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BATTLE ERUPTS FOR RIGHTS TO SHIPWRECK.
Toronto. - Almost 144 years after the SS ATLANTIC sank in Lake Erie, carrying 130 to 350 Norwegian immigrants to their deaths, a two-country battle over the ship's wreckage has started in an Ontario courtroom.
The wooden hull of the U. S. Registered ship had been breached in a collision with another ship and it slipped beneath the waves in Canadian water in August of 1852.
But a 1991 dispute erupted over who has salvage rights and now a claim by a U. S. Company and a California court judgment is colliding with provincial government claims of jurisdiction and a Canadian diver's assertion that he claimed the wreckage first.
The issue to be determined in the welter of claims and counterclaims includes whether a California court was misled in its judgment and whether the court has any jurisdiction over the wreck.
Mar Dive Corp., the U. S. company, does not dispute that Michael Fletcher of Port Dover, Ont., explored the wreckage years before MarDive's U. S. divers reached it in 1989. Robert Huston, the company's U. S. lawyer, told Mr. Justice Lissaman yesterday in an opening statement.
But he said Mar Dive obtained ownership by resurrecting the company that owned the ship and now has the right under reciprocal maritime law to claim it.
Mar Dive obtained a 1992 California court order recognizing its ownership.
Leah Price, a lawyer for the province, said the wreckage is in Ontario lake bed soil and the California court judgment is not binding on the province, which has Royal Prerogative to the wreck, a right that supersedes that of any claim to salvage rights.
Globe and Mail
February 21, 1996
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WARRANTS WAIVED IN SUNKEN-WRECK CASE.
Hearing To Determine Which Of three Litigants Should
Own Historic Steamship In Canadian Waters of Lake Erie.
By Thomas Claridge, Courts Reporter.
Toronto. - Arrest warrants against two Americans alleged to have removed artifacts from a historic wreck in Canadian waters have been suspended to permit the men to testify at an Ontario court hearing into the wreck's ownership.
The warrants against Steven Porsse and Mark Cramer accuse them of having obtained the artifacts during a dive to the SS ATLANTIC, which has sat on the floor of Lake Erie since Aug. 20, 1852, shortly after colliding with another steamship on a voyage from Buffalo to Detroit.
Mr. Porsse is a vice-president of Mar Dive Corp., one of the litigants in the case being heard by a judge of the Ontario Court General Division, and Mr. Cramer is a Mar Dive employee. The other litigants, who both claim ownership of the Atlantic, are the Ontario Government and dive/amateur historian Michael Fletcher of Port Dover, Ont., who rediscovered the wreck in 1984.
In a letter submitted by Crown lawyer Leah Price on Friday, the court was advised that the arrest warrants have been removed from the Canadian Police Information Centre computer data base until March 31 and police have been instructed not to execute the warrants in the meantime.
Supported by a California-based U. S. District Court order, Mar Dive's claim to the wreck is based on the "revival" of an Ohio company that apparently purchased the ATLANTIC from original owner Eber Ward of Detroit in hopes of conducting a salvage operation.
In testimony last week, another Mar Dive witness told Mr. Justice Douglas Lissaman that although Western Wrecking Co., of Cleveland went bankrupt in 1914, its revival was accomplished by locating three descendants of the firm's shareholders, arranging a shareholders meeting and agreeing to pay Ohio $10,000 in back taxes. The resurrected company sold its alleged interest in the ship to a Mar Dive subsidiary, Atlantic Western Ltd.
Described at the time as the fastest ship on the Great Lakes, the ATLANTIC apparently carried about 400 passengers, about 150 of whom drowned when they jumped into the lake rather than await rescue. Although there have been tales of treasure aboard, the most valuable cargo probably was removed five years after the sinking when a diver somehow was able to retrieve an American Express safe.
If there is anything the three parties in the action agree on it is that they lack the benefit of Canadian legal precedents. As a test case, it is likely to wend its way eventually to the Supreme Court of Canada.
Mr. Fletcher's claim to ownership arises from his locating the wreck on Sept. 1, 1984, about three kilometres off Long Point and some distance from where it is shown on early maps.
