Full opinion text
ORDER GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION JAMES LAWRENCE KING, District Judge. HISTORICAL INTRODUCTION In the early eighteenth century, Spain’s dominions extended over one third of the known world. The King of Spain annually sent two fleets of ships to the New World to bring back the wealth of the Americas. One fleet picked up the gold, emeralds, and pearls unearthed from Peruvian mines, at the port of New Granada — present day Cartagena, Colombia; the other boarded delicate pottery and china shipped from the Orient, and Mexican silver, cochineal and indigo dyes, at Veracruz, Mexico. Each year the two fleets met in Havana, Cuba to voyage homeward together across the Atlantic. This afforded the treasure laden galleons some measure of protection from the pirates of the Caribbean who were well aware of the sailing dates of the fleet and the richness of the prize that was theirs if they; could but capture one of these vessels. Normally, the combined fleet sailed by May or June in order to clear the Straits of Florida before the treacherous hurricane season set in, but in the summer of 1715, the fleet of General Don Juan Esteban de Ubilla and General Don Antonio de Echeverz was delayed due to trade problems and the late arrival of four ships from Veracruz. The Governor General of Havana was painfully aware of the Spanish monarch’s critical need for the immense treasure of gold, silver and precious jewels secured in the King’s treasure chests awaiting shipment. The Royal Treasury was exhausted by the cost of fighting the war of the Spanish Succession and the failure of the fleet to sail the preceding year. So, notwithstanding that it was the heart of the danger season of the high winds, a treasure fleet of twelve ships departed from Havana Harbor on July 24, 1715. According to historical accounts, it was an occasion for celebration with brightly colored flags whipping briskly in the breeze and the booming of ceremonial cannon fire ringing in the ears of the throngs of excited citizens crowding the docks. New of those present, and certainly none of the over two thousand men aboard the ships, had any inkling of what lay ahead on their fateful voyage. Before the week was out, over half their number would be dead and all of their mighty ships, save one, would lie entombed in a watery grave forever. The galleons sailed northward through the Straits of Florida and past the Florida Keys under a clear and cloudless sky. Their chartered course, and one that they traditionally followed, took them along the east coast of Florida to a point past Cape Canaveral, then following the Gulfstream until it veered eastward to a point north of Bermuda where the fleet would catch the prevailing winds that carried them across the Atlantic to Spain. By noon on Tuesday, July 30, 1715, a strange calmness had settled in, punctuated by occasional gusts of strong wind that whipped the waves into ever mounting heights of whitecapped water. By mid-afternoon the sky had darkened and the wind was gusting steadily, whipping spray from the breaking waves over the doomed fleet. In the early morning hours of July 31st, the wind suddenly shifted to the east-northeast, and the hurricane struck with all its fury. The ships, gripped in the incredible force of the crashing waves and mighty winds of nature’s most awesome phenomena, were lifted like matchsticks on mountainous crests to be plummeted in the next instant into deep troughs of the ocean. Tons of seawater crashed over the railings of the galleons and, with the shriek of the wind, drowned out the screams of the seamen washed overboard to their death. Huge anchors were dropped in a desperate attempt to bring the bows of the ships around into the wind and hold them in the deeper waters offshore. As the wind howled and the hurricane increased in intensity, the panic stricken sailors watched the thick anchor lines snap, one by one. Second, and sometimes third, anchors were dropped as the tempestuous sea pounded the ships relentlessly closer and closer to the jagged reefs and shoals. Ultimately, as the oaken hulls of the once proud and mighty Spanish Treasure Fleet were ripped by the cruel coral of the Florida coast, the seawater poured into the smashed ships and they heeled over and sank. For the wretched survivors, the hurricane had inflicted an incredible measure of death and destruction; one thousand persons perished, eleven galleons sunk, and fourteen million pesos of treasure lost. Only one vessel survived, under the masterful seamanship of its captain, to limp back to Havana with news of the disaster. Destiny brought the ghosts of these Spanish Galleons, that had set sail bravely from Havana Harbor July 24, 1715, to a rendezvous in an Admiralty Court at the United States Courthouse in Key West, Florida, two hundred and sixty-six years later on July 27, 1981. I. PROCEDURAL HISTORY OF CASE Nearly two hundred sixty four years from the day these ships were lost to the ocean in the terrible hurricane of July 1715, the treasure and the remains of one ship became the subject of a suit in admiralty in this Court. On August 17, 1979, the plaintiff Cobb Coin filed its complaint seeking to be declared owner in possession of the wrecked vessel located “within 3,000 yards of a point [bjeginning at coordinates 27° 43.8' N. latitude by 80° 22.8' W. longitude.” Alternatively, it sought an award for salvage services performed on the vessel, her tackle, armament, apparel, and cargo. Three days later the plaintiff retrieved a cannon from the wreck site. On August 29, 1979, the State of Florida answered the complaint, and counterclaimed by asking this Court to declare it owner of the vessel and for restitution from the plaintiff for items it had salved. The State contends it owns all such wrecks within its territorial waters under its Archives and History Act, chapter 267, Florida Statutes (1979), and thereby has plenary authority to administer their salvage. The State’s agents have backed up Florida’s claim by attempting to enforce the criminal sanctions against unauthorized exploration and salvage against the plaintiff’s agents. By mid-summer 1981, those agents were so energetically pursuing that prosecution as to prevent the plaintiff from salving as it is entitled to do under the order of this Court. The plaintiff Cobb Coin, and the intervening plaintiff Real Eight Company, Inc., filed an application for temporary restraining order and motion for preliminary and permanent injunction June 25, 1981. On July 7, 1981, this Court issued a temporary restraining order enjoining the State, its agents, employees, and attorneys from interfering with the plaintiff’s ongoing salvage operations by carrying out their threatened arrests. Following that order, an eleven-day hearing on the motion for a preliminary injunction ensued, in which the parties presented extensive evidence and oral argument in the premises. Part of the following procedural history is taken from the July 7, 1981, order of this Court. Cobb Coin Company, Inc., a Florida corporation, filed its complaint in admiralty August 17,1979, contending that it had title to the abandoned vessel described as the defendant in this Court and believed to be a Spanish Galleon which sank in 1715 at a point a few hundred yards off the