United States District Court, District of New Jersey
May 13, 1991
UNITED STATES OF AMERICA, PLAINTIFF,
RICHARD STEINMETZ, DEFENDANT.
The opinion of the court was delivered by: Debevoise, District Judge.
I. THE PROCEEDINGS
In this action plaintiff, the United States of America,
seeks to recover from defendant, Richard Steinmetz, a ship's
from the celebrated Confederate warship, the CSS ALABAMA. In
response to an order to show cause, Mr. Steinmetz delivered
the bell to the Court. A hearing was held on January 4, 1991.
The hearing not only developed evidence required to dispose of
this case; it was also a celebrative event. The final
encounter of the CSS ALABAMA was recalled. Each student in the
sixth grade of Maplewood's Middle School struck the bell
bringing forth once again the vibrant tone heard many times at
sea during the years 1862 to 1864.
Since the bell had been deposited in Court there was no need
for preliminary injunctive relief. Mr. Steinmetz answered and
counterclaimed, seeking (1) a determination that the bell is
his property, (2) compensation on a theory of quantum meruit
and (3) compensation on a theory of unjust enrichment. I
suggested to the parties that they cross-move for summary
judgment and, pending a hearing on the motion, seek to arrive
at a fair and reasonable disposition of the case.
Unfortunately, the efforts to reach agreement failed and it
thus became necessary to rule upon cross-motions for summary
II. THE FACTS
Many events preceded the arrival of the bell in Newark.
These events are recounted in the Official Records of the
Union and Confederate Navies in the War of the Rebellion
(Government Printing Office 1896), in the works of recognized
historians of the Civil War, in the testimony in this case of
Naval Historian William S. Dudley and in the testimony of Mr.
Steinmetz, an antique dealer who has great expertise in the
field of military artifacts. These events can be summarized as
In 1847, fourteen years before the start of the Civil War,
the American fleet was engaged in the war with Mexico. On one
of the Navy's ships two officers shared a cabin, Lt. Raphael
Semmes and Lt. John Winslow. In 1864 the paths of these two
officers were to cross again.
In 1861 James D. Bulloch, representing the Confederate
States of America, proceeded to England. His mission was to
obtain ships for the Confederacy. Among other activities, he
arranged for two warships to be built in Liverpool. One was
the vessel named the Florida; the other was the ALABAMA.
Thomas S. Dudley was the United States Consul in Liverpool.
His most important assignment was to seek enforcement of
Britain's Foreign Enlistment Act which forbade the
construction and arming of warships in British territory for
a belligerent power. Despite Dudley's efforts the British
authorities permitted the Florida to depart from Liverpool on
the technical ground that she was not a warship since her arms
were shipped out separately on another vessel.
James M. McPherson in his Battle Cry of Freedom describes the
departure of the other ship, the ALABAMA, from Liverpool and
its subsequent activities:
The willingness of British officials to apply a
narrow interpretation of the Foreign Enlistment
Act encouraged Bulloch's efforts to get a second
and larger cruiser out of Liverpool in the summer
of 1862. In a contest of lawyers, spies, and
double agents that would furnish material for an
espionage thriller, Dudley amassed evidence of
the ship's illegal purpose and Bulloch struggled
to slip through the legal net closing around him
by July. Once again bureaucratic negligence,
legal pettifoggery, and the Confederate
sympathies of the British customs collector at
Liverpool gave Bulloch time to ready his ship for
sea. When an agent informed him of the
government's belated intention to delay the ship,
Bulloch sent her out on a `trial cruise' from
which she never returned. Instead she
rendezvoused at the Azores with a tender carrying
guns and ammunition sent separately from Britain.
Named the ALABAMA, this cruiser had as her
captain Raphael Semmes, who had already proved
his prowess as a salt-water guerrilla on the now
defunct CSS Sumter. For the next two years Semmes
and the ALABAMA roamed the seas and destroyed or
captured 64 American merchant
ships before meeting the USS Kearsarge off
Cherbourg in June of 1864.
In June of 1864 the ALABAMA entered the harbor of Cherbourg
and obtained permission from the French authorities to land
prisoners, dock the ship for repairs and take on supplies.
Meanwhile, the USS Kearsarge, under the command of Captain
John Winslow, entered Cherbourg and then positioned herself in
international waters beyond the harbor mouth.
Captain Semmes decided to do battle. By Saturday night, June
18, his preparations were complete. Between nine and ten
o'clock on June 19 the ALABAMA proceeded to sea, accompanied
by the French ironclad Frigate Couronne, some French pilot
boats and the English steam yacht, the Deerhound. The
Kearsarge awaited seven miles off shore.
