FSM SUPREME COURT TRIAL DIVISION

Cite as Meninzor v. M/V Caroline Voyager, 15 FSM R. 540a (Pon. 2008)

[15 FSMIntrm. 540a]

CIVIL ACTION NO. 2008-014

Decided: March 19, 2008

APPEARANCES:

HEADNOTES

Admiralty – Ships – Charter; Admiralty – Ships – Maritime Liens

A claim for personal injuries against a charterer can be secured by a maritime lien on the vessel. Meninzor v. M/V Caroline Voyager, 15 FSM R. 540a, 540b (Pon. 2008).

Admiralty – Ships – Maritime Liens

A registered vessel may be arrested for a default in payment of claims secured by the vessel's

[15 FSMIntrm. 540b]

maritime liens as recorded in the register. Meninzor v. M/V Caroline Voyager, 15 FSM R. 540a, 540b (Pon. 2008).

Admiralty – Ships – Maritime Liens

Title 19 does not permit any lien or authorize proceedings in rem against any government vessel engaged in non-commercial services. Meninzor v. M/V Caroline Voyager, 15 FSM R. 540a, 540c (Pon. 2008).

Admiralty – Ships – Maritime Liens

When a trip's purpose was to provide support and humanitarian services to the FSM outer islands; when there were 28 government officials aboard the vessel; when this included doctors, who were on the trip to perform public health, and dental services, a weather station representative, two police officers who were seeking to arrest a suspect, and an official who was on the trip to inspect school and airport projects, and seven Pohnpei legislators; when private passengers were charged a nominal fare; when the vessel transported building materials to Sapwuafik for use in school construction and airport runway repairs; and when, although Pohnpei was the vessel's charterer, it was not charged a fee for the charter, the trip was not one carried on for profit, but rather to benefit the outer islands' inhabitants by delivering public services to them consistent with Micronesia's geographical configuration. The government vessel thus falls within the 19 F.S.M.C. 102(2) exception, and is not subject either to a maritime lien or to arrest as part of an in rem proceeding. Meninzor v. M/V Caroline Voyager, 15 FSM R. 540a, 540c & n.1 (Pon. 2008).

Commerce

Commercial activity includes any type of business or activity which is carried on for a profit, and a non-commercial activity is one that is not carried on for a profit. Meninzor v. M/V Caroline Voyager, 15 FSM R. 540a, 540c (Pon. 2008).

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On March 17, 2008, the plaintiffs filed their motion for an arrest of the vessel the M/V Caroline Voyager pursuant to Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims. On March 18, 2008, the defendants M/V Caroline Voyager, F.S.M. National Government, and the F.S.M. Department of Transportation, Communications, and Infrastructure filed their response.

As to the foregoing defendants, this case is a refiling of Civil Action No. 2007-014. In that case, a default judgment was entered in the amount of $130,000.00 on February 5, 2008, against the state of Pohnpei, which was a defendant in the instant case. Pohnpei was the charterer of the Caroline Voyager at relevant times. The plaintiffs registered that judgment with the Marine Transportation division of the Department of Transportation, Communications, and Infrastructure as a lien against the Caroline Voyager pursuant to 19 F.S.M.C. 326(2)(b), which provides in part that a claim for personal injuries against a charterer "shall be secured by a maritime lien on the vessel." Plaintiffs now seek an order arresting the Caroline Voyager based on 19 F.S.M.C. 337, which provides that a registered vessel "may be arrested in respect of default in payment on claims secured by maritime liens . . . against the vessel recorded in the register." The moving defendants oppose the motion for an order of the arrest on a number of bases, including the ground that the Caroline Voyager was a government vessel not subject to arrest. This issue is dispositive, and the court will not address the other issues raised in the response.

[15 FSMIntrm. 540c]

Section 102(2) of Title 19 of the F.S.M. Code provides that "[n]othing in this title shall permit any lien or authorize proceedings in rem against any Government vessel engaged in non-commercial services." The Caroline Voyager is a Government vessel that is owned by the F.S.M. Government and was at relevant times chartered by the state of Pohnpei. The responding defendants urge that the Caroline Voyager was not engaged in commercial activity, and therefore is not subject to either a maritime lien or an in rem proceeding, which under Rule C of the Supplemental Admiralty Rules would include the arrest warrant that the plaintiffs seek. In support of this contention, they have submitted along with their response the affidavit of Paul M. James, who is the operations manager for the Maritime Division of the Department of Transportation, Communications, and Infrastructure. In his affidavit Mr. James states the following.

Mr. James was in charge of operations of the Caroline Voyager in March of 2006 when the accident that injured Mr. Meninzor occurred. The purpose of the trip was to provide support and humanitarian services to the outer islands of the F.S.M. On board the Caroline Voyager during March 20, 2006, through March 26, 2006, trip in question were 28 government officials. This included doctors, who were on the trip to perform public health, and dental services; a weather station representative; two police officers who were seeking to arrest an individual suspected of a crime; a representative of the Office of Pohnpei State Transportation and Infrastructure who was on the trip for the purpose of inspecting school and airport projects; a person involved in solar energy; and seven members of the Pohnpei Legislature. The affidavit does not specifically state that these individuals were not charged a fare for the trip. However, private individuals on board were charged a fare, an example of which is the $7.21 fare charged for the trip to Sapwuafik.¹ No mention is made of the number of private individuals. The Caroline Voyager transported to Sapwuafik 1000 bags of gravel, lumber, cement, paint, and roofing material for use in school construction and airport runway repairs on Sapwuafik. Although Pohnpei was the charterer of the vessel, it was charged no fee for the charter.

The question before the court is whether the Caroline Voyager was engaged in noncommercial activity, since 19 F.S.M.C. 102(2) provides that a government vessel is not subject to arrest in such circumstances. The statute itself provides no guidance on this point, since it does not define either "commercial activity" or "noncommercial activity." Black's Law Dictionary, although it does not define "noncommercial activity," does offer a definition for "commercial activity": "[t]erm includes any type of business or activity which is carried on for a profit." Id. at 270 (6th ed. 1990). The negative of this definition is that a "noncommercial activity" is one that is not carried on for a profit. The facts surrounding the Caroline Voyager's March 2006, trip as established by Mr. James's affidavit lead to the conclusion that the trip was not one "carried on for a profit," but rather to benefit the inhabitants of the outer islands by facilitating the delivery of public services to them consistent with the geographical configuration of Micronesia. Thus the Caroline Voyager falls within the exception prescribed by 19 F.S.M.C. 102(2), and is not subject either to a maritime lien or to arrest as part of an in rem proceeding.

Accordingly, the plaintiffs' request for issuance of an arrest warrant for the M/V Caroline Voyager is denied.

Footnotes:

¹ While not in Mr. James's affidavit, the defendants' response contains the statement that private passengers are charged a nominal fare based on seven cents per mile.