FSM SUPREME COURT TRIAL DIVISION

Cite as People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403 (Yap 2006)

[14 FSM Intrm. 403]

THE PEOPLE OF THE MUNICIPALITIES OF RULL AND

GILMAN, YAP STATE, by and through CHIEF

ANDREW RUEPONG, CHIEF THOMAS FALGNIN

and CHIEF JAMES LIMAR,

Plaintiffs,

vs.

M/V KYOWA VIOLET (O.N. 15005-85-CH), its

engines, masts, bowsprit, boats, anchors, chains,

cable, rigging, apparel, furniture, and all other

necessaries thereunto pertaining;

In Rem Defendant,

KYOWA SHIPPING CO., LTD., PACIFIC LINE

TRADING INC. (PANAMA), and TORITEC CO. LTD.,

In Personam Defendants.

CIVIL ACTION NO. 2003-3002

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Dennis Yamase

Associate Justice

Trial: November 15-23, 2004, August 10, 2005, and October 5, 2005

Decided: September 21, 2006

APPEARANCES:

For the Plaintiffs:   Daniel J. Berman, Esq.

                                Berman O’Connor Mann & Shklov

                                111 Chalan Santo Papa, Suite 503

                                 Hagatna, Guam   96910

                                 James P. Walsh, Esq. (pro hac vice)

                                 Davis Wright Tremaine LLP

                                 One Embarcadero Center, Suite 600

                                 San Francisco, CA   94111

For the Defendants:   David Ledger, Esq. (pro hac vice)

                                     Stephen C. Smith, Esq. (pro hac vice)

                                     Carlsmith Ball LLP

                                     134 West Soledad Avenue, Suite 401

                                      P.O. Box BF

                                      Hagatna, Guam   96932-5027

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HEADNOTES

Admiralty; Jurisdiction ) Exclusive FSM Supreme Court

    The FSM Supreme Court has exclusive and original subject matter jurisdiction over a case in admiralty. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 414 (Yap 2006).

Admiralty; Jurisdiction ) In Rem

    In generally accepted admiralty practice, a letter of undertaking becomes the substitute res for a vessel in lieu of the vessel’s seizure, providing the court with in rem subject matter jurisdiction. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 414 (Yap 2006).

Jurisdiction ) Personal

    The court has personal jurisdiction over a vessel’s owner, charter, and manager, as each did business in the State of Yap with regard to the vessel’s operation. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 414 (Yap 2006).

Constitutional Law ) Case or Dispute ) Standing

    A party has standing to sue when that party has a sufficient stake or interest in an otherwise justiciable controversy to obtain judicial resolution of that controversy. The implied requirement that a party have standing is interpreted so as to implement the objectives of the constitutional case or dispute requirement. Standing exists when a party has a direct pecuniary interest in the litigation’s outcome. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 414 (Yap 2006).

Constitutional Law ) Yap; Property ) Tidelands

    The Yap Constitution provides that the state recognizes traditional rights and ownership of natural resources and areas within the marine space of the State within 12 miles from island baselines and Yap statutory law provides that traditionally recognized fishing rights wherever located within the State Fishery Zone and internal waters must be preserved and respected and also preserves existing private rights of action for civil damages, for damage to coral reefs, seagrass areas, and mangroves. Thus 67 TTC 2 is no longer Yap state law. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 414 (Yap 2006).

Custom and Tradition ) Yap; Property ) Tidelands

    Under Yap traditional rights and ownership of natural resources and marine areas inside the Yap fringing reef ) the rights to use and exploit, to the exclusion of all others, the marine resources of particular areas of the submerged lands inside the fringing reef around Yap ) stem from a concept called a tabinaw. A tabinaw entails rights, duties and obligations for its members, and includes families and households. But a tabinaw is more than a concept. A tabinaw includes an estate in identifiable land and specific areas within the Yap fringing reef within which a tabinaw member can exploit the marine resources. A tabinaw member can only exploit marine resources in the marine area that appertains to his tabinaw. Each village includes a number of tabinaw. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 415 (Yap 2006).

Civil Procedure ) Class Actions

    If the court decides that the class suggested or described in the complaint does not meet the minimum standards of definiteness, the trial court has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 415 n.1 (Yap 2006).

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Civil Procedure ) Class Actions; Constitutional Law ) Case or Dispute ) Standing

    When the plaintiffs "own" the natural resources through the tabinaw, the plaintiffs’ exclusive rights to use and exploit the marine resources of the area affected by a grounding and subsequent oil spill give them standing to maintain a class action with respect to the issues at trial ) damages to the marine resources from the grounding and oil spill. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 415 (Yap 2006).

Admiralty; Torts

    General maritime law has long recognized causes of action in maritime tort for damages resulting from groundings and oil spills. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 415 (Yap 2006).

Admiralty; Environmental Protection

    A cause of action exists in admiralty and maritime law for recovery of damages for oil contamination of wildlife and other natural resources in the marine environment. The type of injury includes both physical loss or injury, such as due to the grounding on the reef, as well as loss of use, either because of a government ban or because there has been a diminution of the resources because of oil contamination. Maritime nations generally recognize that parties injured by an oil spill should recover their damages, as the polluter must pay. Such a cause of action is available under the general admiralty and maritime law of the Federated States of Micronesia. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 416 (Yap 2006).

Admiralty; Torts ) Negligence

    The elements of a maritime negligence cause of action are four: 1) existence of a duty requiring a person to conform to a certain standard of conduct in order to protect others against unreasonable risks; 2) breach of that duty by engaging in conduct that falls below the standard of conduct, which is usually called "negligence"; 3) a reasonably close causal connection between the unreasonable conduct and any resulting injury, often referred to as "proximate cause"; and 4) actual loss, injury or damage to another party. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 416 (Yap 2006).

Admiralty; Torts ) Nuisance

    Causes of action for public and private nuisance are recognized in admiralty law, borrowing from traditional common law principles. Admiralty courts look to general sources of the common law for guidance, such as the Restatement (Second) of Torts. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 416 (Yap 2006).

Environmental Protection; Torts ) Nuisance

    Nuisance law is frequently used to address liability in environmental contamination cases. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 416 (Yap 2006).

Torts ) Nuisance

    A nuisance is a substantial interference with the use and enjoyment of another’s land resulting from intentional and unreasonable conduct, or caused unintentionally by negligent or reckless conduct, or the performance of an abnormally dangerous activity. A substantial interference is actual, material, physical discomfort, material annoyance, inconvenience, discomfort, or hurt, or significant harm, that affects the health, comfort, or property of those who live nearby. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 416 (Yap 2006).

Torts ) Nuisance

    A private nuisance is a non-possessory invasion of another’s interest in the use and enjoyment

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of land. A public nuisance involves an unreasonable interference with a right common to the general public. A nuisance can be both a public and a private nuisance. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 416 (Yap 2006).

Torts ) Damages; Torts ) Nuisance

    To obtain damages in a nuisance action, a person pursuing a private cause of action must have suffered significant harm. To maintain a damage action for public nuisance, a person must have suffered damage different in kind from that suffered by the general public. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 417 (Yap 2006).