Sebastian Inlet, St. Lucie County, Florida. The claim of title was founded upon the discovery by the plaintiff of the abandoned and wrecked vessel which, it was alleged, was in the total and exclusive possession of the plaintiff at the time of filing the complaint in this Court. Thereafter, on August 29, 1979, the United States District Court entered an arrest in rem directing the United States Marshal to take into custody a cannon from the Spanish Treasure Galleon which had been brought up from the ocean floor on August 20, 1979. Earlier, on August 22, 1979, the plaintiff corporation sought a temporary restraining order against the intervening claimant, State of Florida, alleging that said intervenor was intending to interfere with the jurisdiction of the United States District Court for the Southern District of Florida. Specifically, the State’s agents threatened to arrest the president of the plaintiff corporation and the captain of the salvage vessel employed by the plaintiff for alleged grand larceny of the cannon from the wreck site. At a hearing on the application for preliminary injunction held on August 23,1979, the Honorable Sidney M. Aronovitz, United States District Judge, held that this Court had jurisdiction of the subject matter of this cause pursuant to 28 U.S.C. § 1333, and that possession of the cannon recovered from the wreck site on August 20, 1979, “constituted constructive possession of the wreck itself and everything that is a part thereof, wherever located, and whenever removed therefore, past, present or future.” Judge Aronovitz ordered the United States Marshal for the Southern District of Florida, “to receive and take into his possession and control any and all items that have or will come up from the wreck in 'question, no matter who has brought up or who will bring up such items until a determination of ownership is made or a further order of this Court is issued.” The intervening claimant, State of Florida, sought an injunction preventing Cobb Coin Company, Inc., from continuing to salvage from the wreck site involved in this suit and moved for an order appointing the State as substitute custodian of the artifacts then being recovered from the wrecked Spanish Galleon. On October 12, 1979, after a full evidentiary hearing thereon, this Court denied the State’s application for preliminary injunction and change of custodian in the following language: Whether the State of Florida has a sovereignty submerged lands claim to the wreck is a matter to be determined later. The artifacts and cannons are presently in the custody of the U.S. Marshal, who has been ordered to consult officials of the State of Florida to the extent necessary to preserve the value of those items. The State has not claimed that the Marshal is incapable of maintaining the cannon, nor that any damage to it has taken place. Rather, the State claims merely that it will have a more difficult time supervising the cannon once its agents leave the area of the wreck. That claim is insufficient to support a change of custodians, especially given the conflicting claims of ownership in this case. The State’s need to place an agent on salvage vessels for the purpose of cataloguing the recoveries does not state sufficient grounds for enjoining the operations of the Cobb Coin Co. The State’s interest can be protected by simply placing an agent on Cobb Coin Company’s vessels. It is therefore ORDERED and ADJUDGED that the Cobb Coin, Co., Inc., will allow agents of the State of Florida to come on board its salvage vessels solely to catalogue and authenticate articles brought up from the wreck site. The State’s motion for an Order for a preliminary injunction is otherwise denied. It is further ORDERED and ADJUDGED that Intervenor’s motion for an Order appointing it Substitute Custodian is denied. The United States Marshal of this District contracted with a Mr. Arthur Hartman, to be custodian of the salvaged artifacts and to hold and preserve the items of salvage brought up from the defendant wreck site. According to the plaintiff’s application for temporary restraining order filed June 25, 1981, hundreds of artifacts were salvaged from the vessel during the salvage season of 1980. Pursuant to this Court’s order of October 12, 1979, a State agent was aboard the salvage vessel and observed the recovery of the treasure from the defendant wreck site throughout the salvage season of 1980 and 1981. This State agent catalogued and authenticated the articles brought up from the wreck site in order to insure that the State’s interest was fully protected therein. Additionally, Mr. Arthur Hartman, as a representative of the United States Marshal and the custodian, by Court order, of these artifacts made and rendered an accounting of the items salvaged. On June 15, 1981, Florida Marine Patrol Officers boarded the salvage vessel “Dare” and issued a warning to the captain and crew advising them that they were subject to arrest and prosecution for a violation of the law of Florida against unauthorized exploration and salvage. At the time this warning was issued an agent of the State of Florida was present on the salvage vessel belonging to employees of the plaintiffs, for the purpose of complying with this Court’s order permitting the State to have its agents aboard to catalogue and authenticate the items being brought up from the wreck site of the Spanish Galleon. Thereafter on June 21, 1981, the plaintiff’s salvage vessel “Dare” was again boarded by agents of the State of Florida and a criminal citation was issued against the captain of the vessel for a violation of Florida Statute § 267.13. The plaintiffs contend that the 1981 salvage season has now commenced and that they have made extensive contractual and financial commitments to a full fledged continuation of the salvage operations that were conducted in 1979 and 1980. The plaintiffs assert that an interruption of the on-going salvage operation would result in substantial damages for costs of charter vessels, crews’ wages, expenses, up-keep, maintenance, and irreparable damage in loss of control of the site of the wrecked Spanish Galleon by others who would indiscriminately salvage in the absence of any control by the plaintiffs or this Court. The parties filed motions for a temporary restraining order, preliminary injunction, and rule to show cause why the intervening claimant, State of Florida, should not be held in contempt of Court. This Court then issued its July 7, 1981, temporary restraining order, based on two major conclusions. First, the propriety of such an order was not precluded by the rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Second, the plaintiff’s continued salvaging of the wreck site would be in the best interests of all the parties; the costs of lost investment and opportunity would have been immense, while the artifacts retrieved would be accurately accounted for by both the State’s agents and the Federal Court custodian during the period of the Order. The Court adheres to its ruling of July 7, 1981, that this injunction is not foreclosed by Younger. The July 7th Order held: [T]he state asserts that the plaintiffs are asking the Court to enjoin its attempts to enforce its criminal laws relying on the principle announced in Younger v. Harris ... and Mitchum v. Foster [, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705] .... [citations omitted] The Court has determined that the ruling of Younger v. Harris . . . does not preclude issuance of the present injunction. The Younger doctrine holds that, absent exceptional circumstances, a federal court should not interfere with an ongoing state criminal proceeding. In his order of August 24, 1979, Judge Aronovitz denied Cobb Coin’s request for injunctive relief against the state, on the grounds that the existence of none of the exceptional circumstances referred to in Younger, such as bad faith harassment on the part of the state officials or irreparable injury, had been demonstrated by Cobb Coin. Judge Aronovitz’s ruling, however, was made “without prejudice to the plaintiff or its agents to reapply to this court for relief if circumstances change and warrant same.” After careful review, the Court finds that circumstances have changed substantially since Judge Aronovitz’s prior order, and that injunctive relief is now warranted. The plaintiff has asserted that an arrest of any of its employees would work an extreme economic hardship upon Cobb Coin, which has invested thousands of dollars in salvage equipment and manpower. Such an impediment to the ongoing work of Cobb Coin’s divers and other skilled personnel, which has been pursued in accordance with this Court’s explicit authorization, would clearly cause it irreparable damage. Indeed, were the state to halt Cobb Coin’s operations, it is likely that third party salvor-pirates would attempt to reap the hard-won benefits of Cobb Coin’s research and labor at the Corrigan’s Wreck Site. In the face of such threatened injury, the Court concludes that the principles of Younger must give way. It is further apparent that, by threatening to arrest the salvage vessel’s captain and crew, the state is attempting to circumvent the ruling issued by this Court October 12, 1979, which had granted Cobb Coin the right to continue its salvage operations. No appeal was ever taken by the state. Since the Court’s ruling, the state has continued to maintain its inspectors aboard the salvage vessels. These inspectors have provided protection of the state’s interests by cataloguing and authenticating the various artifacts retrieved. Although Mr. Hartman was delegated custodianship by the U.S. Marshal pursuant to a contract entered into months ago, the state has seen fit to wait until the present time to oppose his appointment and challenge the sufficiency of the safeguards authorized by this Court in October of 1979. Instead of now bringing this matter to the Court’s attention and waiting for an appropriate ruling thereon, the state has taken the matter into its own hands. The Court finds that such behavior on the part of the state constitutes no more than bad faith harassment, justifying abrogation of the Younger Doctrine. The Court further concludes that, by threatening to arrest the plaintiff’s employees for engaging in salvage operations expressly validated by this Court, the State of Florida is attempting to interfere impermissibly with an ongoing federal matter. Such usurpation of the proper jurisdiction of this Court cannot be tolerated. The efforts by the Florida Marine Patrol to prosecute the plaintiff’s employees have intensified since the expiration of the July 7th temporary restraining order. Considering that the State prosecution began after this Court assumed jurisdiction over the matter, it is clear that Younger does not apply. As stated in the July 7th Order, this Court was “fully cognizant of the State of Florida’s legitimate interest in the preservation of what it considers to be archeological treasures belonging to the State. In order to protect this significant State concern, the Court ... set the trial in this case for an immediate, final hearing.” In so doing, the Court followed the procedure established by the Fifth Circuit Court of Appeals in Treasure Salvors v. Unidentified, Wrecked and Abandoned Sailing Vessel, 640 F.2d 560 (5th Cir. 1981) (Treasure Salvors III). That hearing took place between July 28th and August 11, 1981, and counsel for all parties zealously argued their positions. The factors calling for the issuance of this injunction are analyzed in Section III of this Order. For purposes of this introduction, it suffices to say that the evidence adduced at the eleven day hearing on the motion for preliminary injunction strongly reinforced the conclusion that an injunction is not only legally justified, but in all the parties’, and the public’s, best interest. II. A THRESHOLD DETERMINATION: THE BASES OF JURISDICTION A. Jurisdiction in this Case is Properly Founded on Traditional Maritime, In Rem, and In Personam Principles As the claimants herein assert that this suit was improperly brought before the Court in the first instance, an analysis of the motion for preliminary injunction must be preceded by a discussion of this Court’s admiralty jurisdiction. This action was originally brought in the nature of an in rem suit against “The Unidentified, Wrecked and Abandoned Sailing Vessel (Believed to have sunk in 1715), her tackle, armament, apparel and cargo located within 3,000 yards of a point: Beginning at coordinates 27° 43.8'N. latitude by 80° 22.8'W. longitude.” Through this suit, Cobb Coin Company, Inc. — a corporation formed by Mr. Mel Fisher and his professional salvaging group specifically for the purpose of conducting salvage operations on this particular wreck site — seeks to assert a salvage claim against the named vessel. Although identified as a “wrecked vessel,” it should more accurately be termed a wreck site, for what the teredos and the passage of time have left for salvage is a load of cargo scattered on an expanse of ocean floor. Contrary to what the claimants suggest, however, this Court is not persuaded that the process of natural history which eroded the vessel’s structure has similarly diminished the federal rights and remedies now available to a salvor who successfully returns to the mainstream of commerce goods otherwise buried beneath the sea. At the outset, the Court notes that no parties contest the existence of in rem jurisdiction over the artifacts which have actually been brought up from the ocean bottom and turned over to the U.S. Marshal pursuant to these proceedings. The controversy exists with respect to this Court’s alleged in rem jurisdiction over the named “vessel,” and in personam jurisdiction over the State. As discussed above, the true subject of the maritime action in the case before the Court, is not salvageable material ensconced in an extant hull, but the identifiable cargo of the former vessel. The absence of a hull, however, does not affect the traditional maritime right of a salvor to uninterrupted salvage operations where such salvor, in conducting his operations on an identifiable wreck site, does so in a manner demonstrating that degree of dominion and control which is appropriate under the circumstances. See, e. g., Rickard v. Pringle, 293 F.Supp. 981 (S.D.N.Y.1968); Eads v. Brazelton, 22 Ark. 499 (1861). As stated by the Fifth Circuit in Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560 (5th Cir. 1981) (Treasure Salvors III): The law ... does not always require that one who discovers lost or abandoned property must