FSM SUPREME COURT TRIAL DIVISION
Cite as Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187 (Pon. 2019)
FISHY CHOPPERS, LTD.,
vs.
F/V MARITA 88, her engines, tackle, machinery,
equipment, appurtenances, etc.,
In Rem Defendant,
JOHANNA SEAFOODS LIMITED, JOHANNA-
SUBIC SEAFOODS CORPORATION, KUROSHIO
COMPANY LTD., and HELICOPTER AERIAL
SURVEYS PTY LTD. d/b/a Tropic Helicopters,
In Personam Defendants.
_________________________
JOHANNA-SUBIC SEAFOODS CORPORATION,
Counterclaimant,
vs.
FISHY CHOPPERS, LTD.,
Counter-Defendant.
CIVIL ACTION NO. 2018-023
ORDER DENYING DISMISSAL
Larry Wentworth
Associate Justice
Hearing: January 16, 2019
Decided: March 4, 2019
APPEARANCES:
For the Plaintiff:
Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941
For the Defendants:
Stephen V. Finnen, Esq.
(ship, Johanna &
P.O. Box 1450
Johanna-Subic)
Kolonia, Pohnpei FM 96941
For the Defendants:
Erick B. Divinigracia, Esq.
(Kuroshio & Tropic)
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941
* * * *
Rule 12(b)(2) dismissal for lack of jurisdiction over the person raises a question as to whether the controversy or the defendant has sufficient contacts, ties, or relationships with the forum to give the court the right to exercise judicial power over the defendant. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 195 (Pon. 2019).
A motion to dismiss because of a contract's forum selection clause is properly made under Rule 12(b)(3) – improper venue – and (usually) also Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and the common law doctrine of forum non conveniens. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 195 (Pon. 2019).
A motion to dismiss because an agreement's forum selection clause names a different court to hear the dispute is a motion to dismiss for improper forum – improper venue. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 195 (Pon. 2019).
Parties may designate by contract a forum in which any litigation is to take place, and such forum selection clauses are presumed valid and will be enforced absent a strong showing that it would be unreasonable or unjust, or fraud or overreaching is involved. But a forum selection clause will be stricken when it is unenforceably vague and ambiguous or void as against public policy. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 196 (Pon. 2019).
There are two types of forum-selection clauses – mandatory and permissive. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 196 (Pon. 2019).
A mandatory forum selection clause requires that all litigation between the parties be conducted in the named forum and nowhere else – it must contain language that clearly designates a forum as the exclusive one. Mandatory forum selection clauses contain clear language that litigation will proceed exclusively in the designated forum. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 196 (Pon. 2019).
A permissive forum selection clause merely allows a chosen forum to exercise personal jurisdiction over the parties but does not bar litigation in another forum and will not alter the presumption in favor of the plaintiff's choice of forum. Forum selection clauses which give a court jurisdiction without clearly making that jurisdiction exclusive are permissive rather than mandatory.
Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 196 (Pon. 2019).
The forum selection clause must unambiguously name a forum. If it does not, then it is permissive, not mandatory. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 196 (Pon. 2019).
Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum. In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum but do not prohibit litigation elsewhere. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 196 (Pon. 2019).
A forum selection clause which states that "[t]he jurisdiction for . . . this contract shall be the Commonwealth of Australia" and that "all parties agree to submit to the jurisdiction of the Australian courts," does not unambiguously name a forum since it does not name any forum at all, or specify any venue, and does not prohibit any litigation elsewhere. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 197 (Pon. 2019).
The law is clear: when venue is specified in a forum selection clause with mandatory or obligatory language, the clause will be enforced; when only jurisdiction is specified the clause will generally not be enforced unless there is some further language indicating the parties' intent to make venue exclusive. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 197 (Pon. 2019).
A forum selection clause is permissive when the clause refers only to jurisdiction and does so in non-exclusive terms (e.g., there is no use of the terms "exclusive," "sole," or "only"). Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 197 (Pon. 2019).
When the parties agreed "to submit to the jurisdiction of the Australian courts," but did not make that submission exclusive or choose a venue, and, although "shall" is a mandatory term, the term "jurisdiction for . . . this contract shall be the Commonwealth of Australia," cannot mandate anything more than that (if suit was brought there) Australia has jurisdiction and the plaintiff could not object to litigating there, but it does not mean that the same subject matter cannot be litigated in any other court. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 197-98 (Pon. 2019).
A forum selection clause is clearly permissive when it does not unambiguously name a forum, or contain any clear, unequivocal mandatory language naming a forum (or even naming any forum at all) and making that venue exclusive, but mandates only that Australian courts could have jurisdiction if suit were filed there. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 198 (Pon. 2019).
Any ambiguity in a forum selection clause must be construed against its drafter. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 198 (Pon. 2019).
Even when a dismissal is not proper under a forum selection clause, a court may still dismiss a case under the forum non conveniens doctrine. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R.
187, 198 (Pon. 2019).
Forum non conveniens is a common law doctrine that allows a court the discretion, if the forum is inappropriate or inconvenient for the defendant, to refuse to hear a case even though the court has subject-matter jurisdiction and personal jurisdiction and venue are both properly established. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 198 (Pon. 2019).
Forum non conveniens is not a claim that the court lacks jurisdiction over the case, but is a doctrine that the court may, as a matter of its sound discretion, decline jurisdiction and dismiss a case when the parties' and the witnesses' convenience and the ends of justice would be better served if the action were brought and tried in another forum where the action could be heard. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 198 (Pon. 2019).
A permissive forum selection clause may be enforced when a dismissal under the forum non conveniens doctrine is also appropriate. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 198 n.6 (Pon. 2019).
When a party does not contend that the court has jurisdiction but that it is inappropriate or inconvenient for it or for any witnesses, and instead, contends that the court either lacks subject-matter jurisdiction or should enforce the contract's forum selection clause as mandatory, the party's reliance on the forum non conveniens doctrine is misconceived. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 199 (Pon. 2019).