Property ) Tidelands; Torts ) Nuisance

    When a vessel’s grounding and subsequent oil spill was an unreasonable interference with the interests in the affected marine resources, resulting in significant damage, and resulted in physical injury to the reef and mangroves, and other features of the lagoon environment, a significant harm, and when the plaintiffs have suffered an injury special in kind from other Yap residents because of their traditional ownership and use interests in the particularly affected natural resources, the defendants are thus liable to plaintiffs on the theory of both public and private nuisance since the court considers the interest of the Yapese in exclusive use and exploitation of the submerged lands inside the fringing reef analogous to interests in dry land in other common law countries. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 417 (Yap 2006).

Civil Procedure ) Class Actions; Torts ) Causation

    Causation and damages can appropriately be proven on a class basis when the basis for each resident’s claim is the same: a shared traditional ownership of the right to use the marine natural resources appertaining to the municipalities of which each is resident and each class member is seeking to recover for a trespass or nuisance injury to their shared use right interest and the type of injury is common to all class members, such as inability to use or consume marine resources from the inner lagoon because of the necessary government ban on these and injury to particular resources because of the grounding and oil spill, i.e., the reef and mangrove areas. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 417 (Yap 2006).

Admiralty; Torts ) Causation

    Causation in maritime tort law is similar to the common law causation principle. A defendant’s act or omission must be the proximate cause of the plaintiff’s injury. An injury is proximately caused by an act, or failure to act, whenever it appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 417 (Yap 2006).

Torts

    The general purpose of tort law is to afford a victim compensation for the injuries or damages sustained as the result of another’s unreasonable or socially harmful conduct. In other words, tort law’s purpose is to make the victim whole. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 418 (Yap 2006).

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Torts ) Damages

    Compensatory damages are compensation to make the victim whole again. Compensation for an injury is not doubled just because the plaintiff has two different causes of action on which to base that recovery. Only the injury itself is compensated. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 418 (Yap 2006).

Torts ) Damages

    The plaintiffs must prove their damages to a reasonable certainty. Once the fact of damage is established with reasonable certainty, the amount of damages need only be shown with as much certainty as the tort’s nature and the case’s circumstances permit. In such cases, if it is uncertain and speculative whether damages have been incurred, then damages will be denied; however, if it is only the amount of the damages that presents the uncertainty, then the court will allow recovery so long as there is proof of a reasonable basis from which the amount can be approximated or inferred. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 418 (Yap 2006).

Torts ) Damages; Torts ) Infliction of Emotional Distress

    When there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, there can be no award of damages for mental distress or mental anguish. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 418-19 (Yap 2006).

Civil Procedure ) Class Actions

    When the chiefs have a claim that is not in common with the other class members or a claim within the class claims as the class was certified but is a very different claim, if this claim were permitted, the chiefs would have to pursue it outside the certified class, either as a separate class or individually. Either way, they would then have to be removed as class representatives of, and membership in, the class certified in this action and some other person(s), who could adequately protect the class interests, would then have to be named as class representative(s) and the chiefs would then not be permitted to participate in, or receive, or share any of the damages awarded to the certified class. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 419 (Yap 2006).

Torts ) Damages

    When there was no cultural damage caused by a delay in the transfer of intergenerational knowledge of swimming and other water skills, even if it were possible to obtain money damages for "cultural" damages, which the court does not so hold, there was no cultural injury for which recovery might be sought. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 420 (Yap 2006).

Torts ) Damages

    Inability to access the inner lagoon for bathing and swimming has an economic effect and damages may be awarded for that economic loss. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 420 (Yap 2006).

Environmental Protection; Torts ) Damages

    No offset for sums spent on cleanup can be given since the defendants had a duty to mitigate their damages and a legal duty imposed by Yap law to respond to the oil spill and clean up as much as possible. The oil spill cleanup protected them from greater liability. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 420 (Yap 2006).

Debtors’ and Creditors’ Rights ) Setoff; Torts ) Damages

    Setoff implies that both the plaintiff and defendant have independent causes of action maintainable against the other, while mitigation (of damages) does not involve facts which constitute a cause of action in favor of the defendant, but facts that show that the plaintiff is not entitled to as large an amount as the plaintiff’s showing would otherwise justify. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 420 (Yap 2006).

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Admiralty; Torts ) Damages

    Injured parties in maritime tort cases are typically awarded prejudgment interest. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 420 (Yap 2006).

Judgments; Torts ) Damages

    In those few cases in which the court has awarded prejudgment interest when it was not provided for by contract or statute, the court has always awarded the legal interest rate ) 9% simple interest. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 420-21 (Yap 2006).

Interest and Usury

The legal interest rate is nine per cent per annum simple interest ) not compounded. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 421 n.2 (Yap 2006).

Attorneys’ Fees; Torts ) Damages

    The general rule is that when there is no statutory or contractual basis for a request for attorney fees, each party will normally bear its own attorney’s fees. One exception to this rule is the private attorney general theory. A party seeking attorney’s fees under the private attorney general theory must demonstrate that it has vindicated a right that benefits a large number of people, that the right sought to be enforced required private enforcement, and it must prove that the right is of societal importance. The private attorney general theory applies in the FSM, provided that these criteria are strictly met. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 421 (Yap 2006).

Attorneys’ Fees; Constitutional Law ) Judicial Guidance Clause; Torts ) Damages

    When a class action has vindicated rights that benefit a large number of people; when these rights required private enforcement since the State of Yap was not in the position to vindicate the private rights of the people of Rull and Gilman; when, considering Yapese society’s heavy reliance on the inner lagoon’s marine resources, the rights enforced were of great societal importance; and when Yapese society’s dependence on the resources of the shoreline, inner reefs, and mangrove stands is a salient feature of Yap’s social and geographical configuration; the use of the private attorney general theory conforms to the Constitution’s Judicial Guidance Clause that court decisions are to be consistent with the social and geographical configuration of Micronesia. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 421 (Yap 2006).

Attorneys’ Fees; Torts ) Damages

    The usual method of determining reasonable attorney’s fees awards is based on the fair hourly rate in the locality where the case was tried. Since any attorney’s fees award must be based upon a showing and a judicial finding, that the amount of fees is reasonable, the plaintiffs must therefore submit detailed supporting documentation showing the date, the work done, and the amount of time spent on each service for which a claim for compensation is made. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 421 (Yap 2006).

Environmental Protection

    When the issue of continued monitoring of the marine environment remains unresolved, the court may hold in abeyance its ruling with respect to the monitoring issue and will retain jurisdiction over this issue in the expectation that the parties (and the State) can resolve any differences themselves. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 422 (Yap 2006).

Judgments

    When, although the issue of continued monitoring of the marine environment remains unresolved and the attorney fees and costs award remains to be determined, there is no just cause for delay, and the clerk shall accordingly enter an appropriate judgment forthwith. People of Rull ex rel. Ruepong v.

