Buy cheap gay porn.

10ASR2d

10ASR2d

Parisi v. Parisi,


DEBORAH PARISI, Petitioner

v.

JOSEPH PARISI, III, Respondent

JOHN H. THOMAS, Petitioner for
Registration of Foreign Judgment

High Court of American Samoa
Trial Division

FJ No. 4-88

March 13, 1989

__________

Spousal support is awarded for reasons of public policy and is not freely alienable by private contract.

One who is not licensed to practice law but who attempts to represent another person in court, by taking a gro forma assignment of an interest in the subject matter giving rise to litigation and appearing as a gro se plaintiff, thereby engages in the unauthorized practice of law. A.S.C.A. § 31.0104.

Attorney licensed in another jurisdiction, who in the course of providing legal services to a client took a pro forma assignment of a judgment belonging to the client and entered a court appearance in the guise of a gro se plaintiff without applying for admission pro hac vice, engaged in unauthorized practice of law. A.S.C.A. § 31.0104; H.C.R. 145. [10ASR2d107]

Where court of foreign jurisdiction had issued new judgment substantially reducing the amount of its original judgment, the original judgment could no longer be registered in accordance with statute allowing for registration and enforcement of foreign judgments. A.S.C.A. §§ 43.1701 et seq.

Court would accept foreign judgment for registration and enforcement in the name of the judgment creditor, but would not register and enforce an assignment to her attorney whose principal effect was to allow the attorney to avoid Court rule requiring admission to the Bar pro hac vice. A.S.C.A. §§ 43.1701 et seq.; H.C.R. 145.

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

Counsel: For Respondent, Charles Ala'ilima
Petitioner John H. Thomas pro se

I. Facts and Procedural History

This action arose from the filing of a copy of a foreign judgment with the Clerk of the High Court. The Uniform Enforcement of Foreign Judgments Act, A.S.C.A. §§ 43.1701 et seq., provides that a foreign judgment filed with the clerk shall be treated "in the same manner as a judgment of the High Court of American Samoa." A.S.C.A. § 43.1703.

Unlike any other foreign judgment filed with the High Court during the twenty-three years since enactment of the Uniform Act, this judgment was filed in the name of someone other than the party in whose name judgment had been rendered. The judgment was accompanied by a letter from John H. Thomas, a La Jolla, California, attorney who wrote on his office letterhead that "I own the accompanying Judgment to be registered with the High Court, and I will be appearing in the case in propria personam." Mr. Thomas also enclosed an "acknowledgment of assignment of judgment" to him from Deborah Parisi, in whose name judgment had been rendered.

It was not clear either to the Clerk or to the Court that a foreign judgment can be registered on any terms other than those on which it was rendered. The substitution of a person other than [10ASR2d108] the named plaintiff would appear to be an important change. Indeed, any interest Mr. Thomas might have would appear to have arisen not from the judgment itself but from the assignment a private contract whose validity has never been tested in any court and which, unlike a judgment, is not entitled to full faith and credit. The Court's immediate reaction, without benefit of briefing or argument by any party, was that the summary process provided in the Uniform Act was probably not available to enforce an assignment. This would not, of course, preclude Mr. Thomas from bringing a civil action to enforce his interest. See A.S.C.A. § 43.1708.

The situation was further complicated by the fact that the judgment in question is a judgment of divorce. It is hard to see how Mr. Thomas can truly "own" Mrs. Parisi's divorce judgment. The one sense in which such a property right could have any meaning was as an assignment of Mrs. Parisi's court-ordered support payments, and an attempted assignment of alimentary rights raises serious questions whether the rights arose from a local or a foreign judgment. Spousal support is awarded for reasons of public policy and is not freely alienable by private contract. See In re Marriage of Higgason, 516 P .2d 289 (Cal. 1973); In re Marriage of Winegard, 278 N .W .2d 505 Iowa 1979); In re Fisher, 153 N .E.2d 832 (Ill. 1958).

Finally, the fact that Mr. Thomas is an attorney not licensed to practice in American Samoa ---and the fact that before the date of the "acknowledgment of assignment" he had written the Clerk on his law office letterhead saying that he planned to register a foreign judgment and had been sent a copy of the High Court rules regarding appearances pro hac vice by outside attorneys--- suggested the possibility that the assignment was a sham transaction designed to evade these rules. The alternative possibility, that Mr. Thomas was a genuine purchaser for value, raised the possibility that in enforcing the proffered assignment the Court might be lending its authority to a contingent fee in a domestic relations case or to some other prohibited business transaction between attorney and client.

The Court was not certain, of course, that any impropriety had occurred. There might have been (and still might be) some reasonable explanation [10ASR2d109] for the peculiarities appearing on the face of the documents that were filed with the Court. If Mr. Thomas had been present in American Samoa or represented by local counsel, the Court would have set the matter for a hearing in order to learn the facts giving rise to the assignment. Instead, after devoting some thought and some study to whether such an assignment could be determined to be enforceable or unenforceable without reference to its underlying circumstances, the Court issued an order directing Mr. Thomas to supply it with certain information. This included the consideration, if any, given by Mr. Thomas; whether Mr. Thomas had represented Mrs. Parisi in the divorce or performed other legal services for her; the connection, if any, between the assignment and such representation; and whether Mrs. Parisi had consulted or been advised to consult separate counsel before entering into the assignment.

Mr. Thomas responded by way of a letter to the judge who had issued the order. In his letter he chided the Court for taking several months to decide what to do about his request; noted that he did not "understand the purpose of [the Court's] questions"; corrected an error in the Court's opinion; and answered all but one of the questions that had been directed to him. He said that he had represented Mrs. Parisi in the divorce action and had secured the assignment as a means of collecting the judgment for her. He did not advise her to seek separate counsel, presumably because the assignment was an incident of his representation rather than a distinct attorney-client business transaction.

Mr .Thomas's response to the Court's question regarding consideration for the assignment was as follows: "I paid no money to Mrs. Parisi for the assignment; I did promise my client to use my best efforts to collect the judgment." This implies, although it does not state, that Mr. Thomas had agreed to pass on to Mrs. Parisi all the money he should collect. Assuming this to be the case (or even on the somewhat likelier assumption that Mr . Thomas intends to deduct a reasonable hourly rate for legal services from any amounts recovered) the Court is satisfied that the assignment does not constitute a prohibited attorney-client business transaction. [10ASR2d110]

This does not, however, resolve the other two questions presented by this action: (1) whether, according to the provisions of the Uniform Act, a contract for the assignment of a foreign judgment is entitled to registration and execution on the same terms as the judgment itself; and (2) whether the attorney for a foreign judgment creditor may take such an assignment and appear pro se, thereby avoiding the rule that attorneys who represent clients before the High Court must first apply and be admitted to practice in American Samoa.

II. Appearance Pro Se by an Assignee for Collection

Our answer to the question of pro se appearances by assignees makes it unnecessary to decide the broader question whether an assignee of a foreign judgment can ever register and enforce the judgment in his own name.

Mr. Thomas enclosed with his letter to the Court a copy of an excerpt from a practice aid and form book for California collection lawyers. The excerpt provides authority for the proposition that, while "[c]ivil actions must be prosecuted in the name of the real party in interest," in California an assignee for collection "is a real party in interest and may recover, even though the assignor retains an interest in the claim. "

The High Court of American Samoa has, however , taken a different view of the status of assignees for collection. This is partly due to the context in which the question has arisen.

The High Court has been faced on a number of occasions over the years with individuals who, although ineligible for admission to the Bar, have set up the functional equivalent of law offices and proceeded to take on clients. Representing themselves variously as free-lance negotiators, private investigators, social workers, collection agencies, "spokesperson[s]," "certified court interpreter[s]," "Citizens' Law Committee[s]," or simply "Samoan High Chief[s]," such persons have undertaken to perform services well within the traditional definition of the practice of law.

The Court has little control over such activities so long as they take place out of court. Frequently, however, our unofficial attorneys have[10ASR2d111] attempted to make court appearances. After being told by the Court that only licensed attorneys can represent other people, the unlicensed advocate generally makes at least one further effort in the guise of a plaintiff or co-plaintiff appearing in his own right. The pro forma assignment of an interest in the subject matter giving rise to the litigation, although by no means the only device by which ersatz lawyers have been recast as simulated plaintiffs, is something of a favorite. See, e.g., Tapuvae v. Lutali, CA No. 88-86; Lam Yuen v. Leomiti, LT 3-87; Pago Pago Collection Agency v. Groves Gas Station, CA 32-88.

The Court's unwillingness to accept such devices at face value derives not from enthusiasm for the concept of a lawyers' guild, but from experience with the unhappy results of amateur barristry. These have included not only artless pleadings and pointless arguments, but also the forfeiture of important substantive and procedural rights through the missing of jurisdictional deadlines or the fatal misconstruction of rules and statutes. Nor is the "client" of the plaintiff-for-hire the only person whose rights may be prejudiced. Certain rights of the opposing party, such as the right to proceed against the plaintiff by way of counterclaim and to require timely and truthful answers to interrogatories and requests for admission, become meaningless if the nominal plaintiff has no personal knowledge of the events on which his claim is based.

At least some of these concerns are presumably absent when the nominal plaintiff has been licensed as a lawyer in another jurisdiction. Even so, the Court and the Territory have legitimate interests in ensuring that every lawyer who represents a client here has first been admitted to practice. A lawyer who wishes to appear only in a single case may apply for admission pro hac vice. Such admission is routinely granted so long as the applicant is an attorney in good standing in another jurisdiction, has never been suspended or disbarred, and has no disciplinary complaints pending against him. The lawyer is required to associate an American Samoa lawyer upon whom process may be served and with whom the Court and the local parties may communicate concerning the case. Admission pro hac vice also submits the attorney to the rules of professional [10ASR2d112] responsibility with which local attorneys are required to comply. See High Court Rule 145.

In the context of a case such as the present one involving many thousands of dollars, the difficulty and expense of admission pro hac vice are negligible. If Mr. Thomas had sought such admission, presenting himself from the outset as Mrs. Parisi's attorney, this proceeding would have been a relatively simple one. By presenting himself instead as a pro se litigant and the "owner" of the Parisi divorce he confronted the Court with a far more difficult case. By making an appearance in the High Court in the course of providing legal services to a client without applying for admission pro hac vice, Mr .Thomas also engaged in the unauthorized practice of law. (1) [10ASR2d113]

Moreover, in order to portray himself as the real party in interest Mr. Thomas apparently found it necessary to engage in an even more serious misrepresentation. In his submission to the High Court Mr .Thomas included an exemplified copy of the May 1986 Parisi divorce judgment, providing in pertinent part that Joseph Parisi is ordered to pay petitioner Deborah Parisi spousal support in the amount of $5,000 per month for two and one-half years, a total of $150,000. It was this judgment, as modified by the assignment to himself, that Mr. Thomas asked the High Court to register and enforce. What he did not tell the Court was that on May 2, 1988, pursuant to a stipulation between Mr. and Mrs. Parisi, the California court had issued a new order substantially modifying the 1986 judgment. Under the new order the total amount of spousal support was $66,774.08 ---less than half the amount of the judgment Mr. Thomas sought to register in the High Court.

After counsel for respondent Joseph Parisi had brought the May 1988 order to our attention, Mr. Thomas responded that he would never have attempted to collect more than was actually owed. This is beside the point. The spousal support provision of the May 1986 judgment, the only part of the judgment that could have been "assigned" to Mr. Parisi, had been supplanted and rendered legally unenforceable by the May 1988 judgment. Unless (as seems most unlikely) Mr. Thomas was somehow unaware of the later judgment, he was asking the High Court to register a judgment whose only enforceable provision he knew to be null and void. If he wished to collect only the amount of the new judgment, the proper course was to register the new judgment. To request registration of the old judgment without informing the Court that it had been modified and substantially annulled appears to have been a deliberate misrepresentation. [10ASR2d114]

III. Respondent's Non-payment of Spousal Support

If there is anything at all to be said for Mr. Thomas's conduct in connection with this case, it is that it may not have been as bad as Mr. Parisi's conduct. In testimony before the Court, Mr. Parisi cheerfully admitted that he had made no spousal support payments. He said his non-payment was on the advice of his California attorney, "because we're still fighting it." Yet he does not deny Mr. Thomas's assertion that he did not file the supersedeas bond required to stay the effectiveness of the judgment pending appeal.

Mr. Parisi also attempted to mislead the Court about his income initially giving evasive answers designed to make petitioner's estimate of $250,000 per year look unrealistic, then admitting when confronted with evidence of his earnings that he made "about $200,000" in 1988.

Finally, Mr. Parisi testified that he had remarried shortly after the divorce became final in 1986. Since he seemed to hesitate before giving his answer, the Court rephrased the question and Mr .Parisi answered again that he had remarried in 1986, just after the divorce. The Court's records reflect, however, that Mr. Parisi contracted a second marriage on September 18, 1985, about nine months before the effective date of his divorce from the first Mrs. Parisi.

IV. Conclusion and Order

Although Mr. Thomas is not entitled to collect anything from Mr. Parisi on his own account, it would appear that Mrs. Parisi is so entitled.

The record reflects that about $50,000 has been collected on a California garnishment of Mr. Parisi's wages. Mr .Parisi testified that the garnishment is ongoing and that it will result in payment of the modified support order no later than April 30, 1989.

We therefore order a stay of further proceedings in this action until April 30, 1989. If at that time there are amounts still owing on the modified support order, or if Mrs. Parisi can show that there are other amounts owing, she may [10ASR2d115] move for an amendment of this action to reflect (1) her status as the judgment creditor and (2) the modification of the 1986 judgment by the 1988 order and any subsequent orders. She may then proceed to enforce the judgment. If she proceeds through Mr. Thomas or another attorney, that attorney shall comply with High Court Rule 145.

In any case, Mr. Thomas is directed to answer forthwith the question directed to him on December 12, 1988, with regard to consideration for the assignment. Specifically, the Court wishes to be sure that it was correct to infer from Mr. Thomas's letter that he had agreed to turn over to Mrs. Parisi the entire sum recovered. If Mr. Thomas agreed to turn over less than all of the money recovered, then he should inform the Court (as he should have done in response to the original inquiry) of the terms of any such agreement. If the agreement or any part of it is in writing, he should provide a copy to the Court.

It is so ordered.

*********

1. See A.S.C.A. § 31.0104; High Court Rule 145. Our opinion on this question does not depend on whether an assignee for collection has standing to sue in his own name. Although most American jurisdictions recognize such standing either by statute or by judicial decision, the courts of these jurisdictions routinely look behind the fiction of "legal ownership" when an assignee for collection attempts to appear in Court pro se or otherwise to circumvent the rules concerning the unauthorized practice of law.

The taking of an assignment [by the defendants, a collection agency]...cannot
possibly change the essential fact that the defendants are rendering legal services
for another for gain. The constitutional provision designed to insure the right of
a party to appear in his own behalf neither authorizes nor protects the practice
of the defendants of rendering legal services to others by adopting the form of
an assignment.

Nelson v. Smith, 154 P.2d 634, 640 (Utah 1944). See also, e.g., J. H. Marshall & Associates v. Burleson, 313 A.2d 587 (D.C. 1973); People v. Securities Discount Corp: , 198 N.E. 681 (Ill. 1935); Bump v. Barnett, 16 N.W.2d 579 (Iowa 1944); Bay County Bar Association v. Finance System. Inc., 76 N.W.2d 23 (Mich. 1956); State v. C.S. Dudley & Co., 102 S.W.2d 895 (Mo.), cert. den., 302 U.S. 693 (1937); State ex rel. State Bar of Wisconsin v. Bonded Collections. Inc., 154 N.W.2d 250 (Wis. 1967).

Suluvale v. Suluvale,


ALOFOE SULUVALE, Petitioner

v.

PULOTU SULUVALE, Respondent

High Court of American Samoa
Trial Division

DR No. 53-88

February 14,1989

__________

Spouse who did not tell her spouse about a pending criminal prosecution against her, denied it when he asked her about it, and perpetuated the lie to the evident despondency of the other spouse, was guilty of "ill usage" within meaning of divorce statute. A.S.C.A. § 42.0202(2).

"Habitual cruelty or ill usage" as ground for divorce is not equivalent to "irreconcilable differences," "incompatibility," or other "no fault" grounds for divorce, but requires a finding of fault. A.S.C.A. § 42.0202(2).

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and OLO, Associate Judge.

Counsel: For Petitioner, Togiola T.A. Tulafono

For Respondent, Charles Ala'ilima

Petitioner seeks a divorce from respondent on the grounds of habitual cruelty and ill usage. The parties have been separated for some 17 months after petitioner left respondent. Petitioner's reasons for leaving stemmed from his wife's rather [10ASR2d29] foolish attempts to hide from him her being prosecuted for embezzlement. After the embarrassment and total surprise of learning about the prosecution from a co-worker (whose husband had supplied bail money to respondent), petitioner confronted respondent on the matter. The latter denied that anything had happened and in fact berated petitioner for listening to gossip from others.

Petitioner said he was again surprised with public humiliation on the matter of prosecution at a time when he and his wife were about to depart on a tour off-island with their church choir. He again learned at the airport from others that immigration authorities would not clear his wife for departure from the jurisdiction because of a pending criminal matter. According to petitioner , he was not only embarrassed, being the conductor of the choir, but again extremely upset with respondent's continuing attempts to suppress the truth and hide matters from him. Petitioner also learned that respondent eventually managed to get permission to leave, with the assistance of some relative who intervened on her behalf, all without any word to him.

It was shortly thereafter that petitioner decided to leave the marital home. He felt he could not further trust respondent and while greatly embarrassed with the whole affair, his wife persisted with her stance towards him. He testified that it has bothered him greatly to find out that the woman he believed he had married turned out to be a different person; that his work performance had been affected; and basically he viewed the continuance of marriage as hopeless.

Respondent's reaction on the other hand was remarkable. She feels that the parties can still work things out, yet she continues to fault her husband for making a big issue over nothing by taking the word of third parties over hers. This is notwithstanding the fact that she did indeed face prosecution, although she settled the matter with the government. Respondent's notion of trust simply belies us. She inexplicably elects to continue the charade with petitioner and obviously is blind to the possibility that perhaps petitioner's attitude towards the marriage might change if she faced up to him with the truth. [10ASR2d30]

In our opinion, the ground for "ill usage" as the same is discussed in Lea' e v. Lea' e. 3 A.S.R. 2d 51 (1986), has been established on the evidence. It is one thing to lie but quite another thing to senselessly perpetuate that lie to the other party's obvious and continuing despondency.

We have gone at length to discuss the facts giving rise to our conclusion and having done so, we specifically reject submission by petitioner's counsel to the effect that "habitual cruelty and ill usage" are grounds tantamount to the "no fault" notions of "irreconcilable differences" or "incompatibility" which allow divorce in other jurisdictions. We are a jurisdiction that still requires divorce to be based on "fault" (1) and fault we have found herein.

The facts also show that there is one minor child of the marriage whom petitioner has largely disregarded, in terms of support, after the parties separated. Petitioner does not seek custody of the child who has remained with respondent. The latter seeks support for the minor in the sum of $200 per month. Petitioner, however, asks the Court to consider a figure between $40 to $50 a month because of the debts which he currently carries.

Petitioner earns an annual salary of $17,700. We find that much of the indebtedness which he claims, arises from the fact that since separation, petitioner has discarded the modest marital vehicle and has treated himself to a vehicle requiring $12,000 in financing. While petitioner gets to ride to work in his brand new vehicle, his daughter is no longer driven to school as she was once accustomed. It is quite apparent to us that when petitioner decided that the marriage was over, he also appears to have treated himself as relieved of his parental obligations, not only by being inattentive to the support needs of his child, but by readjusting his budget which seems to figure no- one else but himself. That budget needs readjustment again to comport with petitioner's legal obligations to the minor child.

On the evidence before us, the Court awards custody to respondent with reasonable visitation [10ASR2d31] rights to the petitioner. The Court further concludes on the minor's behalf that a reasonable sum of support is $300 per month, the payment of which will be suspended for the first three (3) months to permit petitioner to reorder his affairs. In the interim initial quarter, support in the sum of $200 per month shall be payable. Such support shall be payable through the office of the Clerk and disbursed accordingly to the respondent for the minor's use.

Accordingly, a decree will enter granting petitioner a divorce from respondent. Custody of the parties' minor child is awarded to respondent with reasonable visitation rights to petitioner . Child support is awarded as follows: the sum of $200 per month shall be payable by petitioner for the first three (3) months ensuing this order; and thereafter $300 per month.

It is so Ordered.

*********

1. See discussion in West v. West 5 A.S.R. 2d 88 (1987).

Uliata; Moi v.


 

MOEA'I UILIATA, Appellant

 

v.

 

ALAI'A FILIFILI, SI'UFANUA AlTU, and
TUIA'ANA MOI, Appellees

 

TUIA'ANA MOl, Appellant

 

v.

 

MOEA'I UILIATA, Appellee

 

High Court of American Samoa
Appellate Division

 

[10ASR2d104]

 

AP No.35-88
AP No.37-88

 

March 13, 1989

 

__________

 

Appellant who ordered production of a trial transcript and later attempted to countermand the order would be required to pay pro rata share of the cost of producing the transcript, where (1) another appellant had requested an estimate of the cost of a transcript; (2) court reporter, in reliance on first appellant's order for a transcript, had served both appellants with an estimate that assessed half the cost against each appellant; (3) second appellant had then ordered a transcript within the ten-day period prescribed by appellate court rule for parties to decide what parts of the transcript would be necessary; (4) first appellant's countermand of his order took place well after the expiration of the ten-day period. Appellate Court Rule 10(b)(1).

 

Before KRUSE, Chief Justice.

 

Counsel: For Moea'i, Togiola T.A. Tulafono
For Tuia'ana, Albert Mailo

 

Order for Payment of Estimated Cost of Transcript:

 

On December 16, 1988, Moea' i filed his notice of appeal from the judgment of the Land and Titles Division and requested an estimate of the cost of a transcript.

 

On December 20, 1988, Tuia'ana filed his notice of appeal from the same judgment. The notice stated that Tuia'ana "further requests a transcript and record of the trial."

 

On December 23, 1988, the court reporter served a notice of the estimated cost of a transcript on counsel for both parties. The estimated cost was $1507.50, or $753.75 per party.

 

Appellate Court Rule 10(b)(1) provides in pertinent part that

 

[w]ithin 10 days after receiving the reporter's or clerk's
estimate the [10ASR2d105] appellant shall order from
the reporter a transcript of such parts of the proceedings
not already on file as he deems necessary. The order
shall be in writing and within the same period a copy
shall be filed with the clerk of court and served on the
appellee.

 

Appellate Court Rule 10(b)(4) requires that "[a]t the time of ordering, a party must deposit an amount of cash equal to the estimated cost with the reporter." The rule also requires that the party file with the clerk a copy of the reporter's receipt.

 

In the course of a routine inquiry into the status of pending appeals, the Court has learned that Moea'i did not deposit the estimated cost with the reporter until January 27, 1989, and that Tuia'ana has not deposited anything to date. Moreover, the court reporters have informed the Court that counsel for Tuia'ana has informed them orally that he now wishes to order only part of the transcript. The court reporter to whom counsel communicated this information says that it came during a chance encounter with counsel later on the same day (January 27) that Moea'i had paid for his half of the transcript.

 

The revised request for a partial transcript would appear to violate Rule 10 in several respects: it was not made in writing, was not served on the Clerk or opposing counsel, and was made well after the expiration of the ten-day period provided in the Rule.

 

By countermanding his original order for the entire transcript, counsel for Tuia'ana would increase the amount that Moea'i would have to pay. If such a change had been made in writing within the ten-day period specified in Rule 10 for ordering the transcript, it would not represent an imposition on the opposing party. After the expiration of this period, however, Tuia'ana was bound by his counsel's earlier order for transcript and record of the trial." Moea'i therefore ordered the transcript in the expectation that he would be required to pay only half the cost. Since counsel for Tuia'ana failed to countermand his original order until after the expiration of the deadline for deciding what parts [10ASR2d106] of the transcript would be necessary, Moea'i was entitled to rely on the original order.

 

Counsel for Tuia'ana is directed to deposit $753.50 with the court reporter no later than 4:00 p.m. on Friday, March 17, 1989.

 

It is so ordered.

 

*********

 

Lutu; Mauga v.


MAUGA FESAGAIGA and TIUMALU
SIA SCANLAN, Plaintiffs

v.

LUTU TENARI and PRESIDENT OF
THE SENATE, Defendants

High Court of American Samoa
Trial Division

CA No. 3-89

March 14, 1989

__________

Where a motion to dismiss for failure to state a claim upon which relief may be granted presents matters which are outside the pleadings, the court will treat the motion as one for summary judgment. T.C.R.C.P. Rule 12(b).

Political question doctrine bars judicial consideration of an issue where there has been a [10ASR2d116] textually demonstrable constitutional commitment of power to decide the issue to a coordinate branch of government.

Provision of territorial constitution that the legislature shall judge elections of its members presumes that an election has been held, and therefore does not define the factual question whether the required election ever occurred give rise to as a political question preventing judicial intervention. Rev. Const. Am. Samoa art. II § 22.

Provision of territorial constitution that county council elect senators to represent the county does not permit election of senators by village councils of certain villages within the county, or by a single member of the county council, or by the senate itself; these bodies may recommend or endorse a particular candidate, but the final decision must rest with the county council itself. Rev. Const. Am. Samoa art. II § 4.

Provision of territorial constitution that county council elect senators in accordance with Samoan custom means that the council is to use the traditional Samoan manner of decision making as it existed at the time the provision was adopted. Rev. Const. Am. Samoa art. II § 4.

Court will not lay down a rule prescribing the exact method or custom a county council must use to elect a senator in accordance with Samoan custom, especially as custom may vary in different counties. Rev. Const. Am. Samoa art. II § 4.

Provision of territorial constitution that county council elect senators in accordance with Samoan custom does not include power to delegate the decision completely to a subdivision of the county, since this would allow a new custom, habit, or practice to repeal explicit and unambiguous constitutional provisions. Rev. Const. Am. Samoa art. II § 4.

Defendant was entitled to summary judgment plaintiff's claim that she had been duly elected to the senate about four years before the commencement of the term for which she claimed to have been elected. Rev. Const. Am. Samoa art. II § 4, 6.

Cumulative effect of two territorial constitutional provisions, one requiring election of senators by [10ASR2d117] county councils and the other providing that each senator shall hold office for four years, is to require that an election be held once every four years by the county council as it is then constituted; since the membership of the county council changes over time, no one particular council can be permitted to lock senatorial selection into the future by selecting any number of senators to serve during subsequent terms. Rev. Const. Am. Samoa art. II §§ 4, 6.

