[24 FSM R. 461]

CIVIL ACTION NO. 2019-3001

Trial: April 22-23, 2024
Decided: April 24, 2024

APPEARANCES:

For the Plaintiff:              Bethwell O'Sonis, Esq.
                                       Assistant Attorney General
                                       FSM Department of Justice
                                       P.O. Box PS-105
                                       Palikir, Pohnpei FM 96941

For the Defendants:       Stephen V. Finnen, Esq.
                                       P.O. Box 1450
                                       Kolonia, Pohnpei FM 96941

HEADNOTES

Marine Resources – Regulation of

Licensed fishing vessels are required to maintain fish catch logs. FSM v. Luo Maqiang, 24 FSM R. 461, 463 (Yap 2024).

Marine Resources – Regulation of

Statutes – Construction

A common maxim of statutory construction is that the expression of one thing means the exclusion of others. The force of the maxim is strengthened by contrast where a thing is provided in one part of the statute and omitted in another. FSM v. Luo Maqiang, 24 FSM R. 461, 464 (Yap 2024).

Marine Resources – Regulation of – Acts Violating; Statutes – Construction

When one subsection of a statute provides that dead sharks be recorded in the vessel's daily catch report form while another subsection omits any mention of the need to record sharks caught and released alive and whole and allowed to swim away relatively unharmed, the court can only conclude that Congress did not intend to require fishing vessels to record those released sharks in the vessel's daily catch report form, and, although the National Oceanic Resources Management Authority could have prescribed by regulation that this information be reported, it has not done so. FSM v. Luo Maqiang, 24 FSM R. 461, 464 & n.2 (Yap 2024).

Evidence – Burden of Proof

A litigant is not required to produce the best evidence possible. A litigant need only produce enough evidence to meet its burden of proof. FSM v. Luo Maqiang, 24 FSM R. 461, 464-65 (Yap 2024).

Marine Resources – Regulation of – Acts Violating

When uncontroverted eyewitness testimony was sufficient to satisfy the FSM's burden to prove by a preponderance of the evidence that a wahoo was present on the vessel and that it was listed in the inventory of the contents of the vessel's fish holds; when this wahoo was presumed to have been caught by the vessel within the FSM EEZ; and when the wahoo was a species of fish that was taken by the vessel but which was not recorded in its fish catch log, the defendants are liable to be assessed a penalty for this violation. FSM v. Luo Maqiang, 24 FSM R. 461, 465 (Yap 2024).

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

This fishing violation case was tried on April 22-23, 2024. The court heard testimony from Shirel James, Retson Mariano, and from Hilo Hsueh, the Liancheng Overseas Fishery (Shenzhen) Company, Ltd.'s regional manager. Based on their testimony and on the admitted exhibits, the court makes the following

FINDINGS OF FACT.

1. The Shen Lian Cheng No. 781 was a longline fishing vessel duly licensed to fish in the FSM's Exclusive Economic Zone, and it entered the FSM EEZ and started fishing on September 26, 2019. The Shen Lian Cheng No. 781 fished every day thereafter through October 5, 2019.

2. On October 6, 2019, at about 10 p.m., the FSS Micronesia, as part of a fisheries patrol operation, stopped the Shen Lian Cheng No. 781, and put a boarding party on board to check the vessel's papers and fishing log and the passports of those aboard. FSM national police officer (maritime wing) Shirel James was the executive officer in charge of the boarding party, assisted by officer Retson Mariano.

3. The Shen Lian Cheng No. 781 's captain and first officer were Chinese and the rest of the crew were Indonesian. None of the Shen Lian Cheng No. 781 's crew spoke English and no one in the boarding party spoke Chinese or Indonesian.

4. Communicating through sign language, broken English, and drawing or pointing to pictures and the calendar, the boarding party learned that the Shen Lian Cheng No. 781 had on several previous days caught several sharks while fishing in the FSM EEZ, but had released them. The phrases used were "caught and throw" or "caught and cut," by which was meant that the branch lines on which sharks were caught were cut loose from the main line being hauled in and the sharks were allowed to swim away. The Shen Lian Cheng No. 781 fish catch logs did not record any sharks as having been caught.

5. The national police head office was informed of the situation. The FSS Micronesia was ordered to arrest the Shen Lian Cheng No. 781 and bring it into Yap port, for its failure to report in its catch log the fish (the sharks) it had caught.

6. There, the FSM police unloaded the Shen Lian Cheng No. 781 and conducted an inventory of the fish in its holds. No sharks or shark parts were found. A wahoo was found. No wahoos were listed on the Shen Lian Cheng No. 781's catch log.

7. On October 14, 2019, the FSM filed this case alleging that the defendants had violated 24 F.S.M.C. 115 because the Shen Lian Cheng No. 781 catch log had failed to record one shark the Shen Lian Cheng No. 781 had caught (First Cause of Action) and because the catch log did not record the one wahoo it had caught (Second Cause of Action).¹ The FSM seeks damages of $100,000 for each count, total $200,000.

Based on the above facts the court makes the following

CONCLUSIONS OF LAW.

A. Failure to Record in Catch Log

The applicable statute requiring licensed fishing vessels to maintain a catch log is 24 F.S.M.C. 115. In pertinent part, that statute requires that each fishing boat operator

shall:

(a) at all times while the vessel is in the exclusive economic zone, cause to be maintained in the English language, in ink, a fishing log in a form supplied or approved by the Authority, and shall enter the following information relating to the activities of the vessel on a daily basis:

. . . .