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M/V Kyowa Violet, 14 FSM Intrm. 403, 422 (Yap 2006).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

     This matter went to trial on November 15 to 23, 2004 in Colonia, Yap. Rebuttal testimony was heard in Yap on August 10, 2005. The parties stipulated to the admission of additional rebuttal testimony by Dr. Norman Duke by deposition and submitted final post-trial memorandums and proposed findings of fact and conclusions of law. Closing arguments were held in Yap on October 5, 2005. The case was then submitted for the court’s decision.

     This admiralty case was brought as a class action by three Yap traditional chiefs, Chiefs Andrew Ruepong, Thomas Falgnin, and James Limar, as representatives of the people of the municipalities of Rull and Gilman. It seeks money damages for an oil spill from the cargo vessel Kyowa Violet after it struck a reef while entering the Tomil Channel in Yap on December 26, 2002. It also seeks attorney’s fees, litigation expenses, including expert fees, and pre-judgment interest from the date of the oil spill until the date of judgment. The defendants are the vessel in rem; and the vessel’s owner, Pacific Line Trading, Inc. of Panama (Pacific Line Trading); the vessel’s charterer, Kyowa Shipping Co., Ltd. (Kyowa Shipping); and the vessel’s manager, Toritec Co., Ltd. (Toritec), each sued in personam. By the parties’ stipulation, the vessel’s captain, Paek Chae Un, was dismissed with prejudice as a party-defendant in this action.

     The court having heard the evidence and statements of counsel, and having carefully reviewed the parties’ post-trial briefs and proposed findings of fact and conclusions of law, now finds and concludes as follows.

FINDINGS OF FACT

I.   The Vessel and the Incident

1.  The Kyowa Violet was a general cargo vessel documented under the laws of Panama, Official Number 15005-85-CH (IMO Number 8513417). The ship was part of the Kyowa Line of vessels. The vessel was a roll-on/roll-off cargo ship of approximately 120 meters in length and 7,337 gross tons.

2.  On December 26, 2002, the Kyowa Violet was making a scheduled call at Colonia, State of Yap, Federated States of Micronesia. The ship’s captain at the time was a Korean national, Paek Chae Un, who had previous experience entering Colonia Harbor. At about 7:30 a.m., as the ship attempted to maneuver into Tomil Channel entering Colonia Harbor just before Buoy No. 1 on the starboard (North) side of the channel entrance, it struck bottom on the reef. The location of the grounding was a point on the reef about a tenth of a mile east of the channel.

3.  The ship hit glancing strikes on five separate areas on the reef and continued navigating into the channel. The glancing strikes caused varying degrees of damage to the coral reef and holed the ship’s bottom.

4.  The weather that morning was clear and the wind breezy, moving to the west/southwest. The ship was navigating close to the North side of the channel so as to keep a distance away from the shallow shoals on the south. The southern shoals can be hazardous due to the north-to-south current

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and the wind. The reefs around the channel entrance were well-marked on the ship’s navigation chart.

5.  Following the initial grounding contact, the ship experienced two other contacts with the reef. After the groundings, the captain made a course correction and continued into the channel toward the inner harbor. During this passage, oil was observed in the water.

6.  When the captain reached a safe turn-around spot in the inner harbor he executed a quick drop-anchor 180-degree turn to navigate back out to open sea. The ship was inside the reef for approximately 30 to 45 minutes. During this passage, oil was observed in the water.

II.   Damage to the Hull and Oil Spill

7.  When the ship reached open seas, the captain continued with emergency and inspection procedures to determine his ship’s condition. It was later determined that the ship’s hull was ruptured by a gash about 27 meters in length, damaging the tanks containing fuel oil. Two fuel tanks were ruptured, #2 center tank and the #3 starboard tank, even though the ship had a double bottom construction. Two other ruptured tanks carried only ballast water.

8.  The captain determined that bunker fuel oil tanks had been holed during the contact with the ocean bottom, and that intermediate grade bunker fuel oil (IFO 180) had escaped into the water. IFO 180 is heavier than diesel fuel, but short of the viscosity of heavier grade marine fuels. This fuel oil does not evaporate immediately upon discharge from a ship’s tanks into the sea. It has moderate persistent characteristics relative to exposure of harmful elements to the marine environment. Due to various circumstances and rough seas, it was not then possible to determine precisely the quantum of IFO 180 that had escaped into the water, or the quantity which would have actually made landfall.

9.  After leaving Colonia Harbor, the ship, continuing to leak fuel oil, maintained position outside the territorial waters of Yap for a week and eventually traveled under its own power to the Republic of Palau, where it arrived on January 11, 2003 and was partially repaired.

III.   Extent of Oil Spill

10.  After escaping the vessel, oil spread out on the surface of the waters of the inner reef and was pushed by the wind in a west/southwesterly direction.

11.  As oil spread out on the surface of the lagoon, it began to come ashore on the shoreline and mangroves along the edge of the water in the municipalities of Rull and Gilman, including the villages of Balebat, Colonia, Madargil, Kanifay, Colina, Musgow, Fiteenidoeng, and Yinuf.

12.  The oil could be observed in various thicknesses as it came into contact with the shoreline and the mangrove areas next to the shoreline and other indented waterways. The oil came ashore in varying quantities, ranging from "heavy," to "moderate," to "light." The entire coastline of the inner reef area from Colonia to the tip of Gilman Municipality peninsula was impacted to some degree by the spilled oil.

IV.   The Cleanup Effort

13.  Once the on-board situation stabilized, the captain made reports to the authorities and the ship owner. On December 26, 2002, the Yap Environmental Protection Agency ("EPA") issued Clean Up Order No. 02-002 to the ship’s owner directing recovery and removal of any spilled product, contaminated water, soil and debris. The EPA also issued a Cease and Desist Order (No. 02-004) to

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prevent further discharges of oil and to keep the ship outside 12 nautical miles of Yap.

14.  Upon receiving advice of the spill, the ship’s owner, Pacific Line Trading, the ship’s manager, Toritec, and charterer, Kyowa Shipping mobilized a cleanup team to Yap. Various contractors also arrived on Yap to organize the effort on the ship’s behalf. Representatives of the ship owner also arrived to assess the damage to the marine and terrestrial environment.

15.  The team brought oil spill cleanup supplies and equipment. Kyowa Shipping, acting in conjunction with the United Kingdom Protection and Indemnity Club (UK P&I Club), mobilized an oil spill clean up task force and shipped clean-up equipment from Guam to Yap. UK P&I Club, on behalf of Kyowa Shipping, also dispatched technical advisors from the International Tanker Owners Pollution Federation (ITOPF) to direct and supervise the cleanup, and to work with Yap State’s Oil Spill Response Task Force and the EPA. ITOPF’s mission is to attend to oil spills on the ship owner’s behalf anywhere in the world.

16.  Not all of the spilled oil could be removed from the marine environment. In particular, extensive cleaning was not possible in the mangrove areas where removal efforts would do substantial or worse damage to the mangroves.

17.  The cleanup effort continued through 2003 and into 2004, after removal of most of the visible oil from where it could be reached along the shoreline. The cleanup officially ended on February 3, 2004 when Kyowa Shipping and the State of Yap executed a Memorandum of Compliance With Clean Up Order No. 02-002.