Australia is not a forum that could be more convenient than Pohnpei to the parties or to the witnesses when the parties operate in the FSM (and in the FSM Exclusive Economic Zone), and the witnesses are, or were, all on Pohnpei or on vessels operating out of Pohnpei. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 199 (Pon. 2019).
The courts broadly construe the term "necessaries" to mean any goods or services that are useful to the vessel to keep her out of danger, and enable her to perform her particular function. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 199 (Pon. 2019).
The term "necessaries" does not mean absolutely indispensable; rather the term refers to what is reasonably needed in the ship's business. The test to apply in deciding whether the subject matter of a contract is necessary to the operation, navigation, or management of a ship is a test of reasonableness, not of absolute necessity. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 199 (Pon. 2019).
Necessaries are the things a prudent owner would provide to enable a ship to perform well the functions for which she has been engaged. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 199 (Pon. 2019).
While a fish-spotting helicopter is not an absolute necessity for a purse seiner, it does enable the vessel to perform well her particular function and the function for which she had been engaged – catching fish. A prudent owner would conclude it was reasonably needed in the vessel's business. It is thus a necessary provided the vessel, and anyone who furnishes necessaries to any foreign or domestic vessel will have a maritime lien on the vessel. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 199 (Pon. 2019).
Maritime lien enforcement is an in rem proceeding against a vessel and a court can only exercise in rem jurisdiction when the res (the vessel), or its substitute, is physically within the court's territorial jurisdiction and under the court's control. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 199 n.7 (Pon. 2019).
Although a lien priority for creditors who provide necessaries (goods, materials, or services) to a vessel is absent from 19 F.S.M.C. 326(2), it is provided for elsewhere that a maritime lien for necessaries ranks after the maritime liens set out in section 326 and also after registered mortgages or charges recorded in accordance with the statute. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 199-200 (Pon. 2019).
Two helicopter charter agreements can only be maritime contracts when the performance of those agreements (fish spotting and search and rescue) was to take place at sea, while operating from a vessel at sea, and directly related to that vessel's use to catch fish. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 200 (Pon. 2019).
A maritime contract is a contract relating to a ship in its use as such, or to commerce or navigation on navigable waters, or to transportation by sea or to marine employment. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 200 n.8 (Pon. 2019).
A defendant's alleged breach of a maritime contract falls within the FSM Supreme Court's original and exclusive jurisdiction over admiralty and maritime cases. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 200 (Pon. 2019).
The FSM Supreme Court has jurisdiction in rem over all vessels irrespective of their flag and all maritime claims wherever arising with respect to claims for goods, materials or services supplied to a vessel. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 200 (Pon. 2019).
A defendant cannot plead, as a defense to a conversion claim, the alleged superior right of a third party (jus tertii – the right of a third party) to the property; a defendant can only plead its own defenses, not those of another. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 200 (Pon. 2019).
The right and title of a third party, the so-called jus tertii defense, is not in and of itself a good defense to an action for conversion. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 200 (Pon. 2019).
Although FSM courts are not bound to adopt common-law doctrines, they are statutorily authorized to use the ALI Restatements of the Law to consider, determine, and apply the common law in the absence of written law while keeping in mind the suitability of that common law principle for the FSM. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 201 n.11 (Pon. 2019).
One who is otherwise liable to another for harm or interference with a chattel is not relieved of that liability because a third person has a legally protected interest in the chattel superior to that of the other. This general rule applies to actions for conversion. The common law name for the right of a third person was jus tertii. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 201 (Pon. 2019).
The application of jus tertii in conversion of chattels means that the modern tort of conversion subjects the wrongdoer to liability to the possessor for the chattel's entire value in addition to any special damages resulting from the conversion, and this liability does not depend on the existence of the possessor's responsibility to the owner for the chattel's loss. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 201 (Pon. 2019).
To maintain a common law action for conversion, a plaintiff must establish that he was in possession of the goods, or entitled to possession at the time of the conversion, and this rule has even been applied to permit recovery by one whose possession is wrongful, and in defiance of the owner, although in all such cases the plaintiff has been in possession under some colorable claim of right. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 201 (Pon. 2019).
The converter may also be liable to a person entitled to immediate possession of the chattel or to one entitled to future possession of the chattel. It is immaterial that the one in possession of the chattel is not entitled to retain possession as against some third person, or that he has obtained possession wrongfully. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 201 (Pon. 2019).
Since the elements of fraud are: 1) a knowing or deliberate misrepresentation by the defendant, 2) made to induce action by the plaintiff, 3) with justifiable reliance by the plaintiff upon the misrepresentations, 4) to the plaintiff's detriment, a plaintiff must show that the misrepresentations were done to induce action by the plaintiff, and that the plaintiff relied on them to the plaintiff's detriment, and Rule 9(b) requires that when alleging fraud, the circumstances constituting the fraud must be stated with particularity. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 202 (Pon. 2019).
When alleging with the required particularity the circumstances constituting fraud, a plaintiff must identify particular statements and actions and specify why they are fraudulent. Conclusory allegations will not satisfy the requirement to plead with particularity and will subject the pleader to dismissal. Thus, someone pleading fraud should state the time, place, and content of the misrepresentation, the fact misrepresented, and what was obtained as a consequence of the fraud. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 202 (Pon. 2019).
A complaint does not plead a fraud cause of action with the requisite particularity when it does
not identify any misrepresentation that a defendant made to the plaintiff with the intent to induce action (or non-action) by the plaintiff, and which then reasonably induced that action (or non-action) by the plaintiff, to the plaintiff's detriment and when, at most, it alleges misrepresentations made to government agencies with the intent to induce non-action by those agencies. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 202 (Pon. 2019).
Any application to the court for an order is a motion. Fishy Choppers, Inc. v. M/V Marita 88, 22 FSM R. 187, 202 n.12 (Pon. 2019).