John Kell, executive officer of the ALABAMA, has described
We now prepared our guns to engage the enemy on
our starboard side. When within a mile and
a-quarter he wheeled, presenting his starboard
battery to us. We opened on him with solid shot,
to which he soon replied, and the action became
active. To keep our respective broadsides bearing
we were obliged to fight in a circle around a
common center, preserving a distance of three
quarters of a mile. When within distance of shell
range we opened on him with shell. The spanker
gaff was shot away and our ensign came down. We
replaced it immediately at the mizzen masthead.
The firing now became very hot and heavy.
Captain Semmes, who was watching the battle from
the horse block, called out to me, "Mr. Kell, our
shell strike the enemy's side, doing little
damage, and fall off in the water; try solid
shot." From this time we alternated shot and
The battle lasted an hour and ten minutes.
Captain Semmes said to me at this time (seeing
the great apertures made in the side of the ship
from their 11-inch shell, and the water rushing
in rapidly), "Mr. Kell, as soon as our head
points to the French coast in our circuit of
action, shift your guns to port and make all sail
for the coast." This evolution was beautifully
performed; righting the helm, hauling aft the
fore-trysail sheet, and pivoting to port, the
action continuing all the time without cessation,
— but it was useless, nothing could avail us.
Before doing this, and pivoting the gun, it
became necessary to clear the deck of parts of
the dead bodies that had been torn to pieces by
the 11-inch shells of the enemy. The captain of
our 8-inch gun and most of the gun's crew were
killed. It became necessary to take the crew from
young Anderson's gun to make up the vacancies,
which I did, and placed him in command. Though a
mere youth, he managed it like an old veteran.
Going to the hatchway, I called out to Brooks
(one of our efficient engineers) to give the ship
more steam, or we would be whipped.
He replied she "had every inch of steam that
was safe to carry without being blown out!."
Young Matt O'Brien, assistant engineer, called
out, "Let her have the steam; we had better blow
her to hell than to let the Yankees whip us!"
The chief engineer now came on deck and
reported, "the furnace fires put out," whereupon
Captain Semmes ordered me to go below and "see
how long the ship could float."
I did so, and returning said, "Perhaps ten
"Then, sir," said Captain Semmes, "cease
firing, shorten sail, and haul down the colors.
It will never do in this nineteenth century for
us to go down and the decks covered with our
This order was promptly executed, after which
the Kearsarge deliberately fired into us five
shots! In Captain Winslow's report to the
Secretary of the Navy he admits this, saying,
"Uncertain whether Captain Semmes was not making
some ruse, the Kearsarge was
Was this a time, — when disaster, defeat and
death looked us in the face, — for a ship to use a
ruse, a Yankee trick? I ordered the men to "stand
to their quarters," and they did it heroically; not
even flinching, they stood every man to his post.
As soon as we got the first of these shot I told
the quarter-master to show the white flag from the
stern. It was done. Captain Semmes said to me,
"Dispatch an officer to the Kearsarge and ask that
they send boats to save our wounded — ours are
disabled." Our little dingey was not injured, so I
sent Master's Mate Fulham with the request. No
boats coming, I had one of our quarter boats (the
least damaged one) lowered and had the wounded put
in her. Dr. Galt came on deck at this time, and was
put in charge of her, with orders to take the
wounded to the Kearsarge. They shoved off in time
to save the wounded.
When I went below to inspect the sight was
appalling! Assistant Surgeon Llewellyn was at his
post, but the table and the patient on it had
been swept away from him by an 11-inch shell,
which made an aperture that was fast filling with
water. This was the last time I saw Dr. Llewellyn
in life. As I passed the deck to go down below a
stalwart seaman with death's signet on his brow
called to me. For an instant I stood beside him.
He caught my hand and kissed it with such
reverence and loyalty, — the look, the act, it
lingers in my memory still! I reached the deck and
gave the order for "every man to save himself, to
jump overboard with a spar, an oar, or a grating,
and get out of the vortex of the sinking ship."
As soon as all were overboard but Captain
Semmes and I, his steward, Bartelli, and two of
the men — the sailmaker, Alcott, and Michael Mars
— we began to strip off all superfluous clothing
for our battle with the waves for our lives. Poor,
faithful-hearted Bartelli, we did not know he could
not swim, or he might have been sent to shore — he
was drowned. The men disrobed us, I to my shirt and
drawers, but Captain Semmes kept on his heavy pants
and vest. We together gave our swords to the briny
deep and the ship we loved so well! The sad
farewell look at the ship would have wrung the
stoutest heart! The dead were lying on her decks,
the surging, roaring waters rising through the
death-wound in her side. The ship agonizing like a
living thing and going down in her brave beauty,
settling lower and lower, she sank fathoms deep —
lost to all save love, and fame, and memory! . . .