18.  Kyowa Shipping also implemented and funded monitoring programs by which the condition of the natural resources is assessed at certain intervals. This monitoring work is ongoing and paid for by Kyowa Shipping.

19.  Representatives of the ship owner also paid certain expenses of the Yap State Government associated with the cleanup effort. Kyowa Shipping has paid $76,000 for reef monitoring work, $60,000 for mangrove monitoring, $355,000 to reimburse Yap State’s out-of-pocket expenditures, $130,000 for export of waste oil from Yap, $85,000 for supervision over the disposal of the waste oil, $182,000 for disposal and destruction of the waste oil, and a $25,000 civil penalty to settle the State of Yap’s claims for environmental damage.

V.  Closure of the Inner Reef to Ocean Activities

20.  On December 26, 2002, the EPA, through the Office of the Governor of the State of Yap, issued a public announcement warning the general public to "stop all ocean activities, i.e. swimming, fishing, and other ocean recreation activities along the eastern shore/coastline starting from Keno, Weloy extending southeast to Ayan, Rull up to the Yinuf area." The announcement aired on radio and was posted. The reason given for the announcement was the oil spill from the Kyowa Violet and EPA’s concern about health and safety. The announcement continued for about four days on an emergency basis.

21.  On January 2, 2003, Yap State Governor Vincent A. Figir issued a Declaration of a State of Emergency because of the oil spill by the Kyowa Violet.

22.  On August 6, 2003, the Governor’s Office and EPA made a third announcement. This radio announcement reiterated the previous ban on "swimming, fishing, shelling, and other open water activities especially in the affected coastal water areas in Rull and Gilman municipalities." The EPA

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continued the ban "until further notice from our agency and other government agencies." Pls.’ Ex. F. The number of affected residents was reasonably estimated at about 2,258 for the municipalities of Rull and Gilman. The ban was generally observed. Although it was theoretically possible for the chiefs to ask chiefs in unaffected areas to permit Rull and Gilman people to swim or fish in those areas, it was impractical because if a chief asked for one he had to ask for everyone.

23.  On May 13, 2004, the EPA Board of Directors adopted a resolution to lift the ban and a public announcement was then issued by radio lifting the ban as of May 26, 2004.

VI.  The Resources Damaged by the Grounding and Oil Spill

A.  The Reef at Grounding Points

24.  The Kyowa Violet struck the reef just to the east of the entrance to the channel into Colonia Harbor. Coral was scraped and spilt by the ship striking the reef formation, sending rubble into the nearby coral formations and leaving anti-fouling paint chips and marks on the reef. Anti-fouling paint is toxic to marine life.

25.  In years past, other ships had struck the reef at the entrance to Tomil Channel.

26.  On December 26, 2002, shortly after the grounding, a Division Chief of the Yap State Department of Marine Resources (DMR) had his assistants measure the area of the reef that was impacted by the ship. Based on training protocols provided by the University of Guam, the DMR personnel measured the parameters of the damage and identified the injured corals. Andy Tafleichig estimated the area damaged totaled 1,436 square meters. These calculations were double-checked by DMR and independently assessed by Dr. Robert Richmond, who concurred with the calculations.

27.  The court finds that the damaged portion of the reef totaled about 1436 square meters.

28.  Although the People of Tomil Municipality claim the damaged part of the reef as their own, they do not dispute that people from Rull have some fishing rights to this reef.

B.  The Oiled Mangroves

29.  The mangrove area along the shoreline in the municipalities of Rull and Gilman suffered exposure to the intermediate fuel oil that washed ashore from the ship. The distribution of oil was patchy and varied from heavy to light. Some of the oil was cleaned up, but much of the oil in the roots of the mangroves could not be washed up without severely damaging the mangroves themselves. Residual oil was left on the roots and in the underlying sediment, relying on natural remediation. The harm to the mangroves was heavy in some locations, moderate at other locations, and light at still others.

29.  Dr. Norman Duke undertook a study of the mangroves and in June, 2003 found high levels of oil at the Musgow site, as well as lower levels at five other sites. He concluded that the oil likely came from the Kyowa Violet oil spill.

30.  Dr. Robert Richmond provided estimates that 60,000 square meters of mangroves were injured to some degree. This number was generated from maps showing varying degrees of damage along 8,000 meters of coastline. He then multiplied this number by a mid-point estimate of the band of exposure in the mangrove stand, representing the distance into the stand the oil penetrated through tidal action and other natural processes. Two tides a day spread the oil as it washed on and off the

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mangrove roots. The range of exposure appeared to Dr. Richmond to be between 5 and 10 meters along the water’s edge.

31.  Dr. Richmond found signs of stress in the inner harbor among the organisms he examined in March, 2004. He expressed his opinion that the Kyowa Violet caused damage to the reef and injured the coastal environment, in particular the mangroves.

32.  Oil is a toxic substance that can harm mangroves and that oil may persist in the sediments where mangroves are found for varying periods of time. Mangroves could take from 5 to 30 years to recover depending on the type of oil. Oil exposure makes mangroves more susceptible to typhoon damage.

33.  Dr. Richard Dunford testified that the calculation for damages for harm to the mangroves should account for the fact that not all the mangroves suffered the same ingress of oil, and that no mangroves stopped yielding the natural resource benefits described above. Dr. Dunford testified that the calculations for damages should be as follows: Ten dollars ($10)/square meter for 15,406 square meters of heavily oiled mangroves, five dollars ($5)/square meter for 30,125 square meters of moderately oiled mangroves, and zero dollars ($0)/square meter for 13,313 square meters of lightly oiled mangroves.

34.  The parties’ experts estimates of the total area of oiled mangroves are thus fairly close (the defendants’ estimate totals 58,844 square meters) and the court finds that about 60,000 square meters of mangrove stands were oiled to varying degrees.

C.  Effect on Residents and Decline in Marine Resources

35.  The fishing catch loss has two components: subsistence (portion of catch consumed) and commercial (portion of catch sold for cash).

36.  During the ban on the use of the inner reef in Rull and Gilman, the people of Rull and Gilman were forced to obtain food and subsistence from other sources. Rull and Gilman fisherman no longer had any catch to sell, and, if they did they had no buyers. Previously, they were able to sell fish for $1 to $1.25 a pound. The fishing ban was generally observed.

37.  Once the ban was lifted and use of the inner reef’s resources resumed, the average fish catch was lower by 40-50%. Crab catch declined by 50-80%, and clams were not found.

38.  Dr. Whitelaw estimated the replacement value of three years of lost marine resources catch to be $1,090,285 for the subsistence portion and $82,138 for the commercial portion; total $1,172,423. The defendants estimated that the lost fish harvest totaled $290,000.

39.  The defendants attempted to set up a compensation program for affected fishermen and residents, but there were no applicants. The defendants’ compensation program was discontinued once this lawsuit was filed.

40.  While fish catch may (or may not) be declining due to the change in fishing methods from spearfishing to gillnetting, the court finds that the sudden drop in catch from just before the oil spill to just after the fishing ban was lifted was caused by the Kyowa Violet oil spill.

