HO PYO HONG and AOTEAROA HONG,
dba KOREANSA SHIPPING AGENCY,
CHUNG YONG #21, its gear, nets and appurtenances,
Defendant in Rem.
High Court of American Samoa
CA No. 22-98
November 29, 2001
 Where court had both common law general jurisdiction and admiralty
jurisdiction, action in rem against
defendant vessel to enforce personal judgment could proceed under Supplemental
Rule B or C of the Trial Court Rules of Civil Procedure.
 Where court had jurisdiction to proceed under Supplemental Rule B or
C for Admiralty and Maritime Claims, court’s discretion to proceed under Rule B
did not defeat proper seizure of vessel and did not reflect judicial
determination as to Rule C in rem
claim or existence of maritime lien.
 Full faith and credit requires this court to respect the res judicata effect of an earlier
judgment in deciding the same issues presented in an action currently
 Res judicata applies to a “final” judgment between the “parties” or
those in privity with them.
 Where earlier, final judgment determined that vessel owners’
association was legal entity with vested ownership interest in vessels, and
where plaintiffs in instant action and association were parties in the prior
action, association was estopped from relitigating same issues in instant
 A partnership is a voluntary contract between two or more competent
persons to place their money, effects, labor, and skill, or some or all of
them, in lawful commerce or business, with the understanding that there shall
be a proportional sharing of the profits and losses between them, and which is
not organized as a corporation.
 A partnership agreement may be implied from conduct of parties and
 One of the fundamental tests to determine the existence of a
partnership is whether there exists a community of interest among the parties
for business purposes.
 Third party doing business with partnership may hold partnership
liable as legal entity for debts created in reliance on such partnership, and
in such circumstances, each member of partnership is generally, personally, or
severally liable for the partnership’s debts.
 General partners are jointly and severally liable for any judgment
debt of the partnership.
 Where corporation was determined to be partner in association, Court
properly concluded that it was jointly liable for judgment against association,
and vessel owned by it could rightfully be seized to satisfy partnership debt.
 Although no affidavit accompanied complaint, as is required for a
Rule B attachment, vessel was properly seized pursuant to a Rule C claim in rem and, therefore, was properly
before Court for Rule B attachment purposes as well.
 Laches is an affirmative defense that requires a finding that a
plaintiff delayed inexcusably or unreasonably in filing suit and that delay was
prejudicial to the defendant.
 The decision on whether to apply laches depends upon the particular
circumstances of the case at question.
 Under laches analysis, court determined that plaintiffs’ commencing
of action to enforce judgment less than 14 months after judgment was entered
was neither unreasonable nor an inexcusable length of time.
 The general rule of merger provides that when a final and personal
judgment is rendered in favor of the plaintiff, the plaintiff cannot thereafter
maintain an action on the original claim or part of the original claim,
although he may be able to maintain an action upon the judgment.
 Defense of merger was inapplicable when court treated action as
action upon personal judgment rather than action in rem on maritime lien.
 Under A.S.C.A.
§ 43.0120(5), actions founded upon a judgment must be brought within 10 years.
Before RICHMOND, Associate Justice, and SAGAPOLUTELE,
Counsel: For Plaintiffs, Charles V. Ala`ilima
For Defendant, Paul F.
Plaintiffs Ho Pyo Hong (“Ho
Pyo”) and Aotearoa Hong (together “the Hongs”) initiated this in rem action against defendant vessel
Chung Yong #21 (“Chung Yong”) to collect a portion of the in personam judgment rendered in Ho Pyo’s favor in Korea Deep Sea Fisheries Association
v. Hong, CA No. 78-92, slip op. (Trial Div. Jan. 9, 1997).
The Hongs’ claim that the judgment against the Korea Deep Sea Fisheries
Association (“KDSFA”) entitles them to in
rem judgment or attachment against the vessels owned by members of KDSFA,
and specifically against the Chung Yong for supplies in the amount of
$7,517.63. The court holds for the Hongs.
