                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-4309.

   SEA SERVICES OF THE KEYS, INC., a Florida Corporation d.b.a. Sea Tow Islamorada,
Plaintiff-Appellee,

                                                  v.

       State of FLORIDA, The Department of Environmental Protection, Defendant-Appellant.

                                            Oct. 2, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 96-10119-cv-
JLK), James Lawrence King, Judge.

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


   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.
(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 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, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

                                           DISCUSSION



   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
         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 action

where the res is not within the State's possession." --- U.S. ----, ----, 118 S.Ct. 1464, 1467, 149

L.Ed.2d 626 (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, 113

S.Ct. 1126, 122 L.Ed.2d 469 (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


                                                   3
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, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (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 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, 115 S.Ct. 320, 130

L.Ed.2d 281 (1994). Thus, we conclude that the district court did not err in denying Florida's motion

to dismiss based on Eleventh Amendment immunity.

       AFFIRMED.

       BLACK, Circuit Judge, specially concurring:

       I concur in the result.




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