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A KEY WEST TALE

Adopted from the Florida State University Law Journal

Mel Fisher's legal battle for ownership of the
treasure of the Spanish galleon, Nuestra Senora de Atocha.

Few men in recent decades loom as large in the Key West's pantheon of characters as treasure hunter Mel Fisher. The ultimate adventurer and entrepreneur, he shares the honor of favorite adopted son with another free spirit, singer Jimmy Buffett, who once accompanied Fisher's treasure salvage boat crews, and who used Fisher's replica Spanish galleon, docked at a Key West pier, as a photographic backdrop for an early album cover.

Fisher's seventeen year quest for the treasure of the wreck of a 380-year-old Spanish galleon, the Nuestra Senora de Atocha, stands as a metaphor for this island city's sense of independence, adventure, entrepreneurial and grit. It is also a telling exhibit of its long-standing distrust of government.

The story of the Atocha is one with a strong connection to the firm of Horan, Horan & Wallace, most notably through Partner, David Paul Horan, a 1971 graduate of Florida State University’s College of Law. David Paul started representing Fisher’s interests in 1974. He filed the salvage action for Fisher’s Treasure Salvors, Inc., in 1975 and argued and won the case before the U.S. Supreme Court in 1982. With little doubt, Fisher, who died in December 1998, would not be the legend he is today without Horan's legal counsel. Horan, in turn, credits FSU faculty member emeriti Joshua Morse and Bill VanDercreek for providing the advice and research that helped lead to his success.

David Paul is an avid diver, who received a degree in marine biology before attending the FSU College of Law. In a cover story in a February 1980 National Law Journal, he is pictured riding a wounded twelve-foot shark. During the search for the Atocha treasure, David Paul often accompanied the divers in their hunt, and he was pictured frequently at Fisher's side in newspapers and magazines as well as in film documentaries. "In the National Geographic film where we find the mother lode," says Horan, " that's me wearing the "go to Hell' t-shirt, shouting and hollering and celebrating our find."

Dave Horan was barely three years out of law school when he was approached by Fisher to handle the legal affairs of Treasure Salvors, Inc., Fisher's company. Horan had come to Fisher's attention because of his success in a Florida Supreme Court case involving extraterritorial fishing rights. Horan accepted his new client in part because of the excitement of the work. "Mel was not the kind of client someone just out of law school needs,” says Horan. "He was broke. He already owed his former attorneys more than $1 million."

By the time Fisher hired Horan, Treasure Salvors had brought up $6 million in treasure and had spent $5 million in the process. "But they hadn't seen a penny of that," says Horan. "Every time one of Mel's boats came into the Key West it was met at the dock by armed guards who took possession of all the salvage and transported it back to the Secretary of State's office in Tallahassee. When Mel asked the State to release his share, they told him to wait." The State's standard arrangement with offshore treasure hunters was that it would keep 25 percent of the treasure in exchange for granting permission to search and salvage. In addition, the state’s position was that it could hold all of the treasure until the salvage was “finished”. The salvage started in 1970/1971 and continued today.

When Horan came on the scene in 1974, circumstances had taken an abrupt turn. A special master had just ruled for the U.S. government that Florida's twelve-mile submerged lands limit established by the state constitution was invalid, and the Atocha was, in fact, beyond the territorial boundaries of the United States. Later, the U.S. Department of the Interior announced that it had jurisdiction over the wreck site of the Atocha based on the 1906 Antiquities Act. It was the first time that the Federal Government had involved the act in the case of a shipwreck. “I was deathly afraid of the federal government, and we thought it was in our interest to continue working with the state so we could get our share of the treasure to pay our bills," says Horan. "It was our hope that the state and Treasure Salvors would sign a contract that we could talk to the Feds and negotiate a deal."

