THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. M.T. HL Achiever (III),
7 FSM Intrm. 256 (Chk. 1995)

[7 FSM Intrm. 256]

FEDERATED STATES OF MICRONESIA
Plaintiff,

vs.

M.T. HL ACHIEVER, a Foreign Fuel Tanker,
and SKICO LIMITED, a Korean Entity,
Defendants.

 CIVIL ACTION NO. 1995-1012
ORDER
 
Hearing:  September 8, 1995
Decided:  September 29, 1995

APPEARANCES:
For the Plaintiff:          Carole Rafferty, Esq.
                                     Office of the FSM Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei FM 96941

For the Defendant:     Kathleen B. Alvarado, Esq.
(M.T. HL Achiever)     Law Offices of R. Barrie Michelsen
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

                                     Elizabeth Robertson, Esq.
                                     Klemm, Blair, Sterling & Johnson
                                     1008 Pacific News Building
                                     236 Archbishop F.C. Flores Street
                                     Agaa, Guam 96910

*    *    *    *

HEADNOTES
Admiralty; Constitutional Law) Due Process) Notice and Hearing; Search and Seizure
     Where a vessel has been arrested pursuant to a warrant, a post-seizure hearing is required by the constitutional guarantee of due process.  FSM v. M.T. HL Achiever (II), 7 FSM Intrm. 256, 257 (Chk. 1995).

Constitutional Law) Due Process) Notice and Hearing; Search and Seizure
     An owner of seized property cannot challenge the statute it was seized under as unconstitutional because the statute fails to provide for notice and a hearing, if procedural due process, notice and a right to a hearing, are provided.  FSM v. M.T. HL Achiever (II), 7 FSM Intrm. 256, 258 (Chk. 1995).

Civil Procedure; Constitutional Law) Judicial Powers
     A judge cannot adopt a procedure not provided for by the rules because the Constitution grants

[7 FSM Intrm. 257]

the Chief Justice, and Congress, the power to establish rules of procedure.  FSM v. M.T. HL Achiever (II), 7 FSM Intrm. 256, 258 (Chk. 1995).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case came before me on the motion of the defendant vessel M.T. HL Achiever and claimant Hong Lam Marine Pte. Ltd., filed August 16, 1995, for an order dismissing this case and on the motion of the government to strike the claimant's counterclaim.  The case seeks forfeiture of the vessel and other relief.

I.  Motion to Dismiss
     The motion to dismiss is based on two grounds, 1) that the statute under which the forfeiture is brought, 24 F.S.M.C. 504, is unconstitutional in that it fails to provide for notice and hearing, and so violates these parties' procedural due process rights, and 2) that the mandatory forfeiture provision, 24 F.S.M.C. 504(1), violates the excessive fines prohibition of the FSM Constitution, art. IV, 8.

A.  Due Process
     A warrant was issued on July 5, 1995, for the arrest of the vessel, pursuant to court order, on the ground that it appeared that the vessel was fueling a fishing vessel within the Exclusive Economic Zone of the FSM without having a permit for such an activity.  A complaint was filed and summons issued on the same day ) July 5, 1995.

     The captain was served with the complaint on July 6, 1995.  Presumably, the vessel was arrested at the same time.  By July 11, 1995, counsel for the vessel had appeared and a post seizure hearing was held on July 17, 1995.  I concluded that such a post-seizure hearing is required by the constitutional guarantee of due process.  F/V American Eagle v. State, 620 P.2d 657, 666-67 (Alaska 1980).  On July 26, 1995 counsel for the claimant filed an answer and counterclaim on behalf of the claimant.  The same counsel represents the vessel and the claimant.

     As stated, the vessel and claimant base their due process argument solely on the failure of the statute to provide for notice and hearing, pointing out that 19 F.S.M.C. 1103, also a forfeiture statute, has such requirements, and further stating that the FSM has no rule which provides for notice.

     The government's opposition is based on two grounds, 1) that the vessel and claimant lack standing because in fact procedural due process was provided, and 2) that 24 F.S.M.C. 504(3), by providing that forfeiture "shall be a civil proceeding" insures due process by virtue of the Rules of Civil Procedure.

     The parties have provided both memorandums of points and authorities and oral argument, all of which have been helpful.

     I am persuaded by the government's first contention for the following reasons:

     The vessel was given procedural due process, and there is no showing that either the vessel or the claimant suffered any injury or that the result thus far in this case would have been any different

[7 FSM Intrm. 258]

if either the vessel or the claimant had been given a statute-, or rule-, required notice of the action with an opportunity to be heard.

     1.  The claimant somehow received prompt notice, engaged counsel and filed its pleading.  The vessel was given notice (the day of the arrest).  The vessel and the claimant thus do not show an actual injury.  E.F. Hutton & Co. v. Hadley, 901 F.2d 979, 984 (11th Cir. 1990).  Under these circumstances where normal notice and a right to a hearing are provided, it is not necessary to reach the issue of the constitutionality of the statute.  F/V American Eagle, 620 P.2d. at 667 (in which the unconstitutionality of the forfeiture statute was asserted).  Cf. United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905-06 (2d Cir. 1992) ("Because Muro has failed to show that any greater process would have altered the result at this stage of the forfeiture action, the order of the district court [denying motion to dismiss seizure] is affirmed").

     2.  The decision not to reach the constitutional issue presented by the motion conforms with the principle that unnecessary constitutional pronouncements are to be avoided.  Hadley v. Kolonia Town, 3 FSM Intrm. 101, 103 (Pon. 1987); Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 402 (Pon. 1984); Suldan v. FSM, 1 FSM Intrm. 339, 357 (Pon. 1983); Truk v. Hartman, 1 FSM Intrm. 174, 180-81 (Truk 1982).

     This principle was particularly relied upon in Wiren v. Eide, 542 F.2d 757 (9th Cir. 1976) in which that court held that actual receipt of notice deprived the vehicle owner of standing to raise the issue of whether the seizure statute denied him  due process. Id. at 762.

B.  Excessive Fine
     The motion to dismiss on the ground that the forfeiture violates the protection against excessive fines is clearly premature, and must be denied on that ground. FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 126 (Pon. 1995).

II.  Plaintiff's Motion to Strike
     On July 26, 1995 the vessel's owner, Hong Lam Marine Pte. Ltd. (Hong Lam), filed a Claim to Vessel and an Answer and Counterclaim.  FSM moves to strike the counterclaim (pages 4 and 5 of Answer and Counterclaim) on the ground that Hong Lam is not a party.  Hong Lam contends that I should allow it by following the procedure set out in United States Supplemental Rule for Certain Admiralty and Maritime Claims C(6) for a limited appearance by a vessel's owner as a claimant in order to defend its interests.  The FSM contends that if Hong Lam wants to appear it should move to intervene pursuant to Civil Rule 24.

     The motion to strike is granted.  Although I have used the U.S. Supplemental Admiralty Rules in the past for guidance when helpful, I cannot adopt a procedure not provided for by our rules.  The Constitution grants the Chief Justice the power to establish rules of procedure, FSM Const. art. XI, 9(c), which Congress may amend, id. 9(f).  I do not have that power.

     This ruling is based only on the motion's requested relief.  It is purposely narrow. No inclination on other issues raised in the memorandums or in oral argument should be implied.

Conclusion
     For the reasons stated:

[7 FSM Intrm. 259]

1. The motion to dismiss is denied with leave to renew the motion on the issue of excessive fines at an appropriate time.

2. The motion to strike the claimants. counterclaim, pages 4 and 5 of the Answer and Counterclaim, is granted.
                                                                                                                                                                                                                                                                                                           
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