Buy cheap gay porn.

6ASR2d

6ASR2d

M/V Conquest; Star-Kist Foods, Inc. v.


STAR-KIST FOODS, lnc., and
STAR-KIST SAMOA, Inc., Appellants

v.

THE M/V CONQUEST, SECURITY PACIFIC
GHC REID, Inc., SAN DIEGO HELICOPTER,
Inc., and GOLDEN GLOW, Inc., Appellees

High Court of American Samoa
Trial Division

AP No.13-85

October 15, 1987

__________

There is no right to a new trial or a new appeal before the same judge or judges that heard the original trial or appeal.

Before REES, Chief Justice.

Counsel: For Appellants, Togiola T.A. Tulafono
For Appellee Security Pacific National Bank, Roy J.D. Hall,
Daniel Minteer, and Lillick McHose & Charles

On request to reappoint members of appellate division panel:

The appellate case in which this request was filed was decided over a year ago, in June 1986. The Appellate Division in that case reversed the decision of the trial court and remanded the case for a new decision in accordance with certain instructions.

The trial judge whose decision had been reversed, former Chief Justice Gardner, was no longer a member of the High Court by the time the Appellate Division remanded the case. The case was therefore heard on remand by the new Chief Justice, the author of the present opinion. On remand the trial court reached the same result as had [6ASR2d43] originally been reached by Chief Justice Gardner, although for different reasons.

Obviously, the trial court on remand believed its decision was consistent with applicable law including the instructions of the Appellate Division, which had rejected Chief Justice Gardner's reasoning but had not indicated any dissatisfaction with the result he had reached. The appellants disagree, and not only have appealed the decision on remand (AP No.11-87) but also have filed a "Motion to Vacate and Set Aside the Decision and Order on Remand and Compelling Compliance With Appellate Court Order or 6/25/86." They have styled this motion as a motion in AP No. 13-85, the original appeal of Chief Justice Gardner's decision, rather than in AP No.11-87, their appeal from the decision on remand. Finally, they have written a letter to the present writer (in his administrative capacity as Chief Justice rather than in his judicial capacity as the author of the opinion on remand) requesting the reappointment of the panel that decided the June 1986 appeal. This would entail the reappointment of two Acting Associate Justices who were appointed for a session during March of 1986. It would also entail the appointment of former Associate Justice Murphy, who has resigned (from the High Court, as an Acting Associate Justice for the purpose of hearing the motion.

This request must be denied. It happens frequently in courts throughout the world that appellate courts remand decisions to trial courts and that the decision on remand is appealed. In the process, the original trial judge or one or more of the appellate judges might have left the bench. There is no right to a new trial or a new appeal before the same judge or judges that heard the original trial or appeal. In this case the administrative inconvenience of reassembling the panel would be substantial. The Chief Justice would have to make a special request to the Secretary of the Interior. Experience has shown that such requests must invariably be followed by numerous overseas telephone calls to various other Interior Department officials. Successful requests for the appointment of Acting Associate Justices involve the filling out of many forms and the expenditure of funds charged against the Hi Court budget, even if the judges would have been personally willing to waive any reimbursement. In [6ASR2d44] any event; for reasons unrelated to this case it seems unlikely that a request by the Chief Justice for appointment of the particular panel requested by appellants would have received favorable consideration from the Department of the Interior.

The "Motion to Vacate" will automatically be presented to the next regular appellate session, whose members have now been appointed by the Secretary. (As it happens, one of the members of the appellate panel is Judge Samuel P. King, who was a member of the panel whose reappointment was requested by appellants and who was the author of the opinion with whose instructions the appellants contend the trial court failed to comply.)

**********

Suisala v. Moaali’itele,


TAMAFILI SUISALA, Petitioner

v.

MOAALI'ITELE K. TU'UFULI, Commissioner
of Public Safety, and FOE TUITELELEAPAGA,
Warden, Tafuna Correctional Facility, Respondents

High Court of American Samoa
Trial Division

CA No. 130-87

October 7, 1987

__________

Habeas corpus proceeding serves to question the lawfulness of a conviction and confinement, not the merits of the underlying criminal charge, and such a proceeding must not be used as substitute for appeal.

Right to effective assistance of counsel applies in American Samoa. Am. Samoa Rev. Const. art I, Section 6; A.S.C.A. §§ 46.0502, 46.1001.

Right to effective assistance of counsel entitles a criminal defendant not to errorless representation, but to meaningful adversarial testing of prosecution's case.

Counsel can meet constitutional standard for effective assistance by advising client to plead guilty if that advice falls within the range of competent representation under the circumstances.

In order to overcome strong presumption of effectiveness and meet burden of proof, defendant attacking effectiveness of counsel must show specific unreasonable errors and a reasonable likelihood that absence of those errors would have changed the result of the case.

Defense counsel's extensive pre-trial discovery, including interviewing witnesses, amassing and reviewing documents, and conferring with defendant, was well above constitutional standard of effective representation. [6ASR2d16]

Counsel's alleged failure to apprise court of facts tending to show defendant's innocence did not amount to constitutionally ineffective representation when defendant failed to show how those facts could have changed the result at trial, and when defendant himself related those facts to the court at his sentencing.

Habeas corpus petitioner's testimony that his attorney failed to advise him of the possibility and meaning of consecutive sentences was overcome by attorney's contradictory testimony, since attorney's credibility remained intact but petitioner's "credibility was undermined by his pattern of serious but unsupported allegations.

Evidence of full, adequate representation at sentencing hearing, combined with absence of any indication that resulting sentence was inappropriate, defeated habeas corpus petitioner's argument that his counsel's failure to move for post-trial reduction of sentence amounted to ineffective representation .

To satisfy rule requiring court to find a factual basis for accepting a guilty plea, the sentencing judge must develop a record of that basis, for example by having the accused describe his criminal conduct, or by asking the defendant whether he understands the charges against him and whether he committed the acts charged in the indictment. T.C.R.Cr.P. Rule 11(f).

Judicial assessment of factual basis for accepting a guilty plea may be made at any time prior to judgment and sentencing and may be based on any evidence sufficiently articulated in the record. T.C.R.Cr.P. Rule 11(f).

Difference between defendant's testimony and prosecution evidence did not preclude court from finding sufficient factual basis for accepting guilty plea when aggregation of evidence fully justified acceptance of plea.

Before KRUSE, Associate Justice. LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge

Counsel: For Petitioner, Frank Swett
For Respondents, James Doherty, Assistant Attorney General [6ASR2d17]

Petitioner, Tamafili Suisala, prays for a writ of habeas corpus to contest the validity of his incarceration pursuant to judgment and sentence entered by this court in American Samoa Government v. Tamafili Suisala, CR Nos. 4 & 5-85.

Petitioner was initially held over to the High Court to answer the charges in CR No.4-85 of ten counts of embezzlement, ten counts of forgery, and one count of tampering with a witness in violation of various provisions of the Criminal Code. Consequent to a plea bargain, the information was amended to contain eight counts of embezzlement and one count of tampering, with the other matters being dismissed. Petitioner, who was at all times represented by the Public Defender, entered pleas of guilt to the information as amended.

With regard to CR No.5-85, petitioner was initially charged with thirty-one counts of embezzlement and thirty-one counts of forgery. The information, as a result of plea bargaining, was amended to contain three counts of embezzlement with the dismissal of the others. Petitioner entered herewith pleas of guilt respectively.

Resultantly, petitioner was adjudged and sentenced on the consolidated eleven counts of embezzlement to terms of imprisonment of seven years for each count, with sentences to run concurrently. He was further sentenced to a term of five years imprisonment in connection with the count of tampering, which sentence was to run consecutively with the others.

Petitioner's grounds for relief under the present proceedings are:

(a) that petitioner in the aforementioned criminal matters was denied his constitutional right to effective assistance of counsel in derogation of his sixth amendment rights under the United States Constitution, and his rights pursuant to art. I, § 6 of the Revised Constitution of American Samoa; and

(b) that the Court in the said criminal matters did not establish a factual basis for accepting pleas of guilt and that a verbatim record [6ASR2d18] the plea bargain proceedings was no longer available.

Good cause appearing, the writ was issued to respondents herein, and petitioner was granted an evidentiary hearing on his allegations. Petitioner appeared with his Counsel, Frank Swett, and respondents with Assistant Attorney General James Doherty.

HABEAS CORPUS

The common law writ of Habeas Corpus ad subjiciendum, or "the great writ" referred to in the federal constitution, art. I, § 9, is also preserved and made available in the Territory by art. I, § 7 of the Revised Constitution of American Samoa. The trial division of the High Court of American Samoa has, by statute, specific jurisdiction to issue "all writs". See A.S.C.A. § 3.0208 (a)(7).

Historically, the writ was designed to obtain immediate relief from illegal detention, and in this regard the purpose of the habeas corpus proceeding"....is not to inquire into the criminal act complained of, but into the right of liberty notwithstanding the act." Ex parte Tong, supra. 108 U.S. 556, 559 (1883). The proceeding is not part of the underlying criminal case, but is an independent, collateral attack on the conviction. Peyton v. Rowe, 391 U.S. 54 (1968); Fay v. Noia, 372 U.S. 391 (1963); Ex parte Tong, supra. Further, habeas corpus is not a substitute for a writ of error nor is it in any sense an appeal, and therefore the writ is not the proper means by which to assail mere errors and irregularities in criminal proceedings. Eagles v. United States, 329 U.S. 304 (1946); Smith v. Bennett, 365 U.S. 708 (1961).

On the other hand, the writ reaches errors of constitutional dimensions. As the Supreme Court stated in Preiser v. Rodriguez, 411 U.S. 475, 485 (1973), "[O]ver the years, the writ of habeas corpus evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law, even though imposed pursuant to conviction by a court of competent jurisdiction." (Citations omitted). [6ASR2d19]

With these preliminary observations, we consider petitioner's claims.

DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL

Petitioner alleges deprivation of sixth amendment rights in that his court-appointed counsel, the Public Defender: "failed to use basic methods of discovery"; failed to interview the former president of the Development Bank, Auina To'oto'o, whom petitioner considered a " key witness" to his defense; failed to undertake, or was minimal with, pre-trial investigation; failed to explain to petitioner that consecutive sentences could be imposed; failed to inform the Court of facts consistent with petitioner's innocence, which should have been placed before the Court prior to the acceptance of guilty pleas; and failed to make a post-trial motion for reduction of sentence, or to inform petitioner of his right to such a motion.

At least since Gideon v. Wainwright, 372 U.S. 335 (1963), it has been settled law that the right to counsel secured by the sixth amendment, and made applicable to the states by the fourteenth amendment, is a fundamental right to a fair trial. See also Hamilton v. Alabama, 368 U.S. 52 (1961). This right to counsel is also part of the fundamental law in the Territory by virtue of article I, section 6 of the Revised Constitution of American Samoa and statutorily embodied in A.S.C.A §§ 46.0502 and 46.1001.

In expanding on this right, the Supreme Court recently clarified that the sixth amendment goes beyond the perfunctory appointment of counsel and the perfunctory performance of counsel's services. In United States v. Cronic, 466 U.S. 648 (1984), the Court reiterated that the right to counsel is the right to "effective" assistance of counsel. The Court went on to state that the standard for effectiveness mandated by the sixth amendment is:

the right of the accused to require the prosecution's case to
survive the crucible of meaningful adversary testing. When a
true adversarial criminal trial has been conducted ---even if
defense counsel may have made demonstrable errors ---the
kind of testing envisioned by the Sixth Amendment has
occurred. [6ASR2d20]

Id. at 656. By way of footnote, the Court added:

Of course, the Sixth Amendment does not require that counsel
do what is impossible or unethical. If there is no bona fide
defense to the charge, counsel cannot create one and may
disserve the interests of his client by attempting a useless
charade. At the same time, even when no theory of defense is
available, if the decision to stand trial has been made, counsel
must hold the prosecution to its heavy burden of proof beyond
a reasonable doubt. And, of course, even when there is a bona
fide defense, counsel may still advise his client to plead guilty if
that advice falls within the range of reasonable competence
under the circumstances.

Id. at n.19.

In the Court.'s view, the focus of the inquiry is not on the relationship of the criminal defendant and his lawyer but on whether there has been meaningful adversarial confrontation. The accused in order to make out a claim for "ineffective assistance" can only do so by pointing to specific errors made by counsel at trial.

Also in a decision handed down the same day, Strickland v. Washington, 466 U.S. 668 (1984), the C:ourt talked of "effectiveness" as being measured against an objective standard of "reasonableness" under prevailing professional norms as reflected in American Bar Association standards and the like. The Court was also careful to caution that such standards were but guides to determine reasonableness, and reaffirmed established judicial restraint from second guessing counsel's tactical decisions from hindsight.

The Court in both cases made clear also that the burden of proving ineffectiveness of counsel, falling below the constitutional measure, lay with the defendant. The standard of proof is viewed against a strong presumption of reliability, in favor of effectiveness, and not only must the accused sufficiently identify unreasonable errors on the part of trial counsel, he must also demonstrate that absent such errors, it would be [6ASR2d21] reasonably likely that the result of the case would have been different.
Given these guides, we turn to petitioner's proofs.

We find petitioner's allegations concerning lack of pretrial discovery and investigation to be entirely without foundation. Against the absence of any evidence by petitioner in this regard, we find the Court's files on the criminal matters to be abundantly evident with extensive pre-trial discovery measures, We also accept the evidence of the Public Defender, which was undisputed by petitioner, that his office undertook numerous interviews of potential witnesses and reviews of documented evidence produced in connection with the charges. To this end, the Public Defender also submitted his work files. A perusal of these files highlights petitioner's allegations as either being made with abject recklessness or by outright fabrication.

The Public Defender testified that petitioner was initially charged with some sixty or eighty counts of embezzlement and forgery and he was informed of a number of other potential charges being processed by the Attorney General. In response to discovery, his office obtained many documents in the way of checks and accounts, as well as all the police and investigation reports leading up to the charges. He recalled numerous conferences with petitioner on this material. In the course of a number of investigations he was pursuing, he talked to different. witnesses and people, and confronted petitioner with a number of inconsistencies he found wi th what petitioner had relayed to him. He further stated that this was not the usual case, in that he did not initiate dialogue on plea arrangement. It was the client who earlier urged the Public Defender to attempt to secure the "best deal."

When he entered into plea negotiation, the Public Defender testified that he kept petitioner informed during their various meetings. He further added that he had always advised the petitioner that he was prepared for trial if petitioner was not satisfied with the resulting plea agreement. In the course of these discussions with his client the Public Defender reviewed the possibility of [6ASR2d22] winning and losing, and advised his client of the potential scope of punishment. (1)

On the other hand, the extent of petitioner's testimony before us was the attempt to impress innocence. He testified that the $75,000 which he was accused of taking from Development Bank was utilized to paint and repair the Lumana'i Building, belonging to the bank. In support of this, petitioner invited the Court to consider the fact that Chief Justice Gardner, who presided at the criminal matters, had sent an investigator to Western Samoa in the attempt to discover where the money went. That investigation did not reveal any evidence of the money having gone to Western Samoa. On the other hand, petitioner claims, the money was neither visible in American Samoa, given his assets and the extent of his liabilities to the local banks.

As alluded to above, these proceedings are concerned neither with guilt nor innocence. Ex parte Tong, supra. Rather, these proceedings are concerned with the legality or illegality of petitioner's detainment notwithstanding the fact of conviction. While petitioner has complained of the ineffective assistance of counsel with pre-trial duties, he has utterly failed in his burden to this regard. On the other hand, the evidence has been overwhelmingly to the contrary and shows the Public Defender to have done exactly what is demanded of him by prevailing professional norms. More will be said on petitioner's above testimony.

On petitioner's other allegations concerning ineffective representation of counsel, we hold that petitioner has failed, even to attempt, to discharge the burden required of him.

The importance he placed in the testimony of Auina To'oto'o is that the latter as then-president of the Development Bank had sanctioned the paint and repair work ---and therefore the expenditures [6ASR2d23] --- to the Lumana'i Building which petitioner had undertaken.

We fail to see how this could have influenced a different outcome in the criminal proceedings. Firstly, counsel was unable to talk to Mr. To'oto'o, since Mr. To'oto'o was also criminally charged at the time with offenses of a similar import, and he was at the time under the advice of his own counsel to remain silent. Secondly, we are reluctant to second guess counsel's tactical strategy if, as petitioner alleges, counsel did not feel that the Court would believe Auina To'oto'o. Thirdly, it is less than reasonably likely that the knowledge and complicityof Mr. To'oto'o (who was petitioner's superior at the bank) in the fact of misappropriation of bank funds would constitute the defense that would alter the outcome of the criminal matters. Indeed, in the light of other matters we discovered on record, the attempt of such a defense would approach a "useless charade".

On his charge that counsel failed to Place before the Court facts consistent with innocence, the facts alluded to are those related to the $75,000 being expended on the Lumana'i Building. Again, how this would alter the outcome of the criminal proceedings is unclear. In any event, petitioner himself related this story to the Court at his sentencing on March 15, 1987, as evident by the transcripts of those proceedings. For all petitioner's concerns, the facts or allegations he desired before the Court were in fact before the trial court at the time.

Petitioner also faults counsel in failing to explain to him the meaning of consecutive sentences. Petitioner's testimony in this regard is the exact opposite of the Public Defender's, who testified that he had discussed with petitioner the potential range of sentence. We have no reason to doubt the Public Defender's credibility but have been presented cause to doubt petitioner's, in the manner of his making other positive and serious allegations without the semblance of foundation. We choose in favor of the Public Defender's recollection and accordingly need not decide whether counsel's actual failing to review with a client the meaning of consecutive sentences, gives rise to a [6ASR2d24] constitutional or fundamental flaw, violative of the sixth amendment.

Finally petitioner seeks habeas corpus relief in that counsel failed to make a post judgment motion for a reduction in sentence. On this ground, the Court is unable to conclude that such a failure approaches constitutional dimensions. At the sentencing proceedings, a number of impressive character witnesses were called on petitioner's behalf. Even a medical report on petitioner's health was presented to the Court in mitigation of sentence. These matters considered, the Court rendered sentence accordingly. There has been no showing by petitioner herein of any additional grounds which would subsequently move a change of sentence given. Indeed the sentences rendered were within the lawful limits provided by statute and within the Court's jurisdiction and accordingly the sentences in no way touch on any suggestion of illegal detention. The ground as advanced is incontextual and inappropriate to these proceedings.

On the foregoing, it is the conclusion of the Court that petitioner has failed to establish that he was without the effective assistance of counsel within the constitutional meaning of that term.

FAILURE TO FIND A FACTUAL BASIS

Rule 11(f) of the Trial Court's Rules of Criminal Procedure provides as follows:

Notwithstanding the acceptance of a plea of guilty, the Court
should not enter a judgment upon such a plea without making
such inquiry as shall satisfy it that there is a factual basis for the
plea.

As noted by the Advisory Committee on the Federal Rules of Criminal Procedure, Rule 11(f) does not specify that any particular type of inquiry be made. However, in Santobello v. New York, 404 U.S. 257 (1971), the Court saw the rule as requiring the sentencing judge to develop on the record, the factual basis for the guilty plea, for example by having the accused describe the conduct giving rise to the charge. See also United States v. Rivera-Ramirez, 715 F.2d 453 (9th Cir. 1983). The cases have also admitted a number of other alternatives to satisfy the rule's requirement. For example, [6ASR2d25] the judge may summarize the indictment and ask the defendant if he understands the charge and whether he committed the enumerated acts. It is not necessary that the defendant establish in his own words the factual basis. United States v. Lovelace, 683 F.2d 248 (7th Cir. 1982). The indictment itself may be specifically sufficient to establish the factual basis. United States v. Isble, 468 F. Supp. 152 (E.D. Tenn. 1979). Indeed, in United States v. Kritz, 586 F'.2d 1178 (8th Cir. 1978), cert. denied, 442 U.S. 945, it was held that the exercise could be accomplished even without the defendant being addressed personally.

The rule itself envisages that the Court's evaluation of a sufficient factual basis is not limited in time to the arraignment or T.C.R.Cr.P. Rule 11 hearing stage. The determination need not be made until prior to the time of judgment and sentencing and it is open to the court to look to other and. additional evidence sufficiently articulated on the record. See, e.g., United States v. Welterlin, 583 F.2d 346 (7th Cir. 1978), cert. denied, 439 U.S. 1127; Knight v. United Notes, 611 F.2d 918 (1st Cir. 1979).

With the foregoing comments, we look to petitioner Suisala's contention.

Contrary to petitioner's assertion that a verbatim record of the criminal proceedings is not available, this Court has secured a transcript of those proceedings and copies have been supplied the parties. We also find as part of the record transcripts of depositions duly taken to preserve the testimony of witnesses Peni Fatu and Vevesi Gaopulu.

The record reflects that on February 22, l985, the trial court was informed of a plea arrangement giving rise to amendments to the information and a motion for change of plea. Prior to talking the pleas, the Court directly informed defendant that as a consequence of changing plea, defendant would necessarily waive his right to a trial by jury, his right to confront witnesses, and his right against self-incrimination. Counsel for plaintiff waived the reading of the resulting; information and defendant personally entered pleas to the various enumerated counts. The court further. ordered a presentence investigation and invited the [6ASR2d26] petitioner to give his "version of this unfortunate situation."

On or about March 15, 1985, the Court, prior to sentencing, invited the defendant to explain how the embezzled funds were expended. Defendant generally answered that the amount of $75,000 was used to do repairs to the Lumana'i Building as well as to pay him for the repair work. Defendant also testified that while he was getting this special remuneration for attending to the Lumana'i repair work, he was also drawing regular salary from the bank as vice president. He decided to plead guilty in that part of the embezzled funds came to him personally, and he was aware on the advice of counsel that embezzlement was embezzlement whether the amount involved was one penny or $80,000.

The prosecution, on the other hand, had a different version on the $75,000 which was presented to Court. Some thirty-one checks totaling $20,851 purportedly went to an Atamate Uta as annual stipend for janitorial services at the Lumana'i Building. The attorney general had an affidavit from Mr. Uta that petitioner presented him with checks of $650 every two weeks for his signature while Mr. Uta actually received only $250. On the money that was said to have been used to paint the Lumana'i Building, checks totaling $26, 000.00 were issued to a Peni Fatu and checks totaling $27,700.00 were issued to a Vevesi Gaopulu. The attorney general stated that while these men had worked on painting the Lumana'i Building, both were very surprised when apprised of the amounts said to have been paid to them by the Development Bank. It was also noted that some of these checks were signed by petitioner Suisala, who had signatory authority with the Development Bank.

The deposition of Vevesi Gaopulu revealed that he was a citizen of Western Samoa residing in American Samoa under the sponsorship of the defendant Suisala. He- acknowledged working temporarily at the Lumana'i Building for some three to four months and was paid $70 to $80 in cash by Suisala on a weekly basis. Mr. Gaopulu at deposition was presented a series of Development Bank checks made out to his name in the following amounts: $1,750; $950; $4,250; $5,500; $5,000; $4,500; and $5,750. He denied ever seeing these checks before or endorsing the same for payment. [6ASR2d27]

Similarly, with the deposition of Peni Fatu we see the same scenario. In addition, Mr. Fatu testified about Mr. Suisala's giving him $500 to leave for Western Samoa until the criminal proceedings with Suisala were concluded. Mr. Fatu attempted to depart the territory but was prevented by Immigration Officers owing to the pending cases. Mr. Fatu then met up again with Suisala, who took back his $500 and suggested that Fatu find a place to hide.

Considering the foregoing, we conclude that the criminal court had more than an adequate record to sustain a factual basis for the guilty pleas, and for judgment to be entered accordingly. In so concluding, we find that we need not intimate a view one way or other on whether an actual failing by a criminal Court to comply with T.C.R.Cr.P. Rule 11(f) would constitute a constitutional or fundamental error that would give rise to habeas Corpus relief.

CONCLUSION

It is the conclusion of the Court that the petition for habeas Corpus relief shall be denied and that custody of the petitioner shall revert to respondents and the Executive Branch in accordance with judgment and sentence entered in cases docketed CR NoS. 4 & 5-85.

It is so ORDERED.

**********

1. Petitioner, it will be noted, also complains of counsel for failing to advise him that sentences may be consecutive. Yet petitioner at the hearing herein attempted to frame the additional argument of "coercion to plea", in that counsel had waved at him the prospect of consecutive sentences.

South Seas Trading Co. v. Suamalie Construction Co.,


SOUTH SEAS TRADING CO., Ltd., Plaintiff

v.

SUAMALIE CONSTRUCTION CO., Ltd., Defendant

High Court of American Samoa
Trial Division

CA No. 121-87

November 4, 1987

__________

Liquidated debts, or those whose amounts have been determined or may be ascertained by calculation according to established market values, are generally proper subjects of setoff.

Plaintiff's motion for summary judgment would be denied where, on the construction of the facts most favorable to defendant, the defendant had a claim against the plaintiff which was a proper subject of setoff and which was at least as great as the amount of plaintiff's claim against defendant.

Before REES, Chief Justice. [6ASR2d81]

Counsel: For Plaintiff, John Ward
For Defendant, Aviata Fa'alevao

On motion for summary judgment:

Plaintiff moves for summary judgment on its claim that defendant owes it the purchase price of about thirty hot water heaters. Construing the facts most favorably for defendant, plaintiff owes defendant the purchase price of forty hot water heaters. Liquidated debts, or those whose amounts have been determined or may be ascertained by calculation according to established market values, are generally proper subjects of setoff. See 20 Am, Jur. 2d, Counterclaim, Recoupment & Setoff; R.L. Pohlman Co. v. Keystone Consolidated Industries, 399 F. Supp. 330 (E.D.Mo. 1975).

The motion for summary judgment is therefore denied.

**********

Satele; Seumalo v.


SEUMALO I. ALIIMAU and UKULELE I. SEUMALO,
for themselves, their sisters and brothers, and
on behalf of their parents IKAPOTI and MARIA,
Plaintiffs

v.

SALAMASINA M. SATELE, BILL SATELE, GALU
SATELE, and PAUELI SATELE, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 34-86

December 2, 1987

__________

Where defendants' contention that plaintiffs were permitted the use of a disputed tract only on condition of continuing service to senior matai of defendants' family was unsupported by credible [6ASR2d104] evidence, and plaintiffs had long occupied the land without rendering such service and had publicly asserted outright ownership in numerous ways over a number of years, plaintiffs were entitled to register the tract in their name.

Before KRUSE, Associate Justice, VAIVAO, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiffs, Aviata Fa'alevao
For Defendants, Charles Ala'ilima

This matter is a land dispute arising after attempts by plaintiffs, the Seumalo family, to register a portion of land named "Alailoto'o" or situated in the village of Vailoatai, Western District. Defendants are individual members of a branch of the Satele family of Vailotai who object to the registration attempts; upon the ground that the land in question is the communal property of the Satele family. While defendants acknowledge the use and occupation of the land (to the extent of some 5.54 acres more or less) by the Seumalo family, they emphatically reject the plaintiffs' claim to entitlement in their own right, and hence registration of the land as such.

Plaintiffs' testimony was to the effect that their father, one Ikapoti, deceased, had in the early 1930s constructed a church, some church-related structures, and a number of other Samoan buildings for Vailoatai, at the behest of the village council. In recognition of his services , the village had given to Ikapoti some ten acres of land while the then-Satele Mosooi appointed the talking chief title of "Seumalo" to Ikapoti and his heirs.

The present titleholder is Seumalo I. Ali'imau, the son of Ikapoti, and he has continued, with his siblings, the occupation and use of the claimed portion of land.

Defendants, on the other hand, contest the attempted registration by plaintiff with following reasoning: that while the land in question, was designated for the use and benefit, of the plaintiffs by Satele.Mosooi, the plaintiffs, like all others who occupy Satele communal lands, [6ASR2d105] do so only upon the traditional condition of rendering service (tautua) to the Sa'o of the family. Defendants argue that while they themselves, as Satele family members, are occupying family lands, there is reason neither in law nor in custom whereby they could separate out for themselves alone that communal property which they occupy, just as there is no reason in law or custom whereby the Seumalo faction could expect to hold Satele family lands independent of the Sa'o's title and the duty to render tautua corresponding with the use of family land.

In support of their position, defendants deny the existence of any land grant in return for services. Their version of the origins of Seumalo Ikapoti in Vailoatai is as follows: while acknowledging the latter to have built one Samoan structure for church purposes in the village, defendants have it that Ikapoti was fully repaid in the normal manner in accordance with custom. (That is, through the appropriate presentation of food, fine mats, money, and goods of traditional value.) While there was accord and satisfaction between the village and Ikapoti, defendants contend that the builder had decided to stay on in Vailoatai and pressed Satele Mosooi for a residential site. He is said to have petitioned Satele on at least three occasions for a piece of land and Satele finally acceded, making an assignment' conditional on tautua.

To substantiate their position, defendants offered the following proofs. Poueli Satele testified of a prior attempt by Ikapoti and his wife, Malia, to seek Satele Solomona Faumuina's permission to survey the land. Ikapoti was met with the response of either rendering service to the Satele title or removing himself and his family from the land. Defendants are also of the position that the compact concerning the land involved Satele Mosooi and Ikapoti only. They deny any involvement of the village.

Defendants further presented what they claim as documented family history recorded by Satele Mosooi. This writing alludes to the understanding that the land "Loto'o" was given by Satele to Ikapoti subject to the traditional service requirement, rather than being an outright village grant. A recent separation agreement was also tendered to substantiate a recent affirmance of [6ASR2d106] "pule" by Satele Mosegi on lands claimed to be "Loto'o."

Defendants further pointed to five additional and contiguous acres, said to be a part of the same land "Loto'o," as having been registered in the name "Satele" in 1933. This was part of a joint Vailoatai/Taputimu village registration effort, preparatory to a long-term lease to the territorial government of what became known as the Feleti School and Taputimu farm.

In evaluating the competing claims of the parties, we find that the' scope of the original grant to Seumalo was about the five and one-half acres that is the extent of their net claims today. Their understanding of a ten-acre grant is inconsistent with the fact that the adjacent portion of land had been registered in the Satele title since 1933 and occupied over the years by Satele's lessee, American Samoa Government. It is further inconsistent with the fact that the extent of their occupation and use has been confined, to the five-plus acres now claimed, as was quite evident in their testimony.

With regard to this area now claimed by Seumalo, we find that the evidence preponderates in favor of plaintiffs' version. Firstly, the written family history submitted by defendants as having been prepared by Satele Mosooi suffers in fundamental respects. The documentation bears an illegible preparation date which could be read as either 1931 or 1951. If it is the case that the latter is the date of preparation, then of course Satele Mosooi could not have been the author, having died some time prior. Defendants claimed, however, that the writing was in fact prepared in 1931. The real problem with this assertion is that Mosooi, as the alleged author in 1931, would have to be acclaimed among the biblical prophets, as the writings referred to specific events occurring at specific times after 1931. Rather, the writings appear more probable to the Court as having been prepared and recorded by the defendants' side of the Satele family, in accordance with their version of the occurrence, at a date well subsequent to the tenure of Satele Mosooi. The writings are not contemporary recordings and we give weight accordingly. [6ASR2d107]

We are further persuaded by the testimony of th current Paramount Chief Satele Momosea, who did no join in defendants' objections. His understanding of the extent of the traditional family holdings was that it was limited to the inward side of the village. According to Chief Satele's testimony, family holdings in land did not reach the seaward side of the village, where the portion in dispute is located.

This testimony was corroborated by High Talking Chief Lopa speaking on behalf of the village. It was Lopa's understanding that the registration in the name of Satele of the mentioned five acres of the Taputimu farm lease was the result of an accommodation by the pertinent village landowners at the time, in deference to their ranking matai Satele, in order that the latter could share in lease revenue. Lopa is in agreement with Chief Satele's testimony that Satele land holdings did not traditionally extend to the seaward side of the village. Lopa further testified that the land now claimed by Seumalo was in fact the subject of a community grant by the same pertinent village landowners (who made the 1933 registration accommodation in favor of Satele), in recognition of Ikapoti's service to the village. While these relevant landowners appointed the land "Loto'o" to Ikapoti, Paramount Chief Satele Mosooi appointed the honors bestowed with the title "Seumalo."

Talking Chief Lopa acknowledged that as far as the land donors were concerned, the grant to Seumalo Ikapoti in recognition of his services to the church was outright, and not to be disturbed. The village council was, however, showing some' concern that some individual members of the Satele family were attempting to act in derogation of the grant and, more importantly, of the rights of the grantors themselves.

Finally, two other factors affected credence in defendants' position. Satele Mosooi raised as a son one Ofe Satele Mosooi, now some seventy years of age. Ofe referred to Satele Mosooi as his father and testified from personal knowledge that his father was not literate, and therefore could not have authored the purported writings of 1931. Secondly, the recent Separation Agreement above referenced and executed by Satele Mosegi purported to have the lands there concerned as being named [6ASR2d108] "Mauga land (Loto'o)." A certified copy of the original Separation Agreement from the Territorial Registrar's office showed the land as named "Mauga land" only. The reference in parentheses to "Loto'o" as contained in defendants' exhibit is an additional writing to the instrument. The attempt, therefore, with' an altered instrument, to demonstrate that portion of land as being a part of "Loto'o" for purposes of highlighting Satele's "pule" seriously affects our assessment of credibility.

Plaintiffs, to the contrary, demonstrate use and occupation of Loto'o quite independent of any duty to render service to the Satele. Seumalo's post-war claims to crop damage and land use by the United States Marines were filed by Seumalo ''as matai and head of [the] family." We also find certain separation agreements over the land Loto'o executed by Seumalo as the matai of his family concerning the structures on the land erected. by members of his family at various times. These separation agreements are subject to statutory posting requirements to permit third-party objections. No such objections have been noted before from the former Satele titleholders.

CONCLUSION

It is the conclusion of the Court based on the foregoing that the Satele family has no interest in the 5.54 acres being the land "Alailotoo'o" or "Loto'o," as more particularly described in Survey Pvt. No. 264-8-83 and claimed by the Seumalo family. Accordingly, the objections made by defendants herein are held to be without merit, and may therefore be disregarded by the Territorial Registrar.

Absent other third-party objections timely made, the Registrar is directed to register the said land "Alailoto'o" or "Loto'o" as the communal family land of the Seumalo family of the village of Vailoatai, in accordance with the statute made and provided for in these cases. See A.S.C.A. § 37.0103(c).

It is So ORDERED.

**********

S & S Contracting, Inc.; Southwest Marine of Samoa, Inc. v.


SOUTHWEST MARINE OF SAMOA, INC., Appellant

v.

S & S CONTRACTING, INC., Appellee

High Court of American Samoa
Appellate Division

AP No. 18-87

October 22, 1987

__________

Trial court properly held that proceedings before it were automatically stayed when defendant filed bankruptcy petition in another .jurisdiction. 11 U.S.C. § 362(a) .

Territorial court would defer as a matter ,f comity or full faith and credit to the lawful orders of a court of the United States properly exercising its jurisdiction even if there were no federal statute requiring it to do so.

Before KING*, Acting Associate Justice, O'SCANNLAIN**, Acting Associate Justice, LUALEMAGA, Associate Judge, and OLO, Associate Judge.

Counsel: For Appellant, Togiola T.A. Tulafono

PER CURIAM;

Southwest Marine of Samoa, Inc., sued S & S Contracting, Inc., in this court, for damages for an alleged breach of a contract between the two [6ASR2d63] companies. S & S Contracting did not answer the complaint. Southwest Marine moved for judgment by default. Before the default motion was heard, S & S Contracting filed a voluntary petition of bankruptcy under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Hawaii. On the day before the date set for the hearing on Southwest Marine's motion for default judgment, the clerk of this court received notice of the bankruptcy petition and of the automatic stay provided by 11 U.S.C. § 362(a). The hearing on Southwest Marine's default motion was continued. Southwest Marine then argued that the stay provisions of Title 11 of the United States Code do not extend to American Samoa. The trial judge held otherwise. This appeal followed.