In 1992, KDSFA brought suit
against Ho Pyo, CA No. 75-92, alleging debts for failure to fulfill ship supply
contracts. Ho Pyo filed a counterclaim
for unpaid loans to KDSFA and unpaid invoices to KDSFA vessels. On January 9, 1997, judgment was rendered in personam for Ho Pyo in the amount of
$1,339,344.05. The Chung Yong was one of
the KDSFA vessels with outstanding invoices.
This claim is based on four invoices, one dated August 24, 1990, and
three dated August 31, 1990. The invoices were for food
supplies and other provisions, such as liquor and tobacco, which were delivered
to the Chung Yong by the Hongs.
Following the judgment in CA No. 78-92, KDSFA shut
down its operations in American Samoa on November 6, 1997. In Saeng Lee, the former manager of KDSFA in
American Samoa, has since established a new agency in the territory to
effectively continue with these operations.
In order to collect the debt included in the judgment
in CA No. 78-92, the Hongs had the Chung Yong arrested on March 3, 1998, after
it entered Pago Pago Harbor. On March 4,
1998, the Hongs and the Chung Yong’s local agent entered into a stipulation
under which the Chung Yong was released upon the deposit of $10,000 into the
[1-2] This matter is properly before this
Court. The Court has both common law
general jurisdiction and admiralty jurisdiction. Gray,
Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64, 69-70 (App. Div. 1987); Sec. Pac. Nat’l Bank v. M/V Conquest, 4
A.S.R.2d 59, 61 n.1 (Trial Div. 1987).
Because of the Court’s dual jurisdiction, the case could lie in this
Court on either of two supplemental rules for admiralty and maritime claims,
T.C.R.C.P. B (Attachment and Garnishment) or C (Action in Rem). The difference
between the two is the difference between a common law quasi-in-rem action to
answer for the in personam judgment in CA No. 78-92, Rule B, and an admiralty
law in rem action on a maritime lien
for the provision of supplies, Rule C.
The Chung Yong was properly seized for a Rule C in rem proceeding, which the Hongs fully argued before the
court. We will, however, consider this
action as one that concerns the execution of a civil judgment through Rule B
attachment against the property of a judgment debtor, an action which perfects
a lien against the property. See Diocese of Samoa Pago Pago v. K.M.S.T., Inc.,
18 A.S.R.2d 67, 69 (Land & Titles Div. 1991). The discretion of the court to proceed under
Rule B does not destroy the proper seizure of a vessel. The property properly attached was the Chung
Yong, its gear, nets, and appurtenances.
Our decision to decide this action on Rule B
attachment and partnership liability grounds does not reflect any judicial
determination as to the Rule C in rem
claim, nor the existence of a maritime lien.
The successful Rule B attachment makes it unnecessary to reach those
other issues at this time. However, the
Hongs presented valid alternative arguments, and we reserve opinion on
them. We proceed from this position.
B. Res Judicata
Effect of CA No. 78-92
 In CA No. 78-92, this Court found
that KDSFA, as it did business with Ho Pyo, was “a legal entity,” that it
represented itself as “an association of boat owners,” and that equity mandated
it be estopped from denying its legal status.
Korea Deep Sea Fisheries
Ass’n, 31 A.S.R.2d at 83. This Court has therefore
already determined that KDSFA is not merely an agent for the vessels under its
control. It is a business entity with a
vested ownership interest in these vessels.
Hence, we will treat KDSFA as a legal entity in this action, and further
determine that KDSFA is a partnership of its members and that principles of
partnership liability thus apply to this action.
[3-5] Full faith and credit requires this
court to respect the res judicata
effect of an earlier judgment in deciding the same issues presented in an
action currently litigated. U.S. Const., Art. IV, § 1; In re A
Minor Child, 28 A.S.R.2d 33, 35 (Trial Div. 1995). Res judicata applies to a “final” judgment between
the “parties” or those in privity with them.