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

Counsel: For Plaintiffs, Charles Ala'ilima
For Defendants, Edwin Gurr

On Motion for Summary Judgment:

Pursuant to Trial Court Rules of Civil Procedure Rule 12(b)(6), defendants move to dismiss plaintiffs' complaint for failure to state a claim upon which relief may be granted. The moving papers are supplemented by affidavits averring to matters outside the complaint and essentially seeking a summary adjudication on the merits. In these circumstances, we treat the motion as one for summary judgment pursuant to T.C.R.C.P. Rule 56. T.C.R.C.P. Rule 12(b).

For reasons given the motion will be denied in part and granted in part.

Defendants contend that judicial resolution of this case is inappropriate because of the "political question" doctrine. As here concerns us, that doctrine bars our consideration of a case where there is a "textually demonstrable constitutional commitment of [an] issue to a coordinate political department." Baker v. Carr, 369 U.S. 186, 217 (1962). Defendants maintain that the constitutional provision empowering each house of the Legislature to "be the judge of the elections, returns, and qualifications of its own members" creates the requisite "textually demonstrable constitutional commitment" to make the Senate's seating of defendant Lutu unreviewable. Rev. Const. Am. Samoa. art. II, § 22. This grant of power to the Senate to judge elections presupposes that an election has in fact been held.[10ASR2d118] As explained below, there is a factual issue over whether the election required by the Constitution ever occurred. Until such an election takes place, there is simply nothing for the Senate to judge, and. therefore no "political question" preventing our intervention in the matter. (1)

A motion for summary judgment will fail when there remains a factual issue for determination. Here there is such an issue ---whether defendant Lutu has in fact been elected by the county as one of the three senators provided for the County of Maoputasi in accordance with the provisions of Article II, section 4 of the Revised Constitution of American Samoa. (2)

The affidavits in support of the motion are not altogether clear that the county had in fact elected defendant Lutu. Although Senate Credentials Committee Chairman Tagaloa M. Tuiolosega's affidavit refers to Lutu as having been "certified from Maoputasi," the affidavit also states that Lutu had been selected by a meeting only of the villages of Fagatogo, Utulei, and Fagaalu. The Chairman also deposed that these villages "was [sic] allotted one of the three senators [provided to the Maoputasi County]," again implying that the election decision was made by other than the entire county council.

Maoputasi County consists of the villages of Fatumafuti, Fagaalu, Utulei, Fagatogo, Pago Pago, Satala, Atuu, Lepua, Leloaloa, and Aua. (3) It may [10ASR2d119] well be that the Maoputasi County Council has recurringly alloted its three senatorial seats in the manner suggested by Chairman Tagaloa. But as properly stressed in Meredith v. Mola, the ultimate election of the senator must come from the county council as a whole deliberative body and not from the council of a sub-division of that county. 4 A.S.R. 773, 780-81 (1973). Accordingly, under the Constitution, the Fagatogo, Fagaalu, and Utulei village councils sitting as a body cannot on their own elect a senator. At best they may recommend or endorse a particular candidate which in the final analysis must somehow be given the stamp of approval, so to speak, by the greater Maoputasi County Council, whether that be by ratification or confirmation or some other process where it may be clearly understood that the final decision in the election of a senator rested in the Maoputasi County Council.

In addressing the provisions of Article ll, section 4, Meredith v. Mola also held that election by the county clearly does not mean that the Senate elects a senator when the county cannot do so, nor does election by the county mean the appointment of a senator by one individual of the council.

On the strength of the affidavits before us, it is unclear whether the greater Maoputasi County Council has indeed given its seal of approval to the selection made by the village councils of Fagatogo, Fagaalu, and Utulei. Certainly, an important member of that greater county council, namely Mauga, is contesting such a selection of defendant Lutu by his bringing this action in the first place.

We add that the otherwise straight forward exercise of interpreting the relevant provisions of the Constitution has been unnecessarily made complicated by the parties' incursion into "custom." When Article ll, section 4 talks in terms of the election of senators "in accordance with Samoan custom by the county councils of the counties they are to represent" (emphasis added), it is addressing the traditional Samoan manner of decision making as it existed at the time this constitutional provision was adopted. There is nothing abstruse nor esoteric about this constitutional directive. As then Acting Chief Justice Jochimsen observed in the case of Faiivae v. Mola, 4 A.S.R. 834, 836 (1975): [10ASR2d120]

The people of.... the County are fully aware of the Samoan custom
in the matter of these kinds of [senatorial] selections. This Court will
not lay down a rule as to exactly how a county council must decide
upon the person it selects to be a Senator, especially as there may be
variations on the methods and procedures employed in the different
villages and counties.

While it makes for interesting reading to be briefed on the "consensual" basis of customary decision making, this Court is very confident that the Maoputasi County Council knows exactly what the Constitution expects of it in the matter of selecting a senator or senators in accordance with its customary decision-making process. At the same time, the contention by defendants that the customary decision-making process, as spoken of in the Constitution, includes an ability in the county to delegate completely that decision making to a mere sub-division of the county is simply untenable. The logical consequence of such an argument is that a new custom ---nay even a bad habit or ill conceived practice ---inconsistent with the requirements of the Constitution, will have the practical ability of repealing explicit and unambiguous provisions of the Constitution. Even the legislature in its normal legislative process is unable to repeal or amend the Constitution. To sanction therefore the proposition that the term "Maoputasi County, " as the same appears in the Constitution, means its lesser included constituent the "Fagatogo, Fagaalu, and Utulei village councils, " in the alleged name of Samoan custom, is to make mockery of Constitution.

Finally, in our reading of Article n, section 4, we grant summary judgment against plaintiffs' contention that candidate Tiumalu was duly elected senator by the Maoputasi County Council in early 1985 for the 4 year term commencing in January 1989. Plaintiffs argue that in the selection of a senator for the 4 year term commencing 1985, the Fagatogo/Fagaalu Village Council did not reach an agreement on who was to be senator and that the matter was therefore referred to the greater Maoputasi County Council. Plaintiffs allege that when the greater council considered this dispute, [10ASR2d121] it was resolved by the council that defendant Lutu would be selected senator for the term commencing 1985 and that plaintiff Tiumalu would be seated as senator for the term commencing 1989. Even accepting the facts as stated by plaintiffs, the argument advanced cannot be the basis for any relief for the simple reason that it admits the possibility that anyone council, for the time being composed, may select for the future any number of senators. The Constitution provides that "[e]ach senator shall hold office for a term of 4 years," Rev. Const. Am. Samoa, art. II § 6, and, as above discussed, the Constitution also provides that a senator is to be elected by his county council. In our view the cumulative effect of that election provision and section 6 is the logical requirement that the election process should occur every 4 years or subsequent to a sooner lapse of tenure. Further, a county council's composition is not static and its membership changes from time to time like any other organizational body and therefore no one particular county council should be permitted to lock senatorial selections into the future. This ability in the name of custom is as inconsistent with the Constitution as that suggestion above discussed regarding the complete delegation of the election process to a mere constituent body of the county council.

The motion is denied.

It is so Ordered.

*********

1. Having said as much, we also reject defendants' arguments to the effect that the Court is without subject matter jurisdiction. See Meredith v. Mola, 4 A.S.R. 773, 776-77 (1973) (citing Baker v. Carr, 369 U.S. 186 (1962); Powell v. McCormack, 395 U.S. 486 (1969).

2. This provision reads: "Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent, the number of senators from a county or counties to be as indicated.... Ma'uputasi [sic], three senators."

3. See Rev. Const. Am. Samoa art. II, § 2; A.S.C.A. § 5.0102.

Leota v. Sese,


MISI PELE LEOTA and TAGllLIMA LEOTA. Appellants

v.

LOLANI SESE, MEAFOU SESE, SUA SCHUSTER,
STARR SCHUSTER, and ESTATE OF ALEKI NOA, Appellees

High Court of American Samoa
Appellate Division

AP No. 1-89

March 29. 1989

__________

Motion to enlarge the time prescribed by appellate court rules in which to file brief must be served on all other parties to the appeal. Appellate Court Rules 27.31.

Motion filed without service on all other parties as required by appellate court rule would ordinarily be denied without prejudice to the right of moving party to file a new motion in compliance with the rule. Appellate Court Rule 27. [10ASR2d156]

Where ex parte motion to enlarge time was filed so late that a new motion with service on other parties could probably not be timely filed, a single judge hearing this motion to enlarge time would provisionally extend the time period subject to the rights of other parties to move for reconsideration of the extension and to review by the full appellate court. Appellate Court Rules 27, 31.

Before REES, Associate Justice.

Counsel: For Appellants, Togiola T.A. Tulafono
For Appellees, Asaua Fuimaono

On Ex parte Motion for Extension of Time to File Brief:

This ex parte motion for an extension of time to file appellants' brief was filed on he afternoon of March 28, 1988. This was on day before the expiration of the 40-day period provided by Appellate Court Rule 31 for the filing of appellants' brief.

Appellate Court Rule 27(a) provides that motions shall be filed "with proof of service on all other parties." Although Rule 27(b) provides that the Appellate Division or a judge thereof may rule on motions for enlargement of time without waiting for a response from the other parties, it does not permit that moving party to dispense with notice to the other parties. This ex parte motion therefore does not permit the moving party to dispense with notice to the other parties. This ex parte motion therefore does not comply with the Appellate Court Rules.

Nor does the motion comply with the usual practice among attorneys appearing before the High Court. Some appellate and trial court rules have been habitually disregarded by attorneys, but this is not one of them. The usual practice is to request opposing counsel to stipulate to an enlargement of time. Counsel for the appellants in the present cause does not inform the Court whether such a stipulation has been requested. Nor does he offer any other explanation for his failure to serve opposing counsel with notice of the motion.

Ordinarily the Court would deny the motion without prejudice to the right of counsel to file a [10ASR2d157] new motion that complies with the rules. It is now, however, about 1:00 in the afternoon of March 29. If this motion is denied it is most unlikely that counsel will file a corrected one by the 4:00 p.m. deadline. A motion filed after the deadline might well be untimely. Cf. Trial Court Rule of Civil Procedure 6(b).

Accordingly, the Court will provisionally extend the time for filing appellants' brief until April 10, 1988. This order is without prejudice to the right of appellees to move for reconsideration, vacation, or modification of the extension in accordance with Appellate Court Rule 27(b), and/or for dismissal in accordance with Rule 31(c).

This order is also subject to review by the full Appellate Division on the next occasion on which a panel should be assembled. Appellate Court Rule 27(c). If the full Appellate Division decides that the extension was improvidently granted, it may dismiss the appeal or impose some lesser sanction. See Appellate Court Rule 31(c).

The judge signing this order, while expressing his strong disapproval of ex parte filings except where specifically authorized by law or compelled by extraordinary circumstances, expresses no opinion on whether dismissal or any other sanction is appropriate in this case. The provisional extension is granted only because it seems the best way to preserve the power of the full Appellate Division to consider the issue in light of whatever facts and arguments either party might wish to raise.

It is so ordered.

*********

Langford v. Hawaiian Airlines, Inc.,


AMERICAN SAMOA GOVERNMENT ex rel. 
JERRY LANGFORD, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

High Court of American Samoa 
Trial Division

CA No. 37-88

January 5, 1989

__________

Territorial government whose consumer protection agency brought action in a representative capacity on behalf of a named individual, and which was not named as a plaintiff in its own right, could not recover damages in the consumer protection action for the loss of its own property. A.S.C.A. § 27.0402.

Mere possibility that plaintiff's employer may hold him financially responsible for loss of employer's property by defendant airline does not entitle plaintiff to recover damages for such loss.

Rules of liability established by the Warsaw apply to "international transportation," to air transportation between one country and another. Warsaw Convention, art. 1(2).

In order to effectuate its drafters' intent to foster international air transportation by creating uniform rules of liability, the Warsaw Convention should be read to create its own cause of action for loss of baggage, so that whether particular damage occasioned by loss of baggage is compensable depends on construction of the Convention and not on internal law of signatory countries. Warsaw Convention art. 18(1).

Provision of the Warsaw Convention creating liability for "damage sustained by" loss of baggage, and containing no language limiting the amount of recovery to the value of the lost baggage or to "foreseeable" damages, should be construed to [10ASR2d2] allow recovery of consequential damages occasioned by loss of baggage. Warsaw Convention art. 18(1).

Under provision of the Warsaw Convention which, unlike the common law, allows recovery of consequential damages whether or not they were foreseeable, passenger's purchase of a battery pack for use during his trip to replace one lost by defendant airline constitutes compensable damage even though the lost battery pack belonged to plaintiff's employer and not to plaintiff. Warsaw Convention art. 18(1).

Terms of air carriage contract which were inconsistent with Warsaw Convention were void, because the contract itself so provided and also because treaty obligations are the supreme law of the land and therefore supersede private contracts. U .8. Const. art. VI.

Airline's disclaimer of liability for "valuable items" such as video equipment is unenforceable in light of Warsaw Convention clause that nullifies contractual provisions "tending to relieve the carrier of liability or to fix a lower limit" than that allowed by the Convention. Warsaw Convention art. 23.

Warsaw Convention limits liability for lost baggage to $9.07 per pound. Warsaw Convention art. 22(4).

Under Warsaw Convention where carrier's liability for lost baggage depends on weight, defendant airline has the burden of proving weight of the lost bag, and in the absence of such proof court will assume the bag weighed seventy pounds, the maximum amount the contract allowed passenger to carry in one bag.

Before KRU8E, Chief Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Plaintiff, Tauivi Tuinei

For Defendant, Charles Ala'lima

On July 27, 1987, Jerry Langford flew from Tongatapu, Tonga to Honolulu, Hawaii on Hawaiian Airlines. One piece of baggage checked with the airline never arrived in Honolulu. The lost metal box contained both some personal effects of [10ASR2d3] Langford's and television equipment which conceded by Langford to have belonged to employer, the American Samoa Government. District Court found that plaintiff Langford had suffered $80 in damages for lost clothing and awarded the American Samoa Government (hereinafter referred to as "A.S.G.") $1366.00 in damages for the lost equipment. Pursuant to A.S.C.A § 3.0309, Hawaiian appealed to the Trial Division of the High Court by way of trial de novo.

The most important issues as they developed at trial were: (1) whether plaintiff Langford was entitled to recover damages consequential in nature; and (2) the measure of such damages.

Our main problem wi th giving relief similar to the relief decreed in the court below is that the television equipment was simply not Langford's and A.S.G. is not before the Court. The District Court characterized the A.S.G. as a "plaintiff" in its own right and awarded the A.S.G. the lion's share of the damages. Findings of Fact, Conclusions of Law, and Order , American Samoa Government ex rel Langford v. Hawaiian Airlines, CA No. 58-87 (District Court March 2, 1988). However, the complaint in that case does not indicate that A.S.G. was a plaintiff. Moreover, the complaint sets out the basis of the suit as the right of the Director of the Bureau of Consumer Protection to bring suit on behalf of individuals. A.S.C.A. § 27.0402. As a non-party, the A.S.G. may not be allowed to recover directly.

It was tenuously suggested that Langford ought to be able to recover the full value of the lost case. His supervisor stated something on the order of: "If we do not recover during this trial, we will be looking to someone to reimburse us for the lost equipment." We doubt that statement alone would suffice to show that Langford will have suffered damages equal to the full value of the case. After all, no one has forced him to pay over the value of the lost equipment and it is doubtful that an independent suit by the A.S.G. could find Langford liable for the loss.

Langford, however, testified that he spent $395.00 of his own funds in Guam to replace one of the lost items, a battery pack, in order that he could do the filming which was the whole purpose of his travel to Guam. Langford now holds the battery [10ASR2d4] pack, although it is of no personal use to him, in the hopes of reimbursement. Hawaiian has denied liability, while his employer, A.S.G., on the other hand chose not to entertain reimbursement expecting that Hawaiian should be responsible. We feel that in these circumstances Langford has been damaged to a greater degree than the $80.00 for lost personal effects ---he is out of pocket of $395.00 because his baggage did not arrive with him in Guam.

Hawaiian defended Langford's claim on basis that its contract had disclaimed liability for "valuable items including but not limited to . ..electronic equipment. ..[and] photographic, video and optical equipment" and that the television components here fell within this exclusion of liability. Rule 26 (B) (2), Terms of Contract of Carriage, at 49 (April 9, 1987).

Discussion

There is no real question that the Warsaw Convention (1) is applicable to this case. The Convention applies to "international transportation." Warsaw Convention, art. 1(2). Here, Langford traveled between two countries which have signed the Convention ---Tonga and the United States. Thus, whether Langford's expenditure of $395.00 is compensable depends on the construction of the Convention.

The Convention provides that "[t]he carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage." Warsaw Convention, art. 18(1). (2) [10ASR2d5]

Courts interpreting this provision and the analogous clause creating liability for personal injury or death have reached two different results. (3) Some courts have said that the clause does not itself create a cause of action. So, the definition of what is "damage" compensable under article 18 would be left up to the internal law of the court hearing the suit. See, e.g., Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied 355 U.S. 907 (1957). More recently, some federal circuit courts have reversed their previous opinions and have construed the language of the clause to create a cause of action, see. e.g., In re Mexico City Aircrash of October 31, 1979, 708 F .2d 400, 415 (9th Cir .1983); Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), cert. denied 439 U.S. 1114 (1979), and have held that the meaning of what is "damage" is controlled by construction of the Convention.

From our analysis of the cases, it is the Court's view that the interpretation provided by the latter line of authority suggests the more logical and natural result of the Convention. Among the reasons given by the more recent cases to sustain the view that the Convention establishes a cause of action, was the apparent and primary concern among the delegates to create and formulate a uniform law relating to the regulation of international air carriage. The court in Benjamins pointed out that making a plaintiff's rights under the Convention dependent on the prior question whether the domestic law of a signatory provided him a cause of action was inconsistent with the spirit of the Convention. The policy of uniformity can only be best effectuated by interpreting the Convention as establishing causes of action independent of local law. The cases further go on to consider in context a number of the Convention's provisions as well as conference minutes as clearly establishing the intendment of universal regulation. As a result the Ninth Circuit in In re Mexico City Aircrash concluded that article 17 of[10ASR2d6] the Convention established a wrongful death cause of action independent of the provisions of California law. Accordingly, this Court shall be guided by the terms of the Convention in determining what damages and the amount of damages plaintiff may recover.

Under the interpretation of cases such as Benjamins the Convention creates liability "for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage." Warsaw Convention, art. 18(1) (emphasis added). In construing this clause to determine what "damages" are recoverable, it is instructive to note that were the sentence meant to exclude "consequential" damages, it could more simply have been phrased in terms of the "value of the lost, destroyed, or damaged merchandise." At least one court has held that consequential damages are recoverable under this article. Saiyed v. Transmediterranean Airways, 509 F. Supp. 1167, 1169 (W .D. Mich. 1981). Also, the scheme of the Convention would make little sense if one were not able to recover consequential damages. Article 19 provides that airlines "shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." Warsaw Convention, art. 19. The major types of damages one might have due to delay are consequential in nature ---having to do without goods, fallen market prices, replacement in the interim, etc. It would make little sense if one could recover consequential damages for the delay of baggage but not for its destruction. 

Finally, it is to be noted that the common law requirement of "foreseeability" of consequential damage under the rule of Hadley v. Baxendale, 9 Exch. 341 (1854), is not applicable under the Convention. The rule of Hadley v. Baxendale on consequential damages results in an allocation of economic risks. The common law limited the type of damages available to those foreseen by the parties when contracting. The Convention, on the other hand, while allowing recovery of consequential damages, allocates risk in a different fashion. Instead of limiting the type of damages recoverable, it imposes a ceiling on the amount of provable damages one may recover and thus seeks to secure reasonable rates of carriage within the industry given, potential risk. Saiyed, 509 F. Supp. at 1169. Otherwise, "[t]he alternative would result in recovery of different elements of damage[10ASR2d7] depending upon the country in which the action for breach was instituted and uniformity could soon be lost." Id.

On the facts herein, Langford traveled to Guam to film and document an event, a meeting of the Pacific Post Secondary Education Council. He was not able to do so without the missing battery pack and given the exigencies of his situation he accordingly purchased with his own funds a battery pack in order to do the filming that took him all the way to Guam in the first place. In the ordinary course of things, Langford had expected his checked baggage, and hence the missing battery pack, to be available to him upon his arrival in Guam. As things turned out, he had to spend money, which he would otherwise have not, had his baggage not gone astray.

We conclude that Langford's need to acquire the battery with his own funds, constituted damage within the provisions of article 18(1) of the Convention.

We next consider the impact of Hawaiian's contractual disclaimer .

The Convention provides that" [a]ny provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this convention shall be null and void." Warsaw Convention, art. 23. The exclusion asserted here by Hawaiian must be viewed as one "tending to relieve the carrier of liability" since the contractual term attempts to exclude from liability such a large class of goods ---"valuable items"-- -which the Convention itself never mentions as items which are excludable. Instead, the Convention speaks in the near-absolute terms we noted above ---the carrier "shall be liable for damage."

Further any terms of contract which are inconsistent with the terms of the Convention are void for of two reasons: first, the contract explicitly states that any contractual provision "which is inconsistent with any provision of the said [Warsaw] Convention shall, to that extent, but only to that extent, be inapplicable to international transportation." Rule l(B), Terms of Contract of Carriage, at 5 (October 30, 1983). Also, the Convention is a treaty obligation of the [10ASR2d8] United States. It is thus the supreme law of the land, U .S. Const. art. VI, and supersedes both state laws, In re Aircrash in Bali. Indonesia on April 22, 1974, 684 F.2d 1301, 1309 (9th Cir. 1982), and private contractual terms.

In the Saiyed case, the contract of carriage had disclaimed liability for consequential damages. The plaintiff's shipment of goods was delayed and damaged when it arrived in Pakistan and the plaintiff sought damages for his lost profits and injury to his credit rating. Saiyed, at 1168. The court held that the contractual provision violated article 23 because it "tends to relieve the carrier of liability for damages which would otherwise be recoverable under the Convention." Id. at 1169. Similar reasoning would invalidate the electronic equipment exclusion. More closely analogous on its facts is Schedlmayer v. Trans International Airlines, 99 Misc. 2d 478, 416 N.Y.S.2d 461 (1979). The court in Schedlmayer found unenforceable an airline tariff disclaiming responsibility for cash in passengers' baggage. The court held that to allow such a tariff to stand would be tantamount to allowing the airline to relieve itself of liability beyond the extent permitted by the Convention and thus contravene article 23. Id.., 416 N.Y.S. 2d at 464.

Finally we look to the carrier's limits of liability under the Convention.

The Convention limits a plaintiff to recovering $9.07 a pound in damages for lost, delayed, or damaged baggage. (4) Neither party proved the weight of the bag. However, it would seem that the burden is on Hawaiian to demonstrate how much the bag weighed. See DeMarines v. KLM Roval Dutch Airlines, 433 F .Supp. 1047, 1061 (E.D. Pa. 1977), rev'd on other grounds 580 F.2d 1193 (3d Cir. 1978) (the airline must prove delivery of ticket to claim limitation of liability for personal injuries or [10ASR2d9] death). Having failed to do so, it is reasonable to assume that the bag weighed up to 70 pounds--- the most weight which Hawaiian's contract purports to authorize the passenger to carry in one bag. Rule 24 (A), Terms of Contract of Carriage, at 46 (June 24, 1986). If we assume this, Langford's maximum recovery of $475.00 ($80.00 in clothing plus $395.00 for the replacement battery pack) is well below the $634.90 ceiling under the Convention.

For the foregoing reasons, plaintiff Langford shall have judgment against defendant Hawaiian Airlines for the sum of $475.00. It is also decreed that the battery pack in question held by Langford shall be delivered to, and disposed of by, defendant Hawaiian Airlines in mitigation of damages.

It is so Ordered.

*********

1. Multilateral Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature Oct. 12, 1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, T.S. No.876 (reprinted as note to 49 U.S.C.A. § 1502).

2. The Convention allows a carrier to escape liability by demonstrating that it had taken all necessary measures to avoid damage or by showing that the passenger contributed to his damage. Warsaw Convention, arts. 20, 21. Hawaiian has not attempted to make any such showing.

3. Although the cases to be cited in this paragraph deal primarily with questions of jurisdiction and whether a plaintiff in a Warsaw Convention case needs to meet independent jurisdictional requirements of diversity cases, the principles they discuss apply to the question discussed as well.

4. The Convention limits liability to a certain amount of gold per kilogram. Warsaw Convention, art. 22(4). The figure of $9.07 per pound derives from the last "official" price for gold before gold prices became set on the free market. Trans World Airlines. Inc. v. Franklin Mint Corn., 466 U.S. 243 (1984).

Kane v. Country Comfort,


JOHN KANE, Plaintiff

v.

COUNTRY COMFORT, SAMOA PACIFIC
ENTERPRISES, and RANDY FORCHT, Defendants

High Court of American Samoa 
Trial Division

CA No. 40-85

January 19, 1989

__________

Where plaintiff's counsel had been ordered to amend his pleading, did not do so for a period of two years, and did not answer letters from opposing counsel respecting the failure to amend, court would not dismiss the action for failure of diligent prosecution, but would assess against plaintiff's counsel an award to opposing parties of the fees incurred in connection with the motion to dismiss, and would impose deadlines within which plaintiff must complete discovery and move to set a trial date.

Before REES, Associate Justice.

Counsel: For Plaintiff, Asaua Fuimaono
For Defendant Traditional Medicinals [10ASR2d17] (Country Comfort), 
Roy J.D. Hall Jr. 
For Defendants Forcht and Samoa Pacific Enterprises John Ward

On Motion to Dismiss:

Defendants move to dismiss this action for failure of diligent prosecution. They allege (1) that in September 1986 counsel for plaintiff was ordered to amend his pleading to join another defendant; (2) that in April 1987 counsel for defendant Country Comfort wrote to counsel for plaintiffs noting that he had not amended the pleading and suggesting the action be dismissed; (3) that in July 1987 counsel for defendant Country Comfort again wrote counsel for plaintiffs requesting a reply to his earlier letter; (4) that no reply was ever received to either letter; (5) that aside from one unproductive deposition later in 1987, nothing has been done on the case since 1986.

At the hearing on this motion counsel for plaintiff explained that he had never joined the additional defendant, said to be a California corporation, because the California official who keeps track of corporations had told him there was no such corporation. He offered no explanation for his failure to explain this or to respond in any other way to defense counsel's April 1987 and July 1987 letters. Counsel for plaintiff says his failure to do much about the case is due primarily to the fact that there has been no one in American Samoa who might serve as a consultant and expert witness on skin conditions. He added that he has "pretty much left up to [his] client" the search for such a consultant outside Samoa but that the recent return to the Territory of a doctor who formerly treated his client is an encouraging sign.

