Fathom Exploration, LLC v. The Unidentified Shipwrecked Vessel or Vessels

Filing 219

Order granting 218 Second Motion to Approve Notice filed by Fathom Exploration, LLC. Plf is ordered to amend the "Notice of Action in Rem and Arrest" found at Exhibit A to its Motion, and to cause such Notice to be published in the London Times & the Press Register three times per week for two consecutive weeks, with the first such publication to occur by 9/10/2012. Plf is ordered to file proof of publication as further set out. A joint proposed discovery plan due by 11/30/2012. Signed by Chief Judge William H. Steele on 8/6/2012. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FATHOM EXPLORATION, L.L.C.,
Plaintiff,
v.
THE UNIDENTIFIED SHIPWRECKED
VESSEL OR VESSELS, etc., in rem,
Defendants.

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CIVIL ACTION 04-0685-WS-M

ORDER
This matter comes before the Court on plaintiff’s filings styled “Status Report and
Motion for Additional Time” (doc. 217) and Motion to Approve Notice (doc. 218).
Plaintiff, Fathom Exploration, LLC, brought this action against certain in rem defendants,
consisting of what it believed to be multiple shipwrecks located near the mouth of Mobile Bay in
the territorial waters of the State of Alabama. Fathom asserted claims under the law of finds for
possession and ownership of artifacts from those wreck sites, and under the law of salvage for an
award for its services in rescuing artifacts from those sites. On March 9, 2012, the undersigned
entered an Order (doc. 211) provisionally identifying Shipwreck #1 as the British Barque
AMSTEL, which apparently ran aground on a shallow sandbar near the mouth of Mobile Bay in
late May or early June 1861, and subsequently disintegrated into the sea.1 In light of that
provisional identification, the relevant parties (Fathom, the State of Alabama, and the Alabama
Historical Commission) agreed that the appropriate next step is to provide the descendants and
1

In the Motion to Approve Notice, Fathom writes that it “has identified one of the
vessels as the Amstel, a British barque believed to have been lost in a hurricane in 1860.” (Doc.
218, at 2.) The Court assumes that this statement is the product of an inadvertent drafting error;
after all, the information previously furnished to the Court is fundamentally inconsistent with the
notion that the Amstel was “lost in a hurricane in 1860.” If this assumption is incorrect (i.e., if
Fathom in fact now believes that the Amstel was lost in a hurricane in 1860), then plaintiff must
promptly file notice to that effect so that the undersigned may reconsider its provisional
identification of Shipwreck #1 as the Amstel in light of this new information.

heirs of the AMSTEL’s owners, officers, crew members, insurers, lienholders, and so on with
reasonable notice and an opportunity to assert any claims of ownership or interest over the vessel
or any of its artifacts.
On May 24, 2012, the undersigned entered an Order (doc. 214) that, inter alia, directed
plaintiff to undertake commercially reasonable efforts to provide legal, effective notice to
potential AMSTEL claimants. Pursuant to that directive, plaintiff was ordered to prepare and
submit a proposed notice plan for approval by this Court, such plan to specify the form and
contents of the proposed notice, the manner and times of the proposed publication, the Alabama
defendants’ position with respect to the proposal, and plaintiff’s basis for believing its plan to be
both commercially reasonable and reasonably calculated to place potential AMSTEL claimants
on notice of these proceedings.2
Plaintiff’s filings reflect that it has engaged in extensive research and consultation in an
effort to devise an appropriate means of giving notice to potential AMSTEL claimants. In
particular, Fathom has contacted numerous persons and organizations with experience in salvage
law both in the United States and in Great Britain, as well as international admiralty counsel, for
advice and recommendations. On the basis of that research and consultation, Fathom has
concluded that the London Times “is the most popular vehicle for providing notice in admiralty
claims, particularly where a British ship may be … involved.” (Doc. 218, at 2.) Fathom thus
proposes to publish a notice thrice-weekly for two consecutive weeks in both the London Times
and the Press Register, and to allow for a 60-day period for claimants to file a statement of right
or interest in the vessel. To that end, Fathom submits a proposed form of “Notice of Action in
Rem and Arrest” as Exhibit A to its Motion. In support of its request for approval of this notice
plan, Fathom indicates that the other interested parties (the State of Alabama and the Alabama
Historical Commission) do not object to this proposal.

2

Plaintiff did not meet the May 24 Order’s deadline of June 30, 2012 for filing its
proposed plan; however, it did timely file a Motion for Additional Time (doc. 217) on the
grounds that plaintiffs required additional time to conduct the necessary research and
consultation, and to formulate an appropriate plan. That Motion for Additional Time is moot,
inasmuch as plaintiff has since submitted its proposed notice and other materials and information
contemplated by the May 24 Order.

