Some of Cussler's suit against Spence left intact. Cussler Must Re-File

Defamation suit by man who claims Hunley find must be refiled in weeks after federal judge's rulings

BY SCHUYLER KROPF
Of The Post and Courier Staff

     A federal judge left intact Tuesday the bulk of adventure-author Clive Cussler's defamation suit against Charleston underwater explorer Lee Spence.
     Senior U.S. District Judge Sol Blatt Jr. rejected Spence's request to have the case dismissed outright, but he ordered some of the complaint amended.
     Last fall, Cussler filed suit against Spence, saying Spence's continued claim to have discovered the sunken H.L. Hunley in 1970 injured the reputation of the three divers who were ultimately credited by the state with finding the Confederate submarine.
     He also contended the story harmed the image of the National Underwater and Marine Agency, the non-profit shipwreck hunting society he founded.
     Spence responded by arguing, among other things, that his account of finding the sub is protected free speech and that Cussler, as a public figure, would have to prove malice in anything he has said about the Hunley or NUMA.
     At a motions hearing Tuesday, Blatt sided with Cussler in most of the objections raised by Spence's legal team.
     But Blatt raised questions over whether he would allow Cussler to introduce as evidence the state Hunley Commission's report bestowing credit for the discovery on the three divers.
     Blatt questioned whether members of a state agency created to be the caretaker for the rebel sub also possessed the expertise and legal authority to make such a finding of fact. The commission's makeup is designated as six lawmakers and three gubernatorial appointees, none of whom have to be versed in maritime discovery. "Whether it is admissible into evidence or has any serious value, I can't say," Blatt said of the commission's findings.
     Under its authorizing language, the state Hunley Commission was empowered to "make a study of the law regarding the rights to the salvage of the Hunley and any claim that a person or entity may assert with regard to ownership or control of the vessel."
     In reviewing Spence's claim - that he found the Hunley while freeing a stuck blackfish trap - the commission ruled that the sub had been covered with silt for more than a century and "it is therefore the opinion of the commission that the casual discovery of the Hunley by a snagged shrimping net was impossible."
     Tom Mason, one of Spence's attorneys, agreed that the Hunley Commission's findings should carry no weight.
     "They had no statutory authority to say who found the Hunley," he told Blatt. "We think they have no place in the complaint."
     Blatt held off on making a ruling on the report.
     And, although Blatt allowed most of Cussler's complaint to proceed Tuesday, he did order Cussler's legal team to remove several objectionable parts of the filing that he said appeared to be included solely to embarrass Spence. For example, Blatt said that Cussler's promise to give any damages recovered from Spence in the case to charity appeared to be a publicity stunt. He also said that including Spence's description of diving for the Hunley clad in his underwear was meant to bring ridicule.
     Cussler has several weeks to re-file his complaint, and it could be next year before the case goes to trial. His lawyer, Molly Hughes, said she was pleased with the judge's rulings.
     Cussler's team reported finding the sub off Charleston in 1995. It was raised in August 2000 and is now undergoing preservation efforts at the Warren Lasch Conservation Lab in North Charleston.
    
     Schuyler Kropf covers state and local politics. Contact him at skropf@postandcourier.com or 937-5551.