AssateagueRover
Greenie
- Jan 9, 2009
- 16
- 0
Mariner:
The permit is a Federal permit, not State. Makes a big difference. I was told by feds I had to have it. But now that it is filed they refuse to talk about it. As to the court of appeals. This is my take. More from logic than law but nevertheless grounded in legal principles. The Sea Hunt actions were filed in rem, not in personem. The power of the court to hear the case lies in the discovery, recovery, and subsequent arrest of the res. This is how the federal courts acquire jurisdiction. If a court does not have jurisdiction over the parties or over the res it is powerless to make finding of facts or interpret laws or treaties. In Sea Hunt no Spanish property was arrested and brought into court. If there was no Spanish property brought into court then Spain would not have legal standing to request any interpretation of treaties. If someone brings a cannonball from a British ship into court, could Spain make an appeareance, assert a frivolous claim, and then ask the court to interpret the 1902 Treaty? This is not far from what happened. The allegations that there were Spanish ships found in the Sea Hunt case came more from the media than from what was said in court. At the very beginning Sea Hunt said they may or may not be Spanish ships. That fact was never determined. There was a stipulation made by the parties that they were Spanish, and that they were in the areas of arrest. Neither was true for either wreck. This stipilation was no different than the one agreed to by the State of Marland and Subaqueous Exploration and Archaeology. That case decided in 1983 awarded four ships that were complete fabrications of a con man to the State of Maryland. Not one artifact was arrested and brought into court. The Sea Hunt case was filed prematurely before they really had any idea what they had. Spain and the federal government entered the case prematurely before any identification had taken place. Then they shut them down before any identification could take place. No surprises here.
The record is clear that that the Sea Hunt case is based solely on the stipulation. Without it the case would have been dismissed for lack of evidence, at least as far as granting rights to Spanish ships. The language of the Appellate Court decision makes no reference to the stipulation. In fact it makes no reservation at all that the these two ships might not be Spanish. The statement that this was a case in rem and that the vessels had been found were made at the very beginning of the opinion. Without this preamble the court had no basis to reach or publish a decision. It is their affirmation of jurisdiction. A judgement without jurisdiction is void. The district court never acquired jurisdiction of a Spanish res. If what I am saying is wrong the appeals court could have easily said that "even though the underlying record shows no proof of Spanish shipwrecks we will go ahead and rule since everybody happens to be in court." Without a doubt an erroneous decision.
It might be a good idea for federal courts to be much more cautious about making statements of historical fact without any factual basis. Historians and archaeologists will be scratching their heads on this one two centuries from now. I hope they don't use the federal court record as a basis for any excavation.
AR
The permit is a Federal permit, not State. Makes a big difference. I was told by feds I had to have it. But now that it is filed they refuse to talk about it. As to the court of appeals. This is my take. More from logic than law but nevertheless grounded in legal principles. The Sea Hunt actions were filed in rem, not in personem. The power of the court to hear the case lies in the discovery, recovery, and subsequent arrest of the res. This is how the federal courts acquire jurisdiction. If a court does not have jurisdiction over the parties or over the res it is powerless to make finding of facts or interpret laws or treaties. In Sea Hunt no Spanish property was arrested and brought into court. If there was no Spanish property brought into court then Spain would not have legal standing to request any interpretation of treaties. If someone brings a cannonball from a British ship into court, could Spain make an appeareance, assert a frivolous claim, and then ask the court to interpret the 1902 Treaty? This is not far from what happened. The allegations that there were Spanish ships found in the Sea Hunt case came more from the media than from what was said in court. At the very beginning Sea Hunt said they may or may not be Spanish ships. That fact was never determined. There was a stipulation made by the parties that they were Spanish, and that they were in the areas of arrest. Neither was true for either wreck. This stipilation was no different than the one agreed to by the State of Marland and Subaqueous Exploration and Archaeology. That case decided in 1983 awarded four ships that were complete fabrications of a con man to the State of Maryland. Not one artifact was arrested and brought into court. The Sea Hunt case was filed prematurely before they really had any idea what they had. Spain and the federal government entered the case prematurely before any identification had taken place. Then they shut them down before any identification could take place. No surprises here.
The record is clear that that the Sea Hunt case is based solely on the stipulation. Without it the case would have been dismissed for lack of evidence, at least as far as granting rights to Spanish ships. The language of the Appellate Court decision makes no reference to the stipulation. In fact it makes no reservation at all that the these two ships might not be Spanish. The statement that this was a case in rem and that the vessels had been found were made at the very beginning of the opinion. Without this preamble the court had no basis to reach or publish a decision. It is their affirmation of jurisdiction. A judgement without jurisdiction is void. The district court never acquired jurisdiction of a Spanish res. If what I am saying is wrong the appeals court could have easily said that "even though the underlying record shows no proof of Spanish shipwrecks we will go ahead and rule since everybody happens to be in court." Without a doubt an erroneous decision.
It might be a good idea for federal courts to be much more cautious about making statements of historical fact without any factual basis. Historians and archaeologists will be scratching their heads on this one two centuries from now. I hope they don't use the federal court record as a basis for any excavation.
AR
not so hard to figger that one out 