By early 1975, after contract negotiations with the state had come to a halt, Horan received a tip that Florida officials were in Washington D.C., negotiating an agreement with the federal government under the Antiquities Act that would make a perpetual loan of the Atocha treasure to the State of Florida. Follow-ups on the rumor proved that documents had already been drawn up and were awaiting final signatures. "As far as I was concerned, this was an outright betrayal," said Horan. "The state was planning to cut us out entirely. Mel would get nothing for all his work and expense. I was furious." Horan phoned Jack Shreve, general counsel to the Secretary of State, and demanded an explanation. Shreve told Horan to sit tight, that he was bringing the long-awaited contract to Key West to be signed.

Not knowing what to expect but realizing his options were shrinking, Horan put in a desperate call to FSU dean and admiralty law expert Joshua Morse. Morse, a Navy Reserve Commander at the time, was on duty in the Pensacola Staff Judge advocate's office. "I told Josh I hadn't taken his admiralty course, but would he help me anyway."

Morse, who had started his legal career practicing admiralty law with his father in Mississippi, was never one to turn his back on a challenge. Morse devoted several frantic hours to research and he located a number of law review articles that bolstered Horan's position. "Admiralty law requires that the property be in the judicial district in which the order is drawn. I suggested to Dave that he ask that we be put in charge of the search area,” stated Morse. Morse mailgrammed Horan a draft of an interim complaint against the Atocha. The decision to work with Morse and use his expertise in admiralty law was the break Horan needed.

"I had the interim complaint typed up and ready to file by the time Shreve walked into the office," says Horan. The contract that Shreve delivered contained the same language as previous drafts with a notable exception: a clause at the end stating that exception: a clause at the end stating that contract could be terminated with or without cause with 30 days notice. " I told Jack that the new language was unacceptable. He said it was the only nonnegotiable language in the contract."

When Shreve left Horan's office for lunch, Horan singed the interim complaint, drove to the airport and flew to Miami to file it in the Federal District Court for Florida’s Southern District.

When Horan won a summary judgment for ownership of the Atocha against the claims of the United States, the U.S. Department of the Interior, appealed Mehrtens' order to the Fifth U.S. Circuit Court of Appeals in New Orleans. In 1978, the United States lost the appeal.

Despite eventual success on the legal front, the period of litigation as the bleakest for times for Mel Fisher and his crew. A week before the order giving ownership of the Atocha to Treasure Salvors, Fisher's son Dirk, his daughter-in-law and another diver died when their boat sank at the salvage site. The tragedy came just days after Dirk had located a pile of the Atocha's 11-foot, 3600-pound bronze cannons. "It was an incredibly emotional time for all of us, " Horan recalls.

In the Federal Circuit Court in New Orleans, the government, desperate for a legal handle, argued the U.S. was the rightful owner of the treasure because, under common law, it was the successor of the prerogative rights of the King of England. In his rebuttal, Horan agreed that the U.S. had "indeed reawakened the sovereign prerogative of English kings, but the sovereign prerogative they have reawakened is called ‘The Right of the First Night’ or the right of the king to ravish a maiden on her wedding night. In this case, Treasure Salvors is getting similar treatment."

When the highly irregular laughter in the courtroom subsided, Chief Judge John Brown asked Horan if he could cite a “legal authority” for his statement Horan replied, "Yes your honor, it is common knowledge in Key West," again bringing down the house. The court ruled for Treasure Salvors, upholding Judge William Mehrtens' order.

Following the decision, relations between Fisher and the Florida's Division of Archives went from bad to worse. The animosity between the key players, the Division of Archives director Robert Williams and marine archeologist Sonny Cockrell and Fisher and Horan became incendiary. When Horan and Fisher arrived in Tallahassee with a warrant to take possession of the Atocha treasure, Williams refused to turn it over. "They went absolutely crazy, " says Horan. " They acted like we were trying to steal the seal of the great state of Florida." Only after Judge Mehrtens ordered the Archives officials arrested if they disobeyed his order, did they finally release the treasure.

