7ASR3d139

Series: 7ASR3d | Year: () | 7ASR3d139
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JOAO ALVES, Plaintiff,

 

v.

 

M/V KOORALE, her engines, tackle, bunkers,

appurtenances in rem, Defendant.

______________________________

 

M & F FISHING, Plaintiff-in-Intervention,

 

High Court of American Samoa

Trial

Division

 

CA

No. 32-02

 

July

9, 2003

 

 

[1] The Constitution of the United

States explicitly grants the federal judiciary the power over “all cases of

admiralty and maritime jurisdiction.”

 

[2] The Fono, in explicitly overruling Swift v. Trial Div., 4 A.S.R.

983 (App. Div. 1975), amended the High Court’s jurisdictional reach to include in

rem admiralty and maritime suits.  

 

[3]

Congress, either deliberately or through benign neglect, has excluded American

Samoa from participating equally and fully in the federal scheme of admiralty

and maritime jurisdiction.

 

[4] As a

result of Congress’s exclusion of American Samoa from full participation in the

federal scheme for admiralty and maritime jurisdiction, owners of vessels entering

Pago Pago harbor have fewer substantive rights than in any other American

harbor, and perhaps fewer rights than afforded by Commonwealths having free

association compacts with the United States.

 

[5] The High Court cannot issue an injunction pursuant to 46 U.S.C. § 185

and halt proceedings in a federal district court of competent jurisdiction,

even though it would promote judicial economy and overall convenience.

 

[6] The High Court cannot

transfer civil actions to other district courts under 28 U.S.C. § 1404(a),

despite the statute’s explicit language that transfers are “for the convenience

of parties and witnesses, [and] in the interest of justice.”

 

[7] The procedures governing the arrest of a vessel are more relaxed than

the procedural due process requirements normally required with other

pre-judgment seizures of property, including effective notice, meaningful

judicial review, and a right to a prompt hearing after the seizure.

 

Before KRUSE, Chief Justice, MAMEA,

Associate Judge, and TUPUIVAO, Associate Judge.

 

Counsel:                                                                

For Plaintiff, William H. Reardon

 For Defendant and Plaintiff-in-Intervention, Jeffrey

Waller

 

ORDER ON MOTION TO SET

TRIAL

 

The modern

day accessibility of the Pago Pago Harbor coupled with American Samoa’s status

as a United States

Territory has given rise to a unique, yet often unsatisfying forum for

the resolution of maritime disputes. 

These complications are exacerbated in this case by attorneys who, while

attempting to out-maneuver opposing counsel, have manipulated jurisdictional

deficiencies and tested our patience.

 

A. 

The Trouble with Admiralty Law in American Samoa

 

[1] The Constitution of the

United States explicitly grants the federal judiciary the power over “all cases of

admiralty and maritime jurisdiction.”  1 Thomas J. Schoenbaum, Admiralty and Maritime Law, Practitioner

Treatise Series, § l-6 (2d ed.

1994) [hereinafter Schoenbaum, Practitioner Treatise] (quoting U.S. Const. art. III, § 2).  The origins of the language are unclear, but

their purpose is without doubt.  Id.  Before

the drafting of the Constitution, each state

exercised sovereign powers, including the power of their courts to hear

admiralty matters.  Id.  However, [t]he experience of the uncontrolled and divergent activity of

these state maritime courts was

largely responsible for the apparently uncontroverted view among the delegates

and drafters of the United States Constitution that there should be a system of

national admiralty courts.”  Id.  Such a system, where federal courts

“serve as both fora and interpreters of maritime law . . . provide[s] uniform

rules of law for the business of shipping, . . . facilitate[s] maritime

commerce, [and] appl[ies] uniform remedies for persons traveling or working on

navigable waters in connection with these maritime activities.”  Thomas J. Schoenbaum, Admiralty and Maritime Law, Hornbook

Series, § 1-2 (2d

ed. 1994).