* * * *
LARRY WENTWORTH, Associate Justice:
On January 16, 2019, the court heard: [1] Defendant Kuroshio Company Ltd. Motion to Dismiss Based under the Doctrine of Forum non Conveniens; FSM Civ. Pro. R. 12(b)(2); and FSM Civ. Pro. R. 12(b)(6), filed October 30, 2018; [2] Defendant Helicopter Aerial Surveys Pty. Ltd. d/b/a Tropic Helicopters Motion to Dismiss Based under FSM Civ. Pro. R. 12(b)(6), filed October 30, 2018; and the [3] Opposition to Motions to Dismiss by Kuroshio Company Ltd. and Helicopter Aerial Surveys Pty. Ltd. d/b/a Tropic Helicopters, filed by the plaintiff, Fishy Choppers, Ltd., on December 3, 2018, and [4] a Supplement to Opposition to Motions to Dismiss by Kuroshio Company Ltd. and Helicopter Aerial Surveys Pty. Ltd. d/b/a Tropic Helicopters, filed December 27, 2018. The two motions to dismiss are, with the exception of any fraud cause of action, denied for the reasons stated below.
This case involves two helicopters used by purse seine fishing vessels to spot potential catch. At one point, Johanna-Subic Seafoods Corporation ("Johanna-Subic"), a corporation organized under Philippine law, owned the helicopters, which Johanna-Subic had registered with the Civil Aviation Authority of the Philippines. Johanna-Subic also owned, and still owns, the fishing vessel Marita 88, which is flagged by Papua New Guinea and registered in Port Moresby.
On June 1, 2016, Johanna-Subic and Fishy Choppers, Ltd. ("Fishy Choppers"), a corporation registered and domiciled in the Republic of Vanuatu, concluded a purchase sale agreement in which Fishy Choppers bought two helicopters from Johanna-Subic for $1.2 million, payable in 36 monthly installments of $33,333, with all payments to be deducted from the $80,000 a month combined rental rate for the two helicopters. To finance the purchase from Johanna-Subic, Fishy Choppers purportedly borrowed the $1.2 million purchase price from Auspicious International Enterprise Ltd. ("Auspicious"), a British Virgin Islands corporation, with the $33,333 monthly installment payments going to Auspicious to repay the loan. Fishy Choppers agreed to mortgage the helicopters to Auspicious. David Norman, Fishy Choppers' principal and owner, was the loan's guarantor.
Also executed on June 1, 2016,1 were two charter agreements, one for each helicopter, in which Kuroshio Company Ltd. ("Kuroshio"), a corporation with its principal office in Kaohsiung City, Taiwan, chartered the two helicopters, with a pilot and mechanic (or engineer) for each to be supplied by Fishy
Choppers. Kuroshio was named as the charterer2 and Fishy Choppers named as the helicopters' owner and operator. One helicopter, described as a Hughes 500C model, was chartered at $35,000 per month, and the other, described as a Hughes 500D model, was chartered at $45,000 per month.
The Hughes 500C model was assigned to operate off the F/V Simbun 88, a Johanna-Subic fishing boat, but on January 21, 2017, it was, along with its pilot, mechanic, and helicopter parts and tools, transferred to the F/V Marita 88, another Johanna-Subic owned fishing boat.
The Hughes 500D model was assigned to operate off the F/V Malva 888, another Johanna-Subic fishing boat. At some point in 2017, most likely when the helicopters were not needed because the fishing boats were in dry dock or being overhauled, the two helicopters were shipped to the Philippines to be de-registered there so that they could be exported to, and registered by, Fishy Choppers in Vanuatu. On November 7, 2017, the two (dismantled) helicopters were shipped from Manila, Philippines to Pohnpei, with an invoice showing that Johanna-Subic had sold them to Fishy Choppers.
Such was the apparent need for the helicopters' fish-spotting, they were, on arrival on Pohnpei, promptly reassembled and sent out with Johanna-Subic's fishing boats. The helicopters were never sent on to Vanuatu for registration there. Nor were they ever registered in the FSM.
Later, likely without Fishy Choppers's foreknowledge, the Hughes 500C model helicopter was removed from the M/V Marita 88 and put in (apparently disassembled) storage at a facility on Pohnpei run by Helicopter Aerial Surveys Pty Ltd. doing business as Tropic Helicopters ("Tropic"). The Hughes 500D model was then transferred to the M/V Marita 88. When, in September 2017, Norman attempted to gain control of the Hughes 500C model helicopter and have it moved to storage at Ocean Care Co. on Pohnpei, Tropic resisted and informed him that Johanna-Subic owned the helicopter. Norman was also unable to gain access to the Hughes 500D model helicopter on the F/V Marita 88, and the helicopter spare parts on that vessel.
On October 1, 2018, Fishy Choppers filed a Verified Complaint in Personam and in Rem Against Vessel against Tropic, Kuroshio, Johanna-Subic, and Johanna Seafoods Ltd. ("Johanna"), in personam, and against the F/V Marita 88, in rem. Alleging that it had a maritime lien cognizable against the F/V Marita 88 for debts owed it, Fishy Choppers sought the vessel's arrest before it could depart. On October 2, 2018, the Chief Justice, then presiding over this matter, authorized the clerk to issue a warrant for the F/V Marita 88's arrest, which the FSM National Police effected that day. The Hughes 500D model was aboard the F/V Marita 88 when it was arrested.
On October 5, 2018, Fishy Choppers filed a First Amended Verified Complaint in Personam and in Rem Against Vessel.3 On October 17, 2018, the parties stipulated to the vessel's release with a $2.36 million bond as security. After hearing the next day, the Chief Justice directed that the bond be deposited in an interest-bearing account and ordered the F/V Marita 88's release. The Hughes 500D model was on the F/V Marita 88 when it was released and put to sea. The Hughes 500C model was still in storage (and presumably still disassembled) at Tropic. Kuroshio and Tropic both now seek dismissal of all claims Fishy Choppers has made against them.
Kuroshio moves to dismiss Fishy Choppers' action against it because the action must be heard in a different court; because Fishy Choppers' claims do not give rise to the right to a maritime lien; because Johanna-Subic, not Fishy Choppers is the true owner of the two helicopters that Fishy Choppers claims Kuroshio converted; and because Fishy Choppers' fraud and deceit allegations are not pled with particularity.