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Of course, there is no easy, obvious means of furnishing effective notice of this matter to
potential AMSTEL claimants or lienholders, who are now separated by one and a half centuries
– not to mention an entire ocean – from the wreck. When the Court instructed Fathom to
conduct research and investigation in order to formulate an appropriate notice proposal, it did so
with the express intent of “forc[ing] Fathom to discuss possible notice alternatives with shipping
/ maritime / insurance / legal organizations that may have helpful insights into which fora and
methodologies may be most effective to notify any prospective claimants that may exist.” (Doc.
214, at 2 n.1.) Upon careful review of plaintiff’s June 28 Status Report and August 1 Motion to
Approve Notice, the undersigned is satisfied that Fathom has diligently discharged these research
and consultation obligations, and that it has formulated a reasonable notice plan in good faith.
The Court further determines that the proposed manner of notice identified in plaintiff’s filings
appears reasonably calculated to give notice to potential AMSTEL claimants.
With regard to the form of the notice, the Court generally finds that it comports with
Supplemental Rules C(4) and C(6), as well as Local Admiralty Rule 3, and that it effectively and
accurately conveys to potential claimants their rights and obligations to appear and be heard in
this action within the specified time periods. Moreover, the expanded 60-day period proposed by
plaintiff (rather than the 14-day period outlined in Supplemental Rule C(6)) for filing statements
of right or interest is reasonable and appropriate, as is the proposed 60-day deadline for filing
claims in intervention.
The one portion of the proposed Notice about which the undersigned has reservations is
its meager description of the vessel and the wreck site. In its proposed form, the Notice says
only that “[t]he location of the shipwreck and certain artifacts suggests that the vessel located at
the coordinates stated above is the Amstel, a merchant vessel that sunk in 1860.” (Doc. 218, Exh.
A.) But this language would tell prospective claimants nothing or next to nothing about the
AMSTEL, where it sank (unless they look up the coordinates found in the caption), or what its
history was. A fundamental purpose of this notice exercise is to jog memories or trigger
recognition on the part of potential claimants of any right and interest they may have in these
proceedings; therefore, it strikes the Court as fair, appropriate, and probably necessary to flesh
out the skeletal description in the Notice’s first paragraph. To that end, the last sentence of the
first paragraph of the proposed Notice is to be deleted and replaced with the following text:
“The court has provisionally identified this shipwreck as the Amstel, a merchant vessel built in
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the Netherlands for the Boissevain Company in 1842 and sold to an English company in 1860.
The Amstel ran hard aground near the mouth of Mobile Bay in what is now the territorial waters
of the State of Alabama in late May or early June of 1861. At that time, the vessel was carrying
a cargo that included stone slabs, railroad axles and a 31-inch, 700-lb bronze bell cast by the
Meneely Bell Foundry of West Troy, New York in 1860. It is believed that the vessel gradually
sank or disintegrated into the sea thereafter.”
Subject to the foregoing modification, Fathom’s Motion to Approve Notice (doc. 218) is
granted. Plaintiff is ordered to amend the “Notice of Action in Rem and Arrest” found at
Exhibit A to its Motion as specified above, and to cause such Notice to be published in the
London Times and the Press Register three times per week for two consecutive weeks, with the
first such publication to occur no later than September 10, 2012. Upon completion of
publication, plaintiff is further ordered to file proof of publication, confirming the dates of
publication and the contents of the notice for both the London Times and the Press Register.
Any person asserting a right of possession or ownership interest in the Amstel or its contents /
artifacts must file a verified statement of right or interest in this District Court within 60 days
after the final date of publication of notice. And any party asserting a maritime lien or writ of
foreign attachment must file its claim in intervention in this District Court within that same 60day period.
Regardless of whether any putative Amstel claimants or intervenors appear in this matter
or not, it is apparent that the parties require discovery as to the abandonment issue (and perhaps
other issues as well) before plaintiff’s claims as to Shipwreck #1 can be fully and finally
adjudicated. (Doc. 212, at 2.) Accordingly, on or before November 30, 2012, Fathom, the
Alabama state defendants, and any claimants or intervenors must meet and file a joint proposed
discovery plan (specific to Shipwreck #1) that comports with Rule 26(f)(3), Fed.R.Civ.P., and
Local Rule 26.1(d).
DONE and ORDERED this 6th day of August, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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