Global Marine Exploration, Inc. v. Republic of Fr.

33 F.4th 1312

GLOBAL MARINE EXPLORATION, INC., Plaintiff-Appellant,

v.REPUBLIC OF FRANCE, Defendant-Appellee.

No. 20-14728

United States Court of Appeals, Eleventh Circuit.

Filed: May 12, 2022

M. Stephen Turner, M. Stephen Turner, PA, Tallahassee, FL, Jennifer Winegardner, Rayboun Winegardner, PLLC, Tallahassee, FL, for Plaintiff-Appellant.

James A. Goold, Daniel Charles Eagles, Covington & Burling, LLP, Washington, DC, for Defendant-Appellee.

Before Lagoa, Brasher, and Tjoflat, Circuit Judges.

Lagoa, Circuit Judge:

This case arises out of the discovery of several shipwrecks found off the coast of Cape Canaveral, Florida, including La Trinité , the flagship of the 1565 fleet of the Royal Navy of France, which was captained by Jean Ribault. In 1565, Ribault was dispatched by the French Admiral Gaspard II de Coligny to reinforce the French Huguenot settlement of Fort Caroline located on the St. Johns River near what is now Jacksonville, Florida. The Spanish, however, also laid claim to what they called La Florida, and Pedro Menéndez de Avilés had founded the Spanish settlement of St. Augustine near the French Fort Caroline. King Phillip II of Spain ordered Menéndez de Avilés to destroy the French settlement. Following a skirmish at the mouth of the St. Johns River with Spanish ships, Ribault left in pursuit of the Spanish flagship, the San Pelayo . Ribault encountered a hurricane which destroyed his fleet and drove Ribault and his surviving crew members ashore. That same hurricane allowed Menéndez de Avilés to succeed in capturing Fort Caroline after an overland expedition from St. Augustine. After Fort Caroline was destroyed, no further French settlements were established in Florida.

Global Marine Exploration, Inc. ("GME"), conducts marine salvage activities and discovers historic shipwreck sites in Florida's coastal waters. GME entered into authorization agreements with the Florida Department of State, Division of Historical Resources ("FDOS"), to conduct salvage activities in Florida coastal waters off Cape Canaveral. Following a 2015 agreement between GME and FDOS, GME discovered several shipwreck sites and informed FDOS of its discovery. Soon after, however, GME learned that FDOS was in contact with the Republic of France to recover the shipwreck sites, assuming that one of the sites was La Trinité . GME subsequently filed an in rem admiralty action against the "Unidentified, Wrecked and (for Finders-Right Purposes) Abandoned Sailing Vessel" in federal court. FDOS and France became parties to that action, and the Middle District of Florida concluded that the identity of the res was La Trinité and that La Trinité is France's sovereign property. GME did not appeal the in rem action. See Glob. Marine Expl., Inc. v. Unidentified, Wrecked & (for Finders-Right Purposes) Abandoned Sailing Vessel ("GME I "), 348 F. Supp. 3d 1221 (M.D. Fla. 2018).

Following GME I , GME sued France, alleging claims for an in personam lien award, unjust enrichment, misappropriation of trade secret information, and interference with its rights and relations. France moved to dismiss GME's amended complaint under Federal Rule of Civil Procedure 12(b)(1), arguing that the district court lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 – 11, and that the commercial activity exception to the FSIA, 28 U.S.C. § 1605(a)(2), was inapplicable. The district court agreed with France, finding that the FSIA's commercial activity exception did not apply, and dismissed GME's claims. GME now appeals the district court's dismissal, contending that France engaged in commercial activity such that the FSIA's commercial activity exception applies.

For the reasons discussed below, and with the benefit of oral argument, we conclude that the FSIA's commercial activity exception applies. Accordingly, we reverse the district court's Rule 12(b)(1) dismissal and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

GME is a Florida corporation that conducts marine salvage activities and discovers historic shipwreck sites in Florida's coastal waters. GME conducts its salvage activities under authorization agreements with FDOS. In these agreements, Florida granted GME a fixed-term "cultural resource recovery easement for salvage exploration and operational purposes" on Florida-owned submerged lands, as well as permits for GME to use those submerged lands and navigable waters for construction work. GME then "undertook prolonged and expensive research, survey, reporting, and identification of shipwrecked sites," including artifacts, "with reasonable investment-backed expectation[s] and program assurances that its salvage activity" would be fully compensated in line with the value of the discovered sites. In doing so, "GME expended millions of dollars and enormous time and effort."

