UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

F. GREGG BEMIS, JR.,
Plaintiff-Appellant,

v.

THE RMS LUSITANIA, her engines,
tackle, apparel, appurtenances,
cargo, etc., in rem,                                                No. 95-2057
Defendant-Appellee,

and

MURIEL C. LIGHT; FIFTY FATHOM
VENTURES, INCORPORATED,
Claimants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CA-94-226)

Submitted: August 30, 1996

Decided: September 17, 1996

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard T. Robol, HUFF, POOLE & MAHONEY, Virginia Beach,
Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

F. Gregg Bemis, Jr., filed this in rem action seeking a declaration
that he is the sole owner of the wreck of the RMS Lusitania. The dis-
trict court determined that Bemis is indeed the owner of the ship's
hull, tackle, engines, and appurtenances, but declined to award him
ownership or a salvage award for the contents of the ship, including
the cargo and the passengers' possessions. Finding no error in the dis-
trict court's decision, we affirm.

I

The hull of the Lusitania rests on the ocean floor off the coast of
Ireland, where it was sunk by a torpedo fired by a German Imperial
Navy U-Boat in 1915. The wreck is below 295 feet of water, in an
area with a strong current and low visibility, making efforts to salvage
the contents of the ship extremely difficult.

Bemis seeks to salvage the contents of the Lusitania. He obtained
title to the hull of the ship through a series of transfers from the ship's
original owner, Cunard Steamship Company ("Cunard"), the Liver-
pool and London War Risks Insurance Association, also known as the
War Reclamations Board ("Liverpool"), and various private parties
who have owned interests in the ship over the last eighty years.1
Bemis has participated in three expeditions to the Lusitania since
_________________________________________________________________
1 Bemis was one of three private owners of the Lusitania. One of the
other owners, George Macomber, transferred all of his interest in the ship
to Bemis over the course of several years, with the final conveyance in
1993. The other private owner, John Light, is deceased. His widow,
Muriel Light, opposed Bemis's claim in the district court, but Bemis and
Mrs. Light reached a settlement agreement in 1995, whereby she
assigned all of her interest in the ship to Bemis.

                    2
1982; on those expeditions, he has photographed the ship, placed a
plaque on the hull, and conducted salvage operations, attempting to
recover the cargo and passengers' personal effects from the ship. The
title to the contents of the ship (both cargo and passengers' personal
effects), and the right to salvage those contents, are at the heart of the
action before this Court. Bemis advances several theories in support
of his claim to the contents of the ship.

II

First, Bemis contends that Cunard transferred the cargo and passen-
gers' personal effects to Liverpool, who paid the insurance carrier
when the ship sank, and that his entitlement to the contents followed
the chain of title to the ship.2 Although the district court agreed that
Bemis had title to the ship, it rejected his claim to the contents on the
chain-of-title argument.

Bemis presented no direct evidence regarding the transfer from
Cunard to Liverpool. If Liverpool paid Cunard, the passengers, and
the cargo owners for the contents of the ship, the possessions and
cargo would have been Liverpool's to transfer to Light, and Light's
to transfer to Macomber and Bemis. Columbus-America Discovery
Group, Inc. v. Atlantic Mut. Ins. Co., 974 F.2d 450, 457 (4th Cir.
1992) (CADG I), cert. denied, 507 U.S. 1000 (1993). However, the
record contains no evidence that such claims were actually paid by
Liverpool.

Bemis contends that William Andres, the attorney who handled the
conveyance from Liverpool to Light, and the later conveyance from
Light to Macomber and Bemis, believed that title to the contents of
the ship were part of the conveyance. Bemis offered his own state-
ments, Macomber's testimony, and the statements of Andres's former
associate, Thomas Swain, regarding their understanding of the title
transfer.
_________________________________________________________________
2 Bemis also contended that he obtained title to the contents through
later conveyances. However, as the district court noted, if Cunard did not
convey title to the contents to Liverpool, no later conveyance could have
carried title to the contents.

                     3
Bemis relies heavily on a letter from Liverpool to Light, which pro-
vides in relevant part:

          [T]he Association [Liverpool] paid a total loss claim to the
          Owners and the rights and interests in the vessel passed to
          the Association.

...

          [T]he Association has sold to you the rights and interests in
          the wreck of the "Lusitania" on the understanding that it will
          not be salved as a whole, repaired and put into commission
          again, and also that the purchaser takes over all liabilities
          and expenses which might attach to the wreck.

Bemis places great weight on the use of the term"wreck" in the
Liverpool letter because, under English law, a wreck includes both the
hull of a sunken ship and its contents. John A. Edington, 3A Benedict
on Admiralty § 133 (7th ed. 1993 & Supp. 1996). The district court,
however, found that the use of the term wreck was not dispositive,
and that the word "vessel" in the conveyance language was determi-
native; a "vessel" is, in English law, the hull of a sunken ship, exclud-
ing its contents. See generally 3A Benedict on Admiralty §§ 205-09.