The bankruptcy code in 11 U.S.C. § 101(49) defines the "United States" as "all locations where the judicial jurisdiction of the United States extends, including territories and possessions of the United States." Under 11 U.S.C. § 362, the filing of a bankruptcy petition operates as a stay, "applicable to all entities," of "the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against a debtor" that relates to a claim arising before the filing of the petition. The filing of bankruptcy petitions is limited by 11 U.S.C § 109 to debtors residing or having a domicile, a place of business or property in the United States.

Southwest Marine argues that "the judicial jurisdiction of the United States" does not extend to American Samoa. The report of the House Judiciary Committee accompanying the bankruptcy code suggests otherwise. House Rep. No.95-595 accompanying H.R. 8200, 95th Cong., 1st Sess. There is no doubt that Congress has the power to legislate with respect to American Samoa. American Samoa is a possession of the United States. A restrictive reading of the reach of the bankruptcy code would be contrary to the purpose of the bankruptcy laws and especially to the purpose of its automatic stay provisions. Even though there is no Article III, or bankruptcy, judge or court in American Samoa, federal courts do exercise judicial power over American Samoa.

Southwest Marine argues that inasmuch as a debtor in American Samoa cannot file for bankruptcy [6ASR2d64] in American Samoa, the stay provisions of 11 U.S.C § 302 do not extend to American Samoa. But it does not follow, as the trial judge observed, "that a bankruptcy court which has acquired jurisdiction over a debtor may not issue orders concerning the debtor' s property that are binding in American Samoa. "

Even if we were to agree with Southwest Marine treat the stay provisions of the bankruptcy code are not binding on the High Court of American Samoa, we would as a matter of comity, or full faith and credit, accorded to a court of the United States having jurisdiction over the person and subject matter, defer to the lawful orders of that court.

The judgment of the Trial Division is AFFIRMED.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Diarmuid F, O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Tulisua; Olo v.


OLO LEVEAI, FUA'AU OLO, and
SEIGAFOLAVA ROPATI PENE, Plaintiffs

v.

TAULAFOGA TULISUA, his family, wife, children,
agents, representatives, employees, etc., Defendants

High Court of American Samoa
Land & Titles Division

LT No. 19-86

December 15, 1987

__________

Common law principle that "plaintiff must recover on the strength of his own title, not on the weakness of the defendant's" did not prevent court from finding that plaintiff was entitled to possession of land although neither party had proven ownership, when plaintiff had been in possession for many years and had recently been dispossessed by defendant. Defendant who built on land long occupied by plaintiffs with full knowledge of plaintiffs' possession and over their objections was a bad faith possessor who would be obliged to remove his building without compensation. [6ASR2d130]

Defendant was not entitled to a new trial on the ground that plaintiff had abandoned its rights to land under a license, since the alleged license was not a basis of the court's determination that plaintiff was entitled to possess the land.

Litigant could not raise on motion for new trial an issue about which the court had expressed serious concern at trial and which the parties expressly stipulated to exclude from the litigation.

Before KRUSE, Associate Justice, TAUANU'U, Chief Associate Judge, and OLO, Associate Judge.

Counsel: For Plaintiffs, Togiola T.A. Tulafono For Defendants, Asaua Fuimaono

Opinion and Order on Motion for New Trial:

Defendant. Taulafoga Tulisua moves for a new trial upon the following grounds:

(1) Defendant contends that the decision of the Court resulting in ejectment is error in that plaintiff is required to prove title in order to upset defendant's possession. The contention alludes to the old common law maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's. That is, defendant's possession ought not to be disturbed until and unless plaintiff proves superior entitlement.

The reasoning implies that, as the Court did not find title in either of the parties, defendant's possession is indefeasible as far as plaintiff is concerned.

Without intimating whether this common law principle is contextual to a communal land setting, we point out that defendant's argument nonetheless may not be sustained at law. Firstly, the maxim does not apply in circumstances where the plaintiff had prior possession of the land and his possessory rights have been disturbed by an intruder or by trespassers who physically move in and attempt to oust plaintiff. Haws v. Victoria Copper Mining Co., 160 U.S. 303 (1895). The Supreme Court here quoted Christy v. Scott, 55 U.S.(14 How.) 282, 292 (1852): [6ASR2d131]

A mere intruder cannot enter on a person actually seised, and
eject him, and then question his title, or set up an outstanding
title in another. 'The maxim that plaintiff must recover on the
strength of his own title, and not on the weakness of the
defendant's, is applicable to all actions for the recovery of
property. But if plaintiff had actual prior possession of the
land, this is strong enough to enable him to recover it from a
mere trespasser, who entered without title.

Haws, 160 U.S. at 310.

Our findings herein were to the effect that neither plaintiff nor defendant had proven title to the land. Plaintiff had been in prior possession of the site in question for many years. Defendant had attempted to oust plaintiff from the site when, after January 1987, defendant moved in, over plaintiffs' objections, and erected a building within a three-month period. He may not now assert possession forcibly obtained and invoke the maxim pointing to a flaw in the title of plaintiff. To sustain defendant's argument would be to permit one to benefit by one's own wrongdoing through self-help.

(2) Defendant also takes exception with the Court's conclusion that defendant was lacking in good faith, and is thus not entitled to compensation for improvements. The case cited by the Court, namely Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987), is sought to be distinguished by defendant. The distinction, says defendant, is that Fonoti was more vigorous than the plaintiff herein with his objections to wrongful ouster. The argument appears to be one of degree ---the difference between axes and knives on the one hand, and verbal objections on the other? One thing is clear from the cases: the question of "good faith " is one of fact, Meyers v. Canutt, 46 N.W.2d 72 (Iowa 1951), and depends on the circumstances of the case in which "good faith" is asserted. Simpson v. Bostwick, 80 N.W.2d 339 (Iowa 1957).

The circumstances in this matter were that there had been a recent -history of continuing exchange between the parties regarding defendant's activity on the land, including the obliteration of [6ASR2d132] plaintiffs' grave sites by the defendant's re-routing of access way, and his building of stone walls. In the face of this activity, defendant does not deny knowledge of plaintiffs' past occupation. He knew of a prior attempt by plaintiffs in seeking Court action, and furthermore, defendant, consistent with the theory of his case, had no title in his own right on which to assert or premise a belief of better entitlement than that of plaintiffs. He acknowledged the objections made by plaintiffs (Who preferred to resolve the dispute extrajudicially) but he testified that he commenced to build on the site because plaintiffs had earlier filed suit against him, and because after the Office of Samoan Affairs had recommended to the parties to discuss their differences, plaintiffs had not gone to defendant to discuss the matter. Indeed, defendant acknowledged that the matter could easily have been resolved but that the plaintiffs did not care to come to him.

We find no possible basis of "good faith" in these circumstances--- merely the attitude that "might is right. "

(3) Defendant further claims abandonment of the site by plaintiffs, but asserts abandonment for purposes of a license argument. We reject this argument in that our findings did not encompass defendant's contention that plaintiffs were licensees of Manamea. The Court did not make a finding on title vis-a-vis the parties, although it found plaintiffs' possessory rights superior to defendant's.

(4) Finally, defendant makes the remarkable claim at this stage that there is uncertainty as to the exact location of the so called "Olo Site," as referenced in the judgment. This contention comes close to courting contempt sanctions. The Court was quite clear at the outset of trial in pointing out its concerns regarding the lack of surveys. The parties assured the Court that surveys were not needed and that the dispute centered merely on a house site. The parties were in agreement that the land itself comprised one-half to one acre in area and were evidently in consensus with regard to the various locations of people's homes on the land, as was quite clear from their respective drawings made in open Court. What was pointed out as the Olo site was distinct and separate from what was [6ASR2d133] Tulisua's site. If the latter has any new-found difficulties with ascertaining the Olo site, we make quite clear that a consequence of our decision is that defendant shall go back to the Tulisua location which has and continues to locate his home. We are prepared to educate defendant the hard way if he is unable to comply with the Court's order to remove that 1987 construction of his.

(5) Defendant also attempts an argument of title based on the evidentiary principle that possession points to ownership. We merely note that some three months of forced ouster of the prior possessor could not be evidence of ownership by any stretch of the imagination.

Motion for New Trial is Denied.

**********

Tulisua v. Olo,


OLO LEVEAI, FUA'AU OLO, and
SEIGAFOLAVA ROPATI PENE, Plaintiffs

v.

TAULAFOGA TULISUA, his family, wife, children,
agents, representatives, employees, etc., Defendants

High Court of American Samoa
Land & Titles Division

LT No. 19-86

November 6, 1987

__________

When neither party to a land dispute established his ownership of the disputed tract, and action was not attended by registration procedures that would provide notice of the dispute to all possible claimants, court would make no finding of ownership.

When one party to a land dispute established historic possession of the land and adverse party, who could not establish superior right to possession, had built on the land over possessor's objections, adverse party was obliged to remove his building without compensation.

Before, KRUSE, Associate Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendants, Asaua Fuimaono

This is a land dispute essentially concerning a building site or "tulaga fale" on lands said by the parties to be known as "Auauli," located in the village of Ofu, Manu'a. No surveys were presented and the parties stipulated that the case before the Court did not involve a boundary dispute, but entitlement to the building site. The lands "Auauli," for descriptive reference, were further [6ASR2d87] agreed to by the parties as being about one-half to one acre in area. (1)

The case arose as a result of defendant Taulafoga Tulisua's building on a site claimed by the plaintiffs, the Olo family, as being the longstanding site of their family's residence on Auauli.

The testimony was consistent in several respects. What may be described as the mauga/wharf portion of the land has been the house site of defendant and his immediate family for some time now. Towards the middle of the land was the location of the Olo family's habitation, while to the immediate front thereof, towards the sami side of the land, was the habitual location of the Saleapaga guest house. Also located on the land at the sami/wharf portion is the building of Malietufa, a member of the Togiai family.

The parties' versions as to entitlement to the land differed, however.

Plaintiffs claim that the lands Auauli belonged to the Olo family through initial occupation and cultivation. Testimony had it that members of the Olo family cultivated plantations on the land, which also is the burial place of many of the family members. Fua'au Olo explained the presence of the defendant Tulisua on the land as having arisen through the permission of his father, the late Olo Fua'au.

Fua'au Olo, who is now sixty-five years of age, testified that he recalled that during his early youth his father, Olo Fua'au, had permitted a couple named Solipo and Lia to build a faleo'o (a small fale) on the site which is occupied by the defendant Tulisua. This couple had a child named Taupati, who is today seventy-four years old, and who testified and corroborated the testimony of [6ASR2d88] Fua'au Olo.

It is said that Solipo and Lia had brought the defendant, his mother and his family onto to the land to -live with them. Chief Olo supposedly had assented to this and, when Solipo and Lia departed Ofu around the year 1939, defendant's family continued to live in Solipo and Lia's faleo'o. They remain there to date after having rebuilt several structures on the same site.

With regard to Saleapaga, plaintiffs explained that the present guest house site of Saleapaga originally housed a joint guest house of Olo and Saleapaga. Over the years the Saleapaga people occupied the guest house, but at all times, it is said, with the permission of the Olo family.

With regard to Malietufa's location, plaintiffs concede that that portion of the land belonged to Togiai, the neighboring family.

Defendant's version, as expected, differs. Defendant claims that the land Auauli is the communal family property pertaining to the Manamea title, and that Tulisua and Saleapaga are lesser matai of the Manamea. The land was said to have been donated by Faoa to the original Manamea as a token of gratitude for the latter's assistance to Faoa in some past war with the people of Olosega.

This testimony was corroborated by the present Chief Faoa save for one detail. While defendant maintains the grant to have been outright, Faoa claims to have reserved the "pule" in the land although its exclusive use is with the Manamea title. It is argued that this explains the location of Malietufa, a member of the Togiai, and hence Faoa, family. Togiai is a lesser matai of the Faoa family.

Defendant Tulisua claims that the plaintiff family was in possession of the particular house site for many years with the assent of Manamea. According to defendant, he had taken it upon himself to build on the site previously in the occupation of the Olo family, because in his view the Olo family had abandoned the site since 1963.

We note parenthetically that this abandonment ground does not escape us without some bemusement. The current holder of the title Manamea has not lived on the village of Ofu for some time now and is last known, at least by defendant, to be [6ASR2d89] somewhere within the United States. Both Manamea, defendants' candidate for land ownership, and Olo, plaintiffs' counter-claimant to ownership, have abandoned their "monotaga " responsibilities to the village of Ofu and thus, according to Chief Faoa's testimony, the two are no longer recognized in the Ofu village council.

Tulisua also asserts, as a monument to ownership, the burial site of Manamea and his family located to the sami/Olosega portion of the land. That site is said to contain the graves of the Manamea, Saleapaga and Tulisua members. It is argued by Tulisua, in connection therewith, that the separation of the Olo member; , burial si te adjacent to their house site indicates that they were treated as strangers to the land. Hence the reason for the non-burial of Olo family members within the ancestral grave site of the Manamea family. Tulisua further claims that Saleapaga had a long house to the Olosega portion of the land, which has not been rebuilt on today owing to the absence of family members remaining on the land.

On the evidence before us we make the following findings.

(1) Neither party has established, bya preponderance of evidence, title to the land "Auauli." The Court notes that this matter did not arise consequent to registration proceedings, whereby the claims of all possible contenders may be adjudicated. The evidence, among other things, also admitted the possibility of ownership in parties not before the Court, that is Fao and Manamea.

The evidence pointed to inconsistencies with what are usually indices of "pule" and hence ownership. For example, while the Olo family claims to own the land and to have assented to the occupation by Tulisua's family, Fua'au Olo admitted that there was no history of "tautua," or traditional service, rendered by Tulisua to Olo. Secondly, the concept of a guest house shared with a titleholder who is said to be a stranger to the land (as essentially claimed by Olo) does not sit well with the members of this Court as a customary norm, and hence raises doubts regarding Olo's claims to "pule". [6ASR2d90]

On the other hand, the evidence tended to suggest that Tulisua's family came upon the land subsequent to the Olo family. At the same time, Tulisua's claims that ownership was vested in the Manamea was contradicted by his own witness Faoa, Who claims that Manamea is his donee, but that he, Faoa, reserved "pule" when making the grant.

As far as the Court is currently concerned, there has been insufficient showing by either of the parties to explain how five different title holders, viz: Malietufa, Tulisua, Olo, Manamea and Saleapaga, are sharing the lands Auauli. We therefore leave to another time consideration of a logical and sequential trace of "pule" to explain the occupation of these five title holders.

We make no finding on ownership.

(2) We find that the Olo family had a history of possession of the lands Auauli limited to a house site, or "tulaga fale," which site.has housed in the past a number of replacement structures built by the Olo family.

(3) We find that plaintiff's right to possession was not derivative from defendant Tulisua. Defendant Tulisua has no superior entitlement, in his own right, to take possession of that site which has been occupied in the past by the Olo family.

(4) We find that defendant Tulisua completed building a structure on the Olo site around March of this year, without permission of the Olo family and without demonstrable cause. Such building was commenced shortly after Hurricane Tusi, which occurred in January 1987, and it was undertaken over the continuing verbal objections of the Olo family to defendant Tulisua.

CONCLUSION

(1) The plaintiff family, Olo, has superior right to possession of the house site in question as against the defendant Tulisua.

(2) Tulisua, by building a second structure on the land Auauli on the site in question, has committed a trespass against the Olo family, and has in fact attempted to unlawfully evict the Olo family from its house site. [6ASR2d91]

(3) Tulisua was put on notice by the Olo family of a pending dispute over building on the site in question. Accordingly, his persistence, nonetheless, in undertaking and completing the structure, is inconsistent with "good faith".

(4) As Tulisua is wanting in good faith, he is therefore only entitled to remove his building, fixtures and appurtenances from the Olo house site, without any opportunity or right to demand, in lieu of removal, compensation from plaintiffs for improvements. Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987).

(5) That Tulisua shall remove said building, fixtures and appurtenances within sixty days from the date of entry of judgment herein.

It is so ORDERED.

**********

1. One witness, when asked by the Court to approximate the land area using the courthouse parking lot as a reference, described an area which in our view is in excess of an acre. From photographs presented of the location, it appears that the land is within the village proper and is surrounded by concentrated habitation.

Uiagalelei; Satele v.


SATELE MOMOSEA UOKA, Plaintiff

v.

UIAGALELEI IONA, UIAGALELEI LEALOFI,
TUIASOSOPO MARIOTA, and FALE FAIAI, Defendants

High Court of American Samoa
Trial Division

LT No. 17-86

December 18, 1987

__________

None of the claimants of a disputed tract acquired title through adverse possession when no one of them ever occupied any portion of it continuously and openly for thirty years in a manner hostile to the rights of the original owners.

A strong presumption of validity attaches to an order of the High Court signed by a Justice thereof.

Presumption of a document's validity was not overcome by evidence that a signature on the document was forged when the person whose signature was allegedly forged was available as a witness but not called by the party asserting the forgery.

Before REES, Chief Justice, LETULI, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Asaua Fuimaono [6ASR2d144]
For Defendant Faiai, Charles Ala'iUma
For Defendant Tuiasosopo, Toglola T.A. Tulafono
For Defendants Uiagalelei, Aitofele Sunia

We find the facts in this case to be as follows:

(1) The land involved in this case, and to which these findings of fact and conclusions of law apply, is limited to (a) the land designated "Fasamea " containing 35.5 acres more or less conveyed in a warranty deed from Fau'olo to Fa'ailoilo in 1939 and (b) those portions of land "Saumolia" designated "Parcel One" on Uiagalelei's 1987 survey and recorded in Volume II Register of Native Land Titles, page 335, which either overlap "Fasamea" as designated in the 1939 warranty deed or which lie to the north of it. This includes but is not limited to all the land currently occupied by the American Samoa Government as a landfill and, to the best understanding of the Court, all of the land into which the Government currently desires to expand the dump. Land lying to the south, southwest, or east of the 1939 map of "Fasamea," including some of the land on Uiagalelei's survey and much of the land on Satele's survey, is not involved in this case. Objections to the Satele and Uiagalelei surveys concerning areas not covered by this decision may, of course, result in future cases.

(2) In the early 1900s the land Fasamea was cleared from virgin bush by a chief of Se'etaga called Fau'olo. Fau'olo was a brother-in-law of Satele and continued throughout his life to render Satele the service due him as the highest chief in the county. The land was not, however, Satele family land when Fau'olo arrived on it and he did not intend to make it Satele land. In 1912 he registered about 10 acres of Fasamea as his own individually owned land.

(3) By 1939 (and possibly much earlier) the tract cultivated by Fau'olo and those working the land on his behalf had grown to the dimensions set forth in the map accompanying the 1939 warranty deed from Fau'olo to Fa'ailoilo, containing 35.5 acres more or less. It is not necessary for us to decide whether Fau'olo registered this survey in [6ASR2d145] 1914, since our conclusion would be the same in either case.

(4) Various relatives of Fau'olo cultivated parts of Fasamea at various times. Some were also members of the Satele family. Another was the first Tuiasosopo Mariota, who eventually established a large commercial plantation there.

(5) The land to the north of Fasamea, at least in what is now the landfill area, was Uiagalelei communal land occupied by Uiagalelei family members.

(6) The best evidence of the boundary separating Fasamea from the Uiagalelei lands to the north is set forth as "old boundary" in the 1974 map of the landfill area denoted Exhibit G. This corresponds quite closely, assuming one possible resolution of the error of closure on the map accompanying the 1939 deed, to the boundary as set forth on that map.

(7) Many people related to the several parties to this litigation resided on Fasamea at various times. None ever occupied any portion of it continuouslyand openly for 30 years in a manner hostile to the rights of the original owners. In particular, the best evidence is that Tuiasosopo Mariota was first given permission to cultivate part of Fasamea by Fau'olo or Fa'ailoilo. As late as 1974 the government map of the landfill area prepared under the direction of the present Tuiasosopo designated Fa'ailoilo as the owner of Fasamea. Similarly, although members of the Uiagalelei family occupied and conducted various activities on parts of Fasamea (as described in the 1939 deed) in the 1970s and 1980s, such occupancy has not been exclusive and has not lasted for 30 years.

(8) The best evidence is that Uiagalelei Sinapati sold about one acre of what is now the landfill area to defendant Tuiasosopo and his brother and sister as part of a stipulation approved by then-Chief Justice Jochimsen in 1976. Although there is some evidence for Uiagalelei's contention that his father's counsel never signed the stipulation, this evidence is insufficient to overcome the strong presumption of validity attaching to an order of this Court signed by a Justice thereof. At the very least the Court should [6ASR2d146] restrain itself from finding massive fraud on the basis of superficial (albeit interesting) evidence. when the person whose signature was ailegedly forged is present on island and was not called as a witness by the party asserting the forgery.

On the basis of these facts we conclude as follows:

(1) The tract Fasamea as described in the 1939 warranty deed and accompanying map is the individual property of the heirs of Fa'ailoilo.

(2) The northernmost boundary of this tract traverses the present landfill area along the line marked "old boundary" on the 1974 map. This tract also includes the land designated "proposed dumping area" in the "super-imposition drawing" designated Uiagalelei Exhibit D.

(3) To the north of Fasamea within the landfill area, between the lines designated "old boundary" and "new boundary" in the 1974 map, is an area of about one acre owned by Tuiasosopo Mariota, Brown Tuiasosopo, and Mary Betham.

(4) The parts of Parcel One of Saumolia that are to the north of Fasamea, with the exception of the one acre sold to the Tuiasosopos, are Uiagalelei communal land. This includes the part of the present landfill area north of the "new boundary" on the 1974 map. (We note that this judgment is only binding on the parties to this case. Uiagalelei mayor may not have boundary disputes with other neighbors far to the north and west of the landfill area. If so, they are not resolved by this decision. )

(5) No part of the land involved in this case is Satele communal land.

It may be necessary to hold a post-trial hearing at which Fale Faiai, Tuiasosopo, and Uiagalelei submit resurveys in accordance with these findings and conclusions for the Court's approval. The parties are urged to prepare such resurveys as quickly as possible. In particular, counsel for Fale Faiai is urged to have his surveyor do the necessary field work to resolve the error of closure on the 1939 survey and to reconcile it with the northern boundary of Fasamea as reflected in the 1974 map of the landfill area.[6ASR2d147]

The above findings and conclusions should, however, allow the Government to conclude its negotiations for the expansion of the landfill area.

It is so ORDERED.

**********

 

Uiagalelei; Satele v.


SATELE MOMOSEA UOKA, Plaintiff

v.

UIAGALELEI IONA, UIAGALELEI LEALOFI,
TUIASOSOPO MARIOTA, and FALE FAIAI, Defendants

High Court of American Samoa
Trial Division

LT No. 17-86

December 2, 1987

__________

Party to case involving dispute over ownership of land must allow opposing party to survey the full extent of the land he claims, even though this encroaches on land claimed and occupied by first party.

Court will issue preliminary injunction against any party who refuses to allow surveys by opposing parties on land claimed and occupied by him.

Before REES, Chief Justice.

Counsel: For Plaintiff, Asaua Fuimaono
For Defendant Faiai, Charles Ala'ilima
For Defendant Tuiasosopo, Togiola T.A. Tulafono
For Defendants Uiagalelei, Aitofele Sunia

On Motion for Preliminary Injunction:

The Court has been presented with evidence that defendants Uiagalelei et al. attempted to conduct a survey in preparation for the. trial of this case and that plaintiff Satele Momosea and two other Satele family members prevented them from conducting the survey.

It is extremely important that each party survey the full extent of the land he claims, even though such surveys encroach on land also claimed by other parties to the case. The Court cannot [6ASR2d110]render a judgment for either side until it has an accurate picture of what is claimed by each and what is in dispute.

Plaintiff Satele Momosea, his aiga, and those acting in concert with him are therefore enjoined from interfering in any way with the efforts of defendants to conduct a survey on the disputed land.

**********

Lokan v. Lokan ,


MARY ANN LOKAN, RAMONA ELAINE LOKAN-JOHNSON,
and ANTHONY WAYNE LOKAN, Plaintiffs

v.

FELETI M. LOKAN and GEORGE C. STOUT,
Co-administrators of the Estate of
GEORGE PHILIP LOKAN, Deceased, Defendants

High Court of American Samoa
Trial Division

PR No. 15-86

December 16, 1987

__________

Administrators who had administered estate poorly were not entitled to administrative fees and would be required to reimburse estate for fees they had already received.

Before REES, Chief Justice, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, William Reardon
For Defendants, Roger Hazell [6ASR2d134]

The facts and issues in: this case are set out in our opinion on plaintiffs' motion for summary judgment. After the denial of that motion the case came for trial. It is clear on the evidence that George Lokan's will contained a general devise of all his property to Lavinia Lokan. The issue of ademption, raised by plaintiffs in their motion for summary judgment and again at the conclusion of the trial, is therefore moot. The estate should be closed and title to the decedent's property vested in Lavinia Lokan.

As plaintiffs point out, however, the estate has been poorly administered. The Court is now asked to approve a "final accounting" containing expenses already paid, in numbers that are both round and large, for such vague and general items as "funeral supplies" and "professional services." An item apparently intended as an attorney's fee, which would be entirely appropriate if it were so designated, is instead referred to as an "honorarium." At the hearing the Court learned that one of the co-administrators, the son of George and Lavinia Lokan, had induced the other co-administrator to sign some blank checks for funeral expenses and had filled out and cashed one such check in the amount of $10,000; this money was used for improvements on Lavinia's house at a time when it was not at all sure that she would prevail in this litigation. The co-administrators also took about $70,000 out of certificates of deposit and left it in a non-interest-bearing bank account for about a year. This cost the estate about $4000.

Since the only person ultimately injured by this maladministration was Lavinia Lokan and since most of it seems to have been done with her complicity, the Court will approve the final accounting with one modification: the administrators have not shown themselves to be entitled to fees. The accounting states that $1000 has already been paid to each of the two administrators and that each is still owed $893.59. The accounting also states that $865 is owed to co-administrator Stout for travel expenses. Stout is therefore ordered to reimburse the estate in the amount of $135 within 15 days. Feleti Lokan is ordered to reimburse the estate in the amount of $1000 within 15 days. [6ASR2d135]

Counsel for the estate is instructed to explain this order to the co-administrators, to Lavinia Lokan, and to the adopted children of George and Lavinia for whose "well-being" George wished the legacy to be used. Counsel is also instructed to file within 30 days a revised accounting to correspond with this order, as well as a proposed order precisely identifying the assets whose title should be transferred to Lavinia Lokan.

It is so ORDERED.

**********

Lokan v. Lokan,


MARY ANN LOKAN, RAMONA ELAINE LOKAN-JOHNSON,
and ANTHONY WAYNE LOKAN, Plaintiffs

v.

FELETI LOKAN and GEORGE C. STOUT,
Co-administrators of the Estate of
GEORGE PHILIP LOKAN, Deceased, Defendants

High Court of American Samoa
Trial Division

PR No. 15-86

October 19, 1987

__________

Court deciding a motion for summary judgment must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party.

Signed writing executed in the presence of two witnesses, listing author's assets and giving instructions for their disposition after author's death was evidence of testamentary intent and met with statutory criteria for enforcement of a will. A.S.C.A. § 40.0102. [6ASR2d45]

Changes to a will that cause a new and distinct testamentary disposition must be attested in order to be valid.

Under the doctrine of "dependent relative revocation," when a testator attempts to change a provision in his will and the attempted change is deemed invalid, the original provision remains in full force unless it appears that the testator would have preferred a simple deletion of this provision to its unmodified enforcement.

Ordinarily when a thing devised passes out of the estate before the testator's death it "adeems," leaving the devisee with no right to receive it or the equivalent value in money or other property.

When a thing devised has, before the death of the testator, changed in name or in form only, there is no ademption and the devisee is entitled to the thing that has replaced the thing devised.

When there is a general devise, property acquired after the execution of the will also passes to the devisee.

Attempted revisions that were not signed, dated, or attested would not invalidate will when it appeared that the revision attempted was merely an update of the property inventory that followed a general devise.

Before REES, Chief Justice, VAIVAO, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiffs, William Reardon
For Defendants, Roger Hazell

Opinion and Order on Motion for Summary Judgment:

George Philip Lokan died in 1986 and left what appears to be a will bequeathing all his assets to "my wife Lavinia Lokan to be used for the general well being of herself and our [adopted] children, Leilani, Eivoni, Sef'o, and Feleti."

Plaintiffs, the first wife of George P. Lokar and the two adopted children of his first marriage, seek inter alia to deny the admission of the will to probate. [6ASR2d46]

For the purpose of deciding plaintiffs' motion for summary judgment we must assume the truth of the evidence presented thus far by defendants and draw from the facts in evidence the inferences most favorable to defendants. We therefore assume that the document was meant by George Lokan to be his last will and testament; that he kept it in his safe with other valuable documents until he died; that the various markings that were made on the document represent his attempts to "update[] his will with interlineations as various CD's matured or his property changed" (Affidavit of Louina Apted); and therefore that during the several years prior to his death he remained constant in his intention to bequeath all of his assets to Lavinia for her well-being and that of their four adopted children.

Plaintiffs allege first that as a matter of law the document "does not evidence the requisite testamentary intent" to be enforced as a valid will. Even without reference to extrinsic evidence, however, the document clearly manifests such intent. Lokan wrote or caused to be written, " I, George Lokan do declare that the following list represents my assets" and " I further declare that in case of my death these assets become the property of my wife to be used for the general well being of herself and our children. He then added a "wish" that one of his sons oversee the operation of a certain business, and instructed the son "to seek the advice" of a named individual in business matters. After listing his known assets, he signed the document and had it witnessed by two persons. The only formal requirements for a will in American Samoa are that it be in writing, signed, and witnessed by two persons. A.S.C.A. § 40.0102. No such legal requirement is imposed on anyone who wishes merely to list his assets and make some informal predictions and wishes about what is likely to happen when he dies, and it is hard to imagine anyone taking the trouble to have such a statement witnessed. If anything, Lokan manifested his intent far more clearly in this document than he could have done by putting his signature on a more elaborate document obtained by an attorney from a form book.

A more substantial objection to the validity of the will has to do with the changes that were made on the face of it during the years between its [6ASR2d47] attestation and Lokan's death. Such changes, as counsel for plaintiffs correctly observes, must be attested if they cause a "new and distinct testamentary disposition." Oliver v. Union Nat'l Bank of Springfield, 504 S.W.2d 647 (Mo. App. 1974). Handwritten alterations on a formal will can become a "holographic codicil" in jurisdictions allowing for holographic wills as an alternative to the requirement of attestation, but only if the testator has satisfied the strictly observed requirement that the alterations be signed and dated. See Estate of Nielson, 165 Gal. Rptr. 519 (Gal. App. 1980). We need not decide whether A.S.C.A. § 40.0102 implicitly denies the validity of holographic wills in American Samoa, since Lokan neither signed nor dated the alterations to his will.

We disagree, however, with the contention of plaintiff's counsel that the effect of the attempted alterations was to revoke the bequest to Lavinia and divert some or all of the assets bequeathed in the original will to those who would have been his heirs if he were intestate. Under the doctrine of "dependent relative revocation," when a testator attempts to change a provision in his will and the attempted change is deemed invalid, the original provision remains in full force unless it appears that the testator would have preferred a simple deletion of this provision to its unmodified enforcement. See Oliver, supra, 504 S.W.2d at 651. In this case the evidence, at least as we must construe it for the purposes of this motion, is all to the contrary. The changes were apparently attempts to update the will so that Lavinia and the children of the second marriage would receive new assets; under the doctrine of dependent relative revocation, the invalidity of these changes should not deprive their intended beneficiaries of whatever they would otherwise have received. Insofar as any provision of the original unaltered will purports to bequeath to Lavinia anything that George Lokan still owned when he died, such provision would seem to be valid whether or not he attempted to alter it.

This does not exactly dispose of plaintiffs' contentions, however, for most of the alterations apparently occurred when Lokan traded in a matured certificate of deposit for a new one with a different number and in a larger amount. The certificates of deposit originally bequeathed are[6ASR2d48] no longer part of the estate. The usual rule is that when the thing devised passes out of the estate before the testator's death it "adeems," leaving the devisee with no right to it or to the equivalent value in money or other property. Atkinson on Wills § 134 at 742 (2d ed. 1953).

If, however, the thing devised has changed in name or in form only, there is no ademption and the devisee is entitled to the new thing whether or not the testator has explicitly manifested such an intention. See id. § 134 at 747; Estate of Austin, 169 Cal. Rptr. 648 (Gal. App. 1980). In Austin the testatrix bequeathed a promissory note. Before her death the note was paid in full and the testatrix invested the proceeds (and some other money) in another promissory note. The bequest was held not to have adeemed. The designated recipient was entitled to receive the repayment of the second note (but only to the extent of the value of the first note).

Some courts would go even further, giving a devisee the whole value of a thing that was apparently regarded by the testator as a substitute even where this new thing cannot easily be regarded as a mere modification of the old. See. e.g., Estate of Shubin, 60 Gal. Rptr. 678 (Gal. App. 1967), where testator had bequeathed his house which was, however, condemned by the government. Testator took the proceeds plus some other money, bought a new house, and wrote its new address on his will 'in place of the old address without attesting the alteration. The court took this as conclusive evidence that the testator did not intend the devise to adeem, and the devisee took the second, more valuable house.

Shubin and other cases represent an apparent return to the classic rule that ademption takes place only in the absence of a contrary manifestation of the testator's intent. Atkinson, supra, § 134 at 741-42. After a trial on the merits of this case, when we will presumably know whether the new certificates of deposit were purchased solely with the proceeds of the old or whether other funds were added, we may have to choose between this one and the contrary, "non-intentionalist" rule that prevailed in 1953 when our edition of Atkinson was printed. (Such a choice may also be forced on us by whatever the facts turn out to be behind original item 16 and [6ASR2d49] attempted item 17 of the will: "16. Dwelling at Houmakelikao, Tonga being sold to Flemming Hojelson" is crossed out with the notation "Sold and paid in full," and "17. 115' by 274' Landsite at Golf Course" is written in.) Even under the more restrictive rule, however, the new certificates of deposit would appear to devolve upon the beneficiaries of the old to the extent they were purchased with the proceeds.

Finally, the question of ademption may be mooted by the apparent intention of George Lokan to devise all of his property to Lavinia. When there is a general devise, property acquired after the execution of the will also passes to the devisee. See Atkinson §§ 132, 134 at 733-34, 742. There appears to be a general devise here. Since defendants have not moved for summary judgment and since the issue has not yet been addressed by either party, we defer consideration of whether this apparently dispositive datum might be overwhelmed by extrinsic evidence or otherwise.

The motion for summary judgment is denied.

**********

Logoa`i v. South Pacific Island Airways, Inc.


ALATAUA LOGOA'I, Personal Representative of KILIONA
LOGOA'I, aka KILIONA AINA,aka KILIONA SAVEA, and his
Estate, and as his Surviving Spouse, and as Guardian
Ad Litem for MA'ALONA K. SAVEA, SOOUPU K. AINA,
KILIONA A1NA SAVEA, and ROSITA KILIONA, Plaintiffs

v.

SOUTH PACIFIC ISLAND AIRWAYS, INC.,
and DOES I-X, defendants

High Court of American Samoa
Trial/Probate Division

CA No. 108-84

October 9, 1987

__________

Most elements of the award in a wrongful death and survival action, including loss of financial support, companionship, affection, consortium, and parental guidance, devolve directly" upon the survivors; only the damages attributable to the pain and suffering of the deceased party ordinarily accrue to the estate.

Duty of a fiduciary to be zealous in protection of the interests of beneficiaries is at its highest when interests of beneficiaries may compete with personal interests of the fiduciary.