Ontario's claim is based on an assertion that the ship is abandoned and part of the lake bed, which the province says it owns up to the international border, roughly 10 kilometres to the south.
Outside the court, Mr. Fletcher and Mar Dive lawyer Robert Houston concede that they have common interests, among them a desire to preserve the wreck and its artifacts for future generations. They also agree that a successful recovery operation will be costly and time-consuming, their major difference being whether the ATLANTIC's final resting place should be on the north or south shore of the lake.
Their common positions are not shared by the government, which in addition to laying the criminal charges is seeking $250,000 in damages from the other parties and has indicated no desire to do anything about the wreck beyond warning divers to stay away.
Outside the court, Mr. Houston suggested the government's position is impractical in light of technological advances, which he says soon will make it easy for predators to slip unnoticed onto the wreck and remove anything of value to them.
The Globe & Mail
Monday, February 26, 1996.
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SUNKEN SHIP DECLARED OFF-LIMITS PENDING RULING.
Toronto. - The wreck of the SS ATLANTIC, which has been at the bottom of Lake Erie since 1852, has been declared off-limits to those with an interest in salvaging it.
Mr. Justice Douglas Lissaman of the Ontario Court's General Division issued the injunction yesterday. It will remain in force until the court decides who has salvage rights. Michael Fletcher of Port Dover, Ont., who rediscovered the ship in 1984, claims ownership, as does the Ontario government, which argues that it owns the wreck because it is part of the lake bed. The other litigant is Mar Dive Corp., a U. S. company that revived an Ohio company which bought the ATLANTIC from the original owner, Eber Ward of Detroit. Its claim was supported by a U. S. District Court in California.
Judge Lissaman's order does not specify the exact site of the wreck, although the ship did go down in Canadian waters about three kilometres off Long Point.
The court feared that specifying the ship's co-ordinates would invite the curious to violate the injunction. Judge Lissaman said he would view any such violation as "very serious."
Mr. Fletcher told the court that a T-shirt available in Erie, Pa., reads " I dove the ATLANTIC," which suggests the site is already an attraction to some amateur divers. Leah Price, representing the Ontario government, said the site is probably safe for the time being but will become more attractive in the spring.
The Globe & Mail
Tuesday, February 26, 1996
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ONTARIO OWNS SUNKEN WRECK, LAWYERS SAY OF CONTESTED SHIP.
By Thomas Claridge, Courts Reporter.
TORONTO. - The Ontario government reached back nearly 200 years yesterday in citing legal precedents to butress a contention that it owns the SS ATLANTIC, a passenger ship that has soent the past 144 years on the bottom of Lake Erie.
In arguing that the wreck and all its artifacts are the property of the province, government lawyers Leah Price and Michel Lapierre said the ship sank in Ontario waters off Long Point and lay abandoned for more than 100 years before divers began taking renewed interest in the 1990's.
The lawyers also said that the government's claim to ownership is strengthened by the fact that it lies inbedded in mud and because of a "Royal Prerogative to wreck" that dates from at least 1798.
They told a judge of the Ontario Court's General Division that in 1798 a British judge said it was " the general rule of civilized countries that what is found derelict upon the seas is acquired beneficially for the Sovereign, if no owner shall appear....in England, this right is as firmly established as any other prerogative of the Crown."
Asserting that the Royal Prerogative "exists to the same extent in Canada as it did in England," the government laywers said it could be limited only "by clear and express statutory language."
Mr. Justice Douglas Lissaman is in the final stages of a trial of Competing claims for ownership of the wreck by the government, diver and historian Michael Fletcher of Port Dover, and Mar Dive Corp., whose claim lies in the revival of an Ohio company that bought the ATLANTIC from its original owner, Eber Ward of Detroit, in hopes of conducting a salvage operation.
Ms Price said the strongest case in the goverment favor came from the United States in 1983. It involved divers' claims to a sunken sidewheeler on the bed of Georgia's Ogeechee River. In rejecting the claims on grounds of embeddedness, a court noted that the steamer NASHVILLE "has remained in its current location for over 120 years."
The government lawyer suggested the main difference between the NASHVILLE and the ATLANTIC was that the Lake Erie wreck has been there an additional 24 years.