[14 FSM Intrm. 414]

CONCLUSIONS OF LAW

I.  Jurisdiction

     The court has subject matter jurisdiction over this case in admiralty. FSM Const. art. XI, § 6(a); M/V Hai Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 463 (App. 1996) (FSM Supreme Court trial division has exclusive and original jurisdiction over all maritime and admiralty cases). By stipulation, the defendants lodged with the court a letter of undertaking in the amount of $2.8 million as substitute res in lieu of the vessel’s seizure. In generally accepted admiralty practice, a letter of undertaking becomes the substitute res, providing the court with in rem subject matter jurisdiction. Mackensworth v. S.S. American Merchant, 28 F.3d 246, 252 (2d Cir. 1994). Thus, the court has in rem jurisdiction over the Kyowa Violet.

     The court also has personal jurisdiction over defendants Kyowa Shipping, Toritec, and Pacific Line Trading, as each did business in the State of Yap with regard to the Kyowa Violet’s operation. 4 F.S.M.C. 204(1)(a) and (c). They do not contest the court’s personal jurisdiction over them.

     The parties stipulated that defendants Kyowa Shipping, Toritec, and Pacific Line Trading would be liable, jointly and severally, for any damages shown by the evidence to have been caused by the grounding of, and oil spill from, the Kyowa Violet on December 26, 2002.

II.  Standing

     On September 14, 2004, the defendants filed their motion for partial summary judgment, which the plaintiffs opposed on October 11, 2004, and to which opposition the defendants replied on October 26, 2004 and also filed that day a motion to dismiss. Ruling on the motion was deferred to after trial. Those motions contended that the plaintiffs had no standing to sue (and therefore the court lacked subject matter jurisdiction) for damages because the State of Yap owns the reef and the marine natural resources and that only the State, as the public trustee, could sue for damage to Yap marine natural resources, and that, even if the plaintiffs had standing to sue, certain damages claims are not recoverable. Those damages claims will be addressed under damages, infra. The standing issue will be addressed here.

     A party has standing to sue when that party has a sufficient stake or interest in an otherwise justiciable controversy to obtain judicial resolution of that controversy. The implied requirement that a party have standing is interpreted so as to implement the objectives of the constitutional case or dispute requirement. FSM v. Udot Municipality, 12 FSM Intrm. 29, 40 (App. 2003). Standing exists where a party has a direct pecuniary interest in the litigation’s outcome. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 669 (App. 1996).

     For the proposition that the plaintiffs have no standing to sue, the defendants rely on Pohnpei v. KSVI No. 3, 10 FSM Intrm. 53 (Pon. 2001) and 67 TTC 2. However, KSVI No.3 was decided as a matter of Pohnpei state law since 67 TTC 2 was still Pohnpei state law. But 67 TTC 2 is not (that is, it is no longer) Yap state law. The Yap Constitution provides that "[t]he State recognizes traditional rights and ownership of natural resources and areas within the marine space of the State within 12 miles from island baselines." Yap Const. art. XIII, § 5. Yap statutory law provides that "[t]raditionally recognized fishing rights wherever located within the State Fishery Zone and internal waters shall be preserved and respected." 18 Y.S.C. § 207. It also preserves "existing private rights of action for civil damages," 18 Y.S.C. § 402(c), for damage to coral reefs, seagrass areas, and mangroves. Thus 67 TTC 2 has been superseded in Yap by other state constitutional and statutory provisions and Yap state law recognizes private rights of action for damage to coral reefs, seagrass areas, and mangroves.

[14 FSM Intrm. 415]

     Under Yap traditional rights and ownership of natural resources and marine areas inside the Yap fringing reef ) the rights to use and exploit, to the exclusion of all others, the marine resources of particular areas of the submerged lands inside the fringing reef around Yap ) stem from a concept called a tabinaw. A tabinaw entails rights, duties and obligations for its members, and includes families and households. But a tabinaw is more than a concept. A tabinaw includes an estate in identifiable land and specific areas within the Yap fringing reef within which a tabinaw member can exploit the marine resources. (For instance, the tabinaw estate of Man’ol in Rull, owns the fishing rights that connect to the reef where the Kyowa Violet grounded.) A tabinaw member can only exploit marine resources in the marine area that appertains to his tabinaw. Each village includes a number of tabinaw.

     The class, which the plaintiffs asked the court to certify (and which the court did certify) was defined (as the plaintiffs requested) as:

All residents of Rull and Gilman municipalities who were unable to use the natural resources appertaining to these municipalities following the oil spill from the M/V Kyowa Violet on December 26, 2002, and who, by tradition own the natural resources affected by this oil spill in common with other residents, including but not limited to the reef, the water column, the fish and other marine life, the mangrove groves, and any other affected resources.

People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 196 (Yap 2003). By "own the natural resources" the court understands this to mean own the right to use or exploit the natural resources to the exclusion of others. With this understanding, the court reaffirms its earlier ruling certifying the class in this case. The court therefore concludes that the plaintiffs ) the people of Rull and Gilman ) "own" the natural resources through the tabinaw. The plaintiffs’ exclusive rights to use and exploit the marine resources of the area affected by the Kyowa Violet’s grounding and subsequent oil spill give them standing to maintain this class action, as the class defined above. The plaintiffs have thus presented sufficient evidence to satisfy the class action requirements or FSM Civil Procedure Rule 23 with respect to the issues at trial. Saret v. Chuuk, 10 FSM Intrm. 320, 321-22 (Chk. 2001); see also People of Satawal ex rel. Ramoloilug v. Mina Maru No. 3, 10 FSM Intrm. 337, 338 (Yap 2001).

III.  Maritime Tort

     The plaintiffs seek compensation for damages for two distinct types of damage to their interests. First, they seek compensation for physical injury to the reef structure and resources struck by the Kyowa Violet. Plaintiffs assert that the reef is subject to the traditional ownership and use by the residents of the municipalities of Rull and Gilman. Second, they seek compensation for the oil spill, including the inability to use the resources of the inner lagoon for fishing, swimming, and related activities, as well as for injuries to the natural resources themselves. These natural resources include the marine fishery resources, the mangroves, the reef and other elements of the marine environment that belong and appertain to the residents of the municipalities of Rull and Gilman based on traditional ownership and use.

     General maritime law has long recognized causes of action in maritime tort for damages resulting from groundings and oil spills. See, e.g., Slaven v. American Trading Transp. Co., 146 F.3d 1066,

[14 FSM Intrm. 416]

1067 (9th Cir. 1998). In Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 652 (1st Cir. 1980), the court held that a cause of action in maritime tort was available for oil spill damage to the marine environment. The court recognized that an owner of real property, whether a public entity or private owner, had a cause of action for loss or injury to that property due to maritime negligence. 628 F.2d at 670. In addition, on principles of public trust under the United States law of natural resources, the Commonwealth of Puerto Rico was found to have standing to "support an action for damages to those resources." Id. at 671. That case involved an oil spill injury to mangrove areas along the coast of Puerto Rico.

