RMS TITANIC INC
MOTION FOR STAY OF MANDATE FILED 4/22/02
<DOCUMENT>
<TYPE>EX-10.40
<SEQUENCE>8
<FILENAME>ex10-40.txt
<DESCRIPTION>MOTION FOR STAY OF MANDATE FILED 4/22/02
<TEXT>

                         UNITED STATES COURT OF APPEALS
                             FOR THE FOURTH CIRCUIT
                               Richmond, Virginia

R.M.S. TITANIC, INC.,

                                    Appellant,

v.                                                            Docket No. 01-2227

The Wrecked and Abandoned Vessel,
....believed to be the RMS TITANIC,
in rem,
-- ---

                                    Appellee.

                         MOTION FOR STAY OF THE MANDATE

     NOW COMES  the  Appellant,  R.M.S.  Titanic,  Inc.  ("RMST"),  by  counsel,
pursuant to Rule 41 of the Federal  Rules of Appellate  Procedure and moves this
Court to stay the issuance of the mandate on the following grounds:

     1. In 1987,  RMST,  through its  predecessor-in-interest,  Titanic Ventures
Limited Partnership  ("TVLP"),  conducted the first salvage at the wreck site of
the R.M.S.  TITANIC  approximately  21/2 miles  beneath the surface of the North
Atlantic Ocean;

     2. In 1992,  RMST,  through  its  predecessor-in-interest,  TVLP,  appeared
before the U.S.  District  Court for the Eastern  District of Virginia to assert
salvage and ownership rights to the R.M.S. TITANIC and its cargo;

     3. On October 13,  1992,  after  having  heard  substantial  evidence  over
several days, the District Court authored and entered an Order  providing  that:
the intervening plaintiff Titanic Ventures is the true, sole and exclusive owner
of any items salvaged from the wreck of the defendant  vessel and is entitled to
all salvage rights;  and it is further  ORDERED that . . . the U.S.  Marshall is

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directed to deliver the  artifacts in his custody,  per previous  court order in
this matter,  to counsel for Titanic  Ventures.  (emphasis added)

Marex Titanic, Inc. and Titanic Ventures v. The Wrecked and Abandoned Vessel . .
..Civil Action No. 2:92cv618 (U.S. Dist. Ct.,  E.D.Va.,  Norf.  Div.)(October 13,
1992);

     4. The 1992  Opinion  and  Order of the  District  Court  was  subsequently
reversed by this Court on the grounds that the District Court improperly vacated
a  voluntary  dismissal  filed  by  the  plaintiff  during  the  District  Court
proceedings; Marex Titanic, Inc. v. The Wrecked and Abandoned Vessel, 2 F.3d 544
(4th Cir. 1993).

     5. With the  dismissal  of the 1992 case,  RMST  commenced an in rem action
against the R.M.S. Titanic seeking a salvage and/or finds award;

     6. After  publication  of notice that the  District  Court would  entertain
claims against the wreck and her cargo,  the sole claim was filed by Liverpool &
London  Steamship  Protection  and  Indemnity   Association,   Ltd.  based  upon
subrogation  rights it obtained from payment of some passengers claims for their
personal effects and cargo;

     7. On June 7,  1994,  the  District  Court  entered  an Order,  based  upon
representations  by the sole claimant  (Liverpool & London Steamship  Protection
and  Indemnity  Association,  Ltd.) and RMST that all matters and  controversies
between them had been compromised and settled, dismissing the claim of Liverpool
& London Steamship Protection and Indemnity Association, Ltd.;

     8. After entry of that Order,  the District Court entered  another Order on
June 7, 1994,  which  Order  contained  the same  operative  language  regarding
ownership as was  contained in the  District  Court's 1992 Order,  and stated in
pertinent part as follows:

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     the  court   FINDS  AND  ORDERS   that   R.M.S.   Titanic,   Inc.   is  the
     salvor-in-possession of the wreck and wreck site of the R.M.S. Titanic, . .
     . and that R.M.S.  Titanic,  Inc. is the true,  sole and exclusive owner of
     any items salvaged from the wreck of the defendant  vessel in the past and,
     so long as  R.M.S.  Titanic,  Inc.  remains  salvor  in  possession,  items
     salvaged in the future. . .(emphasis added).

     R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel . . . Civil Action
     No. 2:93cv902 (U.S. Dist. Ct., E.D.Va., Norf. Div.)(June 7, 1994);

     9. During the period of 1993 to the  present,  RMST  encumbered  artifacts,
entered into  contracts for the  exhibition of artifacts and sold coal recovered
from the wreck site of the RMS TITANIC,  all with the  knowledge and approval of
the District  Court.  At the same time, RMST advised the District Court that its
business plan was to exhibit the artifacts, rather than sell them;

     10. In 1998,  the District Court ruled,  among other things,  that RMST was
entitled to exclude third parties from visiting and photographing the wreck site
while it continued as salvor-in-possession;

     11. In 1999,  this Court  reversed  the  District  Court  ruling  regarding
visitation and photography,  while affirming  jurisdiction.  In so doing, and in
addressing other issues, this Court reviewed the status and content of the case.
In its review, this Court's 1999 Opinion states that:

     in 1994, the District Court in the Eastern District of Virginia, exercising
     constructive  in rem  jurisdiction  over the wreck  and  wreck  site of the
     Titanic, awarded exclusive salvage rights as well as ownership of recovered
     artifacts, to R.M.S. Titanic, Inc. ("RMST"), a Florida corporation.

