FSM SUPREME COURT TRIAL DIVISION

Cite as People of Tomil ex rel. Mar. v. M/C Jumbo Rock Carrier III, 16 FSM Intrm. 633 (Yap 2009)

CIVIL ACTION NO. 2009-3002

Decided: December 4, 2009

APPEARANCES:

HEADNOTES

COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

    On October 22, 2009, the plaintiffs filed their Motion for Interlocutory Sale of the Vessels with a supporting memorandum. No opposition was filed. Failure to oppose a motion is generally deemed a consent to the motion, FSM Civ. R. 6(d), but even if there is no opposition, the court still needs good grounds before it can grant the motion. Senda v. Mid-Pacific Constr. Co. , 6 FSM Intrm. 440, 442 (App. 1994). The plaintiffs then filed their Request for Entry of Order on Plaintiffs' Motion for Interlocutory Sale of Vessels and the defendants filed their opposition to the request.

I.

    The plaintiffs contend that their motion for the vessels' interlocutory sale should be granted because, in their view, the defendants have delayed the matter for four months without meaningful efforts to release the vessels and because storms have threatened to injure the vessels and to damage Colonia harbor and the people of Yap. The plaintiffs also note that they Ahave fulfilled the obligation to publish notice to potential creditors or intervenors, and no such parties have come forward," and they therefore contend that an interlocutory sale, unencumbered by any other claims by any other parties, would lead to the litigation's speedy resolution.

    The FSM Supplemental Rules for Certain Admiralty and Maritime Claims allow for interlocutory

sales of arrested vessels [1] "[i]f [the] property that has been attached is perishable or liable to injury by being detained in custody pending the action, or [2] if the expense of keeping the property is excessive or disproportionate, or [3] if there is unreasonable delay in securing the release of [the] property . . . ." FSM Mar. R. E(7)(b). The plaintiffs need only demonstrate that one of these three conditions is present to justify the vessels' interlocutory sale. See Silver Star Enterprises v. M/V Saramacca, 19 F.3d 1008, 1014 (5th Cir. 1994); 20th Century Fox Film Corp. v. M/V Ship Agencies, 992 F. Supp. 1434, 1438 (M.D. Fla. 1997). ¹

II.

    The defendants correctly note that they are the ones who are bearing the expenses of maintaining the vessels and that there is no evidence that the vessels are currently deteriorating or liable to injury. That leaves whether the four months since the vessels' arrest without their release is an unreasonable delay. The defendants assert that since their motion to approve their proposed letter of undertaking was not denied until November 6, 2009 and that the denial was without prejudice shows that there has not been an unreasonable delay.

    In Ferrous Financial Services Co. v. O/S Arctic Producer, 567 F. Supp. 400, 401 (W.D. Wash. 1983), the court held that four months was an unreasonable delay and ordered an interlocutory sale of the vessel when no attempt had been made to release the vessel and the cost of keeping the vessel had already required the expenditure of $48,000. In Merchants National Bank v. Dredge General G.L. Gillespie, 663 F.2d 1338, 1341-42 (5th Cir. 1981), the court concluded eight months was an unreasonable delay and that the trial court did not err in ordering an interlocutory sale when the barges were taking on water and had to be pumped and the expenses were over $17,000 per month and the defendants had not tried to secure the vessels' release. In Silver Star Enterprises v. M/V Saramacca, 19 F.3d 1008, 1014 (5th Cir. 1994), the court held that an interlocutory sale of a vessel was proper since the seven-month delay between the vessel's arrest and the court's sale order was an unreasonable delay for the vessel's owner to post security. And in 20th Century Fox Film Corp. v. M/V Ship Agencies, 992 F. Supp. 1434, 1438 (M.D. Fla. 1997), an eight-month delay with no release in sight and adjudication on the merits months away was held unreasonable and an interlocutory sale ordered.

    The court concludes that in this case, where the defendants have unsuccessfully sought the vessels' release through a letter of undertaking and made a good faith attempt to modify the proposed letter to satisfy the plaintiffs' and the court's concerns but were unable to, resulting in the court's November 16, 2009 denial, the delay cannot yet be considered unreasonable, especially since the defendants, not the plaintiffs, are currently bearing the expenses of keeping the vessels.

    Accordingly, the request for an interlocutory sale of the arrested vessels is denied without prejudice. The defendants, however, are cautioned that if the vessels' release is not obtained, there

will come a time when the delay will be considered unreasonable and the vessels' interlocutory sale could be ordered.