In 2014, FDOS and GME entered into six agreements governing salvage activity for six different, three-square mile areas off the coast of Cape Canaveral. On August 14, 2015, FDOS and GME entered into a seventh agreement—designated as Permit No. 2015-03—authorizing GME to survey another designated three-square mile area off Cape Canaveral and to locate and report any shipwreck sites discovered. GME discovered five separate shipwrecks and six historic shipwreck sites in this designated area, and GME's mapped conclusions of the area were provided as part of its report and request to FDOS for approval to proceed with recovery. GME also excavated small artifact items (and took photos and videos as identification of other monuments) from one of the shipwreck sites. GME provided FDOS with the photos and videos. And FDOS directed GME to submit the location coordinate information incident to the agency's oversight and inventory of historical resources division. According to GME, the coordinate information would remain confidential and would be commercially used only by GME.

At some point, GME learned that FDOS was "collaborating and negotiating" with France to recover the shipwreck sites discovered by GME without its involvement, as FDOS and France believed that the shipwreck was France's La Trinité —the flagship of the 1565 fleet of the Royal Navy of France that sank during a hurricane off the coast of Florida. Concerned by this development, GME filed the in rem admiralty action— GME I —in September 2016, and FDOS and France became parties to that action. See 348 F. Supp. 3d at 1224. In connection with filing that in rem action, GME deposited with the district court several small artifacts (e.g., ballast stones) from the site.

The next month, FDOS demanded GME turn over those same artifacts to it, suspended GME's salvage activity permit, and prohibited GME from proceeding with full recovery of the discovered shipwreck sites. The GME I district court later conferred temporary in rem custody to FDOS and precluded any shipwreck recovery pending its decision. Ultimately, the GME I district court granted France's motion to dismiss the action for lack of subject matter jurisdiction because it concluded that the res at issue was La Trinité , which was France's sovereign property. See id. at 1242. GME did not appeal that order.

Following GME I , France and FDOS entered into a "Declaration of Intention Between the State of Florida and the Republic of France On the shipwrecks of Jean Ribault's fleet"(the "Declaration of Intent"). The Declaration of Intent stated that, as a result of the district court's decision in GME I , France was authorized "to begin recovery operations" of La Trinité and that the signatories would cooperate "concerning research on, and protection and preservation of" La Trinité . FDOS and France further agreed to: (1) protect the shipwreck sites "to prevent any form of plundering"; (2) recover the shipwreck sites and present those discoveries to the public in Florida, e.g., through exhibitions or publications; (3) promote the common history of the United States and France in Florida; and (4) identify, evaluate, mobilize, and oversee resources and organizations to fulfill the Declaration of Intent's objectives. The Declaration of Intent also established a steering committee to implement the agreement.

In April 2020, GME sued France, alleging that "France is sending missions to Florida to oversee the project and provide scientific expertise" under the Declaration of Intent and that "work is on-going." GME also asserted that France was performing commercial activity in Florida through France's agreement with FDOS and others, "and by activities undertaken or to be undertaken, in relation to GME's discovered shipwreck sites for which GME claims rights and interest."

GME asserted four claims against France: (1) an in personam salvage lien; (2) "quasi contract/unjust enrichment"; (3) misappropriation of GME's trade secret information; and (4) interference with GME's rights and relations. As to its lien claim, GME alleged that it was entitled to compensation because without GME's services the shipwreck sites would not have been discovered and therefore GME's services significantly benefit any "full recovery of the historic shipwreck sites." In its count for unjust enrichment, GME asserted that it had conferred a substantial benefit to France based on its services related to the shipwreck sites. As to its misappropriation of trade secret claim, GME alleged that "[t]he precise locations of GME's discovered shipwreck sites and the methods used to identify those locations were proprietary and confidential information owned by GME" and that France's use of that information was unauthorized and without GME's consent. And, as to its interference claim, GME alleged that France knew of GME's contractual rights and advantageous business and contractual relations with FDOS but intentionally acted to influence, induce, and collaborate with FDOS for the latter to abrogate its obligations to, and relations with, GME.

France moved to dismiss GME's...