FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Koshin 31, 16 FSM Intrm. 350 (Pon. 2009)

[16 FSM Intrm 350]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

KOSHIN 31, a fishing vessel, HIKARU

KAWANO, captain of the fishing vessel, and

NATIONAL FISHERIES CORPORATION,

Defendants.

CIVIL ACTION NO. 2008-012

Trial: August 26-27, 2008

Decided: March 9, 2009

APPEARANCES:

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HEADNOTES

    An authorized vessel, which has a valid foreign fishing permit that provides that fishing operations must be conducted in strict accordance with the foreign fishing agreement under which the permit was issued, must maintain in working order on board an appropriate position fixing and identification equipment (i.e., a transponder or VMS), and that transponder must be on at all times while the vessel is in FSM fishery waters. FSM v. Koshin 31, 16 FSM Intrm. 350, 354 (Pon. 2009).

    When a licensed vessel’s captain had forgotten to turn the transponder back on after he had fixed and restarted the generator and the vessel was not fishing at the time, the captain’s failure to turn

[16 FSM Intrm 351]

the transponder back on immediately after fixing the generator was neither intentional nor reckless, but, at most, it was negligent. Taking into account the nature, circumstances, extent and gravity of this prohibited act, the violator’s degree of culpability and any history of prior offenses, the court will determine that the minimum civil penalty permissible ($100,000) is appropriate. FSM v. Koshin 31, 16 FSM Intrm. 350, 354 (Pon. 2009).

    Since the penalty for violating 24 F.S.M.C. 611 may be imposed on "any person," it, by statute, may be imposed only on a natural person or business enterprise or similar entity and not on a vessel. FSM v. Koshin 31, 16 FSM Intrm. 350, 354 (Pon. 2009).

    When a person is unlawfully detained against his will, a civil wrong is committed for which he may seek redress. Such a claim is separate and distinct from a civil rights claim, but, at the same time, such a claim may serve as a basis for deprivation of liberty under the FSM civil rights statute. The relevant concern in this regard is that damages should not be awarded for both claims, since to do so would be to permit a double recovery. FSM v. Koshin 31, 16 FSM Intrm. 350, 355 (Pon. 2009).

    The FSM is liable to a ship captain for the wrongful retention of his passport, and hence the wrongful detention of the captain himself, for the period that the captain was required to remain in Pohnpei after he had requested the release of his passport. While damages in such a case can be difficult to quantify, an award of damages in the amount of $120 per day is appropriate. FSM v. Koshin 31, 16 FSM Intrm. 350, 355 (Pon. 2009).

    A ship captain will be awarded his attorney’s fees and costs incurred in successfully bringing his counterclaim for civil rights violation and may submit his affidavit in support of his claim for fees and costs, which should meet the specificity standard. FSM v. Koshin 31, 16 FSM Intrm. 350, 355 (Pon. 2009).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

    This matter went to trial on August 26 and 27, 2008. Plaintiff Federated States of Micronesia (FSM) appeared by Assistant Attorney General Pole Atanraoi, Esq. Defendants Captain Hikaru Kawano and the fishing vessel Koshin 31 were represented by Mr. David Ledger, Esq., of Carlsmith Ball LLP. Captain Kawano was present during the trial.

    During the discussion of preliminary matters just prior to trial, Ledger informed the court that he was not counsel for defendant National Fisheries Corporation (NFC). He informed the court that Ms. Andrea S. Hilyer, Esq. represented NFC, but had moved out of the FSM. He stated that he was informed by Hilyer that the case had been passed on to Ms. Marstella E. Jack, Esq. who was supposed to file a motion to dismiss defendant NFC. Counsel for both parties stated that they were prepared to go forward with the trial. Thus trial took place only as between the plaintiff FSM and the defendants Hikaru Kawano and the Koshin 31. The FSM’s claim against the defendant National Fisheries Corporation remains for adjudication.