Court would not approve a proposed settlement negotiated by guardian ad litem for minor children, where guardian ad litem had also negotiated on her own behalf as surviving spouse and as representative of the decedent's estate, proposed settlement would have redounded primarily to the benefit of the spouse and the estate, and no facts were alleged to justify the small amount awarded to the children.

Before REES, Chief Justice.

Counsel: For Plaintiffs, Roy J.D. Hall, Jr. [6ASR2d29]

This case concerns the alleged wrongful death of Kiliona Logoa'i in an airplane crash. Plaintiff Aataua Logoa'i has moved for an order approving a settlement that has been reached with the defendant. She makes this motion in three capacities: for herself as surviving spouse; for the deceased and his estate as personal representative; and for the minor children as their guardian ad litem.

The settlement would award a total of $225,000. One-third of this would be deducted as attorney fees and costs. Prior to the deduction of fees and costs, the funds would be divided as follows:

To the estate of the deceased:

99,200.

To the plaintiff as surviving spouse:

86,800.

To the children:  
Ma'alona 6,800.
So'oupu 9,300.
Kiliona 10,500.
Rosita 12,400.



The Court does not at present understand the basis for the proposed division of the $225,000, The division of this amount among the various plaintiffs was presumably of no concern to the defendant, its insurers, or its attorneys. Plaintiff and her attorneys were under a fiduciary duty to secure for the children the best possible settlement. The duty to be zealous in the protection of the interests of those to whom one owes a fiduciary duty is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary. Before approving the proposed settlement the Court is obliged to satisfy itself that this duty has been observed.

As the Court presently understands the law regarding wrongful death and survival actions, most elements of awards in such cases ---the loss of financial support, companionship, affection, consortium, and parental guidance devolve directly upon the survivors. Only the damages suffered by the deceased himself (principally the pain and suffering incident to his death) would ordinarily accrue to the estate. Many jurisdictions have adopted statutes under which even an action for these elements could be brought [6ASR2d30] directly by the survivors, including the children of the deceased. See, e.g., A.S.C.A. § 43.5052. Accordingly, the Court does not understand why the estate and the widow are each to receive about ten times as much as the average award to each child.

By signing the proposed, order the Court would certify that the fiduciary obligations established by the Court's appointment of a guardian ad litem for the children had been met. For the reasons stated, I cannot make such a certification.

It is quite possible "that under the circumstances of this case the proposed settlement is perfectly fair to the children. If so, counsel should state these circumstances upon a renewal of the motion. In the alternative, the Court would be willing to approve without further inquiry a settlement in which each child received twice as much as in this proposal, to be deducted pro rata from the proposed awards to the widow and the estate.

**********

Lefai; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT

v.

LEFAI VILIAMU, Defendant

High Court of American Samoa 
Trial Division

CR No. 34-87

November 4, 1987

__________

Under the "objective territorial" principle of jurisdiction, criminal acts taking place outside a state are within its territorial jurisdiction if those acts produce proscribed effects within the state.

When conduct taking place within a state produces its effect in another state, the two states have concurrent jurisdiction over the transaction.

Territorial forgery statute requires that defendant have created the false writing with intent to defraud, not that he have actually succeeded in defrauding anyone. A.S.C.A. § 46.4115.

American Samoa court had territorial jurisdiction over criminal defendant who allegedly forged a letter and mailed it in American Samoa, despite the fact that the letter's recipient, and therefore its criminal "effect," was in another jurisdiction.

Before REES, Chief Justice.

Counsel: For the Government, James Doherty, Assistant Attorney General 
For Defendant, Michael Bennett; Assistant Public Defender

Opinion and Order on Motion to Dismiss:

The defendant is charged under A.S.C.A. § 46.4115 with having forged a letter to the American Consulate General in New Zealand. Defendant has [6ASR2d79] moved to dismiss, contending inter alia that the High Court has no subject matter jurisdiction over the act because the alleged fraudulent intent was directed at one outside the territory. The authorities compel the conclusion, however, that the alleged criminal conduct was not without the High Court's territorial jurisdiction.

Defendant correctly states that criminal acts taking place outside a state are within its territorial jurisdiction if those acts produce proscribed effects within the state. The leading case establishing this as a principle of international law, the "objective territorial" principle, is U.S. v. Aluminum Co. of America) 148 F.2d 416 (2d Cir. 1945) (U.S. court had subject matter jurisdiction over acts undertaken abroad with the intent to cause restraint of trade within the U.S. in violation of U.S. law). We fully agree with defendant that jurisdiction over the alleged forgery would lie in New Zealand.

Defendant is mistaken, however, to the extent that he contends that jurisdiction lies exclusively in New Zealand. Rather, when conduct taking place within a state produces its effect in another state, the two states have concurrent jurisdiction over the transaction. Public Prosecutor v. D.S., 26 Int'l. L. Rep. (Netherlands Supreme Court 1963). There, the Dutch defendant sent a defamatory letter from the Netherlands to an acquaintance in London, where the letter was received and read by the addressee. The defendant contended that any unlawful effect, and thus the crime, took place in England, whose courts alone could exercise jurisdiction thereover. The contention failed; the courts of the Netherlands, as a matter of territorial jurisdiction, were held empowered to take up the issue since the act had occurred there. See also Act Committed, but not Punishable in West Germany, by an Austrian, 101 Journal du Droit International 632 (1974) (Austria Supreme Court 1972) (same result even if the effect taking place in another state is not proscribed there) .Thus even if the "effect" of the forgery took place in New Zealand, the High Court could exercise its territorial jurisdiction over the case because the allegedly criminal conduct took place here. (The authority defendant cites to the contrary was an 1894over-the-border shooting case in which the court expressly recognized that its rule would not apply "in certain cases of false [6ASR2d80] pretenses." State v. Hall, 19 S.E. 602, 604 (N.C. 1894).)

Defendant is also mistaken, however, in suggesting that forgery under local law must produce an "effect" in order to become criminal. The government can establish a criminal forgery by showing that "with the purpose to defraud, [defendant]: (1) makes.... any writing so that , it purports to have been made by another.... A.S.C.A. § 46.4115. The statute does not require that defendant actually have tricked anybody; he need only have committed the described act with the intent to defraud. So long as the intent and the conduct coincided here, the court has territorial jurisdiction over the complaint.

The motion to dismiss is denied.

**********

In re Matai Title “Tauaisafune”,


SALUFATA FAATE'A, Appellant

v.

TALAE MOELETOA TUITELE, Appellee

[In the matter of the Matai Title
'TAUAISAFUNE" in the Village of Amanave]

High Court of American Samoa
Appellate Division

AP No. 16-86

October 22, 1987

__________

When neither claimant to a contested matai title sustained his burden of proving superior hereditary entitlement, trial court's determination that both were related to the title by heritage but that neither prevailed on that issue was not an abrogation of the court's duty to make "findings."

When factual determinations rest upon credibility of witnesses the appellate court must defer to the judgment of the trial judge, who had firsthand opportunity to consider the witnesses and their submitted proofs.

A trial court's findings of fact must not be disturbed on appeal unless they are clearly erroneous. [6ASR2d60]

Before KRUSE, Associate Justice, KING*, Acting Associate Justice, O'SCANNLAIN**, Acting Associate Justice, and TUIAFONO, Associate Judge.

Counsel: For Appellant, Aviata Fa'alevao
For Appellee, Albert Mailo

PER CURIAM:

This is an appeal from a judgment of the Lands & Titles division in LT No.3-85 awarding to Talae M. Tuitele the matai title "Tauaisafune" attached to the village of Amanave.

Appellant, Salufata Faate'a, argues that the trial court erred: in failing to make findings; in failing to find that appellee prevailed on the statutory criterion of hereditary entitlement provided in A.S.C.A. § 1.0409(c)(1); and in concluding against the weight of the evidence by finding in favor of appellant with regard to the third and fourth statutory criteria as contained in A.S.C.A. § 1.0409(c)(3) & (4).

For reasons given, we affirm the judgment below.

Contrary to appellant's first submission, we find that the trial court did indeed make findings on each of the matters required by statute for consideration. These findings were the basis of the lower court's conclusion that Talae M. Tuitele was better qualified to register the title.

Appellant's remaining claims of error are essentially complaints regarding these findings; It is claimed that the trial court, while finding that both claimants were connected to the title, erred in not going further and finding who was [6ASR2d61] better entitled. On the evidence, appellant claims that he prevails.

Hereditary entitlement, like any question of fac, is a matter going to proof, and it is quite apparent on the record before us that neither party had satisfactorily sustained the burden of proving superior entitlement. The record reveals inconsistencies in the testimony on: the original titleholder; clan derivation; and succeeding titleholders. As each party then attempted to demonstrate blood content through resort to the so called Sotoa rule (1) by tracing descent lines to the original titleholder, the result was necessarily a factual variance before the trial court, owing to the contradictory lineages asserted.

The trial court was thus confronted with factors of credibility, and with such matters the appellate court must of necessity defer to the judgment of the trial court, who had the firsthand opportunity to consider the witnesses and their proofs. In re the Matai Title Togiola, A.S.R.2d 127 (1986).

Finally, the standard for appellate review recurringly reiterated is that findings of the trial court may not be set aside unless "clearly erroneous". In re Matai Title Aoelua, 2 A.S.R.2d 104 (1986); Willis v. Willis, 2 A.S.R.2d 102 (1986). Our review of the record amply directs us to the conclusion that the lower court's findings on the third and fourth criteria were substantially supported.

Accordingly, the decision of the trial court is AFFIRMED.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. In re MataiTitle Sotoa, 2 A.S.R.2d 15 (1984).

In re Matai Title “Sotoa”,


LEIFITELE SINAPATI SOTOA and
MEMBERS OF THE SOTOA FAMILY, Appellants

v.

SOTOA S. SAVALI and MEMBERS OF THE
SOTOA FAMILY, Appellees

[In the matter of the'Matai Title "SOTOA"
in the Village of Ta'u]

High Court of American Samoa
Appellate Division

AP No. 20-86

November 11, 1987

__________

Losing candidate for matai title and his supporters, who from the time of the adverse judgment had attempted to prevent the reunification of the family and compliance by the prevailing candidate with the traditional prerequisites for formal ceremonial assumption of the title, would not prevail in a subsequent sit seeking removal of [6ASR2d92] the prevailing candidate on the ground that he had not undergone such a ceremony.

Losing candidate for matai title and his supporters could not prevail in their contention that a single title could be held by a "court-selected matai" and a rival "family-selected matai"; territorial statutes prohibit anyone but the legally registered matai from disposing of communal lands or authorizing improvements on such lands.

Territorial statutes concerning matai titles and other customary matters represent the best efforts of the legislature to incorporate custom into written law and to provide procedures for its preservation and enforcement.

Court has no power to disregard territorial statute on the ground that it allegedly conflicts with tradition or custom.

Trial court judgment refusing to remove matai would not be overturned on appeal, but would be modified to enjoin the matai to exercise the leadership qualities with which the court credited him when it found him best qualified to hold the title under statutory criteria of "forcefulness, character, and personality," and "value to the family, village, and country."

Before REES, Chief Justice, KRUSE, Associate Justice, KING*, Acting Associate Justice, and TUIAFONO, Associate Judge

Counsel: For Appellants, Charles Ala'ilima
For Appellees, Tau'ese Sunia

PER CURIAM:

This is an appeal from the trial court's refusal to remove Sotoa So'oso'oali'i Savali from the title Sotoa. [6ASR2d93]

The dispute began shortly after the death of the previous titleholder, Sotoa Leota, in 1982. Appellant Sinapati Sotoa, a nephewof Leota and a sun of the Sotoa who preceded Leota, attempted to register the title in his own name. Two brothers of Sinapati filed oppositions, each claiming that he had the right to hold the title. Appellee So'oso'oali'i Savali also filed an opposition. The Court held that Savali prevailed on three of the four statutory criteria (hereditary right; forcefulness, character, and personality; and value to the family, village, and country) and therefore was entitled to be Sotoa.

The trial court judgment was announced in July of 1984. An appeal by Sinapati was dismissed in Februaryof 1985 because it had been filed after the statutory deadline. In April of 1985 Sotoa Savali attempted to convene a family meeting but called it off when various of Sinapati's supporters told him they would be unable to attend. In August of 1985 Sinapati and his supporters began circulating petitions for the removal Qf Sotoa Savali from the title. Those petitions culminated in this case.

Sinapati and his supporters claim that the title should be removed from Sotoa because he has not moved to the village of Ta'u which is the historic seat of the Sotoa family; has not built a family guest house as he promised to do when he was seeking the title; continued to hold his former ti tIe Mua'sau for some months after he was awarded the Sotoa title; has not had a saofa'i, and has offended members of the familyand of the village council by using the Sotoa title prior to his saofa'i; 'and has faled to unite the family or gain the support of the Ta'u village council.

Sotoa Savali and his supporters respond, with respect to his failure to move to Ta'u, that almost all the members of the Sotoa family (including the leaders on both sides of the current dispute) are now employed on the island of Tutuila and return to Ta'u only on ceremonial occasions. Sotoa Savali gave up the Muasau title a few months after the trial court's judgmet in this case, and was not obliged ,to give it up until-at least after that judgment was confirmed on appeal. With respect to the other charges, appellees respond that Sotoa Savali has been trying to organize the family and assume the other functions of the Sotoa for two [6ASR2d94] years, has been prevented from doing so by the obstructionist tactics of the appellants, and still intends to do so once this litigation is over.

The trial court agreed with Sotoa Savali and denied the petition to remove the title. We also agree, but with one important reservation.

The record reflects that from the moment of the judgment awarding the title to Sotoa Savali, the loser and his supporters did everything they could to prevent the reunification of the family. They resisted every attempt by Sotoa Savali to meet with the family with a view toward holding a saofa'i at which he would formally assume the Sotoa title in accordance with Samoan custom; they went even further and held their own saofa'i for the losing candidate, Sinapati, in direct violation of a court order. .

The appellants' claim that Sinapati himself had no wish to .undergo a saofa'i, but qid so only because the village. council ordered the Sotoa family to produce a Sotoa within three weeks, rings hollow. The record before us reflects that this directive was issued by a minority of the"vili'age council, consisting entirely of persons who had supported Sinapati and opposed. Sotoa Savali all along. The record also reflects that since 1982 the Sotoa family has never reached the broad consensus that would traditionally have been a prerequisite for a saofa'i. In any case there was no excuse for holding a saofa'i for a person whose legal right to hold the Sotoa title had recently been tried and found wanting, much less for holding such a ceremony in direct violation of a court order.

For the appellants to pvail in this action would" not only be unfair to the lawful Sotoa titleholder and the tamily members who supported him; it would also be corrosive of the rule of law. This Court has become all too f-amiliar with the contention that a law enacted by the Fono can be violated or ignored whenever the person who does not like it claims that the law is contrary to custom or tradition. One instance of this phenomenon is the belief that a single title can be simul taneously occupied by a "court-selected matai" and a rival "family-selected matai." The idea is apparently that the former has the right to use the matai title on his resume while the latter [6ASR2d95] possesses the power and authority traditionally pertaining to the title. It is currently popular as a last resort among losers in matai title cases who wish to avoid or postpone the faily reconciliation contemplated by law and custom alike. It ignores not only orders of the Court and statutes enacted by the Fono, but also (by designating the losing candidate's supporters as "the family" ) the rights and feelings of those family members who supported the winning candidate or who were willing to live with the outcome of the statutory process.

To cite the most obvious example of the inconsistency of this idea with law and custom, the territorial statutes prohibit anyone but the legally registered matai from disposing of communal lands or authorizing improvements that require permits from the overnment. Obviously, the law. contemplates that this person will b none other than the peson who actually presides at family meetings and consults with the family members" affected by the decisions.

In fact, the statutes concerning matai titles . and other customary matters represent the best effort of th Fono ---whose membership includes many of the most important traditional leaders of Tutuila and Manu'a ---to incorporate custom into written law and to provide procedures for its preservation and enforcement. When the Court attempts to resolve a dispute among family members about who should hold a matai title, it is doing its best to apply the criteria that the Fono believes the family would have applied if there were no external means of dispute resolution.

Perhaps the Fono and the Court have been wrong; if so, the law can be changed. We note, however, that the decisions most frequently attacked as contrary to fa'a Samoa are in cases such as this one where a close relative of the previous titleholder has been passed over in favor of a candidate from a different side of the family. This is not contrary to Samoan customs and traditions; if anything, those who. regard an important matai title as the personal property of a small group within the familyare guilty of being unfaithful to tradition. In any case, on the present record we cannot conclude that the trial court erred in refusing to remove the Sotoa title from Sotoa Savali. [6ASR2d96]

The trial court did note, however, that Sotoa Savali had not yet shown the "forcefulness" with which he was credited by the judges who held that he was best qualified to be Sotoa. Even under the difficult circumstances of this case we believe he has yet to demonstrate his willingness and ability to lead the family. We therefore modify the judgment of the trial court as follows:

1) The petition will be denied insofar as it seeks the removal of the Sotoa title from Sotoa Savali.

2) Insofar as some petitioners may be genuinely concerned that Sotoa Savali has not yet complied with the traditional requisites for assumption of the Sotoa title, however, the petition has merit.

3) Sotoa Savali must therefore act with all deliberate speed to organize the family and to assume the Sotoa title in accordance with custom.

4) Sotoa is further directed to use his best efforts to effect a genuine reconciliation among all members of the family, including Sinapati and those who have supported him.

5) All parties to this action and all those acting in concert with them are enjoined from interfering in any way with the exercise by Sotoa Savali of the rights and functions appurtenant to the Sotoa title, and are further enjoined to cooperate with him insofar as their cooperation is a traditional prerequisite to the exercise of such rights and functions. This injunction includes but is not limited to an absolute prohibition of the use of the Sotoa title or of the exercise of any of its functions or perquisites by any other person.

6) The case is remanded to the trial court with instructions to hold a hearing in about six months to determine whether the parties have complied with this judgment and to take such further action as is appropriate at that time.

It is so ORDERED.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

In re Matai Title “Ma'ae”,


MEAPALA MA'AE, Plaintiff

v.

SOLIAI TUPUINE FUIMAONO, Defendant

[In the Matter of the Matai Title "MA'AE"]

High Court of American Samoa
Land and Titles Divi5ion

MT No. 5-84

November 2, 1987

__________

In considering statutory criteria for matai titles, court should always be guided by overriding purpose of the statute, which is to preserve Samoan culture. A.S.C.A. § 1.0409.

Court should interpret statutes dealing with Samoan custom and matai titles so as to minimize the extent to which customary law is modified or overridden by he imported procedural framework.

Court is called upon to evaluate, a claimant to a contested matai title under statutory criteria only when the family cannot, in its customary manner of selecting a matai, reach agreement over who should hold the title.

Family tradition empowering senior matai to designate holder of a lesser title within the family would, if proven, be relevant to determination by court of whether candidates had hereditary rights to title, family support ''as customary in the family," and value of candidates to the family, village, and country. A.S.C.A. § 1.0409.

Proposed registration of matai title can be contested even by someone who does not himself claim the title, and court need not bestow a vacant title merely because only one candidate wishes to hold it.

Before REES, Chief Justice. [6ASR2d76]
Counsel: For Plaintiff, Charles Ala'ilima
For Defendant, Aviata Fa'alevao

Opinion and Order on Motion for Summary Judgment:

This case arises from an attempt by plaintiff Meapala Ma'ae to register the matai title "Ma'ae" of the village of Nu'uuli. An objection was filed by Soliai, who does not want the title for himself but claims that Ma'ae is a lesser matai of the Soliai family and that according to' family custom Soliai has the right to designate the holder of the Ma'ae title.

Plaintiff has moved for summary judgment on the ground that any traditional right of a senior matai to designate a lesser matai within his family has been overridden by A.S.C.A. § 1.0409, which specifies four criteria on which the court must evaluate candidates for a contested matai title. These four criteria are the best hereditary right to the title; the "wish of the majority or plurality of those clans of the family as customary in that family"; forcefulness, character and personality; and. value to the family, village, and country. Since the wish of the senior matai of the family is not listed as a criterion, plaintiff urges that the Court is forbidden to entertain Soliai's claim that he is entitled to name the titleholder. Indeed, it would appear from plaintiff's motion and memorandum that no family member ever has standing to object to a proposed matai title registration unless that family member wants the title for himself. In any case in which there is only one claimant and that claimant possesses the minimum statutory qualifications to hold a title, the Court would have no choice but to award him the title even if every other member of the family vigorously objects.

This argument must be rejected. To adopt it would be to give powerful support to the unfortunate idea that the laws of American Samoa having to do with matai titles are at least irrelevant, and perhaps even hostile, to the customs and traditions of the Samoan people.

The statute defining the Court's duty in matai title disputes ---which is exercised only when the family cannot reach agreement over who should hold the title ---attempts to approximate the factors [6ASR2d77] which, according to tradition, the family itself would consider in reaching its decision. Any approximation is necessarily imperfect; legislators and judges are human beings who sometimes make mistakes. In considering the four 'statutory criteria for matai titles, however, the Court should always be guided by the overarching purpose of the statute, which is to preserve Samoan culture rather than to destroy it. The Court should interpret the statutes so as to minimize the extent to which customary law is modified or overridden by the imported procedural framework in which it now must be applied.

It is not inconceivable that some case might arise in which family custom is clearly inconsistent with A.S.C.A. § 1.0409 and has therefore been overridden by its enactment. It is by no means clear, however, that this is such a case. If Soliai should succeed at trial in proving that family custom gives him the right to designate the Ma'ae titleholder, then for the Court to designate someone else would hardly seem consistent with the wish of the majority or plurality of the clans "as customary in the family." A.S.C.A. § 1.0409(c)(2) (emphasis added). Such a titleholder would in any case seem to be of little value to the family, village, and country; and it is not clear that anyone could have any hereditary right at all to a title if it is proven that heredity traditionally played no part in its bestowal. A.S.C.A. § 1.0409(c)(1), (4). The Court need not award the title to a contestant simply because no one else claims it, but may allow the title to remain vacant if this is the wish or custom of the family. Sami v. Semaia, 1 A.S.R. 481 (1933).

The motion for summary judgment is denied.

**********

In re M/V Tradition,


In the Matter of TRADITION PARTNERSHIP
and the Vessel M/V TRADITION

High Court of American Samoa
Trial Division

CA No. 142-87

November 13, 1987

__________

A structure may be a vessel or other appropriate maritime object for the purpose of some admiralty rules but not for others.

The "flotilla rule" governing limitation of liability for accidents involving more than a single vessel states that in "pure tort" cases, in which the parties have no legal relationship to one another, the owner's liability cannot exceed the value. of the "offending vessel," while in "consensual" cases, in which the injured party has a contractual relationship to the vessel owner, liability is limited to all commonly owned vessels engaged in the single contractual enterprise.

The "consensual" rule of limitation of maritime liability applies where the injured party is an employee of the vessel owner,

A skiff aboard a fishing boat is not itself a "vessel" for limitation of liability purposes, and an owner seeking to limit his liability for injuries occurring on a skiff lashed to its mother ship would have to tender the aggregate value of both the ship and the skiff.

Before KRUSE, Associate Justice.

Counsel: For Complainant, William Reardon

Opinion and Order on Complaint for Exoneration from or Limitation of Liability: [6ASR2d100]

While the tuna vessel M/V Tradition was engaged in a fishing voyage during the spring of 1987, one of its crew was injured in an accident. According to the sketchy documents filed so far, the sailor was trying to disengage the Tradition's skiff with the aid of a sledgehammer. During this undertaking, the sledgehammer recoiled and hit the sailor in the eye. The sailor, Vaiula Sosoatu, has filed a claim against Tradition Partnership, owner of the vessel. Tradition has filed a petition under T.C.R.C.P. Supplemental Rule F for exoneration from or limitation of liability. The United States Code sets out this right and draws its boundaries at 46 U.S.C. §§ 183-188.

The petition seeks approval of an ad interim stipulation and bond in the amount of $75,000, allegedly the value of the Tradition's skiff. While 46 U.S.C. § 183 does permit a shipowner to limit its liability for injuries suffered aboard its vessel to the value of the vessel itself, the bond offered here raises the question whether the limitation provision would really permit the shipowner to limit its liability to the value of the skiff under such circumstances as these. Although Sosoatu has not raised the issue, T.C.R.C.P. Supplemental Rule F(2) seems clearly to require the Court to address it at this point. ("The complaint shall set forth all facts necessary to enable the court to determine the amount to which the owner's liability shall be limited.")

Approval of the petition rests upon the meaning of the term "vessel" as it appears in § 183(a). It should first be noted that the petition does not set forth the circumstances of the accident in great detail. If, for example, Sosoatu was standing on the deck of the Tradition while trying to disengage its skiff, or if the skiff was still lashed to the top of the Tradition, it would seem factually unjustifiable to commence an inquiry into whether the skiff was itself a "vessel" for limitation purposes. Under those circumstances the vessel aboard which the accident took place would be the Tradition, and tendering the value of its skiff would be inadequate. Nevertheless, if the skiff could not legally be considered a § 183 vessel under any circumstances, the need for more particular factual information would dissolve. We therefore proceed to consider the legal status of the skiff under the limitation rules. [6ASR2d101]

The skiff would clearly be a vessel for the purposes of conferring admiralty jurisdiction over the plaintiff's claim. See generally Benedict on Admiralty, Vol. 1, ch. 10-10 § 164 (6th ed. 1985). Yet admiralty law is constructed so as to treat a structure as a vessel or other appropriate maritime object for the purpose of some admiralty rules but not for others. See Id., ch. 10-2 § 161; Lambros Seaplane Base v. The Batory, 215 F.2d 228 (2d Cir. 1954) ( seaplane involved in accident over water may be subject of maritime salvage); Noakes v. Imperial Airways, Ltd., 29 F. Supp. 412 (S.D.N.Y. 1939) (but not a vessel within meaning of limitation of liability statutes). The court must therefore resolve the question before it with reference to those decisions specifically discussing what a vessel is for limitation purposes.

The High Court's duty under rule F(2) to determine the amount to which the owner's liability shall be limited requires a determination whether. as Tradition Partnership maintains, the skiff is the whole vessel. No cases the Court could discover considered a petition seeking to isolate a subservient craft, such as a skiff or a lifeboat, as the vessel to whose value liability should be limited. A confused principle called the "flotilla rule" has been devised, however, to govern disputes over whether liability should be limited to the value of a single vessel or of two or more commonly owned vessels involved in a maritime claim.

The rule distinguishes between "pure tort" cases, in which the parties have no legal relationship to one another, and "consensual" cases, in which the injured party has a contractual relationship to the vessel owner. In a pure tort case, the owner's liability cannot exceed the value of the single "offending vessel". Liverpool, Brazil & River Plate Steam Navigation Co. v. Brooklyn Eastern District Terminal, 251 U.S. 48 (1919). In a "consensual" case, an owner who has used one or more vessels in .a single contractual enterprise must put up the value of the entire flotilla. Sacramento Navigation Co. v. Salz, 273 U.S. 326 (1927).

The "consensual" rule applies where, as here, the injured party is an employee of the shipowner. Standard Dredging: Co. v. Kristiasen, 67 F.2d 548 (2d Cir. 1933), cert. denied 290 U.S. 704 (1934).[6ASR2d102] In Kristiansen, the complainant was a seaman employed by Standard on a dredge. He was required to perform duties aboard ah unattached barge, and was injured while working aboard the barge. Standard attempted, as Tradition does now, to limit its liability to the value only of the vessel aboard which the injury allegedly took place. The court required payment into the limitation fund of the value of both dredge and barge: "....when the duty violated, though imposed by law, presupposes at least the relation of master and servant, the owner must surrender all those vessels which share in the execution of the venture; together they are 'such vessel' within [§ 183(a)]." 67 F.2d at 551.

These cases indicate that, even if the injury took place on board the skiff but not on board the Tradition, and even if a skiff by itself could be a vessel for limitation purposes, under the circumstances here -the skiff and the Tradition collectively form the "vessel" referred to in 46 U.S.G. § 183(a). Many abhor the flotilla rule (see, e.g., G. Gilmore & G. Black, The Law of Admiralty 918 (2d ed. 1975), but it still lives and has been cited as authority in less dusty caselaw than that discussed above. See, e.g., In Oswego Barge Corp., 439 F. Supp. 312 (N.D.N.Y. 1977).

The nature of petitioner's asserted limitation, however, makes it almost unnecessary to go through an analysis under the seemingly artificial flotilla rule. It defies logic to suggest that the Tradition is not a part lf the skiff, but that the skiff alone is the section 183(a) vessel. Rather the skiff would be a part of the Tradition as a unitary vessel. This is suggested in a remark contained in an 1894 Supreme Court decision addressing a separate question under § 183:

The real object of [the limitation act] was to limit the liability of the
vessel owners to their interest in the adventure. Hence, in assessing
the value of the ship, the custom has been to include all that belongs
to the ship, and may be presumed to be the property of the, owner
---not merely the hull, together with the boats, tackle, apparel, and
furniture, but all the appurtenances, [6ASR2d103] comprising
whatever is on board for the object of the voyage, belonging to the
owners, whether such object be warfare, the conveyance of passengers,
goods, or the fisheries.

The Main v. William, 152 U.S. 122, 131 (1894) (emphasis added).

Certainly no policy reason appears that would support petitioner's attempt to limit its liability to the value of the skiff. Most questions raised by the plaintiff's complaint and the defendant's limitation petition ---for example whether, as § 183 requires, the accident occurred without the privity and knowledge of the shipowner, or whether liability even exists ---remain for trial. With respect to the proffered ad interim stipulation and bond, however, Tradition Partnership will be required to surrender the Tradition, with skiff, or its value.

It is so ORDERED.

**********

HGN Corp.; Gray, Cary, Ames & Frye v.


GRAY, CARY, AMES & FRYE, Appellant

v.

HGN CORPORATION and BANCO NATIONAL PESQUERO 
PORTURARIO, S.A. , Appellees

CREWMEMBERS of the COINSECO ALFA, Appellants

v.

M/V COINSECO ALFA, HGN CORPORATION 
and BANPESCA, Appellees

High Court of American Samoa 
Appellate Division

AP No. 1-87 
AP No. 4-87

October 23, 1987

__________

Notice of appeal filed thirty-one days after entry of judgment but seven days after denial of motion for reconsideration is a timely filing within rule establishing schedule requirements for appeals in civil cases. A.C.R. Rule 4(a)(1). [6ASR2d65]

High Court, neither an article III district court nor a non-article III district court empowered under the "territorial exception, " has no jurisdiction to foreclose mortgage under federal ship mortgage act, enforcement of which is permissible only by "district courts of the United States." 46 U.S.C. §§ 911-84.

Local statute granting admiralty jurisdiction to High Court allows Court to apply substantive principles of the maritime common law, even though Congress has never directly and specifically conferred admiralty jurisdiction upon High Court. A.S.C.A. § 3.0208(a)(3).

While High Court has no jurisdiction to foreclose mortgage under federal ship mortgage act, it had subject matter jurisdiction over mortgaged vessel situated in the territory and could determine validity of purported mortgage, and therefore properly placed the vessel in custodia leis upon default by mortgagor, thereby nullifying subsequent attempt by mortgagor to create second preferred ship mortgage.

One who furnishes goods or services to a vessel in custodia leis does not acquire a maritime lien against the vessel for the value of such goods or services.

Rule precluding creation of a maritime lien against a vessel in custodia leis does not apply to a vessel purportedly in judicial custody but neither actually nor constructively taken into marshal's possession.

Courts sitting in admiralty must show special care for rights of seamen.

Judicial seizure of a vessel legally terminates voyage and discharges crew, thus precluding lien for wages for services rendered after seizure.

Where vessel undertook a single fishing voyage after seizure and under limited conditions approved by the court, and where vessel was already under arrest when crew was hired, vessel remained in custodia legis during voyage and crew members had no maritime lien for wages earned during the voyage. [6ASR2d66]

Although no lien can attach to a vessel already in .judicial custody, costs of services or property furnished by court authority to preserve and maintain the vessel for the common benefit of interested parties are "expenses of justice," payable before all preexisting liens.

Outfitting of vessel for profit-making voyage that was undertaken after seizure of vessel and that would not recognizably enhance its value was not "expense of justice," and crewmembers had no prior claim for wages earned during voyage.

Before KING*, Associate Justice, SCANNLAIN**, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge .

Counsel : For Appellant Gray, Cary, Ames, & Frye, William Reardon 
For Appellant Crewmembers, Aviata Fa'alevao 
For Appellee HGN Corporation, Roy J.D. Hall, Jr.

Per O'SCANNLAIN, J.:

Cray, Cary, Ames & Frye ("Gray-Cary") and certain crew members of the M/V Coinseco Alfa ("Alfa") bring appeals from orders of the Trial Division in favor of appellees arising out of foreclosure of various maritime liens against the Alfa in the High Court.

FACTS

In late 1982 HGN advanced $7 million to Pacific Tuna Corporation ( "PTC" ). The loan was secured by a preferred mortgage on four tuna boats [6ASR2d67] owned by PTC including the Alfa. PTC defaulted in March 1983 and HGN thereupon brought this ship's libel action and secured the arrest of the Alfa by the Marshal for the High Court of Samoa. On June 20, 1983, subsequent to the arrest of the Alfa, PTC purported to convey a preferred ship's second mortgage on the Alfa to the Gray-Cary law firm in payment for legal services.

Later in 1983, still during the pendency of this proceeding, PTC and HGN entered into a stipulation agreement whereby the Alfa would be allowed to undertake a single fishing voyage. The stipulation read in pertinent part as follows:

Whereas, .... HGN is not desirous of obtaining ownership of 
Coinseco Alfa or any other vessel secured by the mortgage 
and .... PTC is desirous of securing additional time to obtain 
financing for the vessel in order to clear the vessel of the 
mortgage and any other liens that may exist, it is hereby 
stipulated [ that] the High Court of American Samoa ....appoints
.... John Sawiki as the receiver.... of the Alfa to operate the 
vessel on one fishing trip commencing on or about November 
20, 1983 and such future trips as the parties may mutually agree...
(5) that the receivers are authorized to borrow up to $375,000... 
(6) that the receivers shall compensate the crew by payment 
of a specified sum for each ton of tuna caught or on a share basis 
(pursuant to industry custom) from the proceeds if any of each 
trip.... 
(10) that all expenses and debts incurred by the receivers 
pursuant to the terms of this [stipulation] shall be deemed to be 
expenses of admini5t.ration and shall be paid prior to any claims. 
(12) [n]othing contained herein shall be construed to be a 
waiver of any rights which HGN may have against the vessel or 
its catch arising out of or under the mortgage or the security 
agreement with PTC or otherwise on the vessel.....

Pursuant to this stipulation and order, co-receiver John Sawiki hired a new crew for the Alfa, contracting with each for various shares of the proceeds of the catch in excess of 200 tons. There is no evidence that Sawiki was able to borrow funds [6ASR2d68] to outfit the vessel nor is there evidence that the crew advanced any funds which enhanced the value of the vessel. Although there were only 80,000 gallons of fuel in the ship's bunker, the captain was assured by Sawiki that additional fuel would be delivered to the Alfa on the fishing ground. Relying upon this promise, the captain and crew weighed anchor and commenced the voyage on March 7, 1984.

HGN apparently assumed that no fishing voyage would commence since the receiver was unable to borrow funds to outfit the Alfa. When HGN heard that the Alfa had embarked on a fishing trip, and without insurance, it made written demand for return of the vessel and filed suit when no response was forthcoming. Meanwhile, when no fuel was delivered to the vessel at the fishing grounds, the captain returned the Alfa to Pago Pago on April 5, 1984 with only 78 tons of tuna in the hold. As the tuna catch was below the threshold amount of the share agreement, the captain and crew left the vessel and received no remuneration.