After the Federal District Court Circuit ruled against the State of Florida, an appeal followed and following that, the State applied for review by the U.S. Supreme Court. Claiming that Mehrtens' order put all state antiquity laws in jeopardy, Florida Attorney General Bob Shevin convinced twelve other states, American Samoa, Guan and Puerto Rico to file amicus briefs in the case.

"Going to the U.S. Supreme Court was pretty high cotton for a single practitioner from Key West," says Horan. "I knew I needed some help." He headed for Tallahassee and the College of Law. "Nobody knows admiralty law like Dean Morse," and Horan, "and nobody knows federal procedure like VanDercreek, and I wasn't ashamed to ask for help." VanDercreek helped Horan hire several third-year law students and the group began preparing for trail. "It was high intensity stuff. It was great," says Horan. "By the time I left Tallahassee for Washington, I could not have been better prepared." He adds: "No question about it, without VanDercreek and Morse, we would not have accomplished what we did."

With VanDercreek at his side, Horan presented his case to the U.S. Supreme Court on January 20, 1982, maintaining that the issue should be resolved under the rules of admiralty law. He cited as precedent, a case decided in Key West in 1842 where the Federal Court held that the U.S. District Courts have exclusive jurisdiction.

In the case officially known as Treasure Salvors, Inc. v. The Florida Department of State, Florida argued that under the 11th Amendment to the Constitution it could not be sued in federal court without its permission, and that because Treasure Salvors had operated under an agreement with the state when it made its claim, the federal courts had to release jurisdiction. When Chief Justice, Warren Berger asked Horan why Florida's claim to the treasure did not divest the federal courts of jurisdiction under the 11th Amendment, Horan rephrased an 1870 Supreme Court opinion in a case involving the property of Confederate General Robert E. Lee. "If we are ever to blindfold the federal court to the extent that an unsupported assertion of title by a state will divest the District Courts of their exclusive jurisdiction of admiralty and maritime claims it leads justice into a blind alley from which she will never return." The Lee case was a result of a Congressional vote following the Civil War that confiscated Lee's land holding, and stipulated that no court would be open for a claim by Lee's heirs to get any of it back.

That evening, following the arguments and feeling confident that he would prevail, Horan still recalls with emotion a moment he shared with his wife Karen and his mother outside the Jefferson Memorial. "I looked across the Potomac and saw Arlington National Cemetery and the big mansion up on the hill. I realized I was looking at the same Robert E. Lee's property that I had used in my argument. It was one of the greatest moments of my life."

On July 2, 1982, the 5-4 Supreme Court decision for Treasure Salvors led the evening network new casts. Later, two of the justices voting against Fisher, William Rehnquist and Sandra O'Connor, publicly stated that they should have voted with the majority.

Three years later, in July 1985, Fisher's divers finally located the Atocha’s mother lode. Horan spent two days with the crew, pulling up tons of silver bars and tens of thousands of silver coins.

Aftermath of the struggles for possession of the Atocha’s treasure established Fisher as a media darling and hero of entrepreneurs and adventure. He appeared on the cover of a national news magazine and on dozens of television shows, including Johnny Carson's. A National Geographic special on the Atocha drew more viewers than any television documentary before it.

The case left a bitter aftertaste in the mouths of those who fought and lost against Fisher. The state and federal archeologists believed that the salvage from the Atocha should be part of the public domain and that the government was its rightful owner.

A central Florida prosecutor who worked on the state's case who asked not to be identified says that for the lawyers, the case was a "high octane" battle. "I've never been involved in litigation that was so emotional. The testosterone ran pretty high. You had people who believed absolutely in what they were doing." Although he aside he was no fan of Horan's, the prosecutor conceded that Horan had a master's sense for timing and drama. "He was able to think on his feet and make a convincing case. I have to give him a lot of credit."

The aftermath was also unpleasant for historian Gene Lyon and Fisher's archeologist, Duncan Mathewson, who were caught in the philosophical crossfire of the question of whether private salvors should be allowed to retrieve treasure for profit. The two were effectively blacklisted by the scholarly community for associating with Fisher and had articles rejected in protest by history and archeology journals.

