500
Opinion of the Court
federal and state courts adjudicating the wreck's fate, which, in the court's view, would be "confusing and inefficient," and also "inconsistent with the general rule in maritime law of treating wrecks as a legally unified res." Id., at 389.
Summarizing its reasoning, the court stated that, "[b]e-cause the law is reluctant to find abandonment, and because a finding of partial abandonment would deprive those holding title to the unabandoned portion of the wreck access to the federal forum, we hold that the Brother Jonathan is not abandoned." Ibid. (citation omitted). The court reserved the question whether there might be some point at which the insured portion of a shipwreck "becomes so negligible" that the entire wreck would be abandoned under the ASA. Ibid. The court also declined to take judicial notice of evidence that, during pendency of the appeal, the Brother Jonathan was determined eligible for inclusion in the National Register.
By concluding that the State must prove its claim to the Brother Jonathan by a preponderance of the evidence in order to invoke the immunity afforded by the Eleventh Amendment, the Ninth Circuit diverged from other Courts of Appeals that have held that a State need only make a bare assertion to ownership of a res. See Zych v. Wrecked Vessel Believed to be the Lady Elgin, 960 F. 2d 665, 670 (CA7), cert. denied, 506 U. S. 985 (1992); Maritime Underwater Surveys, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F. 2d 6, 8 (CA1 1983).* We granted certiorari to address whether a State's Eleventh Amendment immunity in an in rem admiralty action depends upon evidence of the State's ownership of the res, and to consider the related
*While the petition for certiorari in this case was pending, the United States Court of Appeals for the Sixth Circuit adopted the reasoning of the Ninth Circuit. See Fairport Int'l Exploration, Inc. v. Shipwrecked Vessel Known as The Captain Lawrence, 105 F. 3d 1078 (CA6 1997), cert. pending, No. 96-1936.
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