PROCEEDINGS IN TRIAL DIVISION

On May 16, 1985 certain members of the crew intervened in HGN's libel action against the Alfa, claiming that they were entitled to excess post-arrest wages from the ill-fated voyage. The trial court held that (1) at all times relevant to the case the Alfa was in custodia legis (2) the fishing venture was purely a for-profit expedition, not for preservation of the estate, and (3) the crew was limited by the stipulation only to a percentage of the catch, and had no valid claim for wages. Accordingly, summary judgment was granted to HGN. In an accompanying order, the court held that Sawiki acted outside the scope of the stipulation order and therefore any expenses arising from the voyage were not expenses of administration payable out of the res.

On December 5, 1986, the Trial Division entered an order granting summary judgment in favor of HGN and declaring null and void Gray-Cary's post-arrest mortgage on the Alfa for having been issued while Alfa was in custodia legis.

On January 20, 1987, the Alfa was sold at Marshal's auction. [6ASR2d69]

ANALYSIS

I: TIMELINESS OF APPEAL

Gray-Cary filed its notice of appeal 31 days after judgement was entered but 7 days after motion for reconsideration was denied. Appellee argues that the appeal fails for lack of compliance with A.C.R. Rule 4(a)(1). Since the notice of appeal was filed within 10 days after the denial of the motion for reconsideration, we find the appeal timely.

II. JURISDICTION OF HIGH COURT

Gray-Cary argues that the High Court of American Samoa lacked jurisdiction to arrest the Alfa because the enforcement of preferred ship's mortgages has been granted exclusively to the district courts of the United States under 46 U.S.C. § 951. Relying upon Star-Kist Samoa. Inc. v. The M/V Conquest, 3 A.S.R.2d 2'5 (1986), it argues that since the High Court is not formed under Article III, it cannot foreclose on a ship's mortgage pursuant to the Ship Mortgage Act of 1920, 46 U.S.C. §§ 911-984.

It is beyond dispute that the courts of this territory are not article 
III district courts. [citations omitted]. Nor has Congress vested 
our courts with the jurisdiction of a non-article III district court 
pursuant to the 'territorial exception.' Northern Pipeline Co. v. 
Marathon Pipeline Co., 458 U.S. 50, 64-65 (1982). Rather, the 
High Court of American Samoa is a territorial court of discrete 
and limited jurisdiction, created pursuant to articles II and IV of 
the United States Constitution, and does not come within the plain 
meaning of 'district courts of the United States'."

The Conquest, supra, 3 A.S.R.2d at 27. Accordingly, since the High Court of American Samoa is not a U.S. district court, vessel owners cannot take advantage of the Ship Mortgage Act here. Id. at 29.

While this court cannot sit in admiralty under Article III, the Folio has provided us with admiral[6ASR2d70]ty jurisdiction under A.S.C.A. § 3.0208(a)(3), which reads in pertinent part as follows:

(a) The trial division of the High Court shall be a court of general 
jurisdiction with power to hear any matter not otherwise provided 
for by statute. Notwithstanding the forgoing, the trial division of the 
High Court shall have original jurisdiction of the following classes 
of cases and controversies:

.....

(3) Admiralty and maritime matters, of which the trial division shall 
have both in rem and in personam jurisdiction.

Admiralty jurisdiction need not be directly and specifically conferred upon territorial courts by Congress. In re Complaint of Interocean Ships, 2 A.S.R. 76, 83 (1985). Accordingly, while we lack jurisdiction to adjudicate a maritime foreclosure under 46 U.S.C. § 185; see M/V Conquest, 3 A.S.R. at 27-28, we have jurisdiction in admiralty to apply substantive principles of the maritime common law. See, e.g., Interocean Ships, 2 A.S.R. at 80. This court clearly had jurisdiction to determine the validity of a purported mortgage, even if it did not have jurisdiction to foreclose it.

Here, Gray-Cary claims that the Trial Division lacked in rem jurisdiction to arrest the Alfa and thus to foreclose her first mortgage. While it is correct that this court could not proceed under 46 U.S.C. § 951, See M/V Conquest, 3 A.S.R. at 27, we have subject matter jurisdiction over the Alfa under A.S.C.A. § 3.0208(3). Interocean Ships, 2 A.S.R. at 80. Accordingly the High Court had properly placed the Alfa custodia legis at the time PTC delivered its second preferred mortgage to Gray-Cary. For that reason Gray-Cary's argument is devoid of merit; its mortgage on the Alfa was properly declared null and void by the High Court. [6ASR2d71]

III: CREW'S LIEN FOR LOST WAGES

A. Custodia Legis

As a general principle, one who furnishes goods or services to a vessel in custodia leis does not acquire a maritime lien against the vessel for the value of such goods or services. See New York Dock v. The Poznan, 274 U.S. 117, 120 (1927); Gilmore & Black, Law of Admiralty, 602-03 (2d ed. 1975); 2 Benedict on Admiralty § 46, at 3-65 (7th ed. 1983). Consequently, no lien can attach to a vessel while she is in judicial custody. Donald D. Forsh Assoc. v. Transamerica, 821 F.2d 1556) 1560-61 (11th Cir. 1987). In other words, vents subsequent to seizure of a vessel may not give rise to liens on that vessel while she is in custodia legis. Old Point Fish Co. v. Haywood, 109 F.2d 703, 705-06 (4th Cir. 1940).

However, "[t]he rule excluding subsequent liens cannot be extended to vessels that are neither actually nor constructively in the marshal's possession." The Young America, 30 F. 789, 791 (S.D.N.Y. 1887). In Young America, a tugboat was placed in custodia legis following an accident but allowed to ply the harbors in furtherance of its trade without restriction. Id. at 789. "In effect, the vessel was not in the custody of the court at all." Id. at 790. The court thus held that additional liens accrued against the vessel after seizure could be levied in against the tug, since the original lien had never been enforced. Id. at 792. This principle was followed by the Ninth Circuit in Northwest Marine v. United States, 307 F.2d 537 (9thCir. 1962). There, the court held that liens of a libeled vessel's crew can take precedence over the prior liens of the government. (1) Significantly,[6ASR2d72] however, though the crew members there had obtained their liens subordinate to the government, they already held valid maritime liens when the foreclosure libel was filed. 307 F.2d at 539.

B. Lost Wages

"Seamen are wards of admiral ty and as such the courts of admiralty vigilantly guard against any encroachment of their rights." Putnam v. Lower, 236 F.2d 561, 569-70 (9th Cir. 1956). "[D]espite compensational differences, lay fisherman or sharesman possess a right similar to that enjoyed by regular seamen to lien the vessel and catch on board to secure their compensation." Id. at 570. Accordingly, a fisherman's right to libel a vessel for his share of the catch is not lost when, due to the vessel's negligence, no catch is obtained. Id.; Carbone v. Ursich, 209 F.2d 178, 183 (9th Cir. 1953). But see Oldpoint Fish Co. v. Hayward, 109 F.2d 703, 706 (4th Cir. 1940) (fisherman's expected percentage of unrealized catch too speculative to allow maritime lien on vessel).

However, the interest in protecting a seaman's wages does not supersede the principle of custodia legis. Therefore, "[i]t is well settled that no maritime lien can be allowed to seamen for wages accruing subsequent to the time the ship is taken into custodia legis.... The theory here is that the act of seizing a ship, pursuant to legal process, effectively terminates the voyage, and thereby discharges the crew with no further claim for wages.... Putnam, 236 F.2d at 570 (footnote omitted). Thus, "seamen's wage claims are only effective for those services performed prior to libel." Irving Trust v. The Golden Sail, 197 F. Supp. 777, 780 (D. Or. 1961) (unpaid wages of crew for period after arrest of vessel does not give rise to maritime lien for wages). See also Collie v. Feruson, 281 U.S. 52 (1930); Old Point Fish, 109 F.2d at 705. But see The Herbert Rawdin, 55 F. Supp. 156, 162-63 (E.D.S.C. 1944) (seamen entitled to payment on quantum meruit basis for srvice rendered after they filed their libel.) [6ASR2d73]

Here, the stipulation agreement under which the Alfg was allowed to proceed expressly provided that the court retained custody over the vessel. Cf. The Young America, 30 F. at 790. The stipulation was limited to a single' fishing expedition under specified terms and conditions. Id. The Alfa did not ply the seas in her usual custom but rather was at all times in the constructive possession of the court. Id. Indeed, HGN did not even know of the voyage until the vessel had weighed anchor and immediately brought suit to halt the ill-fated trip.

More importantly, the vessel was already under arrest when the crew was hired. Cf. Northwest Marine, 307 F.2d at 539. While the crew may have been able, under normal circumstances, to attach a maritime lien for wages on the basis of their unrealized catch, see Putnam, 236 F.2d at 570, the fact that the ship was already in custodia legis precluded any such wage lien. Id. at 570; Irving Trust, 197 F. Supp. at 789. Because the crew's claim arose after the Alfa was placed in custodia legis, as a matter of law, the crew is estopped from obtaining a maritime lien for lost wages. Cf. Putnam, 236 F.2d at 570 (shipowner wrongfully abandoned percentage contracts before vessel entered custodia legis).

IV: CREW'S EXPENSE OF ADMINISTRATION CLAIM

While the general rule precludes securing liens on vessels in custodia legis, "[t]he most elementary notion of justice would seem to require that service or property furnished upon the authorityof the court. .for the common benefit of those interested in a fund administered by the court should be paid from the fund as an 'expense of justice."' New York Dock, 274 U.S. at 121 (emphasis added). While no lien can attach to a vessel while she is in judicial custody, services or property advanced to preserve and maintain the vessel under seizure, furnished upon authority of the court, has a claim to reimbursement from the sales proceeds, ahead of all lienors. (2)Donald D, [6ASR2d74] Forsh, 821 F.2d at 560-61; General Elec. Credit v. Drill Ship Mission Exploration, 668 F.2d 811, 815- 16 (5th Cir. 1982), Compare United States v. M/V AndQria, 570 F. Supp. 413, 415-16 (E.D. La. 1983) (maritime lien against vessel for repairs, services, and other necessaries primed government's claim for expenses for services or property furnished with respect to vessel prior to seizure) with Kingstate Oil v. M/V Green Star, 815 F.2d 918, 923-24 (3d Cir. 1987) (expenses incurred when ship's charterer unloaded vessel's cargo after its arrest were not entitled to preferential classification as administrative expenses where unloading was for sole benefit of charterer and consignee and did not benefit any other party).

Nevertheless, from the evidence in the record, we conclude that outfitting of the Alfa was in furtherance of the profit-making voyage and added no recognizable value to the res. The crew is not entitled to any reimbursement. See Kingstate Oil, 815 F.2d at 923-24.

CONCLUSION

The Marshal of the High Court of American Samoa properly arrested the Alfa under the maritime jurisdiction of the territory. Thus, the vessel was in custodia legis when the purported second preferred mortgage to Gray-Cary was issued. Accordingly, the trial court properly held this second mortgage null and void.

The crew members' claims accrued after the vessel's arrest. Thus, the maritime common law principle favoring seaman's wages is superseded by the doctrine of custodia Jegis. Further, because . the fishing expedition was a for-profit expedition, wage claims cannot be recognized as administrative expenses. Therefore, the Trial Division's orders are AFFIRMED.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior. 

1. "We hold... that when the government, as mortgagee, elected, instead of foreclosing, to continue the operation of the vessel, for its own purposes and benefit, it did so at its own risk, and not at that of appellant lienholders. It would be grossly unfair to permit the government, by proceedings that were essentially ex parte a to [the] appellants, to put the ship on the high seas on whatever terms it might choose, as a sort of floating credit card payable to the bearer, presumably able to incur maritime liens which would ordinarily, because later in time, prevail over those of appellants." Northwest Marine, 307 F.2d at 541.

2. Though expenditures while a vessel is in custodia legis do not give rise to maritime liens, an admiralty court has equitable power to grant priority to claims arising from administration of property within the court's jurisdiction. Payne v. SS Tropic Breeze, 423 F.2d 236, 239 (1st Cir. 1970).

Haleck; Amerika Samoa Bank v.


AMERIKA SAMOA BANK, Appellant

v.

OTTO HALECK, Appellee

High Court of American Samoa 
Appellate Division

AP No.19-85

October 21, 1987

__________

A garnishee who fails to appear in response to a writ of garnishment without sufficient excuse is presumed to be indebted to the defendant in the full amount of plaintiff's demand. A.S.C.A. § 43.1806(c).

Garnishee bank that. had elected not to retain counsel and whose employee attended garnishment haring but did not request to testify could not argue in collateral attack on resulting judgment that it had been denied an opportunity to be heard. In order to secure relief from a judgment, a party has the burden of proving not only that there was a technical flaw in the proceedings but also that the flaw had some effect on the outcome. T.C.R.C.P. Rule 60(b).

The court has discretion whether to grant relief from judgment, and denial of a motion for relief should be overturned only if the trial court has abused its discretion. T.C.R.C.P. Rule 60(b).

Garnishee bank that failed to respond to a writ of garnishment, to respond meaningfully to an order to show cause why judgment should not be entered against it, to appeal the judgment, and to justify its lapses was not entitled to relief from the judgment entered against it. T.C.R.C.P. Rule 60 (b).

Issues not raised in trial court proceeding cannot be raised on appeal from the resulting judgment. [6ASR2d55]

Before REES, Chief Justice, KRUSE, Associate Justice, O'SCANNLAIN*, Acting Associate Justice, and TUIAFONO, Associate Judge.

Counsel: For Appellant, William Reardon 
For Appellee, Roy J.D. Hall, Jr.

PER CURIAM :

This is an appeal from the trial court's refusal to grant relief from a default judgment under T.C.R.C.P. Rule 60(b).

Appellee (hereinafter "Haleck") obtained a judgment against Sataoa Kaleuati and later served Appellant (hereinafter "Bank") with a writ of garnishment and accompanying interrogatories. The writ required the Bank to retain all funds in its possession belonging to the judgment debtor and either to answer the interrogatories concerning any such funds or to appear in Court on a specified day to provide the same information. The Bank did not answer the interrogatories, did not appear in Court, and allowed the judgment debtor to withdraw funds from his account.

The Bank was then ordered to appear in Court to show cause why judgment should not be entered against it in the amount of $6,713.02, the full amount of the judgment underlying the garnishment. This was in accordance with A.S.C.A. § 43.1806(c), which provides that a garnishee who fails to appear in response to the writ of garnishment without sufficient excuse is presumed to be indebted to the defendant in the full amount of the plaintiff's demand. The order was accompanied by a subpoena duces tecum directed to the President of the Bank, directing him to appear and bring various records concerning the judgment debtor's bank accounts. The Bank instead sent the Clerk of the High Court a check for $17.78, the amount in the judgment debtor's account on the day it received the order to show cause. (At the time the bank received the writ of garnishment there had been about $360 in [6ASR2d56] the debtor's account.) The President of the Bank delegated the duty to appear in Court to the Vice President/Cashier, who delegated it to a clerk.

The Bank was not represented by counsel at the hearing on the order to show cause; the clerk who had been instructed to bring the records to Court did not testify and the records were not introduced into evidence. The Court granted judgment against the Bank in the full amount of Sataoa Kaleuati's debt.

Two weeks later (i.e., too late to make a motion for a new trial) the Bank filed the Rule 60(b) motion that is the subject of the present appeal. At the hearing on the Bank's motion there was only one witness, the Vice President/Cashier ) who had been told by the President to appear and who had sent the clerk instead. The clerk who had been present at the hearing on the Order to Show Cause was not presented as a witness at the Rule 60(b) hearing. The record on appeal therefore does not reflect what she would have said if she had been asked to testify concerning the Bank's excuse for not complying with the writ of garnishment,. or even whether she knew anything at all about what that excuse was. (1) [6ASR2d57]

The motion for relief from the judgment was denied, and the Bank appeals on the ground that the bank was "denied an opportunity to be heard" when its clerk was not called as a witness at the hearing on the order to show cause.

The Bank itself, however, chose not to be represented by counsel and not to send any of its principal offices to the hearing on the order to show cause. The clerk who did appear did not ask to testify or to make a statement on behalf of the Bank. She did bring certain records (although not, the trial court concluded, all the records that were required by the subpoena) but there is no evidence that she was competent to testify about what the Bank's excuse was for not appearing earlier. The judge clearly regarded her more as a courier than as a witness; she did nothing to dispel that impression; and the Bank put on no evidence at the hearing on its Rule 60(b) motion to suggest that the court's original conclusion was incorrect.

In order to secure relief from a judgment under Rule 60(b), a party has the burden of proving not only that there was a technical flaw in the proceedings but that the flaw had some effect on the outcome. Moreover, such relief is discretionary and a denial of a Rule 60(b) motion should only be reversed if the trial court has abused its discretion. There was no abuse of discretion here.

Finally, the Bank urges that the judgment against it is void because the record does not reflect whether notice of the garnishment proceedings was given to the original judgment debtor. We need not decide whether the Bank has standing to assert the rights of the judgment debtor, since the issue was not raised in the trial court proceedings on the Rule 60(b) motion and therefore cannot be considered on appeal.

**********

* Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. The only evidence about whether the clerk was present and what she would have said if present was the following testimony of the Vice President/Cashier: 
Q. Did you appear in court on May 10th? 
A. I was off island. 
Q. Do you know if anybody appeared in court on May l0th? 
A. Yes, we had Miss Uta Ioselagi represent the bank because both of us were off island. 
Q. You and Roger both? 
A. Yes. 
Q. Did you give her instructions as to what to do? 
A. Yes. 
Q. What instructions did you give her? 
A. We just asked her to bring over the file with her and just explain: what happened when she's going to be questioned by any of the lawyers.

Fa'alevao; Dev. Bank v.


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

RON FA'ALEVAO and PAMATA FA'ALEVAO, Defendants

High Court of American Samoa 
Trial Division

CA No. 99-87

November 6, 1987

__________

Requirement of federally insured student loan program that local lending institutions make loans without security and without binding third parties as sureties except under particular circumstances defeated lending bank's attempt to recover defaulted student loan debt from borrower's wife, even though she cosigned loan application and promissory notes. 20 U.S.C. § 1071 et. seq.; 34 C.F.R. 682.509. [6ASR2d82]

Before KRUSE, Associate Justice, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge. Counsel: For Plaintiff, Robert Dennison 
Pamata Fa'alevao pro se

Opinion and Order on Motion for Summary Judgment:

This action on overdue indebtedness stems from certain student loans taken out by Ron F. Fa'alevao with plaintiff, Development Bank of American Samoa, under the Federal Insured Student Loan Program (hereafter "FISLP"), made available pursuant to the provisions of Title IV, Part B of the Higher Education Act of 1965, 20 U.S.C. §§ 1071 et. seq. The plaintiff bank sues on three separate promissory notes, each with the face amount of $2,500 and respectively dated: October 31, 1977; July 1, 1978; and August 27, 1979.

FACTUAL BACKGROUND

Defendants herein were at all relevant times husband and wife. The husband, Ron Fa'alevao, at the times the loans were made, was a full time student attending law school in Fullerton, California, and as such he applied for FISLP financial assistance towards the costs of education.

In accordance with the Act, and the regulations thereunder, 34 CFR 682, the FISLP is essentially a federal insurance fund which directly insures soft loans to eligible students made by a qualified state (or as here a "territorial") lender following certain stated criteria. Lenders qualify fox the payment of federal interest benefits and special allowances on FISLP loans. The program pays a borrower's loan obligation if the borrower dies or becomes totally' and permanently disabled, or if the loan is discharged in bankruptcy. The fund pays the lender's insurance claim if the borrower defaults. 34 CFR 682.102(b).

Mr. Fa'alevao's application for FISLP benefits was made on a pre-printed federal form made and provided for in these cases. The form seeks information on the applicant's family's adjusted gross income, to be verified by signatures of all persons whose income is reported on the form. [6ASR2d83]
Besides a signature space for the applicant, the form also designates a signature space for: applicant's spouse; applicant's father; and applicant's mother. In the block designated for the spouse, the defendant Mrs. Pamata Fa'alevao executed the application form.

The application form further requires verified information from the applicant's school, and if approved by the lender, the form contains a portion which the Development Bank also filled out.

The loans were variously approved, and the promissory notes utilized to evidence the loans were also pre-printed federal forms. The notes were produced to the court and purport to bear the signatures of both defendants.

At the time this suit was filed, Mr. Fa'alevao had long departed the territory and process was only served on Mrs. Fa'alevao, who, for all intents and purposes, maintains that Mr. Fa'alevao has abandoned his marital and family obligations since leaving the territory.

LEGAL DISCUSSION

After consideration of plaintiff's proofs, namely the promissory notes and the loan application, we find certain factors apparent on the face of the documented evidence which attract a second look, in the light of plaintiff's position that respondent Mrs. Fa'alevao had executed: (1) the loan application as a co-applicant; and (2) the promissory notes as either a primary or secondary obligor.

The factors we allude to that suggest a situation unlike the usual are the following. Firstly, the pre-printed promissory note form is couched in language which addresses only the situation of a singular obligor. Conspicuously absent from the language of the notes are the usual references one expects with regard to co-makers, endorsers, and guarantors. Rather, the note provisions exclusively envisage the Federal Loan insurance program, (provided under 20 U.S.C. §§ 1071 et. seq.) as the only surety for repayment. For example, clause IV(5) of the notes provides that in the event of maker's death or total and permanent disability, the unpaid [6ASR2d84]indebtedness thereunder shall be cancelled. Such a term is inconsistent with the provision for a co-maker/co-obligor.

The very bottom of the note form contains in highlighted script print the heading CAVEAT, along with the following language: "This note shall be executed without security and without endorsement, except that, if the maker is a minor and this note would not, under state law, create a binding obligation, endorsement may be required." (emphasis added).

Provision number 1 of the notes requires that the construction of the terms thereof shall be " ...in the light of Federal Regulations pertaining to [the] Act" [Title IV, Part B of the Higher Education Act of 1965 as amended, 20 U.S.C. §§ 1071 et.seq.] We turn to those regulations for edification on the quoted caveat. The pertinent regulations promulgated pursuant to the Act are contained in 34 CFR 682, Sub Part E, §§ 682.500 et. seq. Section 682.509(e)(2} provides in effect that the Secretary (of Health Education & Welfare) shall make available to FISLP lenders approved promissory note forms. Such forms may not be added to or modified by a lender without the Secretary's approval. Subsection (f) thereof provides as follows:

(1) A FISLP loan must be made without security.

(2) With one exception, a FISLP loan must be made 
without endorsement. If a borrower is a minor and 
cannot under applicable local law create a legally 
binding obligation by his or her own signature, a lender 
may require an endorsement by another person on 
borrower's FISLP note. For purposes of this paragraph, 
"endorsement" means a signature of any party ---other 
than borrower who is to assume either primary or 
secondary liability on the note.

Given the foregoing, the conclusion is inescapable that Mrs. Pamata Fa'alevao's signing of the notes was an entirely ineffectual exercise. Even it the plaintiff's expectation at the time was that Mrs. Fa'alevao would be bound as an obligor, [6ASR2d85] such an expectation was not in accordance with governing law. The promissory note forms may not be amended by a FISLP lender unilaterally without the Secretary's approval. Secondly, Mrs. Fa'alevao could not be construed as having thereby given security for the repayment of the note. See clause number 1 of the note. Finally, it is quite clear from the regulations that the purpose and intendment of the "Caveat" as contained in the note was to embody the regulatory prohibition against requiring Co-obligors.

This prohibition is not without purpose. Section 682.500 of the regulations outlines the circumstances under which loans may be insured under FISLP. These include the circumstances as may exist in a State or Territory whereby "no guarantee agency program is operating; or a guarantee agency program is operating but is not reasonably accessible to students.... Additionally, subsection (d) thereof empowers the Secretary, as a condition for issuing loans under the FISLP, to require lender applicants to certify that conditions such as those mentioned above exist within the Territory. Accordingly, the plaintiff bank cannot be certifying the lack of guarantee agency programs within the territory in order to qualify as a FISLP lender while making, or attempting to make, side deals to bind third party sureties.

We conclude against any liability on the part of Mrs. Pamata Fa'alevao as evidenced by the referenced promissory notes.

The motion for summary judgment is denied.

It is So ORDERED.

**********

Davies & Co. v . Pacific Development Co.;


THEO H. DAVIES & CO., LTD., 
dba PACIFIC MACHINERY, Plaintiff

v.

PACIFIC DEVELOPMENT CO., LTD., FONOTI 
PATRICK REID, and YOSHIHISA SATO, Defendants

High Court of American Samoa 
Trial Division

CA No.112-87

October 2, 1987

__________

Unless presented with evidence that foreign law differs from local law, courts will assume that it does not.

Uniform Commercial Code permits a secured creditor to enforce his security interest through ,judicial process, to repossess the goods and resell them in a commercially reasonable manner and to recover any deficiency after resale, or to retain the goods in satisfaction of the debt. U.C.C. §§ 9-501(1), 9-503, 9-504, 9-505(2).

Secured creditor is not required upon default. to select only one of the several remedies provided by the Uniform Commercial Code, but may not pursue conflicting remedies simultaneously in a harassing or commercially unreasonable manner. U.C.C. § 9-501(1).

Under common law "election of remedies" rule, a secured creditor could choose only one of the available remedies for default by debtor, whether or not cumulative remedies would have been fair or commercially reasonable under the circumstances.

Under the Uniform Commercial Code, a secured creditor's election to retain the goods subject to the security interest results in a complete discharge of the underlying obligation. U.C.C. § 9-505. [6ASR2d6]

At common law, as under the Uniform Commercial Code, a secured creditor may not retain repossessed collateral indefinitely while simultaneously maintaining an action on the debt.

Secured creditor seeking a deficiency judgment after repossessing sold goods was not entitled to the difference between the contract price and the current value of the goods when evidence showed that the goods had been severely damaged since the time the creditor had repossessed them.

Secured creditor who had repossessed sold goods after default and had retained the down payment was not entitled to repossess and sell additional collateral in the absence of a showing that creditor had made commercially reasonable efforts to resell the goods it had already repossessed, since court had no evidence on which to conclude that creditor's damages had not already been fully redressed.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and OLO, Associate Judge.

Counsel: For Plaintiff, William Reardon 
For Defendants, Frank Swett

On motion for preliminary injunction:

I. Facts

Plaintiff sold defendant Pacific Development five pieces of heavy machinery for about $300,000. The machinery was to have been used at a facility defendant planned to operate in Western Samoa. Under the terms of a retail installment agreement, defendant paid an initial sum of $80,000 and was to complete payment of the remainder plus interest with eighteen subsequent installments. The debt was secured by an agreement identifying as collateral two used pieces of machinery owned by t:iefendant and "all other assets of Debtor." (Oddly enough, the agreement specifically identifies as collateral only these two pieces of machinery; it does not mention the machinery that was the subject of the contract.)

Shortly afterward there was a change of government in Western Samoa and it became apparent[6ASR2d7] that defendant would not be permitted to operate the facility for which the machinery had been purchased. After a series of letters and discussions between the principals it was agreed that this machinery (which had been shipped from Hawaii to Apia, Western Samoa, but had not been removed from the dock) would be returned to the plaintiff. Defendant's version of this agreement is that the sale was in effect being rescinded and that plaintiff was to return the $80,000 down payment less the amounts it had spent for shipping and other costs associated with the transaction. Plaintiff contends that it retained the right to receive the full purchase price and that the machinery was returned only as partial security for that right. (1)

Plaintiff put the machinery into storage in American Samoa. It has not been resold and has apparently not been advertised for sale in American Samoa or elsewhere. Plaintiff has submitted an estimate to the effect that the machinery that was the subject of the contract is now worth only about [6ASR2d8] $90,000. It appears that the machinery has been severely damaged after its repossession by the plaintiff, by exposure to the weather and perhaps also by vandalism. No estimate has been submitted of the value of the machinery at the time plaintiff repossessed it.

In this action plaintiff, seeks to recover the remainder of the purchase price plus interest. Plaintiff now moves for an order allowing it to take possession of and sell, prior to trial on the merits, the two pieces of used machinery that were identified as collateral in the security agreement.

II. What Law Applies

The choice of applicable law does not clearly emerge from the pleadings. The collateral of which plaintiff seeks possession is in the Territory. The security agreement, apparently drafted by plaintiff, was executed in Hawaii but invokes the protections afforded creditors by the Western Samoa Commercial Code. A "continuing guarantee" of the debt purports to be governed by the laws of Hawaii. Hawaii has adopted the Uniform Commercial Code sections; American Samoa has not. The Western Samoa Code is not immediately available and the parties' submitted materials are devoid of citation to it. In the absence of evidence that foreign law differs from local law, courts assume that it does not. Consequently, for the purposes of this motion we must apply either the provisions of the Uniform Commercial Code or the common law of secured transactions as applicable in American Samoa. Since our ruling on this motion would be the same whether we were to apply the Uniform Commercial Code or the principles of the common law of secured transactions, we need not decide at this time which body of law applies.

III. Cumulative Remedies Under the UCC and at Common Law

A creditor's remedies on default are itemized in Part Five of Article Nine of the Uniform Commercial Code. The secured creditor "may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure." U.C.C. § 9-501(1). He may also repossess the goods subject to the security interest and resell them in any commercially reasonable manner, applying the proceeds to the [6ASR2d9]debt. U.C.C. § 9-503-04. Or he may retain the goods in satisfaction of the debt. U.C.C. § 9-505(2). Section 9-504 permits the recovery of any deficiency after resale, absent creditor misbehavior in repossession and resale .

Plaintiff's conduct amounts to a melange of the above alternatives. It has peaceably repossessed the equipment but has not attempted resale. Nor, however, does it consider its retention to satisfy the debt. Rather, it seeks judicial recourse, pressing a claim for (1) the entire debt less the down payment; (2) interest; and (3) the right to repossess the additional collateral notwithstanding (4) its retention of the machinery at the heart of the sale.

Section 9.501(1) of the U.C.C. provides that " [t]he rights and remedies referred to in this subsection are cumulative." (The subsection refers to all the remedies discussed above.) The Code thus sought to overrule prior judicial precedents to the effect that a secured creditor's first attempted remedy would be his only one. The leading commentary on the Code emphasizes, however, that the language of this subsection should not, be construed beyond its purpose to allow unfair or commercially unreasonable conduct on the part of creditors:

The remedies may be "cumulative," but at some point the secured 
creditor must choose which remedy he will utilize and pursue the 
route to fruition. In other words, a secured creditor may first attempt 
to enforce his rights by one method and if that proves unsuccessful 
follow another one, but he should not be permitted to harass the 
debtor by simultaneously pursuing two or more of the several avenues 
of attack open to him. Neither case law nor the language of 9.501 
authorizes a "double barreled" attack upon the debtor.

J. White & R. Summers, Uniform Commercial C:ode § 26-4 at 1093-94 (2d ed. 1980). This view has been accepted by courts in cases similar to the one before us.

In Ayares-Eisenberg Perrine-Datsun, Inc., v. Sun Bank of Miami, 455 So. 2d 525 (Fla, App. 1984), [6ASR2d10] defendant had defaulted on a loan for the purchase of a computer. Two officers of the company personally agreed to guarantee the debt. Upon default, plaintiff repossessed the computer and notified defendant that the computer would be resold by private sale. Eight months later, however, plaintiff instituted an action to recover the entire debt. One month after that, ostensibly unable to find a buyer, plaintiff gave the computer to a nonprofit organization without notifying the defendant. The court reversed the trial court order granting plaintiff's motion for summary judgment. Relying on White & Summers, the court held that plaintiff's action directly upon the note was precluded until and unless plaintiff could prove it had fulfilled the statutory requirements with respect to the commercially reasonable disposition of collateral.

In Michigan Nat'l Bank v. Marston, 185 N.W. 2d 47 (Mich. App. 1970), the court held that a secured creditor could maintain an action on a debt even though it held title to the repossessed but unsold automobile securing the debt. Possession of the certificate of title was held not to constitute an election of remedy, because the automobile itself was in the possession of a garageman who held it subject to a mechanic's lien. In order to repossess the car itself the creditor would have had to pay the garageman, thus augmenting the debt. The court also held, however, that the creditor nevertheless owed certain duties to the debtor:

It would be unfair to allow a creditor to deprive the debtor of 
the possession and use of the collateral for an unreasonable length 
of time and not apply the asset or the proceeds from its sale 
toward liquidation of the debt. Moreover, it would be equally 
unfair to allow a creditor to take possession at all, if the creditor 
never intended to dispose of the security. For during the period 
that the debtor is deprived of possession he may have been able 
to make profitable use of the asset or may have gone to far greater 
lengths than the creditor to sell. Once a creditor has possession he 
must act in a commercially reasonable manner toward sale, lease, 
proposed retention where permissible, or other disposition. If such 
disposition is not [6ASR2d11] feasible, the asset must be returned, 
still subject, of course, to the creditor's security interest. To the 
extent the creditor's inaction results in injury to the debtor, the 
debtor has a right of recovery.

185 N.W.2d at 51 (citations omitted). The bank's initial act, repossession, was held not to constitute an election of remedy. Moreover, because of the mechanic's lien, the bank was not required to resell the car. It could not, however, repossess the collateral and leave it in limbo while maintaining an action on the debt. The court indicated that if the bank chose not to get possession of the car and resell it, it would have to return the title documents to the debtor. Id. at 51 n.4. See also Appeal of Copeland, 531 F.2d 1195, 1207 (3d Cir. 1976) (referring to "the Code's mandate that an effective election to retain the collateral results in a complete discharge of the underlying obligation.")

The Uniform Commercial Code and the cases applying it, in other words, seem to prohibit the indefinite retention of repossessed collateral contemporaneously with an action on the debt. The same result would have obtained under the common law principles that predated the enactment of the Code. See Bradford v. Lindsay Chevrolet Co., 161 S.E. 2d 904 (Ga. App. 1968) (At common law the repossession of collateral securing a conditional sales contract, and retention without resale or excuse for not reselling and without making a demand for payment until suit, constituted "a rescission and satisfaction of the contract" precluding further recovery thereon.); In re Orpheum Circuit Inc., 23 F. Supp. 727 (S.D.N.Y.), aff'd, 97 F.2d 1011 (2d Cir. 1938); Zazzaro v. Colonial Acceptance Corp., 167 A. 734 (Conn. 1933); Annot., 49 A.L.R. 2d 15, 25, § 4 (1956) (discussing cases recognizing that a repossessing seller could not recover deficiencies under the sales contract in the absence of a resale). The pre-Code common law in many jurisdictions treated plaintiffs attempting more than one remedy even more strictly. Under the "election of remedies" rule a secured creditor in these jurisdictions could choose but one of his available remedies, whether or not cumulative remedies would have been fair and reasonable in the particular [6ASR2d12] circumstances. See e.g., Strehlow v. McLeod, 117 N.W. 525 (N.D. 1908); Wilmore v. Mintz, 95 P. 536 (Colo. 1908). We are inclined to believe that this rule is wrong and that a creditor should be permitted to pursue more than one remedy provided that such conduct is commercially reasonable and does not constitute harassment. We need not reach this question, however, in order to rule on the motion now before us, for even under the more liberal provisions of the Uniform Commercial Code the plaintiff's request for pre-judgment seizure of the additional collateral would be denied.

IV. Conclusion

In order to grant plaintiff's motion we would be required to believe all of the following propositions:

1) That defendant Reid's testimony that the plaintiff agreed to accept the machinery (plus as much of the $80,000 down payment as was necessary to pay the expenses it had incurred) in satisfaction of the purchase price was either perjury or the product of his imagination.

