment by clear and convincing evidence:

there were no efforts to locate the wreck for over 150 years; General Wayne’s

poor working condition and spoilable contents strongly call into question the

economic worth of the vessel and the then-owners’ continued interest in

recovery; and the alleged owners’ descendants have no proof of their ownership

of the vessel, further suggesting abandonment by the original owners. We




                                        30
therefore uphold the district court’s conclusion that the Dunkirk Schooner was

abandoned.

      Proceeding on the assumption that Northeast discovered the wreck of the

General Wayne, the following undisputed facts emerge: Originally built in 1799,

the Caledonia, a wooden schooner, sank sometime after 1833 with some

unfortunate souls on board. This means that she was at least 34 years old when

she sank and, as Northeast’s own evidence suggests, nearing the end of her

expected lifespan even if she was retrofitted in 1815, after her purchase by

Dickson and Reid.18 At the time of her disaster, the hold of the Caledonia,

renamed the General Wayne, contained grain and hickory nuts, which were

undoubtedly ruined by the water and rendered valueless. After 1818, moreover,

the General Wayne disappears from the history books, and there is no record of

her sinking. Assuming, then, that the Dunkirk Schooner is the General Wayne,

she has rested at the bottom of Lake Erie for at least 150 years. And there is no

evidence — none — that her former owners Reid and Dickson (or anyone else

connected to the ship) ever tried to locate her or took any actions indicative of a

continued interest prior to her discovery by Northeast in 2003.


      18
         Rindlisbacher, Northeast’s expert witness, opined that the Dunkirk Schooner
was not in a “normal working state” when she sank, since “[h]er stand rigging had been
removed, along with essential spars, which do not indicate that she was sailing very
effectively prior to her sinking. This is consistent with a ship which, being at the end
of her working life, was unable to tolerate the working loads of being under sail.”

                                          31
      Pointing to the abolitionist ties of Reid and Dickson and the lack of

identifying markings on the Dunkirk Schooner, Northeast speculates that the

General Wayne was used to ferry fugitive slaves to Canada as part of the

Underground Railroad — so that Reid and Dickson had an incentive not to

attempt to find the vessel containing proof of their illegal activities immediately

after it sunk. However, even if we assume that the General Wayne was carrying

escaped slaves when it wrecked — an inference supported only by Sinclair’s bald

speculation — that fact still does not support a finding of non-abandonment.

While in some circumstances, “lack of overt efforts to claim the ship may comport

as much with a concern for secreting [treasure] as with an intent to abandon the

ship,” such is not the case here. Fairport III, 177 F.3d at 501 n.4 (discussing

possible intent of ship’s owner to return to gold that might lie with the ship).

Whereas the “secreting” of treasure is presumably done with the intent to return

to the booty and retain a claim to it, a decision to leave the evidence of an illegal

act carries no such implication — especially where the evidence, as here, was an

old ship and a ruined cargo.

      The parties disagree about whether the technology existed to salvage the

General Wayne after it sank, and whether the Mays Assignment is a legitimate

claim of ownership that creates a genuine issue of material fact regarding

abandonment. On the issue of technology, we agree with Northeast that the


                                         32
district court erred in concluding that no issue of fact exists as to whether

hardhat divers could have recovered the Dunkirk Schooner beginning in 1852.

New York’s expert, Cohn, noting that the Dunkirk Schooner’s masts rise to about

100 feet from the surface of Lake Erie, based his conclusion that hardhat divers

could have salvaged the Dunkirk Schooner near the time of its wreck on his

observation that “[o]n Lake Erie the Steamboat Atlantic which sank in 160 feet

of water in 1852 was salvaged by hardhat divers descending to 139 and 155 feet

in 1852 and 1855.” However, the record also contains evidence that “technical

diving,” which relies on modern technology, is required today to reach the wreck.

Moreover, the ability of hardhat divers to reach the top of the General Wayne’s

mast (the ship itself lies at 170 feet) hardly demonstrates the technological

feasibility of recovery, let alone a likelihood of successful salvage. See Zych, 755

F. Supp. at 216. Based on our review of the record, we therefore conclude that

the technological possibility of salvage in the mid-1850s remains a disputed

issue.

         Nevertheless, even assuming that technological infeasibility barred

recovery in the 1850s, the Dunkirk Schooner remained undisturbed for 150 years

thereafter, despite advances in deep-water salvage in the intervening years. See

Columbus-Am. Discovery Grp., 974 F.2d at 467 (mentioning “drastic advances

in deep water salvage” by the late 1970s). Long past fear of repercussion for


                                         33
illegally helping fugitive slaves, and long past any time in which deep-water

salvage was out of the question, no owner of the General Wayne, or any successor

in interest, made efforts to locate or recover the wreck. To the extent Northeast

relies on the Mays Assignment as a demonstration of continued owner interest,

moreover, this applies to Mays as well.

      Regarding the Mays Assignment, we conclude, contrary to Northeast’s

claim, that it creates no genuine issue of material fact necessitating trial on the

issue of abandonment. The validity of Mays’s ownership claim, and thus of the

assignment to Northeast, depends on several significant assumptions: first, that

Mays’s great-great-great grandfather Rufus Reid did not abandon the General

Wayne during his lifetime; second, that Reid bequeathed the General Wayne to

his children (or that title otherwise passed to them) rather than to someone else;

third, that title to the General Wayne thereafter passed to Reid’s descendants;

and fourth, that those descendants did not abandon the General Wayne.

Although Mays’s declaration attests to her family lineage and the fact that her

ancestor Reid purchased a half-ownership in the General Wayne in 1816, it offers

no documentary or other proof, or even personal belief, that the General Wayne

remained in the family or that Mays inherited an ownership interest in the ship.

Thus, while the assumption that the Dunkirk Schooner is the General Wayne

has some (albeit limited) support in the record, there is no evidence supporting


                                        34
any of the assumptions necessary to transform the Mays Assignment into

legitimate proof of ownership when faced with 150 years of non-interest. In

these circumstances, no reasonable inference against abandonment may be

drawn from the Mays Assignment. See Scotto v. Almenas, 143 F.3d 105, 114 (2d

Cir. 1998) (stating that “[t]he non-moving party may not rely on conclusory

allegations or unsubstantiated speculation[]” to defeat a motion for summary

judgment).

      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. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986) (“[T]he mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of


                                         35
material fact.”); cf. Fairport Int’l Exploration, Inc. v. The Captain Lawrence

(Fairport V), 245 F.3d 857, 863-64 (6th Cir. 2001) (affirming district court’s

conclusion that state proved abandonment despite evidence of owner’s financial

inability to return to shipwreck). 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.” Fairport III, 177 F.3d at 499 (citation

omitted). 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,” Martha’s Vineyard Scuba Headquarters, 833

F.2d at 1065. Northeast has failed to point to any fact in the record sufficient to

create a genuine issue of material fact to the contrary. See Scotto, 143 F.3d at

114 (“[T]he non-movant [opposing a motion for summary judgment] must

produce specific facts indicating that a genuine factual issue exists.” (internal

quotation marks omitted)).     Accordingly, summary judgment was properly

granted to New York.




                                        36
                               CONCLUSION


      We have considered Northeast’s remaining arguments and find them to

be without merit. We conclude that dismissing the case on summary judgment

was proper because the Dunkirk Schooner is abandoned and title vests in New

York pursuant to the ASA. For the foregoing reasons, we AFFIRM the judgment

of the district court.




                                    37