In a self-published archaeological record of the Atocha treasure, Mathewson makes the point that working with commercial treasure salvors is often the only way to collect undersea artifacts. Government lacks the resources and entrepreneurial spirit to engage in the activity, he says.

Years after his death, Fisher remains a controversial figure in the world of treasure hunters, archeologists and environmentalists. Even his friends admit that he was no saint. He wound up in court on scores of occasions in disputes with investors, former employers and the relatives of those who died during savage operations. David Paul Horan was brought to the brink of personal bankruptcy in the late 1970s because of unpaid legal bills and was forced to sell part of his interest in the Atocha to keep his home. To his friends and supporters, though, Fisher remains a larger-then-life representation of the dying breed of American adventurer.

For Horan, the Atocha case gained him national attention and established his reputation as the premiere salvage attorney in the country. Most important, says Horan, he's had fun. "Can you imagine doing anything more exciting than I've had the chance to do? I've had an absolute blast."

Horan's time in recent years has been spent on protecting the salvors of the Central America, a paddle-wheeler loaded with California gold that sank in 8,600 feet of water off Virginia in 1857. The subject of the best seller, Ship of Gold in the Deep Blue Sea, by Gary Kinder, the ship carried an estimated $1 billion in bullion and gold dust. It’s sinking helped set off a national recession in the years prior to the Civil War. Horan also litigated the salvage of the RMS Titanic, the Spanish Brigantine of War El Cazador and is currently in litigation against the U.S. Navy over the salvage of the most historic Naval aircraft known to exist, a TBD-1 “Devastator” torpedo bomber.

Although the Central America's salvage rights have been litigated, Horan has spent several years warding off the claims of more then 30 insurance companies. "Because most of the records have been lost or destroyed, most of the claims were impossible to prove and have been thrown out, " says Horan. " Whatever the insurance companies end up getting will be a very small percentage of the wreck's overall value."

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ED HORAN KEEPS A FULL SCHEDULE IN PRACTICE WITH HIS BROTHER

David Paul Horan’s brother and law partner maintains a sometimes-grueling pace. "I've been thinking some lately that I don't enjoy Key West the way I should. I need to spend some time on the water," he says, recalling the fact that his love for skin and scuba diving is what brought the two Horans to Key West in the first place. "Right now I'm snowed under."

The saving grace for Ed, a 1984 FSU law graduate, is the high appeal level of his work. "I thoroughly enjoy what I do."

The firm's bailiwick is admiralty law, although Horan, a former assistant state attorney, continues to handle criminal defense cases. "Because of Dave's work with Mel Fisher, we are probably involved in more shipping and salvage cases than any law firm in the country. It's fascinating stuff."

Horan also filed a libel case against CNN and Time Warner that could drew national attention. "This one just dropped in my lap," he says. "It has nothing to do with my other work." The plaintiff, Keith Plancich, is a Key West resident and former army Green Beret. Mr. Plancich was slandered in CNN broadcasts and articles in Time magazine that alleged that the army used sarin nerve gas to kill Laotians in a secret 1970 mission code-named "Operation Tailwind." CNN latter admitted it ran the story without sufficient proof, and CNN founder and president Ted Turner issued an apology. According to Ed Horan, however, there was no official retraction, and no efforts have been made to resolve the lawsuit. "Our client saw pictures of himself holding a gun with voiceover saying that women and children had been murdered in a mission that never happened. Obviously, he was outraged. The show even drew an analogy with My Lai." Horan added that Iraqi president Saddam Hussein put the story on television to vilify Americans.

Keith Plancich was awarded a silver star, and he still suffers from injuries received during his service in Vietnam. "He feels that he wasn't the only one harmed in the report. It was an attack on all servicemen and the entire U.S. military."

Despite the challenge of a good case, the thought of enjoying the outdoor life of the Keys is never far from Horan's mind. "When we were younger, Dave I would clear our calendar and go diving. I think we need to start doing that again."

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