Cite as Weilbacher vs. State, Kosrae (1988)

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APRIL 19, 1988


     Mr. Canny Palsis           Plaintiff
     Kosrae State, FSM 96944

     Mr. Richard Kaminski      Defendant
     Asst. Attorney General
     Kosrae State, FSM 96944

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     This case came before the Kosrae State Court on April 19, 1988 for a hearing on a motion to dismiss for lack of subject matter jurisdiction brought by the defendant, Kosrae State. Richard Kaminski of the Attorney General's office represented the State of Kosrae, and Canny Palsis of Micronesian Legal Services Corporation represented the plaintiff, Lucia Weilbacher. The motion to dismiss was granted at the hearing and this opinion is written to explain the court's analysis in reaching the decision.


     Plaintiff (hereinafter Lucia) was allegedly a passenger on the MV Frysna, owned by the State of Kosrae (hereinafter State) bound for Pohnpei on January 27, 1986. During that night, Lucia allegedly went with a friend to the restroom and the door banged shut, pinning one of her fingers against the wall. In the complaint, Lucia claims that this accident happened because the State was negligent in not maintaining adequate lighting and because the restroom door was not secured. In addition, Lucia claims that the State breached its contract with her to provide adequate, safe and seaworthy transportation.

     The State filed the affidavit of Waldon Phillip with its motion to dismiss. Mr. Phillip says that he was the acting First Mate on the MV Frysna during this trip and that the accident happened when the ship was approximately thirty miles out to sea.

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     The issue is whether this is a maritime matter that should be heard in the Federated States of Micronesia (FSM) Supreme Court trial division (hereinafter trial division) pursuant to Article XI Section 6(a) of the FSM Constitution.


     Article XI S 6(a) of the FSM Constitution provides that:
"The trial division of the Supreme Court has original and
exclusive jurisdiction in ...admiralty or maritime cases..." The plain meaning of original and exclusive jurisdiction is that the trial division is the only court that can hear these matters and, without doubt, this is the meaning that the framers of the FSM Constitution (hereinafter framers) intended. "The purpose of this amendment [which passed and became part of the constitution] is to make the trial division of the Supreme Court of Micronesia the only, court which can handle these cases." I. J. Micro. Con. Con. 492 A finding that this case involves admiralty jurisdiction therefore means that the Kosrae State Court is without subject matter jurisdiction to hear this case. There has only been one recorded case in the FSM which discusses admiralty jurisdiction. Lonno v Trust Territory (I) 1 FSM Intrm. 53 (KOS. 1982) involved a seaman who alleged that he was wrongfully discharged from the Trust Territory Maritime Service System. Chief Justice King found that the case involved

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a maritime contract and that the trial division had admiralty jurisdiction. In the process, h e also noted that the exact scope of admiralty jurisdiction is not defined in the FSM Constitution or its legislative history and that, due to the fact that United States has a similar provision in its constitution, the framers may have reasonably expected that the words in the Constitution of the Federated States of Micronesia would have substantially the same effect as similar words in the United States Constitution.

     In the United States, courts have traditionally determined whether a tort was within the federal court's admiralty jurisdiction by looking at where the tort occurred. If the tort occurred while the person was over navigable water, then the case was within the court's admiralty jurisdiction. If the tort happened when the person was on land, the case was not a maritime problem. Victory Carriers v Law 404 US 202, 92 S Ct 418, 30 L Ed 2d 383 (1971) This traditional rule was put into question in 1972 by the Executive Jet Aviation v Cleveland 409 US 249, 93 S Ct 493, 34 L Ed 2d 454 (1972) decision. This case involved a plane crash into navigable water and the court held that admiralty jurisdiction did not exist unless there was a relationship between the wrong and a traditional maritime activity. Following this decision, lower federal courts disagreed whether the traditional rule or the Executive Jet rule

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applied in non-aviation admiralty cases. Ten years later, the Supreme Court reconsidered the traditional rule and held that before a case is within the court's admiralty jurisdiction, there has to be a finding that the wrong occurred in navigable water and there has to be a relationship between the wrong and a traditional maritime activity. Foremost Insurance Co. v Richardson 457 US 668, 102 S Ct 2654, 73 L Ed 2d 300 (1982)

     In other cases, it might be difficult to determine the framers' intent for admiralty jurisdiction in the FSM by looking to the United States Constitution because at the time the FSM Constitution was written (1975) and ratified (1978), the federal courts in the United States could not agree on what the similar provision in the United States Constitution meant. Fortunately, this is not a problem here because the facts in this case satisfy both sides of the disagreement.

     In this case, the tort occurred when the Frsyna was thirty miles out to sea and I find that this satisfies the requirement that the wrong has to occur when the ship is in navigable water. At the time of the accident, the Frysna was transporting people from Kosrae to Pohnpei which means there was a relationship between the accident and commerce, which is a traditional maritime activity. I find that this case would be considered within the federal courts admiralty jurisdiction in the United States and that the framers reasonably expected that this case would also be within the trial division's jurisdiction.

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     An admiralty contract may also be involved in this case. Although the parties did not sign a formal contract for Lucia's transportation to Pohnpei, I find that the parties did enter into an implied contract for that passage. In the United States, contracts for transportation of passengers over navigable water are considered maritime contracts. 1 United States Supreme Court Digest 536 citing Archawski v Hanioti 350 US 532, 76 S Ct 617, 100 L Ed 676 This is another basis for finding that admiralty jurisdiction properly exists.

     In the Lonno case, Chief Justice King pointed out that the framers of the FSM constitution were familiar with the Trust Territory (T.T.) system. Due to the similarity between 5 TTC 53 and Article XI S 6(a), it is possible that the framers expected the court to look to TT admiralty decisions for guidance. Lakemba v Milne 4 T.T.R. 44 (Tr. Div. Marshalls) appeal dismissed 4 T.T.R. 488 (1969) is the only High Court decision which discusses admiralty jurisdiction and, in that case, Judge Goss held that the substantive and general rules of U.S. maritime common law should be applied. This leads us back to the discussion above and further draws me to the conclusion that this case should have been brought in the Supreme Court trial division.

     In other situations, Kosraean custom and tradition may also offer guidance. However, counsels did not introduce evidence of any tradition and, pursuant to the Kosrae Code, I am prohibited from considering tradition unless satisfactory evidence of it is introduced. KC 6.303

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     In conclusion, I find that the framers of the FSM Constitution reasonably expected that we would look to United States decisions when interpreting the scope of admiralty tort jurisdiction and that, pursuant to those authorities, this case would properly be considered a maritime matter within the trial division's admiralty jurisdiction. Further, since Article XI, section 6(a) provides for the trial division's exclusive jurisdiction in admiralty matters, I find that the State Court is without jurisdiction to hear this matter. The motion to dismiss is hereby granted.

     So Ordered this 11th   day of May , 1988.

Harry H. Skilling
Chief Justice
Kosrae State Court

Entered this 11th  day of , 1988

/s/(Richard Sigrah)
Clerk of Court

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