It is clear that plaintiff's counsel has neglected the case, at least in failing to answer the two letters and probably also in not doing more about finding an expert witness and otherwise preparing the case for trial. Judged against the usual standard of diligence with which lawsuits in American Samoa have been prosecuted this neglect is insufficient to overcome the law's strong bias in favor of disposition of claims on their merits. It is, however t sufficient to justify an award against plaintiff's counsel of the fees incurred by [10ASR2d18] opposing parties in connection with this motion to dismiss.

The Court is also concerned that the denial of this motion might result in further delay. Accordingly, counsel for plaintiff is ordered to make any further discovery requests no later than fifteen days from the date of this order. No later than thirty days after defendants' responses to any such requests, counsel for plaintiff shall move to set a trial date. These deadlines should also be sufficient for counsel to locate and consult with an expert witness.

Counsel for defendants should prove by affidavit the fees incurred by their clients in connection with this motion.

It is so ordered.

*********

In re Three Minor Children (Juv. Nos. 83-87, 13-88, 14-88),


In re THREE MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV No.83-87
JUV No.13-88
JUV No.14-88

February 21, 1989

__________

Territorial statute allowing service on absent defendants by publication requires three forms of notice: publication in a newspaper, posting in front of the court house, and mailing by registered mail at his last known address. A.S.C.A. § 43. 0502(a).

Territorial statute requiring three forms of notice for service by publication on absent defendants requires all three elements, not just one of them. A.S.C.A. § 43.0252(a).

Of three forms of notice required by statute providing for service by publication, attempt to reach the defendant by mail is by far the most important, since it usually offers the likeliest prospect of actual notice.

Judgment against defendant who had not been properly served by publication would be null and void, since court would not have obtained jurisdiction over defendant.

Even where court has jurisdiction over natural parents against whom termination of parental rights is sought, termination should not be granted unless the court is convinced that parents genuinely understand and consent to termination, or that termination is in the best interest of the child notwithstanding a lack of parental understanding or consent.

Legal termination of parental rights has important and irrevocable legal consequences that are often quite different from those of Samoan customary informal adoption, in which children often return to their natural parents. [10ASR2d58]

Samoan parents who give their children to another family to raise, or who sign a waiver prepared by counsel for prospective adopting parents, cannot be conclusively presumed to understand and agree to the consequences of a legal termination of parental rights.

Except where it is genuinely impossible to locate natural parents whose rights are sought to be terminated, or where bringing them to American Samoa would occasion extraordinary hardship, they should be counseled by territorial child protective service and should be made available as witnesses before the court.

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

Counsel: For Petitioners, Robert A. Porter

These three actions seek the termination of parental rights. At the request of counsel, all three cases were set for trial and were heard on February 15, 1989. As became clear during the respective hearings, none of the cases was ready to be heard. This is because counsel made no serious attempt to notify the natural parents whose rights he proposes to terminate.

In all three cases the natural parents are believed to reside in Western Samoa and the only service attempted on them was by publication. The American Samoa statute dealing with service by publication requires that three things be done in order to effect such service: publication in a newspaper, posting in front of the court house, and mailing by registered mail to the defendant at his last known address. A.S.C.A. § 43.0502(a). The statute requires all three of these elements, not just one of them. The attempt to reach the defendant by mail is by far the most important of the three requirements, since it usually offers the likeliest prospect of actual notice to the defendant. Yet no such attempt was made in any of these cases.

The failure of counsel to notify the natural parents by mail at their last known addresses would make any attempted termination of their parental rights null and void, since the Court has not [10ASR2d59] obtained jurisdiction over them. (1) Even if we did have jurisdiction, however, we would be most reluctant to terminate the rights of natural parents without assuring ourselves that they genuinely understand and consent to such termination, or that termination is in the best interest of the children notwithstanding a lack of parental understanding or consent.

A legal termination of parental rights has important and irrevocable legal consequences for the child and for the parent. These consequences are often quite different from those of the informal adoption which has long been common in Samoa and with which all Samoans are presumably familiar .The most important difference is that a child whose legal relationship with his natural parents has been severed can never return to them ---as children who have been subject to fa'a Samoa adoption quite commonly do ---except by order of the government or the adoptive parents. Samoan parents who give their children to another family to raise, or who sign a "waiver" prepared by counsel for the prospective adopting parents, cannot be conclusively presumed to understand and agree to the consequences of a legal termination of parental rights.

Except where it is genuinely impossible to locate the natural parents, or where bringing them [10ASR2d60] to American Samoa would occasion extraordinary hardship, they should be interviewed and counseled by the Child Protective Services division of the territorial Department of Human Resources. After reading the report prepared by the Child Protective Services, the Court can decide whether it will be necessary for the natural parents to testify at the hearing.

In each of these cases counsel signed an affidavit to the effect that the natural parents could not be located despite diligent efforts. At the hearings, however, it appeared that no such efforts were made.

In cases No.13-88 and 14-88 the natural father is the brother of one of the petitioners. She testified that she has been out of touch with him for years and has no idea how to contact him; yet in May of 1988 he told the Child Protective Services that he was living with the petitioners in American Samoa. It also appeared at the hearing that petitioners did know how to contact the natural mother, who is divorced from the father of the children, but had not attempted to contact her for several years. The Court cannot proceed further without the testimony of both natural parents. We will, however, place the children in the temporary legal custody of the petitioners for the sole purpose of allowing them to attend school in American Samoa.

In case No. 83-87 one of the petitioners testified that she is related to the natural mother, knows where she lives in Western Samoa, but has not attempted to contact her since filing this action. The natural mother should be notified of this action by extraterritorial personal service or by registered or certified mail. Petitioners should attempt to arrange for her to be interviewed by the Child Protective Services and should also attempt to learn from her the identity of the natural father. After receiving the Child Protective Services report the Court will determine whether it can proceed further in this action without the testimony of one or both of the natural parents.

It is so ordered.

*********

1. The Court may in certain circumstances obtain jurisdiction over absent parties by means other than service by publication. Counsel may apply for leave of Court to effect personal service on a party outside the Territory. A.S.C.A. § 43.0504; T.C.R.C.P. Rule 4(e). Or if the defendant actually receives notice by mail and signs a registered return receipt, the remaining elements of service by publication may be dispensed with. A.S.C.A. § 43.0504. In actions for the termination of parental rights service on an absent defendant may be by publication "or by any other means authorized by the Court." A.S.C.A. § 43.0318. In this case no means other than notice by publication was requested by counsel. In any case the Court would not approve any method not genuinely calculated to effect actual notice. See Memorandum of the Justices, 3 A.S.R. 33 (1986).

Hawaiian Airlines, Inc.; Uikirifi v.


AMERICAN SAMOA GOVERNMENT 
ex rel. AFAESE UIKIRIFI, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

AMERICAN SAMOA GOVERNMENT 
ex rel. GEORGE NERU, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

High Court of American Samoa 
Trial Division

CA No. 35-88 
CA No. 36-88

February 16,1989

__________

Since deregulation of the airline industry, baggage liability limitations no longer are tariffs having [10ASR2d32] the force and effect of law but are contractual terms whose construction and enforcement depends on applicable law.

Deregulation of airlines does not leave territorial, court free to look only to the territorial law of contracts in deciding cases relating to lost baggage, since detailed federal regulations apply to baggage liability and since even in areas not expressly regulated the continued federal interest in air transportation suggests that federal common law should provide the rule of decision.

Promulgation by the Civil Aeronautics Board of regulations allowing airlines to limit the amount of their liability for lost baggage does not indicate regulatory approval of attempts by airlines to exclude fill liability for entire classes of goods.

In choosing between reasonable interpretations of a contract, court would opt for that construction which operates against the draftsman. Restatement (Second) of Contracts § 206.

Provision of airline's contract of carriage that airline would accept as baggage personal property for the "wear, use, comfort, or convenience" of passenger does not relieve the airline of liability for its loss of business goods accepted as baggage, since (1) the positive does not always imply the negative; and (2) having accepted business goods for transportation, the defendant should not be heard to say that it takes no responsibility for that which it has carried.

Provision of airline's contract of carriage, disclaiming liability for damage to certain items caused solely by the fragile nature of such items, implied that the contract did not exclude all liability for loss of "business goods" carried as baggage, since some of the listed items could only be carried for "business purposes."

Attempt by airline to exclude all liability for loss of certain classes of baggage was void for violation of public policy, since a carrier who stipulates not to be bound to the exercise of care and diligence seeks to put off the essential duties of his employment. [10ASR2d33]

Airlines seeking to incorporate by reference baggage liability limitations must provide to their passengers "conspicuous" notice that terms incorporated by reference are part of the contract and that such terms include baggage liability limitations. 14 C.F .R. Part 253.

Minuscule, lilliputian, or exceedingly fine print does not satisfy requirement that passengers be given conspicuous notice of incorporation by reference of baggage liability limitations.

To be sufficiently conspicuous, a notice of baggage liability limitations must be positioned and identified so as to penetrate the traveling public's reasonably focused consciousness.

Defendant airline's notice of incorporated terms was sufficiently conspicuous when the notice: (1) though small was legible; (2) was preceded by a bold-face heading; and (3) was the first thing a passenger would see in the ticket after the flight coupons.

In order for airline to limit its liability for lost luggage it must provide passengers conspicuous written material on or with the ticket that sets forth either (1) that airline's monetary limitation or (2) a notice that "[f]ederal rules require any limit on an airline's baggage liability to be at least $1250 per passenger." 14 C.F .R. § 254.5.

Airline ticket's notice which neither stated the airline's monetary limit on liability for lost baggage, nor contained the exact text of an alternate notice approved by federal regulation, was insufficient to limit the airline's liability. 14 C.F .R. § 254.5.

Baggage liability limitation notice which was behind the flap in the ticket jacket which would ordinarily contain the ticket did not provide passenger with conspicuous notice, since the message was poorly positioned and the design encouraged the obscuring of the terms of contract.

Baggage liability limitation found on ticket jacket was sufficiently conspicuous where: (1) type though small was legible; (2) the message was set out in a separate box at the tope of the page; and (3) a bold faced "PLEASE NOTE" drew attention to it. [10ASR2d34]

Where defendant airline did not provide conspicuous notice of its liability limits for lost baggage, it would not be able to limit liability and plaintiff would recover the full value of his baggage since (1) a reasonable reading of the contract led to that result and (2) that is the logical implication of federal regulations requiring conspicuous notice.

Al though the common law prohibited a common carrier from attempting to exculpate itself from all liability for loss of baggage due to its own negligence, federal common law has developed the "released value doctrine" under which a carrier may limit the amount of its liability to the agreed value of the goods, provided that the shipper has the option of obtaining coverage for the full value of its goods, is made aware of that option, and knowingly chooses to pay a lower price for the lesser coverage.

In promulgating regulations allowing airlines to limit liability for lost baggage by providing notice to passengers, and in rejecting a proposal that would have required passengers to sign a "statement of understanding" as a prerequisite to limitation of liability, the Civil Aeronautics Board implicitly limited the extent to which passengers may rely on the "released value doctrine" to avoid an airline's attempt to limit liability.

Expressed intention of Civil Aeronautics Board not to preempt state courts on applicability of "released value doctrine" to limitation of airlines' liability for lost baggage, and the Board's somewhat conflicting intention to facilitate incorporation by reference of limitations of liability, could be harmonized by requiring carriers (1) to make excess valuation insurance available; (2) to make this fact known to the traveling public in a manner at least as conspicuous as the required notices of the airline's limited liability; and (3) to set out the outlines of the coverage provided.

Conspicuous statement on airline ticket that excess valuation insurance was available, and on ticket jacket detailing the terms of such insurance, were sufficient so that passenger who had not purchased such insurance was entitled to recover only the [10ASR2d35] amount available under the airline's contract of carriage for loss of baggage.

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

Counsel: For Plaintiff, Tauivi Tuinei 
For Defendant, Charles Ala'ilima

Facts

Plaintiff Uikirifi made two trips on Hawaiian Airlines (hereinafter "Hawaiian") from Honolulu to Pago Pago. On an August 7, 1987 trip, Hawaiian lost two bags containing clothing which plaintiff valued at $1,926.64. On September 17, 1987 nine pieces of luggage valued by plaintiff at $5,055.24 were lost. Four boxes were said to contain 227 fine mats which the plaintiff valued at $2,270.00. The other five bags contained clothing. The District Court awarded plaintiff $1,929,00 on the first claim and $4,999.00 on the second.

Plaintiff Neru traveled on Hawaiian on February 8, 1987. He carried with him four pieces of baggage, two of which were lost. They contained auto parts that plaintiff valued at $2,286.70. The District Court awarded plaintiff relief in that sum.

Hawaiian has appealed these decisions maintaining that certain contractual clauses either bar or substantially limit the claims of Uikirifi and Neru.

Discussion

During the past decade the airline industry has undergone substantial deregulation and the tariff structure which airlines once could rely on to limit their baggage liability no longer exists. See 49 U.S.C. § 1551. At the outset, therefore, we reject any 'suggestion that these cases may be simply disposed of because the baggage liability limitations at issue are "tariffs" that have the force and effect of law in binding passengers. This is not to say, however, that this Court is left to its own devices and that the contract law of American Samoa is all that we need look to in interpreting the contract of carriage which lies at [10ASR2d36] the heart of this controversy. There are rather detailed federal regulations which regulate the area of baggage liability, (1) and even in areas not covered explicitly by federal rules, applying territorial law does not seem appropriate because of the "continued federal interest in air transportation." See Arkwright-Boston Manufacturers Mutual Insurance-Co. v. Great Western Airlines, Inc., 767 F.2d 425, 427 (8th Cir. 1985). Federal common law should provide the rule of decision in these cases.

There are three major issues for decision. First, Hawaiian argues that it is absolved of any liability for the loss of these passengers' bags because of contractual provisions purporting to exclude the classes of items Uikirifi and Neru carried from liability. Second, Hawaiian maintains that even if it has some liability, it is limited to $1250.00 per passenger because of compliance with federal regulations that allow limitations of liability to be incorporated by reference into air carriage contracts. Finally, plaintiffs contend that, even if Hawaiian's limitation of liability conformed to applicable federal regulations, the [10ASR2d37] common law "released value" doctrine supersedes the limitation of liability and allows them full recovery.

I. Exclusions from Liability

Hawaiian maintains that certain contractual provisions release it from any liability for the lost bags. Almost half of Uikirifi's claim from the September 17, 1987 flight was for lost fine mats. The contract states that Hawaiian "assumes no liability for irreplaceable articles and/ or valuable items including but not limited to. .. religious or ceremonial mats and artifacts. " Rule 26 (B)(2), Terms of Contract of Carriage, at 49 (April 9, 1987). Accordingly, Hawaiian maintains it is not liable at all for loss of the fine mats. Hawaiian also states that it has no liability for the rest of Uikirifi's luggage and all of Neru's bags because they contained business goods, not the "personal effects" which Hawaiian had contracted to carry. Appellant's Memorandum, Hawaiian Airlines v. American Samoa Government ex rel. Langford, CA No. 37-88, at 7 (Sept. 19, 1988). Finally, Hawaiian contends that the "restriction of certain items from any liability was specifically approved by the CAB [Civil Aeronautics Board]." Id., citing Civil Aeronautics Board, Final Rule on Part 254--- Domestic Baggage Liability, ER-1374, at 6 (December 23, 1983), reprinted in Air Transport Association of America, Memorandum No.84-10 re: Domestic Baggage Liability (February 10, 1984) [hereinafter ER-1374].

To deal with Hawaiian's last point first, the Civil Aeronautics Board [C.A.B. or Board] did not "specifically" approve such limitations as are present here. Rather, the Board required that carriers seeking to incorporate by reference terms of contract include with their tickets a notice of any "'[l]imits on the air carrier's liability. .. for loss, damage, or delay of goods and baggage, including fragile and perishable items."' ER-1374, supra, at 6, citing 14 C.F .R. § 253.5 (b)(1). As is discussed in Part III below, a "limit" on the amount of a carrier's liability does not mean the same thing as the exclusion of all liability. We assume that the Board, which was conscious of this difference (see Part III, infra), did not intend to use "limit" in the sense suggested by Hawaiian. [10ASR2d38]

As to the argument that liability is contractually limited to "personal effects" to the exclusion of "business goods," we see the agreement quite differently. (2) Firstly, we could not find an explicit exclusion for "personal effects" in the contract, although the contract does explicitly disclaim liability for certain items ---such as fine mats. It would appear reasonable to us, therefore, that if "business goods" were meant to be excluded from liability an explicit exclusion for "business goods" would have been provided as well. (3)

At the same time, another clause provides that Hawaiian will "accept for transportation as baggage, such personal property as is necessary or appropriate for the wear, use, comfort, or convenience of the passenger for the purpose of the trip." Rule 19 (A), Terms of Contract of Carriage, at 30 (November 23, 1987) (emphasis added). Two observations may be made about this clause. First, the positive does not always imply the negative. Second, even accepting Hawaiian's reading, having once "broken" its own condition of carriage, Hawaiian should not now be heard to say that it takes no responsibility for that which it has carried. Cf,. Klicker v. Northwest Airlines, Inc., 563 F .2d 1310, 1316 (9th Cir. 1977) ("If the airline erred in accepting the animal, the responsibility for the mistake falls on the airline, not on the innocent shipper.") This is especially so given the extent of the class of goods sought to be excluded by Hawaiian's suggested [10ASR2d39] interpretation of this clause. (4) In fact, the contractual baggage liability clause states simply that Hawaiian "shall be liable for the provable loss of, damage to, or delay in the delivery of a fare-paying passenger's baggage, or other property." Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987). Nowhere here is it mentioned that Hawaiian is responsible only for "acceptable" baggage or for "personal" property or effects.

Furthermore, we find that the items questioned come within the definition of "acceptable" baggage. We find listed in another section of the contract several items that Hawaiian will only transport subject to a disclaimer of liability for any damage caused to such items due solely to their fragile nature. This class of fragile items includes " [a]dvertising displays, models, sketches, blueprints and maps" and "[m]icroscopes, oscilloscopes, meters, counters and polygraphs." Rule 20 (L)(3)(e), (L)(3)(h), Terms of Contract of Carriage, at 33 (January 1, 1983). If indeed responsibility for "personal " items were all that was envisaged by the contract, then "personal" items would thus seem to include a polygraph machine or advertising model, if the contract is to be consistently interpreted. We find it hard to imagine a logical definition of "personal use" which could differentiate between a polygraph machine or advertising model and auto parts or clothing for resale. We accordingly conclude that recovery for clothing and auto parts even where they are for "business purposes" is not excluded.

Finally, even if we were to concede that the contract does reasonably attempt to exclude all liability for the clothing and auto parts, the exclusion is void for violating public policy. In Klicker v. Northwest Airlines. Inc., the Ninth Circuit held invalid an airline tariff which purported to exclude all liability for damage due [10ASR2d40] to the death of an animal transported as baggage. 563 F.2d 1310, 1312-14 (9th Cir. 1977). The Court first explained that under the common law, carriers were not allowed to exculpate themselves from liability for their own negligence. Id. at 1312. Otherwise ""'[a] carrier who stipulates not to be bound to the exercise of care and diligence 'seeks to put off the essential duties of his employment.""" Id. at 1313, quoting New York, New Haven and Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 136 (1953) (emphasis in original) (other citations omitted). The Court reasoned that allowing the airline to exclude all liability for damage to animals which it accepted as baggage would violate this rule even where a tariff had been filed with and approved by the C.A.B. Id. at 1314. (5)

Prior to Klicker, the Second Circuit had issued decisions which arrived at the opposite conclusion. These decisions disallowed recovery for jewelry contained in lost baggage, reasoning that the airline tariffs excluding liability for jewelry had been approved by the C.A.B. , and that such tariffs had the force and effect of law. Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403-04 (2d Cir. 1969); Lichten v. Eastern Airlines, 189 F .2d 939, 941 (2d Cir. 1951). The Klicker decision cast doubt on the reasoning of these Second Circuit decisions. The court went so far as to say that it declined to follow the rationale of Tishman & Lipp and Lichten because "it is flatly wrong," Klicker, supra at 1314, and noted that Lichten had "been uniformly criticized by commentators." Id. at n.6.

A choice between these two lines of authority is unnecessary for our purposes. It is important to note that even the Lichten court acknowledged that it was "the common law rule that a common carrier may not by contract relieve itself from [10ASR2d41] liability for the consequences of its own negligence." Lichten, supra at 941. Thus, the Lichten decision did not question the principle of law that concerns us here. Instead, it was grounded on the court's interpretation of the effect regulation of airlines by the C.A.B. had on that rule. Id. In an era of deregulation, where neither the C.A.B. nor the tariffs considered by the Lichten court exist, it seems clear that exculpatory contractual clauses such as those in question here are no longer valid.

Here, Hawaiian has attempted to exculpate itself from any liability in carrying the enumerated goods including, presumably, liability for the intentional acts of its employees. The clause therefore, as it attempts to exclude responsibility for the loss of these "business goods," is void. Of course, this reasoning applies equally to the attempted exclusion of plaintiff Uikirifi's ceremonial fine mats.

II. Limitation of Liability to $1250

Hawaiian seeks to limit its liability for lost baggage through incorporating by reference a contractual term setting a maximum recovery of $1250 per passenger for loss of baggage. A passenger may avoid the $1250 limit by declaring a higher value for his baggage and paying an excess valuation charge of $1.00 for each additional $100 worth of baggage. Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987).

To so limit its liability, Hawaiian is required to comply with two sets of federal regulations ---14 C.F .R. Parts 253 and 254. (6) The former establishes the method by which airlines may incorporate by reference terms of a contract of carriage. The latter establishes specific rules relating to notice of limitation of baggage liability. [10ASR2d42]

A. Incorporation by Reference

Federal regulations specifically allow an airline in interstate transportation to incorporate by reference terms of its contract so long as proper notice of such incorporation is given the passenger. 14 C.F .R. § 253.4. When such notice is given, local law is preempted and the local authorities cannot require disclosures beyond those federally required. ld § 253.1. As it here concerns us, the regulations first require each airline seeking to incorporate by reference terms of contract to provide a "conspicuous notice" that any terms incorporated by reference are part of the contract. ld § 253.5 (a). The regulations further require notice that the contract of carriage incorporates by reference "[l]imits on the air carrier's liability. ..for loss, damage, or delay of goods and baggage. II ld § 253.5(b)(1). If such notice is not given, the carrier may not claim the benefit of the incorporated baggage liability limitations. Id § 253.4 (a).

Here, it is clear that language appears on the ticket which fulfills the substantive requirements of Part 253. The second page of the ticket following the flight coupons contains a notice that the air transportation "is subject to the individual terms of the transporting air carriers, which are herein incorporated by reference and made part of the contract of carriage." Exhibit 4, Hawaiian Airlines v. American Samoa Government ex rel. Neru, CA 36-88 (August 4, 1988). Thus the requirement of section 253.5 (a) is met. There is a further notice that the incorporated terms include "[l]imits on liability for baggage, including fragile or perishable goods." This then conforms to the requirements of section 253.5(b)(1).

The question, then, is whether these notices constitute "conspicuous notice" of the incorporated terms. We were not able to find any cases that have dealt directly with what constitutes "conspicuous notice" within the meaning of 14 C.F.R. § 253.5. However, cases decided under the Warsaw Convention have dealt with a similar issue in an analogous context and should be helpful in defining "conspicuous notice." There is also one helpful case involving the adequacy of notice at a time when a tariff required such notice. [10ASR2d43]

When its requirements are complied with, the Warsaw Convention (7) limits liability of carriers in international transportation by air for loss, delay, or damage to a passenger's baggage; for personal injury or death of passengers; and for air freight shipments. Warsaw Convention, arts. 17-19. As a prerequisite to obtaining the benefits of limited liability, the carrier must provide the passenger or shipper with a ticket, baggage check, or air waybill (as the case may be) which contains a "statement that the transportation is subject to the rules relating to liability established by this convention." 19.., arts. 3(e), 4(h), 8(q). Courts interpreting these provisions have held that the "statement" contemplated by the Convention must be more than "[i]nconspicuous and hypertechnical 'notice."' In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1313 n.13 (9th Cir. 1982). Rather, courts have held that as the quid pro quo for the Convention's substantial limitations on recovery of damages, the d9cuments involved must give the passengers "adequate notice" of the applicability of the Convention so that they might take self-protective measures such as purchasing additional coverage. Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., 370 F .2d 508, 513 (2d Cir .1966).

Not surprisingly, the factors which the courts have found important in deciding what is "adequate notice" under the Warsaw Convention bear a close relation to what one might intuitively expect to constitute "conspicuous notice." These include print size, type of print, legibility, and placement of the message.

In Lisi, the notice warning passengers about the applicability of the Warsaw Convention was:

"camouflaged in Lilliputian print in a thicket of 'Conditions 
of Contract'... Indeed the exculpatory statements on 
[10ASR2d44] which defendant relies are virtually invisible. 
They are ineffectively positioned, diminutively sized, and 
unemphasized by bold face type, contrasting color, or 
anything else. The simple truth is that they are so artfully 
camouflaged that their presence is concealed. "

Lisi at 514, quoting the decision of the lower court at 253 F.Supp. 237, 243 (S.D.N. Y. 1966).

In addition, on the front of the ticket and the baggage check a message drawing the passengers attention to the actual notice was printed in "exceedingly small print." Id. at 513. Accordingly, the appellate court affirmed the trial court's decision granting plaintiff's motion for summary judgment to strike defendant's Warsaw Convention defense. (A reproduction of the ticket involved in Lisi can be found at 253 F.Supp. 237, 240-42.)

In another illustrative case where the warning given was found inadequate, the first notice that the ticket was subject to the Convention found in a footnote to the face of the ticket was "in exceedingly small, almost unreadable (4 1/2 point) print." Egan v. Kollsman Instrument Corp., 234 N.E.2d 199, 200 (N. Y. 1967), cert. denied 390 U.S. 1039 (1968). On the outside back cover of the ticket "likewise printed in miniscule [sic] type" appeared some Conditions of Contract which included a statement that the transportation was subject to the Convention. Id. at 200 n.1. A final notice was "in such exceedingly small and fine print as almost to defy reading." Id. at 203. The court concluded that even though the airline had literally complied with the Convention notice requirement, this was nevertheless insufficient and not in accord with the overall purposes of the notice regime because "a statement which cannot reasonably be deciphered fails of its purpose and function of affording notice and may not be accepted as the sort of statement contemplated or required by the Convention." Id. at 203. The appellate court reversed the trial court's denial of plaintiff's motion to dismiss the defendant's affirmative defense grounded on the Convention.