Captain Semmes, Lt. Kell and certain others of the ALABAMA's
crew were picked up by the English yacht Deerhound. The
Deerhound, despite assurances to Captain Winslow that she was
merely assisting him in picking up the prisoners, took her
new passengers to England. For allowing this to happen Captain
Winslow was later officially reprimanded by Secretary of the
Navy Gideon Welles.
It goes without saying that the ship's bell, which is the
subject of this case, accompanied the ALABAMA as "she sank
fathoms deep." The ALABAMA still rests where she sank, but the
bell was salvaged. Mr. Steinmetz traced its separate history.
In 1979 Mr. Steinmetz participated in an antique gun show in
London. A dealer informed him that he knew where the bell of
the CSS ALABAMA was located, and Mr. Steinmetz asked to see
it. The dealer took Mr. Steinmetz to Hastings on the English
coast where an antique dealer, a Mr. Walker, showed him the
bell and documentation concerning it. It purportedly came from
the Isle of Guernsey off the French coast.
Mr. Steinmetz was skeptical, but he paid a deposit, took
possession of the bell and proceeded to Guernsey to check it
Guernsey fishermen have a sideline — wreck stripping. Mr.
Steinmetz visited a Guernsey friend and the friend introduced
him to various persons who dealt in shipwrecks and salvage.
When these persons were shown the bell they identified it as a
bell which had hung in a Guernsey bar. It developed that a
diver, William Lawson, had salvaged the bell in about 1936 and
most likely had traded it at the bar for drinks. There it hung
until World War II. The Germans captured Guernsey from the
British. Thereafter, the bar was destroyed in a British bombing
After the destruction of the bar the bell passed from hand
to hand until it was acquired in 1978 by the Hastings antique
Satisfied with the authenticity of the bell, Mr. Steinmetz
completed the purchase and brought it to the United States. He
had given the dealer other antique items having a value of
approximately $12,000 in exchange for the bell.
In 1979, after returning to the United States, Mr. Steinmetz
offered the bell to the Naval Academy. The Academy was
unwilling or unable to trade or purchase it. Mr. Steinmetz put
the bell on a shelf until December 1990, at which time he
placed it in the Harmer Rooke Gallery for auction.
The Bell was advertised in the Gallery's catalogue. Alert
Naval authorities noticed the advertisement and claimed
entitlement to the bell. Mr. Steinmetz resisted the claim, and
this action ensued.
III. DISPOSITION OF SUMMARY JUDGMENT MOTIONS
Each party either has, or by direction of the court is
deemed to have, moved for summary judgment. Judgment shall be
rendered if the record shows that there is no genuine issue as
to any material fact and that the moving party is entitled to
a judgment as a matter of law. Fed.R.Civ.P. 56(c). There are
no genuine issues as to any material facts and I conclude that
as a matter of law the United States is entitled to a judgment
in its favor.
A. Right of Capture. The bell is the property of the United
States both by the right of capture and by virtue of the fact
that the United States is successor to the rights and property
of the Confederate States of America. Salvage rights cannot be
asserted against the United States in this case under 46
U.S.C.App. § 781, because the two year limitation period has
expired, 46 U.S.C.App. § 745, and the United States has not
abandoned the CSS ALABAMA or any of its equipment.
Maritime law historically recognizes that the capture of an
enemy's vessel confers title and ownership upon the captor.
The Adventurer, 12 U.S. (8 Cranch) 221, 226, 3 L.Ed. 542
(1814); The Alexander, 1 Gall. 532, 1 Fed.Cas. 357, No. 164
(1813), (Story, J.), aff'd, 12 U.S. (8 Cranch) 168, 3 L.Ed. 524
(1814). As observed by the United States Supreme Court in The
Florida, 101 U.S. 37, 25 L.Ed. 898 (1879):
The title to captured property always vests
primarily in the government of the captors.
Id. 101 U.S. at 42.
Prior to its sinking, Captain Semmes of the CSS ALABAMA
surrendered his vessel
to USS KEARSARGE. Captain Semmes' act of surrender conferred
upon the United States title and possession of CSS ALABAMA and
all of her appurtenant equipment prior to its sinking. The
undisputed historical record establishes that USS KEARSARGE
captured CSS ALABAMA before the latter sank on June 19, 1864.
