FSM SUPREME COURT TRIAL DIVISION
Cite as People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 545 (Yap 2024)
THE PEOPLE OF THE MUNICIPALITY OF TOMIL,
YAP, by and through CHIEFS STEVEN MAR, JOHN
KADANNGED, and JESSE FAIMAW,
Plaintiffs,
vs.
F/V HWA GWO NO. 6, in rem, its engines, masts,
bowsprits, boats, anchors, chains, cables, rigging,
apparel, furniture and all necessaries thereunto
pertaining;
In rem Defendant,
HUANG SHAO CHOU, CAPTAIN CHERN HER TYAN,
and LIANCHENG OVERSEAS FISHERY (FSM) CO.
LTD.,
In Personam Defendants.
CIVIL ACTION NO. 2020-3001
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Larry Wentworth
Associate Justice
Trial: February 6-10, October 9, 2023
Submitted: March 21, 2024
Decided: July 15, 2024
APPEARANCES:
For the Plaintiff:
Daniel J. Berman, Esq.
111 Chalan Santo Papa, Suite 503
Hagatna, Guam 96910
For the Defendant:
Marstella E. Jack, Esq.
(F/V Hwa Gwo No. 6,
P.O. Box 1274
Huang Shao Chou, & Colonia, Yap FM 96943
Capt. Chern Her Tyan)
For the Defendant:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941
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When no evidence was introduced concerning coral restoration costs or damages, the court cannot award any. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 545, 550 (Yap 2024).
When the court has awarded $785 per square meter for reef damaged to the extent that the entire ecosystem in the impact and grounding zone was so adversely affected as to be considered a loss, but the area with intermittent coral damage along a drift path, a blanket award of $785 per square meter of the drift path is inappropriate. A more nuanced approach must be adopted. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 545, 550 (Yap 2024).
Although no statute requires it, injured parties in FSM admiralty and maritime tort cases are typically awarded 9% prejudgment interest when the plaintiff has pled a claim for prejudgment interest, but, in the absence of a statute, any award of prejudgment interest is in the court's discretion. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 545, 551 (Yap 2024).
Interest on the damages caused by a vessel's grounding on a reef would usually start on the day the vessel ran aground and the prejudgment interest for later drift path damages would start on or about when that damage likely occurred and became known. But when, if it were not for the covid-19 pandemic and the resulting travel restrictions, a force beyond any party's control or influence, the case would have gone to trial at least a year earlier than it did, the court will set the dates at which the interest starts accruing one year later than it normally would. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 545, 551 (Yap 2024).
When, in a ship grounding case, it is an abuse of discretion for a trial court to award attorney's fees under the private attorney-general doctrine where the Yap government could not have undertaken any action to vindicate the plaintiffs' rights and when private-citizen plaintiffs are pursuing purely civil claims, such as negligence, against other private citizens, and when no other recognized basis for awarding attorney's fees – contractual, statutory, or an opposing party's vexatious or frivolous behavior – is applicable or apparent, no attorney's fees will be awarded. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 545, 551 (Yap 2024).
Under Rule 54(d), prevailing parties are routinely awarded costs that may be taxable. Class action counsel in common fund cases are entitled to reimbursement for expenses adequately documented and reasonably and appropriately incurred in the prosecution of the class action, and the litigation expenses that may be allowed in such cases are more extensive than the costs routinely taxed and awarded to prevailing parties under Rule 54(d). People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 545, 551 (Yap 2024).
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LARRY WENTWORTH, Associate Justice:
This vessel grounding case is before the court in the following
On the night of September 16-17, 2020, the longliner F/V Hwa Gwo No. 6, a vessel duly licensed to fish in FSM waters, arrived off Yap. Due to heavy rain and low visibility, it remained outside the reef and away from the pilot station, waiting for daylight and an appropriate time to enter the channel and make port. Captain Chern Her Tyan let the vessel drift towards the island (and the pilot station). A crewman was left on deck to monitor the water, weather changes, and any passing vessels. At 2 or 3 a.m., while the captain was below working on the catch log, the Hwa Gwo No. 6 ran hard aground on the reef off Tomil Municipality about three miles north of the harbor entrance. Efforts to get it off the reef were unsuccessful.