Plaintiff has produced no direct evidence on this point. The fact that one of plaintiff's officers wrote a demand letter several months later suggests as does, for that matter, the fact that this suit has been filed ---that plaintiff must have a different version of the transaction in which the machinery was returned. At this point, however, Reid's testimony is the only direct evidence of that transaction. Even if we assume that plaintiff's letter (described in note 1 supra) was sent and received and that the officer who sent it was fully informed about all discussions that other officers of the plaintiff corporation had with the defendants, we cannot tell from the letter exactly what plaintiff's version is. We do not know, for instance, whether plaintiff denies that it made any agreement at all with defendants concerning the return of the machinery or simply disagrees with defendants about the legal effects of such an agreement.

2) That defendants' other principal defense on the merits of the action that they were never in default because the action of the new Western Samoa government constituted force majeure excusing nonperformance ---is without merit. [6ASR2d13]

We are reasonably certain that we do agree with plaintiff on this proposition, although the issue has not yet been briefed or argued by either side.

3) That defendants paid a great deal more for the machinery than anyone else would have been willing to pay for it. At the time plaintiff repossessed the machinery, it had never been used or even possessed by defendants, and the plaintiff had $80,000 of the defendants' money in addition to the machinery. In order for the plaintiffs to have the right to seize additional thousands of dollars worth of machinery, it must appear that they have not been fully compensated by the two remedies ---repossession of the machinery and the retention of the down payment ---already pursued. In the absence of any direct evidence of the fair market value of the machinery we are inclined to believe that it was worth some amount within $80,000 of the purchase price. We have been presented with no evidence of what the plaintiffs' shipping costs and other expenses were. Plaintiff's estimate that the machinery itself was worth only $90,000 after incurring serious damage from exposure to the elements for a year by the plaintiff's agents says very little about what it was worth when defendants surrendered it.

4) The conduct of plaintiff with regard to the repossessed machinery moving it from Western Samoa to American Samoa and making occasional informal inquiries about whether anyone in American Samoa wants to buy it ---constitute commercially reasonable efforts to resell the machinery. (If not, plaintiffs' possession of the machinery for over a year would amount to a constructive retention in satisfaction of the debt, even in the absence of a specific agreement to this effect. See the authorities cited in Part III, supra.)

Although we have not had the benefit of briefing, argument, or expert testimony on this point, the evidence we do have (i.e, the facts of the transaction on which this action is based) suggests that the market for such machinery as this is specialized and international rather than general and local. Commercially reasonable efforts to sell it would presumably have included, for [6ASR2d14] instance, advertisements in trade journals outside of American Samoa.



Although plaintiff may produce evidence sufficient to enable it to prevail on all these issues at trial, on the present state of the record it loses on three out of four.

We wish to emphasize that it is not our intention to penalize the plaintiff for seeking judicial enforcement of what it believes to be its rights under the contract rather than resorting to self-help. Nor do we believe this to be the effect of our decision today. The standards we have applied in ruling on this motion are the very standards we would apply if a debtor were suing to enjoin a creditor from seizing collateral or to recover the collateral after the creditor had seized it. Contractual language giving a creditor the right. to seize collateral without legal process. however helpful it may be as a defense against a charge of conversion or grand larceny, does not foreclose judicial inquiry into such questions as whether a person whose possessions are being seized really owes the money whose repayment the seizure is supposed to secure.

V. Order

The motion for an order of repossession and sale of the additional collateral pending trial is denied. The temporary restraining order, enjoining defendants not to move, alienate, dismantle, or encumber the property, will continue in force as a Preliminary injunction pending the outcome of these proceedings.

**********

1. The evidence for defendants' version of this transaction was the testimony of defendant Reid. Plaintiff presented no testimony and no affidavits other than one from its attorney stating that he is "aware of some of the details of the transaction herein on the basis of conversation with a local representative of the Pacific Machinery." 
Plaintiff has also submitted a copy of a letter dated several months after the machinery was returned. Although this letter does not directly refer to any discussions that took place between the parties concerning the return of the machinery it does state that "plaintiff will proceed with the sale" of the machinery and recover the balance of the purchase price from defendants. The last two paragraphs of the letter purport to state the rights and obligations of both parties, and resemble a draft of a bilateral agreement more than a letter from one party to another. The letter was prepared for the signature of the plaintiff's Vice President-Comptroller and for "acknowledgment" by the defendants. The copy we have bears no trace of a signature by anyone, and we have no evidence about whether it was sent or received.

American Samoa Gov’t v. Agasiva,


AMERICAN SAMOA GOVERNMENT

v.

MICHAEL AGASIVA, Defendant

High Court of American Samoa 
Trial Division

CR No. 5-87

October 14, 1987

__________

Under the rule requiring court to read pleadings broadly when necessary to promote justice, court would view prisoner's second motion for reduction of sentence as a petition for habeas corpus rather than dismissing it as a repetition of previously denied motion. T.C.R.C.P. Rule 8(f).

Rule directing liberal construction of pleadings when necessary to promote justice takes on added importance when pleading party is appearing pro se.

Counsel's failure to file a requested appeal of a criminal conviction violates defendant's right to effective assistance of counsel, justifies habeas corpus relief without a showing by defendant of prejudice or doubtfulness of guilt, and entitles defendant to an out-of-time appeal. U.S. Const. amend. VI.

Counsel who believes requested appeal of criminal conviction to be frivolous must so advise the court, request permission to withdraw, and file a brief identifying any points in the record that could conceivably support an appeal.

Counsel's failure to assert defense of intoxication could not prejudice defendant's right to effective assistance of counsel when proof of intoxication would not have legally negated the required criminal intent.

Blanket. imposition of religious programs on unconsenting inmate violates establishment and freedom of religion clauses of both federal and [6ASR2d33] territorial constitutions. U.S. Const. amend. I; Rev'd Am. Const. Samoa art. I, § I.

While the judiciary cannot ordinarily employ writ of habeas corpus to review prison management or the conditions of a prisoner's otherwise lawful confinement, exceptional prison circumstances rising to the level of constitutional deprivations are within the court's jurisdiction.

Prisoner was entitled to habeas corpus relief from prison conditions that placed him in danger of grave physical and psychological harm.

Requiring prisoners to perform road work does not inflict cruel and unusual punishment. U.S. Const. amend. VIII.

Allegations that prison officials treated different inmates differently were neither proved nor entitled to judicial consideration.

Before KRUSE, Associate Judge, and VAIVAO, Associate Justice.

Counsel: For the Government, William Van Hook, Assistant Attorney General 
The Defendant appeared pro se

Opinion and Order on Motion for Reduction or Modification of Sentence:

Defendant, Michael Agasiva, prepared and filed pro se a pleading styled "Motion for Reduction and/or Modification of Sentence". Amid the grounds asserted on the motion, the defendant alleges: the ineffective assistance of counsel; deprivation of his first amendment right to freedom of religion; discriminatory and ill treatment at the Correctional Facility; cruel and unusual punishment; and excessive sentence.

It will be noted that a prior motion for reduction of sentence has been made by defendant in this matter and was denied. Ordinarily, the succeeding motion before us should be summarily denied. However, after taking into account the circumstances of the motion in the light of TCRCP Rule 8(f), which requires the Court to construe pleadings so ''as to do substantial justice", we [6ASR2d34] have approached the motion as a petition for habeas corpus relief to permit a collateral review of defendant Agasiva's allegations. This flexible approach to construction takes on greater importance when the pleadings come from the cell of a pro se defendant rather than from the pen of a schooled attorney. See Gordon v. Leeke 574 F.2d 1147, 1151 (4th Cir. 1981). The federal courts have specifically authorized the treatment of pleadings attacking conditions attendant to prosecution and imprisonment as habeas petitions raising constitutional issues meriting habeas corpus review. See, e.g., Coronado v. United States Bd. of Parole, 540 F.2d 216 (5th Cir. 1976).

Agasiva's motion alleges ineffective assistance of counsel on the ground that his trial attorney failed to file a timely appeal as he had requested of counsel. If factually correct, such a failure would deny the criminal defendant effective assistance of counsel in violation of the sixth amendment to the United States Constitution. v. Wainwright, 640 F.2d 596 (5th Cir. 1981) cert. denied, 456 U.S. 910 (1982). Three important principles emerge from the decision in this case. First, failure to follow a defendant client's request to appeal his conviction amounts to constitutionally ineffective representation. Second, the defendant is entitled to habeas corpus relief in this instance without having to show prejudice or the doubtfulness of his guilt. Third, under such circumstances, the defendant should be permitted to submit an out-of-time appeal. Id. at 518-99. Id. at 598-99. See also Sapp. v. Wainwright, 433 F.2d 317 (5th Cir. 1970).

This is notwithstanding an opinion by trial counsel that the appeal lacks legitimate grounds. Anders v. California, 386 U.S. 738 (1967), a Supreme Court decision discussed in this context more fully in Cannon v. Berry, 727 F.2d 1020 (11th Cir. 1984), requires of counsel who feels that an appeal is frivolous to so advise the Court and request permission to withdraw. Counsel is further required to file a brief pointing out any contents of the record that could conceivably support an appeal. Thus the Court becomes the arbiter of whether the appeal is frivolous and may thus be forborne, or whether it bears prosecuting and requires. the effective assistance of counsel. [6ASR2d35]

On this ground alone, the Court was able to issue a writ to the executive branch to produce the defendant in order to permit an evidentiary inquiry into his allegations. Defendant's pro se motion for reduction and/or modification, filed within the 120 day period permitted under T.C.R.Cr.P. 35, was sufficient under Sapp, supra, to identify and protect his efforts to obtain post-verdict relief and to overcome his failure to file a timely appeal.

At the hearing herein, Agasiva advised the Court that he did not wish to pursue an appeal (1) and the Court, after advising the defendant on several occasions about the availability of relief upon satisfactory showing, was satisfied that Agasiva has knowingly abandoned pursuing the availability of appeal.

We look to the remaining allegations of defendant:

Agasiva also complained of counsel for failing to inject a defense of "intoxication" provided under A.S.C.A § 46.3214. This complaint lacks merit, as the defense goes to "negative the existence of mental states of purpose or knowledge when those mental states were elements of the offense charged or of an included offense". Agasiva was convicted of manslaughter, an offense whose elements do not include "purpose" or "knowledge."

Unlike the situation in Perez (failing to file a timely appeal requested), where counsel's conduct is presumed prejudicial, the ground of failing to [6ASR2d36] raise a defense is not prejudicial . Proof therefore that the alleged omission of counsel fell below the sixth amendment standard of effective assistance, is required. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984). For reasons given, such ground, and therefore proof, is not available as a matter of law in this defendant's case.

We turn to defendant's post-conviction complaints.

Defendant excepts to being forced to participate in prayer sessions imposed by the prison authorities on all inmates. The evidence herewith was not in dispute. The testimony was that after reveille each morning, a prayer session was held and every inmate was required to attend, without exception. Similarly, other religious sessions were imposed at general assembly, and those inmates who did not cooperate were known on occasions to be placed in holding cells. (Holding cells are not the best in accommodation at the prison.) The warden, while testifying that he took corrective action with regard to the holding cell as alternative to prayer, stated that he supported the general prayer sessions as conducive to rehabilitation goals.

Defendant, on the other hand, complains that he is Catholic by persuasion and while he earnestly participates in programs which the Catholic Church has in connection with the facility, he has strong objections to forced interdenominational religious activity.

The very first section of the territorial Bill of Rights (Rev. Const. Am. Samoa art I, § 1) contains an establishment clause and a freedom of religion clause similarly contained in the federal Constitution. Little need be said that the blanket imposition of religious programs upon nonconsenting inmates is hopelessly violative of the constitution. Cooper v. Pate, 378 U.S. 546 (1964). Accordingly, relief shall be granted as hereinafter appearing.

Defendant further complains of conditions permitted at the Correctional Facility which place him in constant fear for his life. Defendant, on his behalf and the behalf of other inmates, complained about the free integration of one [6ASR2d37] inmate, Afoa Mata'itusi, with the rest of the inmate population. Testimony was to the effect that Afoa was the institutional bully invested by the administration with a badge of authority by the creation of a "matai" system at t:he Correctional Facility. This system was devised, also in the name of rehabilitation goals, to inculcate with the inmates the traditional notions of respect for the elders. The said Afoa was one of three or four persons given recognition with matai status, with each such matai assigned jurisdiction over a particular group of inmates. These so-called matai were the inmate liaison with the administration, and were responsible for such things as assigning work detail. According to defendant, the matai influence of this Afoa was even more pervasive. Afoa controlled inmate sporting activities, had a nursery business, and was permitted to market his plants during work detail outside the facility utilizing a government vehicle. He is also said to have usurped and displaced another inmate entrepreneur's business of retailing convenience items to inmates.

The underlying cause of defendant's complaints is that, given this influence and while currying favor with the administration, Afoa is a known dangerous felon.

Our review of the Court's files n inmate Afoa lends much credence to the fears expressed by defendant. Afoa was convicted and sentenced by this Court to imprisonment on June 28, 1978, for a term of fifteen years without work release for the crime of rape. The Court recommended that if Afoa be paroled he be deported immediately to Western Samoa. The sentencing court had before it a lengthy record of Afoa with the criminal justice system in Western Samoa. The presentence report concludes with the recommendation: "To safeguard the lives of others in the Community as well as inmates, " defendant be incarcerated for fifteen years without release for any purpose and that the defendant be segregated from the rest of the inmates.

On July 5, 1978,. the said Afoa was convicted of murder in the second degree after viciously killing another inmate at the Correctional Facility. He was sentenced to imprisonment for a period of forty-five years to be served consecutively with .the sentence for rape. The [6ASR2d38] court further prohibited work release and recommended, if possible, extra-territorial confinement in either a state or federal penitentiary.

Much of the foregoing record was known to defendant Agasiva, and he testified that Afoa in the attempt to assert his authority, or pule, has verbally threatened him with his life on several occasions, even in front of guards. His complaints to the administration are to no avail.

On the other hand, the Warden presented himself as a character witness for inmate Afoa. In his opinion, the dangerously disruptive element at the facility has been the defendant Agasiva. Agasiva is said to view himself as superior to everyone else because of' his educational background, and he seeks treatment different from everyone else, demanding privileges which everyone else must otherwise earn. By comparison, Afoa is held out as a model inmate. The confrontations highlighted by Agasiva are confrontations generated by Agasiva. The Warden denies any knowledge of a retail outlet undertaken by Afoa, but states that the nursery enterprise operated by Afoa has been sanctioned by his superior, and that the proceeds f'om the nursery are shared by Afoa and his inmate aiga for the purchase of toiletries. Afoa is seen to be the model for rehabilitation while Agasiva is seen to be disruptive of everything that is rehabilitative.

The court is mindful that habeas corpus is not available to the judiciary to review prison management and the nature and condition of a prisoner's otherwise lawful confinement. It is not the Court's business to superintend the administration of the prisons, which is properly left to prison officials. However, habeas corpus is appropriate to review unconstitutional actions of prison officials and may be available in "exceptional circumstances rising to the level of constitutional deprivation." See generally 39 C.J.S. Habeas Corpus, § 96 et. seq.

With all due respect to the Warden and his judgment, and while giving him credit for daily and firsthand observation of the circumstances at the Correctional Facility, this Court has great difficulty in accepting the conclusion that inmate Afoa does not present a clear danger to the [6ASR2d39] defendant and other inmates. Afoa's record reveals the potential for viciousness and the concerns of the sentencing court are proving just as valid today as they were in 1978. According to the testimony, Afoa recently struck another inmate on the face with a piece of 2 x 4 lumber. (The Warden has dismissed this incident as having been fully settled.) He punched another with a rock. He openly threatened to cut up another prisoner. The instrument used in the killing for which Afoa was convicted was a bush knife, and testimony had it that Afoa has ready access to such knives. He makes a point of being visible with a bush knife when his pule as a matai is challenged. He has threatened this defendant on different occasions.

We find substance in the fear expressed by the defendant.

In Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944), cert. denied, 325 U.S. 887 (1945), the court held that: "A prisoner retains all rights of an ordinary citizen except those expressly or by necessary implication taken from him by law, which rights include the right to personal security against unlawful invasion." The Court further noted that while the government had the absolute right to hold a convicted prisoner, it also had the correlative duty to protect that prisoner against assault and injury. A prisoner is thus entitled to habeas corpus when, although lawfully in custody, he is deprived of some right to which he is lawfully entitled even in confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits. Id. at 445.

We conclude on the facts that inmate Afoa presents a real danger to the defendant (and to quote defendant) from a "physiological and psychological perspective." We find defendant's fears to be objectively demonstrated and they give rise to the situation whereby his term of imprisonment is made more burdensome than the law allows. Inmate Afoa is not only a dangerous felon, but he actively trades on his reputation in order to instill fear and to manipulate a following with certain of the inmate population. His potential for violence is exacerbated and perhaps encouraged with the ostensible imprint of official sanction [6ASR2d40] connected with his being given the cognizance of a matai.

Relief is accordingly appropriate in this matter to reinstate defendant's imprisonment, exclusive of the added burdensome fears for his safety.

Defendant Agasiva's other grounds for relief are without merit. The court does not find that road work detail is "cruel and unusual punishment."

We further do not find that defendant is being discriminated against with regard to provisional release programs. Agasiva's complaints of discriminatory treatment are that other inmates are entitled to provisional release while his requests have been denied. These are matters properly left to the administration of the Correctional Facility. At the same time, we find no evidence of arbitrariness directed against the defendant Agasiva. His evidence was that inmate Afoa has been given road detail release, weekend leave, etc., in contravention of the sentence order of the criminal trial court. In our view, this was not a product of discriminatory preference, but managerial neglect. As the evidence showed, Afoa was somehow placed on the release programs long before Warden Tuiteleleapaga assumed the running of the Correctional Facility, and every other succeeding warden after this fact has merely followed suit in the assumption that Afoa was properly eligible for release privileges. As a management shortcoming, the facility's officialdom will need to take appropriate corrective measures to comply with a final order of the Court which is still in full force and effect.

At the end of defendant's entreaty is a further request to reduce or modify sentence. This Court remains affirmed that sentence imposed herein was appropriate having regard to the nature and circumstances of the offense as well as defendant's background as required by A.S.C.A. § 46.1910. Essentially, defendant seeks to highlight his background as being very amenable to rehabilitation. But that is only part of the picture the Court must look at. We looked also to the "nature and circumstances of the offense" in this case and the facts then before us at [6ASR2d41] sentencing. The Court was then also moved to consider a competing and equally important sentencing factor. That is "deterrence". The prospect for rehabilitation is a feature which logically follows the sentencing process but is properly under the auspices of the executive branch. The sooner defendant Agasiva comes to terms with the fact that rehabilitation programs are not in accordance with his own views and demands, but are in the hands of the appropriate law enforcement officials, the sooner he may be seen as amenable to rehabilitation programs. Our order denying sentence reduction entered July 14, 1987 remains unchanged.

CONCLUSION

The Court concludes on the foregoing as follows:

The defendant Agasiva shall remain in the custody of the American Samoa Government, Department of Public Safety, Territorial Correctional Facility subject to the following conditions. Defendant Agasiva shall not be required to participate in any religious programs at the Correctional Facility without his consent. He shall be permitted to participate in those religious programs of his own choosing as are ordinarily made available at the Correctional Facility to inmates of Agasiva's religious persuasion. Inmate Afoa Mata'itusi shall be segregated from defendant Michael Agasiva and in compliance herewith, defendant Michael Agasiva shall not as a result thereof be segregated from the remainder of the inmate population.

It is So ORDERED.

**********

1. Defendant's purpose in raising the failure to appeal does not apparently seek reinstatement f an appeal opportunity out of time as a cure or remedy to his asserted prejudice. Rather. the alleged failure is being solely advanced to the trial court for its consideration in the hope of some sort of offset prejudice value to be applied in favor of sentence reduction. Such a ground is of course without merit. As the defendant does not seek an appeal opportunity. we need not pursue the evidentiary hearing n the merits of the allegations concerning the failure to file timely appeal.

In re a Minor Child (Juv. No. 108-86),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 108-86

December 8, 1987

__________

When purpose of action for relinquishment of parental rights was to allow the child to live with his grandmother, purpose could be achieved without the necessity of formal relinquishment and adoption, and the grandmother proposing to adopt was less well-equipped than natural parents to support the child throughout the period of his minority, petition to relinquish would be denied. A.S.C.A. § 45.0402.

Before KRUSE, Chief Associate Associate Justice, and TAUANU'U, Judge.

Counsel: For Petitioner, Roger Hazell

The natural parents of the minor child before the Court petition to relinquish their parental rights to the minor in anticipation of an adoption petition by the child's maternal grandmother.

The facts of the case are as follows. The natural father is thirty-eight years old and gainfully employed. The natural mother is thirty- four years of age and similarly employed. Including the minor here, the petitioners have three children. The proposed adoptive parent, on the other hand, is sixty-seven years of age, widowed, and a beneficiary of social security and veterans benefits in the aggregate amount of $418 per month. Grandmother owns a three bedroom house shared by a household of five, and she has had the primary care of the minor since his birth. The child is presently nine years old.

The natural parents' only explanation in agreeing to relinquish their rights to the child is that he has become naturally attached to the [6ASR2d124] grandmother. Upon questioning, the petitioners responded affirmatively that they appreciated and understood the consequences of their petition if granted. Petitioners have further attended counseling with the Department of Human Resources; in the Department's report we find an additional motive to the petition, that petitioners may leave the island in order for the natural father to attend school and further his drafting career. They desire not to separate the minor from his grandmother because of te close bonding which has developed between them.

A number of things require the Court's consideration in these proceedings. Most significant, of course, are the best interests and welfare of the child. See generally § 102 of the Juvenile Justice Act of 1980, A.S.C.A. § 45.0102. Among other things, we are also to look to the best interests of all the parties concerned, A.S.C.A. § 45.0402(e), and the reason why relinquishment is desired, A.S.C.A. § 45.0402(a).

On the facts presented us, it is the opinion of the Court that the reasons given are not sufficient to justify us in granting the petition.

Firstly, relinquishment is being sought with the view to securing the bonding that has arisen between the grandmother and the child. The Court does not feel that a relinquishment order is necessary to effectuate these purposes. The grandmother, subject to the natural parents' agreement, may retain custody of the child and may continue the relationship developed.

Secondly, the consequence of a final order of relinquishment is to: "divest the relinquishing parent or parents of all legal. obligations they may have with respect to the child relinquished." The corresponding package of rights of the child as against his parents includes the full force and effect of the law to ensure that their parental obligations are complied with in accordance with those standards demanded by society.

The alternative sought by this petition and anticipated adoption is the transferal of those parental obligations, guaranteed by the law to the child, to the grandmother. The remaining years of the child's minority and dependence, as well as the [6ASR2d125] age difference between the child and grandmother, speaks against this alternative as bing more advantageous to the child than those of his natural circumstances. The natural circumstances' are such that the child has healthy young parents to whom the law can look for the child's future support and maintenance of his needs, given his remaining years of dependency.

While the Court is mindful of the attachment and bonding that has arisen between the child and his maternal grandmother, it does not necessarily follow that the furtherance of that relationship requires the formal divestment of the child's rights against his natural parents. There is no superior advantage offered by the grandmother in terms of making more secure the child's future needs, and there is no real reason why the child's present relationship with his grandmother may not otherwise continue.

Accordingly we deny the petition.

**********

Wattie Exports Ltd. v. Pacific Industries, Inc.,


WATTIE EXPORTS LIMITED, Plaintiff

v.

PACIFIC INDUSTRIES, Inc., Defendant

High Court of American Samoa
Trial Division

CA No. 133-87

October 9, 1987

__________

Since corporation unrepresented by counsel was presumed to be a relatively sophisticated litigant, court would sign "stipulated ,judgment" agreed to by the corporation as long as its officers understood that the stipulated judgment was substantially greater than would be taken against the corporation if it simply did not appear.

Before REES, Chief Justice. [6ASR2d31]

Counsel: For Plaintiff, Roy J.D. Hall, Jr.
Defendant pro se

The Court has been asked to sign a "stipulated judgment." Although defendant is not represented by counsel, defendant is a corporation and is therefore presumed to be relatively sophisticated as defendants in these sorts of cases go. The Court is therefore willing to sign the judgment, provided that the officers of defendant corporation understand:

1) If they simply did not contest the action and allowed judgment to be taken against the corporation, the interest awarded would be 6% (the amount the law prescribes in cases where the parties have not agreed on another amount) rather than the 14% provided in the stipulation; and

2) If they did not contest the action and allowed judgment to be taken against the corporation, no attorney fees would be awarded unless there was a provision for such fees in the contract or unless some extraordinary circumstance justified an award of attorney fees.

The defendants may have reasons to agree to a judgment substantially greater than would be taken against them if they simply did not appear. If so, the Court will sign such a judgment. If not, plaintiff remains free to take a default judgment for the principal amount of the debt plus interest at the legal rate of 6% and court costs of $50.

**********

Haythornwaite v. Transpac Corp.,


ELIZABETH HAYTHORNTHWAITE, on behalf
of herself and other stockholders of
TRANlPAC CORPORATION, Plaintiffs

v.

TRANSPAC CORPORATION, TOM DRABBLE ,
DEREK DALE, and JOSE VELGHE, Defendants

High Court of American Samoa
Trial Division

CA No. 13-87

December 7, 1987

__________

Majority shareholders are entitled to judicial relief against corporate managers or majority ;shareholders only upon proof that managers or majority shareholders have breached a fiduciary duty to the corporation; that the Court believes the business judgment of the managers or the majority to have been unsound is not a sufficient ground for relief .

Acts of self-dealing by corporate managers that are clearly detrimental to the corporation constitute a breach of fiduciary duty to the corporation.

Even when minority shareholder has proved that she will probably prevail at trial on at least some charges of impermissible self-dealing by corporate management, she is not entitled to a preliminary injunction unless she also proves that she or the corporation will be irreparably injured if no [6ASR2d111] interim relief is granted pending trial on the merits.

Before REES, Chief Justice.

Counsel: For Plaintiff, William Reardon
For Defendant, Roy J.D. Hall, Jr.

Opinion and Order on Motion for Preliminary Injunction:

Plaintiff alleges that defendant Drabble, the President and majority shareholder of Transpac, has caused the corporation to engage to its detriment in a series of financial transactions with Drabble himself and with other entities controlled by him.

The Court is keenly aware of the limits of its authority and competence in dealing with charges of the sort that have been made here. Minority shareholders are not entitled to any particular return on their investment, or to any return at all. They are not entitled to manage the corporation or to get the Court to manage it for them; even if the minority shareholders and the Court believe the business judgment of the majority to have been unsound. A minority shareholder is, however, entitled to insist that the managers and majority shareholders observe their fiduciary duty to the corporation. When management engages in acts of self-dealing that are so clearly detrimental to the corporation as to overcome the strong presumption that a court should not interfere with the business judgment of those charged with managing business enterprises --- what is known as "the business judgment rule" ---this fiduciary duty is breached.

It is easy to understand the resentment that someone in the position of Mr. Drabble, who owns the vast majority of the shares in a corporation and who has spent most of his working life in an effort to make it prosper, must feel when his dealings with the corporation are questioned. For reasons that are just as easy to understand, however, such a person may tend to deal with the corporation as though it were an extension of himself rather than an entity to which he owes a fiduciary duty. When there are minority share[6ASR2d112]holders who object to such dealings, they are impermissible.

At the hearing on plaintiff's motion for a preliminary injunction, she produced evidence of a number of instances in which corporate assets had been used by Mr. Drabble or other entities controlled by him without any apparent benefit to the corporation. The absence of evidence of apparent benefit to the corporation does not necessarily mean that no benefit was derived. It might be possible to characterize some of the transactions to which plaintiff objects as compensation for Mr. Drabble' s services to the corporation. Others, such as the use of Transpac computers and of Transpac employees' time in the conduct of non-Transpac enterprises, may have or may not have imposed substantial costs on the corporation. Although the pattern of casual transfers among Drabble-controlled entities that appears from the present record is such that plaintiff will probably be able to prove at trial that some of these transfers should not have occurred or should have been handled differently, with regard to most such items the plaintiff has not proved that she or the corporation will be irreparably injured if no interim relief is granted pending a trial on the merits. Accordingly, plaintiff's request that the Court order a complete audit and the return of any diverted assets prior to trial is denied.

Our finding that no irreparable injury will take place prior to trial, however, is conditioned on the assumption that there will be no substantial transfers of Transpac resources to other Drabble controlled entities between now and then. Although plaintiff presented evidence that would suggest the likelihood of such transfers, Mr. Drabble assured the Court that none are contemplated. The Court will therefore enjoin any such transfers pending the outcome of this case. The limitation of this order to "substantial" transfers is designed to make it clear that defendants are not required to restructure their operations so as to eliminate the current use by non-Transpac entities of such assets as computer time and administrative work by Transpac employees. Only the direct transfer of funds, or a series of indirect transfers clearly calculated to achieve the effect of a substantial and direct transfer of funds, is prohibited. [6ASR2d113]

The principal point of contention between the parties is the development of the "Sadie Thompson building." After plaintiff objected to an earlier arrangement by which Transpac was to develop the building and use it to house some corporate operations, Mr. Drabble and the corporation reached an agreement that Drabble would take over the development of the building and reimburse Transpac for the amounts it had expended. A complicated series of transactions ensued, including a recent decision by the Transpac Board of Directors that Transpac will lease the building from Mr. Drabble "at cost." There is at present no lease document; the term of the lease and the exact amount constituting "cost" remain unspecified. At the hearing on this motion Mr. Drabble testified that no further expenditures by Transpac were contemplated other than "tenant expenses," primarily interior decoration of those areas Transpac intends to lease. The expenditure of Transpac funds for such "tenant expenses" does not violate the preliminary injunction. Substantial expenditures for amounts not customarily charged to commercial tenants would violate the injunction, unless they were made pursuant to a lease approved by the board of directors of Transpac and whose ter.ms were not so unfavorable to the corporation as to violate the business judgment rule.

It would be difficult to underestimate the enthusiasm with which the Court embarks on this venture into the world of retail sales and interior finance. The corporate form of organization has many advantages, but there is very little to be said for a closely held corporation whose shareholders do not like each other. Even the relatively unintrusive inquiry into whether challenged transactions violate the business judgment rule promises to be painful for the defendants without offering any great prospect of substantial profit to the plaintiff. The Court reiterates its suggestion that the parties negotiate, perhaps by resort to arbitration, a fair price per share. Surely there must be objective factors (other than the near-monopoly power of the majority shareholder and the "nuisance value" of the minority shares) by which such a figure could be calculated. This would allow Mr. Drabble to conduct transactions among the various enterprises he controls without regard to the benefit or detriment to each entity from each transaction, and it would allow Mrs. Haythornthwaite to direct her [6ASR2d114] activities to more productive enterprises than litigation.

It is so ORDERED.

**********

Gray, Cary, Ames & Frye v. HGN Corp.,


GRAY, CARY, AMES & FRYE, Appellant

v.

HGN CORPORATION and BANCO NATIONAL PESQUERO
PORTURARIO, S.A. , Appellees

CREWMEMBERS of the COINSECO ALFA, Appellants

v.

M/V COINSECO ALFA, HGN CORPORATION
and BANPESCA, Appellees

High Court of American Samoa
Appellate Division

AP No. 1-87
AP No. 4-87

October 23, 1987

__________

Notice of appeal filed thirty-one days after entry of judgment but seven days after denial of motion for reconsideration is a timely filing within rule establishing schedule requirements for appeals in civil cases. A.C.R. Rule 4(a)(1). [6ASR2d65]

High Court, neither an article III district court nor a non-article III district court empowered under the "territorial exception, " has no jurisdiction to foreclose mortgage under federal ship mortgage act, enforcement of which is permissible only by "district courts of the United States." 46 U.S.C. §§ 911-84.

Local statute granting admiralty jurisdiction to High Court allows Court to apply substantive principles of the maritime common law, even though Congress has never directly and specifically conferred admiralty jurisdiction upon High Court. A.S.C.A. § 3.0208(a)(3).

While High Court has no jurisdiction to foreclose mortgage under federal ship mortgage act, it had subject matter jurisdiction over mortgaged vessel situated in the territory and could determine validity of purported mortgage, and therefore properly placed the vessel in custodia leis upon default by mortgagor, thereby nullifying subsequent attempt by mortgagor to create second preferred ship mortgage.

One who furnishes goods or services to a vessel in custodia leis does not acquire a maritime lien against the vessel for the value of such goods or services.

Rule precluding creation of a maritime lien against a vessel in custodia leis does not apply to a vessel purportedly in judicial custody but neither actually nor constructively taken into marshal's possession.

Courts sitting in admiralty must show special care for rights of seamen.

Judicial seizure of a vessel legally terminates voyage and discharges crew, thus precluding lien for wages for services rendered after seizure.

Where vessel undertook a single fishing voyage after seizure and under limited conditions approved by the court, and where vessel was already under arrest when crew was hired, vessel remained in custodia legis during voyage and crew members had no maritime lien for wages earned during the voyage. [6ASR2d66]

Although no lien can attach to a vessel already in .judicial custody, costs of services or property furnished by court authority to preserve and maintain the vessel for the common benefit of interested parties are "expenses of justice," payable before all preexisting liens.

Outfitting of vessel for profit-making voyage that was undertaken after seizure of vessel and that would not recognizably enhance its value was not "expense of justice," and crewmembers had no prior claim for wages earned during voyage.

Before KING*, Associate Justice, SCANNLAIN**, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge .

Counsel : For Appellant Gray, Cary, Ames, & Frye, William Reardon
For Appellant Crewmembers, Aviata Fa'alevao
For Appellee HGN Corporation, Roy J.D. Hall, Jr.

Per O'SCANNLAIN, J.:

Cray, Cary, Ames & Frye ("Gray-Cary") and certain crew members of the M/V Coinseco Alfa ("Alfa") bring appeals from orders of the Trial Division in favor of appellees arising out of foreclosure of various maritime liens against the Alfa in the High Court.

FACTS

In late 1982 HGN advanced $7 million to Pacific Tuna Corporation ( "PTC" ). The loan was secured by a preferred mortgage on four tuna boats [6ASR2d67] owned by PTC including the Alfa. PTC defaulted in March 1983 and HGN thereupon brought this ship's libel action and secured the arrest of the Alfa by the Marshal for the High Court of Samoa. On June 20, 1983, subsequent to the arrest of the Alfa, PTC purported to convey a preferred ship's second mortgage on the Alfa to the Gray-Cary law firm in payment for legal services.

Later in 1983, still during the pendency of this proceeding, PTC and HGN entered into a stipulation agreement whereby the Alfa would be allowed to undertake a single fishing voyage. The stipulation read in pertinent part as follows:

Whereas, .... HGN is not desirous of obtaining ownership of
Coinseco Alfa or any other vessel secured by the mortgage
and .... PTC is desirous of securing additional time to obtain
financing for the vessel in order to clear the vessel of the
mortgage and any other liens that may exist, it is hereby
stipulated [ that] the High Court of American Samoa ....appoints
.... John Sawiki as the receiver.... of the Alfa to operate the
vessel on one fishing trip commencing on or about November
20, 1983 and such future trips as the parties may mutually agree...
(5) that the receivers are authorized to borrow up to $375,000...
(6) that the receivers shall compensate the crew by payment
of a specified sum for each ton of tuna caught or on a share basis
(pursuant to industry custom) from the proceeds if any of each
trip....
(10) that all expenses and debts incurred by the receivers
pursuant to the terms of this [stipulation] shall be deemed to be
expenses of admini5t.ration and shall be paid prior to any claims.
(12) [n]othing contained herein shall be construed to be a
waiver of any rights which HGN may have against the vessel or
its catch arising out of or under the mortgage or the security
agreement with PTC or otherwise on the vessel.....

