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Meninzor v MV Caroline Voyager [2007] FMSC 22; 15 FSM Intrm. 97 (Pon. 2007) (15 June 2007)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Meninzor v. M/V Caroline Voyager [2007] FMSC 22; 15 FSM Intrm. 97 (Pon. 2007)

GIBSON MENINZOR and AKLIHNA MENINZOR,
Plaintiffs,

vs.

M/V CAROLINE VOYAGER, her engines, tackle,
machinery, equipment, appurtenances, etc.,
In rem Defendant,

and

POHNPEI STATE GOVERNMENT,
In personam Defendant.

CIVIL ACTION NO. 2007-014

ORDER DENYING REQUEST FOR ARREST WARRANT; MEMORANDUM

Andon L. Amaraich
Chief Justice

Decided: June 15, 2007

APPEARANCE:

For the Plaintiffs:
Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941

[2007] FMCSC 10; [15 FSM Intrm 100]

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HEADNOTES

Admiralty - Ships
In an admiraltry case, the court must review the verified complaint and supporting papers to determine whether the conditions for an in rem action appear to exist. If the court finds a sufficient basis, it may then issue an order authorizing the clerk to issue an order authorizing the vessel’s arrest. Meninzor v. M/V Caroline Voyager, [2007] FMSC 22; 15 FSM Intrm. 97, 99 (Pon. 2007).

Admiralty - Ships - Maritime Liens
A claim against the owner, demise charterer, manager or operator of a registered vessel in respect of loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the vessel may be secured by a maritime lien on the vessel. Meninzor v. M/V Caroline Voyager, [2007] FMSC 22; 15 FSM Intrm. 97, 99 (Pon. 2007).

Admiralty - Ships - Maritime Liens
A registered vessel may be arrested in respect of default in payment on claims secured by maritime liens or mortgages against the vessel recorded in the register and when sufficient evidence is provided to the Supreme Court to warrant a registered vessel’s arrest, the court may issue an order for the vessel’s arrest. Thus a vessel may be arrested when sufficient evidence is provided to the court that there has been a default in payments secured by a maritime lien, but when there is no present obligation for payment, there can be no default. Meninzor v. M/V Caroline Voyager, [2007] FMSC 22; 15 FSM Intrm. 97, 99 (Pon. 2007).

Admiralty - Ships - Maritime Liens
When the statute provides that a vessel may be arrested for default in payment on claims secured by maritime liens or mortgages against the vessel recorded in the register and that the Registrar shall upon the request of any person record in the register notice of such person’s claim to a lien on a registered vessel, supported by credible documentary evidence and when the statute further provides that where a vessel has caused personal injury giving rise to a claim which creates a maritime lien against the vessel, the lien holder may require the Registrar to record the lien against the vessel in the Register. But when the plaintiffs have not shown that their maritime lien has been recorded, this is a ground for denying the request for an arrest warrant for the vessel. Meninzor v. M/V Caroline Voyager, [2007] FMSC 22; 15 FSM Intrm. 97, 99-100 (Pon. 2007).

Admiralty - Ships; Admiralty - Ships - Maritime Liens
Title 19 does not permit any lien or authorize proceedings in rem against any government vessel engaged in noncommercial services. Meninzor v. M/V Caroline Voyager, [2007] FMSC 22; 15 FSM Intrm. 97, 100 (Pon. 2007).

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[15 FSM Intrm 101]

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On June 14, 2007, the plaintiffs Gibson Meninzor and Aklihna Meninzor filed their verified complaint, which alleges that plaintiff Gibson Meninzor suffered serious injuries through the negligence of the state of Pohnpei and its agents (collectively referred to as "Pohnpei") when he was attempting to leave the M/V Caroline Voyager. Also on June 14, 2007, the Meninzors filed a motion for arrest of the Caroline Voyager, and a request for review under Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims, which provides that the court shall review the verified complaint and supporting papers to determine whether the conditions for an in rem action appear to exist. Under that rule, if the court finds a sufficient basis, it may then issue an order authorizing the clerk to issue an order authorizing the arrest of the vessel. The verified complaint alleges that at relevant times the state of Pohnpei was in possession of the Caroline Voyager under a demise charter agreement. The Caroline Voyager is now in Pohnpei, but is scheduled to leave on June 17, 2007.

