In an interesting opinion discussing the War of 1812, a vessel known as General Wayne (and originally Caledonia), and the Battle of Lake Erie, the Second Circuit addressed a private company’s salvage claim to a historic Lake Erie shipwreck. The court stated:
Considering all of the known factors, the clear and convincing evidence proves that even assuming the Dunkirk Schooner is the General Wayne, this ship has rested at the bottom of Lake Erie, utterly forgotten and undisturbed, for at least 150 years. As further circumstantial evidence of abandonment, the General Wayne‘s hold was filled with spoilable goods and she was nearing the end of her working days. While the lack of technology available to salvage a shipwreck at the time of its disaster might in some cases excuse inaction, that factor does not suffice to create a material dispute of fact necessitating trial here, where the ship has gone undisturbed for such a lengthy period during which no recovery effort was made. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”); cf. Fairpoint Int’l Exploration, Inc. v. The Captain Lawrence (Fairport V), 245 F.3d 857, 863-64 (6th Cir. 2001) (affirming district court’s conclusion that state proved abandonment despite evidence of owner’s financial inability to return to shipwreck). The “lapse of time, alone, does not necessarily establish abandonment, and an owner’s failure to return to a shipwreck site does not necessarily prove abandonment.” Fairport III, 177 F.3d at 499 (citation omitted). But here, given the surrounding circumstances, the Dunkirk Schooner is a vessel “so long lost that time can be presumed to have eroded away any realistic claim of original title,” Martha’s Vineyard Scuba Headquarters, 833 F.2d at 1065. Northeast has failed to point to any fact in the record sufficient to create a genuine issue of material fact to the contrary. See Scotto, 143 F.3d at 114 (“[T]he non-movant [opposing a motion for summary judgment] must produce specific facts indicating that a genuine factual issue exists.” (internal quotation marks omitted)). Accordingly, summary judgment was properly granted to New York.