Pursuant to this stipulation and order, co-receiver John Sawiki hired a new crew for the Alfa, contracting with each for various shares of the proceeds of the catch in excess of 200 tons. There is no evidence that Sawiki was able to borrow funds [6ASR2d68] to outfit the vessel nor is there evidence that the crew advanced any funds which enhanced the value of the vessel. Although there were only 80,000 gallons of fuel in the ship's bunker, the captain was assured by Sawiki that additional fuel would be delivered to the Alfa on the fishing ground. Relying upon this promise, the captain and crew weighed anchor and commenced the voyage on March 7, 1984.

HGN apparently assumed that no fishing voyage would commence since the receiver was unable to borrow funds to outfit the Alfa. When HGN heard that the Alfa had embarked on a fishing trip, and without insurance, it made written demand for return of the vessel and filed suit when no response was forthcoming. Meanwhile, when no fuel was delivered to the vessel at the fishing grounds, the captain returned the Alfa to Pago Pago on April 5, 1984 with only 78 tons of tuna in the hold. As the tuna catch was below the threshold amount of the share agreement, the captain and crew left the vessel and received no remuneration.

PROCEEDINGS IN TRIAL DIVISION

On May 16, 1985 certain members of the crew intervened in HGN's libel action against the Alfa, claiming that they were entitled to excess post-arrest wages from the ill-fated voyage. The trial court held that (1) at all times relevant to the case the Alfa was in custodia legis (2) the fishing venture was purely a for-profit expedition, not for preservation of the estate, and (3) the crew was limited by the stipulation only to a percentage of the catch, and had no valid claim for wages. Accordingly, summary judgment was granted to HGN. In an accompanying order, the court held that Sawiki acted outside the scope of the stipulation order and therefore any expenses arising from the voyage were not expenses of administration payable out of the res.

On December 5, 1986, the Trial Division entered an order granting summary judgment in favor of HGN and declaring null and void Gray-Cary's post-arrest mortgage on the Alfa for having been issued while Alfa was in custodia legis.

On January 20, 1987, the Alfa was sold at Marshal's auction. [6ASR2d69]

ANALYSIS

I: TIMELINESS OF APPEAL

Gray-Cary filed its notice of appeal 31 days after judgement was entered but 7 days after motion for reconsideration was denied. Appellee argues that the appeal fails for lack of compliance with A.C.R. Rule 4(a)(1). Since the notice of appeal was filed within 10 days after the denial of the motion for reconsideration, we find the appeal timely.

II. JURISDICTION OF HIGH COURT

Gray-Cary argues that the High Court of American Samoa lacked jurisdiction to arrest the Alfa because the enforcement of preferred ship's mortgages has been granted exclusively to the district courts of the United States under 46 U.S.C. § 951. Relying upon Star-Kist Samoa. Inc. v. The M/V Conquest, 3 A.S.R.2d 2'5 (1986), it argues that since the High Court is not formed under Article III, it cannot foreclose on a ship's mortgage pursuant to the Ship Mortgage Act of 1920, 46 U.S.C. §§ 911-984.

It is beyond dispute that the courts of this territory are not article
III district courts. [citations omitted]. Nor has Congress vested
our courts with the jurisdiction of a non-article III district court
pursuant to the 'territorial exception.' Northern Pipeline Co. v.
Marathon Pipeline Co., 458 U.S. 50, 64-65 (1982). Rather, the
High Court of American Samoa is a territorial court of discrete
and limited jurisdiction, created pursuant to articles II and IV of
the United States Constitution, and does not come within the plain
meaning of 'district courts of the United States'."

The Conquest, supra, 3 A.S.R.2d at 27. Accordingly, since the High Court of American Samoa is not a U.S. district court, vessel owners cannot take advantage of the Ship Mortgage Act here. Id. at 29.

While this court cannot sit in admiralty under Article III, the Folio has provided us with admiral[6ASR2d70]ty jurisdiction under A.S.C.A. § 3.0208(a)(3), which reads in pertinent part as follows:

(a) The trial division of the High Court shall be a court of general
jurisdiction with power to hear any matter not otherwise provided
for by statute. Notwithstanding the forgoing, the trial division of the
High Court shall have original jurisdiction of the following classes
of cases and controversies:

.....

(3) Admiralty and maritime matters, of which the trial division shall
have both in rem and in personam jurisdiction.

Admiralty jurisdiction need not be directly and specifically conferred upon territorial courts by Congress. In re Complaint of Interocean Ships, 2 A.S.R. 76, 83 (1985). Accordingly, while we lack jurisdiction to adjudicate a maritime foreclosure under 46 U.S.C. § 185; see M/V Conquest, 3 A.S.R. at 27-28, we have jurisdiction in admiralty to apply substantive principles of the maritime common law. See, e.g., Interocean Ships, 2 A.S.R. at 80. This court clearly had jurisdiction to determine the validity of a purported mortgage, even if it did not have jurisdiction to foreclose it.

Here, Gray-Cary claims that the Trial Division lacked in rem jurisdiction to arrest the Alfa and thus to foreclose her first mortgage. While it is correct that this court could not proceed under 46 U.S.C. § 951, See M/V Conquest, 3 A.S.R. at 27, we have subject matter jurisdiction over the Alfa under A.S.C.A. § 3.0208(3). Interocean Ships, 2 A.S.R. at 80. Accordingly the High Court had properly placed the Alfa custodia legis at the time PTC delivered its second preferred mortgage to Gray-Cary. For that reason Gray-Cary's argument is devoid of merit; its mortgage on the Alfa was properly declared null and void by the High Court. [6ASR2d71]

III: CREW'S LIEN FOR LOST WAGES

A. Custodia Legis

As a general principle, one who furnishes goods or services to a vessel in custodia leis does not acquire a maritime lien against the vessel for the value of such goods or services. See New York Dock v. The Poznan, 274 U.S. 117, 120 (1927); Gilmore & Black, Law of Admiralty, 602-03 (2d ed. 1975); 2 Benedict on Admiralty § 46, at 3-65 (7th ed. 1983). Consequently, no lien can attach to a vessel while she is in judicial custody. Donald D. Forsh Assoc. v. Transamerica, 821 F.2d 1556) 1560-61 (11th Cir. 1987). In other words, vents subsequent to seizure of a vessel may not give rise to liens on that vessel while she is in custodia legis. Old Point Fish Co. v. Haywood, 109 F.2d 703, 705-06 (4th Cir. 1940).

However, "[t]he rule excluding subsequent liens cannot be extended to vessels that are neither actually nor constructively in the marshal's possession." The Young America, 30 F. 789, 791 (S.D.N.Y. 1887). In Young America, a tugboat was placed in custodia legis following an accident but allowed to ply the harbors in furtherance of its trade without restriction. Id. at 789. "In effect, the vessel was not in the custody of the court at all." Id. at 790. The court thus held that additional liens accrued against the vessel after seizure could be levied in against the tug, since the original lien had never been enforced. Id. at 792. This principle was followed by the Ninth Circuit in Northwest Marine v. United States, 307 F.2d 537 (9thCir. 1962). There, the court held that liens of a libeled vessel's crew can take precedence over the prior liens of the government. (1) Significantly, [6ASR2d72] however, though the crew members there had obtained their liens subordinate to the government, they already held valid maritime liens when the foreclosure libel was filed. 307 F.2d at 539.

B. Lost Wages

"Seamen are wards of admiral ty and as such the courts of admiralty vigilantly guard against any encroachment of their rights." Putnam v. Lower, 236 F.2d 561, 569-70 (9th Cir. 1956). "[D]espite compensational differences, lay fisherman or sharesman possess a right similar to that enjoyed by regular seamen to lien the vessel and catch on board to secure their compensation." Id. at 570. Accordingly, a fisherman's right to libel a vessel for his share of the catch is not lost when, due to the vessel's negligence, no catch is obtained. Id.; Carbone v. Ursich, 209 F.2d 178, 183 (9th Cir. 1953). But see Oldpoint Fish Co. v. Hayward, 109 F.2d 703, 706 (4th Cir. 1940) (fisherman's expected percentage of unrealized catch too speculative to allow maritime lien on vessel).

However, the interest in protecting a seaman's wages does not supersede the principle of custodia legis. Therefore, "[i]t is well settled that no maritime lien can be allowed to seamen for wages accruing subsequent to the time the ship is taken into custodia legis.... The theory here is that the act of seizing a ship, pursuant to legal process, effectively terminates the voyage, and thereby discharges the crew with no further claim for wages.... Putnam, 236 F.2d at 570 (footnote omitted). Thus, "seamen's wage claims are only effective for those services performed prior to libel." Irving Trust v. The Golden Sail, 197 F. Supp. 777, 780 (D. Or. 1961) (unpaid wages of crew for period after arrest of vessel does not give rise to maritime lien for wages). See also Collie v. Feruson, 281 U.S. 52 (1930); Old Point Fish, 109 F.2d at 705. But see The Herbert Rawdin, 55 F. Supp. 156, 162-63 (E.D.S.C. 1944) (seamen entitled to payment on quantum meruit basis for srvice rendered after they filed their libel.) [6ASR2d73]

Here, the stipulation agreement under which the Alfg was allowed to proceed expressly provided that the court retained custody over the vessel. Cf. The Young America, 30 F. at 790. The stipulation was limited to a single' fishing expedition under specified terms and conditions. Id. The Alfa did not ply the seas in her usual custom but rather was at all times in the constructive possession of the court. Id. Indeed, HGN did not even know of the voyage until the vessel had weighed anchor and immediately brought suit to halt the ill-fated trip.

More importantly, the vessel was already under arrest when the crew was hired. Cf. Northwest Marine, 307 F.2d at 539. While the crew may have been able, under normal circumstances, to attach a maritime lien for wages on the basis of their unrealized catch, see Putnam, 236 F.2d at 570, the fact that the ship was already in custodia legis precluded any such wage lien. Id. at 570; Irving Trust, 197 F. Supp. at 789. Because the crew's claim arose after the Alfa was placed in custodia legis, as a matter of law, the crew is estopped from obtaining a maritime lien for lost wages. Cf. Putnam, 236 F.2d at 570 (shipowner wrongfully abandoned percentage contracts before vessel entered custodia legis).

IV: CREW'S EXPENSE OF ADMINISTRATION CLAIM

While the general rule precludes securing liens on vessels in custodia legis, "[t]he most elementary notion of justice would seem to require that service or property furnished upon the authorityof the court. .for the common benefit of those interested in a fund administered by the court should be paid from the fund as an 'expense of justice."' New York Dock, 274 U.S. at 121 (emphasis added). While no lien can attach to a vessel while she is in judicial custody, services or property advanced to preserve and maintain the vessel under seizure, furnished upon authority of the court, has a claim to reimbursement from the sales proceeds, ahead of all lienors. (2) Donald D, [6ASR2d74] Forsh, 821 F.2d at 560-61; General Elec. Credit v. Drill Ship Mission Exploration, 668 F.2d 811, 815- 16 (5th Cir. 1982), Compare United States v. M/V AndQria, 570 F. Supp. 413, 415-16 (E.D. La. 1983) (maritime lien against vessel for repairs, services, and other necessaries primed government's claim for expenses for services or property furnished with respect to vessel prior to seizure) with Kingstate Oil v. M/V Green Star, 815 F.2d 918, 923-24 (3d Cir. 1987) (expenses incurred when ship's charterer unloaded vessel's cargo after its arrest were not entitled to preferential classification as administrative expenses where unloading was for sole benefit of charterer and consignee and did not benefit any other party).

Nevertheless, from the evidence in the record, we conclude that outfitting of the Alfa was in furtherance of the profit-making voyage and added no recognizable value to the res. The crew is not entitled to any reimbursement. See Kingstate Oil, 815 F.2d at 923-24.

CONCLUSION

The Marshal of the High Court of American Samoa properly arrested the Alfa under the maritime jurisdiction of the territory. Thus, the vessel was in custodia legis when the purported second preferred mortgage to Gray-Cary was issued. Accordingly, the trial court properly held this second mortgage null and void.

The crew members' claims accrued after the vessel's arrest. Thus, the maritime common law principle favoring seaman's wages is superseded by the doctrine of custodia Jegis. Further, because . the fishing expedition was a for-profit expedition, wage claims cannot be recognized as administrative expenses. Therefore, the Trial Division's orders are AFFIRMED.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. "We hold... that when the government, as mortgagee, elected, instead of foreclosing, to continue the operation of the vessel, for its own purposes and benefit, it did so at its own risk, and not at that of appellant lienholders. It would be grossly unfair to permit the government, by proceedings that were essentially ex parte a to [the] appellants, to put the ship on the high seas on whatever terms it might choose, as a sort of floating credit card payable to the bearer, presumably able to incur maritime liens which would ordinarily, because later in time, prevail over those of appellants." Northwest Marine, 307 F.2d at 541.

2. Though expenditures while a vessel is in custodia legis do not give rise to maritime liens, an admiralty court has equitable power to grant priority to claims arising from administration of property within the court's jurisdiction. Payne v. SS Tropic Breeze, 423 F.2d 236, 239 (1st Cir. 1970).

American Samoa Gov’t v. Lefai,


AMERICAN SAMOA GOVERNMENT

v.

LEFAI VILIAMU, Defendant

High Court of American Samoa
Trial Division

CR No. 34-87

November 4, 1987

__________

Under the "objective territorial" principle of jurisdiction, criminal acts taking place outside a state are within its territorial jurisdiction if those acts produce proscribed effects within the state.

When conduct taking place within a state produces its effect in another state, the two states have concurrent jurisdiction over the transaction.

Territorial forgery statute requires that defendant have created the false writing with intent to defraud, not that he have actually succeeded in defrauding anyone. A.S.C.A. § 46.4115.

American Samoa court had territorial jurisdiction over criminal defendant who allegedly forged a letter and mailed it in American Samoa, despite the fact that the letter's recipient, and therefore its criminal "effect," was in another jurisdiction.

Before REES, Chief Justice.

Counsel: For the Government, James Doherty, Assistant Attorney General
For Defendant, Michael Bennett; Assistant Public Defender

Opinion and Order on Motion to Dismiss:

The defendant is charged under A.S.C.A. § 46.4115 with having forged a letter to the American Consulate General in New Zealand. Defendant has [6ASR2d79] moved to dismiss, contending inter alia that the High Court has no subject matter jurisdiction over the act because the alleged fraudulent intent was directed at one outside the territory. The authorities compel the conclusion, however, that the alleged criminal conduct was not without the High Court's territorial jurisdiction.

Defendant correctly states that criminal acts taking place outside a state are within its territorial jurisdiction if those acts produce proscribed effects within the state. The leading case establishing this as a principle of international law, the "objective territorial" principle, is U.S. v. Aluminum Co. of America) 148 F.2d 416 (2d Cir. 1945) (U.S. court had subject matter jurisdiction over acts undertaken abroad with the intent to cause restraint of trade within the U.S. in violation of U.S. law). We fully agree with defendant that jurisdiction over the alleged forgery would lie in New Zealand.

Defendant is mistaken, however, to the extent that he contends that jurisdiction lies exclusively in New Zealand. Rather, when conduct taking place within a state produces its effect in another state, the two states have concurrent jurisdiction over the transaction. Public Prosecutor v. D.S., 26 Int'l. L. Rep. (Netherlands Supreme Court 1963). There, the Dutch defendant sent a defamatory letter from the Netherlands to an acquaintance in London, where the letter was received and read by the addressee. The defendant contended that any unlawful effect, and thus the crime, took place in England, whose courts alone could exercise jurisdiction thereover. The contention failed; the courts of the Netherlands, as a matter of territorial jurisdiction, were held empowered to take up the issue since the act had occurred there. See also Act Committed, but not Punishable in West Germany, by an Austrian, 101 Journal du Droit International 632 (1974) (Austria Supreme Court 1972) (same result even if the effect taking place in another state is not proscribed there) .Thus even if the "effect" of the forgery took place in New Zealand, the High Court could exercise its territorial jurisdiction over the case because the allegedly criminal conduct took place here. (The authority defendant cites to the contrary was an 1894over-the-border shooting case in which the court expressly recognized that its rule would not apply "in certain cases of false [6ASR2d80] pretenses." State v. Hall, 19 S.E. 602, 604 (N.C. 1894).)

Defendant is also mistaken, however, in suggesting that forgery under local law must produce an "effect" in order to become criminal. The government can establish a criminal forgery by showing that "with the purpose to defraud, [defendant]: (1) makes.... any writing so that , it purports to have been made by another.... A.S.C.A. § 46.4115. The statute does not require that defendant actually have tricked anybody; he need only have committed the described act with the intent to defraud. So long as the intent and the conduct coincided here, the court has territorial jurisdiction over the complaint.

The motion to dismiss is denied.

**********

Amerika Samoa Bank v. Hakeck,


AMERIKA SAMOA BANK, Appellant

v.

OTTO HALECK, Appellee

High Court of American Samoa
Appellate Division

AP No.19-85

October 21, 1987

__________

A garnishee who fails to appear in response to a writ of garnishment without sufficient excuse is presumed to be indebted to the defendant in the full amount of plaintiff's demand. A.S.C.A. § 43.1806(c).

Garnishee bank that. had elected not to retain counsel and whose employee attended garnishment haring but did not request to testify could not argue in collateral attack on resulting judgment that it had been denied an opportunity to be heard. In order to secure relief from a judgment, a party has the burden of proving not only that there was a technical flaw in the proceedings but also that the flaw had some effect on the outcome. T.C.R.C.P. Rule 60(b).

The court has discretion whether to grant relief from judgment, and denial of a motion for relief should be overturned only if the trial court has abused its discretion. T.C.R.C.P. Rule 60(b).

Garnishee bank that failed to respond to a writ of garnishment, to respond meaningfully to an order to show cause why judgment should not be entered against it, to appeal the judgment, and to justify its lapses was not entitled to relief from the judgment entered against it. T.C.R.C.P. Rule 60 (b).

Issues not raised in trial court proceeding cannot be raised on appeal from the resulting judgment. [6ASR2d55]

Before REES, Chief Justice, KRUSE, Associate Justice, O'SCANNLAIN*, Acting Associate Justice, and TUIAFONO, Associate Judge.

Counsel: For Appellant, William Reardon
For Appellee, Roy J.D. Hall, Jr.

PER CURIAM :

This is an appeal from the trial court's refusal to grant relief from a default judgment under T.C.R.C.P. Rule 60(b).

Appellee (hereinafter "Haleck") obtained a judgment against Sataoa Kaleuati and later served Appellant (hereinafter "Bank") with a writ of garnishment and accompanying interrogatories. The writ required the Bank to retain all funds in its possession belonging to the judgment debtor and either to answer the interrogatories concerning any such funds or to appear in Court on a specified day to provide the same information. The Bank did not answer the interrogatories, did not appear in Court, and allowed the judgment debtor to withdraw funds from his account.

The Bank was then ordered to appear in Court to show cause why judgment should not be entered against it in the amount of $6,713.02, the full amount of the judgment underlying the garnishment. This was in accordance with A.S.C.A. § 43.1806(c), which provides that a garnishee who fails to appear in response to the writ of garnishment without sufficient excuse is presumed to be indebted to the defendant in the full amount of the plaintiff's demand. The order was accompanied by a subpoena duces tecum directed to the President of the Bank, directing him to appear and bring various records concerning the judgment debtor's bank accounts. The Bank instead sent the Clerk of the High Court a check for $17.78, the amount in the judgment debtor's account on the day it received the order to show cause. (At the time the bank received the writ of garnishment there had been about $360 in [6ASR2d56] the debtor's account.) The President of the Bank delegated the duty to appear in Court to the Vice President/Cashier, who delegated it to a clerk.

The Bank was not represented by counsel at the hearing on the order to show cause; the clerk who had been instructed to bring the records to Court did not testify and the records were not introduced into evidence. The Court granted judgment against the Bank in the full amount of Sataoa Kaleuati's debt.

Two weeks later (i.e., too late to make a motion for a new trial) the Bank filed the Rule 60(b) motion that is the subject of the present appeal. At the hearing on the Bank's motion there was only one witness, the Vice President/Cashier ) who had been told by the President to appear and who had sent the clerk instead. The clerk who had been present at the hearing on the Order to Show Cause was not presented as a witness at the Rule 60(b) hearing. The record on appeal therefore does not reflect what she would have said if she had been asked to testify concerning the Bank's excuse for not complying with the writ of garnishment,. or even whether she knew anything at all about what that excuse was. (1) [6ASR2d57]

The motion for relief from the judgment was denied, and the Bank appeals on the ground that the bank was "denied an opportunity to be heard" when its clerk was not called as a witness at the hearing on the order to show cause.

The Bank itself, however, chose not to be represented by counsel and not to send any of its principal offices to the hearing on the order to show cause. The clerk who did appear did not ask to testify or to make a statement on behalf of the Bank. She did bring certain records (although not, the trial court concluded, all the records that were required by the subpoena) but there is no evidence that she was competent to testify about what the Bank's excuse was for not appearing earlier. The judge clearly regarded her more as a courier than as a witness; she did nothing to dispel that impression; and the Bank put on no evidence at the hearing on its Rule 60(b) motion to suggest that the court's original conclusion was incorrect.

In order to secure relief from a judgment under Rule 60(b), a party has the burden of proving not only that there was a technical flaw in the proceedings but that the flaw had some effect on the outcome. Moreover, such relief is discretionary and a denial of a Rule 60(b) motion should only be reversed if the trial court has abused its discretion. There was no abuse of discretion here.

Finally, the Bank urges that the judgment against it is void because the record does not reflect whether notice of the garnishment proceedings was given to the original judgment debtor. We need not decide whether the Bank has standing to assert the rights of the judgment debtor, since the issue was not raised in the trial court proceedings on the Rule 60(b) motion and therefore cannot be considered on appeal.

**********

* Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. The only evidence about whether the clerk was present and what she would have said if present was the following testimony of the Vice President/Cashier:
Q. Did you appear in court on May 10th?
A. I was off island.
Q. Do you know if anybody appeared in court on May l0th?
A. Yes, we had Miss Uta Ioselagi represent the bank because both of us were off island.
Q. You and Roger both?
A. Yes.
Q. Did you give her instructions as to what to do?
A. Yes.
Q. What instructions did you give her?
A. We just asked her to bring over the file with her and just explain: what happened when she's going to be questioned by any of the lawyers.

American Samoa Gov’t v. Tuika Tuika


AMERICAN SAMOA GOVERNMENT and
GOVERNOR OF AMERICAN SAMOA, Appellants

v.

TUIKA TUIKA JR., ASUEGA FITIFITI, MILOVALE
SOLAITA, IOSEFO KAPELI IULI, SAO NUA, MIKE
FUIAVA, and SAVEA NUA, Appellees

High Court of American Samoa
Appellate Division

AP No. 9-87
AP No. 14-87
AP No. 20-87

October 22, 1987

__________

Territorial statute requiring the Governor to submit to the Fono for possible disapproval any lease of land lasting over ten years was not legislation "affecting the powers of the legislature" requiring the prior approval of the Secretary of the Interior. A.S.C.A. § 37.200.

Before O'SCANNLAIN*, Acting Associate Justice, KING**, Acting Associate Justice, and OLO, Associate Judge.

Counsel: For the Appellants, Martin R. Yerick, Assistant Attorney General
For the Appellees, Charles V. Ala'ilima

PER CURIAM: [6ASR2d59]

We affirm the order of the Trial Division and we adopt its opinion of April 24, 1987.

Our attention was called during oral argument to Section 2(b) of Secretarial Order No.2657 as amended, which requires approval by the Secretary of the Interior of any legislation "affecting the powers of the legislature." We are not persuaded that enactment of A.S.C.A. § 37.2030 fell into that category.

**********

* Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Samuel P. King, Senior Judge, United 5tates District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

American Samoa Gov’t; Tavai v.


TAVAI KALEOPA, on behalf himself
and members of the TAVAI FAMILY, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, PACIFIC RESOURCES, Inc.,
and DOES I-XX, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 25-87

November 13, 1987

__________

Where evidence indicated that extraordinary generation of fumes resulted from scheduled annual fuel tank cleaning process, process had been completed and fume level had subsided, and process would not be repeated for about a year, neighboring residents had an adequate remedy at law and were not entitled to a preliminary injunction against fuel storage at facility in question.

Before KRUSE, Associate Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendant Pacific Resources, Roy J.D. Hall, Jr.
For the Government, Enere Levi, Assistant Attorney General

Opinion and Order on Motion for Preliminary Injunction:

Plaintiff Tavai Kaleopa, for himself and members of the Tavai family of Gataivai, seeks a preliminary injunction to enjoin the defendants from the further storage of fuel at the government fuel farm at Gataivai.

On the testimony presented, the basis of plaintiffs' complaint was the extraordinary amount of fumes that emanated from the fuel farm, [6ASR2d98] commencing last Thursday evening. At least one villager was prompted to remove his children to higher ground to escape the .full effect of these fumes.

The testimony revealed that the unusual level of fumes arose as a result of defendant PRI's scheduled and annual cleaning of tank number three, which generally stores about two-thirds of the island's supply of unleaded gasoline. The cleaning process involved venting the fumes within the tank, transferring the fuel therein, and draining accumulated sludge at the bottom of the tank. Subsequent to cleaning, the fume level subsided and the atmosphere returned to a tolerable state. Tank number three is not foreseeably scheduled for cleaning until the following year.

On the foregoing facts found, a preliminary injunction to essentially close the fuel depot, or at least enjoin the use of tank number three for further storage, would not be appropriate.

The complainant parent, Aga Osoimalo, has an adequate remedy at law. The facts do not reveal a continuing nuisance that would give rise to a multiplicity of suits. In any event our assessment of individual hardship versus public interest weighs against a provisional injunction.

Motion Denied.

**********

Enekosi v. Moaali'itele,


SAVEA ENEKOSI, Appellant

v.

Workmen's Compensation Commissioner
MOAALI'ITELE L.K. TU'UFULI

High Court of American Samoa
Appellate Division

AP No. 3-87

October 20, 1987

__________

Driver who was paid a percentage of bus fare receipts less fuel expenses was properly held to be an employee whose wages are "fixed by output" within the meaning of the workmen's compensation statutes, rather than one whose wages are neither [6ASR2d50] "fixed" nor "ascertainable". A.S.C.A. § 32.0621 (d)(1),(3).

Driver's "wage" for workmen's compensation ;purposes was a fixed percentage of the receipts from his work calculated after, rather than before, deduction by employer of his operating cost.

The aim of workmen's compensation statutes is to place an employee injured on the job in the position he would have been in had he not lost the wages through injury, rather than to test the fairness of the underlying employment contract.

Trial court properly upheld workmen's compensation commission award to injured employee based on that employee's actual earnings, even though the employee earned less than the statutory minimum hourly wage,

Workmen's compensation award based on injured employee's actual contractual wage did not preclude employee from attacking the legality of his contract in a separate proceeding.

Before KING*, Acting Associate Justice, and O'SCANNLAIN**, Acting Associate Justice.

Counsel: For Appellant, John Ward
For Appellee, Barry Rose, Assistant Attorney General

PER CURIAM:

FACTS AND DECISION BELOW

Appellant Savea Enekosi was employed as a bus driver by Continental Bus Company when he sustained an injury stipulated by the parties as compensable [6ASR2d51] under the Workmen's Compensation Act of American Samoa. At the time of the injury, Savea was paid forty cents for each dollar received from bus passengers after gasoline expenses were deducted from the receipts.

Savea filed a Workmen's Compensation Notice of Claim for benefits calculated on the basis of the minimum wage in the territory, not by salary received. Appellee Workmen's Compensation Commission ("Commission") held a formal hearing, and issued findings and conclusions, including that: (1) Savea had sustained a compensable fifteen percent permanent partial disability to his hand, and (2) proper compensation was based on the highest of his average weekly wages in each of the four quarters immediately preceding the injury, as set forth in A.S.C.A. § 32.0621(d)(1) for employees whose wages are fixed by the day, by the hour, or by output.

Savea ought judicial review of the Commission's decision, asking for benefits based upon the territory's minimum hourly wage. The Trial Division held that Savea was an employee whose wages were fixed by output within the meaning of the statute, notwithstanding that his gasoline expenses were first deducted from passenger receipts. It also held that Save's benefits could properly be based upon his actual wage even if it was below the wage set by the Fair Labor Standards Act under federal law and the Minimum Wage and Hour Act of American Samoa. Savea nowappeals both of those rulings.

DISCUSSION

This court has jurisdiction pursuant to A.S.C.A. § 32.0652. Although he appeals the ruling of the trial court, Savea attacks the original findings of the Commission as "not inaccordance with law" as required by statute.

I

Savea first argues that the Commission erred in finding, and the trial court in affirming, that his average weekly wage was $42.83. He claims that, under A.S.C.A. § 32.0621(d)(3), a market wage for similar services should be used as a basis for his benefits because 'his hourly wage was not "fixed" or "ascertainable." [6ASR2d52]

The Commission reached this figure by averaging his weekly paychecks .for each of the four quarters preceding the injury, and usin'; the highest of the four averages -- the method of calculation prescribed in § 32.0621(d)(1) for employees whose wages are fixed by output. The Trial Division upheld the determination as being in accordance with law, saying that Savea's wages were fixed by output within the meaning of the statute even though his gasoline expenses were first deducted from gross receipts.

We conclude, based on the record before us, that Savea's wages are fixed by his output. The statute does not require that the marginal rate of pay for increased output remain constant. An employee may fall within the "output" category, even if pay is measured by other factors.

Savea further argues that, even if an "output" employee, his benefits should be based qolely upon his receipts from output the "wage most favorable to the employee". A.S.C.A. § 32.0621(d)(1). He cites in his support Travelers' Insurance Co. v. Curtis, 223 F.2d 827 (5th Cir. 1955), in which a truck owner-operator was paid a flat daily rate and required to pay his own maintenance and operation costs. That court noted, first, that there was nothing in its record on which to base any calculation of those costs, and, second, that his wages were the amounts he was paid for his work, not his net profit for the employment.

Here, Savea's agreement with his employer was that he be paid a portion of the profits for his work; thus, the trial court's holding was consistent with Travelers'. We note the Commission's finding that he was dismissed from employment largely because of high gasoline expenses. Savea himself was not required to pay fuel costs out of his wages. If he were, as the truck driver in Travelers' was, the amount of the costs would have been of no consequence to his employer. Instead, his wages and the employer's profits were both dependent upon his output net of gasoline costs. We therefore hold that the trial court used the correct method to determine Savea's wage for,benefit purposes. [6ASR2d53]

II

Savea's second challenge to the Trial Division ruling is that it erred in basing his award upon an "illegal" wage, illegal because it was less than the minimum hourly wage for the territory under the Fair Labor Standards Act and the Minimum Wage and Hour Act of American Samoa. We disagree.

The economic aim of the workmen's compensation laws is to restore lost wages to one injured on the job. See, e.g., New Orleans Stevedores v. Turner, 661 F.2d 1031, 1042 (5th Cir. 1981) ("compensating for financial losses"); Linauist v. Bowen, 633 F.Supp. 846, 865 (W.D. Mo.1986) ("primary purpose...was income replacement for the disabled worker"). Its purpose is not to give him a windfall or, worse, an incentive to disregard safety regulations.

We do not mean to encourage the formation of illegal employment agreements; we address here merely the legality and propriety of the award itself. We find that the workers' compensation award itself is in conformity with both the explicit requirements and the general purpose of the statute, and is not itself illegal. As the trial court indicated, if the appellant's other averments with respect to illegality are true, he has several other courses of action open to him which he may wish to pursue. This proceeding is not the proper place to consider such issues.

The judgment of the Trial Division is therefore AFFIRMED.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Development Bank v. Pritchard;


DEVELOPMENT BANK OF AMRICAN SAMOA
and AMERIKA SAMOA BANK, Plaintiffs

v.

RON PRITCHARD and JETTE PRITCHARD, Defendants

High Court of American Samoa
Trial Division

CA No. 118-87

December 15, 1987

__________

Where a writing purporting to be a guaranty of indebtedness omitted an essential term but the circumstances clearly indicated that the parties intended to make a binding contract and that the writing did not embody the whole agreement, the court could look to other documents signed by the parties and other surrounding circumstances to determine the parties' intention with regard to the missing term. [6ASR2d126]

When lending bank cancelled a certificate of deposit given by guarantor bank to secure third party's debt and "wrote off" the underlying debt, third party debtor remained liable for the debt to either the lending bank or the guarantor bank, depending upon whether the lending bank was within its rights in cancelling the certificate.

A party waives defenses raised in its answer when it fails at trial to offer evidence and arguments in support of those defenses.

Before REES, Chief Justice, TAUANU'[J, Chief Associate Judge, and, AFUOLA, Associate Judge.

Counsel: For the Development Bank, Robert Dennison
For the Amerika Samoa Bank, William Reardon
For Ron Pritchard, Talalelei A. Tulafono
For Jette Pritchard, Roy J,D. Hall, Jr.

This action came for trial on December 11, 1987. We find the facts to be as follows:

(1) On August 1, 1984, the Amerika Samoa Bank lent $275,000 to Samoa Air, Inc. , a corporation whose President was defendant Ron Pritchard and whose Secretary was Jette Pritchard.

(2) Also on August 1, 1984, each of the defendants signed a "continuing guaranty" form agreeing to be personally liable for the $275,000 debt incurred by the corporation.

(3) The above debt was also secured by a "loan guarantee" executed by plaintiff Development Bank of American Samoa on June 20, 1984.

(4) On February 25, 1985, both of the defendants signed another "continuing guaranty" form agreeing to be personally liable to the Amerika Samoa Bank for indebtedness in the amount of $475,000. This form provided that the indebtedness for which the Pritchards agreed to be liable, was "any and all indebtedness of _______________________ (hereinafter called Borrowers) to Bank." The blank line designating the identity of "Borrowers" was not filled in. [6ASR2d127]

(5) On February 26, 1985, the day after the defendants signed the second guaranty form, the Amerika Samoa Bank lent $200,000 to Pritchard Ground Services Inc., a corporation of which Ron Pritchard was President and Jette Pritchard Vice President.

(6) It is clear from all the evidence that the parties intended the February 25 guaranty in the amount of $475,000 to secure the preexisting $275,000 debt to Samoa Air and the $200,000 that was lent to Pritchard Ground Services the next day.

(7) On or about July 16, 1985, Inc., Samoa Air, declared bankruptcy in Hawaii.

(8) No payments have been made on the $275,000 loan from Amerika Samoa Bank to Samoa Air.

(9) The amount of the Samoa Air indebtedness was, however, reduced by the value of some shares in the Amerika Samoa Bank owned by defendant Ron Pritchard which he had given to the Development Bank in partial consideration for its guarantee of the Samoa Air loan. After default had occurred on the loan, these shares were sold and the proceeds applied to reduce the Samoa Air indebtedness.

(10) At some point subsequent to the events giving rise to the Samoa Air indebtedness, the Development Bank gave the Amerika Samoa Bank a $300,000 certificate of deposit to secure the indebtedness. Amerika Samoa Bank later cancelled this certificate of deposit and "wrote off" the Samoa Air debt on its books. According to the usual practices of the Amerika Samoa Bank such a "write-off" can occur if the debt is paid by the debtor or by a guarantor, if the debt is deemed uncollectible, and perhaps in other circumstances. The Development Bank objected to the cancellation of the certificate of deposit. Although Amerika Samoa Bank seems to have treated the transaction as one in which the guarantor (the Development Bank) had paid off the loan, there was no formal transfer of the loan documents from the Amerika Samoa Bank to the Development Bank.