The courts have also upheld the applicability of the Convention against claims that the notice [10ASR2d45] provided was inadequate. One court did so because the "printing on the back of the ticket and baggage check in this case, though small, is certainly readable." Parker v. Pan American World Airways, Inc , 447 S.W.2d 731, 735 (Tex. Civ. App. 1969) (affirming limitation of passenger's claim to the Convention amount). In another case:

each sheet of the five page ticket issued to appellees 
contained three warnings that the provisions of the 
Warsaw Convention applied to international flights. 
The reverse side of each sheet contained one warning 
in type about twice the size of the rest of the printing 
on the page. The other warning, on the reverse side, was 
in bold-face type in the body of the "Conditions of 
Contract."

Trans World Airlines, Inc. v. Christophel, 500 S. W .2d 409, 410-11 (Ky. 1973) (reversing lower court decision and ordering j.n.o.v. for appellant).

Finally, another court held that because an air waybill had notice of the applicability of the Convention "in bold face, easily legible type placed directly above the space wherein Mr. Tobin affixed his signature" the message was adequate notice of the applicability of the Convention as a matter of law. Bianchi v. United Air Lines 587 P.2d 632, 635 (Wash. App. 1978).

The last case of interest to us was not under the Warsaw Convention but under former C.A.B. tariffs. The ticket in question had the notice of domestic baggage liability limitations below a paragraph that had the bold-faced heading "Advice to International Passengers on Limitation of Liability." Greenberg v. United Airlines. Inc., 414 N.Y.S.2d 240, 240 (1979) (emphasis added). The court held that "[a]ny reasonable person, let alone a harried tourist, would conclude that the described page, under its top line, applies solely to international passengers." Id. at 241. The court continued that "[a] notice so elusive cannot fulfill the office provided for it in the tariff. In order to succeed defendant's communication must be positioned and identified so as to penetrate the traveling public's reasonably focused consciousness. Instead, defendant has set before the [10ASR2d46]traveler a morsel of nourishment hidden in a banquet of dust." Id.

In this scheme of things, it is clear that defendant's Notice of Incorporated Terms is "conspicuous." The print is not small, and it is certainly legible. Cf. Egan, supra (4 1/2 point type). Also, there is a bold-faced heading which announces the content of the notice which follows. Cf. Bianchi, supra, and the suggestion of Lisi. Moreover, although the particular notice of baggage liability limitations is buried in the midst of five other specific notices, it is important to note that each of these other notices is also required by regulations. Given the fact that the C.A.B. has specifically referred to the advantages of short form ticketing (see Part III below), it would be hard to do this with a message much larger than that here. Also, if the message ran on to several pages because it were in larger type, the airline would potentially be accused of obscuring the notice by burying it in a morass of pages. Finally, the page is the first thing a passenger would see once she got past the flight coupons. In that sense then it is effectively positioned. Cf. Greenberg, supra.

B. Notice of Baggage Liability Limits

However, for Hawaiian to successfully limit its baggage liability merely providing notice of incorporation by reference would not be enough. According to 14 C.F .R. § 254.5 Hawaiian must also:

provide to passengers, by conspicuous written material 
included on or with its ticket, either: 
(a) Notice of any monetary limitation on its baggage 
liability to passengers; or 
(b) The following notice: "Federal rules require any 
limit on an airline's baggage liability to be at least $1250 
per passenger."

There are two places on the ticket and accompanying material dealing with baggage liability limitations. First, on the ticket itself. Second, on the ticket jacket. In analyzing each of these statements, the first question to ask is whether Hawaiian provided such a notice at all and then whether it was the [10ASR2d47] "conspicuous written material" required by the enactment. (8)

In our opinion, although the notice provided on the ticket itself is sufficiently "conspicuous," (9) its content renders it inadequate. The notice states that:

Liability for loss, delay, or damage to baggage is limited 
as follows unless a higher value is declared in advance and 
additional charges are paid:.... (2) For travel wholly between 
U .S. points, to $1250 per passenger on most carriers (a 
few have lower limits).

Exhibit 4, Neru, supra.

The notice does not comply with 14 C.F.R. 254.5(b) since it deviates in several material respects from the federally prescribed language of that subsection. Additionally, we do not think it fulfills the requirement of section 254.5(a). Instead of stating the "monetary limitation on ill baggage liability to passengers," (emphasis added), [10ASR2d48] the ticket clause states a hypothetical limitation on "most carriers" without indicating what this carrier's liability limitations are. The difference is not merely semantic. A traveler deciding whether to buy additional baggage coverage must make his decision on the basis of what he might recover without that additional insurance. Where the airline does not provide notice of its actual limitation, the customer cannot choose properly. That the importance of this distinction was understood during the rule making process seems clear when we consider that when the C.A.B. promulgated 14 C.F .R. § 254.5 it stated that it found the inclusion of either "(1) the Board- mandated notice, or (2) a specific statement of its actual liability limitation" preferable to "a general 'notice that liability may be limited." ER-1374, supra, at 6 (emphasis added). Although the notice provided on the ticket is more than a "general notice," in our opinion it seems closer to being a "general notice" than a "specific" statement of "actual" liability limitations.

Hawaiian's ticket jackets also include a notice of baggage liability limitation. The language here unambiguously sets forth Hawaiian's actual limitation. It states:

Liability for loss or damage: not over $1250 per passenger 
unless higher value declared in advance. Charge for higher 
value declared $1.00 per $100 (up to $2,500).*

*Not liable for fragile or valuable articles.

Exhibit 11, Hawaiian Airlines v. American Samoa Government ex. rel. Uikirifi, CA No.35-88 (August 4, 1988); Exhibit 5, Hawaiian Airlines v. American Samoa Government ex rel. Neru, supra.

However, it is less clear that the language of limitation on the jackets is the "conspicuous written material" required by the regulation.

Hawaiian uses at least two different types of ticket jackets. In one version, the baggage liability limitation is behind the flap in the ticket jacket in which one puts the ticket. (Hereinafter referred to as Type 1 jacket.) The contractual terms here appearing would ordinarily [10ASR2d49] be hidden from view by the passenger's ticket. Presumably the ticket will be placed in that part of the jacket designed for ticket placement. The design of this ticket jacket is inconsistent with conspicuousness; it naturally encourages the passenger to block from view the terms of contract. In Greenberg, supra, the court talked about positioning the message so that it penetrates the consciousness of the traveling public. This message would not.

We are mindful of the fact that the front of the flap has a boldface and capitalized message that says "FOR BAGGAGE INFORMATION LIFT FLAP." Even though it is the largest sized print on that page, this alone does not render the limitation of liability "conspicuous." It does not indicate what sort of "baggage information" is to be imparted--- it could just as well refer to size and weight limitations as to liability limitations. More importantly, the jacket's design just does not encourage the message to be found.

The other ticket jacket used by Hawaiian (hereinafter referred to as Type 2 jacket) has the baggage liability limitation on an inside page of the jacket. Perhaps some may say that this message is not as eye catching as it could be, but we find the same conspicuous. (10) The typeface, though small, is legible. See Parker, supra. Also, the [10ASR2d50] message is at the top of the flap and set out in its own box. Thus the notice is not buried in a mass of other .information as the information was in Lisi. or Greenberg. Finally, a bold face message asking the passenger to "PLEASE NOTE" precedes it. (This last factor may not immediately appear that impressive considering there is a plethora of such "Notes"-s and "Notice"-s on the jacket. An attempt, however, to be eye catching is certainly better than no attempt at all.)

In summary, our conclusions with regard to ticket jackets are that the Type 1 jacket is inadequate notice while the Type 2 jacket is adequate notice.

Having so concluded, we consider the evidence presented. In Uikirifi, the evidence indicates that plaintiff took two flights. Yet only one ticket jacket was introduced into evidence. That ticket jacket, exhibit 11 in CA No. 35-88, is a Type 2 jacket ---the kind which provides adequate notice. On the extent of our record, and mindful of plaintiff's burden of proof, we hold on the evidence before us, that the Type 2 jacket was the applicable jacket issued on both flights. (We note that Judge Sunia's findings below appear to be premised on Uikirifi having received a Type 1 jacket. Judge Sunia found the baggage liability limitation inadequate because it was located "underneath the flap," Findings of Facts, Conclusions of Law, and Order , American Samoa Government ex. rel. Uikirifi v. Hawaiian Airlines, CA No. 63-87 , at 2 (District Court, March 2, 1988). Notwithstanding this, since these matters have come to us by way of trial de novo, Rule 14 D.C.R., it is our record of the evidence that must govern our findings.) At this juncture, then, Uikirifi's recovery would seem to be limited to $1250 per flight.

Now , turning to the ticket jacket in the Neru case, the jacket introduced into evidence here was a Type 1 (underneath the flap) jacket ---i.e., providing inadequate notice. Section 254.5 does not state what consequences befall an airline which does not provide conspicuous notice of its liability limitations. However, the logical implication is that the airline would lose its contractual right to limit its baggage liability. Essentially, the statutory provisions having been rendered inapplicable by the absence of notice, [10ASR2d51] there is a reversion to the common-law liability of common carriers. Under the common law, only in very narrow circumstances could the carrier escape liability for loss of or damage to a customer's baggage. See discussion infra. Even if this were not the necessary result of failure to provide adequate notice under section 254.5, it is the result contemplated by the parties' contract. The contractual provision limiting liability to $1250 specifically states that this level of "maximum liability shall be waived for an individual claimant where it can be shown that with respect to that claimant HA [Hawaiian Airlines] failed to provide notice of limited liability for baggage." Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987). Given the regulatory framework Hawaiian operates under, it seems logical to treat the "notice" referred to in the contract as being synonymous to the "conspicuous" notice required by the regulations. Accordingly, we find that Neru is entitled to recover the full extent of his damages. Neru's unrebutted testimony valued his loss at $2,286.70. Because the items lost were all new, there is no question of depreciation and we find that Neru is entitled to that amount.

III. Released Value Doctrine

Having found that Uikirifi was provided sufficiently "conspicuous" notice to meet the requirements of 14 C.F .R. § 254.5, we next consider whether or not the "released value doctrine" affects the limitation of liability asserted against Uikirifi.

As noted above, the common law prohibited any attempts by carriers to exculpate themselves from all liability for their own negligence. Notwithstanding, federal common law developed the "released value" doctrine which essentially permitted a carrier to limit its liability for loss to the agreed value of property shipped in circumstances where the rate charged is related to the value of the shipment. See First Pennsylvania Bank v. Eastern Airlines, Inc., 731 F.2d 1113 (3d Cir .1984). The doctrine is nicely capsulized in that court's conclusions.

[U]nder federal common law, the authority of a common 
carrier to limit its liability for the loss of the goods in its 
care is governed by the "released [10ASR2d52] value 
doctrine," under which a carrier may limit its liability to 
the agreed value of the goods, provided that the shipper 
has the option of obtaining coverage for the full value of 
its goods, is made aware of that option, and knowingly 
chooses to pay a lower price for the lesser coverage.

Id. at 1122.

Without the released value agreement, the carrier's liability under common law principles would equal the actual value of the property. Id., at 1116. Thus, when the carrier gave the shipper the chance to choose the higher fare ---which bought with it full liability coverage ---over the lower fare--- with its correspondingly lower coverage ---the passenger would be estopped from asserting the carrier's common law liability. One recent air shipment case has held that the carrier must give "'reasonable notice"' to the shipper of his options and that the shipper must make "'an absolute, deliberate and well-informed choice"' of the lower fare with its lower liability. Fireman's Fund Insurance Cos. v. Barnes Electric. Inc., 540 F.Supp. 640, 646-47 (N.D. Ind. 1982), quoting Trans-American Van Services, Inc. v. Shirzad, 596 S. W .2d 587, 590-91 (Tex. Ct. App. 1980). In Fireman's Fund, the shipper had actually signed a statement which assigned a value to a shipment of art which was destroyed while in the carrier's custody. However, the court found this fact insufficient to grant the carrier's motion for summary judgment to limit liability to the agreed upon amount because the shipper had a limited knowledge of English and maintained that he thought the contract of carriage to be a ('questionnaire," rather than a contract. Id.,. at 647-48. The court thought that a jury might believe that under those facts, the shipper "was not afforded [the] 'fair opportunity"' required by the released value doctrine. Id. at 647.

On the foregoing discussion of the released value doctrine, Hawaiian would seem to be fully liable for Uikirifi's losses because there has been no "absolute, deliberate and well informed" choice of limited liability by the passenger. No document declaring the value of the shipment or choosing the lower over the higher fare was signed, nor was there testimony that the availability of excess [10ASR2d53] valuation protection was pointed out to plaintiff or otherwise explained to him. However, in promulgating the applicable baggage liability regulations, the C.A.B. implicitly limited the extent to which passengers may rely on the released value doctrine to avoid an airline's attempt to limit liability. (11)

During the rule making process, the C.A.B. considered whether to adopt a proposal, the main feature of which was, that "passengers should be given oral and written notice of the carrier's liability policy, and asked to sign a 'statement of understanding' at check-in." ER-1374, supra, at 4. The Board rejected the proposal because it found the suggestion to be not "justified in light of the costs that would be involved." Id. at 6. The Board's action in effect is a rejection of one of the principal features of the released value doctrine since the suggested "statement of understanding" is simply the sort of waiver which would seem to be necessary for a carrier to demonstrate that the passenger had made an "absolute, deliberate and well informed choice." Another commenter expressed concern over allowing incorporation by reference of the liability rules. Id. at 5. The C.A.B. responded that:

short-form ticketing was important to the efficiency of the 
air transportation system, and that there was no cost 
justification for replacing the tariff system with one of bulky 
individual contracts to be given out to each airline passenger. 
Baggage liability is just one of the many terms of the contract 
of carriage that are comprehended by that basic policy 
decision. The Board has recognized, however, the importance 
of baggage liability to the individual rules that are the subject 
of this proceeding. [10ASR2d54] The intent of the rules 
is to alert every passenger directly, in simple terms, of the 
carrier's limitation of liability, while making the details 
available through less costly means under the provisions 
of Part 253.

Id. This too implies that the Board had rejected an explicit waiver approach, since it would be a step toward undesirable "bulky" contracts, in favor of allowing the carriers to limit their liability through incorporation by reference.

On the other hand, the C.A.B. may also seem equivocal on the issue because in the same rule making, it also considered and refused to promulgate a rule requiring the airlines to carry excess valuation insurance. (12) In so doing, the C.A.B. noted that nevertheless it would appear "to be in the carriers' own interest to offer excess valuation insurance coverage, or at least to make sure that it is readily available" because the released-value doctrine was the very basis upon which an airline was allowed to limit its liability in the first place. ER-1374, supra, at 11. The Board then stated that its decision to not require excess valuation insurance was "not intended to preempt state courts on the issue of excess valuation coverage." Id.

Extending the import of this last statement of the Board's intent to its limits, one might argue that by not intending to preempt courts on the issue of excess valuation coverage, the C.A.B. must also have not intended to preempt application of the full scope of the "waiver" requirement. Such a view would ignore the Board's previously mentioned [10ASR2d55] intention to facilitate incorporation by reference without the costs associated with individual sign- offs and we refuse to adopt it. Instead, we believe that these somewhat conflicting expressions of intention may be harmonized without doing violence to each other. This can be done by requiring that a carrier make available excess valuation insurance, make this fact known to the traveling public in a notice at least as "conspicuous" as the ones which are provided under sections 253.5 and 254.5 on incorporation by reference and baggage liability limitations, and set out the outlines of the coverage provided. This much Hawaiian has done. The ticket itself contains a statement attached to the one on baggage liability limitations that the contract also incorporates by reference terms on the "availability of excess valuation coverage." Exhibit 4, Neru, supra. Also, Uikirifi's ticket jacket includes a statement that details the availability of excess valuation insurance on Hawaiian. The jacket reads "[c]harge for higher value declared [is] $1.00 per $100 (up to $2500)." Id., Exhibit 5; Uikirifi, supra, Exhibit 11. Since the excess valuation statement is of the same size and in the same location as the baggage limitation statement, in the Uikirifi case it is, like the notice of limited liability, sufficiently "conspicuous." (13) Accordingly, Uikirifi would not be entitled to recover any more than the contract ceiling, namely, $1250 per flight or $2500. (14) [10ASR2d56]

Conclusion

We conclude that the ticket and ticket jacket given plaintiff Neru did not comply with federal regulations allowing limitation of liability for loss of bags to $1250 and thus were inadequate to inform him or those limitations. Further, it would violate public policy to allow Hawaiian to disclaim all liability for loss of the bags. Therefore, Neru is entitled to recover the full amount of his loss ---$2,286.70.

In Uikirifi's case, Hawaiian likewise could not disclaim all responsibility for the contents of the bags. However, because the notice requirements of the federal regulatory scheme were complied with, he may only recover $2500 for loss of his bags ---that is, $1250 for each of the two flights he took. We also note that Uikirifi paid $129.00 in excess baggage fees on his September 17, 1987 flight. Since Hawaiian did not deliver a single one of these bags, we find this to be an additional item of damage due Uikirifi. He will accordingly have judgment for $2629.00.

It is so Ordered.

*********

1. These regulations were promulgated by the Civil Aeronautics Board. Although the particular statutory authority under which the regulations were promulgated is unclear , former 49 U.S.C. § 1374(a) provides ample room for the promulgation of these regulations. That provision provides, in part, that carriers are to provide "adequate service." This clause has been interpreted broadly enough to include regulation of smoking on aircraft as a factor of adequate service. Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039, 1044-46 (5th Cir. 1982), cert. denied 459 U .S. 1107 (1983). Clearly, then, baggage liability would also be subject to regulation under that interpretation of "adequate service." The C.A.B. no longer exists, having been deregulated out of existence. However, its authority to regulate in the areas of "safe and adequate service" has been transferred to the Department of Transportation. 49 U.S.C. §§ 1551(a)(4)(C), 1551(b)(1)(E). Thus, the Congress has expressed its concern that these areas remain subject to direct federal regulatory control.

2. In the Neru case, plaintiff concedes that the automobile parts were bought for resale. In Uikirifi, Hawaiian maintains that the amount of clothing bought by plaintiff indicates that he intended to resell the clothes. Although Uikirifi characterized the items as "family shopping" in his claim form, we accept for the purposes of analysis Hawaiian's contention.

3. As defendant supplied the myriad terms of contract, in choosing between reasonable interpretations of the contract, we opt for that construction which operates against the draftsman. See Restatement (Second) of Contracts § 206.

4. The net effect of Hawaiian's position simply fails to address the possibilities, indeed the realities, that some people who use its air service do so in furtherance of a business purpose and therefore it is not unlikely that accompanying baggage of the business traveler will have something to with that business purpose.

5. By the time that the case reached the appellate level, the C.A.B. had invalidated the tariffs in question as unreasonable. This, however, would not have helped the plaintiffs as the tariff was in full force at the time they traveled and it would take a judicial determination that the tariff had been void as against public policy to give them relief. Id at 1313.

6. As we will see in Part Ill, in some circumstances limiting liability to a fixed amount is not considered to be the same as an attempt at exculpation and may be valid.

7. Convention for the Unification of Certain Rules Relating to International Transportation by Air , opened for signature Oct. 12, 1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, T.S. No. 876, reprinted as note to 49 U .S. C.A. sec. 1502 [hereinafter Warsaw Convention].

8. Although section 253.5 speaks of "conspicuous notice" and 254.5 of "conspicuous written material," we do not think that there is a relevant difference between these two phrases on the facts of this case and will treat them as synonyms. There might be a valid difference if, for example, an airline gave "conspicuous notice" by orally informing each passenger of the areas of incorporated terms. This would seemingly not satisfy the "conspicuous written material" requirement on baggage liability. However, on the facts of this case there is no reason to treat them differently.

9. The notice is conspicuous because it is in fairly large type, easily legible by one who gets that far into the ticket, and has a bold-face heading which would draw attention to the statement. Basically, there is not that much more that an airline can do to make this more conspicuous without using individual sign-offs, larger format tickets, or similar devices which the C.A.B. has in effect said they need not do. (See below.)

10. There would be any number of ways that Hawaiian could have made the limitation more conspicuous ---e.g., using larger type, bold print throughout, or putting the message on the jacket cover itself next to the seat information. However, it is easy to say that things could be made more conspicuous. The question that needs to be answered is whether what was provided was conspicuous enough. Also, in answering this question, we have to be careful to remember that some of the rest of the material on the jacket is required by other federal regulations. If too much attention is drawn to this provision, then less will be drawn to such things as, for example, the notice on overbooking of flights. We should not place the defendant in the situation of having to choose to comply with one set of regulations at the expense of noncompliance with another.

11. It is to be noted that Fireman's Fund involved air shipments, and not passenger accompanying baggage. In the air freight situation, we could not find comparable regulations regarding liability similar to 14 C.F.R. Parts 253 and 254. Thus the standard explicated in Fireman's Fund is not necessarily the same as that applicable in the context of accompanying baggage.

12. Although phrased in terms of "excess valuation insurance" the C.A.B.'s reference is clearly to the released value doctrine. The vocabulary merely reflects a different way of saying the same thing. The classical released value doctrine talked of rates being lower for released values. Insurance implies an extra charge for additional baggage. But whether phrased in terms of a discount for lower coverage or a premium for additional coverage, the economic effect of either is the same--one pays a lower rate for limited liability and a higher one for full protection.

13. In the Neru case, the excess valuation notice is inadequate because of its location behind the ticket jacket flap. However, this makes no practical difference since Neru is already entitled to full recovery as explained above.

14. The plaintiffs also contended that they were deprived of notice of the limitations and entitled to full recovery because Hawaiian was obligated to provide notice of the baggage liability limitations in Samoan. Without expressing agreement on the merits of this contention, we find it factually inappropriate. We are not impressed with Uikirifi's asserted inability to read English because he was able to respond to and fill out claim forms to a degree which demonstrates sufficient proficiency in English to understand the limitations of liability on the tickets. (Since we have awarded Neru full recovery, the issue does not arise in his case.)

Hawaiian Airlines, Inc.; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT 
ex rel. AFAESE UIKIRIFI, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

AMERICAN SAMOA GOVERNMENT 
ex rel. GEORGE NERU, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

High Court of American Samoa 
Trial Division

CA No. 35-88 
CA No. 36-88

February 16,1989

__________

Since deregulation of the airline industry, baggage liability limitations no longer are tariffs having [10ASR2d32] the force and effect of law but are contractual terms whose construction and enforcement depends on applicable law.

Deregulation of airlines does not leave territorial, court free to look only to the territorial law of contracts in deciding cases relating to lost baggage, since detailed federal regulations apply to baggage liability and since even in areas not expressly regulated the continued federal interest in air transportation suggests that federal common law should provide the rule of decision.

Promulgation by the Civil Aeronautics Board of regulations allowing airlines to limit the amount of their liability for lost baggage does not indicate regulatory approval of attempts by airlines to exclude fill liability for entire classes of goods.

In choosing between reasonable interpretations of a contract, court would opt for that construction which operates against the draftsman. Restatement (Second) of Contracts § 206.

Provision of airline's contract of carriage that airline would accept as baggage personal property for the "wear, use, comfort, or convenience" of passenger does not relieve the airline of liability for its loss of business goods accepted as baggage, since (1) the positive does not always imply the negative; and (2) having accepted business goods for transportation, the defendant should not be heard to say that it takes no responsibility for that which it has carried.

Provision of airline's contract of carriage, disclaiming liability for damage to certain items caused solely by the fragile nature of such items, implied that the contract did not exclude all liability for loss of "business goods" carried as baggage, since some of the listed items could only be carried for "business purposes."

Attempt by airline to exclude all liability for loss of certain classes of baggage was void for violation of public policy, since a carrier who stipulates not to be bound to the exercise of care and diligence seeks to put off the essential duties of his employment. [10ASR2d33]

Airlines seeking to incorporate by reference baggage liability limitations must provide to their passengers "conspicuous" notice that terms incorporated by reference are part of the contract and that such terms include baggage liability limitations. 14 C.F .R. Part 253.

Minuscule, lilliputian, or exceedingly fine print does not satisfy requirement that passengers be given conspicuous notice of incorporation by reference of baggage liability limitations.

To be sufficiently conspicuous, a notice of baggage liability limitations must be positioned and identified so as to penetrate the traveling public's reasonably focused consciousness.

Defendant airline's notice of incorporated terms was sufficiently conspicuous when the notice: (1) though small was legible; (2) was preceded by a bold-face heading; and (3) was the first thing a passenger would see in the ticket after the flight coupons.

In order for airline to limit its liability for lost luggage it must provide passengers conspicuous written material on or with the ticket that sets forth either (1) that airline's monetary limitation or (2) a notice that "[f]ederal rules require any limit on an airline's baggage liability to be at least $1250 per passenger." 14 C.F .R. § 254.5.

Airline ticket's notice which neither stated the airline's monetary limit on liability for lost baggage, nor contained the exact text of an alternate notice approved by federal regulation, was insufficient to limit the airline's liability. 14 C.F .R. § 254.5.

Baggage liability limitation notice which was behind the flap in the ticket jacket which would ordinarily contain the ticket did not provide passenger with conspicuous notice, since the message was poorly positioned and the design encouraged the obscuring of the terms of contract.

Baggage liability limitation found on ticket jacket was sufficiently conspicuous where: (1) type though small was legible; (2) the message was set out in a separate box at the tope of the page; and (3) a bold faced "PLEASE NOTE" drew attention to it. [10ASR2d34]

Where defendant airline did not provide conspicuous notice of its liability limits for lost baggage, it would not be able to limit liability and plaintiff would recover the full value of his baggage since (1) a reasonable reading of the contract led to that result and (2) that is the logical implication of federal regulations requiring conspicuous notice.

Al though the common law prohibited a common carrier from attempting to exculpate itself from all liability for loss of baggage due to its own negligence, federal common law has developed the "released value doctrine" under which a carrier may limit the amount of its liability to the agreed value of the goods, provided that the shipper has the option of obtaining coverage for the full value of its goods, is made aware of that option, and knowingly chooses to pay a lower price for the lesser coverage.

In promulgating regulations allowing airlines to limit liability for lost baggage by providing notice to passengers, and in rejecting a proposal that would have required passengers to sign a "statement of understanding" as a prerequisite to limitation of liability, the Civil Aeronautics Board implicitly limited the extent to which passengers may rely on the "released value doctrine" to avoid an airline's attempt to limit liability.

Expressed intention of Civil Aeronautics Board not to preempt state courts on applicability of "released value doctrine" to limitation of airlines' liability for lost baggage, and the Board's somewhat conflicting intention to facilitate incorporation by reference of limitations of liability, could be harmonized by requiring carriers (1) to make excess valuation insurance available; (2) to make this fact known to the traveling public in a manner at least as conspicuous as the required notices of the airline's limited liability; and (3) to set out the outlines of the coverage provided.

Conspicuous statement on airline ticket that excess valuation insurance was available, and on ticket jacket detailing the terms of such insurance, were sufficient so that passenger who had not purchased such insurance was entitled to recover only the [10ASR2d35] amount available under the airline's contract of carriage for loss of baggage.

