*    *    *    *

*    *    *    *

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

The court, by its December 29, 2016 Order for Memorandums, requested the parties' views on whether, in light of 6 F.S.M.C. 302 and the Supplemental Admiralty and Maritime Rules, this case was filed in the proper venue. On January 9, 2017, the plaintiff, Pt. Alorinda Shipping, and the defendants that are represented by the Yap Attorney General (Yap state government, Yap Governor Tony Ganngiyan, and the Yap Fishing Authority) filed separate briefs on the venue issue.

I.

The Alorinda 251 was an Indonesian-flagged barge that, sometime around July 2015, was caught in a storm off the Philippines that lost its tow and was set adrift. It was owned by an Indonesian corporation, Pt. Alorinda Shipping. On August 11, 2015, the Alorinda 251 barge was found, apparently in calm seas, floating freely and adrift near the outer reef of the Yap main island, where it was a danger of running aground and damaging the reef. By August 12, 2015, the Alorinda 251 was secured in Colonia harbor, Yap.

Pt. Alorinda Shipping brings this action in rem against the barge itself and in personam against various entities that may have salvage claims against the barge or that have had possession of the barge since it was found adrift off Yap.

As such, this is a case in admiralty. It is primarily an in rem action over the ownership and possession of an ocean-going barge, the Alorinda 251, and, in part, an action involving the determination and award of maritime salvage claims involving the Alorinda 251.

II.

On November 26, 2016, Pt. Alorinda Shipping filed a Verified Complaint in Rem Against Vessel and in Personam in the FSM Supreme Court trial division in Pohnpei. The clerk there assigned it a Pohnpei docket number – Civil Action No. 2016-030. (A First Amended Verified Complaint in Rem Against Vessel and in Personam was filed on December 3, 2016.)

The FSM Supreme Court trial division has original and exclusive jurisdiction over admiralty and maritime cases. FSM Const. art. XI, § 6(a). The matter was therefore filed in the proper court since the FSM Supreme Court has only one trial division. But that trial division is divided into four separate venues or districts corresponding with each of the Federated States of Micronesia's four states.

In an admiralty case, when the suit is against a vessel or other property, the proper venue is "the District within which the ship, goods, or other thing involved can be seized." 6 F.S.M.C. 302. Generally, when the word "district" appears in an FSM Code provision carried over from the Trust Territory Code by virtue of the Constitution's Transition Clause, the word "state" will be read in its place. FSM v. Kansou, 14 FSM R. 136, 138 n.1 (Chk. 2006). This is consistent with the

[21 FSM R. 132]

Supplemental Admiralty and Maritime Rules, which contemplate that jurisdiction will be exercised where the vessel or other property is present. See FSM Mar. R. F(9). Venue is thus proper in the state where the vessel can be seized.

The venue or district in which the barge is present and can be seized is, of course, Yap, not Pohnpei. Moreover, the only way a vessel can be a defendant in a civil action is if the proceeding against it is in rem. Moses v. M.V. Sea Chase, 10 FSM R. 45, 51 (Chk. 2001). In order for a court to exercise in rem jurisdiction, the thing (such as a vessel) over which jurisdiction is to be exercised (or its substitute, e.g., a posted bond) must be physically present in the jurisdiction and seized by court process and under the court's control, whereby it is held to abide such order as the court may make concerning it. Id.; In re Kuang Hsing No. 127, 7 FSM R. 81, 82 (Chk. 1995). (Yap would thus also be the proper venue if this case was an in rem action but was not an admiralty or maritime matter.) For a court to exercise in rem jurisdiction, the thing (res) over which jurisdiction is to be exercised (or its substitute) must be physically present in the jurisdiction and under the court's control where it will be held to abide further order. See People of Gilman ex rel. Tamagken v. M/V Easternline I, 17 FSM R. 81, 84 (Yap 2010).

Furthermore, the court noted that even if this was not an in rem action but was only an in personam action against in personam defendants, Yap would still be the proper venue.¹ Under 6 F.S.M.C. 301(1), "a civil action . . . shall be brought in a court within whose jurisdiction . . . the largest number of defendants live or have their usual places of business or employment." The majority² of the defendants live or have their usual places of business or employment in Yap.

III.

Thus, this matter was brought in the wrong venue. The only proper venue for this action is the FSM Supreme Court trial division, Yap venue. The defendants ask that the case be dismissed because it was filed in the wrong venue, or in the alternative that it be transferred to Yap where the Alorinda 251 is and where the evidence and witnesses are.

Pt. Alorinda Shipping states that if the court is so inclined, it has no objection to a change of venue. It further notes that in November, 2016, the court issued an arrest warrant for the Alorinda 251 but that there has been no return on the warrant. It therefore asks that if the Alorinda 251 has not been arrested, that the court order that the Alorinda 251 not be moved or sold. No opposition has been filed to this request.

IV.

Since, "[i]f a matter is brought in the wrong venue, the court in which it is brought may, on its own motion or otherwise, transfer it to any court in which the matter might properly have been brought," 6 F.S.M.C. 304(2), this case is hereby transferred to the FSM Supreme Court trial division,

[21 FSM R. 133]

Yap venue. The FSM Supreme Court clerk's office on Pohnpei shall transmit the file to the clerk's office in Yap, which shall assign this case the next available Yap docket number. Henceforth, all filings will be under that docket number and all further proceedings will take place in Yap.

AND IT IS FURTHER ORDERED that the barge Alorinda 251 shall not be moved or sold until further order of the court.

Footnotes:

¹ The court is aware that the venue statutes do not "impair the jurisdiction of a court over any matter involving a party who does not make timely and sufficient objection to the venue." 6 F.S.M.C. 304(1). Since no in personam party objected to the Pohnpei venue, the court might have been inclined to allow this action to remain on the Pohnpei docket if this case was solely an in personam action. But it is not. It is primarily an in rem action, and for in rem actions, venue is jurisdictional.

² The FSM national government is one defendant, and as a matter of law, the court must conclude that it is present in every state.