A. First Cause of Action – Maritime Lien
Kuroshio contends that Fishy Choppers' claims against it in the first cause of action (or perhaps the whole case) must be dismissed either under the forum non conveniens doctrine or for lack of jurisdiction over the person (over Kuroshio) under Rule 12(b)(2). In the alternative, Kuroshio asserts that Fishy Choppers' claims under its first cause of action do not, under FSM law, qualify for a maritime lien.
1. Rule 12(b)(2) and Jurisdiction over the Person
Kuroshio asserts that dismissal must be granted under Rule 12(b)(2) because the court lacks jurisdiction over the person. Civil Procedure Rule 12(b)(2) – dismissal for lack of jurisdiction over the person – "raises a question as to whether the controversy or the defendant has sufficient contacts, ties, or relationships with the forum to give the court the right to exercise judicial power over the defendant." 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1351, at 266 (3d ed. 2004) (issue typically implicates a jurisdictional statute or rule and frequently implicates the Constitution's due process clause).4
Kuroshio does not assert that it has insufficient contacts with the FSM for an FSM court to maintain jurisdiction over it. Nor does Kuroshio claim that it does not operate in the FSM, or within the FSM Exclusive Economic Zone. Kuroshio also does not claim that it was not properly served the complaint and a summons or that the service of process was somehow deficient, thus preventing the court from exercising jurisdiction over it. What Kuroshio does claim is that, in this case, the court cannot exercise jurisdiction over it because of the forum selection clauses in its charter agreements with Fishy Choppers.
Kuroshio misidentified the Rule 12(b) subsection it was invoking. A motion to dismiss because of a contract's forum selection clause is properly made under Rule 12(b)(3) – "improper venue" – and (usually) also Rule 12(b)(6) – "failure to state a claim upon which relief can be granted," and the common law doctrine of forum non conveniens. 14D CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER & RICHARD D. FREER, FEDERAL PRACTICE AND PROCEDURE § 3803.1, at 57 (4th ed. 2013). A motion to dismiss because an agreement's forum selection clause names a different court to hear the dispute is a motion to dismiss for improper forum – improper venue. National Fisheries Corp. v. New Quick Co., 9 FSM R. 120, 125 (Pon. 1999); see also Continental Ins. Co. v. M/V Orsula, 354 F.3d 603, 607-08 (7th Cir. 2003) ("[a] lack of venue challenge, based upon a forum-selection clause, is appropriately brought as a Rule 12(b)(3) motion to dismiss"). The court's analysis will proceed as if
Kuroshio had cited the correct Rule 12(b) subsection(s).
2. Forum-Selection Clause
Kuroshio's challenge to the court's jurisdiction rests on the two charter agreements' identical forum-selection clauses. Those clauses read: "The jurisdiction for the legal conduct of this contract shall be the Commonwealth of Australia and all parties agree to submit to the jurisdiction of the Australian courts unless otherwise agreed to between the two parties." Charter Agreement ¶ 18.10. Kuroshio claims that, since it never otherwise agreed to another jurisdiction, litigation in Australia is mandatory.
Parties may designate by contract a forum in which any litigation is to take place, and such forum selection clauses are presumed valid and will be enforced absent a strong showing that it would be unreasonable or unjust, or fraud or overreaching is involved. Lee v. Han, 13 FSM R. 571, 578 (Chk. 2005); FSM Dev. Bank v. Ifraim, 10 FSM R. 1, 5 (Chk. 2001); FSM Dev. Bank v. Gouland, 9 FSM R. 605, 607-08 (Chk. 2000); New Quick Co., 9 FSM R. at 125. But a forum selection clause will be stricken when it is unenforceably vague and ambiguous or void as against public policy. Phillip v. Marianas Ins. Co., 11 FSM R. 559, 563 (Pon. 2003). The court will not make this decision lightly, as judicial restraint requires the exercise of extreme caution in striking a portion of any freely entered into contract. Id.
There are two types of forum-selection clauses – mandatory and permissive. FSM Dev. Bank v. Ifraim, 10 FSM R. 107, 109 (Chk. 2001). A mandatory forum selection clause requires that all litigation between the parties be conducted in the named forum and nowhere else – it must contain language that clearly designates a forum as the exclusive one. Id. "Mandatory forum selection clauses contain clear language that litigation will proceed exclusively in the designated forum." 14D WRIGHT, MILLER, COOPER & FREER, supra, § 3803.1, at 112. A permissive forum selection clause merely allows a chosen forum to exercise personal jurisdiction over the parties but does not bar litigation in another forum and will not alter the presumption in favor of the plaintiff's choice of forum. Ifraim, 10 FSM R. at 110. Forum selection clauses which give a court jurisdiction without clearly making that jurisdiction exclusive are permissive rather than mandatory. Id.
The forum selection clause must unambiguously name a forum. Ifraim, 10 FSM R. at 5; Gouland, 9 FSM R. at 608; New Quick Co., 9 FSM R. at 125. If it does not, then it is permissive, not mandatory. Ifraim, 10 FSM R. at 109; see also Docksider, Ltd. v. Sea Tech., Ltd., 875 F.2d 762, 764 (9th Cir. 1989) ("[w]hen only jurisdiction is specified the [forum selection] clause will generally not be enforced without some further language indicating the parties' intent to make jurisdiction exclusive"); Atlantic Fin. Fed. v. Bruno, 698 F. Supp. 568, 570 (E.D. Pa. 1988) ("[a]lthough parties may contractually submit to the jurisdiction of a given court, the forum-selection clause must specify the forum with particularity before it will serve as a consent to the court's jurisdiction"). "Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum. . . . In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum but do not prohibit litigation elsewhere." Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318, 321 (10th Cir. 1997) (internal quotations and citations omitted).
The court takes judicial notice that the Commonwealth of Australia has a federal system of government which covers an entire continent and some islands. The court therefore must conclude that the Charter Agreements' forum selection clauses are ambiguous and unenforceable. The clauses do not designate what level – federal or state – or what court, or a venue or locale within Australia where that court should be located. Conceivably, the two parties could sue each other in different courts thousands of miles apart; for instance, one could sue in a federal court in Perth and the other in a state
court in Queensland. Such an outcome is not, and cannot be, possible with a mandatory forum selection clause.