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

Counsel: For Plaintiff, Tauivi Tuinei 
For Defendant, Charles Ala'ilima

Facts

Plaintiff Uikirifi made two trips on Hawaiian Airlines (hereinafter "Hawaiian") from Honolulu to Pago Pago. On an August 7, 1987 trip, Hawaiian lost two bags containing clothing which plaintiff valued at $1,926.64. On September 17, 1987 nine pieces of luggage valued by plaintiff at $5,055.24 were lost. Four boxes were said to contain 227 fine mats which the plaintiff valued at $2,270.00. The other five bags contained clothing. The District Court awarded plaintiff $1,929,00 on the first claim and $4,999.00 on the second.

Plaintiff Neru traveled on Hawaiian on February 8, 1987. He carried with him four pieces of baggage, two of which were lost. They contained auto parts that plaintiff valued at $2,286.70. The District Court awarded plaintiff relief in that sum.

Hawaiian has appealed these decisions maintaining that certain contractual clauses either bar or substantially limit the claims of Uikirifi and Neru.

Discussion

During the past decade the airline industry has undergone substantial deregulation and the tariff structure which airlines once could rely on to limit their baggage liability no longer exists. See 49 U.S.C. § 1551. At the outset, therefore, we reject any 'suggestion that these cases may be simply disposed of because the baggage liability limitations at issue are "tariffs" that have the force and effect of law in binding passengers. This is not to say, however, that this Court is left to its own devices and that the contract law of American Samoa is all that we need look to in interpreting the contract of carriage which lies at [10ASR2d36] the heart of this controversy. There are rather detailed federal regulations which regulate the area of baggage liability, (1) and even in areas not covered explicitly by federal rules, applying territorial law does not seem appropriate because of the "continued federal interest in air transportation." See Arkwright-Boston Manufacturers Mutual Insurance-Co. v. Great Western Airlines, Inc., 767 F.2d 425, 427 (8th Cir. 1985). Federal common law should provide the rule of decision in these cases.

There are three major issues for decision. First, Hawaiian argues that it is absolved of any liability for the loss of these passengers' bags because of contractual provisions purporting to exclude the classes of items Uikirifi and Neru carried from liability. Second, Hawaiian maintains that even if it has some liability, it is limited to $1250.00 per passenger because of compliance with federal regulations that allow limitations of liability to be incorporated by reference into air carriage contracts. Finally, plaintiffs contend that, even if Hawaiian's limitation of liability conformed to applicable federal regulations, the [10ASR2d37] common law "released value" doctrine supersedes the limitation of liability and allows them full recovery.

I. Exclusions from Liability

Hawaiian maintains that certain contractual provisions release it from any liability for the lost bags. Almost half of Uikirifi's claim from the September 17, 1987 flight was for lost fine mats. The contract states that Hawaiian "assumes no liability for irreplaceable articles and/ or valuable items including but not limited to. .. religious or ceremonial mats and artifacts. " Rule 26 (B)(2), Terms of Contract of Carriage, at 49 (April 9, 1987). Accordingly, Hawaiian maintains it is not liable at all for loss of the fine mats. Hawaiian also states that it has no liability for the rest of Uikirifi's luggage and all of Neru's bags because they contained business goods, not the "personal effects" which Hawaiian had contracted to carry. Appellant's Memorandum, Hawaiian Airlines v. American Samoa Government ex rel. Langford, CA No. 37-88, at 7 (Sept. 19, 1988). Finally, Hawaiian contends that the "restriction of certain items from any liability was specifically approved by the CAB [Civil Aeronautics Board]." Id., citing Civil Aeronautics Board, Final Rule on Part 254--- Domestic Baggage Liability, ER-1374, at 6 (December 23, 1983), reprinted in Air Transport Association of America, Memorandum No.84-10 re: Domestic Baggage Liability (February 10, 1984) [hereinafter ER-1374].

To deal with Hawaiian's last point first, the Civil Aeronautics Board [C.A.B. or Board] did not "specifically" approve such limitations as are present here. Rather, the Board required that carriers seeking to incorporate by reference terms of contract include with their tickets a notice of any "'[l]imits on the air carrier's liability. .. for loss, damage, or delay of goods and baggage, including fragile and perishable items."' ER-1374, supra, at 6, citing 14 C.F .R. § 253.5 (b)(1). As is discussed in Part III below, a "limit" on the amount of a carrier's liability does not mean the same thing as the exclusion of all liability. We assume that the Board, which was conscious of this difference (see Part III, infra), did not intend to use "limit" in the sense suggested by Hawaiian. [10ASR2d38]

As to the argument that liability is contractually limited to "personal effects" to the exclusion of "business goods," we see the agreement quite differently. (2) Firstly, we could not find an explicit exclusion for "personal effects" in the contract, although the contract does explicitly disclaim liability for certain items ---such as fine mats. It would appear reasonable to us, therefore, that if "business goods" were meant to be excluded from liability an explicit exclusion for "business goods" would have been provided as well. (3)

At the same time, another clause provides that Hawaiian will "accept for transportation as baggage, such personal property as is necessary or appropriate for the wear, use, comfort, or convenience of the passenger for the purpose of the trip." Rule 19 (A), Terms of Contract of Carriage, at 30 (November 23, 1987) (emphasis added). Two observations may be made about this clause. First, the positive does not always imply the negative. Second, even accepting Hawaiian's reading, having once "broken" its own condition of carriage, Hawaiian should not now be heard to say that it takes no responsibility for that which it has carried. Cf,. Klicker v. Northwest Airlines, Inc., 563 F .2d 1310, 1316 (9th Cir. 1977) ("If the airline erred in accepting the animal, the responsibility for the mistake falls on the airline, not on the innocent shipper.") This is especially so given the extent of the class of goods sought to be excluded by Hawaiian's suggested [10ASR2d39] interpretation of this clause. (4) In fact, the contractual baggage liability clause states simply that Hawaiian "shall be liable for the provable loss of, damage to, or delay in the delivery of a fare-paying passenger's baggage, or other property." Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987). Nowhere here is it mentioned that Hawaiian is responsible only for "acceptable" baggage or for "personal" property or effects.

Furthermore, we find that the items questioned come within the definition of "acceptable" baggage. We find listed in another section of the contract several items that Hawaiian will only transport subject to a disclaimer of liability for any damage caused to such items due solely to their fragile nature. This class of fragile items includes " [a]dvertising displays, models, sketches, blueprints and maps" and "[m]icroscopes, oscilloscopes, meters, counters and polygraphs." Rule 20 (L)(3)(e), (L)(3)(h), Terms of Contract of Carriage, at 33 (January 1, 1983). If indeed responsibility for "personal " items were all that was envisaged by the contract, then "personal" items would thus seem to include a polygraph machine or advertising model, if the contract is to be consistently interpreted. We find it hard to imagine a logical definition of "personal use" which could differentiate between a polygraph machine or advertising model and auto parts or clothing for resale. We accordingly conclude that recovery for clothing and auto parts even where they are for "business purposes" is not excluded.

Finally, even if we were to concede that the contract does reasonably attempt to exclude all liability for the clothing and auto parts, the exclusion is void for violating public policy. In Klicker v. Northwest Airlines. Inc., the Ninth Circuit held invalid an airline tariff which purported to exclude all liability for damage due [10ASR2d40] to the death of an animal transported as baggage. 563 F.2d 1310, 1312-14 (9th Cir. 1977). The Court first explained that under the common law, carriers were not allowed to exculpate themselves from liability for their own negligence. Id. at 1312. Otherwise ""'[a] carrier who stipulates not to be bound to the exercise of care and diligence 'seeks to put off the essential duties of his employment.""" Id. at 1313, quoting New York, New Haven and Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 136 (1953) (emphasis in original) (other citations omitted). The Court reasoned that allowing the airline to exclude all liability for damage to animals which it accepted as baggage would violate this rule even where a tariff had been filed with and approved by the C.A.B. Id. at 1314. (5)

Prior to Klicker, the Second Circuit had issued decisions which arrived at the opposite conclusion. These decisions disallowed recovery for jewelry contained in lost baggage, reasoning that the airline tariffs excluding liability for jewelry had been approved by the C.A.B. , and that such tariffs had the force and effect of law. Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403-04 (2d Cir. 1969); Lichten v. Eastern Airlines, 189 F .2d 939, 941 (2d Cir. 1951). The Klicker decision cast doubt on the reasoning of these Second Circuit decisions. The court went so far as to say that it declined to follow the rationale of Tishman & Lipp and Lichten because "it is flatly wrong," Klicker, supra at 1314, and noted that Lichten had "been uniformly criticized by commentators." Id. at n.6.

A choice between these two lines of authority is unnecessary for our purposes. It is important to note that even the Lichten court acknowledged that it was "the common law rule that a common carrier may not by contract relieve itself from [10ASR2d41] liability for the consequences of its own negligence." Lichten, supra at 941. Thus, the Lichten decision did not question the principle of law that concerns us here. Instead, it was grounded on the court's interpretation of the effect regulation of airlines by the C.A.B. had on that rule. Id. In an era of deregulation, where neither the C.A.B. nor the tariffs considered by the Lichten court exist, it seems clear that exculpatory contractual clauses such as those in question here are no longer valid.

Here, Hawaiian has attempted to exculpate itself from any liability in carrying the enumerated goods including, presumably, liability for the intentional acts of its employees. The clause therefore, as it attempts to exclude responsibility for the loss of these "business goods," is void. Of course, this reasoning applies equally to the attempted exclusion of plaintiff Uikirifi's ceremonial fine mats.

II. Limitation of Liability to $1250

Hawaiian seeks to limit its liability for lost baggage through incorporating by reference a contractual term setting a maximum recovery of $1250 per passenger for loss of baggage. A passenger may avoid the $1250 limit by declaring a higher value for his baggage and paying an excess valuation charge of $1.00 for each additional $100 worth of baggage. Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987).

To so limit its liability, Hawaiian is required to comply with two sets of federal regulations ---14 C.F .R. Parts 253 and 254. (6) The former establishes the method by which airlines may incorporate by reference terms of a contract of carriage. The latter establishes specific rules relating to notice of limitation of baggage liability. [10ASR2d42]

A. Incorporation by Reference

Federal regulations specifically allow an airline in interstate transportation to incorporate by reference terms of its contract so long as proper notice of such incorporation is given the passenger. 14 C.F .R. § 253.4. When such notice is given, local law is preempted and the local authorities cannot require disclosures beyond those federally required. ld § 253.1. As it here concerns us, the regulations first require each airline seeking to incorporate by reference terms of contract to provide a "conspicuous notice" that any terms incorporated by reference are part of the contract. ld § 253.5 (a). The regulations further require notice that the contract of carriage incorporates by reference "[l]imits on the air carrier's liability. ..for loss, damage, or delay of goods and baggage. II ld § 253.5(b)(1). If such notice is not given, the carrier may not claim the benefit of the incorporated baggage liability limitations. Id § 253.4 (a).

Here, it is clear that language appears on the ticket which fulfills the substantive requirements of Part 253. The second page of the ticket following the flight coupons contains a notice that the air transportation "is subject to the individual terms of the transporting air carriers, which are herein incorporated by reference and made part of the contract of carriage." Exhibit 4, Hawaiian Airlines v. American Samoa Government ex rel. Neru, CA 36-88 (August 4, 1988). Thus the requirement of section 253.5 (a) is met. There is a further notice that the incorporated terms include "[l]imits on liability for baggage, including fragile or perishable goods." This then conforms to the requirements of section 253.5(b)(1).

The question, then, is whether these notices constitute "conspicuous notice" of the incorporated terms. We were not able to find any cases that have dealt directly with what constitutes "conspicuous notice" within the meaning of 14 C.F.R. § 253.5. However, cases decided under the Warsaw Convention have dealt with a similar issue in an analogous context and should be helpful in defining "conspicuous notice." There is also one helpful case involving the adequacy of notice at a time when a tariff required such notice. [10ASR2d43]

When its requirements are complied with, the Warsaw Convention (7) limits liability of carriers in international transportation by air for loss, delay, or damage to a passenger's baggage; for personal injury or death of passengers; and for air freight shipments. Warsaw Convention, arts. 17-19. As a prerequisite to obtaining the benefits of limited liability, the carrier must provide the passenger or shipper with a ticket, baggage check, or air waybill (as the case may be) which contains a "statement that the transportation is subject to the rules relating to liability established by this convention." 19.., arts. 3(e), 4(h), 8(q). Courts interpreting these provisions have held that the "statement" contemplated by the Convention must be more than "[i]nconspicuous and hypertechnical 'notice."' In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1313 n.13 (9th Cir. 1982). Rather, courts have held that as the quid pro quo for the Convention's substantial limitations on recovery of damages, the d9cuments involved must give the passengers "adequate notice" of the applicability of the Convention so that they might take self-protective measures such as purchasing additional coverage. Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., 370 F .2d 508, 513 (2d Cir .1966).

Not surprisingly, the factors which the courts have found important in deciding what is "adequate notice" under the Warsaw Convention bear a close relation to what one might intuitively expect to constitute "conspicuous notice." These include print size, type of print, legibility, and placement of the message.

In Lisi, the notice warning passengers about the applicability of the Warsaw Convention was:

"camouflaged in Lilliputian print in a thicket of 'Conditions 
of Contract'... Indeed the exculpatory statements on 
[10ASR2d44] which defendant relies are virtually invisible. 
They are ineffectively positioned, diminutively sized, and 
unemphasized by bold face type, contrasting color, or 
anything else. The simple truth is that they are so artfully 
camouflaged that their presence is concealed. "

Lisi at 514, quoting the decision of the lower court at 253 F.Supp. 237, 243 (S.D.N. Y. 1966).

In addition, on the front of the ticket and the baggage check a message drawing the passengers attention to the actual notice was printed in "exceedingly small print." Id. at 513. Accordingly, the appellate court affirmed the trial court's decision granting plaintiff's motion for summary judgment to strike defendant's Warsaw Convention defense. (A reproduction of the ticket involved in Lisi can be found at 253 F.Supp. 237, 240-42.)

In another illustrative case where the warning given was found inadequate, the first notice that the ticket was subject to the Convention found in a footnote to the face of the ticket was "in exceedingly small, almost unreadable (4 1/2 point) print." Egan v. Kollsman Instrument Corp., 234 N.E.2d 199, 200 (N. Y. 1967), cert. denied 390 U.S. 1039 (1968). On the outside back cover of the ticket "likewise printed in miniscule [sic] type" appeared some Conditions of Contract which included a statement that the transportation was subject to the Convention. Id. at 200 n.1. A final notice was "in such exceedingly small and fine print as almost to defy reading." Id. at 203. The court concluded that even though the airline had literally complied with the Convention notice requirement, this was nevertheless insufficient and not in accord with the overall purposes of the notice regime because "a statement which cannot reasonably be deciphered fails of its purpose and function of affording notice and may not be accepted as the sort of statement contemplated or required by the Convention." Id. at 203. The appellate court reversed the trial court's denial of plaintiff's motion to dismiss the defendant's affirmative defense grounded on the Convention.

The courts have also upheld the applicability of the Convention against claims that the notice [10ASR2d45] provided was inadequate. One court did so because the "printing on the back of the ticket and baggage check in this case, though small, is certainly readable." Parker v. Pan American World Airways, Inc , 447 S.W.2d 731, 735 (Tex. Civ. App. 1969) (affirming limitation of passenger's claim to the Convention amount). In another case:

each sheet of the five page ticket issued to appellees 
contained three warnings that the provisions of the 
Warsaw Convention applied to international flights. 
The reverse side of each sheet contained one warning 
in type about twice the size of the rest of the printing 
on the page. The other warning, on the reverse side, was 
in bold-face type in the body of the "Conditions of 
Contract."

Trans World Airlines, Inc. v. Christophel, 500 S. W .2d 409, 410-11 (Ky. 1973) (reversing lower court decision and ordering j.n.o.v. for appellant).

Finally, another court held that because an air waybill had notice of the applicability of the Convention "in bold face, easily legible type placed directly above the space wherein Mr. Tobin affixed his signature" the message was adequate notice of the applicability of the Convention as a matter of law. Bianchi v. United Air Lines 587 P.2d 632, 635 (Wash. App. 1978).

The last case of interest to us was not under the Warsaw Convention but under former C.A.B. tariffs. The ticket in question had the notice of domestic baggage liability limitations below a paragraph that had the bold-faced heading "Advice to International Passengers on Limitation of Liability." Greenberg v. United Airlines. Inc., 414 N.Y.S.2d 240, 240 (1979) (emphasis added). The court held that "[a]ny reasonable person, let alone a harried tourist, would conclude that the described page, under its top line, applies solely to international passengers." Id. at 241. The court continued that "[a] notice so elusive cannot fulfill the office provided for it in the tariff. In order to succeed defendant's communication must be positioned and identified so as to penetrate the traveling public's reasonably focused consciousness. Instead, defendant has set before the [10ASR2d46]traveler a morsel of nourishment hidden in a banquet of dust." Id.

In this scheme of things, it is clear that defendant's Notice of Incorporated Terms is "conspicuous." The print is not small, and it is certainly legible. Cf. Egan, supra (4 1/2 point type). Also, there is a bold-faced heading which announces the content of the notice which follows. Cf. Bianchi, supra, and the suggestion of Lisi. Moreover, although the particular notice of baggage liability limitations is buried in the midst of five other specific notices, it is important to note that each of these other notices is also required by regulations. Given the fact that the C.A.B. has specifically referred to the advantages of short form ticketing (see Part III below), it would be hard to do this with a message much larger than that here. Also, if the message ran on to several pages because it were in larger type, the airline would potentially be accused of obscuring the notice by burying it in a morass of pages. Finally, the page is the first thing a passenger would see once she got past the flight coupons. In that sense then it is effectively positioned. Cf. Greenberg, supra.

B. Notice of Baggage Liability Limits

However, for Hawaiian to successfully limit its baggage liability merely providing notice of incorporation by reference would not be enough. According to 14 C.F .R. § 254.5 Hawaiian must also:

provide to passengers, by conspicuous written material 
included on or with its ticket, either: 
(a) Notice of any monetary limitation on its baggage 
liability to passengers; or 
(b) The following notice: "Federal rules require any 
limit on an airline's baggage liability to be at least $1250 
per passenger."

There are two places on the ticket and accompanying material dealing with baggage liability limitations. First, on the ticket itself. Second, on the ticket jacket. In analyzing each of these statements, the first question to ask is whether Hawaiian provided such a notice at all and then whether it was the [10ASR2d47] "conspicuous written material" required by the enactment. (8)

In our opinion, although the notice provided on the ticket itself is sufficiently "conspicuous," (9) its content renders it inadequate. The notice states that:

Liability for loss, delay, or damage to baggage is limited 
as follows unless a higher value is declared in advance and 
additional charges are paid:.... (2) For travel wholly between 
U .S. points, to $1250 per passenger on most carriers (a 
few have lower limits).

Exhibit 4, Neru, supra.

The notice does not comply with 14 C.F.R. 254.5(b) since it deviates in several material respects from the federally prescribed language of that subsection. Additionally, we do not think it fulfills the requirement of section 254.5(a). Instead of stating the "monetary limitation on ill baggage liability to passengers," (emphasis added), [10ASR2d48] the ticket clause states a hypothetical limitation on "most carriers" without indicating what this carrier's liability limitations are. The difference is not merely semantic. A traveler deciding whether to buy additional baggage coverage must make his decision on the basis of what he might recover without that additional insurance. Where the airline does not provide notice of its actual limitation, the customer cannot choose properly. That the importance of this distinction was understood during the rule making process seems clear when we consider that when the C.A.B. promulgated 14 C.F .R. § 254.5 it stated that it found the inclusion of either "(1) the Board- mandated notice, or (2) a specific statement of its actual liability limitation" preferable to "a general 'notice that liability may be limited." ER-1374, supra, at 6 (emphasis added). Although the notice provided on the ticket is more than a "general notice," in our opinion it seems closer to being a "general notice" than a "specific" statement of "actual" liability limitations.

Hawaiian's ticket jackets also include a notice of baggage liability limitation. The language here unambiguously sets forth Hawaiian's actual limitation. It states:

Liability for loss or damage: not over $1250 per passenger 
unless higher value declared in advance. Charge for higher 
value declared $1.00 per $100 (up to $2,500).*

*Not liable for fragile or valuable articles.

Exhibit 11, Hawaiian Airlines v. American Samoa Government ex. rel. Uikirifi, CA No.35-88 (August 4, 1988); Exhibit 5, Hawaiian Airlines v. American Samoa Government ex rel. Neru, supra.

However, it is less clear that the language of limitation on the jackets is the "conspicuous written material" required by the regulation.

Hawaiian uses at least two different types of ticket jackets. In one version, the baggage liability limitation is behind the flap in the ticket jacket in which one puts the ticket. (Hereinafter referred to as Type 1 jacket.) The contractual terms here appearing would ordinarily [10ASR2d49] be hidden from view by the passenger's ticket. Presumably the ticket will be placed in that part of the jacket designed for ticket placement. The design of this ticket jacket is inconsistent with conspicuousness; it naturally encourages the passenger to block from view the terms of contract. In Greenberg, supra, the court talked about positioning the message so that it penetrates the consciousness of the traveling public. This message would not.

We are mindful of the fact that the front of the flap has a boldface and capitalized message that says "FOR BAGGAGE INFORMATION LIFT FLAP." Even though it is the largest sized print on that page, this alone does not render the limitation of liability "conspicuous." It does not indicate what sort of "baggage information" is to be imparted--- it could just as well refer to size and weight limitations as to liability limitations. More importantly, the jacket's design just does not encourage the message to be found.

The other ticket jacket used by Hawaiian (hereinafter referred to as Type 2 jacket) has the baggage liability limitation on an inside page of the jacket. Perhaps some may say that this message is not as eye catching as it could be, but we find the same conspicuous. (10) The typeface, though small, is legible. See Parker, supra. Also, the [10ASR2d50] message is at the top of the flap and set out in its own box. Thus the notice is not buried in a mass of other .information as the information was in Lisi. or Greenberg. Finally, a bold face message asking the passenger to "PLEASE NOTE" precedes it. (This last factor may not immediately appear that impressive considering there is a plethora of such "Notes"-s and "Notice"-s on the jacket. An attempt, however, to be eye catching is certainly better than no attempt at all.)

In summary, our conclusions with regard to ticket jackets are that the Type 1 jacket is inadequate notice while the Type 2 jacket is adequate notice.

Having so concluded, we consider the evidence presented. In Uikirifi, the evidence indicates that plaintiff took two flights. Yet only one ticket jacket was introduced into evidence. That ticket jacket, exhibit 11 in CA No. 35-88, is a Type 2 jacket ---the kind which provides adequate notice. On the extent of our record, and mindful of plaintiff's burden of proof, we hold on the evidence before us, that the Type 2 jacket was the applicable jacket issued on both flights. (We note that Judge Sunia's findings below appear to be premised on Uikirifi having received a Type 1 jacket. Judge Sunia found the baggage liability limitation inadequate because it was located "underneath the flap," Findings of Facts, Conclusions of Law, and Order , American Samoa Government ex. rel. Uikirifi v. Hawaiian Airlines, CA No. 63-87 , at 2 (District Court, March 2, 1988). Notwithstanding this, since these matters have come to us by way of trial de novo, Rule 14 D.C.R., it is our record of the evidence that must govern our findings.) At this juncture, then, Uikirifi's recovery would seem to be limited to $1250 per flight.

Now , turning to the ticket jacket in the Neru case, the jacket introduced into evidence here was a Type 1 (underneath the flap) jacket ---i.e., providing inadequate notice. Section 254.5 does not state what consequences befall an airline which does not provide conspicuous notice of its liability limitations. However, the logical implication is that the airline would lose its contractual right to limit its baggage liability. Essentially, the statutory provisions having been rendered inapplicable by the absence of notice, [10ASR2d51] there is a reversion to the common-law liability of common carriers. Under the common law, only in very narrow circumstances could the carrier escape liability for loss of or damage to a customer's baggage. See discussion infra. Even if this were not the necessary result of failure to provide adequate notice under section 254.5, it is the result contemplated by the parties' contract. The contractual provision limiting liability to $1250 specifically states that this level of "maximum liability shall be waived for an individual claimant where it can be shown that with respect to that claimant HA [Hawaiian Airlines] failed to provide notice of limited liability for baggage." Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987). Given the regulatory framework Hawaiian operates under, it seems logical to treat the "notice" referred to in the contract as being synonymous to the "conspicuous" notice required by the regulations. Accordingly, we find that Neru is entitled to recover the full extent of his damages. Neru's unrebutted testimony valued his loss at $2,286.70. Because the items lost were all new, there is no question of depreciation and we find that Neru is entitled to that amount.

III. Released Value Doctrine

Having found that Uikirifi was provided sufficiently "conspicuous" notice to meet the requirements of 14 C.F .R. § 254.5, we next consider whether or not the "released value doctrine" affects the limitation of liability asserted against Uikirifi.

As noted above, the common law prohibited any attempts by carriers to exculpate themselves from all liability for their own negligence. Notwithstanding, federal common law developed the "released value" doctrine which essentially permitted a carrier to limit its liability for loss to the agreed value of property shipped in circumstances where the rate charged is related to the value of the shipment. See First Pennsylvania Bank v. Eastern Airlines, Inc., 731 F.2d 1113 (3d Cir .1984). The doctrine is nicely capsulized in that court's conclusions.

[U]nder federal common law, the authority of a common 
carrier to limit its liability for the loss of the goods in its 
care is governed by the "released [10ASR2d52] value 
doctrine," under which a carrier may limit its liability to 
the agreed value of the goods, provided that the shipper 
has the option of obtaining coverage for the full value of 
its goods, is made aware of that option, and knowingly 
chooses to pay a lower price for the lesser coverage.

Id. at 1122.

Without the released value agreement, the carrier's liability under common law principles would equal the actual value of the property. Id., at 1116. Thus, when the carrier gave the shipper the chance to choose the higher fare ---which bought with it full liability coverage ---over the lower fare--- with its correspondingly lower coverage ---the passenger would be estopped from asserting the carrier's common law liability. One recent air shipment case has held that the carrier must give "'reasonable notice"' to the shipper of his options and that the shipper must make "'an absolute, deliberate and well-informed choice"' of the lower fare with its lower liability. Fireman's Fund Insurance Cos. v. Barnes Electric. Inc., 540 F.Supp. 640, 646-47 (N.D. Ind. 1982), quoting Trans-American Van Services, Inc. v. Shirzad, 596 S. W .2d 587, 590-91 (Tex. Ct. App. 1980). In Fireman's Fund, the shipper had actually signed a statement which assigned a value to a shipment of art which was destroyed while in the carrier's custody. However, the court found this fact insufficient to grant the carrier's motion for summary judgment to limit liability to the agreed upon amount because the shipper had a limited knowledge of English and maintained that he thought the contract of carriage to be a ('questionnaire," rather than a contract. Id.,. at 647-48. The court thought that a jury might believe that under those facts, the shipper "was not afforded [the] 'fair opportunity"' required by the released value doctrine. Id. at 647.