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Plaintiff’s witnesses included: Perlinda Klinton, Statistical Specialist 4 of the FSM National Oceanic Resource Management Agency (NORMA); Justino Helgen, FSM Marine Surveillance Officer; Louis Malfin, FSM National Government Police Officer; Pius Chiotalug, FSM Chief of Police; and FSM Marine Surveillance Commander Robert Maluweirang. Defendant’s witness was defendant Captain Hikaru Kawano.

Plaintiff’s exhibits 1-6, and A-O were admitted into evidence. Defendants’ exhibits A-G were admitted into evidence.

I. Findings of Fact

    1. Defendant Captain Hikaru Kawano is a citizen of Japan and is the captain of the fishing vessel Koshin 31 and was the captain of Koshin 31 during February, 2008.

    2. In February of 2008, the Koshin 31 was licensed to fish in the FSM Exclusive Economic Zone (FSM EEZ). The license was admitted into evidence as plaintiff’s Exhibit No. 5, and provides that "[f]ishing operations shall be conducted in strict accordance with the Foreign Fishing Agreement under which this Permit was issued." The Foreign Fishing Agreement under which the license was issued requires that each licensed vessel must have an operational transponder on board while fishing in the FSM EEZ.

    3. The Koshin 31 was boarded by FSM Marine Surveillance Officer Justino Helgen on February 12, 2008 at around 10:00 a.m.

    4. At the time of boarding, the Koshin 31 was approximately 32 nautical miles inside the FSM EEZ. The vessel was not fishing at the time.

    5. After boarding the Koshin 31, Officer Helgen went to the bridge and spoke to Captain Kawano asking him where the Vessel Monitoring System (VMS) was. Captain Kawano pointed to a certificate with information on the VMS.

    6. The VMS is a satellite based monitoring system used to monitor the location of the vessel. The VMS requires that a transponder be on-board and functioning so that the location of the vessel can be tracked. In so far as the terms "VMS" and "transponder" were used at trial, Officer Helgen testified that they are the same thing. Officer Helgen testified that the captain understood what he was asking and he had cards with applicable translation available for use.

    7. Due to a previous generator problem aboard the Koshin 31 the transponder was off at the time of boarding. It had been turned off when Captain Kawano had been working on the generator. After taking care of the generator problem Captain Kawano had forgotten to turn the transponder back on. The captain turned the transponder back on in the presence of Officer Helgen while he was aboard the Koshin 31 on February 12, 2008. The VMS or transponder was working properly at that time.

    8. There was no record of the Koshin 31 appearing on VMS on February 11, 2008. The last time the vessel appeared on the VMS was at 9:54 p.m. on February 10, 2008. Koshin 31 reappeared on VMS at around 12:22 p.m. on February 12, 2008 which is after the vessel was boarded. From that time on, the VMS or transponder operated normally.

    9. After being boarded on February 12, 2008, the passport of Captain Kawano and the crew was confiscated by one or more of the FSM officers who boarded the Koshin 31. The Koshin 31 was brought to Pohnpei after being boarded and remains in Pohnpei. Defendant Kawano’s passport

[16 FSM Intrm 353]

remained in the custody of the FSM until sometime in July of 2008.

    10. When the Koshin 31 was in Pohnpei, Captain Kawano was on prescription medication which he had received through the mail. In June, 2008, his medicine was finished and he began to feel ill with some kind of urinary tract problem. Kawano did go to the Pohnpei Hospital on one occasion for treatment of this problem.

    11. While in port in Pohnpei, Kawano was given a copy of his passport which allowed him to move about freely in Pohnpei.

    12. In June 2008, Captain Kawano requested that his passport be returned as he wanted to return to Japan for medical treatment. His passport was not returned until about a month after he made the request for the return of his passport.

    13. Kawano did travel to Japan and got medical treatment for his medical problem in Japan.

II. Conclusions of Law

    1. The defendant Captain Hikaru Kawano is liable to the plaintiff FSM for a civil penalty in the sum of $100,000 for a violation of 24 F.S.M.C. 611(1)(a) and (b). The fishing vessel Koshin 31 is not liable for this violation.

    2. The plaintiff/counterdefendant FSM is liable to the defendant/counterclaimant Captain Hikaru Kawano in the amount of $3,600.00 on Kawano’s civil rights counterclaim brought against the FSM pursuant to 11 F.S.M.C. 701 et seq.