The Charter Agreements' forum selection clauses which state that "[t]he jurisdiction for . . . this contract shall be the Commonwealth of Australia" and that "all parties agree to submit to the jurisdiction of the Australian courts," Charter Agreements ¶ 18.10, do not unambiguously name a forum. These clauses do not name any forum at all, or specify any venue, and they do not prohibit any litigation elsewhere.
"The law is clear: where venue is specified [in a forum selection clause] with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified the clause will generally not be enforced unless there is some further language indicating the parties' intent to make venue exclusive." Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992) (citing Docksider, Ltd., 875 F.2d at 764). See, e.g., Autoridad de Energia Electricia de Puerto Rico v. Ericsson Inc., 201 F.3d 15, 18-19 (1st Cir. 2000) (forum selection clause that "the parties agree to submit to the jurisdiction of the courts of the Commonwealth of Puerto Rico" was permissive since it was "an affirmative conferral of personal jurisdiction by consent and not a negative exclusion of jurisdiction in other courts"); John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs., Inc., 22 F.3d 51, 52 (2d Cir. 1994) (forum selection clause that provided "[a]ny dispute . . . shall come within the jurisdiction of the competent Greek courts" was permissive since it did not specifically exclude jurisdiction in other courts); Caldas & Sons, Inc. v. Willingham, 17 F.3d 123, 127-28 (5th Cir. 1994) (forum selection clause that stated "[t]he laws and courts of Zurich are applicable" was permissive despite the use of the word "shall" because the only thing certain was that the parties had consented to personal jurisdiction in the Zurich courts and there was no clear, unequivocal mandatory language); Citro Florida, Inc. v. Citrovale S.A., 760 F.2d 1231, 1232 (11th Cir. 1985) (ambiguous forum selection clause that stated only that "place of jurisdiction is Sao Paulo/Brazil" must be construed against its drafter "as a non-exclusive consent to jurisdiction" thus permitting non-drafter to sue in a U.S. court in Florida); Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956-57 (5th Cir. 1974) (forum selection clause that "the parties submit to the jurisdiction of the courts in New York" did not "on its face, clearly limit[] actions thereunder to the courts of a specific locale" was thus permissive, not mandatory); Cynergy Sys., Inc. v. Bright School, Inc., 656 F. Supp. 2d 150, 152 (D.D.C. 2009) (forum selection clause that "mandates only that the parties ’shall submit' to jurisdiction and agree that venue is proper in California if suit should be brought there," is permissive and plaintiff's choice of a D.C. forum "is entitled to deference").
A forum selection clause is permissive when "the clause refers only to jurisdiction and does so in non-exclusive terms (e.g., there is no use of the terms 'exclusive,' 'sole,' or 'only')." K&V Scientific Co. v. Bayerische Motoren Werke Aktiengesellschaft, 314 F.3d 494, 500 (10th Cir. 2002) (holding permissive a forum selection clause that provided: "Jurisdiction for all and any disputes . . . is Munich. All and any disputes . . . are subject to the laws of . . . Germany."); see also Sabal Ltd. LP v. Deutsche Bank AG, 209 F. Supp. 3d 907, 919 (W.D. Tex. 2016) (since a permissive forum selection clause does not contain any mandatory language binding the parties to a particular forum, "general rule . . . is that '[w]hen only jurisdiction is specified the forum selection clause will not be enforced without further language indicating parties' intent to make jurisdiction exclusive'" (quoting Fear & Fear, Inc. v. N.I.I. Brokerage, L.L.C., 851 N.Y.S.2d 311, 313 (N.Y. App. Div. 2008))).
While Kuroshio and Fishy Choppers did agree "to submit to the jurisdiction of the Australian courts," they did not make that submission exclusive or choose a venue. And, although "shall" is a mandatory term, the term "jurisdiction for . . . this contract shall be the Commonwealth of Australia," Charter Agreements ¶ 18.10, cannot mandate anything more than that (if suit was brought there) Australia has jurisdiction and Fishy Choppers could not object to litigating there, but "it does not mean
that the same subject matter cannot be litigated in any other court." Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987). The Hunt Wesson Foods court held that when the forum selection clause provided that "[t]he courts of California, Orange County shall have jurisdiction over the parties in any action," that clause only mandated that a party could not object to personal jurisdiction of an Orange County court and that, "[a]lthough 'shall' is a mandatory term," the clause was permissive not mandatory since "shall" "mandate[d] nothing more than that Orange County courts have jurisdiction." Id. at 76-77. It further held that "the language clearly falls short of designating an exclusive forum." Id. at 77-78.
The Charter Agreements' forum selection clauses are clearly permissive. Those clauses do not unambiguously name a forum, or contain any clear, unequivocal mandatory language naming a forum (or even naming any forum at all) and making that venue exclusive. They mandate only that Australian courts could have jurisdiction if suit were filed there.
Even if the forum selection clauses were ambiguous and could be interpreted as either a mandatory forum selection clause or a permissive one, the court would still have to conclude that the forum selection clauses are permissive. They were drafted by Kuroshio.5 Any ambiguity in a forum selection clause must be construed against its drafter. Ifraim, 10 FSM R. at 111; see also Caldas & Sons, 17 F.3d at 128 (ambiguity to be construed against drafter as a permissive forum selection clause); Hunt Wesson Foods, 817 F.2d at 78 (if forum selection language were ambiguous, it would be construed as permissive against drafter who argued it was mandatory); Keaty, 503 F.2d at 957 ("an interpretation [of a forum selection clause] is preferred which operates more strongly against the party from whom (the words) proceed").
The court must therefore deny a dismissal based on the Charter Agreements' forum selection clauses. But even when a dismissal is not proper under a forum selection clause, a court may still dismiss a case under the forum non conveniens doctrine. The court will thus now consider that doctrine.
