ODYSSEY MARINE EXPLORATION INC KEITH BRAY THE UNIDENTIFIED SHIPWRECKED VESSEL OR VESSELS 49 25 00 KINGDOM OF SPAIN v. << (2011)

Upon a thorough review of the parties' briefs and the district court's order, we hold that Bray has brought a proper federal claim.   In relevant part, the district court concluded that Bray failed to set out a claim cognizable in admiralty jurisdiction because, “[a]lthough both Bray's research and Odyssey's obligation to pay pertain to the location of a ship, neither the research agreement nor the purported oral agreement amount to a maritime contract.”   This was so, the court reasoned, “because neither contract involves maritime commerce.”   We cannot agree.

Rather, we conclude “that ‘the [contracts] here ha[ve] a more genuinely salty flavor.’ ”  Norfolk So. R.R. Co. v. Kirby, 543 U.S. 14, 22, 125 S.Ct. 385, 392 (2004) (quoting Kossick v. United Fruit Co., 365 U.S. 731, 742, 81 S.Ct. 886, 894 (1961)).  28 U.S.C. § 1333 states:  “The district courts shall have original jurisdiction, exclusive of the courts of the States, of:  (1)[a]ny civil case of admiralty or maritime jurisdiction.”   The Supreme Court has explained that

[t]o ascertain whether a contract is a maritime one, we cannot look to whether a ship or other vessel was involved in the dispute․  Nor can we simply look to the place of the contract's formation or performance.   Instead, the answer depends upon ․ the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions.

Norfolk So. R.R., 543 U.S. at 24, 125 S.Ct. at 393 (quotation marks omitted).   Thus, our task is to determine whether “the nature and character of the contract ․ has reference to maritime service or maritime transactions.”   Id.

We are persuaded here that contracts to provide research to assist in locating and recovering a sunken vessel are maritime in nature.   Especially where, as Bray alleges happened here, the agreement allocated a partial share of the vessel's recovery in recognition of the parties' joint efforts to recover the Merchant Royal, these contracts are analogous to those long held to be cognizable in admiralty.

For example, in Norfolk So. R.R. Co., the Supreme Court reaffirmed “that a shipowner's promise to assume responsibility for any improper treatment his seaman might receive at a New York hospital was a maritime contract [,] ․ [b]ecause the promise was in furtherance of a ‘peculiarly maritime concern.’ ”  543 U.S. at 24–25, 125 S.Ct. at 393 (discussing Kossick, 365 U.S. at 736–38, 81 S.Ct. at 884).   We have similarly treated in rem actions concerning salvage as falling within the scope of federal admiralty jurisdiction.   See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 333–336 (5th Cir.1978).¹  Indeed, admiralty jurisdiction is proper where parties are litigating their rights to treasure found on a long-since discovered ship.  Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 566 (5th Cir.1981).   Bray's contracts with Odyssey, furnishing specific research into the location of a sunken vessel that facilitated Odyssey's efforts to find and recover that vessel, have a similar “peculiarly maritime concern.”  Norfolk So. R.R., 543 U.S. at 24–25, 125 S.Ct. at 393 (discussing Kossick, 365 U.S. at 736–38, 81 S.Ct. at 884);  see also New Jersey Steam Nav. Co. v. Merchant's Bank of Boston, 47 U.S. 344, 421 (1848) (quoting Zane v. The Brig President, 30 F. Cas. 909, 910 (1824)) (recognizing that contract “concern[ing] the navigation of the sea” is cognizable in admiralty).

This conclusion is bolstered by the Second Circuit's recent decision in Williamson v. Recovery Ltd., 542 F.3d 43 (2d Cir.2008).   In that case, the plaintiffs contracted to provide the defendant with sonar equipment useful in locating sunken treasure.  Id. at 47.   In exchange, the defendant promised to share a percentage of the recovery with the plaintiffs, but after actually recovering the treasure, refused to pay.  Id. The plaintiffs brought suit in federal court, alleging that the contracts rendered the parties subject to maritime jurisdiction.  Id. at 47–48.   Both the district court and Second Circuit agreed, reasoning that the nature of the contracts was “salty” because they “were by their terms entered in connection with maritime commercial venture.”  Id. at 49 (quotation marks omitted).   This connection, the court reasoned, negated the defendant's argument that the contracts were non-maritime because they were identical to any other employment or assistance contract.   Id. Faced with a similar circumstance in this case—an exchange of research for a percentage of the spoils that research helps uncover—we find our sister circuit's reasoning highly persuasive.

For the foregoing reasons, we conclude that Bray's claim is properly cognizable under federal admiralty jurisdiction.²  Accordingly, we reverse the judgment of the district court dismissing this case, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

FOOTNOTES

FN1. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981..  FN1. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

FN2. Having concluded that admiralty jurisdiction is proper, we need not address Bray's alternative jurisdictional arguments..  FN2. Having concluded that admiralty jurisdiction is proper, we need not address Bray's alternative jurisdictional arguments.