             Case: 14-10688   Date Filed: 08/29/2014   Page: 1 of 14


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-10688
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:12-cv-00656-JSM-EAJ


FRANCISCO MARTIN,

                                                               Plaintiff-Appellant,

                                     versus

ONE BRONZE ROD,
ONE CHEST, including its contents and associated artifacts,
ONE CHEST, including its contents and associated artifacts,
ONE CHEST, including its contents and associated artifacts,

                                                           Defendants-Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                               (August 29, 2014)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant Francisco Martin sought warrants of arrest in rem against

one bronze rod and three chests, including their contents and associated artifacts, in

connection with his claims for salvage, forfeiture, and/or possession brought under

federal admiralty jurisdiction in the district court. Martin believes the res to be

cargo of the Gasparilla Pirates buried over 150 years ago. The district court denied

his motion for the issuance of a warrant of arrest in rem as to the three chests,

which remain buried on private and state-owned lands, but granted it as to the

bronze rod, which Martin had already seized, and eventually awarded Martin full

title to the rod as compensation for his salvage services. Martin now appeals the

district court’s rulings as to the three chests. After careful review, we affirm.

                                I. BACKGROUND

      Martin alleges that through extensive research, including deciphering codes

engraved on copper and pewter plates, he discovered the location of what he

believes to be piratical cargo buried by the Gasparilla Pirates over 150 years ago in

the Peace River Basin in DeSoto County, Florida. Martin already found and took

possession of one bronze rod, which he removed by hand from the river bottom,

15% of the rod having been buried. He also claims that he has pinpointed the

locations of three buried chests using a deep penetrating metal detector, but he has

been prevented from unearthing the chests because they are on private property




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and state-owned lands. Notably, he alleges that the rod and the chests are different

portions of the same res.

       Martin filed a verified amended complaint in the district court, which

included a salvage claim pursuant to the law of salvage, a forfeiture claim pursuant

to 33 U.S.C. §§ 383, 384, and 385,1 and possessory and ownership claims pursuant




       1
              Section 383 provides:

       The commander and crew of any merchant vessel of the United States, owned
       wholly, or in part, by a citizen thereof, may oppose and defend against any
       aggression, search, restraint, depredation, or seizure, which shall be attempted
       upon such vessel, or upon any other vessel so owned, by the commander or crew
       of any armed vessel whatsoever, not being a public armed vessel of some nation
       in amity with the United States, and may subdue and capture the same; and may
       also retake any vessel so owned which may have been captured by the
       commander or crew of any such armed vessel, and send the same into any port of
       the United States.

33 U.S.C. § 383. Section 384 provides:

       Whenever any vessel, which shall have been built, purchased, fitted out in whole
       or in part, or held for the purpose of being employed in the commission of any
       piratical aggression, search, restraint, depredation, or seizure, or in the
       commission of any other act of piracy as defined by the law of nations, or from
       which any piratical aggression, search, restraint, depredation, or seizure shall have
       been first attempted or made, is captured and brought into or captured in any port
       of the United States, the same shall be adjudged and condemned to their use, and
       that of the captors after due process and trial in any court having admiralty
       jurisdiction, and which shall be holden for the district into which such captured
       vessel shall be brought; and the same court shall thereupon order a sale and
       distribution thereof accordingly, and at its discretion.

Id. § 384. Section 385, which provides for the condemnation of piratical vessels upon capture by
any public-armed ship, is not applicable to Martin’s case, as his claims do not allege capture by
any such ship. See id. § 385.



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to the law of finds.2 He also filed a motion requesting the issuance of a warrant of

arrest in rem against the rod and the chests under Rules C and G of the

Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture

Actions to the Federal Rules of Civil Procedure. 3 The magistrate judge found that

Martin had established a valid salvage claim as to the rod, but not the chests, and

rejected all other claims. Accordingly, the magistrate granted Martin’s motion for

the issuance of a warrant of arrest in rem for the rod and denied his motion in all

other respects.

        Martin then filed a motion for reconsideration, arguing that the magistrate

erred in refusing to issue a warrant of arrest in rem for the chests. The magistrate

judge denied that motion, and Martin filed objections to the magistrate’s order.


        2
                  Martin does not sufficiently raise any argument as to his claim under the law of
finds on appeal; he includes only one sentence in his Statement of the Case declaring that he
seeks title to the chests alternatively under the law of finds, which is insufficient to raise the issue
for review. See, e.g., Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.
1989) (“Although Greenbriar refers to the district court’s dismissal of its amendment in its
Statement of the Case in its initial brief, it elaborates no arguments on the merits as to this issue
in its initial or reply brief. Accordingly, the issue is deemed waived.”).
        3
                Rule C of the Supplemental Rules for Admiralty and Maritime Claims provides
for maritime actions in rem to enforce any maritime lien or when a federal statute authorizes
such an action. Rule C states that “[i]f the conditions for an in rem action appear to exist, the
court must issue an order directing the clerk to issue a warrant for the arrest of the vessel or other
property that is the subject of the action.” Fed. R. Civ. P. Supp. R. C(3)(a)(i).