On the foregoing discussion of the released value doctrine, Hawaiian would seem to be fully liable for Uikirifi's losses because there has been no "absolute, deliberate and well informed" choice of limited liability by the passenger. No document declaring the value of the shipment or choosing the lower over the higher fare was signed, nor was there testimony that the availability of excess [10ASR2d53] valuation protection was pointed out to plaintiff or otherwise explained to him. However, in promulgating the applicable baggage liability regulations, the C.A.B. implicitly limited the extent to which passengers may rely on the released value doctrine to avoid an airline's attempt to limit liability. (11)

During the rule making process, the C.A.B. considered whether to adopt a proposal, the main feature of which was, that "passengers should be given oral and written notice of the carrier's liability policy, and asked to sign a 'statement of understanding' at check-in." ER-1374, supra, at 4. The Board rejected the proposal because it found the suggestion to be not "justified in light of the costs that would be involved." Id. at 6. The Board's action in effect is a rejection of one of the principal features of the released value doctrine since the suggested "statement of understanding" is simply the sort of waiver which would seem to be necessary for a carrier to demonstrate that the passenger had made an "absolute, deliberate and well informed choice." Another commenter expressed concern over allowing incorporation by reference of the liability rules. Id. at 5. The C.A.B. responded that:

short-form ticketing was important to the efficiency of the 
air transportation system, and that there was no cost 
justification for replacing the tariff system with one of bulky 
individual contracts to be given out to each airline passenger. 
Baggage liability is just one of the many terms of the contract 
of carriage that are comprehended by that basic policy 
decision. The Board has recognized, however, the importance 
of baggage liability to the individual rules that are the subject 
of this proceeding. [10ASR2d54] The intent of the rules 
is to alert every passenger directly, in simple terms, of the 
carrier's limitation of liability, while making the details 
available through less costly means under the provisions 
of Part 253.

Id. This too implies that the Board had rejected an explicit waiver approach, since it would be a step toward undesirable "bulky" contracts, in favor of allowing the carriers to limit their liability through incorporation by reference.

On the other hand, the C.A.B. may also seem equivocal on the issue because in the same rule making, it also considered and refused to promulgate a rule requiring the airlines to carry excess valuation insurance. (12) In so doing, the C.A.B. noted that nevertheless it would appear "to be in the carriers' own interest to offer excess valuation insurance coverage, or at least to make sure that it is readily available" because the released-value doctrine was the very basis upon which an airline was allowed to limit its liability in the first place. ER-1374, supra, at 11. The Board then stated that its decision to not require excess valuation insurance was "not intended to preempt state courts on the issue of excess valuation coverage." Id.

Extending the import of this last statement of the Board's intent to its limits, one might argue that by not intending to preempt courts on the issue of excess valuation coverage, the C.A.B. must also have not intended to preempt application of the full scope of the "waiver" requirement. Such a view would ignore the Board's previously mentioned [10ASR2d55] intention to facilitate incorporation by reference without the costs associated with individual sign- offs and we refuse to adopt it. Instead, we believe that these somewhat conflicting expressions of intention may be harmonized without doing violence to each other. This can be done by requiring that a carrier make available excess valuation insurance, make this fact known to the traveling public in a notice at least as "conspicuous" as the ones which are provided under sections 253.5 and 254.5 on incorporation by reference and baggage liability limitations, and set out the outlines of the coverage provided. This much Hawaiian has done. The ticket itself contains a statement attached to the one on baggage liability limitations that the contract also incorporates by reference terms on the "availability of excess valuation coverage." Exhibit 4, Neru, supra. Also, Uikirifi's ticket jacket includes a statement that details the availability of excess valuation insurance on Hawaiian. The jacket reads "[c]harge for higher value declared [is] $1.00 per $100 (up to $2500)." Id., Exhibit 5; Uikirifi, supra, Exhibit 11. Since the excess valuation statement is of the same size and in the same location as the baggage limitation statement, in the Uikirifi case it is, like the notice of limited liability, sufficiently "conspicuous." (13) Accordingly, Uikirifi would not be entitled to recover any more than the contract ceiling, namely, $1250 per flight or $2500. (14) [10ASR2d56]

Conclusion

We conclude that the ticket and ticket jacket given plaintiff Neru did not comply with federal regulations allowing limitation of liability for loss of bags to $1250 and thus were inadequate to inform him or those limitations. Further, it would violate public policy to allow Hawaiian to disclaim all liability for loss of the bags. Therefore, Neru is entitled to recover the full amount of his loss ---$2,286.70.

In Uikirifi's case, Hawaiian likewise could not disclaim all responsibility for the contents of the bags. However, because the notice requirements of the federal regulatory scheme were complied with, he may only recover $2500 for loss of his bags ---that is, $1250 for each of the two flights he took. We also note that Uikirifi paid $129.00 in excess baggage fees on his September 17, 1987 flight. Since Hawaiian did not deliver a single one of these bags, we find this to be an additional item of damage due Uikirifi. He will accordingly have judgment for $2629.00.

It is so Ordered.

*********

1. These regulations were promulgated by the Civil Aeronautics Board. Although the particular statutory authority under which the regulations were promulgated is unclear , former 49 U.S.C. § 1374(a) provides ample room for the promulgation of these regulations. That provision provides, in part, that carriers are to provide "adequate service." This clause has been interpreted broadly enough to include regulation of smoking on aircraft as a factor of adequate service. Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039, 1044-46 (5th Cir. 1982), cert. denied 459 U .S. 1107 (1983). Clearly, then, baggage liability would also be subject to regulation under that interpretation of "adequate service." The C.A.B. no longer exists, having been deregulated out of existence. However, its authority to regulate in the areas of "safe and adequate service" has been transferred to the Department of Transportation. 49 U.S.C. §§ 1551(a)(4)(C), 1551(b)(1)(E). Thus, the Congress has expressed its concern that these areas remain subject to direct federal regulatory control.

2. In the Neru case, plaintiff concedes that the automobile parts were bought for resale. In Uikirifi, Hawaiian maintains that the amount of clothing bought by plaintiff indicates that he intended to resell the clothes. Although Uikirifi characterized the items as "family shopping" in his claim form, we accept for the purposes of analysis Hawaiian's contention.

3. As defendant supplied the myriad terms of contract, in choosing between reasonable interpretations of the contract, we opt for that construction which operates against the draftsman. See Restatement (Second) of Contracts § 206.

4. The net effect of Hawaiian's position simply fails to address the possibilities, indeed the realities, that some people who use its air service do so in furtherance of a business purpose and therefore it is not unlikely that accompanying baggage of the business traveler will have something to with that business purpose.

5. By the time that the case reached the appellate level, the C.A.B. had invalidated the tariffs in question as unreasonable. This, however, would not have helped the plaintiffs as the tariff was in full force at the time they traveled and it would take a judicial determination that the tariff had been void as against public policy to give them relief. Id at 1313.

6. As we will see in Part Ill, in some circumstances limiting liability to a fixed amount is not considered to be the same as an attempt at exculpation and may be valid.

7. Convention for the Unification of Certain Rules Relating to International Transportation by Air , opened for signature Oct. 12, 1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, T.S. No. 876, reprinted as note to 49 U .S. C.A. sec. 1502 [hereinafter Warsaw Convention].

8. Although section 253.5 speaks of "conspicuous notice" and 254.5 of "conspicuous written material," we do not think that there is a relevant difference between these two phrases on the facts of this case and will treat them as synonyms. There might be a valid difference if, for example, an airline gave "conspicuous notice" by orally informing each passenger of the areas of incorporated terms. This would seemingly not satisfy the "conspicuous written material" requirement on baggage liability. However, on the facts of this case there is no reason to treat them differently.

9. The notice is conspicuous because it is in fairly large type, easily legible by one who gets that far into the ticket, and has a bold-face heading which would draw attention to the statement. Basically, there is not that much more that an airline can do to make this more conspicuous without using individual sign-offs, larger format tickets, or similar devices which the C.A.B. has in effect said they need not do. (See below.)

10. There would be any number of ways that Hawaiian could have made the limitation more conspicuous ---e.g., using larger type, bold print throughout, or putting the message on the jacket cover itself next to the seat information. However, it is easy to say that things could be made more conspicuous. The question that needs to be answered is whether what was provided was conspicuous enough. Also, in answering this question, we have to be careful to remember that some of the rest of the material on the jacket is required by other federal regulations. If too much attention is drawn to this provision, then less will be drawn to such things as, for example, the notice on overbooking of flights. We should not place the defendant in the situation of having to choose to comply with one set of regulations at the expense of noncompliance with another.

11. It is to be noted that Fireman's Fund involved air shipments, and not passenger accompanying baggage. In the air freight situation, we could not find comparable regulations regarding liability similar to 14 C.F.R. Parts 253 and 254. Thus the standard explicated in Fireman's Fund is not necessarily the same as that applicable in the context of accompanying baggage.

12. Although phrased in terms of "excess valuation insurance" the C.A.B.'s reference is clearly to the released value doctrine. The vocabulary merely reflects a different way of saying the same thing. The classical released value doctrine talked of rates being lower for released values. Insurance implies an extra charge for additional baggage. But whether phrased in terms of a discount for lower coverage or a premium for additional coverage, the economic effect of either is the same--one pays a lower rate for limited liability and a higher one for full protection.

13. In the Neru case, the excess valuation notice is inadequate because of its location behind the ticket jacket flap. However, this makes no practical difference since Neru is already entitled to full recovery as explained above.

14. The plaintiffs also contended that they were deprived of notice of the limitations and entitled to full recovery because Hawaiian was obligated to provide notice of the baggage liability limitations in Samoan. Without expressing agreement on the merits of this contention, we find it factually inappropriate. We are not impressed with Uikirifi's asserted inability to read English because he was able to respond to and fill out claim forms to a degree which demonstrates sufficient proficiency in English to understand the limitations of liability on the tickets. (Since we have awarded Neru full recovery, the issue does not arise in his case.)

Hawaiian Airlines, Inc.; Langford v.


AMERICAN SAMOA GOVERNMENT ex rel. 
JERRY LANGFORD, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

High Court of American Samoa 
Trial Division

CA No. 37-88

January 5, 1989

__________

Territorial government whose consumer protection agency brought action in a representative capacity on behalf of a named individual, and which was not named as a plaintiff in its own right, could not recover damages in the consumer protection action for the loss of its own property. A.S.C.A. § 27.0402.

Mere possibility that plaintiff's employer may hold him financially responsible for loss of employer's property by defendant airline does not entitle plaintiff to recover damages for such loss.

Rules of liability established by the Warsaw apply to "international transportation," to air transportation between one country and another. Warsaw Convention, art. 1(2).

In order to effectuate its drafters' intent to foster international air transportation by creating uniform rules of liability, the Warsaw Convention should be read to create its own cause of action for loss of baggage, so that whether particular damage occasioned by loss of baggage is compensable depends on construction of the Convention and not on internal law of signatory countries. Warsaw Convention art. 18(1).

Provision of the Warsaw Convention creating liability for "damage sustained by" loss of baggage, and containing no language limiting the amount of recovery to the value of the lost baggage or to "foreseeable" damages, should be construed to [10ASR2d2] allow recovery of consequential damages occasioned by loss of baggage. Warsaw Convention art. 18(1).

Under provision of the Warsaw Convention which, unlike the common law, allows recovery of consequential damages whether or not they were foreseeable, passenger's purchase of a battery pack for use during his trip to replace one lost by defendant airline constitutes compensable damage even though the lost battery pack belonged to plaintiff's employer and not to plaintiff. Warsaw Convention art. 18(1).

Terms of air carriage contract which were inconsistent with Warsaw Convention were void, because the contract itself so provided and also because treaty obligations are the supreme law of the land and therefore supersede private contracts. U .8. Const. art. VI.

Airline's disclaimer of liability for "valuable items" such as video equipment is unenforceable in light of Warsaw Convention clause that nullifies contractual provisions "tending to relieve the carrier of liability or to fix a lower limit" than that allowed by the Convention. Warsaw Convention art. 23.

Warsaw Convention limits liability for lost baggage to $9.07 per pound. Warsaw Convention art. 22(4).

Under Warsaw Convention where carrier's liability for lost baggage depends on weight, defendant airline has the burden of proving weight of the lost bag, and in the absence of such proof court will assume the bag weighed seventy pounds, the maximum amount the contract allowed passenger to carry in one bag.

Before KRU8E, Chief Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Plaintiff, Tauivi Tuinei

For Defendant, Charles Ala'lima

On July 27, 1987, Jerry Langford flew from Tongatapu, Tonga to Honolulu, Hawaii on Hawaiian Airlines. One piece of baggage checked with the airline never arrived in Honolulu. The lost metal box contained both some personal effects of [10ASR2d3] Langford's and television equipment which conceded by Langford to have belonged to employer, the American Samoa Government. District Court found that plaintiff Langford had suffered $80 in damages for lost clothing and awarded the American Samoa Government (hereinafter referred to as "A.S.G.") $1366.00 in damages for the lost equipment. Pursuant to A.S.C.A § 3.0309, Hawaiian appealed to the Trial Division of the High Court by way of trial de novo.

The most important issues as they developed at trial were: (1) whether plaintiff Langford was entitled to recover damages consequential in nature; and (2) the measure of such damages.

Our main problem wi th giving relief similar to the relief decreed in the court below is that the television equipment was simply not Langford's and A.S.G. is not before the Court. The District Court characterized the A.S.G. as a "plaintiff" in its own right and awarded the A.S.G. the lion's share of the damages. Findings of Fact, Conclusions of Law, and Order , American Samoa Government ex rel Langford v. Hawaiian Airlines, CA No. 58-87 (District Court March 2, 1988). However, the complaint in that case does not indicate that A.S.G. was a plaintiff. Moreover, the complaint sets out the basis of the suit as the right of the Director of the Bureau of Consumer Protection to bring suit on behalf of individuals. A.S.C.A. § 27.0402. As a non-party, the A.S.G. may not be allowed to recover directly.

It was tenuously suggested that Langford ought to be able to recover the full value of the lost case. His supervisor stated something on the order of: "If we do not recover during this trial, we will be looking to someone to reimburse us for the lost equipment." We doubt that statement alone would suffice to show that Langford will have suffered damages equal to the full value of the case. After all, no one has forced him to pay over the value of the lost equipment and it is doubtful that an independent suit by the A.S.G. could find Langford liable for the loss.

Langford, however, testified that he spent $395.00 of his own funds in Guam to replace one of the lost items, a battery pack, in order that he could do the filming which was the whole purpose of his travel to Guam. Langford now holds the battery [10ASR2d4] pack, although it is of no personal use to him, in the hopes of reimbursement. Hawaiian has denied liability, while his employer, A.S.G., on the other hand chose not to entertain reimbursement expecting that Hawaiian should be responsible. We feel that in these circumstances Langford has been damaged to a greater degree than the $80.00 for lost personal effects ---he is out of pocket of $395.00 because his baggage did not arrive with him in Guam.

Hawaiian defended Langford's claim on basis that its contract had disclaimed liability for "valuable items including but not limited to . ..electronic equipment. ..[and] photographic, video and optical equipment" and that the television components here fell within this exclusion of liability. Rule 26 (B) (2), Terms of Contract of Carriage, at 49 (April 9, 1987).

Discussion

There is no real question that the Warsaw Convention (1) is applicable to this case. The Convention applies to "international transportation." Warsaw Convention, art. 1(2). Here, Langford traveled between two countries which have signed the Convention ---Tonga and the United States. Thus, whether Langford's expenditure of $395.00 is compensable depends on the construction of the Convention.

The Convention provides that "[t]he carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage." Warsaw Convention, art. 18(1). (2) [10ASR2d5]

Courts interpreting this provision and the analogous clause creating liability for personal injury or death have reached two different results. (3) Some courts have said that the clause does not itself create a cause of action. So, the definition of what is "damage" compensable under article 18 would be left up to the internal law of the court hearing the suit. See, e.g., Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied 355 U.S. 907 (1957). More recently, some federal circuit courts have reversed their previous opinions and have construed the language of the clause to create a cause of action, see. e.g., In re Mexico City Aircrash of October 31, 1979, 708 F .2d 400, 415 (9th Cir .1983); Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), cert. denied 439 U.S. 1114 (1979), and have held that the meaning of what is "damage" is controlled by construction of the Convention.

From our analysis of the cases, it is the Court's view that the interpretation provided by the latter line of authority suggests the more logical and natural result of the Convention. Among the reasons given by the more recent cases to sustain the view that the Convention establishes a cause of action, was the apparent and primary concern among the delegates to create and formulate a uniform law relating to the regulation of international air carriage. The court in Benjamins pointed out that making a plaintiff's rights under the Convention dependent on the prior question whether the domestic law of a signatory provided him a cause of action was inconsistent with the spirit of the Convention. The policy of uniformity can only be best effectuated by interpreting the Convention as establishing causes of action independent of local law. The cases further go on to consider in context a number of the Convention's provisions as well as conference minutes as clearly establishing the intendment of universal regulation. As a result the Ninth Circuit in In re Mexico City Aircrash concluded that article 17 of[10ASR2d6] the Convention established a wrongful death cause of action independent of the provisions of California law. Accordingly, this Court shall be guided by the terms of the Convention in determining what damages and the amount of damages plaintiff may recover.

Under the interpretation of cases such as Benjamins the Convention creates liability "for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage." Warsaw Convention, art. 18(1) (emphasis added). In construing this clause to determine what "damages" are recoverable, it is instructive to note that were the sentence meant to exclude "consequential" damages, it could more simply have been phrased in terms of the "value of the lost, destroyed, or damaged merchandise." At least one court has held that consequential damages are recoverable under this article. Saiyed v. Transmediterranean Airways, 509 F. Supp. 1167, 1169 (W .D. Mich. 1981). Also, the scheme of the Convention would make little sense if one were not able to recover consequential damages. Article 19 provides that airlines "shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." Warsaw Convention, art. 19. The major types of damages one might have due to delay are consequential in nature ---having to do without goods, fallen market prices, replacement in the interim, etc. It would make little sense if one could recover consequential damages for the delay of baggage but not for its destruction. 

Finally, it is to be noted that the common law requirement of "foreseeability" of consequential damage under the rule of Hadley v. Baxendale, 9 Exch. 341 (1854), is not applicable under the Convention. The rule of Hadley v. Baxendale on consequential damages results in an allocation of economic risks. The common law limited the type of damages available to those foreseen by the parties when contracting. The Convention, on the other hand, while allowing recovery of consequential damages, allocates risk in a different fashion. Instead of limiting the type of damages recoverable, it imposes a ceiling on the amount of provable damages one may recover and thus seeks to secure reasonable rates of carriage within the industry given, potential risk. Saiyed, 509 F. Supp. at 1169. Otherwise, "[t]he alternative would result in recovery of different elements of damage[10ASR2d7] depending upon the country in which the action for breach was instituted and uniformity could soon be lost." Id.

On the facts herein, Langford traveled to Guam to film and document an event, a meeting of the Pacific Post Secondary Education Council. He was not able to do so without the missing battery pack and given the exigencies of his situation he accordingly purchased with his own funds a battery pack in order to do the filming that took him all the way to Guam in the first place. In the ordinary course of things, Langford had expected his checked baggage, and hence the missing battery pack, to be available to him upon his arrival in Guam. As things turned out, he had to spend money, which he would otherwise have not, had his baggage not gone astray.

We conclude that Langford's need to acquire the battery with his own funds, constituted damage within the provisions of article 18(1) of the Convention.

We next consider the impact of Hawaiian's contractual disclaimer .

The Convention provides that" [a]ny provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this convention shall be null and void." Warsaw Convention, art. 23. The exclusion asserted here by Hawaiian must be viewed as one "tending to relieve the carrier of liability" since the contractual term attempts to exclude from liability such a large class of goods ---"valuable items"-- -which the Convention itself never mentions as items which are excludable. Instead, the Convention speaks in the near-absolute terms we noted above ---the carrier "shall be liable for damage."

Further any terms of contract which are inconsistent with the terms of the Convention are void for of two reasons: first, the contract explicitly states that any contractual provision "which is inconsistent with any provision of the said [Warsaw] Convention shall, to that extent, but only to that extent, be inapplicable to international transportation." Rule l(B), Terms of Contract of Carriage, at 5 (October 30, 1983). Also, the Convention is a treaty obligation of the [10ASR2d8] United States. It is thus the supreme law of the land, U .S. Const. art. VI, and supersedes both state laws, In re Aircrash in Bali. Indonesia on April 22, 1974, 684 F.2d 1301, 1309 (9th Cir. 1982), and private contractual terms.

In the Saiyed case, the contract of carriage had disclaimed liability for consequential damages. The plaintiff's shipment of goods was delayed and damaged when it arrived in Pakistan and the plaintiff sought damages for his lost profits and injury to his credit rating. Saiyed, at 1168. The court held that the contractual provision violated article 23 because it "tends to relieve the carrier of liability for damages which would otherwise be recoverable under the Convention." Id. at 1169. Similar reasoning would invalidate the electronic equipment exclusion. More closely analogous on its facts is Schedlmayer v. Trans International Airlines, 99 Misc. 2d 478, 416 N.Y.S.2d 461 (1979). The court in Schedlmayer found unenforceable an airline tariff disclaiming responsibility for cash in passengers' baggage. The court held that to allow such a tariff to stand would be tantamount to allowing the airline to relieve itself of liability beyond the extent permitted by the Convention and thus contravene article 23. Id.., 416 N.Y.S. 2d at 464.

Finally we look to the carrier's limits of liability under the Convention.

The Convention limits a plaintiff to recovering $9.07 a pound in damages for lost, delayed, or damaged baggage. (4) Neither party proved the weight of the bag. However, it would seem that the burden is on Hawaiian to demonstrate how much the bag weighed. See DeMarines v. KLM Roval Dutch Airlines, 433 F .Supp. 1047, 1061 (E.D. Pa. 1977), rev'd on other grounds 580 F.2d 1193 (3d Cir. 1978) (the airline must prove delivery of ticket to claim limitation of liability for personal injuries or [10ASR2d9] death). Having failed to do so, it is reasonable to assume that the bag weighed up to 70 pounds--- the most weight which Hawaiian's contract purports to authorize the passenger to carry in one bag. Rule 24 (A), Terms of Contract of Carriage, at 46 (June 24, 1986). If we assume this, Langford's maximum recovery of $475.00 ($80.00 in clothing plus $395.00 for the replacement battery pack) is well below the $634.90 ceiling under the Convention.

For the foregoing reasons, plaintiff Langford shall have judgment against defendant Hawaiian Airlines for the sum of $475.00. It is also decreed that the battery pack in question held by Langford shall be delivered to, and disposed of by, defendant Hawaiian Airlines in mitigation of damages.

It is so Ordered.

*********

1. Multilateral Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature Oct. 12, 1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, T.S. No.876 (reprinted as note to 49 U.S.C.A. § 1502).

2. The Convention allows a carrier to escape liability by demonstrating that it had taken all necessary measures to avoid damage or by showing that the passenger contributed to his damage. Warsaw Convention, arts. 20, 21. Hawaiian has not attempted to make any such showing.

3. Although the cases to be cited in this paragraph deal primarily with questions of jurisdiction and whether a plaintiff in a Warsaw Convention case needs to meet independent jurisdictional requirements of diversity cases, the principles they discuss apply to the question discussed as well.

4. The Convention limits liability to a certain amount of gold per kilogram. Warsaw Convention, art. 22(4). The figure of $9.07 per pound derives from the last "official" price for gold before gold prices became set on the free market. Trans World Airlines. Inc. v. Franklin Mint Corn., 466 U.S. 243 (1984).

Galo v. American Samoa Gov’t,


IVA T. GALO and PEATA GALO, personally, 
as personal representatives of the Estate 
of DAVID GALO, Deceased, and as Guardians 

ad Litem of FA'AFAGA GALO and MALAE aka 
PATISEPA GALO, Minor Children, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa 
Trial Division

CA No.113-87

March 8, 1989

__________

Parents who relinquished rights to their child so that he could be adopted by another family did not thereby terminate the child's legal relationship to his brother.

When parents who had accepted appointment as guardians ad litem for their minor child relinquished their parental rights to the child, parents and their attorney continued to have a fiduciary relationship requiring vigorous protection of the child's interests in connection with the lawsuit, especially insofar as these interests might conflict with their own. [10ASR2d95]

For guardians ad litem and their counsel to request that minor child receive no share in settlement award was inconsistent with their fiduciary obligation to him, especially where the result of disregarding the child's interests was to leave more money to be distributed among other family members including the guardians themselves.

Attorney for guardians ad litem of minor child should have advised guardians of their fiduciary obligation rather than acquiescing in their request to eliminate the child from distribution of settlement award.

Parents' intention to make use of settlement award in a way that would benefit the whole family was insufficient reason to award parents a greater portion of the settlement, and children a lesser portion, than reflected the injuries actually suffered by the various parties.

Parents, as personal representatives of their child's estate, were entitled to recover for the child's pain and suffering and for medical and funeral expenses. A.S.C.A. §§ 43.5001, 43.5002.

Where attorney had failed to represent one of his four clients, a minor child, and had failed to advise his other clients of their fiduciary obligations to the child, court charged with settlements involving minors would not approve an attorney's fee in the maximum amount permitted by law but would require a reduction in the fee. A.S.C.A. § 43.1213.

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

Counsel: For Plaintiffs, Asaua Fuimaono 
For Defendant, Robert Dennison, Assistant Attorney General

On Motion to Allocate Funds and for Approval of Attorney Fees:

This action arose from the death of infant David Galo shortly after his birth at the Lyndon Baines Johnson Tropical Medical Center. Defendant American Samoa Government negotiated a settlement with the single attorney who was representing all [10ASR2d96] parties including the minor children. The attorney now files a request for the following distribution of the $25,000 settlement:

Peata Galo (father) $ 9,000
Iva Galo (mother) 9,000
Patisepa Galo (minor child) 1,000
Fa' apiano Galo (minor child) 1,000
Fa' afaga Galo (minor child) 0
Attorney Fees 5,000

Fa' apiano Galo is a child born to Iva and Peata Galo two years after the death of David. He is not a plaintiff in this action. The attorney has not requested any funds for Fa'afaga Galo, who is a plaintiff and for whom Iva and Peata Galo have been appointed Guardians ad Litem, on the ground that Fa'afaga has been adopted by another family. The attorney requests that the bulk of the settlement be given to the parents, with only a token amount for the children, so that the parents can purchase a piece of property.

