JOAO ALVES, Plaintiff,
M/V KOORALE, her engines, tackle, bunkers,
appurtenances in rem, Defendant.
M & F FISHING, Plaintiff-in-Intervention,
High Court of American Samoa
 The Constitution of the United
States explicitly grants the federal judiciary the power over “all cases of
admiralty and maritime jurisdiction.”
 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.
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.
 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.
 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.
 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.”
 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.
For Plaintiff, William H. Reardon
For Defendant and Plaintiff-in-Intervention, Jeffrey
ORDER ON MOTION TO SET
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.
The Trouble with Admiralty Law in American Samoa
 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
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.
 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
[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
Specific Discrepancies in Jurisdiction
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
 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.
What Can be Done?
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.
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.
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. 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. 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.
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
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. 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.
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.
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.
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.
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.
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.
 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.
 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.
 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.
 This theme was evident early on in the proceedings:
how do we deal with probably inconsistent
[in the two cases]?
have to deal with it res judicata
out the door with a paper judgment?
almost what it comes down to. That’s
 Jury trials in
civil actions are not available in American Samoa.