Wednesday, May 8, 1996
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JUDGMENT RESERVED ON CLAIMS TO WRECK
SHIP, HIT IN 1852, LYING IN LAKE ERIE.
By Thomas Claridge, Courts Reporter.
TORONTO. - An Ontario judge probably will mark the 144th anniversary of the sinking of the SS ATLANTIC poring over a mound of documents shown him in support of competing claims to ownership of the wreck lying in one of Lake Erie's deepest trenches.
Before reserving judgment last Friday, Mr. Justice Douglas Lissaman of the Ontario Court's General Division conceded that the case was the most complicated he had ever faced and suggested his mind is not yet made up. Although giving no indication when he will reach his decision, he did say he plans to spend his summer on the case and in the process will read "every page" of the massive documentation.
Before him in the trial were three parties but only two main positions, one based largely on English common-law principles and the other on U.S. Legislation, ancient admiralty laws and the Canada Shipping Act.
The stage for the litigation was set on Aug. 20, 1852, when the ATLANTIC was struck by the SS OGDENSBURGH and went down in about 50 metres of water roughly three kilometers off Long Point. Contemporary accounts told of between 150 and 300 people having died, most of them Norwegians hoping to homestead in the U.S. Mid-West.
In closing submissions, two Ontario government lawyers listed 16 issues to be determined but spent most of their time on five related to a contention that the wreck belongs to the Province. Reaching back nearly 200 years for legal precedents, lawyers Leah Price and Michel Lapierre cited the fact the wreck is on the Ontario side of the lake, evidence that it is embedded in mud, and a centuries-old "Royal Prerogative to wreck."
Toronto lawyer David Beard, representing diver-historian Michael Fletcher of Port Dover, tacitly acknowledged the validity of the government's claim but said that if the judge rules otherwise his client should have first claim because he re-discovered the long-abandoned wreck on Sept. 1, 1984.
The final submissions were from a California lawyer representing two interrelated U.S. incorporations, Mar Dive Corp, and Atlantic Western Ltd.
Robert Huston 111 cited the fact that both the ATLANTIC and the OGDENSBURGH were U.S.-owned and registered and that the litigation had commenced in the Federal Court of Canada as supporting his contention that the case should be determined on the basis of U.S. and Admiralty laws and the Canada Shipping Act. (the case was transferred to the Ontario court because of the Province's status as a litigant.)
Mr. Huston's contention was that, although Mr. Fletcher once was in a good position to assert ownership of the wreck, he lost his chance by failing to file a claim within two years of the discovery. Similarly, he argued that Ontario lost its chances to argue its case when it failed to turn up before a U.S. District Court judge in California who ultimately declared that Atlantic Western held title to the ATLANTIC and Mar Dive enjoyed salvage rights to the vessel and its artifacts.
Atlantic Western is a partnership between Mar Dive and Western Wrecking Co., an Ohio firm that contemporary newspaper accounts said bought the wreck from its Michigan owners in 1873, but that went bankrupt in 1914.
The U.S. District Court's recognition of Atlantic Western's title claim was based on uncontested evidence that, after lying dormant for three-quarters of a century, Western Wrecking had been "revived" by calling a shareholders meeting (attended by a descendant of an actual shareholder) and paying Ohio $10,000 in back taxes.
Although clearly impressed by much of the legal argument raised by Mr. Huston, Judge Lissaman was as clearly doubtful that the U.S. judgment is enforceable in light of the fact the judge heard nothing from the Canadian litigants apart from a letter in which Mr. Fletcher denied the court had any right to deal with Mar Dive's application.
Although all the parties seemed to agree that the wreck is in mud up to its former water line (Mar Dive describing it as "floating in a sea of mud"), Mr. Huston said the judge need not consider the law of embeddedness or the Royal Prerogative to wreck if he determines that Atlantic Western has title to the remains.
Early in the trial, judge Lissaman issued an order declaring the wreck off limits to anyone interested in a salvage attempt while the case was before the courts. The order reflected a common interest among the litigants in preserving for posterity a ship that in its day was the fastest ship on the Great Lakes.
