On April 22, 1998, the United States Supreme Court announced its decision in California v. Deep Sea Research, Inc., 1 a case of shipwreck salvage begun as a maritime action in rem. Because the Court does not often accept cases of admiralty and maritime law, its decision was eagerly anticipated by American maritime lawyers and constitutionalists, both for what it might say about the Eleventh Amendment and sovereign immunity in a federal system and how it might limit Congressional power to alter the general maritime law and admiralty jurisdiction. Also anxious for the Court's decision were the few maritime lawyers who practice what has become known as treasure salvage law. Recent advances in technologies for locating sunken wrecks and retrieving what remains have put within easy reach an accumulation of shipwrecks lost and forgotten for ages. As well as the lawyers, state governments, historic preservationists, marine archaeologists, professional shipwreck hunters, and recreational scuba divers all looked forward to the resolution of the case of the Brother Jonathan. They hoped for the Court's resolution of a variety of issues that recently had emerged on the line in general maritime law where the law of salvage abuts the law of finds. The case seemed to promise as well answers to a number of questions about the Abandoned Shipwreck Act of 1987 ("ASA"),2 a sweeping legislative intervention apparently governing shipwrecks and other marine archaeological sites on or in the bed of the territorial waters of the several United States.
What the Court actually decided, however, was far short of what it might have decided. The unanimous opinion of the Court offers a simple enough answer to one very narrow question about the Eleventh Amendment. In addition, it hints at the answer to one narrow question about the proof required in a small number of shipwreck salvage cases, and, at best, invites an answer from the lower courts to another. Many other questions are left unanswered. What follows is an examination of the Supreme Court's answers in Deep Sea Research and the more important questions left unanswered. II
John Paul Jones,Treasure Salvage and the United States Supreme Court: Issues Remaining After Brother Jonathan, 30 J. Mar. L. & Com. 205 (1999)