        Rule G applies in conjunction with Rule C and governs forfeiture actions in rem arising
from a federal statute. It provides, inter alia, that “the court—on finding probable cause—must
issue a warrant to arrest the property if it is not in the government’s possession, custody, or
control and is not subject to a judicial restraining order.” Id. R. G(3)(b)(ii).



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The district court subsequently overruled Martin’s objections and affirmed the

magistrate’s order denying Martin’s motion for reconsideration. Martin then filed

a Notice of Interlocutory Appeal from the district court’s order affirming the

magistrate’s denial of his motion for reconsideration of the order refusing to issue a

warrant of arrest in rem for the chests. This Court dismissed the interlocutory

appeal for lack of appellate jurisdiction, finding that the appeal was from a

nonfinal order of the district court.

      Martin filed a petition for reconsideration with the Eleventh Circuit, and

while his petition was pending, the district court ordered the case to be

administratively closed “without prejudice to Plaintiff to move to reopen the case if

he receives a favourable ruling from the Eleventh Circuit.” After this Court denied

his petition for reconsideration, Martin filed a motion to reopen the case with the

district court only “to seek a salvage or forfeiture award for his seizure of [the

bronze rod] (or, in the alternative, title to [the rod]).” He included one sentence

about the chests in his motion, stating that he “should be given leave to amend his

complaint as against [the chests] upon their eventual actual seizure by Martin.”

      The district court granted Martin’s motion to reopen “for the sole purpose of

permitting Plaintiff to seek a salvage or forfeiture award related to his seizure of

Defendant One Bronze Rod.” The court denied Martin’s request for leave to

amend his complaint upon seizure of the chests, finding that he failed to state any


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reason why the court should permit amendment at such a late date. The court

noted that the magistrate’s order denying Martin’s motion for a warrant of arrest in

rem against the chests did not contemplate amendment and that Martin chose to

file an interlocutory appeal to the Eleventh Circuit rather than seek amendment.

       After the district court granted his motion to reopen, Martin filed a motion

for judgment on the pleadings, claiming a right to the bronze rod or the proceeds

from the sale thereof under salvage and forfeiture law. He also declared that “[f]or

purposes of appeal, reconsideration and/or other review, Plaintiff preserves his

claims regarding Defendants Chests.” The court referred Martin’s motion for

judgment on the pleadings to the magistrate, who again rejected Martin’s forfeiture

claim under § 384 but found that Martin had established a valid salvage claim.

The magistrate recommended that Martin be awarded title to the rod, and the

district court adopted the magistrate’s Report and Recommendation on all

accounts, awarding Martin title to the rod as compensation for his salvage

services.4 The court entered final judgment, granting Martin full title to the rod

and dismissing his amended complaint in all other respects. Martin now appeals.


       4
                Martin had attached a 3.5-inch segment of the rod to his amended complaint,
turning over custody of the rod to the court, and the magistrate judge ordered the clerk of the
court to temporarily take possession of the segment. Then, after directing the clerk to issue a
warrant of arrest in rem for the rod, the magistrate, upon Martin’s motion, appointed Martin
substitute custodian of the rod and directed the United States Marshal to surrender possession of
the rod to Martin. After the issuance of the warrant of arrest in rem for the rod, Martin submitted
to the court proof of publication, which gave notice of the action in rem against the rod and the


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                                       II. DISCUSSION

        We review a judgment on the pleadings de novo. Hawthorne v. Mac

Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). On appeal, Martin

challenges the lower court’s rejection of his salvage and forfeiture claims as to the

chests. 5 He also avers that the lower court erred in ruling that it lacked

constructive in rem jurisdiction over the chests.

        Under Rule C of the Supplemental Rules for Admiralty and Maritime

Claims, a party may bring an action in rem to enforce any maritime lien or if a

federal statute provides for such an action. See Fed. R. Civ. P. Supp. R. C(1). If

the court determines that a prima facie case exists for an in rem action, “the court

must issue an order directing the clerk to issue a warrant for the arrest of the vessel

or other property that is the subject of the action.” Id. R. C(3)(a)(i). Under Rule