 

When

American Samoa became a Territory, it added yet another port to the

jurisdiction of the United States.  In part,

it was the U.S. Navy’s interest in the “deep-water harbor at Pago Pago that originally brought the two

sovereigns together.”  See Stanley

K. Laughlin, Jr., The Law of United States Territories and

Affiliated Jurisdictions § 3.3 (1st ed. 1995).  Over the years, Pago Pago harbor’s usefulness

as a strategic naval station dwindled but instead gave way to a vibrant

fishing and maritime shipping economy.  See,

e.g., In re complaint of Interocean

Ships, Inc., 2

A.S.R.2d 76, 84-5 (App. Div. 1985). 

(Murphy, C.J., concurring); The

Vessel Pac. Princess v. Trial Div. of the

High Court, 2 A.S.R.2d 21, 24 (App. Div.

1984) (Gardner, C.J., concurring).  As a

consequence, this Court was called upon to accommodate the growing need for a

local admiralty forum.

 

[2] An early case from the

Appellate Division reluctantly declined to hear an admiralty suit absent a

grant from Congress—or by the Fono acting on behalf of Congress.  See

generally Swift v. Trial Div., 4 A.S.R. 983 (App. Div. 1975).  The Fono obliged, explicitly overruling Swift and amending the High Court’s

jurisdictional reach to include in rem suits.  See Pub. L.

14-18 (1975); see also Interocean Ships, Inc., 2 A.S.R.2d at 83 (Murphy, C.J.,

concurring); Meaamaile v. Am. Samoa, 550 F. Supp. 1227, 1236-37 (D. Haw. 1982).  But the grant of admiralty jurisdiction at

the local level was a temporary band-aid. 

It left voids that could only be filled at the national level by

Congress.

 

[3-4] Yet Congress, either

deliberately or through benign neglect, has excluded American Samoa from

participating equally and fully in the federal scheme.  See, e.g., Star-Kist Samoa, Inc. v. The M/V Conquest,

3 A.S.R.2d 25, 28-31 (App. Div. 1986); Interocean Ships, Inc., 2

A.S.R.2d at 82 (Murphy, C.J., concurring); The Vessel Pac. Princess, 2

A.S.R.2d at 24 (Gardner C.J., concurring). 

Even though we are a Territory, Congress could have granted—and still

can grant—the High Court the same competence that federal courts have in

admiralty matters.  See Meaamaile, 550

F. Supp. at 1236-37.  Congress had done

so before with other Territorial courts. 

See, e.g., The “City of Panama”, 101 U.S. 453 (1879) (Territory of Washington); United

States v. Canter, 26

U.S. 511 (1828) (Territory of Florida). 

Instead, looming over us has been Acting Chief Justice Murphy’s

perceptive observation that “owners of vessels entering Pago Pago harbor have

fewer substantive rights than in any other American harbor, and perhaps fewer

rights than afforded by Commonwealths having free association compacts with the

United States.”  Interocean Ships, Inc., 2 A.S.R.2d at

84.

 

B. 

Specific Discrepancies in Jurisdiction

 

[5]

It is still true that the High Court cannot issue an injunction pursuant to 46

U.S.C. § 185 and halt proceedings in a “district court of competent

jurisdiction,” even though it would promote judicial economy and overall

convenience:

 

[6] It has been held that the purpose of

46 U.S.C. § 185 is to permit all actions to be consolidated in one action which

will dispose of all claims against a vessel owner.  Proceedings under section 185 have also been

said to be designed to marshal all claims against a vessel and owner.  Certainly these purposes are not promoted by

denying the High Court the power to enjoin proceedings in other forums.  Interocean Ships, Inc., 2 A.S.R.2d at

84 (Murphy, C.J., concurring) (citations omitted); see In the Matter of Complaint of Voyager, Inc., 23 A.S.R.2d 47, 48 (Trial Div.