On October 13, 2020, the People of the Municipality of Tomil, by and through their Chiefs Steven Mar, John Kadannged, and Jesse Faimaw, filed this suit as a class action against the vessel, its owner (Huang Shao Chou), captain (Chern Her Tyan), and charterer and agent, Liancheng Overseas Fishery (FSM) Co. Ltd. ("Liancheng"), alleging damage to their reef and its resources. They asserted claims for maritime negligence, unseaworthiness, trespass, and nuisance. The Hwa Gwo No. 6 was dismantled and removed in early 2021 after it had substantially shifted position. The court certified the plaintiffs as a class on May 4, 2021. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 23 FSM R. 268, 276 (Yap 2021).
The court, by summary judgment, then determined that the defendants were liable on the maritime negligence, nuisance, and trespass claims. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 23 FSM R. 632, 637 (Yap 2022). Left for trial were the plaintiffs' interest in the damaged reef, the extent and value of those damages, and, if pursued, the plaintiffs' unseaworthiness claim. Id. at 638.
The case was tried on February 6-10, and October 9, 2023.1 The court heard testimony from Jordan Mautaman, Mary Jane Falfen, Ezekiel Ken, Chief Jesse Faimaw, Chief John Kadannged, Anthony Yalon, Thomas Tamangided, James Limar, Chief Steven Mar, Joseph Waayag, Dr. Robert H. Richmond (by video-conference), Francis R. Gilmoon, Hilo Hsueh, and Simon Charles Ellis. After the testimony ended and before the October 9, 2023 closing arguments, the parties tendered, and the court admitted, on motion and after hearing, further expert reports, rebuttals, and affidavits. This was permitted because, due to covid-time travel and entry restrictions, the parties' expert witnesses had been unable to view the reef damage in person until just before the start of trial and each side wanted and needed the ability to address or rebut the other side's expert reports. The court therefore gave the parties more leeway than usual in the order of presentation of evidence. The parties, in open court on October 9, 2023, stipulated to the admission of these supplemental reports without further witness testimony.
During closing arguments on October 9, 2023, the defendants maintained that the class certification had to be modified. Since this had to be resolved before the court could enter a judgment, the defendants were ordered to file a motion or brief on that point. Liancheng filed, with the other defendants' support, a motion to modify class certification. The plaintiffs filed an opposition with supporting affidavits. Liancheng moved to strike the affidavits.
The court heard post-trial motions on February 26, 2024. On March 21, 2024, it issued an order redefining the certified class, People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427 (Yap 2024), which thereby resolved the matter of the plaintiffs' interest in the damaged reef. This case was then considered submitted to the court for decision. Based on the trial testimony and on the admitted exhibits, the court makes the following
1. The F/V Hwa Gwo No. 6 was long line fishing vessel made primarily of fiberglass with a keel 17.60 meters long, an overall length 22.6 meters, a breadth of 4.3 meters, and the depth amidships of 1.85 meters. Its net tonnage was 15.91 tons and it had a gross tonnage of 53.06 tons.
2. On the morning of September 17, 2020, the Hwa Gwo No. 6 was hard aground on the reef crest off Tomil Municipality near Maaq village. As stated above, the defendants' liability for this grounding has already been established. F/V Hwa Gwo No. 6, 23 FSM R. at 637. The crew was evacuated from the vessel and quarantined.
3. The Yap State Environmental Protection Agency ("EPA") sent a team out to assess the situation. Later that day, the EPA returned to the site to secure the vessel. It then noticed iridescent liquid discharged from the vessel, which was later determined to be engine lubricating oil, not fuel oil. It did not try to clean this up because it did not have the proper equipment (an oil mat or a skimmer).
4. On September 18, 2020, Yap EPA returned with some crew members and equipment to pump the fuel off the vessel. After a quarter hour of pumping, the fuel line burst with minor discharge into the water. A containment boom was deployed and secured, which kept any discharged fuel from escaping.
5. On September 19, 2020, the EPA could not resume pumping the fuel because the various pumps it tried did not work. But the vessel's catch was removed and hauled away.
6. Over the next four days, fuel pumping resumed. The vessel's nine fuel tanks had a total capacity of 2,565 gallons. Only two of the fuel compartments, with a total capacity of 322 gallons, were found to be compromised. The EPA crew salvaged about 2,000 gallons of fuel oil. Since the Hwa Gwo No. 6 was returning from a fishing voyage with catch to unload, much, if not most, of the unsalvaged 565 gallons must have been expended undertaking that fishing voyage. But some fuel did spill and was observable during the salvage operation but this must be in the tens of gallons, not in the hundreds.