KEARSARGE was in constructive possession of ALABAMA,
positioned across ALABAMA's bow thwarting escape and able to
deliver unanswerable raking fire.
B. Right of Succession. Also CSS ALABAMA is the property of
the United States as the successor to all the rights and
property of the Confederate Government. See J.B. Moore's Digest
of International Law (1906), Vol. 1, Section 26. This principle
was recognized by the English Courts in litigation following
the Civil War in such cases as The Rappahannock (1866), 36 L.J.
Adm. 9 and U.S. v. Prioleau(1865), 35 L.J. Chancery N.S. 7.
Moore cites Prioleau in Section 26 on Succession in Case of
The Confederate Government having been dissolved,
and the Confederate states having submitted to
the authority of the United States Government,
the latter government filed a bill praying to
have the cotton, which had arrived at Liverpool,
delivered up to them, and for an injunction and
receiver. . . . Upon motion for an injunction
receiver, held that the property in question was
now the property of the United States Government,
but that they must take it subject to the
obligations entered into respecting it by the de
facto Confederate Government.
Moore's Digest at Section 26, p. 64. Moore also cites several
instances where Confederate warships were surrendered to
United States agents as property of the United States.
Id. at 64, 65; see United States, Lyon, et al. v. Huckabee, 83
U.S. (16 Wall.) 414, 434-35, 21 L.Ed. 457 (1872).
C. Lack of Abandonment. Article IV, Section 3, Clause 2 of
the United States Constitution provides:
The Congress shall have Power to dispose of and
make all needful Rules and Regulations respecting
the Territory or other Property belonging to the
United States; and nothing in this Constitution
shall be so construed as to Prejudice any Claims
of the United States, or of any particular State.
Thus, under the above clause only Congress and those persons
authorized by Congress may dispose of United States property
pursuant to appropriate regulations.
In the similar case of Hatteras, Inc. v. USS HATTERAS, her
engines, etc., in rem, and United States of America, in
personam, 1984 AMC 1094, 1096 (1981), aff'd without opinion,
698 F.2d 1215 (5th Cir. 1983) involving a claim to the wreck of
USS HATTERAS and artifacts from it, the District Court for the
Southern District of Texas held that although the wreck had
lain untouched since the Civil War, title and ownership of the
wreck remained with the United States.
Citing numerous cases, the Court observed:
It is well settled that title to property of the
United States cannot be divested by negligence,
delay, laches, mistake, or unauthorized actions
by subordinate officials.
Id. at 1098.
Relying on United States v. California, 332 U.S. 19, 40, 67
S.Ct. 1658, 1669, 91 L.Ed. 1889, 1947 AMC 1579, 1595 (1947),
the Court held that neither the maritime nor common law
doctrine of abandonment was applicable to that case.
While this traditionally conceived doctrine might
prove dispositive of the factual questions in
this case if it concerned a dispute between
[T]he Government which holds its interests here
as elsewhere in trust for all the people, is
not to be deprived of those interests by the
ordinary court rules designed particularly for
private disputes over individually owned pieces
of property; and officers who have no authority
at all to dispose of government property cannot
by their conduct cause the Government to lose
rights by their acquiescence, laches, or
failure to act. United States v. California,
332 U.S. 19, 40 [67 S.Ct. 1658, 1669, 91 L.Ed. 1889],
1947 AMC 1579, 1595 (1947).
1984 AMC at 1098.
The Court determined that the HATTERAS wreck came under the
Federal Property and Administrative Services Act of 1949,
40 U.S.C. § 471, et seq. and that it was "foreign excess property"
within the meaning of 40 U.S.C. § 512.
Implicit in the statutory scheme of 40 U.S.Code,
Section 512, is the requirement that, prior to
any agency action, a determination be made
whether the property proposed to be abandoned has
any commercial value and, if so, whether the
estimated cost of care and handling would exceed
the estimated proceeds from its sale.
1984 AMC at 1100.
The United States has never formally abandoned the wreck of
CSS ALABAMA. It is, therefore, in all respects similar to USS
HATTERAS. It is a sunken wreck located in non-territorial
waters. In view of this, the wreck, and by extension, the
ship's bell, remain the property of the United States.