By the end of the trial, all three parties also appeared to agree that the court battle, however resolved, will merely set the stage for other challenges, such as whether, and if so when and how, the ATLANTIC should be raised, and where its final resting place should be.
The Globe and Mail
Monday, May 13, 1996
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SUNKEN VESSEL BELONGS TO ONTARIO, COURT DEGREES.
California Company's Claim To SS ATLANTIC 'Artificial In Many Ways'
by THOMAS CLARIDGE, Courts Reportper.
TORONTO. -- The Ontario government has won ownership of the SS ATLANTIC, which sank in Lake Erie 144 Years ago with the loss of 150 to 300 lives.
In a judgment delivered yesterday, a judge of the Ontario Court`s General division rejected a competing claim by California firm Mar Dive Corp. Mar Dive based its claim on U.S. court rullings that granted it salvage rights and the fact the ship was U.S.-owned and operated and had been travelling between two U.S. ports.
In his decision, Mr. Justice Douglas Lissaman concluded that the U.S. judgments won by Mar Dive are not enforceable in Ontario; that the ship is Iong-abandoned and imbedded in the Iake bottom off Long Point; and that even it it weren't imbedded, it would sti11 belong to Ontario "by virtue of the Royal Prerogative," a provision of British common law under which a private party cannot use court action to 1ay claim to property of the Crown.
Dismissing actions claiming ownership by Mar Dive and a related company, Atlantic Western Ltd., Judge Lissiaman said he will issue a declaration that Ontano owns "the Atlantic and its contents" and a mandatory order requiring Mar Dive and Atlantic Western to return "all property, including cargo, removed from the site of the Atlantic."
He also extended indefinitely an injunction issued during the trial last spring that declares the wreck off-limits to anyone interested in a salvage attempt, and he invited submissions on whether Mar Dive should be ordered to pay damages and some of the government's court costs.
The court case initially involved competing claims to the wreck from three sources. the government, Mar Dive and Michael Fletcher, a diver and amateur historian from Port Dover, Ont., who rediscovered the wreck in 1981 and during the next five years removed hundreds of artifacts for preservation.
However, the government and Mr. Fletcher reached an out-of-court settlement on the eve of trial.
Mar Dive's interest in the wreck stemmed from diving activities in 1989 and 1990 by one of the firm's principals, Steven Borsse, who also removed a number of artifacts.
In 1990, Mr Borsse and three partners used some obscure U.S. laws to resurrect a bankrupt Ohio-based firm, Western Wrecking Co., which had obtained salvage rights from the Atlantic's original owners. Western Wrecking made unsuccessful attempts in 1873 to salvage or raise the Atlantic and went bankrupt in 1914.
Mr. Borsse and his partners then incorporated Mar Dive, formed Atlantic Western and purportedly transferred title of the Atlantic to Atlantic Western with instructions to carry out salvage activities.
Two years later, Mar Dive obtained an order from a U.S. District Court in California directing a U.S. marshal to "arrest" the ship in order to claim legal possession.
On July 19, 1992, one of the Mar Dive partners accompanied a Pennsylvania state trooper to the wreckage site, where they attached a copy of the California court order to a marker buoy.
Judge Iissaman said Mar Dive also, got a judgment that gave it title to the Atlantic and its cargo and continued an order that had granted it salvage rights.
In his summary of facts, he observed that the Atlantic has rested in the same location since 1852 and currently is "buried at least 13 feet [four metres], up to her natural water line, into the mud at the botton of Lake Erie."
Describing any attempt to move the ship as reqriring "considerable excavation of, and interference with, the soil at the lake bottom," he said even recovery of cargo and artifacts would disrupt the sediments.
In concluding that judgments were unenforceable, judge Lissaman found that the only connection the case had with the U.S. District Court of California "is the fact that California is the residence of the Mar Dive group who, in my view, deliberately set out to create, after the facts, a scenario whereby a district court in the United States would assume jurisdiction."
He said the agreed-upon fact that the wreck had been rediscovered by Mr Fletcher, a Canadian citizen, was compelling evidence that the real and substantial connection is to Ontanrio and not California."