3. Forum Non Conveniens Doctrine
Forum non conveniens is a common law doctrine that allows a court the discretion, if the forum is inappropriate or inconvenient for the defendant, to refuse to hear a case even though the court has subject-matter jurisdiction and personal jurisdiction and venue are both properly established. Lee, 13 FSM R. at 576. Forum non conveniens is not a claim that the court lacks jurisdiction over the case, but is a doctrine that the court may, as a matter of its sound discretion, decline jurisdiction and dismiss a case when the parties' and the witnesses' convenience and the ends of justice would be better served if the action were brought and tried in another forum where the action could be heard.6 Id.
Kuroshio does not contend that this court has jurisdiction but that it is inappropriate or inconvenient for it or for any witnesses. Instead, it contends that the court either lacks subject-matter jurisdiction or should enforce the contract's forum selection clause as mandatory and order that the case be heard in an Australian court. Kuroshio's reliance on the forum non conveniens doctrine is thus misconceived.
The court further notes that Australia does not even seem to be a forum that could be more convenient than Pohnpei to the parties or to the witnesses. The charter agreement parties operate in the FSM (and in the FSM Exclusive Economic Zone), and the witnesses are, or were, all on Pohnpei or on vessels operating out of Pohnpei.
B. Maritime Lien Status or Subject-Matter Jurisdiction
Kuroshio asserts, in the alternative, that, if the first cause of action cannot be dismissed because of the forum selection clause, then it should be dismissed because Fishy Choppers' claims cannot give rise to the right to a maritime lien. For this proposition, Kuroshio relies on the listing of maritime lien priorities in 19 F.S.M.C. 326(2), which does not list a lien priority for creditors who provided goods, materials, or services to a vessel.
Fishy Choppers contends that its maritime lien on the F/V Marita 88 arose because it provided goods, materials, and services to the vessel. Those goods, materials, and services were two helicopters with spare parts, pilots and mechanics to fly and service them, and the helicopters' use to spot fish to catch, thus likely increasing the fishing vessel's profits. Fishy Choppers thus claims that its right to a maritime lien arose from its provision of necessaries to the vessel.
"[T]he term 'necessaries' is broadly construed by the courts to mean any goods or services that 'are useful to the vessel to keep her out of danger, and enable her to perform her particular function.'" 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 9-3, at 494 (2d ed. 1994) (quoting Equilease Corp. v. M/V Sampson, 793 F.2d 598, 603 (5th Cir. 1986) (en banc)). "The case law is clear that necessaries does not mean absolutely indispensable; rather the term refers to what is reasonably needed in the ship's business." Id. § 9-3, at 494-95. The test to apply "in deciding whether the subject matter of a contract is necessary to the operation, navigation, or management of a ship is a test of reasonableness, not of absolute necessity." Inbesa America, Inc. v. M/V Anglia, 134 F.3d 1035, 1036 (11th Cir. 1998); Nehring v. Steamship M/V Point Vail, 901 F.2d 1044, 1048 (11th Cir. 1990). "'Necessaries are the things a prudent owner would provide to enable a ship to perform well the functions for which she has been engaged.'" Bradford Marine, Inc. v. M/V Sea Falcon, 64 F.3d 585, 589 (11th Cir. 1995) (quoting M/V Sampson, 793 F.2d at 603 (en banc)).
While a fish-spotting helicopter is not an absolute necessity for a purse seiner, it does enable the vessel to perform well her particular function and the function for which she had been engaged – catching fish. A prudent owner would conclude it was reasonably needed in the vessel's business. It was thus a necessary provided the vessel.
"Any person who furnishes . . . necessaries to any foreign or domestic vessel . . . shall have a maritime lien on the vessel . . . ." 19 F.S.M.C. 335(1); see also Maruwa Shokai (Guam), Inc. v. Pyung Hwa 31, 6 FSM R. 1, 3 (Pon. 1993) (supplies and services that are necessaries when provided to a vessel give rise to maritime liens).7 The absence of a lien priority in 19 F.S.M.C. 326(2) for creditors
who provide necessaries (goods, materials, or services) to a vessel, should not trouble anyone, because it is provided for elsewhere. A maritime lien for necessaries "rank[s] after the maritime liens set out in section 326 of this chapter and also after registered mortgages or charges recorded in accordance with this chapter." 19 F.S.M.C. 335(1)(d).
Furthermore, even if Kuroshio's maritime lien challenge were successful in claiming that Fishy Choppers did not provide necessaries, the court would still have subject-matter jurisdiction over this case. That is because the two helicopter charter agreements can only be maritime contracts since performance of those agreements (fish spotting and search and rescue) was to take place at sea, while operating from a vessel at sea, and directly related to that vessel's use to catch fish.8
That would make this an admiralty or maritime case. A defendant's alleged breach of a maritime contract falls within the FSM Supreme Court's original and exclusive jurisdiction over admiralty and maritime cases. Kelly v. Lee, 11 FSM R. 116, 117 (Chk. 2002) (citing FSM Const. art. XI, § 9(a)). The FSM Supreme Court has "jurisdiction in rem over all vessels irrespective of their flag and all maritime claims wherever arising with respect to: . . . (15) claims for goods, materials or services supplied to a vessel." 19 F.S.M.C. 1303.9 The court thus has subject-matter jurisdiction over this case and personal jurisdiction over the parties.
C. Second Cause of Action – Conversion, Fraud, and Deceit
1. Conversion
Kuroshio moves to dismiss Fishy Choppers' second cause of action – conversion – because, in its view, Fishy Choppers cannot establish ownership of the two helicopters since Johanna-Subic still owns both those helicopters. Kuroshio does not dispute that, until the time of the alleged conversion, Fishy Choppers possessed the helicopters and parts while operating them, as required by the charter agreements, to spot fish for Kuroshio-related vessels.