    4. The defendant/counterclaimant Hikaru Kawano is awarded his attorney’s fees and costs incurred in prosecuting his civil rights counterclaim against the FSM.

III. Discussion

    On August 20, 2008, the defendants Kawano and Koshin 31 filed their pretrial statement and on August 25, 2008, the FSM filed its pretrial statement. The issues presented in the pretrial statements, and subsequently tried to the court were: (1) the FSM’s claim for a civil penalty for violation of the "transponder on" statute, 24 F.S.M.C. 611(1)(a),(b), and (2) the defendant Kawano’s counterclaim for civil rights violation. Kawano’s counterclaim is permitted under 11 F.S.M.C. 701 et seq., which confers a private cause of action for deprivation of "any right, privilege, or immunity secured to [a plaintiff] by the Constitution or laws of the Federated States of Micronesia." Kawano alleges that the FSM violated his civil rights when the FSM wrongfully withheld his passport from him during approximately a one month period from June to July of 2008 when he had requested it to return to Japan for medical treatment. He contends that this is effectively a wrongful arrest or detention, and seeks damages against the FSM.

    The court considers the FSM’s claim and Kawano’s counterclaim in turn.

A. The "transponder on" violation: 24 F.S.M.C. 611 (1)(a), (b)

    Section 611(1)(a) and (b) of Title 24 of the FSM Code provide as follows:

    Such a requirement was in place with respect to the Koshin 31. At all relevant times, the vessel had a valid foreign fishing permit that provided that "[f]ishing operations shall be conducted in strict accordance with the Foreign Fishing Agreement under which this Permit was issued." The Foreign Fishing Agreement in question provides at paragraph 14 that "appropriate position fixing and identification equipment [i.e., the transponder or VMS shall be] maintained in working order on the authorized vessel." Thus, the Koshin 31’s transponder was required to be on at all times while it was in FSM fishery waters.

    Based on the evidence presented at trial, it is not disputed that when FSM Marine Surveillance Officer Helgen boarded the Koshin 31 on February 12, 2008, the VMS or transponder, was turned off. Captain Kawano had turned the transponder off when he had been working on the generator. He had forgotten to turn the transponder back on after he had fixed and restarted the generator. He turned the transponder back on in the presence of Officer Helgen. This failure on the part of Captain Kawano to turn the transponder back on immediately after fixing the generator was neither intentional nor reckless. At most, it was negligent.

    Subparagraph (5) of Section 611 contains the penalty provision for a violation of 24 F.S.M.C. 611(1)(a) and (b). It provides that "[a]ny person who violates subsection (1) . . . of this section, by failing to install, maintain, or ensure the transmission of information from a transponder as required, is subject to a civil penalty of not less that $100,000 and not more that $500,000." In addition to the fact that Captain Kawano’s failure to have the transponder in operation when the Koshin 31 was boarded was negligent, and not intentional or reckless, the court considers the fact that the Koshin 31 had a valid fishing license at the time of its arrest. Further, the vessel was not actively engaged in fishing at the time of arrest. Section 901(3) provides that in determining the amount of a civil penalty, the court

(emphasis added). Thus the court takes into account the foregoing considerations, as it is required to do, in arriving at a penalty amount. In doing so, the court determines that the minimum penalty permissible under 24 F.S.M.C. 611(5) of $100,000 is appropriate.

    Subparagraph (5) of Section 611 imposes liability for the penalty on "any person." "Person" is defined under 24 F.S.M.C. 102(50) as any natural person or business enterprise or similar entity. It does not include the vessel. Thus the civil penalty of $100,000 is imposed against defendant Captain Hikaru Kawano only. As previously noted, trial was not held against the defendant National Fisheries Corporation.

B. Defendant Kawano’s counterclaim under 11 F.S.M.C. 701 et seq.

Defendant Captain Kawano’s passport was confiscated at the time the Koshin 31 was boarded.