(iii) the species of fish taken and the size and quantity of each species by weight or number as may be specified in the form;

(iv) the species of fish returned from the vessel to the sea, the reason for discard, the quantity of each species by weight or number as may be specified in the form; and

(v) such other information as the Authority may require or prescribe by regulation, or as may be required by an applicable access agreement or fisheries management agreement;

24 F.S.M.C. 115(1).

B. Caught (and Released) Sharks (Count 1)

The defendants contend that the statute does not require that the sharks that are caught on a fishing vessel's hooks but released by cutting the branch line and allowing them to swim away be recorded in their catch log and they point out that there does not seem to be a place on the FSM-approved catch log forms to record such information. They state that their vessels would have complied with such a requirement if they had been informed that there was a requirement to report sharks released to swim away before the shark was landed, but they had never been given notice that that was required. The defendants further argue that, since the statute says "species of fish returned from the vessel to the sea," 24 F.S.M.C. 115(1)(a)(iv), and since the sharks that the Shen Lian Cheng No. 781 caught never left the sea and were never on the vessel, the sharks were not "returned" to the sea and therefore 24 F.S.M.C. 115(1)(a)(iv) does not apply.

The FSM contends this became a requirement to report when Public Law No. 19-36 was enacted and that the defendants were aware of that law and given notice of it. The relevant parts of that public law provide that:

All sharks caught by a fishing vessel shall be either: (a) if still alive, immediately released back into the ocean. Fishing vessels must ensure that sharks are released whole, and that sharks are not unnecessarily harmed during the release process; or (b) if dead, may either be landed at a transshipment port in the Federated States of Micronesia, recorded in the daily catch report form for the vessel and discarded. Fishing vessels must ensure that sharks are landed whole with all shark fins attached to the carcass. Any sharks caught as by catch should be handled in the above manner.

FSM Pub. L. No. 19-36, § 2(4), 19th Cong., 2d Reg. Sess. (2015) (to be codified at 24 F.S.M.C. 913(4)).

"A common maxim of statutory construction is that the expression of one thing means the exclusion of others." FSM Dev. Bank v. Tropical Waters Kosrae, Inc., 18 FSM R. 378, 380 (Kos. 2012) (statute that mandates a case-by-case approval for renegotiating the financing terms of FDA loans but does not include the same mandate for collecting FDA loans, means that the bank is not required to obtain specific authority to collect on a FDA loan); See also Pacific Coast Enterprises v. Chuuk, 9 FSM R. 543, 547 (Chk. S. Ct. Tr. 2000) (act that listed 23 different prohibited gaming devices but made no mention whatsoever of poker machines in that list meant that the legislature excluded such machines from the law's application). "The force of the maxim is strengthened by contrast where a thing is provided in one part of the statute and omitted in another." 2A C. DALLAS SANDS, SUTHERLAND STATUTORY CONSTRUCTION § 47.23 (4th ed. 1973) (interpreting the same maxim relied on in FSM Dev. Bank v. Tropical Waters Kosrae, Inc.).

In this case, § 2(4)(b) (to be codified at 24 F.S.M.C. 913(4)(b)) provides that dead sharks be "recorded in the daily catch report form for the vessel" while § 2(4)(a) (to be codified at 24 F.S.M.C. 913(4)(a)) omits any mention of the need to record sharks caught and released alive and whole and allowed to swim away relatively unharmed. Applying this maxim of statutory construction, the court can only conclude that Congress did not intend to require fishing vessels to record those released sharks in the vessel's daily catch report form.²

Accordingly, 24 F.S.M.C. 115(1)(a) was not violated when the Shen Lian Cheng No. 781 did not record in its catch log the sharks it caught and then released alive by cutting the branch lines off. The defendants are therefore not liable on Count 1.

C. Unrecorded Wahoo (Count 2)

The defendants contend that the FSM did not meet its burden of proof that the Shen Lian Cheng No. 781 had an unrecorded wahoo aboard because the FSM did not produce any photographs of the of the wahoo or provide a copy of the inventory listing the wahoo as present in the Shen Lian Cheng No. 781's fish hold. This is an argument that the FSM could have produced better evidence or that the evidence it did produce was not the best evidence the FSM could have produced. A litigant is not required to produce the best evidence possible. A litigant need only produce enough evidence to meet its burden of proof.

However, the uncontroverted eyewitness testimony of the wahoo's presence was sufficient to satisfy the FSM's burden to prove by a preponderance of the evidence that the wahoo was present on the Shen Lian Cheng No. 781 and that it was listed in the inventory of the contents of the Shen Lian Cheng No. 781's fish holds. This wahoo is presumed to have been caught by the Shen Lian Cheng No. 781 within the FSM EEZ. 24 F.S.M.C. 706(2). The inventoried wahoo was a species of fish that was taken but which was not recorded in the Shen Lian Cheng No. 781's fish catch log. That violated 24 F.S.M.C. 115(1)(a)(iii). The defendants are therefore liable to be assessed a penalty for this violation.

The court concludes that an appropriate penalty for this violation would be $19,750.

CONCLUSION

Accordingly, the defendants did not violate 24 F.S.M.C. 115(1)(a) when the Shen Lian Cheng No. 781's catch log failed to record the live sharks that the vessel had caught but which it had released by cutting off the branch line and allowing them to swim away. The defendants did violate 24 F.S.M.C. 115(1)(a)(iii) when the Shen Lian Cheng No. 781 had possession of a caught wahoo that was not recorded in its catch log. For that violation, the defendants are, jointly and severally, penalized the sum of $19,750.

Footnotes:

¹ The covid pandemic, the backlog it caused, and other scheduling reasons prevented this case from going to trial until April 2024.

² The National Oceanic Resources Management Authority could, of course, have prescribed by regulation that this information be reported, 24 F.S.M.C. 115(1)(a)(v), but it has not done so.