THE  SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as FSM v. Skico, Ltd. (I) ,
7 FSM Intrm. 550 (Chk. 1996)

[7 FSM Intrm. 550]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

SKICO LIMITED and CHUUK MULTI-
PURPOSE STORAGE COMPANY,
Defendants.

CIVIL ACTION NO. 1995-1012

ORDERS

Richard H. Benson
Associate Justice

Hearing:  July 10, 1996
Decided:  August 15, 1996

APPEARANCES:
For the Plaintiff:          Teresa K. Zintgraff, Esq.
                       Assistant Attorney General
                       Office of the FSM Attorney General
                       P.O. Box PS-105
                       Palikir, Pohnpei FM 96941

For the Defendant:     Ron Moroni, Esq.
       (Skico)           P.O. Box 1618
                Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Evidence ) Burden of Proof; Fishing
     By statute, only the cargo actually used illegally, or the fish actually caught illegally, are subject to forfeiture, although the burden of proof (presumptions) rest on different parties depending on

[7 FSM Intrm. 551]

whether fish or cargo is involved.  It is a rebuttable presumption that all fish found a board a vessel seized for Title 24 violations were illegally taken, but there is no such presumption that the cargo found aboard was "cargo used" in the alleged violation.  FSM v. Skico, Ltd. (I), 7 FSM Intrm. 550, 552 (Chk. 1996).

Fishing
     Where a fuel tanker illegally fueled a fishing vessel and then loaded on more fuel cargo, only the amount of fuel cargo on the tanker before it reloaded is "cargo used" in violation of Title 24 subject to forfeiture.  FSM v. Skico, Ltd. (I), 7 FSM Intrm. 550, 552 (Chk. 1996).

Search and Seizure
     A person can only complain of an unlawful search or seizure if it is his own rights which have been violated, such as when the person had ownership or a possessory right to the place searched, or was the owner of the items seized.  A person also has standing to challenge a search and seizure of items as illegal when possession is an element of the crime charged, or when the person is legitimately on the premises searched and fruits of the search are to be used against him.  FSM v. Skico, Ltd. (I), 7 FSM Intrm. 550, 553 (Chk. 1996).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     Skico's Fourth Motion for Summary Judgment (Regarding Forfeiture) was filed July 2, 1996.  The motion seeks a partial summary judgment in its favor which would eliminate from forfeiture the bulk of the cargo fuel seized at arrest.  After oral argument on July 10, 1996, the matter was submitted for decision.

     These are the undisputed facts upon which the motion is based.  They are listed in chronological order.

     1.  The amended complaint alleges that M.T. HL Achiever unlawfully bunkered fuel on two dates the later of which is June 6, 1995.

     2.  Before refueling on June 13, 1996 only 32.814 kiloliters of fuel remained on board as cargo.

     3.  The HL Achiever received 2,512.259 kiloliters of cargo fuel on June 13, 1995.

     4.  When the HL Achiever was arrested on July 6, 1995, it had on board 762.727 kiloliters of cargo fuel.  The government in this action seeks the forfeiture of this fuel.  The value of the fuel was agreed upon and Skico posted security for the release of the fuel.

     Title 24, section 504, under which this action is brought provides:  "(1)  Any fishing vessel involved in the commission of any act prohibited by section 501 of this chapter, shall, along with its fishing gear, furniture, appurtenances, stores or cargo used be forfeited to the Federated States of Micronesia."  (The HL Achiever is alleged to be a fishing vessel by virtue of section 102(22)(b) which defines a fishing vessel as one which supplies other vessels involved in fishing activities.)

     Skico contends in this motion that only 32.814 kiloliters of the fuel on the Achiever when it was arrested could have been "used" in the prohibited act on June 6, 1996.

[7 FSM Intrm. 552]

     The government contends that I should not vary from my earlier ruling in denying Skico's Motion for Release of Bond/Motion to Dismiss.  Skico there asserted that the complaint was defective since there was no allegation that the fuel present at arrest was used in the prohibited act.  I felt that the complaint adequately met the requirements of Rule 8(a)(2) of the FSM Rules of Civil Procedure.  Thus I do not feel bound to that ruling in considering the present motion.

     The government also contends that all seized fuel should be subject to the forfeiture since it is all owned by Skico, which also owned the fuel on three other vessels which replenished the HL Achiever's cargo from time to time.

