FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kana Maru No. 1, 14 FSM Intrm. 300 (Chk. 2006)

[14 FSM Intrm. 300]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

KANA MARU NO. 1, a fishing vessel, TETUMI

NISHI, TOSHIHIKO IKEMA, and SANKO BUSSAN

COMPANY (GUAM), LIMITED,

Defendants.

CIVIL ACTION NO. 2006-1011

ORDER SETTING BOND FOR VESSELíS RELEASE

Dennis Yamase

Associate Justice

Hearing: July 3, 2006

Decided: July 4, 2006

APPEARANCES:

For the Plaintiff:   Keith J. Peterson, Esq.

                              Assistant Attorney General

                              FSM Department of Justice

                              P.O. Box PS-105

                              Palikir, Pohnpei   FM   96941

For the Defendants:   Roger P. Crouthamel, Esq. (motion)

                                     David Ledger, Esq. (argued)

                                     Carlsmith Ball LLP

                                     134 West Soledad Avenue, Suite 401

                                     P.O. Box BF

                                     Hagatna, Guam   96932-5027

[14 FSM Intrm. 301]

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HEADNOTES

Evidence ) Hearsay

    An FSM police report, if relevant, may be considered in a proceeding to release a vessel when it is not a criminal case, since police reports, as matters observed pursuant to duty imposed by law as to which matters there was a duty to report, are admissible as an exception to the rule that hearsay is generally inadmissible and since a motion for a vesselís release is in the nature of a bond or bail hearing, and the rules of evidence generally do not apply to proceedings with respect to release on bail or otherwise. FSM v. Kana Maru No. 1, 14 FSM Intrm. 300, 302 (Chk. 2006).

Jurisdiction ) In Rem

    When the proceeding against the defendant vessel is an in rem proceeding ) the vesselís forfeiture is sought ) a motion to release the vessel without any bond will be denied because 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 courtís control. FSM v. Kana Maru No. 1, 14 FSM Intrm. 300, 302 (Chk. 2006).

Marine Resources

    When the applicable statute permits the court take into account the possible fishing violation fines, but states that the bond should not exceed the value of the property to be released and when it also provides that notwithstanding that provision, the amount determined by the court for a bond must not be less than the fair market value of the property to be released or the aggregate minimum fine for each offense charged, whichever is greater, Congress has left the court no choice but to set the vesselís bond at the aggregate minimum fine when this exceeds the vesselís value. FSM v. Kana Maru No. 1, 14 FSM Intrm. 300, 302 (Chk. 2006).

Marine Resources

    The statutory use of the phrase "offense charged," for fishing violations, while usually indicative of a criminal prosecution and not a civil suit (in civil cases, violations are alleged, not offenses charged), appears to be intended to cover both civil and criminal violations. FSM v. Kana Maru No. 1, 14 FSM Intrm. 300, 302 (Chk. 2006).

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COURTíS OPINION

DENNIS K. YAMASE, Associate Justice:

    The defendantsí Motion to Release Vessel was heard on July 3, 2006. The motion asks that the arrested vessel, the Kana Maru No. 1, be released without any bond. Alternatively, if the court denies that request, the defendants ask that a bond be set for the vesselís release in the range of $45,000 to $50,000, the vesselís value as stated in sworn declaration of Tetsuo Okubo, defendant Sanko Bussan Co. (Guam) Ltd.ís general manager. The defendants further ask that the court not consider the police report that the plaintiff refers to in its opposition to the release motion on the ground that the report is hearsay and only admissible evidence should be used to decide the motion. The government asks for forty-eight hours to provide its own declaration of the vesselís value.

[14 FSM Intrm. 302]

I.

    Although hearsay, the FSM police report, if relevant, may be considered in this proceeding. Since this is not a criminal case, police reports, as "matters observed pursuant to duty imposed by law as to which matters there was a duty to report," are admissible as an exception to the rule that hearsay is generally inadmissible. FSM Evid. R. 803(8)(B). Furthermore, this motion is in the nature of a bond or bail hearing, and the rules of evidence generally do not apply to "proceedings with respect to release on bail or otherwise." FSM Evid. R. 1101(d)(3). The police report, however, does not appear to be particularly relevant to this motion.

II.

    This motion only concerns the release of the defendant vessel, the Kana Maru No. 1. It does not concern the other defendants. The court concludes that the vessel may be released provided that a bond (cash or irrevocable letter of credit acceptable to the government) is paid into court. The reasons follow.

    The proceeding against defendant Kana Maru No. 1 is an in rem proceeding ) the vesselís forfeiture, pursuant to 24 F.S.M.C. 801(1), is sought. 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 courtís control. In re Kuang Hsing No. 127, 7 FSM Intrm. 81, 82 (Chk. 1995) (citing Republic Natíl Bank v. United States, 506 U.S. 80, 86-87, 113 S. Ct. 554, 559, 121 L. Ed. 2d 474, 483 (1992)). The motion to release the vessel without any bond is therefore denied.

    The government asks that the court take into account the nature of the violations it alleges the defendants have committed and seems to ask the court to require a bond greater than the vesselís value. It asks that the court consider that the aggregate minimum fines in the case would be $180,000. The government would also like forty-eight hours to put on the record its estimation of the Kana Maru No. 1's value as it is unwilling to accept that the Kana Maru No. 1's fair market value is $45,000-50,000.

    This case was filed on May 29, 2006. The vessel was arrested ten days earlier, May 19, 2006. The government has had ample time to have a marine surveyor value the Kana Maru No. 1. It has not done so. The applicable statute permits the court take into account the possible fines, but states that "[I]n no case should the bond exceed the value of the property to be released." FSM Pub. L. No. 12-34, ß 80(2) (to be codified at 24 F.S.M.C. 806(2)). However, the statute also provides that: "Notwithstanding the provisions of subsection (2) of this section, the amount determined by the Court under this section shall not be less than the fair market value of the property to be released or the aggregate minimum fine or penalty for each offense charged, whichever is greater." Id. ß 80(3) (to be codified at 24 F.S.M.C. 806(3)).

    Congress has left the court no choice but to set the bond at $180,000, the aggregate minimum fine of the three violations that the government intends to proceed upon (the government having indicated at the hearing that it would withdraw one alleged violation). (The use of the phrase "offense charged," while usually indicative of a criminal prosecution and not a civil suit (in civil cases, violations are alleged, not offenses charged), appears to be intended to cover both civil and criminal violations. The bond is therefore set at $180,000 (cash or irrevocable letter of credit acceptable to the government) to be paid into court before the vessel may be released.

    The statute further requires that the court set out what portion of the bond is attributable to the property released and what part is attributable to the total likely fines. FSM Pub. L. No. 12-34, ß 80(4)

[14 FSM Intrm. 303]

(to be codified at 24 F.S.M.C. 806(4)). Fifty thousand dollars of the bond is attributable to the vessel to be released and the balance ($130,000) is attributable to possible fines.

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