Series: 7ASR3d | Year: () | 7ASR3d80
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JOAO ALVES, Plaintiff,




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

appurtenances in rem, Defendant.



UNITED STATES OF AMERICA, Plaintiff-in-Intervention,


M/V KOORALE, O.N. 545564, her engines, tackle, bunkers, appurtenances,

etc., in rem, Defendant.


High Court of American Samoa




No. 32-02



13, 2003



[1] In an in rem action, party’s

motion to intervene is unnecessary where party has asserted ownership of the

property at issue and the court has accepted the party’s ownership claim.


[2] While some courts allow the

vessel itself to bring a counterclaim in an in rem action, American

Samoa courts follow the approach permitting a claimant acting on behalf of the

ship to counterclaim.


[3] When the owner asserts his claim

to the ship and assumes the responsibility of the lawsuit by defending it and

putting up a security, for all intents and purposes, he has officially

intervened in the suit.


[4] Counterclaims that arise after the initial pleadings are considered “after acquired” and

can only be asserted by leave of court in exercise of its discretion.


[5] Court will exercise its discretion and allow after-acquired

counterclaims where claims are properly asserted as counterclaims and where

permitting claims would be in the interest of judicial economy and fairness to

avoid multiple litigations. 


Before KRUSE, Chief Justice, MAMEA,

Associate Judge, and TUPUIVAO, Associate Judge.



           For Plaintiff, William H.



Plaintiff-in-Intervention, Barry I. Rose


Defendants, Roy, J.D. Hall, Jr. and Mark

F. Ude






We are presented with yet another

pre-trial motion in the case of the M/V Koorale.  The owner of the boat, M & F Fishing,

Inc. (“M & F Fishing”),

having already entered an appearance on behalf of the Koorale as its claimant,

now seeks to intervene in the case and assert two counterclaims against the

plaintiff.  Additionally, the defendant in

rem, the M/V Koorale, has moved to amend its answer and assert the same two

counterclaims against the plaintiff.  The

odd posture of the motions—that the owner, already involved in the litigation,

is seeking to officially intervene and that the vessel is seeking to assert a

counterclaim—is due to the legal fiction consequent to an admiralty suit in rem

and the fact that the plaintiff has chosen to pursue a separate in personam action

against the owner in a California Federal District Court.


[1] M & F Fishing’s motion to intervene is

unnecessary, yet understandable.  Not

having been sued in personam

in this particular suit, M & F Fishing is seeking to litigate all relevant

claims in one proceeding instead of having to file a separate suit.  Of course, not having been sued in

personam, M & F Fishing seems to think it must first intervene.  It is our opinion, however, that having

already accepted M & F Fishing’s claim of ownership, we have implicitly

allowed it to intervene in the suit: “the claimant is really an actor in the

litigation, an intervener who comes and asks for his property[.]”  See

J.K. Welding Co. v. Gotham

Marine Corporation, 47

F.2d 332, 334 (S.D.N.Y. 1931) (emphasis added).


[2-3] Some courts indulge the legal

fiction of in rem by accepting

the notion that the vessel itself can bring a counterclaim.  See,

e.g., Titan Nav., Inc. v. Timsco,

Inc., 808 F.2d 400, 401 (5th Cir. 1987) (stating that the plaintiff “and

its vessels counterclaimed”).  Other

courts simply make the jump that the claimant, acting on behalf of the ship, is

allowed to counterclaim.  See, e.g.,

Incas and Monterey Printing v. M/V Sang Jin, 747 F.2d 959, 960 (5th

Cir. 1984); Wallin v. Keegan,

426 F.2d 1313, 1313-14 (5th Cir. 1970). 

Because we consider it awkward to allow a “thing” to counterclaim, we

prefer to shed our veil of ignorance and take the second approach.  In our view, when the owner asserts his claim

to the ship and assumes the responsibility of the lawsuit by defending it and

putting up a security, for all intents and purposes, he has officially

intervened in the suit.[1]



We turn then to the vessel’s motion to amend its answer to include two

counterclaims; wrongful arrest and negligence of the substitute custodian.  As stated, because of the unique posture of

this case, the owner, acting on behalf of the vessel—but not the vessel

itself—should be allowed to bring any counterclaims in the form of an amended

answer.  The two counterclaims, having

matured after the initial pleadings, are

considered “after acquired.”  See T.C.R.C.P. 13(e); 6 Charles

Wright et al., Federal Practice and Procedure § 1428 (2d ed. 1990).  The only question for us to resolve is

whether to exercise our discretion and allow the counterclaims asserted. 

See id. (after-acquired

counterclaims can be asserted only by leave of court in exercise of its discretion).


[5] Such claims have been properly asserted as

counterclaims before.  See

State Bank & Trust v. Boat D.J. Griffin, 731 F. Supp.

770, 773-75 (E.D. La. 1990) (wrongful seizure); New River Yachting Ctr., Inc. v. M/V Little Eagle II, 401

F. Supp 132, 133 (S.C. Fla. 1975) (negligence of substitute custodian).[2]  Additionally, it is in the interest of

judicial economy and fairness to avoid multiple litigations.  Therefore, we exercise our discretion and

allow the amendments.


It is so ordered.


[1] The necessity of

such a holding seems to be limited to the unique situations where, as here,

there is no claim in personam and thus no other avenue for the

defendant/claimant/owner to assert a counterclaim.

[2] Plaintiff’s reliance on Incas, 747 F.2d 958, is misplaced.  In that case, the court only dealt with

whether the counterclaim of wrongful arrest was “compulsory” for purposes of

Supplemental Admiralty and Maritime Claims Rule E(7).  Outside of the context of Rule E(7), we

consider that, at the very least, such a counterclaim is permissive.  See

State Bank & Trust, 731

F. Supp. at 775.