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    He was then brought to Pohnpei, where he was given a copy of his passport that permitted him to move freely about Pohnpei. By June of 2008, he had finished certain prescription medication for a urinary tract problem and requested his passport so that he could return to Japan for medical treatment. However, it was nearly a month later that his passport was returned to him.

    Commander Robert Maluweirang testified to the proposition that without his passport, defendant Kawano could not leave Pohnpei. At the same time, Kawano was not placed under formal arrest when he and the crew of the Koshin 31 arrived back in Pohnpei. Thus he was not formally an arrestee, and the most that can be said is that Kawano was a defendant in a civil lawsuit. As such, the FSM offered no legitimate reason why his movement should have been restricted to Pohnpei. From the time that Kawano’s passport was taken until the time he requested its return, he remained voluntarily in Pohnpei. But by failing without justification to return Kawano’s passport to him after he requested it, the FSM effectively placed Kawano under detention even though he was allowed to move freely about Pohnpei.

    When a person is unlawfully detained against his will, a civil wrong is committed for which he may seek redress. Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 295 (Pon. 1998). Such a claim is separate and distinct from a civil rights claim. Warren v. Pohnpei State Dep’t of Public Safety, 13 FSM Intrm. 154, 156 (Pon. 2005). At the same time, such a claim may serve as a basis for deprivation of liberty under the FSM civil rights statute, 11 F.S.M.C. 701 et seq. The relevant concern in this regard is that damages should not be awarded for both claims, since to do so would be to permit a double recovery. Atesom v. Kukkun, 10 FSM Intrm. 19 (Chk. 2001).

    The FSM is liable to Kawano for the wrongful retention of his passport, and hence the wrongful detention of Kawano himself, for the approximately one month or 30 day period during June to July of 2008, which is the period that he was required to remain in Pohnpei after he had requested the release of his passport. While damages in such a case can be difficult to quantify, the court notes that in Warren v. Pohnpei State Dep’t of Public Safety, 13 FSM Intrm. 483 (Pon. 2005), the plaintiff was awarded $3,000 for the more than two and a half days he was wrongfully detained in jail. Here, of course, Kawano was not held in jail, but was permitted to move freely around Pohnpei. Still, an award of damages in the amount of $120.00 per day is appropriate for the approximately one month or 30 day period that Kawano’s movement was restricted to Pohnpei. The total awarded for the civil rights violation is $3,600.00.

    Pursuant to 11 F.S.M.C. 701 et seq., Kawano is awarded his attorney’s fees and costs incurred in bringing his counterclaim for civil rights violation. Kawano may submit his affidavit in support of his claim for fees and costs. The affidavit should meet the specificity standard set out in Bank of Hawaii v. Jack, 4 FSM Intrm. 216 (Pon. 1990); Jackson v. George, 10 FSM Intrm. 531, 533 (Kos. S. Ct. Tr. 2002).

IV. Conclusion

    For the foregoing reasons, the clerk shall enter judgment against the defendant Hikaru Kawano and in favor of the plaintiff FSM for a civil penalty in the amount of $100,000.00. The claim for a civil penalty under 24 F.S.M.C. 611(1)(a) and (b) is dismissed as to the defendant Koshin 31. Defendant Hikaru Kawano shall have judgment in his favor and against the plaintiff FSM on the defendant’s counterclaim for a civil rights violation in the amount of $3,600.00.

    Pursuant to FSM Civil Rule 54(b), the court directs entry of final judgment as to the FSM’s claims against the defendants Hikaru Kawano and Koshin 31 upon the express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

    Pursuant to 11 F.S.M.C. 701 et seq., defendant Hikaru Kawano is also awarded his attorney’s fees and costs in prosecuting his counterclaim against the FSM. He shall submit an affidavit in support of his attorney’s fees and costs within twenty days of the date of the issuance of these findings of fact and conclusions of law.

    In the event that the FSM does not take steps to prosecute the remaining claim against the defendant National Fisheries Corporation within 30 days of the date of the issuance of this order, the claim shall be dismissed for failure to prosecute pursuant to FSM Civil Rule 41(b).

A judgment consistent with these findings of fact and conclusions of law shall issue herewith.

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