1992); Fa`atasiga v. The M/V Ocean

Pearl, 19 A.S.R.2d 59, 60

(Trial Div. 1991).  Additionally, the High Court cannot transfer civil

actions to other district courts under 28 U.S.C. § 1404(a), despite the

statute’s explicit language that transfers are “for the convenience of parties

and witnesses, [and] in the interest of justice.”  See The Vessel Pac. Princess, 2 A.S.R.2d at 21.  Congress has yet to rectify these obvious

defects that plague the High Court’s limited admiralty jurisdiction.[1]

 

C. 

What Can be Done?

 

One

esteemed colleague contemplated possible solutions to this dilemma:

 

First, Congress could extend federal

jurisdiction to the High Court as it has done in other territories by providing

that the High Court have the jurisdiction of a United States District Court . .

. . Second, it could place American Samoa under the jurisdiction of a United

States District Court, such as the United States District Court of Hawaii . . .

. Third, it could create a United States District Court for the territory. 

 

The Vessel Pac.

Princess, 2

A.S.R.2d at 24-25 (Gardner, C.J., concurring) (citations omitted).  With the one exception already mentioned,

that of the Ship Mortgage Act, Congress has not adopted any of Chief Justice

Gardner’s suggestions.  To be sure, the defects

in the High Court’s jurisdiction are not dire. 

Admiralty cases usually proceed in this Court without incident; but

there are always exceptions.

 

D. 

Why this Case Presents a Problem

 

It was just a matter of time before a case like the present one came

along.  The Plaintiff, Joao Alves

(“Alves”), allegedly injured himself while working on the M/V Koorale.  On April 12, 2002 Alves filed an in personam action against M & F

Fishing, the owner of the M/V Koorale, in the U.S. District Court for the

Southern District of California.  Three

days later, Alves filed an in rem action against the M/V

Koorale here in the High Court.  Matters

proceeded in the U.S. District Court with only one notable incident: early on,

it seems Alves’ request for a $2 million bond was denied.  In any event, a trial date is set for

September 30, 2003.

 

Otherwise, after Alves filed his claim in this Court, no further action

was taken until September 13, 2002, when Alves had the M/V Koorale

arrested.  The basis for the arrest was

the same incident that gave rise to Alves’ in personam suit in

California.  Had the M/V Koorale been

arrested in any other State or Territory that has a U.S. District Court, then,

under 25 U.S.C. § 1404 (a), the in rem

court could have transferred the case to California so that the in rem and

in personam claims could be

heard together.  See Schoenbaum, Practitioner Treatise, § 21-10.  But, as noted, we are not empowered to order

a 1404(a) transfer.

 

The last time the possibility of a transfer was before

us, the in rem suit was barred by the statute of limitations, and thus,

having found we lacked the power to transfer the action, the suit was

dismissed.  See The Vessel Pac. Princess, 2 A.S.R.2d at 21.  This

time, however, the case is not time barred and we are forced to hear it, even

though similar proceedings are ongoing in California.  As far as we can tell, this is the first time

such a situation has arisen, but, if the conduct of the parties is any

indication, there is no guarantee that it will be the last.

 

Indeed, the situation could have been prevented had the parties, acting

through their lawyers, chosen a more civil, efficiency-oriented approach. The

parties could have reached a settlement, either dismissing the case outright

or, at least, agreeing to certain procedures that would avoid litigation in two

courts.[2]  Instead, the parties seem more interested in

accumulating litigation costs and attorney’s fees, having already filled up two

accordion folders with paper before even reaching discovery.  Neither side is absolved from blame and their

burdens are their own doing.

 

Others are equally burdened but, however, wholly blameless—namely, local

merchants and this Court.  Two motions

exemplify these burdens.  Firstly,

Southwest Marine, Inc., (“SWM”), a local shipyard owner, has sought to

intervene in the action for payment arising out of services they say they

provided to the substitute custodian while the vessel was under arrest.  See

Order On Motion To Intervene, June 17, 2003.[3]  Secondly, in the motion before us, Alves is

asking us to postpone setting a trial date to await the outcome of the trial in

the California District Court in September.