     I conclude the matter is decided by the words of the statute.  No fuel other than 32.814 kiloliters of what was seized could have been "used" in the alleged prohibited act.  The use of the word "its" ("vessel . . . along with its . . . cargo used . . .") in section 504(1) reinforces the conclusion that it is the cargo on board at the time of the prohibited act which is subject to the forfeiture.  Unlike 24 F.S.M.C. 509(2) which creates a rebuttable presumption that all fish found a board a vessel seized for Title 24 violations were illegally taken, section 504(1) creates no such presumption that the cargo found aboard was "cargo used" in the alleged violation.  Even if it had, Skico has rebutted it.  This result is in harmony with Congress's intention, as expressed by the plain language of the statutes, that only the cargo actually used illegally, or the fish actually caught illegally, should be forfeited, although the burden of proof (presumptions) rest on different parties depending on whether fish or cargo is involved.

     The parties have argued whether an adequate nexus exists which would justify forfeiting all fuel seized.  In my view that need not be reached.  By the statute's wording, it is whether the vessel's cargo was "used" not whether a nexus exists between like property of the cargo owner and the cargo involved that determines whether cargo is to be forfeited.

     The following factors support the result I reach.

     1.  Forfeitures are not favored in the law and so a strict construction against the government is appropriate.  36 Am. Jur. 2d Forfeitures and Penalties 8, at 615-16 (1968) ("statutes authorizing the forfeiture of property if it is illegally used, where it is ordinarily used for a legal purpose, are strictly construed, since they are very drastic in their operation").
 
     2.  During the four-month period prior to its arrest the HL Achiever bunkered some 155 vessels.  The government alleges that only three of those occasions were unlawful bunkering.  This pattern inclines me to a decision by which only cargo involved in the prohibited acts is subject to forfeiture.

     3.  The cases cited by Skico in which illegal funds are commingled with funds having a legitimate source provide an appropriate analogy for the present case.  Cf. United States v. Banco Cafetero Panama, 797 F.2d 1154, 1158-59 (2d Cir. 1986).

     The motion is accordingly granted.  Skico is requested to submit a proposed partial judgment approved as to form by the government.

*    *   *    *

     Skico's Motion to Suppress Evidence, filed April 30, 1996, was heard on July 10, 1996.  After oral argument the matter was submitted for decision.  The parties dealt with this matter as if this were a criminal case and the procedure was pursuant to Rule 41(f) of the FSM Rules of Criminal Procedure.  No objection being raised, I am satisfied to resolve the matter as presented.

[7 FSM Intrm. 553]

     Skico seeks an order suppressing as evidence all property and documents taken from the M.T. HL Achiever at the time of its arrest on July 6, 1995, on the ground that the search and seizure was in violation of the FSM Constitution.  It is clear that the search and seizure were for evidentiary purposes, not for inventory.

     The government opposes the motion on a number of grounds.  I find that three of them are meritorious.

     1.  The general rule is that a person can only complain of an unlawful search or seizure if it is his own rights which have been violated.  In this case there is no showing that Skico had ownership or a possessory right to the bridge where the documents were found, or that Skico was the owner of the documents themselves.

     Skico cites Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960) which grants standing when possession is an element of the crime charged, or when the person is legitimately on the premises searched and fruits of the search are to be used against him.  As to the first part of the rule, possession of the documents is not an element of this case.  As to the second holding, I do not find that the circumstance of Skico's supercargo being on board the vessel brings Skico within the second part of the Jones rule where there is no showing that the supercargo was on the bridge at the time of the search.

There remains a situation in which possession is not an element of the offense charged.  It seems that this situation is not affected by the rule of the Jones Case, and that cases holding in that situation that one who claims no interest in the property searched or seized cannot take advantage of an illegality of the search and seizure are still valid authority.

Annotation, Interest in Property as Requisite of Accused's Standing to Raise Question of Constitutionality of Search and Seizure, 4 L. Ed. 2d 1999, 2009 (1960).

     2.  The only factual basis concerning the seizure is in the deposition of the marine surveillance officer who seized the documents.  He testified in part that there was no search and that the vessel's captain handed the documents to the officer voluntarily.  Skico has failed to show that an unlawful search and seizure occurred.

     3.  Pursuant to 24 F.S.M.C. 513(1)(b)(i) an officer may search any foreign fishing vessel within fishery waters.

     The motion is accordingly denied.