actually have it in hand before he is vested with a legally protected interest. The law protects not only the title finally acquired by one who finds lost or abandoned property but also the right of the person who discovers such property, and is actively and ably engaged in reducing it to possession, to complete this project without interference from another. The courts have recognized that in order to acquire a legally cognizable interest in lost or abandoned property, a finder need not always have “manual” possession of the thing. Rather, a finder may be protected by taking such constructive possession of the property as its “nature and situation” permit. Id. [Citation to Eads v. Brazelton, 22 Ark. at 511]. Thus in Eads, the court emphasized that Brazelton [the first finder] need not have actually raised the lead [lead] and put it on board his ship in order to acquire legal protection against interference by others. If Brazelton had merely placed “his boat over the wreck, with the means to raise its valuables, and with persistent efforts directed to raising the lead,” Eads v. Brazelton, supra at 511, he would have been deemed to have a legally protected possessory interest in the wreck and Eads [the subsequent salvor] would have had no right to interfere with that possession by undertaking his own salvage operations. 640 F.2d at 572. Jurisdiction in such a case is predicated on in personam, rather than in rem principles. As had been stated earlier by the Fifth Circuit in its Treasure Salvors III opinion: This type of claim to title by occupancy can, of course, be asserted in an in rem proceeding instituted once the goods have been recovered and brought to shore within the jurisdiction of the court. However, since the law of maritime salvage and finds also protects the right of a salvor who undertakes a project to carry it to completion without interference from others who seek to share in the enterprise and the reward, we think that the admiralty and maritime jurisdiction of the federal courts also encompasses the power to entertain a salvor’s claim that another is wrongfully interfering with his ongoing endeavors and to grant such relief as may be appropriate in order to protect a salvor’s right to pursue his salvage endeavor exclusively, even though the property which is the subject of the salvage effort might not be within the territorial jurisdiction of the court. The fact that the property which is the subject of the salvage effort is not within the territorial jurisdiction of the court, and thus not subject to an in rem decree, is irrelevant because the salvor’s claim is not one in rem seeking to recover against the vessel for salvage in which the in rem fiction is used to personify the vessel and treat it as a party to the litigation. Although rights to the vessel may be the subject of the dispute, the adverse parties in this situation are the competing salvors. Thus, since the court has jurisdiction over them, and the subject matter involves claims based on the maritime law of salvage and of finds, the court is fully competent to adjudicate the dispute regardless of the location of the salvage operations. 640 F.2d 567-68. While the claimant Quest Corporation has no quarrel with this ground of jurisdiction, the State, after filing its claim of owner and seeking affirmative relief, now makes the eleventh-hour assertion that application of in personam jurisdiction principles to it is barred in this case by the Eleventh Amendment. Upon intervening in this litigation, the State, rather than contesting jurisdiction over it, sought to invoke this Court’s declaratory powers to its benefit. Now, after having subjected itself to the Court’s jurisdiction from the outset by seeking such affirmative relief, the State attempts to assert a shield against any adverse rulings which may result from the litigation by maintaining that it may waive sovereign immunity only by enactment of a general law specifically permitting suit. In so arguing, however, the State has misplaced its reliance. Both cases cited by the State in support of its proposition are inapposite. The first of these is Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla.1978). In Manatee County, three municipalities sued the Board of County Commissioners seeking a remittance of city residents’ taxes which had been used to pay for services rendered for the benefit of the unincorporated area only. The cities were proceeding under section 125.01(6)(a) of the Florida Statutes, a section which implements the Florida constitutional provision that property within the municipalities shall not be so taxed. Through it, municipalities are authorized to petition the county governing board, either to set up a compensatory finance scheme for the ensuing year, or to remit to the municipalities the identified cost paid by them under a formula prescribed by law. The Supreme Court of Florida applied the rule that the State’s sovereign immunity could only be waived by general law and that such a waiver must be clear and unequivocal, 365 So.2d at 147, but held that the waiver expressed in section 125.01 was clear as to prospective, but not as to retrospective, relief. Id. The court in Manatee County cited Arnold v. Shumpert, 217 So.2d 116 (Fla.1968), the second case upon which the State here relies. Arnold was a suit against the county for negligent maintenance of a traffic signal. The purported basis of governmental liability was a local ordinance providing for insurance coverage and the state statute authorizing counties to provide for insurance coverage. The court held, first, that a general state law, not a local ordinance, was required to waive immunity. Next, it held that the state statute, by enumerating certain items for which counties could purchase insurance, had to be strictly construed and could not be interpreted as waiving immunity for negligent maintenance of traffic signals. 217 So.2d at 120. In other words, where a suit is one which would be barred by sovereign immunity — that is, a suit for past money damages, see Section II.B. infra — a statute which purportedly waives that immunity will be strictly construed. But here, even assuming arguendo that the State were, as it asserts, a rightful claimant of such abandoned property as that here in question, the disposition of the artifacts to which the State claims ownership is not an award of money damages against the State to be exacted from her treasury. Therefore, no statutory waiver is necessary, and Florida’s arguments are inapplicable. In summary, then, once a salvor who discovers and brings up an artifact from an identifiable wreck site initiates suit by taking that object into federal court, the court acquires jurisdiction not only to adjudicate the disposition of the article already within its territorial jurisdiction, but maritime jurisdiction (based on in personam principles) to adjudicate disputes between competing salvors, and in rem jurisdiction (coupled with in personam jurisdiction over the claimants) to dispose of all articles thereafter brought up from that site. The filing of such a suit is, as here, an open invitation (either at that time, or such time as an applicable interest may thereafter arise) for claimants and competing salvors to come before the court and make their alleged interests known. B. This Suit is Not Barred By the Eleventh Amendment In opposition to the plaintiff’s motion, the claimant State of Florida argues that this suit is barred by the Eleventh Amendment to the United States Constitution. Given the Supreme Court’s clear exposition of the Eleventh Amendment, this action cannot be construed to be so barred. The Eleventh Amendment provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” As the Supreme Court has repeatedly interpreted the amendment, it protects an unconsenting state from suits brought not only by citizens of another state, but by her own citizens. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974), citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1880). This bar to unconsented-to suits at law or equity applies with equal effect to suits in admiralty. See In re State of New York, No. 25, 256 U.S. 490, 503, 41 S.Ct. 588, 591, 65 L.Ed. 1057 (1921). But at this date, it is clear that the immunity afforded by the Eleventh Amendment extends only to suits in which a plaintiff seeks compensatory money damages which would be payable from the state treasury. Edelman v. Jordan, 415 U.S. at 663, 667, 94 S.Ct. at 1356, 1362. According to the Supreme Court, “the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.”. 415 U.S. at 663, 94 S.Ct. at 1356. Here, the plaintiff salvor seeks an adjudication of its alleged right to a portion of the property salved. For centuries, the remains of the 1715 fleet to which the plaintiff has directed its efforts lay undisturbed on the ocean bottom. It was not until the period between 1939 and the early 1960’s that various treasure hunters became aware of the general location of the wreck sites east of Florida’s Sebastian Inlet. In 1967, the Florida Legislature, through the Archives and History Act, first claimed ownership of all sunken historic and archeological artifacts within the State’s territorial jurisdiction. The evidence adduced at the hearing on the Motion for Preliminary Injunction indicates that, following that enactment, no active endeavor by the State to recover the sunken treasures and reduce them to possession ensued, except through negotiation of leases pursuant to the provisions discussed above. The plaintiff, in contrast, having retrieved hundreds of artifacts from the deep since filing suit in August, 1979, asks this Court to determine either that it owns those items as finder, or that, by virtue of its services as a successful salvor, it is entitled to an appropriate salvage award. Under usual circumstances, the application of admiralty principles would lead to an award either of outright ownership of the recovered goods (applying the law of finds) or of entitlement to an appropriate salvage award. The instant case, however, does not present such “usual circumstances.” Here, the original “owner” of the artifacts was the King of Spain, who indeed attempted to salvage his wrecked ships, but abandoned the effort in 1716. Now, Florida seeks to claim ownership of the wrecks through legislative pronouncement. As is discussed below, the matrix of state and federal statutes through which Florida stakes its claims does not make the State an “owner” so as to allow it to exercise that dominion which would supercede the plaintiff’s federal salvage rights under the maritime law. See discussion of the Submerged Lands Act, Section III.A.4., infra. Even were the State to be considered the nominal “owner” of the sunken treasures on the ocean bottom, maritime precedent still provides for a salvage award to one who saves property owned by the sovereign by virtue of its expressed sovereign prerogative. Because of the unusual character of the wreck sites of former vessels in the 1715 Plate Fleet, the form of salvage award to be entered in this case would differ from usual awards. Normally, the salvaged items sued in rem are sold to satisfy the judgment, which is stated as a set sum derived from an appropriate percentage of the monetary value of the goods. Where, as here, the “proceeds” of the salvor’s find are items uniquely and intrinsically valuable beyond their monetary worth, an award in specie is more appropriate. Thus, in this case, should the plaintiff succeed on the merits, it would be awarded a part of those artifacts which had been lost in the ocean depths for over two hundred and sixty-four years, and which, but for the plaintiff’s considerable efforts, would otherwise have remained unknown to the terrestrial world. Similarly, that portion representing the State’s interest would be in the form of historical artifacts, not money. It may well be that, where an item of highly unusual historical, cultural, or archeological significance is salved, such a piece might be awarded to the State due to its indivisibility and uniqueness, regardless of the proportion of the total find which it might represent, were an estimate of the monetary value attempted. But clearly, any recovery in this case would be in the form of objects which the plaintiff has brought before the Court; there would be no money judgment to be expended from the State’s treasury. Hence, this action is not barred by the Eleventh Amendment. The claimant State of Florida, while recognizing the unique archeological, historical, and cultural value of the items salved, nonetheless relies upon cases in which money damage awards were sought to support its contention that this action is precluded by operation of the Eleventh Amendment. Thus, the State argues that this suit is barred under the rule set forth in Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The Supreme Court in that case held that a suit against Indiana revenue officials for a refund of unconstitutionally exacted taxes was barred by the Eleventh Amendment. Obviously, the relief sought and not permitted to go forward in that case was the payment of money directly from the state treasury as a result of the state’s past “wrong.” Edelman v. Jordan, 415 U.S. at 663, 94 S.Ct. at 1355. The State also cites the Supreme Court decision In re State of New York, No. 26 (The Queen City), 256 U.S. 503, 41 S.Ct. 592, 65 L.Ed. 1063 (1921), in support of its Eleventh Amendment argument. The Court in that case prohibited the plaintiffs’ attempt to recover for damages sustained because of the alleged negligent operation of a steam tug owned by the State in a proceeding brought in rem against the tug. In The Queen City, the Court held that the Eleventh Amendment barred “the seizure of property owned by a state and used and employed solely for its governmental uses and purposes.” 256 U.S. at 510, 41 S.Ct. at 593. That decision fits squarely within the above-quoted principle of Edelman; in The Queen City, the Eleventh Amendment barred a suit in which the plaintiff sought monetary recovery for damages allegedly caused by the negligence of a State agent. Although the plaintiff in The Queen City attempted to proceed in rem as opposed to in personam, the nature of the recovery sought, rather than the procedural vehicle employed, resulted in a bar to the action. Even were the State to “own” the sunken "historical artifacts under its statute and the federal Submerged Lands Act (which, under this Court’s holding, it does not), the Eleventh Amendment would still pose no bar to this suit, as the objects here at issue are not sovereign property in the sense contemplated in the relevant cases. The Supreme Court in The Queen City exempted seizure in admiralty of “public property of a state used and employed for public and governmental purposes.” 