arrest thereof. Martin repeatedly demonstrated to the district court that no one had come forward
claiming title to the rod, and the court granted Martin’s motion to reopen the case to allow him to
seek a salvage or forfeiture award as to the rod. The court then granted him full title to the rod.
         5
                Martin’s Notice of Appeal identifies the district court’s final judgment, which
granted him full title to the bronze rod and dismissed his amended complaint in all other
respects, as the order from which he appeals. Although the district court reopened the case after
Martin’s interlocutory appeal to this Court solely to allow Martin to seek further action as to the
rod, because “the appeal from a final judgment draws in question all prior non-final orders and
rulings which produced the judgment,” Barfield v. Brierton, 883 F.2d 923, 930 (11th Cir. 1989),
his Notice of Appeal is sufficient to allow review of the district court’s orders regarding the
chests as well. See 16A Charles Alan Wright et al., Federal Practice and Procedure § 3949.4, at
100–05 (4th ed. 2008) (“A notice of appeal that names the final judgment suffices to support
review of all earlier orders that merge in the final judgment . . . , at least if the earlier orders are
part of the progression that led up to the judgment rather than being separate from that
progression.” (footnote omitted)).


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G, where an in rem forfeiture action arises from a federal statute, “the court—on

finding probable cause—must issue a warrant to arrest the property if it is not in

the government’s possession, custody, or control.” Id. R. G(3)(b)(ii). In this case,

the magistrate judge found, and the district court affirmed, that Martin failed to

establish either a prima facie case or probable cause pursuant to Rules C and G

justifying arrest in rem of the three chests under either salvage or forfeiture law.

For the following reasons, we affirm.

     A. Salvage

      Although the magistrate judge and the district court held that Martin had a

viable salvage claim with respect to the bronze rod, the lower courts rejected his

salvage claim with respect to the three chests. We agree.

      “Salvage is the compensation allowed to persons by whose assistance a ship

or her cargo has been saved, in whole or in part, from impending peril on the sea,

or in recovering such property from actual loss, as in cases of shipwreck, derelict,

or recapture.” Simmons v. The S.S. Jefferson, 215 U.S. 130, 139–40, 30 S. Ct. 54,

57 (1909) (internal quotation marks omitted). A salvor has a lien on the property

saved under maritime law, which allows him to maintain a suit in rem against the

ship or cargo. The Sabine, 101 U.S. 384, 386 (1879). “[W]hen a party files an in

rem complaint, the court issues a warrant for the arrest of the res and the res

remains in the court’s custody for the remainder of the proceedings.” Odyssey


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Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1171

(11th Cir. 2011). Three elements are necessary to establish a valid claim for a

salvage award: (1) a maritime peril from which the ship or other property could not

have been rescued without the salvor’s assistance; (2) a voluntary act by the salvor

under no preexisting official or contractual duty to render assistance; and (3)

success in saving or in helping to save at least part of the property at risk. The

Sabine, 101 U.S. at 384; Klein v. Unidentified Wrecked & Abandoned Sailing

Vessel, 758 F.2d 1511, 1515 (11th Cir. 1985).

       “Success is essential to the claim; as if the property is not saved, or if it

perish, or in case of capture if it is not retaken, no compensation can be allowed.”

The Blackwall, 77 U.S. (10 Wall.) 1, 12 (1869). Success in recovering the res is

especially important because the court is required to have “exclusive custody and

control over the property . . . so as to be able to adjudicate rights in it that are

binding against the world.” Odyssey Marine Exploration, 657 F.3d at 1171

(internal quotation marks omitted). In certain cases, however, courts have issued

arrest warrants and exercised in rem jurisdiction over property not yet in the actual

possession of the court where part of a shipwreck is recovered. See, e.g., R.M.S.

Titanic, Inc. v. Haver, 171 F.3d 943, 964 (4th Cir. 1999) (“The propriety of

exercising in rem jurisdiction over an entire ship wreck within the court’s

territorial jurisdiction when only part of that wreck is actually presented to a court


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rests upon the fiction that the res is not divided and that therefore possession of

some of it is constructively possession of all.”).

      Regarding his success in salvaging the chests, Martin alleges only that he

has located three “large metallic objects” that he believes are piratical cargo

consisting of copper chests containing gold, silver, and jewelry. He nevertheless

argues that he was successful in recovering part of the imperiled res to which the

chests belong by salvaging the rod. Accordingly, he asks this Court to adopt a

theory of constructive in rem jurisdiction over the chests based on his successful

recovery of the rod. However, we agree with the lower courts that Martin has not

sufficiently demonstrated that the rod and the chests are part of an undivided res so

as to allow the court to exercise constructive in rem jurisdiction over the chests

based on his salvage of the rod. To the contrary, in his amended complaint Martin

describes the chests as “isolated and not in geographical association with any

shipwreck.” Moreover, Martin cites no case indicating that a theory of

constructive possession, which courts have used to exercise constructive in rem

jurisdiction over an entire shipwreck when only part of the wreck is presented to

the court, extends to separate items of cargo that are isolated from one another and




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do not hail from any shipwreck.6 And we decline the opportunity to extend the

theory in such a way under the circumstances of this case.