Both interpretations of the letter are reasonable. However, in the
absence of evidence about Liverpool's agreement with Cunard, the
district court did not err in concluding that Liverpool transferred only
the hull, tackle, and appurtenances of the ship to Light.

III

Bemis next asserts that the decision in Pierce v. Bemis: The
Lusitania, 1 Q.B. 401 (1986), confirms his title to the contents. The
issue in Pierce was whether the British Crown was entitled to artifacts
that Bemis and other claimants brought up in a 1982 diving expedi-
tion. The court concluded that Bemis and his then-partners had title
to the hull, and that the Crown did not have title to the contents of
the ship. Further, the court held that Bemis was the owner of the sal-
vaged artifacts by virtue of possessory title. The English court did not,

                     4
however, determine ownership of the contents that were still on board
the ship. As the district court recognized, the English court's decision
was not dispositive as to the title of the contents still on board the
ship. Further, the district court properly concluded, under the same
reasoning as that in the Pierce decision, that Bemis was the owner of
the artifacts recovered in the 1993 and 1994 dives.

IV

Bemis only has a claim on the contents still on board the ship if he
can establish that the contents were abandoned and he is entitled to
relief through the law of finds or the law of salvage. The law of finds
expresses "the ancient and honorable principle of`finders, keepers.'"
Martha's Vineyard Scuba HQ, Inc. v. Unidentified, Wrecked & Aban-
doned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir. 1987). It applies
to findings of sunken property abandoned by prior owners. CADG I,
974 F.2d at 464. A vessel may be considered abandoned if no owner
comes forward to claim it during an action to claim ownership rights.
Id. at 461. However, some overt act expressing an intent to abandon
is also required. Id. A person can be deemed the owner of abandoned
property if he takes possession of it and exercises dominion or control
over it. Moyer v. Wrecked & Abandoned Vessel, Known as Andrea
Doria, 836 F. Supp. 1099, 1106 (D.N.J. 1993). The mere discovery
of an abandoned vessel is not sufficient to establish possession. Id.

The district court found that the contents of the Lusitania were
abandoned because no one, including the Lusitania's passengers or
their descendants, has come forward to file a claim since Bemis com-
menced this action. CADG I, 974 F.2d at 465. However, the court
found that Bemis has only taken possession of the items he salvaged
from the ship during his past diving expeditions.

Bemis does not have dominion and control over the remaining con-
tents of the ship because they are still submerged in the hull at the
bottom of the ocean, and he does not have a "`high degree of control'"
over the contents. CADG I, 974 F.2d at 460 (quoting Hener v. United
States, 525 F. Supp. 350, 356 (S.D.N.Y. 1981)). Further, he is not
conducting an ongoing salvage operation, another ground for deter-
mining that a salvor has dominion and control over cargo of a ship-
wreck. Hener, 525 F. Supp. at 355; Treasure Salvors, Inc. v.

                    5
Unidentified Wrecked & Abandoned Sailing Vessel, 546 F. Supp. 919,
926 (S.D. Fl. 1981); Eads v. Brazelton, 22 Ark. 499, 511 (1861). A
salvor does not obtain title simply by discovery of lost or abandoned
property; transitory presence is not sufficient to establish control.
Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing
Vessel, 640 F.2d 560, 571 (5th Cir. 1981) (citing Brady v. S.S. African
Queen, 179 F. Supp. 321 (E.D. Va. 1960)).

Bemis has gone on three expeditions to the Lusitania, one each in
1982, 1993, and 1994.3 During these trips he took numerous photo-
graphs of the wreck, and he recovered ninety-four artifacts on the first
expedition.4 We find that Bemis's results to date do not amount to a
showing of actual or constructive possession of the ship's still-
submerged contents sufficient to declare him the owner of those con-
tents. See 3A Benedict on Admiralty§ 158. However, as noted above,
the district court correctly determined that Bemis is the owner of each
of the items he has actually recovered from the ship.

V

Bemis also sought a liberal salvage award and an injunction per-
mitting him the sole right to conduct salvage operations. A salvor is
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3 The 1993 dive was primarily for the purpose of researching an article
for National Geographic magazine. Bemis's cooperation with the author
of the article, Dr. Robert Ballard, was conditioned in part on his ability
to accompany Ballard on the trip. According to Ballard, Bemis was
cooperative in the 1993 expedition "in that he did not obstruct or in any
way try to affect or alter our operational plan that we had submitted to
him."
4 Bemis contends that the district court should have considered the
expeditions of Macomber, Light, and others even though Bemis did not
personally participate in those operations. Bemis is correct in stating that
he need not personally participate in salvage operations for those opera-
tions to be attributed to him. He contends that Light and Macomber
transferred to him any rights they acquired as a result of their salvage
operations in the 1960s and 1970s. However, as the district court noted,
Bemis has conducted only three expeditions since 1982. Even if Light
and Macomber's actions somehow vested in Bemis, the district court
could fairly have concluded that Bemis's relative inaction over the past
14 years was determinative.

                    6
entitled to compensation for recovery of the property; he is not gener-
ally awarded title to the property. CADG I, 974 F.2d at 459.