256 U.S. at 511, 41 S.Ct. at 593. See also The Fidelity, Fed.Case No. 4, 758, 8 Fed.Cas. 1189, 1191 (1879) (“Property does not necessarily become a part of the sovereignty because it is owned by the sovereign. To make it so it must be devoted to the public use, and must be employed in carrying on the operations of the government,” citing The Davis, 10 Wall. 15, 77 U.S. 15, 19 L.Ed. 875 (1869)). This Court does not deny Florida’s right to attempt to preserve cultural and historic resources by the exercise of its police power. See, e. g., Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). But it is hard to view the items before the Court as “public property used and employed for governmental purposes,” when they have lain serenely in their two-hundred-sixty-plus-year habitat, with the State having only recently taken mere verbal action to claim (and no positive steps of its own to locate or raise) these artifacts from the ocean bottom. The State asserts that it intends to use the items for the benefit of its citizens, for the historic and archeological information and aesthetic beauty they will yield. As noted below in Section III.A. l.a., at the conclusion of trial, should the plaintiff succeed in this action, the Court— cognizant of the State’s valid concern— would certainly fashion relief which would fully recognize the State’s historic and cultural interests without interfering with the plaintiff’s federal maritime rights. In conclusion, however, the recognition of such interests fails to transform this maritime salvage action into a suit for money damages against the State, such as would be barred by the Eleventh Amendment. III. PROPRIETY OF ENTRY OF PRELIMINARY INJUNCTION AGAINST THE STATE’S AGENTS: FOUR ELEMENTS TO BE PROVEN There are four prerequisites to this Court’s granting a preliminary injunction; a showing of all four indicates that an injunction is necessary to preserve the Court’s ability to render a meaningful decision on the merits. The four prerequisites are: (1) A substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the parties or party opposed; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel (Treasure Salvors, III), 640 F.2d 560, 568 (5th Cir. 1981). The movant must carry the burden of showing all four elements. Id. A. The Movant Has Shown a Probability of Success on the Merits The movant, plaintiff in the main action, asks this Court to enjoin the agents of the State of Florida from enforcing its laws, which make it a crime for any person who has failed to obtain a license from the State either to conduct field investigations on any state lands or within designated archeological landmarks, or to alter any archeological site or specimen located on state lands or within designated landmark zones. Section 267.13, Florida Statutes (1979); Fla.Admin. Reg. § 1A-31.12. It is undisputed that both the area explored by the plaintiff and the cargo which the plaintiff has salved are within the territorial limits of the State. The question on which the movant must show a likelihood of prevailing is whether a federal district court sitting under admiralty jurisdiction in a salvage action must give effect to a state law which conflicts with the substantive principles of federal maritime law. 1. Federal Admiralty Principles, Not the State Statute, Must Govern the Exploration and Salvage of Artifacts Under the Ocean in the Case of a Conflict. Florida, by statute and administrative regulation, has enacted a comprehensive scheme designed to acquire and preserve historic sites and property, artifacts, treasure trove, and objects of antiquity of historic value and interest to the public. Generally, the statute declares that such objects which have been abandoned on state-owned submerged lands “shall belong to the state with title thereto vested in the division of archives, history and records management (hereinafter “Division”) .... ” Section 267.061(l)(b), Florida Statutes (1979). (F.S.) The statute authorizes the Division to designate archeological sites of significance as “state archeological landmarks,” and interrelated groups of such landmarks as “state archeological landmark zones.” F.S. § 267.11. It further authorizes the Division to issue permits to qualified parties for excavation and surface reconnaissance on state lands or within landmarks or landmark zones. F.S. § 267.12(1). The statute declares that artifacts recovered belong to the State, F.S. § 267.12(2), and that the Division “may arrange for the disposition of the specimens so collected .... ” F.S. § 267.12(3). Regulations promulgated by the Division define the salvage permit process in more detail, and establish certain conditions which govern the contractees. See Appendix B. For purposes of this case, three aspects of the permitting scheme are particularly salient. First is the very requirement that potential salvors be required to obtain a state license to explore given areas of the navigable waters over state-owned submerged lands. Second is that, under the State’s program, an exclusive right to conduct salvaging operations may be given to one not “actively and ably engaged in reducing” the cargo on a wreck site, once discovered, to possession. Lastly, the statute provides that payment for the recovery of sunken artifacts “shall be made in accordance with the contracts entered into by the Division,” which provide, in advance, for a percentage award allocation which fails to reflect individual merit, or lack thereof. The wreck site from which the plaintiff, Cobb Coin, removed the artifacts now before this Court was, at the time of the lawsuit, the subject of such a lease between the Division and the claimant Quest Corporation. Cobb Coin does not dispute that it was not licensed according to the law of Florida at the time it invoked the admiralty jurisdiction of this Court. But because it appears that Florida’s licensing scheme and the criminal penalties imposed for noncompliance therewith conflict impermissibly with federal maritime salvage principles, the Court here concludes, for reasons as follow, that the movant has shown a substantial likelihood of prevailing on the merits in the main cause. This Court takes it as settled doctrine that in admiralty, state • legislation that conflicts with federal maritime principles cannot be given effect under the supremacy clause of the United States Constitution, article VI, paragraph 2. In Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1916), the Court stated the classic rule on this point: [W]ell established is the rule that state statutes may not contravene an applicable act of Congress or affect the general maritime law beyond certain limits .... And plainly, we think, no such legislation is valid if it contravenes the essential purpose expressed by an Act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations. Id. at 216, 37 S.Ct. at 529. The principle that federal maritime law supercedes inconsistent state law has been followed regularly by the courts. In Pope & Talbot Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), the Supreme Court held that the maritime rule of comparative negligence governed the parties’ liability in action on a maritime tort. The Court specifically held that, “while states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantive admiralty rights as defined in controlling acts of Congress or by interpretive decisions of this Court. These principles have been frequently declared and we adhere to them.” 346 U.S. at 409-10, 74 S.Ct. at 205. See also Messel v. Foundation Co., 274 U.S. 427, 434, 47 S.Ct. 695, 698, 71 L.Ed. 1135 (1927); Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259, 42 S.Ct. 475, 476, 66 L.Ed. 927 (1922); Knickerbocker Ice Co., v. Stewart, 253 U.S. 149, 159, 40 S.Ct. 438, 439, 64 L.Ed. 834 (1920); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). It is equally clear that the dominant federal maritime law derives as mueh from the rules developed by the American admiralty courts as from Congressional acts. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 405, 90 S.Ct. 1772, 1790 n. 17, 26 L.Ed.2d 339 (1970) (“Congress has largely left to this Court the responsibility for fashioning the rules of admiralty law. Fitzgerald v. United States Lines, 374 U.S. 16, 20 [, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720] . . . (1963).”) Neither the judicial “limitations” nor the scholarly criticism of the Jensen doctrine prevent its application in this case. As is discussed in more detail in Section III.A.2. and 3., infra, the cases now permit states to regulate to supplement remedies available to enforce federal rights, see Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941); Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582 (1924), and to legislate over matters affecting the land and sea and which Congress has either expressly or impliedly left for the states to govern. See Askew v. American Waterways Operators Co., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973); Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (I960). But this case involves neither situation, because the state law invades federal rights and, to the extent it governs property lost under the ocean, the legislation is not of the type affecting both land and maritime matters of which the courts have been approving. Scholarly criticism has been aimed mainly at the uncertainty and illogic that resulted from early decisions from which courts inferred that preemption was appropriate even in the absence of a maritime right. The objection voiced by critics was that “[t]he maritime nature of an occurrence does not deprive a state of its legitimate concern over matters affecting its residents or the conduct of persons within its borders.” Currie, Federalism and the Admiralty: “The Devil’s Own Mess’’ 1960, The Sup.Ct.Rev. 158, 169. In effect, criticism of Jensen meant that state rules regarding traditional common law matters, particularly torts, should not be frustrated in the absence of an existing contrary federal interest. The analysis in this case is unaffected by such criticism. First, that criticism is concerned with local matters, those within the traditional common law concerns of the states. Second, it does not question the supremacy of judicially recognized maritime rights in the case of a conflict with state policy. As is discussed in the following section, there is a battery of federal salvage rules with which Florida’s law conflicts, which because of the dominant federal interest must be given effect notwithstanding the contrary state law. This case is premised, in part, on an in rem action against the items which the plaintiff has brought up from the ocean for a salvage award. An in rem action for a salvage award against artifacts recovered from the remains of a centuries-old shipwreck states a claim within this Court’s admiralty jurisdiction. Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1055 (5th Cir. 1980), citing Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978) (Treasure Salvors I). A long tradition of federal maritime salvage law has grown out of the cases arising under the federal admiralty and maritime jurisdiction. Among these are at least three principles which conflict irreconcilably with Florida’s attempt to govern the historically significant sunken cargo abandoned in the ocean within its territorial limits. a. The Florida Statute Forbidding Exploration Except to Licensees Violates Potential Salvors’ Rights to Explore the Ocean for Salvageable Sites Florida’s statutory scheme violates the maritime law, which permits any potential salvor to search and explore the open waters for salvageable goods. The right so to search is a fundamental adjunct to the American principle that the high seas be freely navigable to all seafaring persons to navigate for pleasure or commerce, or otherwise to ply their trades. See, e. g., United States v. California, 322 U.S. 19, 34, 67 S.Ct. 1658, 1666, 91 L.Ed. 1889 (1947) (“This country, throughout its existence has stood for freedom of the seas, a principle whose breach has precipitated wars among nations.”); Gilmore and Black, The Law of Admiralty 535 (2d ed. 1975) (“When property has been abandoned or become derelict, anyone may put himself forward as salvor”). Cf. United States v. Alaska, 422 U.S. 184, 199, 95 S.Ct. 2240, 2251, 45 L.Ed.2d 109 (1975) (freedom of fishing on the high seas). Florida’s Archives and History Act forbids any person “to conduct field investigations on any land owned or controlled by the state or its departments ... or within the boundaries of any designated state archeological landmark or landmark zone without first obtaining a permit or having first received from the division a notice to proceed .... ” Section 267.13(1), Florida Statutes (1979). As the Division has interpreted the law, “[sjtate lands include the submerged lands under the Atlantic Ocean extending seaward from the Florida coastline for a distance of three geographic miles . .. . ” See Warning Against Unauthorized Exploration and Salvage, issued by the Florida Marine Patrol, June 23, 1981, File Item # 177, Exhibit B of Plaintiff’s Application for Temporary Restraining Order and Motion for Preliminary and Permanent Injunction and Other Relief. Thus, as the above-cited warning indicates, Florida purports to outlaw both exploration and salvage on the navigable waters of the ocean within the three-mile territorial limit by persons who are not licensed by the State. See also Fla.Admin.Reg. § 1A-31.01, .12. The requirement that one be licensed to be able to explore the ocean for abandoned property at the bottom contravenes the maritime law principle that potential salvors be free to explore the open waters. While salvage law will permit one whose salvage efforts are continuous and reasonably diligent to work a wrecksite, once discovered, to the exclusion of others, see discussion in Section III.A.l.b., infra, until discovery and subsequent dominion of the site occurs, no one may be restricted from exploring the navigable waters for salvageable sites. In this aspect, the Florida act and regulations are contrary to established maritime law. Although Quest claims possession of the wreck under the color of title conferred by the State’s lease, it did not invoke the Federal Court’s jurisdiction for a salvage award for the few items it salved. Further, this Court finds that Quest’s