7. Other teams salvaged, inventoried, and removed equipment from the vessel. The vessel was secured on September 23, 2020. On September 24, 2020, the salvaging and cleanup operations were wound up. The vessel was left tied down to the reef.
8. The Hwa Gwo No. 6's initial impact and grounding covered an area of 114 meters by 18 meters, damaging 2052 square meters of the fore reef and the reef crest, where it came to rest on September 17, 2020. About 35% of this impact zone consisted of coral cover. Almost all of the coral cover in the impact zone was damaged, often severely, by the Hwa Gwo No. 6's impact and grounding. Less than a tenth of the coral cover was initially considered undamaged. This did not last. Damage to this extent means that the entire ecosystem in the impact and grounding zone was so adversely affected as to be considered a loss.
9. The Yap EPA operation covered 60.4 working hours over eight consecutive days. The Yap state government did not ask Liancheng for payment for this work. The State of Yap did receive $20,000 in "restitution" and a $10,000 "fine" ($30,000 total) as part of an agreement to defer prosecution of Captain Chen He Tian [Chern Her Tyan] in a State Court of Yap criminal case against him arising out of the Hwa Gwo No. 6's grounding.
10. No arrangements were made or implemented by either Liancheng or the Yap authorities to remove the Hwa Gwo No. 6 from the reef crest. Entry into Yap was generally prohibited due to the worldwide covid pandemic. Thus, a salvage tug could have arrived off Yap to try to remove the vessel from the reef crest, but an advance survey team could not have been flown in. The vessel remained stuck fast and hard aground on the reef crest.
11. In early January 2021, it was discovered that the vessel was no longer hard aground on the reef crest but now rested in the reef flat, about 673 meters landward from its prior position on the reef crest. The entire drift path covered an area of about 2,893.9 square meters, which is the length of the drift path, 673 meters, times the vessel's beam, 4.3 meters, its width at its widest point.
12. It is likely that the Hwa Gwo No. 6, once it broke free or was lifted off the reef crest by wave action, drifted fairly quickly to its new position during a high tide, or a higher than usual high tide,2 possibly coinciding with a storm surge by floating off the reef crest and being blown and pushed by wind or waves to drift landward. The nature of the damage in the Hwa Gwo No. 6's drift path is consistent with this. The intermittent damage to the corals in the drift path indicate that the Hwa Gwo No. 6 drifted on a wave surge, riding up and down on the swell, striking some corals in the drift path and leaving others unharmed. Also, since the Hwa Gwo No. 6's catch and much equipment had been removed, and since the fuel oil had been removed and the fuel compartments sealed, the Hwa Gwo No. 6 was much more buoyant. The drift path damage is unlike the gouge on the reef crest where the vessel originally grounded. There is no 673-meter long gouge or continual drag pattern on the drift path that would have been apparent if the Hwa Gwo No. 6 had been slowly pushed or dragged along that 673 meter over a prolonged period of time. Areas of the drift path were left unimpacted.
13. Liancheng then consulted with its port agent in Yap, the Yap Fishing Authority ("YFA"), about possible removal of the Hwa Gwo No. 6. On January 15, 2021, a YFA team visited the Hwa Gwo No. 6 to assess the situation and discovered that the vessel had split in two, separating the bow from the stern. This necessitated a plan to dismantle the wreck and float its major parts to the YFA dock at Nungoch for further dismantling and disposal.
14. During low tides, YFA personnel inserted floats beneath the bow section in attempts to lift the bow off the reef flat and then tow it. On the removal operation's fifth day, YFA successfully floated the bow section, which was then towed to Nungoch for dismantling and disposal. The next day, with the help of state police and Marine Resources boats, YFA was able to float the stern section and tow it to Nungoch. The YFA team then spent three days at the vessel's drift path endpoint removing loose items such as the engine, cylinders, propeller shaft, muffler, rudder and other loose vessel debris. This debris was also taken to the YFA dock for proper disposal by the Yap Department of Public Works. Liancheng paid YFA $45,744.82 for this cleanup operation.