     Accordingly, a cause of action exists in admiralty and maritime law for recovery of damages for oil contamination of wildlife and other natural resources in the marine environment. The type of injury includes both physical loss or injury, such as due to the grounding on the reef, as well as loss of use, either because of a government ban or because there has been a diminution of the resources because of oil contamination. Maritime nations generally recognize that parties injured by an oil spill should recover their damages, as the polluter must pay. Such a cause of action is available under the general admiralty and maritime law of the Federated States of Micronesia. See FSM Dev. Bank v. S.S. Thorfin, 4 FSM Intrm. 367, 374 (App. 1990). The defendants do not contest this point. They only contest standing and the amount of damages.

     The elements of a maritime negligence cause of action are four: (1) existence of a duty requiring a person to conform to a certain standard of conduct in order to protect others against unreasonable risks; (2) breach of that duty by engaging in conduct that falls below the standard of conduct, which is usually called "negligence"; (3) a reasonably close causal connection between the unreasonable conduct and any resulting injury, often referred to as "proximate cause"; and (4) actual loss, injury or damage to another party. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-2, at 157 (2d ed. 1994). These elements are met in this case. The Kyowa Violet breached its duty to safely navigate the Tomil Channel into Colonia Harbor and that breach caused the fuel oil spill whose effects damaged the plaintiffs’ marine resources.

IV.  Public and Private Nuisance

     Plaintiffs’ complaint includes a cause of action for public and private nuisance. This cause of action is recognized in admiralty law, borrowing from traditional common law principles. Nissan Motor Corp. v. Maryland Shipbuilding & Drydock, Co., 544 F. Supp. 1104, 1111 (D. Md. 1982). Admiralty courts look to general sources of the common law for guidance, such as the Restatement (Second) of Torts. 544 F. Supp. at 1111; Marastro Compania Naviera, S.A. v. Canadian Maritime Carriers, Ltd., 959 F.2d 49, 53 (5th Cir. 1992) (maritime law to be guided by traditional common tort laws where appropriate). Nuisance law is frequently used to address liability in environmental contamination cases. Cox v. City of Dallas, 256 F.3d 281, 289, 291 (5th Cir. 2001).

     A nuisance is a substantial interference with the use and enjoyment of another’s land resulting from intentional and unreasonable conduct, or caused unintentionally by negligent or reckless conduct, or the performance of an abnormally dangerous activity. Restatement (Second) of Torts § 822 (1979); see also Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998). A substantial interference is "actual, material, physical discomfort, material annoyance, inconvenience, discomfort, or hurt, or significant harm, that affects the health, comfort, or property of those who live nearby." Nelper, 8 FSM Intrm. at 534 (quoting 58 Am. Jur. 2d Nuisance § 92 (1989). A private nuisance is a non-possessory invasion of another’s interest in the use and enjoyment of land. Restatement (Second) of Torts § 821D (1979). A public nuisance involves an unreasonable interference with a right common to the general public. A nuisance can be both a public and a private nuisance. 256 F.3d at 289.

[14 FSM Intrm. 417]

     To obtain damages in a nuisance action, a person pursuing a private cause of action must have suffered "significant harm." Restatement (Second) of Torts § 821F (1979). To maintain a damage action for public nuisance, a person must have suffered damage different in kind from that suffered by the general public. Id. § 821C(1); Shaughnessy v. PPG Indus., Inc., 795 F. Supp. 193, 196 (W.D. La. 1992); Burgess v. M/V Tamano, 370 F. Supp. 247, 250 & n.2 (D. Me. 1973) (directly affected fishermen may claim for oil spill damages for public nuisance, but indirectly affected businessmen cannot).

     The Kyowa Violet oil spill was an unreasonable interference with the plaintiffs’ interests in the affected marine resources, resulting in significant damage. The grounding and oil spill caused the government to ban use of the inner reef and resulted in physical injury to the reef and mangroves, and other features of the lagoon environment, a significant harm. Plaintiffs have also suffered an injury special in kind from other residents of Yap because of their traditional ownership and use interests in the particularly affected natural resources. The court considers the interest of the Yapese in exclusive use and exploitation of the submerged lands inside the fringing reef analogous to interests in dry land in other common law countries. Accordingly, the defendants are liable to plaintiffs on the theory of both public and private nuisance.

CAUSATION AND DAMAGES

I.  Causation

     Causation and damages can appropriately be proven on a class basis in this case. In re Visa Check/Master Money Antitrust Litig., 280 F.3d 124, 137-39 (2d Cir. 2001); Bertulli v. Independent Ass’n of Cont’l Pilots, 242 F.3d 290, 298 (5th Cir. 2001) (cause of liability common to all class plaintiffs). The basis for each resident’s claim is the same: a shared traditional ownership of the right to use the marine natural resources appertaining to the municipalities of which each is resident. Each class member is seeking to recover for a trespass or nuisance injury to their shared use right interest. The type of injury is common to all class members, such as inability to use or consume marine resources from the inner lagoon because of the necessary government ban on these and injury to particular resources because of the grounding and oil spill, i.e., the reef and mangrove areas.

     Causation in maritime tort law is similar to the common law causation principle. A defendant’s act or omission must be the proximate cause of the plaintiff’s injury. "An injury is proximately caused by an act, or failure to act, whenever it appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission." Fornier v. Petroleum Helicopters, Inc., 665 F. Supp. 483, 486 (E.D. La. 1987) (proximate cause standard generally applicable in maritime tort cases); see also Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348, 353 (Pon. 2001).

     Under any formulation of the causation test, the Kyowa Violet’s improper navigation is the cause-in-fact and proximate cause of: (1) the damage to the reef resulting from the grounding; (2) the closure of the inner reef to fishing, shellfishing, bathing, swimming, and other marine activities; and (3) injury to other marine resources, including the mangrove areas, due to oil contamination. The plaintiffs have met their burden of proving, by a preponderance of the evidence, that the grounding and oil spill caused injury and damage to their interests.

     Since there is no certainty what any tests at that time might have shown, Dr. Richmond’s failure to get the scientific samples of Yap marine life to a testing laboratory in Edinburgh, Scotland five months before the lagoon activity ban was lifted was not a superseding cause with respect to the

[14 FSM Intrm. 418]

State’s closure of Rull and Gilman waters for those five months.

II. Damages

     The general purpose of tort law is to afford a victim compensation for the injuries or damages sustained as the result of another’s unreasonable or socially harmful conduct. In other words, tort law’s purpose is to make the victim whole. Phillip v. Marianas Ins. Co., 12 FSM Intrm. 464, 469 (Pon. 2004); Bank of Guam v. Nukuto, 6 FSM Intrm. 615, 617-18 (Chk. 1994). Compensatory damages are compensation to make the victim whole again. Compensation for an injury is not doubled just because the plaintiff has two different causes of action on which to base that recovery. Only the injury itself is compensated. Moses v. M.V. Sea Chase, 10 FSM Intrm. 45, 50 (Chk. 2001). The plaintiffs must prove their damages to a reasonable certainty. See Phillip, 12 FSM Intrm. at 472. Once the fact of damage is established with reasonable certainty, the amount of damages need only be shown with as much certainty as the tort’s nature and the case’s circumstances permit. In such cases, if it is uncertain and speculative whether damages have been incurred, then damages will be denied; however, if it is only the amount of the damages that presents the uncertainty, then the court will allow recovery so long as there is proof of a reasonable basis from which the amount can be approximated or inferred. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 554 (Pon. 2004).