Kuroshio cannot plead, as a defense to Fishy Choppers' claim of right to the helicopters, the alleged superior right of a third party (jus tertii)10 to the property; a defendant can only plead its own defenses, not those of another. Cf. College of Micronesia-FSM v. Rosario, 10 FSM R. 175, 185 (Pon. 2001) (trespass defendant cannot use as a defense the rights of third parties not before the court), aff'd, 11 FSM R. 355, 360 (App. 2003). "The right and title of a third party, the so-called Jus tertii defense, is not in and of itself a good defense to an action for conversion." McGranahan v. Dahar, 408
A.2d 121, 127 (N.H. 1979) (citing RESTATEMENT (SECOND) OF TORTS § 895(1) (1977)11). "'[O]ne who is otherwise liable to another for harm or interference with . . . a chattel is not relieved of that liability because a third person has a legally protected interest in the . . . chattel superior to that of the other.'" Wallander v. Barnes, 671 A.2d 962, 973 (Md. Ct. App. 1996) (quoting RESTATEMENT (SECOND) OF TORTS § 895(1) (1977)). "The general rule stated in [§ 895](1) . . . applies to actions for conversion . . . ." RESTATEMENT (SECOND) OF TORTS § 895 cmt. a. (1977). "The general rule stated applies when the defendant seeks to defeat the plaintiff's claim by showing that a third person has a legally protected interest in the . . . chattel superior to that of the plaintiff. . . . The common law name for the right of a third person was jus tertii." Id. § 895 cmt. b. The application of "'[j]us tertii in conversion of chattels'" means that
"the modern tort of conversion subjects the wrongdoer [to liability] (1) to the possessor . . . for the entire value of the chattel in addition to any special damages resulting from the conversion, and this liability does not depend on the existence of the possessor's responsibility to the owner for the loss of the chattel."
Wallander, 671 A.2d at 974 (quoting 1 F. HARPER, F. JAMES & O. GRAY, THE LAW OF TORTS § 2.8, at 2:34 (3d ed. 1996)).
"In order to maintain the common law action . . . the plaintiff must establish that he was in possession of the goods, or entitled to possession at the time of the conversion," and this "rule has even been applied to permit recovery by one whose possession is wrongful, and in defiance of the owner, although in all such cases the plaintiff has been in possession under some colorable claim of right." W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 15, at 102-03 (5th ed. 1984) ("person in possession [could] recover full value of the chattel, although the person did not own it"). "The converter may also be liable to a person entitled to immediate possession of the chattel . . . or to one entitled to future possession of the chattel . . . . b. It is immaterial that the one in possession of the chattel is not entitled to retain possession as against some third person, or that he has obtained possession wrongfully." RESTATEMENT (SECOND) OF TORTS § 224 A cmts. a & b (1977)).
Accordingly, since Kuroshio's ground for dismissal of Fishy Choppers' conversion cause of action is a defense that Kuroshio cannot raise, dismissal of Fishy Choppers' conversion claim against Kuroshio must be denied.
2. Fraud and Deceit
Kuroshio contends that Fishy Choppers' amended complaint does not plead the elements of fraud or deceit and therefore any fraud cause of action against it must be dismissed. Fishy Choppers responds that "[t]o the extent the court finds that the elements for a fraud cause of action have not been properly plead [sic], plaintiff requests leave to amend its complaint to provide further details on the tortious conduct perpetrated against it as shown by the facts at hand." Opp'n to Mots. to Dismiss at 24 (Dec. 3, 2018). Neither Kuroshio nor Tropic filed anything opposing this request.
Since the elements of fraud are: 1) a knowing or deliberate misrepresentation by the defendant, 2) made to induce action by the plaintiff, 3) with justifiable reliance by the plaintiff upon the misrepresentations, 4) to the plaintiff's detriment, a plaintiff must show that the misrepresentations were done to induce action by the plaintiff, and that the plaintiff relied on them to the plaintiff's detriment. Mori v. Hasiguchi, 17 FSM R. 630, 637 (Chk. 2011); Arthur v. Pohnpei, 16 FSM R. 581, 597 (Pon. 2009); Mid-Pacific Constr. Co. v. Semes, 7 FSM R. 522, 526 (Pon. 1996). And Rule 9(b) requires that when alleging fraud, the circumstances constituting the fraud must be stated with particularity. Pohnpei v. Kailis, 6 FSM R. 460, 462 (Pon. 1994) (extent of the particularity is guided by Rule 8(a) which requires a short and plain statement of the claim).
When alleging the circumstances constituting fraud with the required particularity, a plaintiff must identify particular statements and actions and specify why they are fraudulent. Arthur v. Pohnpei, 16 FSM R. 581, 597 (Pon. 2009). Conclusory allegations will not satisfy the requirement to plead with particularity and will subject the pleader to dismissal. Id. Thus, someone pleading fraud should state the time, place, and content of the misrepresentation, the fact misrepresented, and what was obtained as a consequence of the fraud. Pacific Agri-Products, Inc. v. Kolonia Consumer Coop. Ass'n, 7 FSM R. 291, 293 (Pon. 1995).
A review of the First Amended Verified Complaint does not reveal that Fishy Choppers pled a fraud cause of action with the requisite particularity. It does not identify any misrepresentation that Kuroshio made to Fishy Choppers, with the intent to induce action (or non-action) by Fishy Choppers, and which then reasonably induced that action (or non-action) by Fishy Choppers, to Fishy Choppers' detriment. At most, it alleges misrepresentations made to government agencies with the intent to induce non-action by those agencies (for instance, statements made to government agencies that Fishy Choppers did not own the helicopters were allegedly intended to prevent those agencies from helping Fishy Choppers recover possession of the helicopters).
Thus, to the extent that the amended complaint attempts to plead a fraud or deceit cause of action, that cause of action is dismissed without prejudice. But to the extent that Fishy Choppers’ factual allegations are that Kuroshio, or another defendant, made certain representations to others as part of the alleged conversion, those allegations remain. Fishy Choppers' request (motion12) for leave to amend its complaint, if it had not properly pled the elements for a fraud cause of action, was not opposed. The court therefore grants Fishy Choppers leave, for a limited time, to further amend its complaint to plead a fraud cause of action.
Defendant Helicopter Aerial Surveys Pty. Ltd. d/b/a Tropic Helicopters moves to dismiss the complaint against it because Fishy Choppers' claims do not give rise to the right to a maritime lien; because Johanna-Subic, not Fishy Choppers is the true owner of the two helicopters that Fishy Choppers claims were converted; and because Fishy Choppers' fraud and deceit allegations are not pled with particularity.