(11) The best evidence is that the amount remaining due on the Samoa Air loan after credit for the value of the stock shares is $292,783.01. [6ASR2d128]

On the basis of these facts we conclude:

(1) The February 25 guaranty was valid and secured the $275,000 indebtedness of Samoa Air as well as the $200,000 indebtedness of Pritchard Ground Services. Where a writing purporting to embody a contract omits an essential term but it is clear from all the circumstances that the writing did not embody the whole agreement of the parties and that the parties intended to confect a binding contract, a court may look to the surrounding circumstances (including but not limited to other documents signed by the parties) to determine the parties' intentions with regard to the missing term. The cases cited by counsel for defendant Jette Pritchard to the contrary are inapposite. One case involves a Louisiana statute requiring contracts of guaranty to be in writing. American Samoa has no such statute. In the other two cases, far from declining to consider extrinsic evidence in order to construe an incomplete guaranty form, the court did consider such evidence and concluded either that the parties intended no contract or that they intended a different contract from that suggested by 'the incomplete form. In this case it is inconceivable that the Pritchards did not understand the "Borrowers" referred to in the $475,000 guaranty form to be the two Pritchard-controlled companies, one of which had recently borrowed $275,000 and the other of which borrowed $200,000 the next day.

(2) Contrary to the arguments of defendants' counsel at trial, it is immaterial that Amerika Samoa Bank wrote the loan off on its books and did so without any formal transfer of the documents to the Development Bank. Assuming that Amerika Samoa Bank was within its rights in appropriating the certificate of deposit left with it by the Development Bank as security for the loan, the Development Bank was then subrogated to the rights of the Amerika Samoa Bank against the Pritchards. If, on the other hand, Amerika Samoa Bank had no legal right to appropriate the certificate, then it owes th Development Bank over $300,000 and has therefore not been made whole with respect to the Samoa Air indebtedness. In either case the defendants are liable to one of the plaintiffs for all amounts still due on the loan.

(3) The numerous other defenses raised in the defendants' answers were waived when evidence and[6ASR2d129] arguments to support them were not offered at trial.

(4) Judgment should therefore be entered holding the defendants jointly and severally liable to the plaintiffs for $292,783.01 in principal and interest up to August 25, 1987; interest at the contractual rate of 12.5% from August 25, 1987, until the date of judgment; post-judgment interest at the contractual rate of 12.5%; court costs; and actual attorney fees to be proved by affidavit.

It is so ORDERED.

**********

Development Bank v. Fa'alevao;


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

RON FA'ALEVAO and PAMATA FA'ALEVAO, Defendants

High Court of American Samoa
Trial Division

CA No. 99-87

November 6, 1987

__________

Requirement of federally insured student loan program that local lending institutions make loans without security and without binding third parties as sureties except under particular circumstances defeated lending bank's attempt to recover defaulted student loan debt from borrower's wife, even though she cosigned loan application and promissory notes. 20 U.S.C. § 1071 et. seq.; 34 C.F.R. 682.509. [6ASR2d82]

Before KRUSE, Associate Justice, AFUOLA, Associate Judge, and TUIAFONO, Associate Judge. Counsel: For Plaintiff, Robert Dennison
Pamata Fa'alevao pro se

Opinion and Order on Motion for Summary Judgment:

This action on overdue indebtedness stems from certain student loans taken out by Ron F. Fa'alevao with plaintiff, Development Bank of American Samoa, under the Federal Insured Student Loan Program (hereafter "FISLP"), made available pursuant to the provisions of Title IV, Part B of the Higher Education Act of 1965, 20 U.S.C. §§ 1071 et. seq. The plaintiff bank sues on three separate promissory notes, each with the face amount of $2,500 and respectively dated: October 31, 1977; July 1, 1978; and August 27, 1979.

FACTUAL BACKGROUND

Defendants herein were at all relevant times husband and wife. The husband, Ron Fa'alevao, at the times the loans were made, was a full time student attending law school in Fullerton, California, and as such he applied for FISLP financial assistance towards the costs of education.

In accordance with the Act, and the regulations thereunder, 34 CFR 682, the FISLP is essentially a federal insurance fund which directly insures soft loans to eligible students made by a qualified state (or as here a "territorial") lender following certain stated criteria. Lenders qualify fox the payment of federal interest benefits and special allowances on FISLP loans. The program pays a borrower's loan obligation if the borrower dies or becomes totally' and permanently disabled, or if the loan is discharged in bankruptcy. The fund pays the lender's insurance claim if the borrower defaults. 34 CFR 682.102(b).

Mr. Fa'alevao's application for FISLP benefits was made on a pre-printed federal form made and provided for in these cases. The form seeks information on the applicant's family's adjusted gross income, to be verified by signatures of all persons whose income is reported on the form. [6ASR2d83]
Besides a signature space for the applicant, the form also designates a signature space for: applicant's spouse; applicant's father; and applicant's mother. In the block designated for the spouse, the defendant Mrs. Pamata Fa'alevao executed the application form.

The application form further requires verified information from the applicant's school, and if approved by the lender, the form contains a portion which the Development Bank also filled out.

The loans were variously approved, and the promissory notes utilized to evidence the loans were also pre-printed federal forms. The notes were produced to the court and purport to bear the signatures of both defendants.

At the time this suit was filed, Mr. Fa'alevao had long departed the territory and process was only served on Mrs. Fa'alevao, who, for all intents and purposes, maintains that Mr. Fa'alevao has abandoned his marital and family obligations since leaving the territory.

LEGAL DISCUSSION

After consideration of plaintiff's proofs, namely the promissory notes and the loan application, we find certain factors apparent on the face of the documented evidence which attract a second look, in the light of plaintiff's position that respondent Mrs. Fa'alevao had executed: (1) the loan application as a co-applicant; and (2) the promissory notes as either a primary or secondary obligor.

The factors we allude to that suggest a situation unlike the usual are the following. Firstly, the pre-printed promissory note form is couched in language which addresses only the situation of a singular obligor. Conspicuously absent from the language of the notes are the usual references one expects with regard to co-makers, endorsers, and guarantors. Rather, the note provisions exclusively envisage the Federal Loan insurance program, (provided under 20 U.S.C. §§ 1071 et. seq.) as the only surety for repayment. For example, clause IV(5) of the notes provides that in the event of maker's death or total and permanent disability, the unpaid [6ASR2d84] indebtedness thereunder shall be cancelled. Such a term is inconsistent with the provision for a co-maker/co-obligor.

The very bottom of the note form contains in highlighted script print the heading CAVEAT, along with the following language: "This note shall be executed without security and without endorsement, except that, if the maker is a minor and this note would not, under state law, create a binding obligation, endorsement may be required." (emphasis added).

Provision number 1 of the notes requires that the construction of the terms thereof shall be " ...in the light of Federal Regulations pertaining to [the] Act" [Title IV, Part B of the Higher Education Act of 1965 as amended, 20 U.S.C. §§ 1071 et.seq.] We turn to those regulations for edification on the quoted caveat. The pertinent regulations promulgated pursuant to the Act are contained in 34 CFR 682, Sub Part E, §§ 682.500 et. seq. Section 682.509(e)(2} provides in effect that the Secretary (of Health Education & Welfare) shall make available to FISLP lenders approved promissory note forms. Such forms may not be added to or modified by a lender without the Secretary's approval. Subsection (f) thereof provides as follows:

(1) A FISLP loan must be made without security.

(2) With one exception, a FISLP loan must be made
without endorsement. If a borrower is a minor and
cannot under applicable local law create a legally
binding obligation by his or her own signature, a lender
may require an endorsement by another person on
borrower's FISLP note. For purposes of this paragraph,
"endorsement" means a signature of any party ---other
than borrower who is to assume either primary or
secondary liability on the note.

Given the foregoing, the conclusion is inescapable that Mrs. Pamata Fa'alevao's signing of the notes was an entirely ineffectual exercise. Even it the plaintiff's expectation at the time was that Mrs. Fa'alevao would be bound as an obligor, [6ASR2d85] such an expectation was not in accordance with governing law. The promissory note forms may not be amended by a FISLP lender unilaterally without the Secretary's approval. Secondly, Mrs. Fa'alevao could not be construed as having thereby given security for the repayment of the note. See clause number 1 of the note. Finally, it is quite clear from the regulations that the purpose and intendment of the "Caveat" as contained in the note was to embody the regulatory prohibition against requiring Co-obligors.

This prohibition is not without purpose. Section 682.500 of the regulations outlines the circumstances under which loans may be insured under FISLP. These include the circumstances as may exist in a State or Territory whereby "no guarantee agency program is operating; or a guarantee agency program is operating but is not reasonably accessible to students.... Additionally, subsection (d) thereof empowers the Secretary, as a condition for issuing loans under the FISLP, to require lender applicants to certify that conditions such as those mentioned above exist within the Territory. Accordingly, the plaintiff bank cannot be certifying the lack of guarantee agency programs within the territory in order to qualify as a FISLP lender while making, or attempting to make, side deals to bind third party sureties.

We conclude against any liability on the part of Mrs. Pamata Fa'alevao as evidenced by the referenced promissory notes.

The motion for summary judgment is denied.

It is So ORDERED.

**********

Davies & Co. v. Pacific Development Co.;


THEO H. DAVIES & CO., LTD.,
dba PACIFIC MACHINERY, Plaintiff

v.

PACIFIC DEVELOPMENT CO., LTD., FONOTI
PATRICK REID, and YOSHIHISA SATO, Defendants

High Court of American Samoa
Trial Division

CA No.112-87

October 2, 1987

__________

Unless presented with evidence that foreign law differs from local law, courts will assume that it does not.

Uniform Commercial Code permits a secured creditor to enforce his security interest through ,judicial process, to repossess the goods and resell them in a commercially reasonable manner and to recover any deficiency after resale, or to retain the goods in satisfaction of the debt. U.C.C. §§ 9-501(1), 9-503, 9-504, 9-505(2).

Secured creditor is not required upon default. to select only one of the several remedies provided by the Uniform Commercial Code, but may not pursue conflicting remedies simultaneously in a harassing or commercially unreasonable manner. U.C.C. § 9-501(1).

Under common law "election of remedies" rule, a secured creditor could choose only one of the available remedies for default by debtor, whether or not cumulative remedies would have been fair or commercially reasonable under the circumstances.

Under the Uniform Commercial Code, a secured creditor's election to retain the goods subject to the security interest results in a complete discharge of the underlying obligation. U.C.C. § 9-505. [6ASR2d6]

At common law, as under the Uniform Commercial Code, a secured creditor may not retain repossessed collateral indefinitely while simultaneously maintaining an action on the debt.

Secured creditor seeking a deficiency judgment after repossessing sold goods was not entitled to the difference between the contract price and the current value of the goods when evidence showed that the goods had been severely damaged since the time the creditor had repossessed them.

Secured creditor who had repossessed sold goods after default and had retained the down payment was not entitled to repossess and sell additional collateral in the absence of a showing that creditor had made commercially reasonable efforts to resell the goods it had already repossessed, since court had no evidence on which to conclude that creditor's damages had not already been fully redressed.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and OLO, Associate Judge.

Counsel: For Plaintiff, William Reardon
For Defendants, Frank Swett

On motion for preliminary injunction:

I. Facts

Plaintiff sold defendant Pacific Development five pieces of heavy machinery for about $300,000. The machinery was to have been used at a facility defendant planned to operate in Western Samoa. Under the terms of a retail installment agreement, defendant paid an initial sum of $80,000 and was to complete payment of the remainder plus interest with eighteen subsequent installments. The debt was secured by an agreement identifying as collateral two used pieces of machinery owned by t:iefendant and "all other assets of Debtor." (Oddly enough, the agreement specifically identifies as collateral only these two pieces of machinery; it does not mention the machinery that was the subject of the contract.)

Shortly afterward there was a change of government in Western Samoa and it became apparent[6ASR2d7] that defendant would not be permitted to operate the facility for which the machinery had been purchased. After a series of letters and discussions between the principals it was agreed that this machinery (which had been shipped from Hawaii to Apia, Western Samoa, but had not been removed from the dock) would be returned to the plaintiff. Defendant's version of this agreement is that the sale was in effect being rescinded and that plaintiff was to return the $80,000 down payment less the amounts it had spent for shipping and other costs associated with the transaction. Plaintiff contends that it retained the right to receive the full purchase price and that the machinery was returned only as partial security for that right. (1)

Plaintiff put the machinery into storage in American Samoa. It has not been resold and has apparently not been advertised for sale in American Samoa or elsewhere. Plaintiff has submitted an estimate to the effect that the machinery that was the subject of the contract is now worth only about [6ASR2d8] $90,000. It appears that the machinery has been severely damaged after its repossession by the plaintiff, by exposure to the weather and perhaps also by vandalism. No estimate has been submitted of the value of the machinery at the time plaintiff repossessed it.

In this action plaintiff, seeks to recover the remainder of the purchase price plus interest. Plaintiff now moves for an order allowing it to take possession of and sell, prior to trial on the merits, the two pieces of used machinery that were identified as collateral in the security agreement.

II. What Law Applies

The choice of applicable law does not clearly emerge from the pleadings. The collateral of which plaintiff seeks possession is in the Territory. The security agreement, apparently drafted by plaintiff, was executed in Hawaii but invokes the protections afforded creditors by the Western Samoa Commercial Code. A "continuing guarantee" of the debt purports to be governed by the laws of Hawaii. Hawaii has adopted the Uniform Commercial Code sections; American Samoa has not. The Western Samoa Code is not immediately available and the parties' submitted materials are devoid of citation to it. In the absence of evidence that foreign law differs from local law, courts assume that it does not. Consequently, for the purposes of this motion we must apply either the provisions of the Uniform Commercial Code or the common law of secured transactions as applicable in American Samoa. Since our ruling on this motion would be the same whether we were to apply the Uniform Commercial Code or the principles of the common law of secured transactions, we need not decide at this time which body of law applies.

III. Cumulative Remedies Under the UCC and at Common Law

A creditor's remedies on default are itemized in Part Five of Article Nine of the Uniform Commercial Code. The secured creditor "may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure." U.C.C. § 9-501(1). He may also repossess the goods subject to the security interest and resell them in any commercially reasonable manner, applying the proceeds to the [6ASR2d9] debt. U.C.C. § 9-503-04. Or he may retain the goods in satisfaction of the debt. U.C.C. § 9-505(2). Section 9-504 permits the recovery of any deficiency after resale, absent creditor misbehavior in repossession and resale .

Plaintiff's conduct amounts to a melange of the above alternatives. It has peaceably repossessed the equipment but has not attempted resale. Nor, however, does it consider its retention to satisfy the debt. Rather, it seeks judicial recourse, pressing a claim for (1) the entire debt less the down payment; (2) interest; and (3) the right to repossess the additional collateral notwithstanding (4) its retention of the machinery at the heart of the sale.

Section 9.501(1) of the U.C.C. provides that " [t]he rights and remedies referred to in this subsection are cumulative." (The subsection refers to all the remedies discussed above.) The Code thus sought to overrule prior judicial precedents to the effect that a secured creditor's first attempted remedy would be his only one. The leading commentary on the Code emphasizes, however, that the language of this subsection should not, be construed beyond its purpose to allow unfair or commercially unreasonable conduct on the part of creditors:

The remedies may be "cumulative," but at some point the secured
creditor must choose which remedy he will utilize and pursue the
route to fruition. In other words, a secured creditor may first attempt
to enforce his rights by one method and if that proves unsuccessful
follow another one, but he should not be permitted to harass the
debtor by simultaneously pursuing two or more of the several avenues
of attack open to him. Neither case law nor the language of 9.501
authorizes a "double barreled" attack upon the debtor.

J. White & R. Summers, Uniform Commercial C:ode § 26-4 at 1093-94 (2d ed. 1980). This view has been accepted by courts in cases similar to the one before us.

In Ayares-Eisenberg Perrine-Datsun, Inc., v. Sun Bank of Miami, 455 So. 2d 525 (Fla, App. 1984), [6ASR2d10] defendant had defaulted on a loan for the purchase of a computer. Two officers of the company personally agreed to guarantee the debt. Upon default, plaintiff repossessed the computer and notified defendant that the computer would be resold by private sale. Eight months later, however, plaintiff instituted an action to recover the entire debt. One month after that, ostensibly unable to find a buyer, plaintiff gave the computer to a nonprofit organization without notifying the defendant. The court reversed the trial court order granting plaintiff's motion for summary judgment. Relying on White & Summers, the court held that plaintiff's action directly upon the note was precluded until and unless plaintiff could prove it had fulfilled the statutory requirements with respect to the commercially reasonable disposition of collateral.

In Michigan Nat'l Bank v. Marston, 185 N.W. 2d 47 (Mich. App. 1970), the court held that a secured creditor could maintain an action on a debt even though it held title to the repossessed but unsold automobile securing the debt. Possession of the certificate of title was held not to constitute an election of remedy, because the automobile itself was in the possession of a garageman who held it subject to a mechanic's lien. In order to repossess the car itself the creditor would have had to pay the garageman, thus augmenting the debt. The court also held, however, that the creditor nevertheless owed certain duties to the debtor:

It would be unfair to allow a creditor to deprive the debtor of
the possession and use of the collateral for an unreasonable length
of time and not apply the asset or the proceeds from its sale
toward liquidation of the debt. Moreover, it would be equally
unfair to allow a creditor to take possession at all, if the creditor
never intended to dispose of the security. For during the period
that the debtor is deprived of possession he may have been able
to make profitable use of the asset or may have gone to far greater
lengths than the creditor to sell. Once a creditor has possession he
must act in a commercially reasonable manner toward sale, lease,
proposed retention where permissible, or other disposition. If such
disposition is not [6ASR2d11] feasible, the asset must be returned,
still subject, of course, to the creditor's security interest. To the
extent the creditor's inaction results in injury to the debtor, the
debtor has a right of recovery.

185 N.W.2d at 51 (citations omitted). The bank's initial act, repossession, was held not to constitute an election of remedy. Moreover, because of the mechanic's lien, the bank was not required to resell the car. It could not, however, repossess the collateral and leave it in limbo while maintaining an action on the debt. The court indicated that if the bank chose not to get possession of the car and resell it, it would have to return the title documents to the debtor. Id. at 51 n.4. See also Appeal of Copeland, 531 F.2d 1195, 1207 (3d Cir. 1976) (referring to "the Code's mandate that an effective election to retain the collateral results in a complete discharge of the underlying obligation.")

The Uniform Commercial Code and the cases applying it, in other words, seem to prohibit the indefinite retention of repossessed collateral contemporaneously with an action on the debt. The same result would have obtained under the common law principles that predated the enactment of the Code. See Bradford v. Lindsay Chevrolet Co., 161 S.E. 2d 904 (Ga. App. 1968) (At common law the repossession of collateral securing a conditional sales contract, and retention without resale or excuse for not reselling and without making a demand for payment until suit, constituted "a rescission and satisfaction of the contract" precluding further recovery thereon.); In re Orpheum Circuit Inc., 23 F. Supp. 727 (S.D.N.Y.), aff'd, 97 F.2d 1011 (2d Cir. 1938); Zazzaro v. Colonial Acceptance Corp., 167 A. 734 (Conn. 1933); Annot., 49 A.L.R. 2d 15, 25, § 4 (1956) (discussing cases recognizing that a repossessing seller could not recover deficiencies under the sales contract in the absence of a resale). The pre-Code common law in many jurisdictions treated plaintiffs attempting more than one remedy even more strictly. Under the "election of remedies" rule a secured creditor in these jurisdictions could choose but one of his available remedies, whether or not cumulative remedies would have been fair and reasonable in the particular [6ASR2d12] circumstances. See e.g., Strehlow v. McLeod, 117 N.W. 525 (N.D. 1908); Wilmore v. Mintz, 95 P. 536 (Colo. 1908). We are inclined to believe that this rule is wrong and that a creditor should be permitted to pursue more than one remedy provided that such conduct is commercially reasonable and does not constitute harassment. We need not reach this question, however, in order to rule on the motion now before us, for even under the more liberal provisions of the Uniform Commercial Code the plaintiff's request for pre-judgment seizure of the additional collateral would be denied.

IV. Conclusion

In order to grant plaintiff's motion we would be required to believe all of the following propositions:

1) That defendant Reid's testimony that the plaintiff agreed to accept the machinery (plus as much of the $80,000 down payment as was necessary to pay the expenses it had incurred) in satisfaction of the purchase price was either perjury or the product of his imagination.

Plaintiff has produced no direct evidence on this point. The fact that one of plaintiff's officers wrote a demand letter several months later suggests as does, for that matter, the fact that this suit has been filed ---that plaintiff must have a different version of the transaction in which the machinery was returned. At this point, however, Reid's testimony is the only direct evidence of that transaction. Even if we assume that plaintiff's letter (described in note 1 supra) was sent and received and that the officer who sent it was fully informed about all discussions that other officers of the plaintiff corporation had with the defendants, we cannot tell from the letter exactly what plaintiff's version is. We do not know, for instance, whether plaintiff denies that it made any agreement at all with defendants concerning the return of the machinery or simply disagrees with defendants about the legal effects of such an agreement.

2) That defendants' other principal defense on the merits of the action that they were never in default because the action of the new Western Samoa government constituted force majeure excusing nonperformance ---is without merit. [6ASR2d13]

We are reasonably certain that we do agree with plaintiff on this proposition, although the issue has not yet been briefed or argued by either side.

3) That defendants paid a great deal more for the machinery than anyone else would have been willing to pay for it. At the time plaintiff repossessed the machinery, it had never been used or even possessed by defendants, and the plaintiff had $80,000 of the defendants' money in addition to the machinery. In order for the plaintiffs to have the right to seize additional thousands of dollars worth of machinery, it must appear that they have not been fully compensated by the two remedies ---repossession of the machinery and the retention of the down payment ---already pursued. In the absence of any direct evidence of the fair market value of the machinery we are inclined to believe that it was worth some amount within $80,000 of the purchase price. We have been presented with no evidence of what the plaintiffs' shipping costs and other expenses were. Plaintiff's estimate that the machinery itself was worth only $90,000 after incurring serious damage from exposure to the elements for a year by the plaintiff's agents says very little about what it was worth when defendants surrendered it.

4) The conduct of plaintiff with regard to the repossessed machinery moving it from Western Samoa to American Samoa and making occasional informal inquiries about whether anyone in American Samoa wants to buy it ---constitute commercially reasonable efforts to resell the machinery. (If not, plaintiffs' possession of the machinery for over a year would amount to a constructive retention in satisfaction of the debt, even in the absence of a specific agreement to this effect. See the authorities cited in Part III, supra.)

Although we have not had the benefit of briefing, argument, or expert testimony on this point, the evidence we do have (i.e, the facts of the transaction on which this action is based) suggests that the market for such machinery as this is specialized and international rather than general and local. Commercially reasonable efforts to sell it would presumably have included, for [6ASR2d14] instance, advertisements in trade journals outside of American Samoa.



Although plaintiff may produce evidence sufficient to enable it to prevail on all these issues at trial, on the present state of the record it loses on three out of four.

We wish to emphasize that it is not our intention to penalize the plaintiff for seeking judicial enforcement of what it believes to be its rights under the contract rather than resorting to self-help. Nor do we believe this to be the effect of our decision today. The standards we have applied in ruling on this motion are the very standards we would apply if a debtor were suing to enjoin a creditor from seizing collateral or to recover the collateral after the creditor had seized it. Contractual language giving a creditor the right. to seize collateral without legal process. however helpful it may be as a defense against a charge of conversion or grand larceny, does not foreclose judicial inquiry into such questions as whether a person whose possessions are being seized really owes the money whose repayment the seizure is supposed to secure.

V. Order

The motion for an order of repossession and sale of the additional collateral pending trial is denied. The temporary restraining order, enjoining defendants not to move, alienate, dismantle, or encumber the property, will continue in force as a Preliminary injunction pending the outcome of these proceedings.

**********

1. The evidence for defendants' version of this transaction was the testimony of defendant Reid. Plaintiff presented no testimony and no affidavits other than one from its attorney stating that he is "aware of some of the details of the transaction herein on the basis of conversation with a local representative of the Pacific Machinery."
Plaintiff has also submitted a copy of a letter dated several months after the machinery was returned. Although this letter does not directly refer to any discussions that took place between the parties concerning the return of the machinery it does state that "plaintiff will proceed with the sale" of the machinery and recover the balance of the purchase price from defendants. The last two paragraphs of the letter purport to state the rights and obligations of both parties, and resemble a draft of a bilateral agreement more than a letter from one party to another. The letter was prepared for the signature of the plaintiff's Vice President-Comptroller and for "acknowledgment" by the defendants. The copy we have bears no trace of a signature by anyone, and we have no evidence about whether it was sent or received.

Continental Ins. Co.; Te'o v.


TE'O MANUMA, for himself and as
representative of RYAN MANUMA, Plaintiff

v.

CONTINENTAL INSURANCE CO., ANITA TEDROW,
and SCHWALGER, JR. , Defendants

High Court of American Samoa
Trial Division

CA No. 59-83

December 18, 1987

__________

Court may set aside a transfer of property if it is determined to be a fraudulent conveyance designed to defeat rights of the transferor's creditors.

Judicial scrutiny of alleged fraudulent conveyance should include consideration of whether the transaction was attended by "badges of fraud" including indebtedness of the transferor, lack of consideration for the transfer, a close family relationship between the parties to the transfer, pendency or threat of litigation against the transferor, reduction or depletion of the transferor's estate, and retention of physical possession of the property by its former possessors after the transfer has taken place.

Person entitled to receive title to land upon [6ASR2d136] completion of payments under a land sale contract is the equitable owner of the land.

Where equitable owner of land, soon after the issuance oj a large judgment against her, caused title to be vested in her children with no return consideration and no change in possession of the land, the conveyance was fraudulent and should be set aside at the request of judgment creditor.

Territorial statute prohibiting sale of real property of a Samoan to satisfy a judgment does not prohibit judgment creditor from recovering the cash proceeds resulting from a voluntary sale of property by the judgment debtor. A.S.C.A. § 43.1528(a).

Policy underlying statutory prohibition on sale of Samoan real property to satisfy judgment, unlike policy underlying statutory homestead exemptions in the United States, is to discourage alienation of land; a Samoan who has voluntarily alienated his land and converted it into cash has placed himself not only outside the language of the statutory 'protection but also beyond its rationale. A.S.C.A. § 43.1528(a).

Where land of which judgment debtor was the equitable owner had been fraudulently conveyed to judgment debtor's minor children, then caused by debtor and her husband to be sold by the children to a third party, proceeds from sale to third party were subject to seizure by judgment creditor.

Court would exercise its equitable discretion to allow husband of judgment debtor, who had made payments on land contract and paid for a house on the land, to retain in preference to the judgment creditor half of the proceeds from sale of land which had been held in the name of the judgment debtor.

Party who comes into court voluntarily seeking affirmative relief thereby subjects himself to adverse judgments beyond mere denial of the relief he seeks.

Duty of a person who seeks affirmative relief from a court to obey the court's orders cannot be avoided by the device of designating another person as "attorney in fact" with power to secure affirmative judicial relief for the principal but [6ASR2d137] not to subject the principal to liability arising from the same controversy in which judicial relief is sought.

Where (1) court had jurisdiction over judgment debtor and her property; (2) attorney who represented judgment debtor had successfully petitioned the court for appointment as "special guardian" of judgment debtor's minor children for the purpose of selling real estate conveyed by her to the children and retaining funds in his trust account pending court approval of their disposition; and (3) same attorney had been designated by judgment debtor's husband as "attorney in fact" to sell a house located on the land, court had jurisdiction to determine whether the proceeds from sale of the house were part of the proceeds from sale of the land and to enjoin removal of the proceed, from the territory pending such determination, even though husband was neither a named party to the action nor personally amenable to service of process in the territory.

Before REES, Chief Justice, VAIVAO, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Asaua Fuimaono
For Defendant, William Reardon

On motion to invalidate deed:

In 1984 plaintiff Te'o Manuma obtained a judgment for $90,000 against defendant Anita Tedrow for the wrongful death of Te'o's son. The judgment was upheld on appeal. Since that time Te'o has tried without success to satisfy the judgment. He now asserts a right to the proceeds from the sale of a tract of land and attached house allegedly owned by Mrs. Tedrow.

In April of 1981 Afatasi Burke agreed to buy this tract of land from the trustee for Douglas Craddick. In August 1983 Afatasi Burke assigned her interest in that agreement to Mrs. Tedrow. The judgment against Mrs. Tedrow arose after that assignment. The payments due the Craddick trust under the agreement were paid by Mrs. Tedrow's husband, who also constructed on the land a house which has been used as the Tedrows' family dwelling. In September 1986 Mr. Tedrow completed[6ASR2d138] the payments due under the assignment to Mrs. Tedrow and the Craddick trust conveyed a deed of title. Rather than draw the deed in the name of Anita Tedrow as set out in the land sale contract and subsequent assignment, however, the seller conveyed the land to the Tedrows' minor children. An agreement has since been reached for resale of the land, along with the house, to an unrelated party.

Plaintiff asks that the conveyance to the children be set aside as a fraudulent one designed to defeat his rights as a creditor of Mrs. Tedrow. We believe plaintiff's contention to be well founded.

Courts have a duty to scrutinize closely intra-family transfers of property that hinder creditors of the transferring individual. See Flesher v. Carter, 467 S.W.2d 276, 279 (Mo. App. 1971). Such scrutiny should include consideration of whether the transaction was attended by certain "badges of fraud": indebtedness of the transferor, lack of consideration for the transfer, a close family relationship between the parties to the transfer, the pendency or threat of litigation, reduction or depletion of the transferor's estate, and retention of the transferred property by whoever possessed it before the transfer. Smith v. Popham, 513 P.2d 1172, 1175 (Or. 1973); See generally 37 Am. Jur. 2d, Fraudulent Conveyances §§ 10-14, The transfer of legal title of this land to the Tedrow children was festooned with such badges. When Afatasi Burke assigned her rights under the land sale contract to Anita Tedrow, Mrs. Tedrow became the "Buyer" under the contract and acquired equitable title to the property. Though the seller retained legal title, it held such title only as trustee for the purchaser. Mrs. Tedrow alone held the ownership interest in the property and the benefits of the land sale agreement. See Fellmer v. Gruber, 261 N.W.2d 173, 174 (Iowa 1978). 77 Am. Jur. 2d, Vendor & Purchaser §§ 317, 319. Her status as equitable titleholder existed at the time the High Court rendered judgment against her in 1984.

The record teems with evidence that Mrs. Tedrow had legal title placed in her children's names in 1986 solely in order to avoid leaving the property vulnerable to her judgment creditor. A [6ASR2d139] sizeable judgment had been entered against Mrs. Tedrow while she held equitable title to the property. Upon full payment, entitling her to legal title, she gave the property to her children for no consideration. She apparently has no other significant assets with which to satisfy the judgment, and she has tenaciously resisted plaintiff's previous efforts to collect anything from her. The transfer of title to the children was not accompanied by any change in possession of the property. We conclude that it was designed solely to avoid satisfaction of the judgment and should therefore be set aside.

Defendant contends, however, that even if she did own the land its proceeds cannot be seized because they are subject to a "homestead exemption." The authority cited for this proposition, however, applies only where such an exemption is provided by statute. A homestead exemption can exist only if created by the legislature. In re Doody's Estate, 210 Or. 658, 313 P.2d 444 (1957). The Fono has not enacted such a law.

Defendant argues that A.S.C.A. § 43.1528(a), which provides that "[n]o real property of a Samoan may be subject to sale under a writ of a court to satisfy any judgment, " is the local equivalent. of a homestead exemption and should be construed to exempt from seizure not only real. property but also proceeds derived from the sale of such property. We decline, however, to read into the statute a broad new meaning apparently uncontemplated by the Fono. Homestead exemption statutes in the United States and the land exemption in American Samoa are different kinds of laws enacted for broadly similar but far from identical purposes. The former, which typically exempt from seizure a specified dollar amount of the value of a single residence, protect the interest of an individual and his family in having a place to live and a modicum of financial stability. See Walker v. Haves, 248 Ala. 472, 28 So.2d 413, 415 (1946). A.S.C.A. § 43.1528, on the other hand, was enacted to buttress the protection of the traditional Samoan land ownership system that underlay the Treaties of Cession. In the United States a creditor can seize all of a debtor's land with the single exception of a modest family residence, and this very limited exemption has become a kind of property that is in some circumstances transferable. A Samoan, on the other [6ASR2d140] hand, is given the right to keep all of his land for as long as he wishes no matter how many bad debts he has; the underlying principle is that Samoans should be discouraged from alienating their land under any circumstances whatever. Once a Samoan has voluntarily alienated his land and converted it into cash he has placed himself outside the letter of the statutory exemption and also beyond its rationale. Estopped to invoke the public policy that Samoans should not part with their land, he is then governed by the more general principle that people should pay their debts.

There is, however, another layer of equity beneath the "legal ownership" and the "equitable ownership" of the Tedrow land. Mr. Tedrow, the wage earner of the Tedrow family and a person against whom plaintiff has no judgment, actually made the payments on the land. He also paid for the house which, ill the absence of a separation agreement, the law regards as a part of the land. Speaking equitably rather than in terms of legal title, Mr. Tedrow earned these wages and made these payments on behalf of his family unit. As is common with families in which only one spouse is Samoan, the Tedrows originally planned to place the land in the name of Mrs. Tedrow in order to avoid the restrictions on ownership of land by non-Samoans. If plaintiff had invoked some strictly legal right rather than a remedy that is within the Court's equitable powers, we might be forced to conclude that it was simply the Tedrows' bad luck that they had chosen to place title to the land in the name of the spouse who happened later to become a judgment debtor. It is within our discretion, however, to mitigate what would otherwise be the harsh effects of an equitable remedy such as setting aside a fraudulent conveyance.

Accordingly, we set aside this conveyance on condition that plaintiff receive only half the proceeds of the resale. This will allow the Tedrows, a family with two adult members only one of whom is a judgment debtor, to retain half the benefits of a series of transactions in which the interests and efforts of both were thoroughly involved. (1) [6ASR2d141]

Finally, we note with some apprehension the receipt of a "special appearance by Donald Tedrow" asserting that "[t]his court does not have jurisdiction over me or my property." The Tedrows have left the Territory and are no longer amenable to personal service. The Court has been assured by counsel for Mrs. Tedrow (who is also counsel for Mr. Tedrow in his special appearance) that no assets resulting from the sale of the house and land have left the Territory or will do so pending the outcome of this proceeding. The Court has jurisdiction over Mrs. Tedrow and her property, which includes the proceeds of any sale of the house and land. William Reardon, counsel for Mr. and Mrs. Tedrow, has also successfully petitioned for appointment as a "special guardian" of the Tedrow children for the purpose of selling the real estate and retaining the proceeds of the sale in his trust account until further order of the Court. He sought this status under a power of attorney from Mr. Tedrow with the approval of Mrs. Tedrow. [6ASR2d142]

We are satisfied that Mr. Tedrow's designation of Mr. Reardon as his attorney in fact with "full power to convey my residence located on the land above described and do all things necessary to effectuate such conveyance and transfer the proceeds thereof to me," coupled with Mr. Reardon's appearance in pursuance of this authority as petitioner in PR No. 22-87, gives the Court jurisdiction to enjoin Mr. Tedrow from transactions in connection with the property that is the subject of Mr. Reardon's petition. It is settled beyond peradventure that a person who comes into court seeking affirmative relief from a court thereby subjects himself to whatever favorable or unfavorable judgment should ensue. An unfavorable judgment need not be limited to a denial of the relief the plaintiff seeks; it can include orders requiring him to pay damages to some other party or to obey an injunction or subjecting him to penalties for contempt of court. A plaintiff cannot evade these consequences merely by designating another person as his "attorney in fact" with power to get for him all the benefits the court may award but not to subject him to any of the liabilities. It should not, however, be necessary to test this proposition in this case provided that Mrs. Tedrow and Mr. Reardon obey the Court's orders.