     Adequate class-wide proof of damages was presented at trial. Cf. In re Ind. Gasoline Antitrust Litig., 79 F.R.D. 552, 562 (D. Md. 1978). First, individual residents of the municipalities of Rull and Gilman presented testimony of the impact of the oil spill on their fishing, eating, and swimming habits. Expert testimony addressed how important fish are to the Yapese. It was well established that everyone in each community relies to some degree on the resources of the inner reef for food, subsistence, and their way of life. Second, the chiefs, in their representative capacity, testified to the impact of the oil spill on their communities. Third, expert testimony attested to the importance of the living resources to Yap residents for their food and unique culture and the integral relationship of the inner reef to their way of life. Fourth, Dr. Edward Whitelaw presented expert testimony on elements of damages to the residents, using accepted methods of economic damage assessment, such as key informant interviews, direct research, and consultation with anthropologists with knowledge of the Yapese people and culture. However, he did not conduct a scientific survey of the Rull and Gilman residents although such a survey was feasible.

A.  Damage to the Reef, Mangroves, and Marine Resources

     The Kyowa Violet’s grounding damaged about 1436 square meters of the reef. The court awards damages of $600 per square meter for that area ) $861,600. The court will award $17 per square meter for 15,406 square meters of heavily oiled mangroves ) $261,902; $12 per square meter for 30,125 square meters of moderately oiled mangroves ) $361,500; and $7 per square meter for 14,469 (the remainder from the 60,000 total) square meters of lightly oiled mangroves ) $101,283, for a total of $724,685 for all the oiled mangroves. The court also awards $1,172,423 damages for the lost marine resources harvest.

B.  Annoyance, Discomfort and Mental Anguish and "Cultural" Damages

     The plaintiffs also seek damages for their fear, annoyance, discomfort, and mental anguish. Included in these claims are what the plaintiffs earlier called cultural damages claims.

1.  Mental Anguish

     There was no evidence that the class as a whole, or any particular class member suffered any

[14 FSM Intrm. 419]

physical injury from the oil spill or that any emotional distress resulted in physical manifestation. When there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, there can be no award of damages for mental distress. See, e.g., Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004). There was thus no evidence of mental anguish. No damages for mental anguish can be awarded.

2.  Chiefs’ Diverted Services

     The plaintiffs also seek $439,916 for what they call "diverted services" damages ) the alleged "value of the services of the chiefs that had to be diverted to dealing with the oil spill away from other community problems." Pls.’ Proposed Findings and Conclusions ¶ 109. (It is unclear whether this claim is limited to the chiefs who are the named plaintiffs and class representatives or includes all chiefs in Rull and Gilman.) For this proposition they rely on In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1310-13 (7th Cir. 1992), in which the appellate court affirmed a damages award for the salaries of the French (national and communal) government employees involved in the oil spill cleanup.

     Amoco Cadiz is not persuasive. In Amoco Cadiz, the shipowner told the French government that it was not able to clean up an oil spill of that size and asked the French government to clean it up and that the shipowner would be responsible for all reasonable costs of reasonable actions to clean up the spill. Id. at 1310. The U.S. district court, applying French law to the damage claim, followed a French statute that made a shipowner financially responsible for the salaries of all French government employees involved in cleaning up an oil spill from that owner’s ship, while those government employees were so engaged. Id. at 1311-14. There is no such statute in the FSM or Yap, that measures civil liability by the government employees’ salaries. The chiefs are also not government employees with salaries to use as a measure of damages and the state government is not a party to this action. Furthermore, the Kyowa Violet’s owner did not ask the chiefs (or the State of Yap) to clean up the oil spill and merely say it would be responsible for the cost. Here, the shipowner organized and paid for the cleanup itself.

     There is a second, very important reason why this claim cannot be allowed. This is not a claim that the chiefs have in common with the other class members or a claim within the class claims as the class was certified. It is a very different claim. If this claim were permitted, the chiefs would have to pursue it outside the certified class, either as a separate class or individually. Either way, they would then have to be removed as class representatives of, and membership in, the class certified in this action. Some other person(s), who could adequately protect the class interests, FSM Civ. R. 23(a)(4), would then have to be named as class representative(s). People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 617 (Yap 2004) (a class representative must be part of the class and possess the same interest and suffer the same injury as the class members; each class, or subclass, must have a named class representative(s) of its own); People of Rull, 12 FSM Intrm. at 199 (same). The chiefs would then not be permitted to participate in, or receive, or share any of the damages awarded to the certified class. The plaintiffs have not sought to take this drastic step. The court will not force it upon them.

     Accordingly, the court cannot award any damages for alleged "diverted services" because these are not claims that are recoverable by the certified class, and, if they had been sought outside the certified class, they would not have been recovered because of the lack of legal entitlement and the paucity of proof.

3.  Loss of Swimming Opportunity and Water Skills

     The plaintiffs seek $419,000 for the loss of the ability to swim in the Lagoon while the ban on

[14 FSM Intrm. 420]

the use of the Rull and Gilman waters was in effect. They calculate this amount by estimating how much it would have cost to build a swimming pool so that the Rull and Gilman people could swim during the ban. No swimming pool was ever built. Nor are there any plans to build one.

     The plaintiffs contend that the loss of access to water for swimming damaged Yapese culture because fathers and grandfathers were unable to teach their children how to swim and other water skills. The plaintiffs’ evidence showed that children were taught to swim at varying ages. Since the Rull and Gilman waters were closed for seventeen months, at worst, children were only delayed in learning to swim or other water skills by seventeen months or less. The court therefore cannot conclude that there was any cultural damage by a delay in the transfer of intergenerational knowledge of swimming and other water skills. So, even if it were possible to obtain money damages for "cultural" damages, which the court does not so hold, there was no cultural injury for which recovery might be sought. If Yapese custom and tradition was resilient enough to survive German and Japanese imperial rule, World War II, and the Trust Territory, it will survive the Kyowa Violet grounding unscathed.

     The court concludes that Rull and Gilman people were damaged by the failure to access their lagoon waters for swimming and bathing. The court therefore awards $191,930 ($85 times the estimated 2,258 population of Rull and Gilman) for this loss. These damages are awarded because the loss of the use of the Rull and Gilman waters for swimming and bathing has an economic effect and damages are awarded for that economic loss. Rull and Gilman people had to either find a substitute for the therapeutic effects of bathing and swimming or do without, and any substitute has an economic cost.