15. The Hwa Gwo No. 6's drift path was 673 meters long and generally about 4.3 meters wide over the reef flat, or approximately 2,893.9 square meters. The reef flat was under 20% coral cover, with the rest being either pavement, sand, or rubble. The coral cover at the drift path's endpoint, on the drift path, and at a reference site, ranged from 16% to 18%. The court will go with the higher figure – 18%. Fifty percent or less of the coral cover was damaged to some degree.
16. There is a significant amount of debris from the Hwa Gwo No. 6 along the drift path, much of which would be relatively easy to remove. Further, but lesser, debris lies in the areas adjoining the drift path. This debris consists of pieces of fiberglass, wood, pipes, metal machine parts, nylon ropes, and braided ropes, with fiberglass debris predominating. The rope debris was primarily at the original grounding site where the Hwa Gwo No. 6 had been tied down after the salvage operation had ended. The defendants' expert testified that the debris could be removed at the cost of $2,000. This figure seems optimistic.
17. Dr. Richmond testified that reef environments impacted by groundings could be adversely affected in ways that were not visible, such as ciguatera poisoning. No ciguatera cases were reported. No tests were done for the presence of ciguatera. And no evidence was introduced about the frequency or likelihood of ciguatera occurring in such circumstances. The court must therefore disregard this claim.
18. No evidence was introduced concerning coral restoration costs or damages. The court therefore cannot award any.
Based on the above facts, the court makes the following
1. The plaintiffs argue that, because no pilot was aboard the Hwa Gwo No. 6 when it ran aground, they should prevail on their unseaworthiness claim and should be awarded punitive damages. The court must reject this contention because the Hwa Gwo No. 6 was not trying to enter the channel and make port when it ran aground. No other evidence was presented from which the court could infer that the Hwa Gwo No. 6 was unseaworthy on September 17, 2020, when it ran aground on the reef (although the Hwa Gwo No. 6 was obviously unseaworthy after it grounded on the reef crest and became incapable of further navigation). Accordingly, the unseaworthiness cause of action is dismissed.
2. The Singapore High Court, sitting in admiralty and applying FSM law to the grounding of a liquified natural gas tanker on the reef of Eurapik atoll, an outer island in Yap state, and aware of the earlier $600 a square meter judgment in People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM R. 403 (Yap 2006), concluded that a fair value of reefs in Yap state, and for Eurapik atoll in particular, was now $785 per square meter.3 The Sevilla Knutsen, [2022] SGHC 20 ¶¶ 104-30. The court will accept that figure and value the Tomil reef at $785 a square meter.4
3. For damage to the fore reef and the reef crest, the court therefore assesses the damage at $1,610,820 (2052 square meters times $785) as grounding damages since the entire ecosystem in the impact and grounding zone was compromised.
4. Since, although the oil that was spilled and not recovered only measures in the tens of gallons, it will have caused some damage before it dissipated, the court will assess $2,500 as further grounding damages for this.
5. Because of the intermittent nature of the coral damage along the drift path, a blanket award of $785 per square meter of the 2,893.9-square-meter drift path is inappropriate. A more nuanced approach must be adopted. For the drift path damage, the court assesses the damages at $204,454 ($785 times 2,893.9 square meters times 18% coral cover times 50% damaged corals).
6. The $30,000 restitution and $10,000 fine paid to the State of Yap have no bearing on this damages award. The State of Yap is not a party in this case.
7. The $45,744.82 that Liancheng paid YFA for the operation to remove the Hwa Gwo No. 6 from the drift path endpoint and to cleanup debris there will also not be deducted from the damages award. Liancheng made a wise move in contracting for the removal of the Hwa Gwo No. 6 wreck. By doing so, it mitigated its damages for a continuing trespass claim for the wreck. The debris along the drift path and its environs, which YFA apparently was not aware of or was not contracted to remove, may constitute a continuing trespass whose value it would be difficult to determine.
8. The court will therefore add a fund of $20,000, or as much thereof as may be needed, to be expended solely to remove debris in the Hwa Gwo No. 6's drift path and adjoining areas and any debris at the original grounding site. Any funds left unexpended at the end of the cleanup will be subject to further court order as to its disposition. The parties shall, jointly if possible, file and serve, no later than August 29, 2023, their proposal(s) on how the fund should be administered in order to achieve the maximum cleanup benefit. If needed, a hearing will be held on September 10, 2024, at 11:00 a.m. The court can see no valid reason why this debris, or the bulk of it, should not be removed at the defendants' expense when its removal appears to be not only feasible but also relatively easy.