(Second) of Judgments § 17 (1988); Puailoa v. Estate of
Lagafuaina, 19 A.S.R.2d 40, 46 (App. Div. 1991). The judgment in CA No. 78-92 is a full and
final judgment of this Court. KDSFA and
Ho Pyo were both parties to CA No. 78-92, and KDSFA is estopped from denying
the appropriate application of res
judicata on the issues in this action.
C. KDSFA as
[6-8] A partnership is a “business owned by
two or more persons that is not organized as a corporation. A voluntary contract between two or more
competent persons to place their money, effects, labor, and skill, or some or
all of them, in lawful commerce or business, with the understanding that there
shall be a proportional sharing of the profits and losses between them.” Black’s Law
(6th ed. 1990); see also Meehan v. Valentine, 145 U.S. 611, 618-19 (1892). While a contract is needed for a partnership to
exist, this contract may be implied from the conduct and circumstances
alone. Temple v. Temple, 365 N.W.2d 561, 566 (S.D. 1985); Yoder v. Hooper,
695 P.2d 1182, 1187 (Colo. Ct. App. 1984).
One of the fundamental tests to determine the existence of a partnership
is whether there existed a community of interest among the parties for business
purposes. 59A Am. Jur. 2d
Partnerships § 157 (1987).
The evidence in this action established that between
1990 and 1997 the vessel was owned by Daerim Corporation (“Daerim’), a Korean
corporation, and that Daerim was a member of KDSFA. Further, Daerim placed their property in
lawful commerce in combination with the other members of KDSFA. The members expected to and did receive a
proportional share of the profits from the venture. The KDSFA office in American Samoa was not
operating solely as an agent for the individual vessels it served, but in fact
it controlled the activity of KDSFA members’ vessels, the catch, sales, and
financial affairs of those vessels, and the remittance of profits back to the
KDSFA members in Korea. A “community of
interest” existed amongst the KDSFA members for their operations in American
Samoa. KDSFA did not produce any
credible evidence to refute the existence of a partnership. There was not any sort of fee-paying
arrangement between the KDSFA members and KDSFA’s local agent in American Samoa
that would allow a conclusion other than finding that there was an agreement to
receive a share of the profits of the partnership. Based on the records introduced into
evidence, it appears that KDSFA remitted profits to the partnership
members. There is no credible evidence
that Daerim did not receive a proportional share of these profits. This collection of actions shows, and we
hold, that at the very least an implied partnership contract existed between
the members of the KDSFA based on their conduct and the circumstances of their
affairs in American Samoa.
for Partnership Debts
[9-11] A third party doing business with a partnership
may hold the partnership liable as a legal entity for any debts created in
reliance on such partnership; each member of the partnership is personally or
severally liable for the partnership debts.
Texaco, Inc. v. Wolfe, 601 S.W.2d 737, 740-41 (Tex. Ct.
App. 1980); O.L. Holt v. Owen Elec. Supply, Inc., 722 S.W.2d 22,
24 (Tex. Ct. App. 1986). General
partners are jointly and severally liable for any judgment debt of the
partnership. Kaneco Oil & Gas, Ltd. v. Univ. Nat’l Bank, 732 P.2d 247, 250 (Colo.
Ct. App. 1986). The Hongs clearly did
business with KDSFA vessels in reliance on KDSFA being a partnership. There is no contrary evidence, and it is
likely the Hongs would not have extended credit for supplies in such large
amounts to various Korean fishing boats, including but not limited to the Chung
Yong, if not for the security that KDSFA would be liable for these debts and
that action would lie against KDSFA’s and its partner’s assets if
necessary. As such, Daerim, as a partner
in KDSFA, is jointly liable for the judgment debt and the vessel can be rightly
seized to satisfy the partnership debt.
