In re Kuang Hsing No 127 [1995] FMSC 5; 7 FSM Intrm. 81 (Chk. 1995) (8 March 1995)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as In re Kuang Hsing No. 127[1995] FMSC 5; , 7 FSM Intrm. 81 (Chk. 1995)

IN THE MATTER OF THE FORFEITURE
OF FISHING VESSEL KUANG HSING NO. 127
and ITS CATCH and EQUIPMENT.

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CIVIL ACTION NO. 1994-1032

ORDER

Richard H. Benson
Associate Justice

Decided: March 8, 1995

APPEARANCES:

For the Plaintiff:
Wesley Simina, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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

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HEADNOTES

Jurisdiction
In order to exercise in rem jurisdiction the thing over which jurisdiction is to be exercised (or its substitute, e.g., a bond) must be physically present in the jurisdiction and under the control of the court. In re Kuang Hsing No. 127[1995] FMSC 5; , 7 FSM Intrm. 81, 82 (Chk. 1995).

Admiralty; Jurisdiction
Where in rem jurisdiction over a vessel has not been established and its owner has not been made a party to the action an in rem action that includes a claim against the vessel's owner may be dismissed without prejudice. In re Kuang Hsing No. 127[1995] FMSC 5; , 7 FSM Intrm. 81, 82 (Chk. 1995).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This case came before me on the motion of the defendants filed February 2, 1995 for a dismissal for lack of in rem jurisdiction. The plaintiff, State of Chuuk, in its opposition does not provide a memorandum of points and authorities responsive to the assertion of lack of in rem jurisdiction. This failure constitutes a consent to a granting of the motion. FSM Civ. R. 6(d). Even so I need a proper ground to grant the motion. Senda v. Mid-Pacific Constr. Co, [1994] FMSC 20; 6 FSM Intrm. 440, 442 (App. 1994).

It appears from the record in this case and in an associated case, Civil Case 1994-1014, that the vessel is not now within the Federated States of Micronesia. It also appears that at the time these proceedings were begun in the Chuuk State Supreme Court, the vessel was not seized and under the authority of that court. Nor was it seized after removal to this court. At no time was any security ever deposited with a court as a substitute. In order to exercise in rem jurisdiction the thing over which jurisdiction is to be exercised (or its substitute, e.g., a bond) must be physically present in the jurisdiction and under the control of the court. See, e.g., Republic Nat'l Bank v. United States, [1992] USSC 123; 113 S. Ct. 554, 559[1992] USSC 123; , 121 L. Ed. 2d 474, 483 (1992). Accordingly, the motion to dismiss should be granted.

In its opposition the state argues, "[I]f the Constitution does find that it does not have in rem jurisdiction over the forfeiture of the vessel, its equipment and catch, it still has jurisdiction over the civil penalty claim of the Complaint." This passage refers to the prayer in the complaint which says, "[T]hat the owner of the vessel pay a fine of $75,000.00 for this violation as provided by law." The State then suggests that the "complaint can be amended to simply conform the case caption to the proper subject matters of the complaint."

Paragraph 6 of the complaint alleged that Ting Hong owned and operated the vessel. This was admitted. Paragraph 7 alleged that the owner and operator was responsible for civil penalties. This was denied.

I have concluded that if the state wishes to pursue its claim against the alleged owners it may do so in a new action, and that this action should properly be dismissed. My reasons are as follows:

1. Since the case was filed on or about March 16, 1994, the state has not prosecuted its claims.

2. No motion to amend, which the state's opposition suggests could be done, is before me.

3. The owner is not a party to this action. No summons was ever issued to the owner. The civil penalty claim can only be sought against a "person." Truk S.L. 5-92, § 13(1). No person, only an inanimate object, the vessel, is named as a party in the Complaint.

It is therefore ordered that the in rem action for the forfeiture of the vessel is dismissed without prejudice and that the action for civil penalties is dismissed without prejudice. The trial setting of March 13th is, of course, vacated.

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