The judge went on to say the California proceedings were "artificial in many ways." Citing claims that Mr Borsse had discovered the ship and that Mr Fletcher was an "interloper," he said the California court was also given the impression that Ontario had consented to the Mar l)ive claim.
Taking all the factors into consideration, it is my view that the U.S. judgments were obtained by means of half-truths and artificiality.
The judge also concluded that there was no reliable evidence that title to the Atlantic was transferred to Western Wrecking.
As to the Mar Dive claim to salvage rights, he concluded that the province is not bound by Canada Shipping Act provisions governing wrecks and salvage, and any decision to grant a salvage award for the Atlalntic "would be entirely within the unfettered discretion of the Crown."
Even if salvage rights applied, he said, Mr. Fletcher, not Mar Dive, would be entitled to an award as the wreck's discoverer.
Left unanswered by the decision is the wreck's ultimate fate. Although both Mar Dive and Mr. Fletcher wanted to see the Atlantic's artifacts preserved in a new museum and differed only as to whether the museum should be in Canada or the United States, Ontario has thus far given no indication of what plans, if any, it has for the ship or its contents.
Government lawyer Leah Price asked only that artifacts recovered by Mr. Fletcher and held since 1992 by the federal Receiver of Wrecks should eventually be handed over to the province.
Outside the court, Mr. Fletcher expressed hope that the decision will lead to a new maritime museum being built in the Port I)over area, about 40 of whose residents were on hand in court.
Also left outstanding are criminal charges against two Mar Dive employees alleged to have removed artifacts from the wreckage. Judge Lissaman suggested to, Ms. Price that the charges should either he dealt with quickly or withdrawn.
Mar Dive lawyer William Huston said he plans to review the 103-page judgment carefully before deciding whether to recommend an appeal.
The firm's vice-president, George Rombach, said Mar Dive has already spent more than $1-million on the Atlantic project
The stage for the litigation was set on Aug 20. 1852, when the Atlantic was struck by the SS Ogdensburgh and went down in about 50 metres of water roughly three kilometres off Long Point. Contemporary accounts said most of the victims were Norwegians hoping to homestead in the U.S. Midwest.
Globe and Mail
Saturday, December 21, 1996
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SUNKEN SHIP ATLANTIC AWARDED TO PROVINCE.
U.S. Firm Vows To Continue Fight For 114-Year-Old Lake Erie Wreck.
By PETER CHENEY
Few treasure stories could beat the strange saga of the sunken ship Atlantic.
It went down in Lake Erie 144 years ago, and has been haggled over by treasure hunters and lawyers on and off since then.
The latest chapter in the Atlantic's history was written in a Toronto courtroom yesterday when a judge decreed that the ship and everything in it belongs to the government of Ontario.
In a 117 page decision, Mr. Justice Douglas Lissaman of Ontario Court, general division, dismissed the claims of both a California treasure hunting company and a Canadian diver who rediscovered the wreck of the Atlantic in 1984.
Lawyers for the province hailed the decision. So did Canadian diver Mike Fletcher, who lost his claim to the ship, but was happy to see it taken away from the Californians.
"I guess this was pretty much a stick in the eye for them," Fletcher said. "I'm glad to see it go the way it did."
On hand in the University Ave. courtroom yesterday were about 50 spectators plus Fletcher and his opponents: two lawyers for the provincial government and George Rombach, of the Calfornia firm Mar-Dive, which has been fighting for rights to the ship since 1989.
Rombach, wearing a dark suit, sat at an oak table with a silver-tipped cane before him. Even before Lissaman read his decision, Rombach announced that he was ready to appeal if
Rombach estimated his firm has spent more than $1 million in its battle for the Atlantic, and is ready to spend more if necessary.
"Obviously, we believe it's worth it," he said.
The Atlantic, which sank in Lake Erie in 1852, may or may not contain millions in gold and valuable artifacts. So far, the ship's biggest value has been to the lawyers who have fought over it in court since the year it sank.
The recent battle over the Atlantic began in 1989, when MarDive laid claim to it, even though it had been discovered five years before by Fletcher, a commercial diver who lives in Port Dover.