C.  Defendants’ Claimed Offset

     The defendants assert that they should be given credit or an offset for the very substantial sums they paid out to finance the oil spill cleanup. (Since this assertion is not mentioned in the defendants’ proposed findings, they may have abandoned it.) No offset for those sums can be given since the defendants had a duty to mitigate their damages and a legal duty imposed by Yap law to respond to the oil spill and clean up as much as possible. The oil spill cleanup protected them from greater liability. Furthermore, "setoff implies that both the plaintiff and defendant have independent causes of action maintainable against the other, while mitigation does not involve facts which constitute a cause of action in favor of the defendant, but facts that show" that the plaintiff is not entitled to as large an amount as the plaintiff’s showing would otherwise justify. 22 Am. Jur. 2d Damages § 493, at 577 (rev. ed. 1988). Thus no setoff for the defendants’ cleanup costs can be allowed.

D.  Prejudgment Interest

     The plaintiffs contend that the court should add prejudgment interest of 15.3% to this total. The plaintiffs calculate this percentage based on the interest local lending institutions charge for consumer loans. They cite no FSM authority for this proposition. The defendants concede that they are liable for prejudgment interest, but insist that it should be no more than 9%.

     Injured parties in maritime tort cases are typically awarded prejudgment interest. City of Milwaukee v. Cement Div., Nat’l Gypsum Co., 515 U.S. 189, 194-96, 115 S. Ct. 2091, 2095-96, 132 L. Ed. 2d 148, 154-55 (1995). In those few cases in which the court has awarded prejudgment interest when it was not provided for by contract or statute, the court has always awarded the legal

[14 FSM Intrm. 421]

interest rate ) 9% simple interest. See, e.g., Coca-Cola Beverage Co. (Micronesia) v. Edmond, 8 FSM Intrm. 388, 393 (Kos. 1998); Bank of Hawaii v. Air Nauru, 7 FSM Intrm. 651, 653 (Chk. 1996); Nukuto, 6 FSM Intrm. at 616. The court sees no reason to depart from that principle in this case. Prejudgment interest of 9% is therefore applied to the total.

E.  Attorney’s Fees

     The plaintiffs also contend that they should be awarded their attorney’s fees and expenses. The defendants oppose any attorney’s fee award on the ground that the general principle is that the parties bear their own attorney’s fees.

     The general rule is that when there is no statutory or contractual basis for a request for attorney fees, each party will normally bear its own attorney’s fees. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 18 (Yap 1999). One exception to this rule is the private attorney general theory. A party seeking attorney’s fees under the private attorney general theory must demonstrate that it has vindicated a right that benefits a large number of people, that the right sought to be enforced required private enforcement, and it must prove that the right is of societal importance. Udot Municipality, 12 FSM Intrm. at 56. This private attorney general theory applies in the FSM, provided that the criteria are strictly met. Id. at 55.

     The criteria are strictly met in this case. This class action vindicated rights that benefit a large number of people ) the 2,258 people of Rull and Gilman, a considerable portion of the population of the main island of Yap and of the State of Yap. These rights required private enforcement since the State of Yap was not in the position to vindicate the private rights of the people of Rull and Gilman. And, considering Yapese society’s heavy reliance on the inner lagoon’s marine resources, the rights enforced were of great societal importance. Yapese society’s dependence on the resources of the shoreline, inner reefs, and mangrove stands is a salient feature of Yap’s social and geographical configuration. Use of the private attorney general theory in this case thus conforms to the Constitution’s Judicial Guidance Clause. FSM Const. art. XI, § 11 (court decisions are to be consistent with the social and geographical configuration of Micronesia). The court will therefore award the plaintiffs their reasonable attorney’s fees.

     The usual method of determining reasonable attorney’s fees awards is based on the fair hourly rate in the locality where the case was tried. See, e.g., Tolenoa v. Kosrae, 3 FSM Intrm. 167, 173 (App. 1987); Bank of Guam v. O’Sonis, 9 FSM Intrm. 106, 110 (Chk. 1999), aff’d sub nom., Hartman v. Bank of Guam, 10 FSM Intrm. 89 (App. 2001); Plais v. Panuelo, 5 FSM Intrm. 319, 322 (Pon. 1992). Since any attorney’s fees award must be based upon a showing and a judicial finding, that the amount of fees is reasonable, Bank of the FSM v. Bartolome, 4 FSM Intrm. 182, 184 (Pon. 1990), the plaintiffs must therefore submit detailed supporting documentation showing the date, the work done, and the amount of time spent on each service for which a claim for compensation is made, Bank of Hawaii v. Jack, 4 FSM Intrm. 216, 219 (Pon. 1990); Salik v. U Corp., 4 FSM Intrm. 48, 50-51 (Pon. 1989). The plaintiffs shall have thirty days from the service of these findings and conclusions to file and serve their attorney’s fees and costs request. Both the plaintiffs and the defendants may brief the issue of what is a fair and reasonable fee award for class counsel in actions of this type. The defendants shall have thirty days to respond to the plaintiffs’ detailed fee and costs request, after which the court will issue its award and amend the judgment.

[14 FSM Intrm. 422]

F.  The Monitoring Issue

     The issue of continued monitoring of the marine environment remains unresolved. The defendants agree that continued monitoring of the damaged resources is desirable and have engaged in discussions with Yap state government officials for this purpose. The plaintiffs have asked for money for monitoring as part of their damage claim but concede that the court should not order duplication of what the defendants and the State have agreed to do. Accordingly, the court will hold in abeyance its ruling with respect to the monitoring issue and will retain jurisdiction over this issue in the expectation that the parties (and the State) can resolve any differences themselves. Six months from the entry of these findings, the parties shall file a report, jointly if possible, concerning their progress in resolving this matter.

G.  Judgment, Notice, and Distribution

     Although the monitoring issue remains unresolved and the attorney fees and costs award remains to be determined, there is no just cause for delay. The clerk shall accordingly enter an appropriate judgment forthwith. FSM Civ. R. 54(b).

     In order to publish the court’s award, plaintiffs’ counsel is directed to prepare, for the court’s approval, the necessary public notice, which shall be in English and Yapese. The plaintiffs’ counsel shall also prepare a suitable distribution plan, for which, after appropriate notice, a fairness hearing, FSM Civ. R. 23(d)(2), will be held in due course.

CONCLUSION

     The plaintiff class is awarded $2,950,638 in damages for the damaged reef, oiled mangroves, and lost fisheries and access to swim and bathe, with nine per cent simple interest thereon from December 30, 2002. No damages are awarded for the plaintiffs’ other claims. The plaintiffs are awarded their reasonable attorneys’ fees and costs. The clerk shall enter judgment accordingly. The plaintiffs shall, within thirty days, submit their attorneys’ fees and costs request, to which the defendants shall have thirty days to respond. Plaintiffs’ counsel shall prepare the notice to class members. The court will retain jurisdiction over the monitoring issue and the parties shall report on their progress on this issue within six months.

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Footnotes:

1.   If the court decides that the class suggested or described in the complaint does not meet the minimum standards of definiteness, the trial court has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 618 (Yap 2004).

2.   The legal interest rate is nine per cent per annum simple interest ) not compounded. Aggregate Sys., Inc. v. FSM Dev. Bank, 9 FSM Intrm. 569, 570 (Chk. 2000).

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