     R.M.S. Titanic, Inc. v. Haver, et al, 171 F. 3d 943, 951 (4th Cir. 1999)(J.
     Niemeyer  writing for the panel).  The 1999  Opinion  went on to review the
     procedural history in detail, to note that the only claim that was filed in
     the District  Court action was dismissed on June 7, 1994,  and to recognize
     that:

<PAGE>

         on the same day, the Court entered a separate  order  granting RMST not
         only exclusive  salvage rights over the wreck and the wreck site of the
         Titanic,  but also `true,  sole and  exclusive  ownership  of any items
         salvaged from the wreck.' (emphasis added)

Id.  at 952.  The Court  went on in its 1999  Opinion,  to review in detail  the
procedure followed by the District Court and then determined that:

         [t]hese  conclusions  reached by the District Court about RMST's rights
         are consistent with salvage law which is part of the jus gentium and we
         expect that whether RMST had returned  property  from the Titanic to an
         admiralty  court in England or France or Canada,  the court  would,  by
         applying  the same  principles,  have  reached  the  same  conclusions.
         (emphasis added)

Id. at 966-67;

     12. In July 2000, after reviewing newspaper reports and letters received
from non-  parties  indicating  that RMST  planned  to sell the  artifacts,  the
District  Court issued an Order  directing RMST not to sell the artifacts it had
recovered.  Because RMST assumed the District  Court was  asserting the right to
control such disposition as an incident of the Court's control over the salvor's
activities as salvor-in-possession  (rather than any lack of ownership by RMST),
and  because  RMST had no plans to sell  artifacts  at that time,  no action was
taken to appeal this Order;

     13.  RMST's  business  plan  changed  in  2001  and it  began  to  consider
alternatives  to  exhibition.  Pursuant to a prior order of the District  Court,
RMST filed a Periodic Report on September 17, 2001 discussing such  alternatives
and  appeared  before the District  Court on September  24, 2001 to present that
Periodic  Report.  Following the September 24, 2001 hearing,  the District Court
issued an Order on September 26, 2001, which Order was  subsequently  amended on
October 19, 2001. In said Orders,  the District  Court  continued to enjoin RMST
from transferring title to individual  artifacts recovered from the wreck of the
TITANIC.  Moreover,  the District Court enjoined RMST from selling,  as a group,
all  of the  artifacts  previously  recovered  from  the  wreck  and  all of the
artifacts recovered in the future from the wreck,  without prior approval of the
Court. RMST, in turn, filed a timely appeal of the Orders;

<PAGE>

     14. On February 25, 2002,  this Court heard argument on RMST's  appeal.  On
April 12, 2002, this Court,  affirmed the Orders of the District  Court.  R.M.S.
Titanic,  Inc. v. The Wrecked and Abandoned Vessel. . ., No. 01-2227,  2002 U.S.
App. LEXIS 6799 (4th Cir. 2002)(J. Niemeyer writing for the panel).

     15. In so ruling,  this Court  reviewed and declared  ambiguous the June 7,
1994 Order of the District Court that had awarded ownership to RMST of all items
then  salvaged from the wreck of the TITANIC as well as all items to be salvaged
in the  future  by RMST so long  as RMST  remained  salvor-in-possession  of the
TITANIC.  As noted above,  in pertinent  part, the June 7, 1994 Order  contained
language identical to the 1992 Order authored by the District Court:

     [T]he  court  FINDS  AND  ORDERS   that   R.M.S.   Titanic,   Inc.  is  the
     salvor-in-possession of the wreck and wreck site of the R.M.S. Titanic, . .
     . and that R.M.S.  Titanic,  Inc. is the true,  sole and exclusive owner of
     any items salvaged from the wreck of the defendant  vessel in the past and,
     so long as  R.M.S.  Titanic,  Inc.  remains  salvor  in  possession,  items
     salvaged in the future. . .

     R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel . . . Civil Action
     No. 2:93cv902 (U.S.

     Dist. Ct., E.D.Va., Norf. Div.)(June 7,1994);


     16.  The  validity  of the June 7, 1994 Order and its award of title to the
artifacts was not

<PAGE>

challenged  by RMST or either of the two amicus  curiae  and,  thus,  was not an
issue raised on appeal. However, acting sua sponte, this Court reviewed the 1994
Order, reinterpreted it to convey only possession, not title, and held that RMST
had no title to any artifacts that it had previously recovered from the wreck of
the TITANIC nor to any artifacts that it might recover in the future therefrom;

