concurring in part and dissenting in part:
I agree with the majority that Aetna/CIGNA acquired title to the Lady Elgin when it paid the owner’s insurance claims, as well as with the majority’s observation that title to a lost ship may be abandoned by inference. I must disagree, however, with my colleagues’ conclusion, which is diametrically opposed to the factual findings of the trial court, that Aetna/CIGNA abandoned the Lady Elgin by failing to display a sufficient interest. In my view, the evidence in this case is merely conflicting and, therefore, the trial court’s judgment should be affirmed.
When reviewing the findings of the trial court in a bench trial in which the evidence is conflicting, it is not the function of this court to disturb a trial court’s findings and substitute its own opinions, unless the holdings of the trial court are manifestly against the weight of the evidence. Greene v. City of Chicago, 73 Ill. 2d 100, 110, 382 N.E.2d 1205 (1978); Schulenburg v. Signatrol, Inc., 37 Ill. 2d 352, 356, 226 N.E.2d 624 (1967). The trial judge, as the trier of fact, is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. Schulenburg, 37 Ill. 2d at 356; People v. Cheek, 93 Ill. 2d 82, 94, 442 N.E.2d 877 (1982). We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of fact, have come to a different conclusion. Schulenburg, 37 Ill. 2d at 356.
The majority relies heavily upon the Federal Abandoned Shipwreck Act of 1987 and its history in its analysis of whether the Lady Elgin is an abandoned ship. The logic employed in this discussion is, however, pure sophistry. A prerequisite of applying the terms of the Act to the Lady Elgin is a prior factual determination that she has been, indeed, "abandoned.” This is fundamental because neither the federal nor the state government may appropriate private property without first awarding compensation to its owner. The majority’s reliance on the "legislative history of the Act,” and the "directives and purpose of the Act” to conclude that the Lady Elgin is an abandoned ship turns the proper analysis on its head.
At trial testimony established that Aetna/CIGNA deliberately preserved, for more than a century and a quarter, those documents necessary for it to establish its ownership of the Lady Elgin. Cf. Columbus-America Discovery Group, Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel (Believed to be the S.S. Central America), 742 F. Supp. 1327, 1344-46 (E.D. Va. 1990), rev’d on other grounds sub nom. Columbus-America Discovery Group v. Atlantic Mutual Insurance Co., 974 F.2d 450 (4th Cir. 1992) (where the federal district court found abandonment based upon insurers’ deliberate destruction of documents). CIGNA explained that an even more complete set of documents concerning the ship would have been in CIGNA’s possession had it not been for the tragedy of the great Chicago fire of 1871. When the ship was ultimately discovered, CIGNA promptly and actively engaged in negotiations with Zych and the Lady Elgin Foundation to protect its rights to the ship. With these facts in mind, the trial court reasonably concluded that the Lady Elgin had not been abandoned.
Moreover, in failing to explain precisely how and when Aetna/ CIGNA abandoned the Lady Elgin, the majority’s opinion renders the law in this area as murky as the waters of Lake Michigan itself. This holding represents a clear departure from what the proper law in this area should be, i.e., that "lapse of time and nonuse are not sufficient, in and of themselves, to constitute an abandonment.” Columbus-America, 974 F.2d at 461; see Wilkie v. Two Hundred & Five Boxes of Sugar, 29 F. Cas. 1247 (D.S.C. 1796) (No. 17,662); see also Durfee v. Peoria, Decatur & Evansville Ry. Co., 140 Ill. 435, 437-38, 30 N.E. 66 (1892) (abandonment requires both non-user and the intention to abandon).
Because the record reasonably supports a finding by the trial court that Aetna/CIGNA did not abandon the Lady Elgin, I would affirm the judgment of the circuit court.