The Eleventh Circuit Is the Captain Now: the Discovery of a Lost Sixteenth-century French Royal Navy Shipwreck Sails France Into Litigation

• Publication year: 2023

The Eleventh Circuit is the Captain Now: The Discovery of a Lost Sixteenth-Century French Royal Navy Shipwreck Sails France into Litigation

Kirsten Ehlers

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The Eleventh Circuit is the Captain Now: The Discovery of a Lost Sixteenth-Century French Royal Navy Shipwreck Sails France into Litigation

Kirsten Ehlers^*

I. Introduction

X marks the spot! The quest of uncovering historic shipwrecks that were lost at sea and recovering their treasures seemed like an exciting movie script until a sixteenth-century shipwreck was discovered off the coast of Cape Canaveral, Florida, in 2016.¹ That finding later caught the attention of the Republic of France (France) when Global Marine Exploration, Inc. (GME) attempted to salvage the shipwreck France believed to be its sovereign property.² That ship was the flagship of the 1565 Royal Navy of France Fleet, la Trinité.³

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In the United States District Court for the Northern District of Florida, GME sued France for monetary damages, unjust enrichment, misappropriation of GME's trade secrets, and for France's interference with GME's rights and relations.⁴ France moved to dismiss the case for lack of subject matter jurisdiction, but was met with opposition from GME when it argued that under the "commercial activity" exception of the Foreign Sovereign Immunities Act (FSIA),⁵ a foreign state is not immune from suit in the United States for claims based upon commercial activity it carried out within the United States.⁶ The district court agreed with France and granted its motion to dismiss for lack of subject matter jurisdiction.⁷

GME appealed to the United States Court of Appeals for the Eleventh Circuit.⁸ In Global Marine Exploration, Inc. v. Republic of France,⁹ the Eleventh Circuit ultimately reversed and remanded the district court's decision to dismiss the case for lack of subject matter jurisdiction. The Eleventh Circuit held that because France had made plans for the exhibition of artifacts,¹⁰ directed and coordinated recovery efforts, and

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secured funding for the project, its activities were "commercial" under the FSIA.¹¹ The court also held that GME's claims were "based upon" France's commercial activities.¹² In reversing, the Eleventh Circuit disagreed with the approach taken by the United States Court of Appeals for the Second Circuit which cited patrimony laws¹³ as a rationale for classifying a foreign state's activities as sovereign rather than commercial in nature.¹⁴

In doing so, the Eleventh Circuit broadened the scope of the commercial activity exception to the FSIA. The resulting circuit split between the Eleventh Circuit and the Second Circuit on the scope of the commercial activities exception renders uncertain precisely when a foreign sovereign is subject to suit in the United States, a matter of significant importance to foreign business relations as well as stability in the federal law.

II. Factual Background

Global Marine Exploration, Inc. was an American company based out of Florida that located and excavated historical shipwreck sites.¹⁵ In 2014 and 2015, GME entered into several authorization agreements with the Florida Department of State Division of Historical Resources (FDOS) that allowed GME to conduct salvage activities off the coast of Cape Canaveral, Florida. Under these agreements, GME was granted an easement and various permits for salvage exploration on Florida-owned lands and navigable waters. GME conducted prolonged expensive research where it surveyed, reported, and identified shipwreck sites.

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Pursuant to the agreements, the 1565 flagship of the Royal Navy of France Fleet, la Trinité, was discovered on the ocean floor.¹⁶

GME undertook the project of excavating la Trinité. GME had investment-backed expectations and assurances that it would be fully compensated for the millions of dollars' worth of effort it expended in mapping, excavating, and recovering the historical shipwreck.¹⁷ GME also expected FDOS to protect the confidentiality of the coordinate information it shared with FDOS which included various photos and videos of the shipwreck's location. However, during the recovery process of la Trinité, GME learned that FDOS had been collaborating and negotiating with France without GME's involvement. This led to an in rem admiralty action (GME I) in which the district court found that la Trinité was the sovereign property of France and dismissed the case for lack of subject matter jurisdiction.¹⁸