These grounds are the same as those that Kuroshio raised (minus the ground that this action must be heard in a different forum). No reason is apparent why Tropic's motion to dismiss should be decided any differently than Kuroshio's motion to dismiss. Tropic's motion to dismiss is therefore denied with the exception that, to the extent that the First Amended Verified Complaint attempts to plead a fraud or deceit cause of action, that cause of action is dismissed (with leave granted for Fishy Choppers to amend).
Also pending before the court is the Motion to Reduce or Return Bond filed by the M/V Marita 88 and Johanna. Since the interested parties may, in light of the court's ruling today, wish to revise or supplement their filings, they may do so no later than April 1, 2019, with any responses to another party's supplemental filing due no later than April 16, 2019. The motion will be heard on April 24, 2019, at 3:00 p.m.
Accordingly, both Kuroshio Company Ltd.'s and Helicopter Aerial Surveys Pty. Ltd.'s motions to dismiss are denied with the exception that any separate cause of action for fraud or deceit is dismissed without prejudice. Fishy Choppers, Ltd. is therefore granted leave, until March 27, 2019, to file and serve a Second Amended Verified Complaint in Personam and in Rem Against Vessel pleading a fraud or deceit cause of action. Kuroshio Company Ltd. and Helicopter Aerial Surveys Pty. Ltd. shall file and serve their answers to the First Amended Verified Complaint within ten days of notice of the entry of this denial. FSM Civ. R. 12(a).
Supplemental filings concerning the pending Motion to Reduce or Return Bond shall be filed and served no later than April 1, 2019, with any response to those supplements to be filed and served no later than April 16, 2019. The motion will be heard on April 24, 2019, at 3:00 p.m.
_____________________________________Footnotes:
1 Certain signatures on this and the other June 1, 2016 documents were not affixed until June 22, 2016.
2 With the F/V Simbun 88 also named as charter for the Hughes 500C helicopter and F/V Malva 888 also named as charter for the Hughes 500D helicopter.
3 Johanna-Subic, Johanna, and the F/V Marita 88 answered (Nov. 1, 2018), and Johanna-Subic counterclaimed against Fishy Choppers, which answered the counterclaim (Dec. 3, 2018).
4 When the court has not construed an FSM civil procedure rule which is identical or similar to a U.S. counterpart, it may look to U.S. sources for guidance. In re Sanction of Sigrah, 19 FSM R. 305, 311 n.1 (App. 2014); George v. Albert, 17 FSM R. 25, 31 n.1 (App. 2010); Berman v. College of Micronesia-FSM, 15 FSM R. 582, 589 n.1 (App. 2008). FSM Civil Procedure Rule 12(b) is drawn from Rule 12(b) of the U.S. Federal Rules of Civil Procedure. The FSM Supreme Court has not considered this aspect of Rule 12(b) before.
5 Plaintiff's counsel suggests that the only reason the clauses were part of the Charter Agreements was because Kuroshio merely copied, without thinking about it, the Charter Agreements' terms from charter agreements that Tropic had made with it and that Tropic's owner was an Australian. The court gives this suggestion no consideration and merely interprets the Charter Agreements' forum selection clauses as written.
6 The court realizes that this description of the forum non conveniens doctrine may seem somewhat at odds with the commentators' statement that a motion to dismiss based on a contract's forum selection clause is made under Rule 12(b)(3) and (usually) also Rule 12(b)(6) and the common law doctrine of forum non conveniens. 14D WRIGHT, MILLER, COOPER & FREER, supra, § 3803.1, at 57. The court reconciles this by concluding that a permissive forum selection clause may be enforced when a dismissal under the forum non conveniens doctrine is also appropriate.
7 This is a further reason not to enforce the forum selection clause. Maritime lien enforcement is an in rem proceeding against a vessel and a court can only exercise in rem jurisdiction when the res (the vessel), or its substitute, is physically within the court's territorial jurisdiction and under the court's control. Pt. Alorinda Shipping v. Alorinda 251, 21 FSM R. 129, 132 (Pon. 2017); People of Gilman ex rel. Tamagken v. M/V Easternline I, 17 FSM R. 81, 84 (Yap 2010); In re Kuang Hsing No. 127, 7 FSM R. 81, 82 (Chk. 1995).
8 "A maritime contract is '[a] contract relating to a ship in its use as such, or to commerce or navigation on navigable waters, or to transportation by sea or to marine employment[.]'" J.A.R., Inc. v. M/V Lady Lucille, 963 F.2d 96, 98 (5th Cir. 1992) (quoting Thurmond v. Delta Well Surveyors, 836 F.2d 952, 954 (5th Cir. 1986)).
9 Re-enacted by FSM Pub. L. No. 19-126, § 5, 19th Cong., 5th Spec. Sess. (2016).
10 Jus tertii is "[t]he right of a third party." BLACK'S LAW DICTIONARY 942 (9th ed. 2009).
11 Although FSM courts are not bound to adopt common-law doctrines, they are authorized by statute to use the Restatements of the Law to determine and apply the common law in the absence of written law while keeping in mind the suitability of that common law principle for the FSM. Iriarte v. Individual Assurance Co., 18 FSM R. 340, 365 (App. 2012) (1 F.S.M.C. 203; also 1 Pon. C. § 1-123); FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 580 n.14 (Pon. 2011) (1 F.S.M.C. 203). Courts are statutorily authorized to consider the common law as expressed in the ALI Restatements of Law. Iriarte, 18 FSM R. at 355 n.3 (1 Pon. C. § 1-123 and 1 F.S.M.C. 203).
12 It must be a motion because "[a]n application to the court for an order shall be by motion," FSM Civ. R. 7(b)(1), and Fishy Choppers' request is an application for an order granting it leave to amend its current complaint. See People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 307, 313 (Yap 2012)(shipowner's application for the limitation of its liability was a motion); Robert v. Simina, 14 FSM R. 257, 259 (Chk. 2006) (filed response was actually a motion since it asked the court for an order); Kiniol v. Kansou, 13 FSM R. 456, 459 n.2 (Chk. 2005) (any request made to the court for relief is a motion).
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