To obtain a salvage award, a claimant must establish three ele-
ments. First, the property must be in marine peril; underwater ship-
wrecks are usually considered in marine peril because of the risk of
loss. Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned
Sailing Vessel, 569 F.2d 330, 336-37 (5th Cir. 1978); 3A Benedict on
Admiralty § 63. Next, the salvage service must be voluntary. 3A
Benedict on Admiralty §§ 15, 23, 68. Third, the salvage must be suc-
cessful, in whole or in part. Id. at § 88. In addition, a salvor must
establish possession of the property. Hener, 525 F. Supp. at 357. In
the alternative, the salvor must show that he has acted with due dili-
gence and that his salvage operations are ongoing. Treasure Salvors,
Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 640 F.2d
at 567; Andrea Doria, 836 F. Supp. at 1107. A salvor "`must have the
intention and capacity to save the property involved, but the [salvor]
need not have the intention to acquire it.'" CADG I, 974 F.2d at 460
(quoting Hener, 525 F. Supp. at 357-58).

The district court correctly found that Bemis was not entitled to a
salvage award. Although the contents of the Lusitania are in marine
peril and Bemis is performing salvage operations voluntarily, the
court concluded that Bemis had not had enough success to warrant a
salvage award. "`It is not what salvors offer or attempt to do that enti-
tles them to compensation, but what they succeed in doing to the ben-
efit of the property.'" 3A Benedict on Admiralty § 89 (quoting Curry
v. The Loch Goil, 6 F. Cas. 995 (S.D. Fl. 1877) (No. 3495)). Bemis
has expended significant resources in his attempts to salvage the Lusi-
tania's cargo; however, he has retrieved very few artifacts from the
shipwreck.

Further, Bemis's three expeditions over thirteen years did not con-
stitute due diligence. Although Bemis recovered many artifacts in his
1982 dive, the 1993 dive was run primarily by the National Geo-
graphic Society as a photographic expedition. The 1994 dive was
unsuccessful; the expedition lasted only two days instead of the
planned two weeks, and no artifacts were recovered. These facts fully
support the district court's conclusion that Bemis does not have an
"ongoing" operation, and that his chance of future success is slim.

                     7
Bemis contends finally that he should be given a salvage award and
an injunction preventing other divers from taking artifacts from the
ship because of the scientific, historical, and archaeological signifi-
cance of the wreck.5 See Treasure Salvors, Inc. v. Unidentified
Wrecked & Abandoned Sailing Vessel, 546 F. Supp. at 927-28. The
historical, scientific, and archeological value of a shipwreck is a "sig-
nificant element" in the district court's consideration of a claim for an
exclusive salvage award. CADG I, 974 F.2d at 468 n.9. As the district
court recognized, Bemis has conducted several expeditions to the
ship. However, his expeditions have been sporadic and not highly
successful.6 "It matters not how arduously or skillfully the salvors
may have labored . . . salvage remuneration is dependant upon the
property's being saved." 3A Benedict on Admiralty § 88. Because
Bemis has not participated in sustained, successful salvage operations,
the court properly found that an exclusive salvage award was not war-
ranted.

Most troubling is Bemis's contention that "rogue" divers are
exploring the shipwreck and taking artifacts to which they are not
entitled. One group of divers, known as Fifty Fathoms Ventures, took
several items from the wreck; upon the district court's order, these
items have been turned over to Bemis, who now has title to them.

Another group of divers, led by British diver Polly Tapson, planned
a 1994 dive to the wreck.7 Bemis submitted as evidence a letter from
Tapson to the other divers in her group, stating that their dive would
have to be surreptitious because Bemis had not approved it. She
referred to the divers' being able to "send [ ] up anything we want to
_________________________________________________________________
5 Bemis's argument in this regard is somewhat disingenuous. He relies
largely on the deposition testimony of Dr. Robert Ballard, an oceanogra-
pher with whom he travelled to the Lusitania in 1993. Dr. Ballard stated
that he is "opposed to the recovery of artifacts" from historic shipwrecks.
However, Bemis testified that he wishes to bring artifacts up from the
wreck to create a travelling exhibition for museums.
6 As the district court noted, much of the photography and research
which resulted in the National Geographic article is attributable to Dr.
Ballard, not to Bemis.
7 The record does not clearly reflect whether the dive actually took
place.

                    8
from the Lusitania," and said that "[t]he Irish we met seemed a bit
funny about us taking anything from the wreck," but would "turn a
blind eye rather than risk losing the [group's] charter." She also said
that the group's "wreck robbing instincts might have to be a tiny bit
restrained." Bemis contends, perhaps correctly, that unless he is
awarded an injunction, other divers will take artifacts from the ship.
Although the loss of artifacts would be unfortunate, Bemis simply has
no right to the injunction absent an ownership interest in the contents
of the ship, and he has not established such an interest. Consequently,
we find that the district court did not err in declining to issue an
injunction.

We affirm the district court's decision. We deny Bemis's motion
to expedite as moot.

AFFIRMED

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