Federated States of Micronesia v MT HL Achiever (I) [1995] FMSC 37; 7 FSM Intrm. 221 (Chk. 1995) (30 August 1995)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Federated States of Micronesia v MT HL Achiever (I), [1995] FMSC 37; 7 FSM Intrm. 221 (Chk. 1995)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

M.T. HL ACHIEVER, a Foreign Fuel Tanker
and SKICO LIMITED, a Korean Entity
Defendants.

CIVIL ACTION NO. 1995-1012

ORDER

Richard H. Benson
Associate Justice

Hearing: August 30, 1995
Decided: August 30, 1995

APPEARANCES:

For the Plaintiff:
Carole Rafferty, Esq.
Assistant Attorney General
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant (M.T. HL Achiever):
Kathleen B. Alvarado, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTE

Admiralty; Civil Procedure - Venue
In an admiralty and maritime case for the in rem forfeiture of a vessel, jurisdiction and venue are so interrelated that the government, or its agents, may not move a defendant vessel from the state in which it was arrested where the FSM admiralty venue statute does not anticipate transfer even though the civil rules allow improper venue to be raised as a defense or to be waived. It is unclear what the result of such a move would be. FSM v. M.T. HL Achiever (I), [1995] FMSC 37; 7 FSM Intrm. 221, 222-23 (Chk. 1995).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This case came before me on August 30, 1995 pursuant to notice on the motion of the FSM that the Temporary Restraining Order (TRO) imposed on August 25, 1995 and entered August 28, 1995 be set aside.

The TRO prohibited the FSM from moving the defendant vessel from Chuuk to Pohnpei. Since the arrest within the Chuuk Lagoon in July, the FSM surveillance vessel has been tied to the defendant in order to fulfill the obligation of the national police to retain the defendant in its custody. The FSM wished to move the defendant vessel to Pohnpei in order to reduce shipkeepers' expense and to enable needed repairs to be made to the surveillance vessel.

There is uncontested testimony as to the need for repairs on the FSS Micronesia. There was also testimony showing that alternative methods of maintaining custody were available to the national police. This order does not at all affect the power of the Federated States of Micronesia to move the FSS Micronesia.

I have carefully considered the testimony, the written and oral arguments relative to the motion and have concluded that the motion to set aside should be granted. A principal reason for this is the failure of the vessel to establish that irreparable harm will result to it if the vessel is moved.

Considering the opposition of the FSM as a request for permission from the court to move the vessel, such request is denied.

My reason follows: in this admiralty and maritime case for the in rem forfeiture of the defendant vessel, jurisdiction and venue are so interrelated, and the effect of the proposed move on each is entirely unclear from the presentation before me. See United States v. One Cessna Model 310 R Aircraft, etc., 432 F. Supp. 364 (D.S.C. 1977) noted in footnote 1 at 28 U.S.C.S. § 1395 ) as follows,

In action by government pursuant to 21 USCS § 881 seeking foure of defendefendant aircror allegedly having been used for transportation of marijuana, venue provisions of 28 USCS USCS § 1395 control territorial diction in that they represent effective statutory limitatiitation on District Court's power to hear matter in hand; in this very limsense, 28 USCS § 1395 is juctional in natureature, in that, in in rem proceedingsdings under 28 USCS 1355, section 1395 alone determines where forfeiture proceeding may be properly brought.

Although statutory authority exists in the United States for the transfer of cases from one district or division to another, 28 U.S.C. § 140 it is "doubtful" that shat such authority extends to in rem proceedings. 2 Am. Jur. 2d Admiralty § 173, at 817 (1962). In the the FSM dmiralty venue statute does not anticipate transfer. 6 F.S. F.S.M.C. 302. Thus the possibility of transfer, from what has been shown, not exist. (That improper venue can be raised as a defensefense and can be waived, Rule 12(b) and (h) of the FSM Rules of Civil Procedure, has no bearing on the problem before me and it is doubtful that it applies at all to proceedings in rem.)

It is therefore ordered

1. that the Temporary Restraining Order is vacated and set aside, and

2. that the Federated States of Micronesia, or its agents, are not to move the defendant vessel from Chuuk State without an order of the court.

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