 

Discussion

 

The problem of parallel litigation arises from time to time in the

federal system.  No clear test, however,

has emerged.  See generally Evergreen

Marine Corp. v. Welgrow Int’l Inc., 954 F. Supp. 101 (S.D.N.Y. 1997); Superior Sav. Ass’n v. Bank of Dallas, 705 F. Supp 326 (N.D.Tex 1989); Bamdad Mech. Co. v.

United Techs. Corp., 109

F.R.D. 128 (D.Del. 1985).  But even if

there were a clear way to

resolve this dilemma at the federal

level, such a test would be anomalous in this case.

 

This suit portrays an abuse by the plaintiff of a stark wanting in the

High Court’s admiralty jurisdiction, as it interplays with admiralty litigation

generally in the United States.  Thus,

any consideration of a stay that only takes into account the familiar

considerations of judicial efficiency or convenience of the parties has serious

shortcomings in this specific instance. 

Instead, we must be wary of the forum manipulation at play here, and

strive to assure that it is not repeated. 

Until and unless Congress acts to provide for a U.S. District Court for

American Samoa, or otherwise appropriately empower the High Court in its

national scheme of admiralty adjudication, we cannot sit idly by and let

litigants use this Court as a pawn in trial tactics.

 

Alves proffers two reasons in support of staying the suit in deference to

the California trial: 1) to prevent a waste of judicial resources, and 2) that

the pleadings are not yet finished.  As

noted, normally, judicial efficiency is a paramount consideration in exercising

this Court’s inherent discretionary powers to stay a proceeding.  See Evergreen, 954 F. Supp. at 103. 

But we find that Alves’ reasoning is disingenuous.

 

Alves is not concerned with expending resources.  At oral arguments, counsel stated that if the

case proceeded here, “these witnesses are still going to testify, and they’re still

going to get paid, and the attorneys are still going to get paid.”  But, because of the possibility of res

judicata,[4]

Alves’ preference is to proceed with the case in California because, in

his lawyer’s own words, “[The High Court] tends to give lower damages for pain

and suffering than what someone gives in the Mainland.”  When pressed he submitted, “they’ve [the

defense] got an advantage [here in American Samoa].”

 

Here, we see conceptual problems with plaintiff’s tactic.  While plaintiff has filed in American Samoa,

bringing into play economic consequences to the Territory, he apparently has no

intention whatsoever to litigate his rights in American Samoa—since he

obviously feels that his chances for a greater damages award are better before

a California jury.[5]  Thus, the whole point to plaintiff’s suit

here is simply to utilize the High Court as collection forum for a potentia1

in personarn judgment out of California, since there is no procedure in

place at law whereby the High Court could insist on a transfer of all

proceedings against the vessel to American Samoa.

 

[7]

This is problematic.  The procedures

governing the arrest of a vessel are more relaxed than the procedural due

process requirements normally required with other pre-judgment seizures of

property, “including effective notice, meaningful judicial review, and a right

to a prompt hearing after the seizure.”  Schoenbaum, Practitioner Treatise at

§ 21-6.  Having failed to meet his burden

to attach any of the defendant’s property or even receive a bond in California,

Alves was able to use the relaxed admiralty procedures and the unique jurisdictional posture of

this Court to get around these due process requirements.

 

On the

other hand, the defendants’ purpose in bringing this motion to set an early

trial date is not lost on us.  While we

understand that the defendants did not choose to be sued here in American

Samoa, they too are quite clearly involved with the same exercise of assessing

the tactical advantages/disadvantages with venue.  Accordingly, they are pressing for a trial

setting in the High Court before the one scheduled in California, to presumably

complicate Alves’ case and to obtain what the parties seem to believe is a

defendant-friendly forum in which to litigate the case.

