Appeal from the United States District Court for the District of New Jersey (Camden), D.C. Civil No. 86-2889.
Hutchinson, Cowen, and Rosenn, Circuit Judges.
In 1901, the British-flagged ship, the Sindia, with its four towering masts, successfully and happily navigated the high seas from Shanghai, China to the seacoast of New Jersey. It is believed that when the 329 foot steel-hulled barque proudly sailed into the waters off New Jersey, her cargo hold swelled with fine porcelain, carved ivory, silk, camphor oil, and bamboo matting. Much of her exotic goods and antiquities is believed to have been brought aboard by British and American soldiers from plundering following the Chinese Boxer Rebellion.
When the ship was nearly within sight of its destination, apparently the crew began to prematurely celebrate their arrival. On December 15, 1901, the Sindia's sailing days sadly suffered a jarring end when she ran aground just off the beach of Ocean City, New Jersey. Today, the Sindia's tillerpost, still protruding from her steel hull and plainly visible in the relatively shallow waters in which she lies, marks her watery grave.*fn1
The Sindia Expedition (Expedition), a maritime treasure hunter incorporated in New Jersey, commenced this in rem admiralty action in the United States District Court for the District of New Jersey seeking either, or both, title to the vessel and a liberal salvage award.*fn2 Attempts to salvage the ship have continued sporadically since its unfortunate demise. Other hopefuls intervened. The Seaview Beach Condominium Association, Inc. (Seaview) and McHale, Kissane & Pennypacker (McHale) intervened on the basis of their claims to land on which the Sindia is embedded. Noreaster Marine Salvage L.P. intervened as a competing salvor.
Although the Expedition's complaint contains a request that all "governmental agencies be enjoined from interfering with the Plaintiff's title, possession and property," the Expedition did not specifically name any state, state agency, or state official in its complaint. The State of New Jersey (the State), however, informed the district court by letter that it claimed ownership to the wreck of the Sindia and its cargo and that it would not waive its eleventh amendment immunity by appearing in the litigation.
Thereafter, McHale filed a motion to dismiss the action contending that the district court lacked jurisdiction, that service of process was defective and that the Expedition had failed to join the State of New Jersey, an indispensable party. The court granted McHale's motion on the ground that the State had colorable title and, therefore, the Expedition had failed to join an indispensable party as required under Federal Rule of Civil Procedure 19(b). The Expedition appeals. We reverse and remand.
On appeal, the Expedition vigorously contends that New Jersey does not have colorable title to the Sindia and, therefore, is not an indispensable party to the action. Upon request of this court and reserving its right to asserts its rights to sovereign immunity, the State submitted a memorandum statement and participated at oral argument. In its statement, the State informs us that its claim to colorable title of the wrecked vessel rests on a number of bases, including New Jersey's abandoned property law, N.J.S.A. 2A:37-13, New Jersey common law, the Federal Submerged Lands Act of 1953, 43 U.S.C. § 1311(a), and finally an agreement reached with the Expedition in 1988 granting the Expedition salvage rights.*fn3 The agreement, however, provides that it will terminate upon final order of the district court or on appeal in the Expedition's admiralty action. Although it asserts that the district court lacks jurisdiction to decide New Jersey's claims because of the eleventh amendment,
the State suggests that the district court could exercise jurisdiction over all the non-state parties before it so that the primacy of one salvage group versus another could be decided, leaving to the State the option of protecting its rights through negotiations or contract.
Rather than focus on the question, as did the district court, of whether New Jersey has a colorable claim of title to the Sindia so as to make it an indispensable party, we believe that there is a more direct and pragmatic resolution of this appeal. Relying on the opinion of the Supreme Court in its landmark decision in Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 73 L. Ed. 2d 1057, 102 S. Ct. 3304 (1982), we prefer to assume for the purpose of our discussion that the State has colorable title, as held by the district court here, and meet the dominant issue whether the eleventh amendment deprives the court of jurisdiction because the State, though a non-party, asserts an interest in the res. We therefore consider whether the Expedition's complaint in rem is barred by the eleventh amendment of the Constitution with the consequential effect that this would per se render the State an indispensable party to the action.
A. The Eleventh Amendment
The district court did not expressly address whether the action was barred by the eleventh amendment but instead focused its attention on the Expedition's failure to join an indispensable party. Although New Jersey and the Expedition are satisfied that the federal court has jurisdiction over the action, we have "a special obligation" to satisfy ourselves of our own and the district court's jurisdiction, "even though the parties are prepared to concede it." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 89 L. Ed. 2d 501, 106 S. Ct. 1326 (1986), quoting Mitchell v. Maurer, 293 U.S. 237, 244, 79 L. Ed. 338, 55 S. Ct. 162 (1934). We will, therefore, sua sponte, consider the effect of the eleventh ...