possession and salvage operations were insufficient to give it the type of right to exclude competing salvors required by federal maritime law. See Section III.A.l.b., infra. Hence, Cobb Coin had the right under federal maritime law to search and salve the Corrigan site, and to discover, and pull up that first cannon and all subsequent artifacts which have, in this proceeding, been brought before the Court. b. Under the Florida Licensing Scheme, Unmeritorious Salvors May be Granted Exclusive Rights to Salve in Contravention of the Maritime Law Florida’s regulatory program violates the uniform maritime law by permitting its licensees exclusive rights to salve an area regardless of the licensee’s diligence or success. As recognized by the Fifth Circuit in Treasure Salvors III, it is axiomatic that “the law of maritime salvage and finds . . . protects the right of a salvor who undertakes a project to carry it to completion without interference from others who seek to share in the enterprise and the reward ... . ” 640 F.2d at 567. However, in order to enjoy a continued right to exclusive possession, the salvor must exercise due diligence and be reasonably successful in his attempts to save the subject property. Under the maritime rule, in order for a salvor to receive an exclusive right to salve a wreck site the salvor must manifest an intent to reduce the property to physical possession by dealing with the wreck as a whole in a way that would tend to warn, if not exclude, subsequent salvors. Most courts have required the presence of an intent to possess, and although not insisting on physical possession, do seem to demand an actively exploitative approach by the would-be salvor. Lawrence, State Antiquity Laws and Admiralty Salvage: Protecting Our Cultural Resources, 32 U.Miami L.Rev. 291, 295 (1978) (citations omitted). As the Fifth Circuit has stated: A salvor . . . has a valuable interest in his salvage operation which the law protects by vesting in the salvor certain rights. Among the most important of these rights are the right to exclude others from participating in the salvage operations, so long as the original salvor appears ready, willing and able to complete the salvage project. Treasure Salvors III, 640 F.2d at 567. Thus, one who discovers, yet does not assiduously undertake to rescue, abandoned property may lose his right to uninterrupted salvage operations. The case of Brady v. S.S. African Queen, 179 F.Supp. 321 (E.D.Va.1960) is illustrative of this point. In Brady, the intervening libellant, Warner, based his claim solely on the strength of having first boarded the stern of an abandoned vessel which had broken in half while sinking. He had run an advertisement in the Salisbury Times asserting his alleged “lawful right of sole and exclusive possession of the entire vessel, when, in fact, Warner had not been within two miles of the bow section at the time.” Id. at 323 (emphasis in original). The Court refused to recognize Warner’s interest, concluding that: A salvor cannot assert a claim merely by boarding a vessel and publishing a notice, unless such acts are coupled with a then present intention of conducting salvage operations, and he immediately thereafter proceeds with activity in the form of constructive steps to aid the distressed property. When he finally determines that he will, in good faith, conduct such operations and pursues his constructive steps, he is then, and only then, in a position to assert his claim subject to the rights of others which may have intervened while he is exploring the prospects of such operations. Id. at 324. In Eads v. Brazelton, 22 Ark. 499 (1861), as in Brady, the intervening libellant was a salvor who had first been at the salvage site. In Eads, the intervenor, Brazelton, had attached a buoy to a weight resting on the wreck, a sunken barge in the Mississippi River, thus indicating his apparent intention to return to the site. However, Brazelton failed to return until some nine months later, because, after being distracted by a different salvage project, he was impeded in his return to the site by a rise in the river. While Brazelton was finally on his way back, Eads’s salvage vessel overtook Brazelton’s, and, arriving first at the site, Eads stationed his boat over the barge and began to raise its cargo of lead. The Arkansas Supreme Court, rejecting Brazelton’s claim to the cargo recovered by Eads, reasoned that, although Brazelton had indicated the wreck site and had intended to return to conduct salvage operations, he failed to “[attain] to the possession of the wreck,” and “therefore had no title to it by occupancy.” Id. at 511. In so concluding, however, the court emphasized that, had Brazelton “merely placed ‘his boat over the wreck, with the means to raise its valuables, and with persistent efforts directed to raising the lead,’ he would have been deemed to have a legally protected possessory interest in the wreck and Eads would have had no right to interfere with that possession by undertaking his own salvage operations.” Treasure Salvors III, 640 F.2d at 571, quoting Eads v. Brazelton, 22 Ark. at 511. As demonstrated in Brazelton and Brady, the rights of a “first finder” who abandons his claim inure to the benefit of any finder who diligently undertakes the salvaging operation. “Notorious possession, with the avowal of the object of such possession, are cardinal requisites to the creation or maintenance of the privileges of a salvor. Where they do not exist, any person may take the property with all the advantages of the first finder.” Marvin, A Treatise on the Law of Wreck and Salvage, 138 (1858). The federal maritime rules governing salvors’ rights are fair and flexible. According to the Fifth Circuit, “equitable considerations come into play in determining the legal protection afforded a finder.” Treasure Salvors III, 640 F.2d at 573. Thus, for example, if a salvor vacates a site for any legitimate reason with an intention to return with reasonable diligence, that absence will not result in the forfeiture of a finder’s rights. As Judge Marvin said in his 1858 treatise: Persons who have taken the actual possession of a derelict with the means and for the purpose of saving it, do not lose their right of possession by temporarily leaving it with an intention of returning and resuming the actual possession. But their absence must be with an intention of returning, and strictly temporary and for a justifiable cause, otherwise they will lose their right to prior possession. They acquire no right of possession, which they can maintain by a kind of continued claim, by discovery merely, without keeping the thing in possession, or applying constant exertions for the preservation and rescue. W. Marvin, supra at 137-38. In Rickard v. Pringle, 293 F.Supp. 981 (S.D.N.Y.1968), the court recognized Rickard’s continued right as first finder to exclusive occupancy of the wreck site where he had left the location of the sunken steamship solely for the purpose of obtaining equipment capable of raising the propeller which he had already successfully detached. While Rickard was gone, Pringle moved in with effective equipment and hauled off the propeller, which he then sold. The court upheld Rickard’s claim for the proceeds, finding that despite his temporary absence, Rick