There are several things wrong with the proposed distribution.

First, although it is possible to construct an argument that Fa' apiano has suffered injury during his lifetime from an event that occurred two years before he was born, counsel has not bothered to do so. Indeed, Fa'apiano was never named as a plaintiff in the action. Counsel proceeds instead on a theory that the Court should treat Fa'apiano as having stepped into the shoes of plaintiff Fa'afaga as a result of the adoption of the latter and the birth of the former .

This raises the second problem: although Iva and Peata Galo did relinquish their parental rights so that Fa'afaga could be adopted by another family, they did not thereby terminate his status as the brother of David. Nor was there an end to the status of Iva and Peata as guardians ad litem for Fa'afaga (a status described in the order drafted by their attorney as "Personal Representative of.... their other children FA'AFAGA GALO and MALAE GALO."). Despite the termination of their legal rights and obligations as the parents of Fa'afaga, the parents and their attorney continued to have a fiduciary relationship to the child as his guardians ad litem or "personal representatives. " The principal obligation imposed [10ASR2d97] by that relationship was the vigorous protection of the child's interests in connection with this lawsuit, especially insofar as these interests might conflict with their own.

It does not seem unreasonable to maintain that a child suffers less by the death of his brother when the brother does not live in the same household. For the child's guardians and their counsel to treat the child's interests as worth exactly nothing, however, was inconsistent with their fiduciary obligation to him. This is particularly true insofar as the result of disregarding Fa' afaga's interests was to leave more money to be distributed among other family members including the guardians themselves. Although the guardians may not have understood this, their attorney should have advised them of it rather than simply acquiescing in their request to eliminate Fa' afaga from the proposed distribution.

Finally, the parents' intention to make use of the settlement in a way that will benefit the whole family is insufficient reason to award them a greater portion of the settlement, and the children a lesser portion, than reflects the injuries actually suffered by the various parties on account of David's death. (This is not to say that the result desired by the parents was impossible to achieve. Upon a showing that the proposed purchase would be the best possible use of funds to which the children are rightfully entitled, the Court would presumably authorize such use subject to appropriate safeguards of the children's interest in the property. Again, the attorney should have known the difference.)

As it happens, we believe that the parents are entitled to a larger share than the children, not because of what they intend to do with the money but because they are likely to have suffered more by David's death. Indeed, the complaint states a cause of action for Iva Galo's pain and suffering during labor as well as upon the death of her child. Also, as the sole legal heirs of David Galo his parents were appointed his personal representatives in this action. See A.S.C.A. §§ 40.0201(d), 43.5002. As such they are entitled to recover for the pain and suffering of David himself before his death and for medical and funeral expenses. See A.S.C.A. §§ 43.5001(b), 43.5002; [10ASR2d98] Fa'avae v. American Samoa Power Authority, 5 A.S.R.2d 53 (1987).

Accordingly, we order the settlement funds distributed as follows:

Iva Galo $ 8000
Peata Galo 5000
Iva & Peata Galo as personal representatives of David Galo 4000
Patisepa Galo 3000
Fa'afaga Galo aka Fa'afaga Gaoa 2000
Attorney Fees 3000

The original proposed distribution allocated a $5000 attorney fee. This is 20% of the total settlement, the statutory maximum in cases against the government that are resolved by settlement. A.S.C.A. § 43.1213. Under the circumstances of this case, including the attorney's total failure to represent one of his four clients and his failure to advise his other clients with respect to their fiduciary obligations, $3000 is the largest fee we can possibly approve.

The funds to be distributed to Patisepa and Fa' afaga should be deposited in the registry of the Court, where a trust account will be established for them with the guardians ad litem as trustees, or in some other trust account approved in advance by the Court.

At the request of counsel for the government and without objection from plaintiffs, the settlement agreement approved by the Court is amended to correct a typographical error. The amendment is to replace the name "Fa' afetai" with "Fa'afaga" wherever it appears.

It is so ordered.

*********

District Court; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Petitioner

v.

DISTRICT COURT, Respondent

VAELUAGA SOOALO, Real Party in Interest

High Court of American Samoa 
Trial Division

CA No. 6-89

January 20, 1989

__________

A prerequisite to granting a writ of mandamus is the absence of other adequate relief.

Trial court rule authorizing the government to file a new criminal complaint for the same offense after dismissal of the complaint by district court for lack of probable cause provided government with an adequate remedy where government claimed the complaint should not have been dismissed. T.C.R.Cr.P. 5.1(b). [10ASR2d19]

Statute authorizing the government to appeal from dismissal of criminal complaint where dismissal arose from construction of statute provided government with an adequate remedy for errors of law by district court. A.S.C.A. § 46.2405.

Where statutory right of appeal from alleged errors of law by district court provided government with an adequate remedy, government's petition to High Court for writ of mandamus should be denied. A.S.C.A. § 46.2405.

Before KRUSE, Chief Justice.

Counsel: For Petitioner, Jerry Williams, Assistant Attorney General

The American Samoa Government (hereafter "A.S.G.") petitions for an alternative writ of mandamus directed to the District Court to show cause why its order dismissing the complaint in Criminal Action No. 192-88 should not be vacated. The complaint filed below contained a count accusing the defendant (Real Party in Interest) of having committed the crime of assault in the second degree. The order complained of arose during the preliminary examination hearing held consequent to the complaint. The District Court Judge was not satisfied that probable cause had been established on the assault charge and accordingly dismissed that count of the complaint.

A prerequisite to granting a writ of mandamus is the absence of other adequate relief.

For the reasons given below, the petition must be denied. Firstly, the A.S.G. is not without adequate remedy. Trial Court Rules of Criminal Procedure Rule 5.1(b) authorizes the A.S.G. to re file the complaint for the same offense. Hence the government may reprosecute the defendant. If the defendant should again invoke his right to a preliminary examination, the A.S.G. will in effect have another chance to reevaluate its evidence to be presented to establish probable cause before the District Court.

Secondly, an appeal is available pursuant to A.S.C.A. § 46.2405 where dismissal of the complaint below arose from "construction of the statute upon [10ASR2d20] which the prosecution is founded." That is, appeals lie from errors of law. While the A.S.G. has recited in its petition that the order complained of was not premised on an error of law, counsel's Memorandum of Points and Authorities attributes to the court below what appear to be errors of a legal nature. The memorandum reads:

[t]he District Court erroneously dismissed the Complaint on 
two grounds. First, the rock was not introduced into evidence 
and second, no injuries were sustained.... The statute... does 
not require a rock of any particular size. ..[n]o size need be 
shown by the prosecution to establish probable cause. 
Nor is the government required to show injuries sustained...
Apparently, the District Court believes that injuries must be 
"sustained" before Assault Second will lie.

A.S.G. 's Memorandum of Points and Authorities page 3. The exception taken to the District Court's decision goes to the construction of the criminal assault statute. Hence A.S.C.A. § 46.2405 is the remedy adequately provided and the writ should not issue.

As such a statutory right to appeal has certain time limitations for filing, this petition will be summarily denied so that the A.S.G. may timely file an appeal, if it so desires.

It is so Ordered.

*********

Ifopo v. Siatu'u,


IFOPO SAIPISA on behalf of the
IFOPO FAMILY , Plaintiff

v.

SA SIATU'U, FIAAOGA SIATU'U, SAPINI SIATU'U,
and the Children of SIATU'U, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 10-88

March 2, 1989

__________

Absent any evidence of fraud, registration of title to land pursuant to legislative procedures (which [10ASR2d67] require, inter alia, public posting of an offer of registration for sixty days during which any objections must be filed) cannot be questioned. A.S.C.A. §§ 37.0101 et seq.

Statutory proceedings for registration of land have in rem effect. A.S.C.A. §§ 37.0101 et seq.

Land registration statutes were intended by the legislature to secure finality of the registration process, and review of the process forty years later would be in derogation of that objective by causing public confidence in the recordation process to disappear and the security of registered land titles to be seriously weakened. A.S.C.A. §§ 37.0101 et seq.

Court would not look behind a land title recorded forty years earlier and accompanied by territorial registrar's recital indicating that the notice required by statute had been given, where plaintiff's testimony that neither she nor any family member had been made aware of the

registration was not based on personal knowledge as she had resided elsewhere at all relevant times.

Although a document filed in an attempt to arrest adverse possession, stating that certain persons were occupying property by permission of the signatory, was inconsistent with a prior sale of the same land to one of the named occupants by the signatory or by his predecessor in title, the document was not conclusive since the signatory and/or his predecessor might have acted inconsistently by selling the land and later filing the document.

Court would not invalidate a land title registered forty years earlier on the ground that the territorial registrar's file did not contain a certificate that the required notice of a survey had been given, since the certificate might have been misplaced during the intervening years and since the court could assume that the Registrar would comply with the statute prohibiting acceptance of the registration without the required certificate. A.S.C.A. § 37.0103.

In an action attacking the validity of a concluded land registration proceeding to which a presumption of conclusiveness had attached, the court would not surmise from a variance in dates between the survey [10ASR2d68] and the offer of registration that the required notice of the survey had not been given, since the original commissioning of a survey in 1933 did not preclude the possibility of a physical retrace in 1945 when the registration process was undertaken. A.S.C.A. § 37.0102.

Court could not conclude that lands registered forty years earlier by one party as individual land had in fact been the communal land of another party, and that the registration was therefore in violation of the statute governing alienation of communal land, where (1) plaintiff's evidence of title was at best circumstantial whereas defendant's claim was supported by the records of the territorial registrar to which the legislature intended to have a final and in rem effect; (2) plaintiff's family had failed to timely object to the registration and had thus waived their rights; and (3) the registration was in apparent compliance with law and without evidence of fraud. A.S.C.A. §§ 37.0101 et seq.

Before KRUSE, Chief Justice, LUALEMAGA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Aviata Fa'alevao
For Defendants, Edwin Gurr

Plaintiff is the senior matai of the Ifopo family of the village of Fagatogo. Defendants are the children and heirs of the late Rev. Peleti Siatu'u who had settled in Fagatogo in the early 1930s. This dispute concerns a small piece of land, about 1/12th of an acre, located in the village of Fagatogo. Title to the land, with an accompanying survey, is registered in the Office of the Territorial Registrar as the individually owned land of Siatu'u, with the date of registration being February 5, 1945.

Plaintiff claims this land as part of the communal land of the Ifopo family known as "Paepaetele." As she understood Siatu' u's relationship to the land, he was merely occupying the plot in question at the sufferance of the Ifopo family. She only recently found out about the fact of registration after attempting to stop certain reconstruction work being done to Siatu'u's home located on the land. Plaintiff seeks annulment of [10ASR2d69] the registration; a declaration that the land is communal in nature and belongs to the Ifopo family; and possession of the land and the ejectment of Siatu'u's descendants.

Neither party disputes that Siatu'u came to live at Fagatogo through the assistance of plaintiff's father Nakiso, a former titleholder , and her brother, who at that time held the title Ifopo (apparently following the father's resignation in his favor ---fa'aui le ula). Ifopo and Nakiso pointed out a site for Siatu'u to occupy. However, the parties are at odds regarding the arrangement between their respective predecessors in interest. Plaintiff claims that Siatu'u was occupying Ifopo land at the sufferance of the Ifopo family. Defendants on the other hand claim that the land was sold to their father by Nakiso and his son Ifopo. In denying such a sale, plaintiff argues that there is no conveyance on record with the Territorial Registrar evidencing a proper alienation of communal land and that in any event such a sale between her predecessor and Siatu'u would be in violation of the laws against the alienation of communal land and thus void.

There was no meaningful testimony, however , explaining the background to the registration exercise. Plaintiff seemed to suggest that the registration was not above board, while defendant seemed to say that registration somehow consummated the sale.

Discussion

The immediate problem we encounter with this particular suit is that the Court is being asked to go behind the Registrar's records some 40 years after the fact and examine whether or not there was compliance with the registration enactments in force at the time. In similar circumstances the Court has held that, absent any evidence of fraud, the registration of title to land pursuant to the registration enactments (See A.S.C.A. §§ 37.0101 et seq.) cannot later be questioned. Molitui v. Pisa, 2 A.S.R. 268 (1947). These enactments require, inter alia, that an offer for title registration shall be posted publicly for a period of 60 days from the date of application and that any persons objecting to such offer shall file their objections within that period. A.S.C.A. §§ 37.0103 (a)-(b). If there are no objections filed within the 60 day [10ASR2d70] time frame, the Registrar shall, provided that all other statutory requirements have been met, register title to the applicant accordingly. A.S.C.A. § 37.0103 (c). Any objections filed outside that 60 day period will not be considered, Puluti v. Muliufi, 4 A.S.R. 672, 674 (1965), and the registration proceedings have in rem effect. Molitui v. Pisa, supra, at 270. The Court today is being asked to review compliance with these statutory requirements in 1945.

Even a casual glance at the enactments--- A.S.C.A. §§ 37.0101 et seq. ---would reveal the unmistakable legislative design to secure finality of the registration process. A review of that process some 40 years after the fact must surely be in derogation of that objective. If review could be readily available at any time whatsoever, then any public confidence in the recordation process will disappear and "[the] security of registered land titles would be seriously weakened to the detriment of the Samoan people." Molitui v. Pisa, supra, at 270. Indeed, some of the reasons behind these concerns for finality and integrity of the registration process become quite apparent when considering the evidence presented here.

In accepting Siatu'u's application to register the land, the Registrar recited as follows:

Notice having been posted for 60 days and there being no
objection to the registration of the land PAlPAITELE [sic]
in the name of Siatu'u, it is accordingly so registered as such.

On the other hand, plaintiff objects to the validity of such registration for a number of reasons. Firstly, plaintiff testified to the effect that neither she nor anyone else in the family was aware of the registration. She maintains that Siatu'u, who originally hailed from Manu'a, was merely permitted to live on the land by the matai, just as a number of other non-family members are found living on various other parts of "Paepaetele." Plaintiff notes that such a family of outsiders once attempted to register a part of [10ASR2d71] "Paepaetele" on their own accord and were ousted by her predecessor. (1)

Plaintiff further submitted a registered document, signed by Ifopo Fa'ateleupu and dated "January 20, 1966," which notifies the world that certain people, including Siatu'u, were occupying parts of Ifopo lands permissively. Such filings had the effect of arresting the running of the adverse possession statute, and plaintiff contends that that document by its very nature was therefore inconsistent with any acknowledgment of a sale.

As the testimony developed, however, it became quite apparent to the Court that plaintiff was in effect testifying negatively while drawing on recorded documentation to inferentially corroborate that negative. That is, plaintiff was not testifying from personal knowledge. She lacked knowledge as at all relevant times (when the principal method of inter-island communication would have been trading schooners) plaintiff primarily resided in a rural area of Upolu, Western Samoa, with her late husband. The notoriety then of such events occurring in Tutuila, as the surveying of land and the posting of notices dealing with lands, would of course have eluded plaintiff's attention. Plaintiff's lack of knowledge does not therefore mean that her predecessor in interest and adult family members occupying the family holdings at the time were not aware of registration events that occurred in 1945. In the light of plaintiff's extent, or lack, of knowledge, it would be exceedingly reckless speculation to question the above quoted recitals of fact made by the Registrar.

But plaintiff also directs our attention to the inconsistency between the registration papers and the document attempting to prevent adverse possession. The inconsistency is apparent, but that is about all we can say today about the documents since we can only but guess at the underlying considerations moving the generation responsible for the documents. The inconsistency in the nature of the documents does not necessarily mean that the Ifopo at the time could not have "acted" inconsistently ---presuming that we are [10ASR2d72] dealing with the same Ifopo. (According to plaintiff's testimony, her brother Ifopo Fa'amaile preceded her brother Ifopo Fa'ateleupu, who is the signatory of the 1966 document arresting the statute of limitations. However, her testimony about the date when the said Fa'amaile took the title was very vague.) The factual possibilities that thus confront us today are exactly the sort of reasons why the legislature early developed a method of registration which would ensure "finality" of land titles and thus eliminate any guesswork for future generations.

Plaintiff further submits that compliance with the registration enactments includes certification by the pulenu'u of the village that notice of the intended survey was given as the Act requires. Plaintiff maintains that the registration proceedings before us were defective in that there is no such certification on file with the Registrar's records.

Again, all that we can be sure of today is that the usual certificate of the pulenu'u one expects to be on file is not in fact on file. But that does not preclude the possibility that such certification was indeed made and placed on file at one time but has since gone missing. On different occasions before this Court, the present Registrar has acknowledged the fact that documents have been found to be missing from his files. (2) Again we find ourselves in the realm of speculation. The possibilities range from there was no certification undertaken by the pulenu'u to there was indeed a certification that has since been misplaced. The latter possibility may be more probable. We might assume that the Registrar, who was required to ensure total compliance with the enactments, (3) would [10ASR2d73] not have accepted the registration offer without the pulenu'u's certification.

The strongest ground advanced by plaintiff arises because it was apparent on the evidence that while the registration process occurred in 1945, the survey submitted for registration bears the earlier date 1933. Plaintiff assigns error to the registration proceedings in this regard, citing Muagututi'a v. Savea, 4 A.S.R. 483 (1964). This was a case where the Court denied registration to an applicant who had offered a survey made some 17 years earlier but accompanied by a current pulenu'u's certification of notice. The Court held that "the certificate filed d[id] not comply with the statute, the notice having been given almost 17 years after the survey was made." Id. at 484. This holding of the Court was a factual one whose facts are distinguishable from the facts of the matter at bar. The difference is the respective degree of proofs. In the Muagututi'a matter, the Court was concerned with a disputed registration proceeding. Obviously it was not satisfied on the evidence that the pulenu'u had complied with the statutorily required notice of the intended survey prior to the time of survey. Here, the plaintiff disputes a concluded registration proceeding to which attaches a presumption of conclusiveness. We are again essentially being asked to surmise from the difference in dates between registration on the one hand, and survey on the other, that the notice required by statute was therefore not given. The underlying consideration for such notice is contemporaneity with the fact of survey in order that all possible claimants may have the opportunity to object. (4) That a survey may have been originally commissioned in 1933 by Siatu'u does not necessarily preclude the possibility of a physical retrace of that survey having occurred in 1945, when the registration process was undertaken. Such a possibility would satisfy the statute as to notice. Lualemaga v. Asifoa, 9 A.S.R.2d 85 (1988). [10ASR2d74]

As we alluded to above, fraud on the part of an applicant will vitiate the public policy concerns for finality and integrity of public recordings ---fraud invariably tolls limitations periods. A palpable fraud will invalidate a registration exercise. See also Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). On the evidence presented us, we are unable to see anything that would sustain a conclusion of fraud in the proceedings of 1945.

Finally, we consider plaintiff's contention that any sale of communal family lands by a former Ifopo to Siatu'u would be void for violating the statutes forbidding the alienation of communal land by a matai without the express permission of the Governor. See A.S.C.A. §§ 37.0201 et seq. This whole argument depends of the presupposition that the land in question is in fact the "communal" land of the Ifopo family. From an evidentiary point of view, the Court is confronted with the integrity of the Territorial Registrar's records, backed by the "finality" objectives of the registration enactments, evidencing title in this particular piece of realty as being in the individual ownership of Siatu'u. Against this is merely a claim of ownership by the present Ifopo backed by inference, or in the best light, circumstantial evidence to the following effect: if a prior Ifopo sold land, it necessarily follows that such land was communal in nature only; it is necessarily communal land because the 1/12 acre is surrounded by Ifopo people today; that such surrounding lands have been in part held by the Court to be Ifopo communal land, see Ifopo v. Vaiao, supra; therefore it necessarily follows that the 1/12 acre is Ifopo communal land. In these circumstances, the Court is hard pressed to undermine the integrity of the Registrar's records given the statutorily intended in rem effect of title duly determined pursuant to the registration enactments. The time for the Ifopo family to provide its extrinsic proofs of adverse title has long since lapsed. Indeed, they have waived their rights because of their apparent failure to object timely during the 1945 registration proceedings. Title, having been registered in the name of Siatu'u in apparent compliance with the registration enactments and without any evidence of palpable fraud, just cannot be disturbed today. [10ASR2d75]

For the foregoing reasons, it is the Court's judgment that plaintiff has failed to sustain her burden of proof in questioning the integrity of the Registrar's records and his compliance with the registrations enactments in 1945. The complaint is therefore dismissed.

*********

1. The reference was to Ifopo v. Vaiao, 2 A.S.R. 472 (1949).

2. Remedial action in the form of multiple reproduction of records will presumably eliminate any future problems with missing documentation.

3. A.S.C.A. § 37.0103(c) reads: "If no notice of adverse claim is filed within the 60-day period, and all requirements of this chapter have been complied with. the territorial registrar shall register the title to such land in the name or names of the applicant or applicants." (Emphasis added.)

4. The pulenu'u is required among other things to give "public oral notice in the village at a meeting of the chiefs thereof of the time and place of the intended survey in order that other interested landowners might have an opportunity to be present thereat." A.S.C.A. § 37.0102 (c) (emphasis added).

I'aulualo v. Siofaga,


I'AULUALO FILO FATU, Plaintiff

v.

FALESEU MATAIUMU SIOFAGA, Defendant

High Court of American Samoa
Land & Titles Division

MT No. 1-89

February 10, 1989

__________

Territorial statute prohibits anyone from using a matai title before title has been registered in accordance with provisions of statute. A.S.C.A. §§ 1.401 et seq., 1.0414.

Where family had agreed that two persons would jointly hold matai title, and one of the two co- holders registered the title in accordance with statutory provisions, territorial statute required that the other co-holder be enjoined from using the title. A.S.C.A. §§ 1.0401 et seq., 1.0414.

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

Counsel: For Plaintiff, Tau'ese P. Sunia
For Defendant, Sala E. Samiu

Plaintiff moves to enjoin defendant from further holding himself out as co-holder of the matai title I'aulualo pertaining to the village of Afono. In 1980, the I'aulualo family presented both plaintiff and defendant before the village council as the appointed co-holders of the family's [10ASR2d27] title. On the testimony, this action taken has no precedent in the customs and traditions of the I'aulualo family. Bestowal of title in the customary manner was accordingly undertaken. With the family's consent as well as plaintiff's (in the apparent desire to resolve family differences regarding the appointment of a matai), defendant has since held himself out as a matai and has accordingly participated in council matters both at the village and county levels. According to the testimony, however, plaintiff was elected to register the title in order to comply with the requirements of the law. (1)

Until recently the parties have co-existed. Defendant, however, has proven more popular with the village and county. He has been nominated by the county to the government position of County Chief, which position the plaintiff also desires. Friction arises between the parties because of this issue, it also being one of the admitted reasons for this matter coming to court.

As it happens, the communal complicity in the bestowal of the title on an additional holder has resulted in the defendant's running afoul of the provisions of A.S.C.A § 1.0414. This provision prohibits a person from using a matai title before the same has been registered in accordance with the provisions of A.S.C.A. §§ 1.401 et seq.

As defendant is not a registered holder of the title I'aulualo, and his use of the title is in violation of A.S.C.A § 1.0414, it is therefore ORDERED that Defendant Faleseu Mataiumu Siofaga, is hereby enjoined from further use of title, or holding himself out as, I'aulualo. (2)

*********

1. The process of registering matai titles involves the Territorial Registrar's public posting of the claim for a period of 60 days. A.S.C.A. § 1.0406. If no objections are made within that 60 day period, the Registrar will register the title to the claimant. A.S.C.A. § 1.0407.

2. Our decision may appear harsh in that everyone concerned, including the family, is equally blameworthy in promoting the violation of the law and yet the defendant alone bears the consequences. Our concern in this matter is not punishment but giving proper effect to the statute. Punishment is the concern of the criminal court. A.S.C.A. § 1.0414 is also a criminal statute and prosecution thereunder is within the exclusive province of the Attorney General.

Aoelua v. Tela,


SOLI AOELUA, Plaintiff/Objector

v.

TELA P. TAGOA 'I, Defendant/Claimant

High Court of American Samoa
Land & Titles Division

LT No. 94-81

January 30, 1989

__________

Judgment in prior case, between same parties and involving same land as the present case, was res [10ASR2d21] judicata and therefore bound the parties and the court notwithstanding losing party's contention that the judgment did not accord with Samoan custom.

Where judgment in prior case, between same parties but involving different land, had rejected one party's contention that he was the owner according to Samoan custom of all lands occupied by the other party, court deciding subsequent case must reject this contention notwithstanding the party's contention that the prior judgment did not accord with Samoan custom.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and OLO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendant, Togiola T .A. Tulafono

Claimant is the senior matai of the Tela family and had offered for registration some 5.62 acres of land located in the village of Afono as the communal property of the Tela family.

Soli Aoelua objected to the offer on the grounds that claimant's survey included land belonging to the Aoelua family as held in Aoelua v. Tela. LT. No.31-80 (1982), and affirmed by the Appellate Division in Tela v. Aoelua. AP No. 48-82 (1982).

On the evidence before the court, it did indeed appear that the survey Tela offered for registration does include the greater part of the land "Failafua" which was awarded to the Aoelua family in the above cited case. That case's holding is res judicata.

However, the northern portion of Tela's survey as does not encroach upon the land "Failafua" awarded to Aoelua in 1982, may be registered as the communal land of the Tela family pursuant to A.S.C.A. §§ 37.0101 et seq. That portion of the claimant's offer for registration is not contested by the Aoelua family.

On the other hand, the objector contends that the southern and small portion of land remaining in Tela's survey which is outside, but contiguous to, [10ASR2d22] the 1982 award to Aoelua, is the communal land of the Aoelua family.

In proof of his family's claim to the contested southern portion, Tela testified that according to longstanding custom evident to this very day in the village, the Aoelua title was a lesser matai of the Tela family. As such, there are no lands appertaining to the Aoelua title distinct from the greater Tela family holdings. This theory was rejected in the 1982 case which found that while the Aoelua and Tela families were related by blood, the two titles, at least for purposes of holding land, were distinct. Tela nonetheless feels that the 1982 decision did not accord with traditional realities.

Against this general claim to overlordship by Tela, we find that the evidence preponderates in favor of the Aoelua family and shows actual and habitual occupation of the contested southern portion by members of the Aoelua family. The homes of the widow and daughter of the former title holder, Aoelua Soli, are located there. The crops on this portion of land are maintained and utilized by the Aoelua people and we find that control over the land in terms of use as well as authorization for structures thereon has been at the instance of the late Aoelua Soli.

We conclude in relation to the disputed southern portion or the land that claimant Tela has failed in his burden of proving entitlement and therefore deny his application for registration.

Accordingly, Tela may only register such portion of his survey depicting that area of land north of the land "Failafua" which was awarded to the Aoelua family in Aoelua v. Tela, supra.

It is so Ordered.

*********

American Samoa Power Auth . ; Pene v.


SEIGAFOLAVA R. PENE and
CARMENCITA PENE, Appellants

v.

