The Case of H.M.S. Fowey: A Warship no more

British warship, HMS Fowey

HMS Fowey runs onto reef

H.M.S. Fowey, a British navy frigate of 44 guns, was wrecked in Biscayne Bay, June 26, 1748. After suffering the indignity of shipwreck at the hands of Mother Nature, the Fowey was stripped of her identity as a ship of war by the United States Government centuries later.

H.M.S. Fowey, Captain Francis Drake, was escorting a recently captured Spanish prize called the Judah to Virginia which was to be the Fowey’s new station. She was in company with four merchant ships. Soundings were being taken as land was came in sight. One of the merchant ships ran aground and fired a gun to alert the Fowey. Captain Drake ordered the hawser cut that was towing the Spanish prize. But the Fowey missed stays and ran on the reef as well. The cutter barge was lowered and a crew set out with a lead line to find a passage through the reef. The long boat was sent out with anchors but it was too late as the man-of-war was taking on water. Captain Drake hailed the Judah to come up and bring their best bower anchor. This being done, a new hawser was bent on the anchor and it was set off the starboard quarter. The Fowey crew fed the hawser through a gun port and fastened it to the main capstan and the line was hove taught. The merchant ship got off with the tide but the Fowey failed to budge. Drake ordered the forecastle guns thrown overboard and his yards and topmasts struck. The lower deck guns were moved aft. The ship still did not float so Captain Drake signaled distress to the nearby ships who immediately came to his assistance.

The Fowey crew continued to pump and bale and then more cannon were thrown overboard.  The prize was aground but lent assistance by taking in an anchor cable and sent it to the capstan of the Fowey. The Fowey winched off but because her hull had bilged she began to sink. The pumping and bailing became more frantic and the Spanish prisoners offered their assistance. Captain Drake borrowed fourteen hands from the snow, Jane, Captain Abraham Kettletash, of New York. In spite of all of this help the sea gained another two feet in the Fowey’s hold. Drake convened a meeting with his officers and everyone agreed that it was impossible to make any port. Her stern cable was cut and the ship beat over the reef, lost her rudder, and came into four fathoms of water. Further attempts to reach shore ware to no avail so Drake ordered the guns spiked and most of his small arms were thrown overboard.

The crew and prisoner s were transferred to the Jane and the brigantine, Mermaid, Captain Collins for Rhode Island. Fifty-seven thousand pieces of eight were saved out of the Judah before she sank not far away.  H.M.S. Fowey sank soon after.

The crew landed at Charleston, South Carolina, and Captain Drake returned to England and faced a court martial held on board H.M.S. Anson in Portsmouth , England on December 5, 1748. After testimony by himself and his officers, Captain Drake was absolved of any wrong doing.

The Fowey is Discovered

In 1978, Gerald Klein discovered a cannon affixed to the remains of an 18th century English vessel while spearfishing. The next year, in October of 1979, Mr. Klein filed an in rem salvage claim in federal district court. Klein sought to declare himself rightful owner of the shipwreck, or to receive a salvage award for his efforts. It was first thought to be a Spanish wreck from the 1733 fleet but later it was determined to be H.M.S. Fowey, the British warship.

The United States had appeared in the case to stake a claim to the Fowey because her remains had been found imbedded in lands belonging to the United States. Biscayne National Park was ceded to the U.S. Government by the State of Florida in 1973. Once this was made clear, Florida had no further interest in the case. Ultimately, the district court ruled that:

“It is without question that Congress had the power to exercise dominion and control over the wreck, and the statutory evidence is overwhelming that it had the intent. It is clear that the United States was in constructive possession of the wreck at the time the plaintiff discovered it embedded in public land.”

The Eleventh Circuit upheld this finding:

“The common law of finds generally assigns ownership of the abandoned property without regard to where the property is found. Two exceptions to that rule are recognized: First, when the abandoned property is embedded in the soil, it belongs to the owner of the soil; Second, when the owner of the land where the property is found (whether on or embedded in the soil) has constructive possession of the property such that the property is not “lost,” it belongs to the owner of the land. See Bishop v. Ellsworth,91 Ill.App.2d 386, 234 N.E.2d 49 (1968); Allred v. Biegel, 240 Mo.App. 818, 219 S.W.2d 665 (1949); Flax v. Monticello Realty Co., 185 Va. 474, 39 S.E.2d 308 (1946); Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333 (1955). See also Elwes v. Briggs Gas Company, 33 Ch. 562. Both exceptions operate to give the United States ownership in this case.

The ship is buried in the soil. The soil belongs to the United States as part of its national park system. In 1973, the land was transferred to the United States by the State of Florida for the purpose of allowing the United States to establish a national park area partially because of the historical value of the many shipwreck sites to be found in the area. When the United States acquired title to the land from Florida in 1973, it also acquired title to the shipwrecks embedded in that soil.”

The shipwreck was placed on the National Register of Historic Places. The entry below, however, documents that the federal government no longer recognizes any sovereign immunity that a Crown vessel would ordinarily have had in navigable waters or in lands not owned by the federal government:

“Legare Anchorage Shipwreck. This wooden British merchant vessel, named H.M.S. Fowey, wrecked in 1748. Her scattered remains are buried in Biscayne National Park. Owned by the U.S. Government, National Park Service. Listed in the National Register as part of an archeological district, this wreck is nationally significant.”

H.M.S. Fowey was not a merchant vessel but a warship formerly owned by the British navy.

Captain Drake's Court Martial from the Admiralty Records NARA

The first page of Captain Drake’s Court Martial

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