B—Attachment and Garnishment
 “With respect to any admiralty or
maritime claim in personam a verified
complaint may contain a prayer for process to attach the defendant’s goods and
chattels.” T.C.R.C.P. B(1). The valid in personam judgment in CA No. 78-92
allows attachment of the Chung Yong as property belonging to Daerim, a KDSFA
partner. The Chung Yong points out that
there was no affidavit accompanying the complaint, as needed for Rule B
attachment. However, as discussed above,
the Chung Yong was correctly seized under the Hongs’ Rule C in rem claim and, therefore, was
properly before the court for Rule B attachment purposes as well.
[13-14] The Chung Yong has raised laches as a
defense. Laches is an affirmative
defense that requires a finding that a plaintiff delayed inexcusably or
unreasonably in filing suit and that delay was prejudicial to the defendant. Nat’l Wildlife Fed’n v. Burford, 835 F.2d 305, 318 (D.C. Cir.
1987). The decision on whether to apply
laches depends upon the particular circumstances of the case at question. Id.
A court must weigh all pertinent facts and equities. A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1028 (Fed.
Cir. 1992). However, in order to invoke
the laches defense, a defendant has the burden of proving two factors: (1) the
plaintiff delayed filling suit for an unreasonable and inexcusable length of
time from the time the plaintiff knew or reasonably should have known of its
claim against the defendant, and (2) the delay operated to the prejudice or
injury of the defendant. Id.;
Costello v. United States, 365 U.S. 265, 282 (1961).
 The Chung Yong has not proven either
of the two requirements for laches. An
action to enforce the judgment of CA. No. 78-92 could not have begun before the
judgment was entered on January 9, 1997.
The Hongs commenced this action on March 3, 1998, less than 14 months
later. This is not an unreasonable and
inexcusable length of time. The defense
of laches is therefore inapplicable.
[16-17] The Chung Yong has also claimed the
defense of merger. The general rule of
merger provides that “when a final and personal judgment is rendered in favor
of the plaintiff, the plaintiff cannot thereafter maintain an action on the
original claim or part of the original claim, although he may be able to
maintain an action upon the judgment. Restatement of Judgments § 18
(1982). As we are treating this case as
an action upon the judgment in CA No. 78-92, the rule of merger also does not
 The Chung
Yong has urged the running of the statute of limitations as a defense. This action was timely brought and does not
violate the statute of limitations. A.S.C.A. § 43.0120(5) provides that actions
founded on a judgment must be brought within 10 years. This is an action to recover the award of a
judgment against a member of the liable partnership, not a new action against a
defendant that was or should have been known within the time period associated
with the original claim. See Stancris
v. Yang, CA No. 47-99, slip
op. (Trial Div. Sept, 9, 1999). The
judgment in CA No. 78-92 was entered on January 9, 1997, and this action was
commenced on March 3, 1998, less than 14 months later. This action was
therefore commenced well within the statute of limitations.
The Hongs are awarded judgment in the
amount of $7,777.73, plus interest at 6% per annum from January 9, 1997. The Clerk of Courts shall pay this amount to
the Hongs from the $10,000.00 on deposit in the court’s registry. Any remainder shall be delivered to the Chung
Yong’s attorney, who shall return the funds to the entity entitled to them.
It is so ordered.
 The invoices total $7,777.73. The Hongs, however, claim only
$7,517.63. There is no clear explanation
for the discrepancy. The documents
pertaining to the judgment in CA No. 78-92 do not provide an exact accounting
of the sums used to reach the judgment amount. However, based on the evidence
presented in this case, we find the amount of the judgment in CA No. 78-92
related to the Chung Yong for purposes of this action is $7,777.73.
 “Here KDSFA did business with Hong as a legal
entity. Moreover, KDSFA instituted the present action in its own
name. Equity mandates that KDSFA be
estopped from now denying its existence as a legal entity, rather than merely
an agent of its members. We thus find
that KDSFA is a legal entity, with the capacity to sue and be sued on its own
behalf.” Korea Deep Seas Fisheries Ass’n v. Hong, 31 A.S.R.2d 80, 83 n.1
(Trial Div. 1996).