After GME I, France and FDOS entered a "Declaration of Intent Between the State of Florida and the Republic of France on the Shipwrecks of Jean Ribault's Fleet" (Declaration of Intent).¹⁹ The Declaration of Intent authorized France to supervise the recovery efforts of la Trinité. FDOS and France also developed a Florida-France steering committee to implement the agreement. The Florida-France steering committee was tasked with protecting the shipwreck sites, recovering them, presenting any findings to the public in the form of exhibitions, promoting the cultural history shared between France and the United States, and overseeing the resources and organizations to be used in fulfilling the Declaration of Intent objectives.²⁰

GME sued France in April 2020 in the United States District Court for the Northern District of Florida alleging four claims: (1) an in personam lien award; (2) unjust enrichment; (3) misappropriation of GME's trade secret information; and (4) interference with its rights and relations.²¹ France then moved to dismiss the complaint under Rule 12 of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, asserting that GME had failed to establish the commercial activity exception under the FSIA applied to France.²²

The FSIA generally prevents suits from being brought against foreign states in the United States when the activities carried out by the foreign

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state are "sovereign" in nature.²³ However, the commercial activity exception to the FSIA permits a suit to be brought if the foreign state participates in activities that a private person could facilitate rather than performs an activity that is reserved exclusively to a government or a sovereign entity.²⁴ The claims brought by the plaintiff must also be based upon those commercial activities.²⁵

GME argued that without its services, the historic shipwreck would not have been discovered.²⁶ GME also argued that because France had sent missions to Florida to manage the project and provided scientific expertise while the excavation work was ongoing, France's activities were commercial in nature and were the foundation for GME's claims. France, in response, argued its involvement in the excavation project did not bring it within the commercial activity exception to the FSIA because its involvement was an entirely governmental function regarding its own sovereign military property.²⁷

For the exception to apply, GME needed to prove that France participated in commercial activity within the United States and that its claims were based upon France's commercial activity. The district court granted France's motion to dismiss for lack of subject matter jurisdiction.²⁸ The court reasoned that the type of actions carried out by France were not the type that a private party would engage in—such as trade, traffic, or commerce—and so did not satisfy the requirements of the commercial activity exception.²⁹

The district court concluded that because la Trinité was France's military property, France had not entered the market or behaved in the same manner a private person would.³⁰ According to the court, private actors do sometimes engage in marine exploration, but France's preservation and recovery efforts alone did not qualify as commercial activity. Additionally, the district court found that even if France had engaged in commercial activities, GME's claims were not based upon those activities.³¹

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GME appealed to the United States Court of Appeals for the Eleventh Circuit.³² GME argued the district court erred in dismissing its complaint because the commercial activity exception to the FSIA did apply to France's activities and GME's claims against France were based upon France's commercial activities.³³ France argued that when it collaborated with FDOS in conducting preservation and recovery efforts of la Trinité, it acted under French patrimony laws for the benefit of the public in an effort to commemorate historical events which bared no resemblance to commercial activity.³⁴

The Eleventh Circuit reversed the district court's decision.³⁵ The court held that France's activities were sufficient to come within the commercial activity exception to the FSIA, and that GME's action against France was based upon France's commercial activity within the United States. The case was remanded for further proceedings.³⁶

III. Legal Background

In Global Marine Exploration, Inc. v. Republic of France, the issues before the United States Court of Appeals for the Eleventh Circuit were whether France's activities qualified as commercial activities under the FSIA and whether GME's action against France was based upon France's commercial activities.³⁷ The Eleventh Circuit relied on precedent from the Supreme Court of the United States and its own prior decisions to interpret the scope of the commercial activity exception.³⁸

A. Anchoring the Foreign Sovereign Immunities Act

In 1976, the United States Congress enacted the FSIA.³⁹ The FSIA is the basis for a foreign state to obtain immunity from litigation in the United States, but also serves as the avenue in which a United States federal court may gain subject matter jurisdiction over a foreign state if its activity falls within an exception.⁴⁰ The FSIA states that by granting sovereign immunity to foreign states in most circumstances, the interest

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of justice is served and the rights of both the foreign states and United States litigants are protected. The...