STANLEY S. BROTMAN, UNITED STATES DISTRICT JUDGE.
For almost eighty-five years, the vessel THE SINDIA rested quietly in its watery grave, three thousand yards off the beach in Ocean City, New Jersey.
Litigation began to brew on July 25, 1986, however, when The Sindia Expedition, Inc., ("The Expedition") commenced this in rem proceeding in admiralty against THE SINDIA seeking title and/or a liberal salvage award. On the same day, the Clerk of this Court issued a warrant for the arrest of THE SINDIA and the libel and warrant were duly served and published shortly thereafter. Three days later, on July 28, 1986, The Expedition was appointed Substitute Custodian of the vessel.
The Expedition was not, however, the only party casting an eye to the sea. On September 11, 1986, the Seaview Beach Condominium Association, Inc., ("Seaview") entered an appearance claiming ownership. On November 3, 1986, the state of New Jersey filed a letter with this Court, asserting its ownership of THE SINDIA but stating that it would not waive its eleventh amendment immunity in this litigation. On November 1, 1988, this court affirmed a Magistrate's decision allowing Noreaster Marine Salvage L.P. ("Noreaster") and McHale, Kissane & Pennypacker ("McHale") to intervene. Noreaster lays claim as a competing salvor. McHale, like Seaview, claims that the wreck is on submerged land in which it has an interest.
Before the court today is McHale's motion to dismiss the libel. In broad terms, McHale contends that this court lacks jurisdiction, that service of process was defective, and that The Expedition has failed to join an indispensible party. Noreaster and The Expedition both oppose McHale's motion. The court will initially address McHale's last argument because it may be dispositive.
McHale notes that The Expedition has failed to join the state of New Jersey and that the state is an indispensible party. Under the doctrine of Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 73 L. Ed. 2d 1057, 102 S. Ct. 3304 (1982), the court cannot determine a state's interest in property without the state's consent. Id. at 682. Some courts have interpreted Treasure Salvors to require a district court to dismiss an admiralty action from the federal courts for failure to join an indispensible party, see Fed. R. Civ. P. 19(b), when the state has a colorable claim of title to the res. See, e.g., Marx v. Government of Guam, 866 F.2d 294 (9th Cir. 1989); Fitzgerald v. Unidentified, Wrecked & Abandoned Vessel, 866 F.2d 16, 18 (1st Cir. 1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 717 F.2d 6, 8 (1st Cir. 1983); Subaqueous Exploration & Archaeology, Ltd. v. Unidentified, Wrecked & Abandoned Vessel, 577 F. Supp. 597, 608 (D. Md. 1983). Other courts, however, have held that a federal court can determine who has title among all claimants except the state. See, e.g., Florida v. Treasure Salvors, Inc., 689 F.2d 1254, 1256 (5th Cir.), on remand from Treasure Salvors, 458 U.S. 670, 73 L. Ed. 2d 1057, 102 S. Ct. 3304 (1982); Riebe v. Unidentified, Wrecked & Abandoned 18th Century Shipwreck, 691 F. Supp. 923, 926 (E.D.N.C. 1987).
This court believes that the approach in Marx and Maritime Underwater Surveys is the better one because it comports with Federal Rule of Civil Procedure 19(b). That consideration is particularly relevant in this case where The Expedition has sought that "all other persons, firms, and corporations or governmental agencies be enjoined from interfering with [The Expedition's] title, possession and property." Complaint at 3 (emphasis added). Addressing whether the state of New Jersey is an indispensible party also avoids the "lament" raised in Treasure Salvors that, absent the state, this litigation would lead to inconclusive results despite the expenditure of considerable resources. Treasure Salvors, 689 F.2d at 1256.
Accordingly, this court must consider whether New Jersey has a colorable claim of title to THE SINDIA.
Various courts have suggested that the Submerged Lands Act of 1953, 43 U.S.C. § 1311(a), confers on each state a colorable claim to shipwrecks in its waters. See Marx, 866 F.2d at 300-01; Maritime Underwater Surveys, 717 F.2d at 8; Subaqueous Exploration, 577 F. Supp. at 608. In each of these cases, the courts relied on both the Submerged Lands Act of 1953, 43 U.S.C. § 1311(a)(1982), and a state statute automatically vesting title in the shipwreck in the state after a period of time.
The court has canvassed the New Jersey statutes and cannot find any analogous provision that automatically vests title in the State. Conceivably relevant to this litigation, however, are two statutes under which the state of New Jersey can conditionally secure title. See N.J. Stat. Ann. § 12:4-6 (West 1979) (county board of chosen freeholders may declare a vessel abandoned and forfeited to the state thirty days after the vessel has sank or become stranded in navigable waters); N.J. Stat. Ann. § 12:7C-18 (West 1979) (State Department of Environmental Protection may receive title if it follows the same statutory procedure as landowner). Unfortunately, no one has claimed that title to THE SINDIA is governed by either provision.
The absence of such a claim on the shipwreck by the state of New Jersey and the absence of a statute automatically vesting title in the state are not dispositive, however. It is § 1311(a) of the federal Submerged Lands Act, not the state statute, that grants title and ownership of the lands beneath navigable waters to the state. See Bailey v. Driscoll, 19 N.J. 363, 367-69, 117 A.2d 265, 267-68 (1955). To require New Jersey to adopt a statute akin to those in Marx, Maritime Underwater Surveys, and Subaqueous Exploration in order to protect its interest in shipwrecks like THE SINDIA is tantamount to holding that a state can abandon to a salvor the shipwrecks that Marx, Maritime Underwater Surveys, and Subaqueous Exploration all held were conveyed by Congress to the state in section 1311(a). It is well established in New Jersey that the state cannot forfeit its title on the basis of adverse possession, prescription or the presumption of a lost grant. See O'Neill v. State Highway Dept., 50 N.J. 307, 320-21, 235 A.2d 1, 8 (1967).
It should also be noted that the state of New Jersey has exercised "the right and power to manage, administer, lease, develop and use the said lands and natural resources all in accordance with applicable state law.. . ." 43 U.S.C. § 1311(a)(1982). For example, New Jersey has prohibited the commercial salvage of shipwrecks over fifty years old. See N.J. Admin. Code § 7:7E-3.34(f). New Jersey has also declared that some shipwrecks are special marine habitats and/or fragile historic and cultural resources appropriate for recreational and commercial finfishing and shellfishing as well as scuba diving. See N.J. Admin. Code § 7:7E-3.13 (a) & (b).
Consequently, the court concludes that the state of New Jersey does indeed have a colorable claim on THE SINDIA
and the Court will enter an order granting McHale's motion to dismiss the libel, and vacating the arrest warrant of July 25, 1986.
This matter having come before the court on the motion of defendant McHale, Kissane & Pennypacker to dismiss the libel; and
The court having considered the submissions of the parties; and
For the reasons set forth in the court's opinion filed this date;
It is on this 5th day of May, 1989, hereby
ORDERED that the motion of HcHale, Kissane & Pennypacker to dismiss the libel is GRANTED; and
It is FURTHER ORDERED that the arrest warrant of July 25, 1986 is VACATED.