The Meninzors assert in their complaint that Gibson Meninzor’s right arm and shoulder are permanently paralyzed as a result of the injuries he sustained due to Pohnpei’s negligence. The Meninzors recite damages of no less than the statutory maximum against Pohnpei, and no less that $500,000 against the vessel. They claim a maritime lien under 19 F.S.M.C. 326(2)(b), and further seek the arrest of the Caroline Voyager under 19 F.S.M.C. 337(1).

Subsection 326(2)(b) of Title 19 of the FSM Code provides in part

[e]ach of the following claims against the owner, demise charterer, manager or operator of a Registered Vessel shall be secured by a maritime lien on the vessel: . . . (b) claims inect of loss loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the vessel.

Based on the allegations in the complaint Meni’ claim falm falls wils within the statute’s ambit. For the purposes of this order, the court deems the Meninzors to have a claim for personal injuries secured by a maritime lien against the Caroline Voyager.

The Meninzors contend that they are entitled to have the Caroline Voyager arrested based on 19 F.S.M.C. 337(1) and (2). Subsection 337(1) provides that "[a] Registered Vessel may be arrested in respect of default in payment on claims secured by maritime liens or mortgages against the vessel recorded in the Register," while subsection 337(2) provides in part that "[w]here sufficient evidence is provided to the Supreme Court to warrant the arrest of a Registered Vessel, the Court may issue an order for the arrest of the vessel." Thus a vessel may be arrested where sufficient evidence is provided to the court that there has been a default in payments secured by a maritime lien, which in this case is the lien resulting from Mr. Meninzor’s personal injuries. However, the Meninzors have presented no evidence that this court may consider under subsection 337(2) that demonstrates that Pohnpei is in "default in payment on [a] claim[] secured by [a] maritime lien[]" as required by 19 F.S.M.C. 337(1). The Meninzors’ claim is in the early stages of litigation. While that claim may be reduced to judgment, it has yet to be adjudicated, and any obligation on Pohnpei’s part to pay the Meninzors has yet to arise. Since there is no present obligation for payment, there can be no default. The Meninzors’ request for an arrest warrant to arrest the Caroline Voyager is therefore premature and is accordingly denied.

[15 FSM Intrm 102]

Moreover, subsection 337(1) of Title 19 requires that a vessel may be arrested for "default in payment on claims secured by maritime liens or mortgages against the vessel recorded in the Register" (emphasis added). Subsection 325(1) provides that the "Registrar shall upon the request of any person record in the Register notice of such person’s claim to a lien on a Registered Vessel, supported by credible documentary evidence," while subsection 334(1) further requires that where a "vessel has caused . . .onal y giving ving rise tose to a claim which creates a maritime lien against the vessel, the lien holder may require the Registrar to record the lien ag the l in the Register" (emphasis added). The Meninzorinzors havs have not shown that their maritime lien has been recorded and that the second requirement of subsection 337(1) has thereby been met. This is an additional ground for denying the request for an arrest warrant for the Caroline Voyager.

Subsection 102(2) of Title 19 provides that "[n]othing in this title shall permit any lien or authorize proceedings in rem against any Government Vessel engaged in noncommercial services." The complaint alleges that at relevant times the Caroline Voyager was chartered by the state of Pohnpei. A vessel chartered and controlled by the government, either state or national, is defined as a government vessel under subsections 106(8) and (9) of Title 19. Based on the complaint and accompanying papers, the court cannot determine whether the Caroline Voyager, which is about to depart on a field trip, is engaged in a commercial purpose such that the lien exclusion under subsection 102(2) would not apply. A resolution of this question, which the court does not resolve here, would be a precondition to the issuance of an arrest warrant if the other requirements for the issuance of the warrant were met.

Based on the foregoing, the Meninzors’ motion for an arrest warrant for the M/V Caroline Voyager is denied.

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