 

We have

had enough.  Before proceeding any

further with this matter, we desire to be thoroughly briefed on the question of

whether or not this Court should not just formally defer to the Southern

District Court of California by outright dismissal of these proceedings, either

for lack of prosecution, forum non conveniens, and/or any other reason

meriting our discretion.

 

Conclusion

 

We realize

that admiralty litigation in American Samoa can be, at times, murky.  Nonetheless, it will remain a part of the

Territory’s jurisprudential culture for some indefinite time.  Therefore, all parties, and this Court, have

a duty to work with—not against—the procedures in place.  The litigants should not attempt to play the

High Court against a federal court; rather they should endeavor to avoid, to

the extent possible, inflaming the friction inherent with the bringing of an

admiralty suit in American Samoa.  This

Court should also strive to avoid confrontation with our federal counterpart;

but, at the same time, we cannot allow any party to exploit the High Court and

the Territory’s limited resources for their gain.

 

Order

 

On the

foregoing, the following order is entered:

 

Plaintiff’s brief on the issue of

dismissal is due within 30 days of filing hereof.  Defendants have 15 days to reply with an

additional 5 days thereafter for plaintiff to close the argument.

 

It s so ordered.

 

**********



[1] In 1988,

Congress did grant the High Court jurisdiction to enforce a preferred ship

mortgage lien, thus including us in the federal scheme on this narrow

point.  See United Air Lines

Employees’ Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 100 (Trial Div. 1990) (citing 46 U.S.C. §§

31325-25, added by P.L. 100-710). 

However, this grant followed an era that was “fraught with confusion and

uncertainty.”  Id.  Originally, the Trial Division had ruled

that it had no authority to foreclose on a ship’s mortgage.  See Sec. Pac. Bank v. M/V Conquest, 2 A.S.R.2d 40, 42 (Trial Div.

1985).  Upon a motion for

reconsideration, the Trial Division reversed itself.  Id. 

The Appellate Division reversed yet again, reinstating the Trial

Division’s original ruling.  See Star-Kist Samoa, Inc. v. M/V

Conquest, 3 A.S.R.2d 25, 31 (App. Div. 1986).  Finally, left with no choice, on remand the

Trial Division held that it did have the power to foreclose a ship mortgage,

not on account of the Ship Mortgage Act but rather by the general admiralty and

equity jurisdiction of the High Court.  Sec. Pac. Nat’l Bank v. The M/V

Conquest, 4 A.S.R.2d 59,

64-65 (Trial Div. 1987).  Thus, Congress

has acted once to amend an admiralty related statute to include American

Samoa—but even then, the gesture had no substantive effect since we had reached

the same result under the law of equity.

[2] The biggest

obstacle prompting the impasse seems to have been the parties’ inability, or

unwillingness, to agree on a bond amount in the U.S. District Court.  From the record, we note that the Magistrate

refused to order a bond for Alves’ asking price of $2 million.  In this Court, the defendants have argued

from the start that the in rem suit was a pretext to garnering the

bond—and accompanying leverage—that Alves failed to obtain in California.  If true, it only goes to show that minimal

compromise would have spared us the burden of this suit.

[3] Whatever the outcome of this case, whether Alves

prevails or not, either here and/or in California, his tactics have encumbered

local resources.  While the Territory is

normally receptive to an infusion into the local economy, the precarious

outcome of litigating in two forums could result in a trail of unpaid,

disappointed, and litigious merchants.

[4] This theme was evident early on in the proceedings:

Court:            Then

how do we deal with probably inconsistent

      judgment

[in the two cases]?

Attorney:       We

have to deal with it res judicata

collateral

      estoppel.

Court:            First

out the door with a paper judgment?

Attorney:       It’s

almost what it comes down to.  That’s

what the

      case seems.

[5] Jury trials in

civil actions are not available in American Samoa.