     17. Such a ruling is inconsistent  with this Court's March 25, 1999 Opinion
in which it acknowledged and affirmed the District Court's award of ownership to
RMST  of the  artifacts  previously  recovered  from  the  wreck  and all of the
artifacts  recovered  in the  future  from the  wreck  so long as RMST  remained
salvor-in-possession.  It is also inconsistent  with the numerous  statements of
the District Court acknowledging RMST's right to lien the artifacts and contract
for exhibition of artifacts,  and the District Court's  numerous  recitations of
the 1994 Order during the interim;

     18.  Implicit  and  inherent in the  District  Court's  Order (which made a
finding  that  RMST was an  owner)  is the  discretionary  determination  by the
District Court that the proceeds of any sale of the artifacts recovered from the
wreck of the TITANIC would be inadequate to pay RMST its full reward for salvage
service   and  the  further   discretionary   determination,   consistent   with
well-established salvage law, that it was appropriate to award RMST title to the
artifacts  in lieu of the  proceeds  of sale,  thereby  saving the costs of sale
which would otherwise be charged against the total value of the artifacts;

     19. For nearly eight years,  RMST has relied upon the District Court's June
7, 1994 Order and its award of ownership of the artifacts to RMST.  Indeed,  the
District Court's June 7, 1994 Order and this Court's  subsequent  affirmation of
that  Order on March 25,  1999 have been the  pillars  upon  which RMST has been

<PAGE>

built and its daily business operations conducted. Relying upon the June 7, 1994
Order of the District Court and its award of ownership,  as well as this Court's
March 25,  1999  affirmation  of said Order and award,  RMST has sold  shares of
company  stock  based upon  representations  of artifact  ownership  made by the
District  Court  and  this  Court,   committed  significant  resources  to  fund
expeditions to the wreck,  encumbered the artifacts recovered from the wreck and
repeatedly  entered into  agreements to exhibit the artifacts  around the world.
Such actions,  essentially  available only to property owners, have provided the
company  with the capital  necessary  to remain in  business  and to continue to
conduct salvage expeditions to the wreck of the TITANIC;

     20. The  conclusions  of this Court in its April 12,  2002  Opinion  are in
conflict with the facts and law discussed  herein.  As a result,  RMST is in the
process of preparing a timely appeal of this Court's April 12, 2002 Opinion;

     21.  Should  the  mandate  issue in this case in a timely  fashion,  RMST's
economic  ability to appeal this Court's  decision or even to pursue its salvage
award may be undermined,  if not extinguished,  as RMST will then need to obtain
permission  from the  District  Court to continue  the  aforementioned  business
transactions that provide RMST with its stream of income;

     22.  Because the June 7, 1994 Order of the District Court awarding title in
the artifacts to RMST was affirmed by this Court in 1999; because the 1994 Order
of the  District  Court has stood  since the date of its  entry,  has formed the
basis for the  District  Court's  actions  for nearly  eight  years and has been
extensively  relied upon by RMST for nearly  eight  years in its daily  business
operations;  because there is implicit and inherent in the District Court's 1994
Order  (which  made  a  finding   that  RMST  was  an  owner)  a   discretionary
determination  by the  District  Court  that  the  proceeds  of any  sale of the
artifacts  recovered  from the wreck of the TITANIC  would be  inadequate to pay

<PAGE>

RMST  its  full  award  for  salvage   service   and  a  further   discretionary
determination,  consistent  with  well-established  salvage  law,  that  it  was
appropriate  to award RMST title to the  artifacts  in lieu of the  proceeds  of
sale, thereby saving the costs of sale; because the pertinent ownership language
in the 1994 Order of the  District  Court  mirrors  the  language  authored  and
employed by the District  Court in its October 13, 1992 Order  awarding title in
the artifacts to TVLP (RMST's predecessor-in-interest); and because the validity
of the 1994 Order of the District Court and its award of title was not raised by
the appellant or amici on appeal,  this Motion presents  substantial  questions,
shows good cause for granting stay of the mandate,  and is neither frivolous nor
filed  merely  for  delay.

     WHEREFORE,  in light of the substantial  questions presented and good cause
shown herein,  Appellant RMST, by counsel,  respectfully requests that the Court
grant the relief sought in this motion and stay the issuance of the mandate.

                                     R.M.S. TITANIC, INC.





                                     By:_________________________________
                                                  Of Counsel


Mark S. Davis (VSB # 29006)
Robert C. Scaro, Jr. (VSB # 43171)
CARR & PORTER LLC
355 Crawford Parkway, Suite 520
Portsmouth, Virginia 23704
TEL:  (757) 393-6018
FAX:  (757) 393-0854
Counsel for R.M.S. Titanic, Inc.





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                             CERTIFICATE OF SERVICE

     I hereby certify that a true and accurate copy of the foregoing  Motion for
Stay of the Mandate has been transmitted via regular mail to:

         Neal L. Walters, Esq.
         Counsel for Amicus Curiae,
         University of Virginia School of Law Appellate Litigation Clinic
         418 East Water Street
         P.O. Box 2737
         Charlottesville, VA 22902

         Craig A. Markham, Esq.
         Counsel for Amicus Curiae, David Shuttle
         Elderkin, Martin, Kelly & Messina
         150 East Eighth Street
         Erie, Pennsylvania 16501





    ----------------
         Dated                                                    Mark S. Davis


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