The Court had jurisdiction to issue its orders in this case and in PR No. 22-87 directing that no funds received in connection with the land or the house are to be removed from the Territory. At this time we reiterate that order and further order counsel for defendant, in that capacity and in his capacity as the petitioner in PR No. 22-87, to deposit any such funds in the registry of the Court where they will be held pending the resolution of any further motions by plaintiff, defendant, Mr. Reardon in his capacity as petitioner in PR No. 22- 87, or any other proper party. It hardly seems necessary to add that participation or collusion by any person within this Court's jurisdiction in any effort to evade the effects of this order by removing assets from the Territory will be a violation of the order whether or not such person should be in physical or constructive possession of such assets.

No further transactions with regard to the [6ASR2d143] land or house shall be conducted without the approval of the Court.

Counsel for plaintiff is strongly urged to serve writs of garnishment upon any persons other than Mrs. Tedrow who might be in or come into possession of assets relevant to this case. This action should have been taken long ago.

It is so ORDERED.

**********

1. Contrary to a suggestion made by defendants' counsel, this solution has nothing to do with "dower rights" or with a judgment that Mr. Tedrow is the equitable owner (as that term is traditionally used) of the land or the house. As a matter of "black letter law" Mrs. Tedrow had the legal right to receive the title to the land and the house that goes with it. Her creditors had the right to seize the proceeds of any sale of the land and the right to insist that she not give up her legal right to receive title in anticipation of such a sale. Our decision that the Tedrows should retain half of the proceeds is an effort to prevent an equitable remedy from working inequity. Counsel for defendants is certainly right as a matter of law in stating that "[n]either the law of the relationship between a husband and wife or the Samoan land tenure system permits a conclusion that there is a divided 1/2 interest of each spouse during the marriage in the property acquired during the marriage." (Emphasis in the original.) If we were to accept this as a proposition limiting our ability to fashion an equitable remedy in this case, it would lead us not (as counsel wishes) to the conclusion that the whole proceeds should be regarded as belonging to Mr. Tedrow, but that the whole sum belongs to Mrs. Tedrow and can therefore be seized by her creditors.

American Samoa Gov’t; Masaniai v.


TAULAGA MASANIAI, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 8-87

December 8, 1987

__________

A trial court's decision to exclude spectators from the courtroom during testimony of a particular witness must not be disturbed on appeal unless the decision was an abuse of discretion.

Trial judge may exclude spectators from the courtroom during testimony when necessary to protect or shield the witness; to prevent embarrassment or emotional disturbance; or to enable a reluctant witness to testify to material facts.

Trial judge properly decided, after a public hearing at which each spectator had an opportunity to express reasons for his or her desire to remain in the courtroom, that the public should be excluded during the testimony of a youthful rape victim when trial judge found that certain spectators wished to be present in order to intimidate the witness.

Exclusion of spectators from courtroom under exigent circumstances did not violate criminal defendant's right to a public trial or the public's right to be present. U.S. Const. amends. VI, I.

Record adequately supported trial court's finding that defendant had made sexual contact with his [6ASR2d115] daughter without her consent and for the purpose of arousing or gratifying sexual desire.

Sentencing court may require convicted defendant to serve multiple periods of detention as conditions of multiple terms of detention, but the periods of detention must be served concurrently and the aggregate period of detention cannot exceed the statutory maximum. A.S.C.A. §§ 46.2206, 46.2207.

Before KRUSE, Associate Justice, KING*, Acting Associate Justice, O'SCANNLAIN**, Acting Associate Justice, and OLO, Associate Judge.

Counsel: For Appellant, Soli Aumoealogo, Public Defender
For Appellee, James Doherty, Assistant Attorney General

PER CURIAM:

This is an appeal from the trial court's decision convicting the appellant of the offenses of Sodomy and Sexual Abuse, in violation of A.S.C.A. §§ 46.3611 and 46.3615 respectively.

The appellant presents the following for appellate review: (1) whether the trial court violated the defendant's right to a public trial by hearing the complainant witness' testimony in camera; (2) whether the government had adduced sufficient evidence to sustain the conviction of defendant; and (3) whether the terms of probation imposed by the Court upon the defendant were violative of A.S.C.A, §§ 46.2201 et. seq.

Public Trial [6ASR2d116]

Appellant concedes that, while he is secured the fundamental right to public trial, this right is not an absolute one. Appellant admits as settled law that the trial court has inherent power to exclude the public "when there is an overriding interest or existence of special or exceptional circumstances." It is argued that the trial court was without "genuine" reason to, conclude that there was an overriding interest or special and exceptional circumstances to justify the exclusion of the public, as well as defendant's family members, while hearing the testimony of complainant. We disagree. Firstly, the applicable review standard in determining whether the record sufficiently supports the trial judge's exclusion of spectators from the courtroom is whether there has been an abuse of discretion. United States v. Eisner, 533 F.2d 987 (6th Cir. 1976), cert. denied 429 U.S. 919. Further it is inveterate law that a trial judge may, in the exercise of his discretion, exclude some or all of the spectators from the courtroom while the testimony of a particular witness is being taken where it appears necessary to protect or shield the witness; to prevent embarrassment or emotional disturbance; or to enable the witness, who is otherwise reluctant in public, to testify to the facts that are material in the case. State v. Poindexter, 92 So.2d 390 (La. 1956); Kirstowskv v. Superior Court in and for Sonoma County, 300 P.2d 163 (Cal. App. 1956).

Examination of the record reveals that the trial judge carefully undertook a public hearing in accordance with the holding in globe Newspaper Co. v. Superior Court, 457 U.S 596 (1982), seeking of every spectator who wished to remain in the courtroom his or her reasons for wanting to stay. Family members related to both the defendant and the complainant were the only people who requested to be present during the complainant's testimony. The Court accorded each of these people the opportunity to be heard on the question of their exclusion, as well as hearing from the complainant to determine whether she needed shielding and protection. On the evidence taken, the trial judge articulated findings which, in the lower court's view, sustained a closed hearing. The Court found that the immediate relatives clearly hoped to intimidate and influence the complainant. Exclusion of these relatives was therefore [6ASR2d117] necessary from the complainant's point of view, as well as in the interests of enhancing the p(3sibility of her testifying truthfully. The distant relatives who were excluded testified that they were curious as to what went on. 'The Court found this factor to be outweighed by the interest of the victim in not becoming an object of salacious curiosity. See Globe Newspaper Co., supra, 457 U.S. at 607-08. With the victim's age and the nature of the charges, the Court was also concerned with protecting her psychological well-being.

We find sufficient grounds articulated on the record to warrant a finding below to exclude spectators during the testimony of complainant and that there was no abuse of discretion on the part of the trial .judge. Indeed, the compromise of the defendant's rights (as well as the public's first amendment right to be present in the courtroom) was limited to the taking of complainant's testimony. The hearing thereafter was reopened to the public.

Sufficiency of Evidence

We note at the outset the applicable standard for review as provided in A.S.C.A. § 46.2403(b). That is, findings of fact may not be set aside by the appellate division unless clearly erroneous.

Appellant excepts to his conviction for the offense of sodomy in the following manner. He contends that the offense is comprised of four elements: (1) deviate sexual intercourse; (2) with another person to whom he is not married; (3) without that person's consent; (4) by using forcible compulsion.

Appellant concedes proof of elements one and two but objects to the sufficiency of proof of elements three and four.

The first observation to be made of appellant's argument is that elements three and four are disjunctive, whereby proof of element three obviates the need for proof of four and vice-versa.

Contrary to appellant's claims, a conclusion by the trial court that complainant did not consent to the deviate sexual intercourse is clearly substantiated on the record. A.S.C.A. § [6ASR2d118]46.3111(4)(c) provides that consent or lack of consent may be expressed or implied, but that: "[a]ssent does not constitute consent if: it is induced by force, duress or deception...." There was testimony relating to a history of vaginal checks imposed by the defendant upon the complainant. She had succumbed to these checks for fear of being beaten, as had happened before. The incident which gave rise to the criminal charges was subsequent to a violent beating of the complainant by the defendant the afternoon beforehand, because complainant had remained after school for a volleyball game. She was subjected to a vaginal check the following morning after the rest of the household (except for a year-old baby) had left. Defendant was insistent on checking the complainant's virginity, When complainant was reluctant to allow the defendant access, the defendant "yanked her legs apart" by "pushing both knees aside."

The background of checks by her father, enforced at times by beatings, together with his insistence on checking her virginity after remaining late at school and after being severely punished therefor, were all circumstances sufficient for the trial court to find the absence of consent.

Appellant further complains of insufficient showing as to all the elements of the offense of Sexual Abuse. The offense includes the element of "sexual contact" which requires a touching "for the purpose of arousing or gratifying sexual desire of any person." A.S.C.A. § 46.3601(b). It is this element which appellant claims was not proven by the prosecution beyond a reasonable doubt.

We disagree. The record was again sufficient to sustain an inference of arousal or gratification of sexual desire, beyond the claims of clinical checking for virginity. Defendant took several minutes with his exercise, which first involved massaging of the pubic area and thighs. There was further massaging utilizing baby oil prior to defendant's internal checking. Subsequent to his internal check, defendant continued with massaging as before.

The government's case in chief thus provided adequate evidence to withstand a motion for acquittal, while the record at the close of [6ASR2d119] evidence also substantially supported the conclusions of guilt.

We accordingly affirm the convictions entered below.

Probation

Appellant upon conviction was sentenced to a term of five years probation for each count. Pursuant to A.S.C.A. § 46.2206, and as a condition of probation, the Court required the defendant to serve a period of detention of one year on each count, with the terms of detention to be served "consecutively."

Appellant takes issue with the imposition of consecutive periods of detention, citing A.S.C.A. § 46.2207. This enactment provides, inter alia, that: "Multiple terms of probation, whether imposed at the same time or at different times, shall run concurrently." The argument therefore is to the effect that detention as a condition of probation must also be concurrent. We agree. The government maintains that the probationary condition of detention can be imposed "consecutively, concurrently, or at whatever time intervals the court shall designate". The government points to A.S.C.A. § 46.2206 as authorizing consecutive detention periods. The enactment provides in part:

Except in infraction cases, when probation is granted, the court,
in addition to conditions imposed under 46.2205, may require
as a condition of probation that the defendant submit to a period
of detention in an appropriate institution at whatever time or
intervals within the period of probation, consecutive or
nonconsecutive, the court shall designate.

(1) In misdemeanor cases, the period of detention under this
section may not exceed 15 days.

(2) In felony cases, the period of detention under this section
may not exceed one year.

We are unable to read this enactment in the manner viewed by the government. Firstly, the provision does not address multiple terms of [6ASR2d120] probation. Rather, its context concerns a singular probationary instance, and permits as a condition of probation a term of detention. It is a "split sentencing" provision and allows the sentencing judge flexibility in structuring a period of detention as a condition of probation. The enactment permits the Court to impose the commencement of detention at any point of time within the period of probation, and alternatively permits detention to be undertaken at " intervals" within the period of probation. The enactment thus implies that the Court may break down or subdivide the total detention period into lesser periods which may be served at such intervals as the Court may designate. Those "intervals" may be "consecutive" or "non-consecutive," thus allowing the Court the flexibility of structuring any pattern of time periods. On the one hand, detention may be ordered to be served all at one stretch, while on the other, it might also be required to be served in intermittent stages within the overall probation term. The "aggregate" period of detention for a felony conviction however, is restricted by subsection (2) to a period not exceeding one year.

Reliance, therefore, by the government on § 46.2206 to sustain the imposition of consecutive detention terms as conditions of probation is hardly tenable. Given the mandate of A.S.C.A. § 46.2207, which specifically addresses multiple terms of probation, and which requires that such terms "shall" run concurrently, it is the opinion of the court that the respective conditions imposed with multiple probationary terms must also be served concurrently.

It is apparent from the reasoning of the trial court that since the language of § 46.2206 permits the Court to impose a period of detention "at what ever time. .within the period of probation," detention periods in a multiple term situation could thus in fact be staggered in commencement date (albeit consecutive in effect), so long as those detention periods accumulate within the overall five-year probation maximum for felonies.

While the language of § 46.2206 may appear to lend itself to such a possible reading, in our opinion such a result was not intended by, and would be repugnant to the spirit of, the Probation Act. If it had intended to permit consecutive [6ASR2d121] periods of detention as conditions of multiple terms of probation, the legislature could have been more explicit, given the specific proscription of § 46.2207 that multiple terms of probation shall run concurrently, as well as the limits, to the term of probation so as not to exceed five years and the condition of detention so as not to exceed one year, in the case of a felony. See §§ 46.2204 and 46.2206 respectively.

The basic premise, or underlying policy, of the Probation Act may be seen in § 46.2203, which directs the sentencing court's attention to the probation option in circumstances where:

(1) institutional confinement of the defendant is not necessary
for the protection of the public; and

(2) the defendant is in need of guidance, training, or other
assistance which in his case can be effectively administered
through probation supervision.

Probationary concerns, therefore, are antithetical to "institutional confinement," and while the legislature has deemed confinement as a suitable "guidance, training, or other assistance" factor to be taken into account, and imposed as part of probation, the one-year limit to the period of detention must be taken as the decisive dividing line between what is probationary and what is penal in nature and in interests of public protection. To allow, therefore, consecutive detention terms, especially when the aggregate duration of those terms exceeds one year, is to undermine that legislatively determined dividing line. (1)

In People v. Tedford, 445 N.E.2d 841 (Ill. App. 1983), an Illinois court faced with a similar probation act, prescribing that multiple terms of probation shall run concurrently, reasoned as follows: [6ASR2d122]

There is a logical inconsistency to the argument that the terms of
probation must be served concurrently and the conditions of
probation may be served consecutively. While the statute requires
that multiple sentences of probation be served concurrently it
follows naturally and logically that the conditions of those multiple
sentences of probation be served concurrently as well. Therefore
the jail term conditions of probation should be modified to run
concurrently.

Id. at 843.

The court felt that a ruling to the contrary would subject the defendant to probationary detention in excess of statutory limits; it also noted that the basic theory of probation is the opportunity of rehabilitation without incarceration. Similarly, federal experience embodies the same reasoning. Under 18 U.S.C. § 3651, Congress has provided a six-month limitation on detention periods conditional to probation. It has been held, given that multiple terms of probation are required to run concurrently, that this limitation does not permit the imposition of consecutive periods of detention. United States v. Rio, 645 F.2d 691 (9th Cir. 1981), cert. denied 454 U.S. 862 (1982).

Conclusion

Accordingly on the above we affirm the convictions entered below, but vacate and modify sentence so that the terms of detention imposed as conditions of probation shall run concurrently and not consecutively.

**********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Diarmuid F. O'Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. In 1983, this dividing point was amended by the Legislature from six months to a period not exceeding one year. P.L. 18- 16 § 1.

Agasiva; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT

v.

MICHAEL AGASIVA, Defendant

High Court of American Samoa
Trial Division

CR No. 5-87

October 14, 1987

__________

Under the rule requiring court to read pleadings broadly when necessary to promote justice, court would view prisoner's second motion for reduction of sentence as a petition for habeas corpus rather than dismissing it as a repetition of previously denied motion. T.C.R.C.P. Rule 8(f).

Rule directing liberal construction of pleadings when necessary to promote justice takes on added importance when pleading party is appearing pro se.

Counsel's failure to file a requested appeal of a criminal conviction violates defendant's right to effective assistance of counsel, justifies habeas corpus relief without a showing by defendant of prejudice or doubtfulness of guilt, and entitles defendant to an out-of-time appeal. U.S. Const. amend. VI.

Counsel who believes requested appeal of criminal conviction to be frivolous must so advise the court, request permission to withdraw, and file a brief identifying any points in the record that could conceivably support an appeal.

Counsel's failure to assert defense of intoxication could not prejudice defendant's right to effective assistance of counsel when proof of intoxication would not have legally negated the required criminal intent.

Blanket. imposition of religious programs on unconsenting inmate violates establishment and freedom of religion clauses of both federal and [6ASR2d33] territorial constitutions. U.S. Const. amend. I; Rev'd Am. Const. Samoa art. I, § I.

While the judiciary cannot ordinarily employ writ of habeas corpus to review prison management or the conditions of a prisoner's otherwise lawful confinement, exceptional prison circumstances rising to the level of constitutional deprivations are within the court's jurisdiction.

Prisoner was entitled to habeas corpus relief from prison conditions that placed him in danger of grave physical and psychological harm.

Requiring prisoners to perform road work does not inflict cruel and unusual punishment. U.S. Const. amend. VIII.

Allegations that prison officials treated different inmates differently were neither proved nor entitled to judicial consideration.

Before KRUSE, Associate Judge, and VAIVAO, Associate Justice.

Counsel: For the Government, William Van Hook, Assistant Attorney General
The Defendant appeared pro se

Opinion and Order on Motion for Reduction or Modification of Sentence:

Defendant, Michael Agasiva, prepared and filed pro se a pleading styled "Motion for Reduction and/or Modification of Sentence". Amid the grounds asserted on the motion, the defendant alleges: the ineffective assistance of counsel; deprivation of his first amendment right to freedom of religion; discriminatory and ill treatment at the Correctional Facility; cruel and unusual punishment; and excessive sentence.

It will be noted that a prior motion for reduction of sentence has been made by defendant in this matter and was denied. Ordinarily, the succeeding motion before us should be summarily denied. However, after taking into account the circumstances of the motion in the light of TCRCP Rule 8(f), which requires the Court to construe pleadings so ''as to do substantial justice", we [6ASR2d34] have approached the motion as a petition for habeas corpus relief to permit a collateral review of defendant Agasiva's allegations. This flexible approach to construction takes on greater importance when the pleadings come from the cell of a pro se defendant rather than from the pen of a schooled attorney. See Gordon v. Leeke 574 F.2d 1147, 1151 (4th Cir. 1981). The federal courts have specifically authorized the treatment of pleadings attacking conditions attendant to prosecution and imprisonment as habeas petitions raising constitutional issues meriting habeas corpus review. See, e.g., Coronado v. United States Bd. of Parole, 540 F.2d 216 (5th Cir. 1976).

Agasiva's motion alleges ineffective assistance of counsel on the ground that his trial attorney failed to file a timely appeal as he had requested of counsel. If factually correct, such a failure would deny the criminal defendant effective assistance of counsel in violation of the sixth amendment to the United States Constitution. v. Wainwright, 640 F.2d 596 (5th Cir. 1981) cert. denied, 456 U.S. 910 (1982). Three important principles emerge from the decision in this case. First, failure to follow a defendant client's request to appeal his conviction amounts to constitutionally ineffective representation. Second, the defendant is entitled to habeas corpus relief in this instance without having to show prejudice or the doubtfulness of his guilt. Third, under such circumstances, the defendant should be permitted to submit an out-of-time appeal. Id. at 518-99. Id. at 598-99. See also Sapp. v. Wainwright, 433 F.2d 317 (5th Cir. 1970).

This is notwithstanding an opinion by trial counsel that the appeal lacks legitimate grounds. Anders v. California, 386 U.S. 738 (1967), a Supreme Court decision discussed in this context more fully in Cannon v. Berry, 727 F.2d 1020 (11th Cir. 1984), requires of counsel who feels that an appeal is frivolous to so advise the Court and request permission to withdraw. Counsel is further required to file a brief pointing out any contents of the record that could conceivably support an appeal. Thus the Court becomes the arbiter of whether the appeal is frivolous and may thus be forborne, or whether it bears prosecuting and requires. the effective assistance of counsel. [6ASR2d35]

On this ground alone, the Court was able to issue a writ to the executive branch to produce the defendant in order to permit an evidentiary inquiry into his allegations. Defendant's pro se motion for reduction and/or modification, filed within the 120 day period permitted under T.C.R.Cr.P. 35, was sufficient under Sapp, supra, to identify and protect his efforts to obtain post-verdict relief and to overcome his failure to file a timely appeal.

At the hearing herein, Agasiva advised the Court that he did not wish to pursue an appeal (1) and the Court, after advising the defendant on several occasions about the availability of relief upon satisfactory showing, was satisfied that Agasiva has knowingly abandoned pursuing the availability of appeal.

We look to the remaining allegations of defendant:

Agasiva also complained of counsel for failing to inject a defense of "intoxication" provided under A.S.C.A § 46.3214. This complaint lacks merit, as the defense goes to "negative the existence of mental states of purpose or knowledge when those mental states were elements of the offense charged or of an included offense". Agasiva was convicted of manslaughter, an offense whose elements do not include "purpose" or "knowledge."

Unlike the situation in Perez (failing to file a timely appeal requested), where counsel's conduct is presumed prejudicial, the ground of failing to [6ASR2d36] raise a defense is not prejudicial . Proof therefore that the alleged omission of counsel fell below the sixth amendment standard of effective assistance, is required. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984). For reasons given, such ground, and therefore proof, is not available as a matter of law in this defendant's case.

We turn to defendant's post-conviction complaints.

Defendant excepts to being forced to participate in prayer sessions imposed by the prison authorities on all inmates. The evidence herewith was not in dispute. The testimony was that after reveille each morning, a prayer session was held and every inmate was required to attend, without exception. Similarly, other religious sessions were imposed at general assembly, and those inmates who did not cooperate were known on occasions to be placed in holding cells. (Holding cells are not the best in accommodation at the prison.) The warden, while testifying that he took corrective action with regard to the holding cell as alternative to prayer, stated that he supported the general prayer sessions as conducive to rehabilitation goals.

Defendant, on the other hand, complains that he is Catholic by persuasion and while he earnestly participates in programs which the Catholic Church has in connection with the facility, he has strong objections to forced interdenominational religious activity.

The very first section of the territorial Bill of Rights (Rev. Const. Am. Samoa art I, § 1) contains an establishment clause and a freedom of religion clause similarly contained in the federal Constitution. Little need be said that the blanket imposition of religious programs upon nonconsenting inmates is hopelessly violative of the constitution. Cooper v. Pate, 378 U.S. 546 (1964). Accordingly, relief shall be granted as hereinafter appearing.

Defendant further complains of conditions permitted at the Correctional Facility which place him in constant fear for his life. Defendant, on his behalf and the behalf of other inmates, complained about the free integration of one [6ASR2d37] inmate, Afoa Mata'itusi, with the rest of the inmate population. Testimony was to the effect that Afoa was the institutional bully invested by the administration with a badge of authority by the creation of a "matai" system at t:he Correctional Facility. This system was devised, also in the name of rehabilitation goals, to inculcate with the inmates the traditional notions of respect for the elders. The said Afoa was one of three or four persons given recognition with matai status, with each such matai assigned jurisdiction over a particular group of inmates. These so-called matai were the inmate liaison with the administration, and were responsible for such things as assigning work detail. According to defendant, the matai influence of this Afoa was even more pervasive. Afoa controlled inmate sporting activities, had a nursery business, and was permitted to market his plants during work detail outside the facility utilizing a government vehicle. He is also said to have usurped and displaced another inmate entrepreneur's business of retailing convenience items to inmates.

The underlying cause of defendant's complaints is that, given this influence and while currying favor with the administration, Afoa is a known dangerous felon.

Our review of the Court's files n inmate Afoa lends much credence to the fears expressed by defendant. Afoa was convicted and sentenced by this Court to imprisonment on June 28, 1978, for a term of fifteen years without work release for the crime of rape. The Court recommended that if Afoa be paroled he be deported immediately to Western Samoa. The sentencing court had before it a lengthy record of Afoa with the criminal justice system in Western Samoa. The presentence report concludes with the recommendation: "To safeguard the lives of others in the Community as well as inmates, " defendant be incarcerated for fifteen years without release for any purpose and that the defendant be segregated from the rest of the inmates.

On July 5, 1978,. the said Afoa was convicted of murder in the second degree after viciously killing another inmate at the Correctional Facility. He was sentenced to imprisonment for a period of forty-five years to be served consecutively with .the sentence for rape. The [6ASR2d38] court further prohibited work release and recommended, if possible, extra-territorial confinement in either a state or federal penitentiary.

Much of the foregoing record was known to defendant Agasiva, and he testified that Afoa in the attempt to assert his authority, or pule, has verbally threatened him with his life on several occasions, even in front of guards. His complaints to the administration are to no avail.

On the other hand, the Warden presented himself as a character witness for inmate Afoa. In his opinion, the dangerously disruptive element at the facility has been the defendant Agasiva. Agasiva is said to view himself as superior to everyone else because of' his educational background, and he seeks treatment different from everyone else, demanding privileges which everyone else must otherwise earn. By comparison, Afoa is held out as a model inmate. The confrontations highlighted by Agasiva are confrontations generated by Agasiva. The Warden denies any knowledge of a retail outlet undertaken by Afoa, but states that the nursery enterprise operated by Afoa has been sanctioned by his superior, and that the proceeds f'om the nursery are shared by Afoa and his inmate aiga for the purchase of toiletries. Afoa is seen to be the model for rehabilitation while Agasiva is seen to be disruptive of everything that is rehabilitative.

The court is mindful that habeas corpus is not available to the judiciary to review prison management and the nature and condition of a prisoner's otherwise lawful confinement. It is not the Court's business to superintend the administration of the prisons, which is properly left to prison officials. However, habeas corpus is appropriate to review unconstitutional actions of prison officials and may be available in "exceptional circumstances rising to the level of constitutional deprivation." See generally 39 C.J.S. Habeas Corpus, § 96 et. seq.

With all due respect to the Warden and his judgment, and while giving him credit for daily and firsthand observation of the circumstances at the Correctional Facility, this Court has great difficulty in accepting the conclusion that inmate Afoa does not present a clear danger to the [6ASR2d39] defendant and other inmates. Afoa's record reveals the potential for viciousness and the concerns of the sentencing court are proving just as valid today as they were in 1978. According to the testimony, Afoa recently struck another inmate on the face with a piece of 2 x 4 lumber. (The Warden has dismissed this incident as having been fully settled.) He punched another with a rock. He openly threatened to cut up another prisoner. The instrument used in the killing for which Afoa was convicted was a bush knife, and testimony had it that Afoa has ready access to such knives. He makes a point of being visible with a bush knife when his pule as a matai is challenged. He has threatened this defendant on different occasions.

We find substance in the fear expressed by the defendant.

In Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944), cert. denied, 325 U.S. 887 (1945), the court held that: "A prisoner retains all rights of an ordinary citizen except those expressly or by necessary implication taken from him by law, which rights include the right to personal security against unlawful invasion." The Court further noted that while the government had the absolute right to hold a convicted prisoner, it also had the correlative duty to protect that prisoner against assault and injury. A prisoner is thus entitled to habeas corpus when, although lawfully in custody, he is deprived of some right to which he is lawfully entitled even in confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits. Id. at 445.

We conclude on the facts that inmate Afoa presents a real danger to the defendant (and to quote defendant) from a "physiological and psychological perspective." We find defendant's fears to be objectively demonstrated and they give rise to the situation whereby his term of imprisonment is made more burdensome than the law allows. Inmate Afoa is not only a dangerous felon, but he actively trades on his reputation in order to instill fear and to manipulate a following with certain of the inmate population. His potential for violence is exacerbated and perhaps encouraged with the ostensible imprint of official sanction [6ASR2d40] connected with his being given the cognizance of a matai.

Relief is accordingly appropriate in this matter to reinstate defendant's imprisonment, exclusive of the added burdensome fears for his safety.

Defendant Agasiva's other grounds for relief are without merit. The court does not find that road work detail is "cruel and unusual punishment."

We further do not find that defendant is being discriminated against with regard to provisional release programs. Agasiva's complaints of discriminatory treatment are that other inmates are entitled to provisional release while his requests have been denied. These are matters properly left to the administration of the Correctional Facility. At the same time, we find no evidence of arbitrariness directed against the defendant Agasiva. His evidence was that inmate Afoa has been given road detail release, weekend leave, etc., in contravention of the sentence order of the criminal trial court. In our view, this was not a product of discriminatory preference, but managerial neglect. As the evidence showed, Afoa was somehow placed on the release programs long before Warden Tuiteleleapaga assumed the running of the Correctional Facility, and every other succeeding warden after this fact has merely followed suit in the assumption that Afoa was properly eligible for release privileges. As a management shortcoming, the facility's officialdom will need to take appropriate corrective measures to comply with a final order of the Court which is still in full force and effect.

At the end of defendant's entreaty is a further request to reduce or modify sentence. This Court remains affirmed that sentence imposed herein was appropriate having regard to the nature and circumstances of the offense as well as defendant's background as required by A.S.C.A. § 46.1910. Essentially, defendant seeks to highlight his background as being very amenable to rehabilitation. But that is only part of the picture the Court must look at. We looked also to the "nature and circumstances of the offense" in this case and the facts then before us at [6ASR2d41] sentencing. The Court was then also moved to consider a competing and equally important sentencing factor. That is "deterrence". The prospect for rehabilitation is a feature which logically follows the sentencing process but is properly under the auspices of the executive branch. The sooner defendant Agasiva comes to terms with the fact that rehabilitation programs are not in accordance with his own views and demands, but are in the hands of the appropriate law enforcement officials, the sooner he may be seen as amenable to rehabilitation programs. Our order denying sentence reduction entered July 14, 1987 remains unchanged.

CONCLUSION

The Court concludes on the foregoing as follows:

The defendant Agasiva shall remain in the custody of the American Samoa Government, Department of Public Safety, Territorial Correctional Facility subject to the following conditions. Defendant Agasiva shall not be required to participate in any religious programs at the Correctional Facility without his consent. He shall be permitted to participate in those religious programs of his own choosing as are ordinarily made available at the Correctional Facility to inmates of Agasiva's religious persuasion. Inmate Afoa Mata'itusi shall be segregated from defendant Michael Agasiva and in compliance herewith, defendant Michael Agasiva shall not as a result thereof be segregated from the remainder of the inmate population.

It is So ORDERED.

**********

1. Defendant's purpose in raising the failure to appeal does not apparently seek reinstatement f an appeal opportunity out of time as a cure or remedy to his asserted prejudice. Rather. the alleged failure is being solely advanced to the trial court for its consideration in the hope of some sort of offset prejudice value to be applied in favor of sentence reduction. Such a ground is of course without merit. As the defendant does not seek an appeal opportunity. we need not pursue the evidentiary hearing n the merits of the allegations concerning the failure to file timely appeal.

6ASR2d1


AMERICAN SAMOA GOVERNMENT

v.

MASIVA OFA, Defendant

High Court of American Samoa
Trial Division

CR No. 30-87

October 1, 1987

__________

Police may initiate prosecution for traffic offense by issuing ordinary traffic citation and summons even well after all parties have left the scene of the offense, and due process does not require usual procedural protection of full criminal prosecution. A.S.C.A. §§ 22.0802, 22.0803.

Though no party raised question of timeliness, where record indicated that appeal was filed after expiration of the applicable time limit. court would require appellant to show cause why the appeal should not be dismissed.

Before KRUSE, Associate Justice, LUALEMAGA, Associate Judge. and VAIVAO, Associate Judge.

Counsel: For the Government, Ellen Ryan, Assistant Attorney General
For Defendant, Charles Ala'ilima

This is a traffic matter originating in the District Court. The defendant appeals by way of trial de novo to the Trial Division of the High Court pursuant to A.S.C.A. § 3.309.

FACTUAL & LEGAL BACKGROUND

Defendant was cited for careless driving in violation of A.S.C.A. § 46.1907(2)(B), a class C misdemeanor carrying a potential term of imprisonment of fifteen days. He moved to dismiss the complaint and summons below, which motion was [6ASR2d2] denied. Upon trial, the defendant was convicted and accordingly sentenced.

Defendant restates hi motion made below and the facts .giving rise to the motion are stipulated as follows:

On the day of the alleged violation, the investigating officer attended the scene with both parties present. After the officer had completed his investigations, both parties were free to leave. However, two days afterwards, the officer issued a traffic citation to the defendant.

The defendant moves to dismiss the citation as defective. He argues that traffic laws which carry penalties of imprisonment and criminal laws, the prosecution of which requires compliance with the general criminal procedure for the issuance "summons upon a complaint before a judge." A.S.C.A. § 46.1221 (a).

The officer had in fact issued a Uniform Traffic Ticket and Complaint-Summons to the defendant under the Procedure for Traffic Offenses Act. A.S.C.A. §§ 22.0801 et. seq.

Defendant, on the other hand, argues that the alternative Traffic Procedure statute is limited by its language to those circumstances where the officer is on the scene of a traffic accident. That if after the officer's personal investigation, and if probable cause is presented, the Uniform Traffic Ticket and Complaint-Summons may only then be utilized and issued to any driver involved in the accident, in lieu of pursuing a summons under the general criminal procedure. Defendant alludes that under the general criminal procedure, due process is granted, and thus the converse of his contention is that traffic citations pursuant to the traffic procedure enactments. unless issued at the scene, are short of due process requirements.

Defendant's reasoning is premised on his construction of A.S.C.A. §§ 22.0802 & 22.0803. These provisions respectively read:

§ 22.0802:

The procedure set forth in this chapter [8] may be employed
in lieu of all others for violations of this title [relating to [6ASR2d3]
traffic offenses] not amounting to felonies. (Emphasis added.)

§ 22.0803:

Except for felonies, a police officer at the scene of a traffic
accident may issue a written traffic citation to any driver of a
vehicle involved in the accident when, based upon his personal
investigation, the officer has reasonable and probable grounds
to believe that the person has committed an offense under the
provision of this title in connection with the accident. (Emphasis
added.)

It is defendant's position that the underscored word "may", as appearing in both provisions, implies a restricted exception to the general criminal procedure requirements mentioned above for the initiation of misdemeanor prosecutions. This restricted exception is "on the scene/probable cause."

CONCLUSION

We disagree with defendant's overly restrictive reading of the Procedure for Traffic Offenses Act. The legislative purpose in enacting Chapter 8 is clearly set out in Section 22.0801, and that is ".... to provide a procedure for the adjudication of all vehicle code violations not amounting to a felony.... To this end, the procedure established by the American Bar Association Standing Committee on Traffic Court and specifically the Uniform Traffic Ticket and Complaint is noted and approved." (Emphasis added.)

The employment of the word "may" in the succeeding provisions relied on by the defendant denotes an "alternative" procedure for initiating the prosecution of traffic misdemeanor/infraction violations. The obvious legislative goal was to simplify the processing of minor traffic violations. In Thompson v. State, 570 S.W.2d 262, 266 (Ark. 1978), it was said that the use of the Uniform Traffic Ticket Complaint-Summons reduces delays, alleviates docket congestion and permits more economical use of the facilities of the police department, traffic courts, and the personnel of the prosecuting attorney's office. It would seem [6ASR2d4] to us that to limit the scope of the enactment to that suggested by defendant would be largely to frustrate the whole purpose behind the legislative exercise.

The legislature has specified clear standards for the contents of a Uniform Traffic Ticket and Complaint-Summons. See A.S.C.A. § 22.0807. The succeeding § 22.0810(b) is, by its terms, clearly in lieu of general criminal procedure as it provides that the complaint shall be filed with the Clerk and sworn to by a police officer. Finally, § 22.0810, while stating that "the summons and complaint of the Uniform Traffic ticket shall be considered sufficient information to initiate and sustain an action under ... "the traffic code, goes further to provide that any due process deficiencies in notice given by the Uniform Ticket and Complaint may be cured by "proper" motion by the defendant to require the government to furnish further particulars. Thus the defendant's due process reservations are less than apparent. See also People v. Boback, 243 N.E.2d 135 (N.Y. 1968).

On the reasons given above, the motion is denied.

TIMELINESS OF APPEAL

While raised by neither party herein, the record seems to suggest that final judgment of the Court below was entered June 9, 1987. Pursuant to District Court Rule 15, an appellant seeking an appeal by way of trial de novo before the trial division must file his notice of appeal within five days of entry of judgment in the District Court. In the present matter, defendant's notice of appeal appears to have been filed on the twentieth day succeeding the date of entry of judgment.

Defendant's right to appeal would thus seem to have lapsed, unless the Court is missing something on the record. To this end, an order will also enter requiring defendant to show cause why his appeal should not be dismissed summarily, within ten days from date of entry hereof.

It is so ORDERED.

**********