Moreover, the claim of the United States to title and
ownership of the bell of CSS ALABAMA and its right to possess
it are consistent with International Law regarding warships
sunk during armed conflict. It is the position of the United
States Department of State that warships and their remains
which are clearly identifiable as to the flag State of origin
are clothed with sovereign immunity and therefore entitled to
a presumption against abandonment of title. Digest of United
States Practice in International Law, pp. 999-1006 (Dept. of
After an extensive analysis of treaty law, commentaries,
United States caselaw and foreign caselaw (See particularly
pp. 1004-1005), the State Department concluded:
Consequently, it is clear that under
well-established State practice, States generally
do not lose legal title over sunken warships
through the mere passage of time in the absence
of abandonment. They do not lose title during
combat in the absence of an actual capture of the
warships. Although abandonment may be implied
under some circumstances, United States warships
that were sunk during military hostilities are
presumed not to be abandoned and are considered
not subject to salvage in the absence of express
consent from the United States Government.
Id. at 1005.
Moreover, the legislative history of the Abandoned Shipwreck
Act of 1987, 43 U.S.C. § 2101-2106, effective April 28, 1988
supports the view of the State Department. House Report
100-514(I) (p. 366), U.S.Code Cong. & Admin.News 365-385. The
House Committee noted at pp. 366-68:
the United States only abandons its sovereignty
over, and title to, sunken U.S. warships by
affirmative act. Passage of time or lack of
positive assertions of rights are insufficient to
establish such abandonment.
Later, in part II at page 374, discussing abandonment in
general, warships are again excluded thusly:
Except in the case of U.S. Warships or other public
vessels (which requires an affirmative act of
abandonment), the act of abandonment may be implied
from the circumstances of the shipwreck. . . .
Clearly, warships are to be treated uniquely.
Thus, the lapse of time between the sinking of CSS ALABAMA
and Mr. Steinmetz's acquisition of the ship's bell did not
result in abandonment or the United States' loss of title to
the ship and its equipment.
D. The Counterclaim. Mr. Steinmetz, by way of counterclaim,
seeks the following alternative relief: a determination (1)
that the bell is his property and that he is entitled to be
paid its market value; (2) that he is otherwise entitled to
compensation on a theory of quantum meruit; and (3) that he is
entitled to compensation on the theory that the United States
would be otherwise unjustly enriched.
To the extent that Mr. Steinmetz's first claim interposes
his own claim of ownership in derogation of the claim of the
United States, he may properly assert it. For the reasons set
forth above, however, I have concluded that Mr. Steinmetz's
claim to ownership cannot be sustained.
I lack jurisdiction to entertain Mr. Steinmetz's second and
third claims seeking compensation from the United States based
on the theories of quantum meruit and unjust enrichment.
Affirmative relief is sought without a showing that the United
States has waived its sovereign immunity.
In United States v. Gregory Park, Section II, Inc.,
373 F. Supp. 317 (D.N.J. 1974), the Court held with respect to
counterclaims against the United States:
[T]he institution of suit by the United States
[does not] comprise an implied waiver of
sovereign immunity to afford affirmative relief.
A specific waiver is required. (Citations
omitted). Such provisions are not diluted by
Fed.R.Civ.P. 13 permitting counterclaims to come
within the court's ancillary jurisdiction, as
Rule 13(d) specifically provides:
Counterclaim Against the United States. These
rules shall not enlarge beyond the limits now
fixed by law the right to assert counterclaims or
to claim credits against the United States or an
officer or agency thereof.
However, notwithstanding plaintiff's sovereign
immunity and Rule 13(d), defendant may assert a
claim arising out of the same transaction or
occurrence as the original claim by way of
recoupment to reduce or defeat the Government's
recovery. But such bases will not permit an
affirmative recovery, which still requires an
independent waiver of immunity. (Citations omitted)
Id. at 351. See also Frederick v. United States, 386 F.2d 481
(5th Cir. 1967) and United States v. Timmons, 672 F.2d 1373
(11th Cir. 1982).
In the instant action, the United States seeks a declaration
of its title and ownership of the ship's bell of CSS ALABAMA
and possession of the bell. Mr. Steinmetz in his first
counterclaim seeks analogous relief. However, in his second
and third counterclaims, he seeks affirmative relief against
the United States in the form of monetary compensation without
setting forth a statutory predicate of waiver of immunity
which would permit him to receive such compensation. The
Court, therefore, lacks jurisdiction to entertain Mr.
Steinmetz's second and third counterclaims.
For these reasons, the United States is entitled to summary
judgment on Mr. Steinmetz's first counterclaim and to a
judgment of dismissal of his second and third counterclaims.
For the foregoing reasons the United States' motion for
summary judgment must be granted and Mr. Steinmetz's motion
for summary judgment must be denied. The United States is
entitled to ownership and possession of the bell. I shall
prepare and file an appropriate order.*fn2