What followed was something drawn straight from a bad episode of Seahunt. Mar-Dive, a treasure-hunting outfit based in San Pedro, planted a buoy with a U.S. flag on it over the wreck which lay in 48 metres of water.
U.S. JUDGE USED 1908 SALVAGE TREATY TO GRANT RIGHTS.
When Fletcher objected, pointing out that he had been diving on the wreck since discovering it in 1984, Mar-Dive announced that it had secured the rights to the ship by resurrecting a defunct U.S. company Western Wrecking, which, it claimed, had bought salvage rights to the Atlantic in the 1800s.
Fletcher, Mar-Dive said, never formally claimed ownership of the Atlantic, and had no legal claim to it.
Mar-Dive went to court in the U.S. and got an injunction to keep Fletcher and others away from the ship it claimed as its own. Mar-Dive posted a copy of its court injunction on the buoy it had moored above the wreck and referred to Fletcher as an "interloper" and "embezzler" for diving on the wreck and bringing up artifacts. (Fletcher gave the artifacts to a provincial agency.)
The court battles continued. In 1992, a U.S. district court in California awarded the ship to Mar-Dive. Even though the ship was clearly in Canadian waters, the judge used a 1908 salvage treaty between the U.S. and Canada to grant salvage rights to the California firm.
Mar-Dive's owners celebrated the ruling with a champagne toast and called it "a total victory." But that wasn't the end of it. In 1992, the province announced it would seek ownership of the wreck since it was clearly in Canadian waters.
Mar-Dive president Steve Morgan warned that the province's claim would lead to trouble: "All hell is going to break loose," he said at the time.
"International salvage law is on our side. They are trying to get into the barn after the barn has burned down."
Morgan said Ontario officials could dive on the wreck if they wanted, but warned against trespassing: "They'd better keep their hands off my ship." The plot thickened when the OPP charged two Mar-Dive officers with "tampering" with the wreck of the Atlantic. (They have never been arraigned on those charges.)
Nobody is quite sure whether yesterday's ruling will end the feud. Mar-Dive says it needs to examine his ruling before announcing its appeal.
Leah Price, one of the lawyers who argued the case for the province, said it would take time for provincial officials to decide what to do with the ship.
Fletcher said he was "completely happy" with the ruling.
"This is good for the ship, and for shipwrecks in general," he said.
Fletcher said he worries that the publicity surrounding the Atlantic will attract more fortune hunters.
"Now, every treasure hunter in North America will want a piece of it," he said.
Mar-Dive, meanwhile, insists the Atlantic belongs to them, and will continue the legal odyssey: "We're not through yet," Rombach said.
Already, the Atlantic has spent more time in court than it ever did sailing: It was commissioned in 1819, and sank just three years later, on the night of Aug. 20, 1852, after it collided with another ship while heading from Buffalo to Detroit.
The other ship, the Ogdensburg, was damaged. Leaking badly, the Atlantic sank while trying to reach the safety of the Canadian shore. About 120 of the more than 400 aboard drowned that night.
In the wake of the collision and the sinking, the owners of the Atlantic and the Ogdensburg sued each other repeatedly. In 1858, six years after the Atlantic sank the case reached the Supreme Court, which awarded the ship's owners $36.000 in damages.
Between 1832 and 1856, a "number of attempts were made to salvage cargo from the Atlantic, including a" ill-fated effort with one of history's earliest submarines, Which is believed to have joined the Atlantic in its watery grave.
The Atlantic, 267 feet long, was one of the most luxurious ships ever to sail the Great Lakes. Made of wood and driven by side~mounted paddle wheels, it carried wealthy passengers on its regular run from Buffalo to Detroit.
Although it was designed as a luxury vessel, and had quarters outfitted with Sterling silver water coolers and italian marble table tops, the Atlantic also carried a large number of steerage passengers.
Ironically, the ships' biggest bonanza may be in steerage --- Salvage experts believe many of the steerage passengers were new immigrants, some of them carrying their life's savings in cash.
Fletcher says he has seen no sign of vast fortunes during the approximately 180 dives he has made to the ship since 1984, but believes there may be gold and other valuables buried in the deep mud of the lake bottom.
And so does Mar-Dive.
Saturday, December 21, 1996
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