9. Although no statute requires it, injured parties in FSM admiralty and maritime tort cases are typically awarded 9% prejudgment interest when the plaintiff has pled a claim for prejudgment interest. Pohnpei v. M/V Ping Da 7, 20 FSM R. 75, 80 (Pon. 2015); People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM R. 403, 420 (Yap 2006). But, in the absence of a statute, any award of prejudgment interest is in the court's discretion. Johnny v. Occidental Life Ins., 19 FSM R. 350, 363 (Pon. 2014); Coca-Cola Beverage Co. (Micronesia) v. Edmond, 8 FSM R. 388, 393 (Kos. 1998).
10. In this case, the interest on the grounding damages would usually start on the day (September 17, 2020) the vessel ran aground, M/V Ping Da 7, 20 FSM R. at 80, and the prejudgment interest for the drift path damages would start on or about January 2, 2021, when that damage likely occurred and became known. Cf. Id. (although interest on grounding damage started on day of grounding, interest on the costs award started day the amended judgment entered). However, if it were not for the covid-19 pandemic and the resulting travel restrictions, a force beyond any party's control or influence, this case should have come to trial at least a year earlier than it dId. The court will therefore set the dates at which the interest starts accruing in this case one year later than it normally would. Interest for the grounding damages ($1,613,320) will start on September 17, 2021, and will start on January 2, 2022 for the drift path damages.
11. The plaintiffs also seek attorney's fees and costs. The appellate division has, in a reef damage case such as this one, has already held that it is an abuse of discretion for a trial court to award attorney's fees under the private attorney-general doctrine in a case in which the Yap government could not have undertaken any action to vindicate the plaintiffs' rights and when private-citizen plaintiffs are pursuing purely civil claims, such as negligence, against other private citizens. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM R. 49, 65 (App. 2008). No other recognized basis for awarding attorney's fees – contractual, statutory, or an opposing party's vexatious or frivolous behavior – is applicable or apparent. No attorney's fees will be awarded.
12. Prevailing parties, and the plaintiff class herein is a prevailing party, are routinely awarded costs that may be taxable. FSM Civ. R. 54(d). Class action counsel in common fund cases are entitled to reimbursement for expenses adequately documented and reasonably and appropriately incurred in the prosecution of the class action. People of Tomil ex rel. Mar v. M/C Jumbo Rock Carrier III, 17 FSM R. 198, 206 (Yap 2010). The litigation expenses that may be allowed in such cases are more extensive than the costs routinely taxed and awarded to prevailing parties under Rule 54(d). Jumbo Rock Carrier III, 17 FSM R. at 206. The plaintiffs shall file and serve their costs request submission no later than August 19, 2024.
Accordingly, the clerk shall enter judgment for the plaintiffs for the sum of $1,613,320 with interest thereon at the rate of 9% from September 17, 2021, and the sum of $204,454, with interest thereon at the rate of 9% from January 2, 2022. The defendants shall deposit with the court a further $20,000 as a debris cleanup fund, which shall be expended solely on the removal of debris from the Hwa Gwo No. 6's drift path and adjoining areas, with any funds left unexpended after the cleanup subject to further court order.
The unseaworthiness claim is dismissed and attorney's fees will not be awarded. The plaintiffs may file and serve a costs request no later than August 19, 2024.
_______________________________Footnotes:
1 The covid-19 pandemic and various quarantine and travel restrictions had effectively prevented the case from going to trial any earlier.
2 The court takes judicial notice that the moon was full on December 30, 2020, and three days later, on January 2, 2021, the Earth was at perihelion (closest point to the Sun in its orbit around the Sun). The court takes further judicial notice that high tides are generally higher when a full moon (or a new moon) coincides with perihelion because the Sun’s gravity is stronger at perihelion and because the Moon’s and the Sun’s gravity are pulling together on either a full or a new moon.
3 This Singapore High Court decision was admitted as an exhibit by the parties’ stipulation.
4 The court notes that an isolated atoll community such as Eurapik may have a greater dependence on its reefs’ resources because, unlike the main island of Yap, alternative resources are not readily available.
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