       As Martin has otherwise failed to adequately plead success in whole or in

part in salvaging the chests, he has not established a valid salvage claim as to the

chests. 7 Thus, we find that the lower courts did not err in refusing to issue a

warrant of arrest in rem against the chests under the law of salvage.

      B. Forfeiture

       The magistrate judge and the district court found that Martin failed to

establish a viable forfeiture claim with respect to the three chests (or the bronze rod

for that matter). We agree.

       Martin argues that he established a forfeiture claim against the chests under

33 U.S.C. §§ 383 and 384. Section 383, entitled “Resistance of pirates by

merchant vessels,” authorizes any merchant vessel owned by a United States




       6
                Martin does allege that he has located the shipwreck of a three-mastered schooner
operated by the Gasparilla Pirates in the Peace River Basin, and he also alleges that the rod and
the chests were all carried on board that ship. However, he repeatedly asserts that the chests
were intentionally buried—as opposed to being scattered by the sinking of any ship—and are
“not in geographical association with any shipwreck.” The circumstances of this case are
therefore distinct from those in which courts have applied a theory of constructive in rem
jurisdiction over an entire shipwreck based on actual possession of a part thereof.
       7
              Because we find that Martin’s salvage claim fails on the element of success, we
need not address the other two elements.



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citizen 8 to “oppose and defend against any aggression, search, restraint,

depredation or seizure” by a piratical vessel and to capture the vessel and retake

any other ship that the vessel previously captured. 33 U.S.C. § 383. Section 384,

entitled “Condemnation of piratical vessels,” provides:

       Whenever any vessel, which shall have been built, purchased, fitted
       out in whole or in part, or held for the purpose of being employed in
       the commission of any piratical aggression, search, restraint,
       depredation, or seizure, or in the commission of any other act of
       piracy . . . is captured and brought into or captured in any port of the
       United States, the same shall be adjudged and condemned to their use,
       and that of the captors after due process and trial in any court having
       admiralty jurisdiction . . . ; and the same court shall thereupon order a
       sale and distribution thereof accordingly, and at its discretion.

Id. § 384. These provisions fall within a chapter of the United States Code entitled

“Regulations for the Suppression of Piracy,” and the cases triggering application of

§§ 383 and 384 are distinguishable from Martin’s circumstances. See, e.g., The

City of Mexico, 28 F. 148, 150 (S.D. Fla. 1886) (dismissing a claim for forfeiture

of a vessel as prize because the vessel had not committed any overt act of piracy);

The Chapman, 5 F. Cas. 471, 476 (N.D. Cal. 1864) (determining that the captured

vessel did not fall under the provisions relating to piracy and that, consequently,

the captors of the vessel were not entitled to any proceeds resulting from the

condemnation of the vessel because its seizure was not authorized under those


       8
              Martin alleged in his amended complaint that he is the owner and commander of a
merchant vessel.


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provisions); The Marianna Flora, 24 U.S. (11 Wheat.) 1, 2 (1825) (deciding

whether an armed vessel’s attack upon a United States armed schooner constituted

an act of piratical aggression).

      The magistrate judge found, and the district court affirmed, that Martin

failed to demonstrate a sufficient nexus between the “large metallic objects” he

detected and piratical activity to support a forfeiture action against the rod or the

chests. Alternatively, the magistrate found in her denial of Martin’s motion for

reconsideration, which the district court affirmed, that Martin failed to establish

that he had captured the chests for purposes of a forfeiture claim against them

under §§ 383 and 384. Because we agree that Martin failed to establish that he

captured the chests, we need not comment on whether he demonstrated a sufficient

nexus between the chests and piratical activity.

      Even assuming, but expressly not deciding, that cargo separate from a

vessel—the rod and the chests here—can give rise to a forfeiture action in rem

under these statutes, Martin has not established that he has captured the chests so

as to merit the issuance of a warrant of arrest in rem against them. It is undisputed

that he has not actually captured the chests. Instead, Martin asks us to adopt a

theory of constructive in rem jurisdiction as to the chests based on his seizure of

the rod, arguing that they are all part of the same res, and he contends that the

district court erred in not including the chests in the arrest warrant issued for the


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rod based on this constructive capture. However, we decline to adopt such a

theory under the circumstances of this case for the same reasons we declined to

find constructive possession of the chests under salvage law. See supra Part II.A.

We therefore affirm the district court’s finding that the forfeiture provisions of

Rule G do not authorize arrest of the chests.

      Because Martin failed to establish a valid salvage or forfeiture claim for

arrest of the chests under Rule C or Rule G, the judgment of the district court is

      AFFIRMED.




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