AMERICAN SAMOA POWER AUTHORITY and
ABE MALAE, Executive Director, Appellees

High Court of American Samoa
Appellate Division

AP No. 3-89

February 21, 1989

__________

Party to appeal, other than a party to a criminal or administrative agency proceeding who has been given leave to proceed in forma pauperis, must bear the cost of preparing such portion of the transcript as he wishes to include the record on appeal. Appellate Court Rules 10(b)4, 24.

There is no general constitutional right indigent persons to litigate free of charge.

Denial of access to legal proceedings to those unable to pay the costs of such proceedings is a denial of due process of law only in cases where litigants seek to extricate themselves from family relationships imposed on them by the government.

Litigants who demanded costs of litigation, compensatory and punitive damages on account of mental distress said to have been caused by a brief disconnection of their electricity, and an injunction against future disconnections, and whose electricity had been disconnected after they had stopped paying their electric bill in retaliation for conduct of the electric company in an unrelated land dispute, had no constitutional right to a free trial transcript for use on appeal.

Appellants who claimed they could not afford to pay for a trial transcript had already been afforded due process of law by a trial on the merits, a written opinion by the trial judge on the merits of their claims, a hearing on their motion to reconsider, and another written opinion on that motion. [10ASR2d62]

Appellants who cannot afford to pay for a trial transcript lose only the right to urge that the trial court's findings of fact were unsupported by the evidence; they remain free to seek the correction of such errors of law as may appear from the facts as found by the trial court, or to negotiate with opposing parties an agreed statement of the evidence in lieu of a transcript. Appellate Court Rules l0(b)(l), l0(b)(2), l0(d).

Before REES, Associate Justice.

Counsel: Appellants Seigafolava R. Pene and Carmencita Pene pro se
For Appellees, Robert Dennison, Assistant Attorney General

On Request for Waiver of Transcript Costs:

Appellants move that the court reporter who recorded the proceeding below be ordered to provide them with a transcript free of charge.

Although the High Court employs court reporters to record all proceedings, such records are necessarily taken in the form of notes that are not decipherable by untrained persons. The translation of a reporter's notes into a typed transcript is a time-consuming process undertaken only when a verbatim record is needed by the Court or by a party.

The Appellate Court Rules provide that parties to criminal actions and to administrative agency proceedings may be given leave to proceed on appeal in forma pauperis if they can establish to the satisfaction of the Court their inability to pay the costs of appeal. Appellate Court Rule 24. In all other cases the rules require that a party who wishes to include part or all of the transcript in the record on appeal must bear the costs of preparing the transcript. Appellate Court Rule l0(b)(4). An order for the preparation of a free transcript in an ordinary civil case such as this one would contravene these rules.

In some circumstances the denial of access to legal proceedings to those unable to pay the costs of such proceedings has been held to deny due [10ASR2d63] process of law. In Boddie v. Connecticut, 401 U.S. 371 (1971), the United States Supreme Court held that a state may not deny a divorce on the sole ground that the person seeking the divorce action cannot afford to pay a filing fee. In Little v. Streater, 452 U.S. 1 (1981), the Court held that a state could not charge an indigent defendant in a paternity suit for the cost of blood tests where state law effectively required such tests to disprove paternity. In these cases the Court stressed the involvement of a constitutionally protected family relationship and of a state legislative scheme that effectively imposed such a relationship on those who could not afford to sue their way out of it. See Boddie, 401 U.S. at 382-83; Little, 452 U.S. at 13-14.

The Boddie Court specifically refused to find a general right of indigent persons to litigate free of charge. 401 U.S. at 382. Nevertheless, the case was for a time frequently cited in support of a constitutional right of indigents to exemption from costs and fees in cases having nothing to do with divorce or family relationships. Two years after Boddie, however, the Supreme Court decisively denied the existence of such a right for litigants who seek to vindicate interests "in the area of economics and social welfare." United States v. Kras, 409 U.S. 434, 446 (1973); see Ortwein v. Schwab, 410 U.S. 656 (1973).

Kras upheld the constitutionality of filing fees in bankruptcy cases, even in a case where the petitioner could not afford the fee and therefore could not obtain a discharge in bankruptcy. Ortwein rejected a constitutional challenge to filing fees in a proceeding for judicial review of a denial of welfare benefits. In each of these cases the Court rejected a constitutional claim to exemption from fees even though the rights being asserted were of special importance to the indigent. That anyone should be denied welfare or bankruptcy because he is too poor, whether or not it is unconstitutional, is suffused with irony. The proposition that indigents have a general constitutional right to exemption from costs, even in garden variety civil suits lacking the special circumstances that were present in Kras and Ortwein, is clearly inconsistent with the holdings of those cases. [10ASR2d64]

Appellants in the present case, unlike the indigent litigants in Boddie and Little, do not seek to extricate themselves from a family relationship imposed on them by the government. They do not even seek to vindicate, as did the unsuccessful parties in Kras and Ortwein, an interest that is closely connected to their alleged indigence or that might otherwise afford a basis for distinguishing this case from the many others in which prospective litigants are deterred by the cost of litigation. Rather, they demand money: $100,000 for "expenses incurred in bringing [the present] complaint and also suffering mental distress" at having had their electricity turned off for ten days, and $5 million in punitive damages. (1) These are not claims that the Constitution singles out for special protection. [10ASR2d65]

Moreover, the appellants have already been afforded due process of law in the form, inter alia, of a trial on the merits before the Chief Justice of the High Court, a written opinion by the Chief Justice dealing with the substance of their claims, a hearing on their Motion to Reconsider , and another written opinion on that motion. This is considerably more than was afforded the parties in Kras and Ortwein, who were altogether excluded from judicial proceedings at any level. See Kras, 409 U.S. at 437-38; Ortwein, 410 U.S. at 658. It is well established that "due process does not require a State to provide an appellate system." Ortwein, 410 U.S. at 660 (citations omitted).

Finally, even if appellants cannot afford a transcript their access to the appellate court will not be altogether denied. They remain free to seek the correction of such errors of law as may appear from the facts as found by the trial court. See Appellate Court Rule 10(b)(1). Or they may negotiate with the opposing parties an agreed statement of the evidence in lieu of a transcript. Appellate Court Rule 10(d). (The existence of the possibility of such negotiation, even if "unrealistic.... in a particular situation," distinguishes ordinary civil cases from those such as divorce and paternity cases in which there is "utter exclusiveness of court access and court remedy." See Kras, 409 U.S. at 445.) In the absence of a transcript or an agreed statement appellants lose only the right to urge that the trial court's findings were unsupported by the evidence. Appellate Court Rule 10(b)(2). In light of the strong presumption that the appellate court should uphold the fact findings of the trial court, this loss is in most cases a relatively trivial one. (2) [10ASR2d66] See Fagaima v. Fonoti, 3 A.S.R.2d 112 (1986); Leomiti v. Pagofie, 2 A.S.R.2d 97 (1986).

For these reasons, the rule that appellants must bear the costs of preparing such transcripts as are necessary to establish their contentions on appeal is clearly not unconstitutional. Appellants' motion is therefore denied.

Appellants shall request an estimate of the cost of the transcript from the court reporters within five days, or if they decide to proceed without a transcript shall comply with the provisions of Appellate Court Rule 10(b)(3) within ten days.

It is so ordered.

*********

1. Appellants also seek to enjoin the utility permanently from disconnecting their electricity. The record reflects that the electricity was disconnected for about ten days and has been reconnected upon the posting of a bond by appellants. It is undisputed that the electricity was disconnected only because appellants did not pay their bill. They stopped paying their bill not because they claimed they could not afford it, and not because of any dispute having directly to do with the bill itself or with the supply of electricity, but because they believed the utility was in breach of an alleged agreement to "review and respond to" appellants' claims that the utility was wrongfully using certain lands which appellants claim to own.
Even if the electrical consumer/supplier relationship could be analogized to the .husband/wife or parent/child relationships for the purpose of exempting indigents from the costs of litigation and it probably cannot, since electricity would appear to have more in common with the welfare benefits in Ortwein and the bankruptcy discharge in Kras than with the constitutionally protected associations in Boddie and Little ---a person who voluntarily injects this relationship into a wholly collateral dispute with the electric company would hardly seem entitled to such special protection. The only interests directly asserted by the present appellants are in land and in money.

2. In the present case appellants do challenge the fact findings of the trial court. These challenges are detailed in a rambling eight-page paragraph in which appellant S.R. Pene quotes portions of the trial court's decision, interspersed at frequent intervals with the reminder that "I DISAGREED!" (capitalization and punctuation in original), and reiterates the testimony he gave at trial. As nearly as can be discerned, the disagreements are overwhelmingly directed to the trial court's acceptance of the testimony of other witnesses over that of Mr. Pene, or to conclusions the court drew from the evidence.
Appellants also maintain that the trial judge was biased against Mr. Pene and should have recused himself. This argument appears to be based on facts that are outside the record of this case. It would appear to necessitate a transcript only of the brief exchange in which Mr. Pene says he moved for recusal and the judge denied the motion.

American Samoa Power Auth .; Pene v.


SEIGAFOLAVA R. PENE and
CARMENCITA PENE, Plaintiffs

v.

AMERICAN SAMOA POWER AUTHORITY and
ABE MALAE, Executive Director, Defendants

High Court of American Samoa
Trial Division

CA No. 67-88

February 1, 1989

__________

Trial judge who, in denying summary judgment against pro se litigant in a previous case, had quoted authority to the effect that summary judgment was not the appropriate remedy for incoherent and unskillful pleadings, did not thereby malign the litigant's person and did not create ground for recusal in subsequent cases involving the same litigant.

Judge has as much obligation not to recuse himself when there is no occasion for recusal as he has to recuse himself when there is such occasion.

Motion for disqualification of judge which was apparently an attempt at "judge shopping" should be denied.

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

Counsel: Plaintiffs Seigafolava R. Pene and Carmencita Pene pro se
For Defendants, Robert Dennison, Assistant Attorney General

On Motion for Reconsideration:

Plaintiff, Seigafolava R. Pene, moves the Court, "in conformity with applicable statutes of this jurisdiction," for reconsideration of the Court's decision in the above-entitled matter.

Plaintiff essentially complains: 1) that the presiding justice in this matter should have [10ASR2d24] recused himself from hearing this case; and 2) that the Court's assessment of the evidence was erroneous.

Plaintiff repeatedly made oral motions for recusal in open court and, on as many occasions, his motions were denied. No new grounds are advanced herewith for reconsideration of this recurring motion. Instead, plaintiff reasserts his same objection that the presiding justice has previously referred to him as "incoherent and unskillful." Plaintiff's Affidavit in-support of Motion For Reconsideration at 2. Plaintiff in his moving papers conceded that, in Justice Kruse had explained that he was referring to my pleadings, (against the same defendants). However, he goes on to opine that "it is my belief and understanding that the writer/preparer of said pleadings is definitely the subject of said evaluation." Id. Plaintiff feels that he has been unjustifiably and publicly maligned by the justice and he apparently considers it proper that another justice should have been assigned to his case.

As this recusal request is being repeatedly made by plaintiff appearing pro se, and hopefully to restore his sense of honor, the Court is moved to elaborate on its reasons for repeated denial of this request.

The language found to be offensive occurs in Seiafolava v. American Samoa Power Authority, 4 A.S.R.2d 152 (1987). This case involved the same plaintiff and the same principal defendants. (1) Defendants in that matter moved for summary judgment upon a number of grounds, including the failure of plaintiff's pleadings to state a claim in damages. In response, and actually plaintiff's favor, the Court there held:

"We agree that the plaintiff's pleadings are patently insufficient,
but disagree that a T.C.R.C.P. Rule 56 motion for summary
judgment is the proper device for [10ASR2d25] punishing
incoherent or unskillful pleading."

Id.. at 152-53

As authority for this proposition of law, the Court cited, Soley v. Star & Herald Co. 390 F.2d 364 (5th Cir .1968), and Season-All Industries. Inc. v. Turkive Sise Ve Cam Fabrikalari A.S. 425 F .2d 34 (3d Cir .1970). The Soley case talks of summary judgment as not being appropriate merely because pleadings are "drawn unskillfully." Id.. at 366. The Season -All Industries case speaks of summary judgment " [as] not [being] a punishment for the incoherence of a pleading." Id. at 39. The particular language therefore complained of is not original to the presiding justice although the same was found useful to restate and to highlight a precedential point on the law. It happens that plaintiff is not an attorney at law ---although he has repeatedly appeared before the courts on his own behalf and indeed has even attempted to appear on behalf of others ---and his working familiarity with the relevant rules relating to the drafting of pleadings were very evidently those of the layman. His pleadings, in the light of rule requirements, were inartful and the Court's primary concern in that case at the time was to ensure that plaintiff's case would not be prejudiced on the merits because of defective pleadings. Language from precedent was the language which the Court there invoked to state its position in denying defendants' motion.

The insinuation, therefore, by plaintiff that the presiding justice was, with his choice of language, particularly interested in maligning his person is thoroughly misplaced and serves no real purpose other than to distract attention from the real "merits of the case.

Simply stated, this aspect of the motion has no merit as its only consequence appears to be judge shopping. That possibility will not arise. It has been said that, "[t]here is 'as much obligation upon a judge not to recuse himself when there is no occasion as there for him to do so when there is."' Rosen v. Sugarman. 357 F.2d 794, 797 (2d. Cir .1966), quoting In re Union Leader Corp. 292 F.2d 381, 391 (1st Cir.), cert denied, 368 U.S. 927 (1961). [10ASR2d26]

The second ground of plaintiff's motion is an apparent quarrel with the Court's view of the evidence. We maintain that the evidence preponderated in favor of the defendants and therefore deny relief also on that aspect of the motion.

It is so Ordered.

*********

1. This matter never went to trial but was dismissed with prejudice upon stipulation of the parties. The present case arose regarding a claimed settlement said to have arisen as a consequence of the stipulation of dismissal in that earlier matter.

American Samoa Power Auth.; Pene v.


SEIGAFOLAVA R. PENE and
CARMENCITA PENE, Plaintiffs

v.

AMERICAN SAMOA POWER AUTHORITY and
ABE MALAE, Executive Director, Defendants

High Court of American Samoa
Trial Division

CA No. 67-88

January 5, 1989

__________

In an action for breach of an oral contract for the settlement of an outstanding electric bill, court would not find that the agreement included concessions by the electric company with regard to land disputes unrelated to the bill in question, where: (1) plaintiff's documentary evidence of the existence of such terms was self-serving and prepared after the negotiations; (2) defendant's representatives testified that there was no agreement on these terms; (3) notes made during the negotiations by defendant's counsel reflected no [10ASR2d10] agreement to such terms; (4) plaintiff himself had sought the settlement as an alternative to a trial scheduled the same day, over the objections of defendant's counsel who had objected to a continuance for the purpose of settlement negotiations; (5) a stipulation signed by both parties at the conclusion of the negotiations had contained no reference to agreement on any collateral terms; (6) agreement to such terms would have been beyond the scope of defendant's representatives' authority; and (7) it made no business sense for defendant to agree to such terms.

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

Counsel: Plaintiffs Seigafolava R. Pene and Carmencita Pene pro se

For Defendants, Martin R. Yerick, Assistant Attorney General,
and Enere H. Levi, Assistant Attorney General

Plaintiffs are utility consumers and defendant power authority (hereafter "ASPA") is a government agency supplying the territory's electrical energy needs. Plaintiffs, appearing pro se, sue ASPA and its chief executive officer, Abe Malae, for what plaintiffs claim was the wrongful termination of their electrical supply by defendants. They pray for injunctive relief, damages for "mental distress" suffered as a result of harm arising in their family and business because of the power cuts, and for punitive damages in the amount of $5 million. Plaintiffs frame their cause of action as a breach by defendants of a certain settlement contract with ASPA This contract allegedly relates to an agreement reached by the parties concerning the payment of a certain outstanding utility account owing by plaintiffs to ASP A Plaintiffs necessarily claim that while they were complying with their obligations under the settlement agreement, defendants "illegally and improperly" disconnected their power supply to plaintiffs' damage.

Plaintiffs' testimony was to the effect that the alleged agreement came about as the result of an out of court settlement by the parties of that civil suit docketed Civil Action No.45-87, which [10ASR2d11] was dismissed with prejudice upon the stipulation of the parties thereto. That suit, by plaintiff Seigafolava Pene, also sought a multimillion dollar amount in the way of punitive damages against these same defendants and it is claimed by Seigafolava that his agreement to forbear from suit in that matter was consideration for the settlement agreement now at issue before us. This agreement, according to Seigafolava, came about as the result of a meeting he had attended with defendant Malae, Assistant Attorney General Levi, and Mrs. Betty Ah Soon. This meeting was called on the morning Civil Action No. 45-87 was scheduled to go to trial after Seigafolava moved for and obtained a brief continuance form the Court upon the representation of a settlement possibility. The motion to continue was granted over the objection of Assistant Attorney General Levi, who represented the government.

Although no written agreement resulted as a result of this meeting, save for a stipulation to dismiss with prejudice, plaintiffs here view the meeting as resulting in the following understanding: that in consideration of Seigafolava's withdrawal of his $5 million-plus claim, ASP A and the government would "review and reply" to certain claims filed by plaintiff regarding the government's use of certain communal lands of plaintiff's family in Manu'a; that plaintiff Seigafolava would pay their outstanding account- some two thousand dollars -with ASPA upon hearing from the defendants on these claims; and that the parties would comply with these agreements within 90 days.

Both defendant Malae and Assistant Attorney General Levi denied that there was ever such an understanding as a result of the meeting. Mr. Malae testified that all he was concerned with at the meeting was the payment of the account due ASPA The only conclusion arrived at was that the plaintiff's complaint would be dismissed with prejudice and that ASPA would allow 90 days to plaintiff to payoff his outstanding account.

Attorney Levi's testimony was similar in effect. He was ready for trial in Civil Action No. 45-87 that particular morning and objected to a continuance. The meeting as he had understood it came about because Seigafolava wanted the matter resolved as he appeared concerned with his case and [10ASR2d12] with keeping his electricity connected. Attorney Levi testified that he undertook all negotiations on behalf of his clients and took detailed notes of all the proceedings. These notes he maintained in his files on the matter and brought with him to Court. Seigafolava's offer of settlement was mainly concerned with the objective of acquiring some more time to pay his account. ASPA's objective was the payment of the bill.

According to Attorney Levi's file, the only consensus reached was that Seigafolava would get 90 days to clear his outstanding account of approximately $2,400.00, excluding the bill for the then month of June. Seigafolava had indicated that he would pay this off in one lump sum and he would endeavor to maintain his current billings up to date. In return, Seigafolava would dismiss his lawsuit with prejudice and, according to Levi, he took special pains to explain the meaning of dismissal to Seigafolava. Lastly, counsel Levi testified that his notes reflected the final term of agreement as that the parties would bear their own costs of suit. Attorney Levi then testified that he returned to his office and prepared a stipulation to dismiss with prejudice which was then sent to Seigafolava for signature. This stipulation was presented to the Court that afternoon and Civil Action No. 45-87 accordingly dismissed.

On our evaluation of the evidence and assessment of the testimony, we find the defendants' version of the settlement agreement to be more consistent with the realities of the circumstances.

The continuance of trial was sought plaintiff Seigafolava's instance without notice to defendants' counsel and over his objection to further delay trial on the matter. Settlement was accordingly sought by plaintiff there, and in the circumstances the Court is far from being impressed with plaintiffs' settlement version as making any business sense to defendants. On the other hand, defendant Malae's testimony to the effect that it would have been beyond the scope of his authority to commit ASPA to collection deals contingent on collateral matters, is, in our view, the more plausible explanation. While it may have been plaintiffs' every intention to attempt to secure the terms of settlement which they contend before [10ASR2d13] the Court, we find that such intentions were never clearly communicated to, nor addressed by, defendants.

The thrust of plaintiffs' offers of proof to sustain their version of the settlement agreement centered on a number of exhibits which were no more than self-serving documentation and prepared by plaintiff Seigafolava after the fact of negotiation. One of these self-serving claims is the alleged contractual term that ASPA and the government would "review and reply" to certain collateral land claims filed by Seigafolava within 90 days of the meeting. The alleged term is quite meaningless as a practical matter to plaintiffs. If there had been such a term and had ASPA merely replied to plaintiffs' land claims in the negative, such a clause would be of really no contractual value to plaintiffs. The real reason for the insistence by plaintiffs to the existence of such a clause became apparent at trial. It was advanced to explain plaintiffs' nonpayment of their electrical account within the 90 day grace period acceded to by ASPA (Plaintiff Seigafolava felt that if ASPA did not "review and reply" within 90 days, then somehow plaintiffs were absolved from compliance with the payment clause).

Upon the foregoing it is the conclusion of the Court that judgment be entered in favor of the defendants.

As a preliminary injunction was issued against defendants to maintain the connection of plaintiffs' electrical supply upon plaintiffs' prior posting of bond in the monthly sum of $100.00, such bond funds collected by the Clerk shall be paid over to defendant ASPA to offset the value of electrical power supplied by ASPA to plaintiffs as a result of the preliminary injunction, and the balance, if any, shall be returned to plaintiffs. All costs of electricity so supplied and in excess of the value of the bonds posted shall be billed by ASPA to plaintiffs, in the normal course.

It is so Ordered.

**********

American Samoa Power Auth.; Pago Petroleum Products, Inc. v.


PAGO PETROLEUM PRODUCTS, Inc. , Appellant

v.

AMERICAN SAMOA POWER AUTHORITY, Appellee
SOUTH PACIFIC RESOURCES, Inc. , and
DOES I through V, Real Parties in Interest

High Court of American Samoa
Appellate Division

AP No. 38-88

March 2, 1989

__________

Parties cannot invariably supply a court with jurisdiction denied to it by constitutional and statutory provisions.

Party can generally waive the benefit of a limitation on court's jurisdiction that is clearly designed only for that party's protection, such as rule requiring personal service on defendants.

When limits of court's jurisdiction reflect a decision that certain questions should be resolved in another forum, the court is bound by this allocation of decision making power even when parties would willingly submit to court's jurisdiction.

Requirement that a claimant against a government agency must exhaust administrative remedies before bringing suit comprises both waiveable and non-waiveable elements.

Laws prescribing detailed procedures for presenting claims to an agency, designed to give the agency a [10ASR2d76] fair chance to review and respond to the claim before being haled into court, may be waived by the agency.

Neither administrative agency nor court may dispense with requirements designed to ensure that case admits of judicial resolution: that there be a genuine dispute between the claimant and the agency on at least one specific and identifiable question of law and fact.

Jurisdictional requirement that an agency decision be final before claimant challenges it in court may not be waived.

Insofar as territorial statute prescribing final decision by administrative agency as prerequisite to judicial review simply gave the agency the right to insist on exhaustion of its internal review procedures, it was waive able by the agency, but insofar as it incorporated the rule that courts should decide real controversies it could not be waived. A.S.C.A. § 4. 1040(a).

Administrative agency decision to issue a new invitation for bids for fuel supply contract was a final decision rejecting bidder's contention that it had a right to the contract as a result of being the low bidder in the original bidding procedure. A.S.C.A. § 4.1040(a).

Whether an administrative agency decision was lawful and whether it was final are separate questions; a decision may be substantively illegal and yet be the real and settled position of the agency. A.S.C.A. § 4.1040(a).

Administrative agency decision is final, for the limited purpose of giving rise to a justiciable controversy, even if there were procedural defects in the process by which it was made, provided that it is meant to reflect the settled position of the agency and leaves the parties genuinely adverse. A.S.C.A. § 4. 1040(a).

Decision by board of directors of administrative agency to reject bidder's claim of entitlement to fuel supply contract was final and gave rise to a justiciable controversy, notwithstanding the absence of a quorum at the board meeting, where (1) agency's chief executive officer implemented the decision by cancelling the original award and [10ASR2d77] issuing an invitation for new bids, and (2) in subsequent litigation, agency did not assert its continuing discretion to review the decision but instead sought a judicial order that the new bidding process go forward. A.S.C.A. § 4.1040(a).

Ambiguity in solicitation for bids, which might otherwise prevent soliciting agency from determining which bid was the lowest and what price it would have to pay if it accepted the low bid, could be cured by information supplied in the bids themselves.

Ambiguities in offer and acceptance, which might otherwise prevent the formation of a contract, may be resolved by reference to the prior business relations of the parties.

A party who unilaterally places a practical construction on contract language does not necessarily bind other parties to this construction, but seriously limits his own chances of enforcing an opposing construction when the old one should be of no further benefit to him.

Bid submitted to administrative agency in competitive bidding process for fuel supply contract should be construed not to include a terminal fee, where (1) bid did not specify whether the terminal fee would be included or excluded from the bid price; (2) bidder was currently charging the same agency extra for the terminal fee under a contract in which the language of its bid had been essentially identical to that of its present bid; (3) bidder's contention that the intervening six months had given rise to a new custom with regard to terminal fee charges was not supported by the evidence; and (4) bidder did not indicate its intention to change its pricing policy until after the bids were opened, when it seemed evident that bidder would not be awarded the contract unless its bid included the terminal fee.

Administrative rule allowing rejection of bids on account of ambiguities in the solicitation, if construed to allow rejection of a bid which was clearly the low one on account of an ambiguity in the solicitation that had been cured by the bids themselves, would violate competitive bidding statute prohibiting changes prejudicial to fair competition. A.S.A.C. §§ 10.0232; A.S.C.A. 12.0211. [10ASR2d78]

Clause in bid solicitation by government agency reserving the agency's right to reject all offers, if construed to allow such rejection for no reason at all or just because the government might get a better price if bidders are allowed to rebid after looking at their competitors' bids, would violate competitive bidding statute prohibiting changes prejudicial to fair competition. A.S.C.A. § 12.0211.

Before KRUSE, Chief Justice, REES, Associate Justice, and AFUOLA, Associate Judge.

Counsel: For Appellant, John Ward
For Appellee, Martin R. Yerick, Assistant Attorney General
For Real Party in Interest, Roy J.D. Hall, Jr.

This is an appeal from the administrative decision of the American Samoa Power Authority (hereinafter ASP A) concerning a purchase of diesel fuel.

Appellant Pago Petroleum Products, Inc. (hereinafter PPP) maintains that it was the low bidder in a competitive bidding process and should have been awarded the contract. Real Party in Interest South Pacific Resources, Inc. (hereinafter SPRI) maintains that it and not PPP was the low bidder.

Appellee ASPA initially awarded the contract to SPRI, then rescinded the award and issued a new invitation for bids. In its response to this appeal ASP A seeks a declaratory judgment that the contract should be awarded in accordance with the outcome of the rebidding process. Both PPP and SPRI maintain that the proposed rebid would violate the statutory and contractual rights of the winner of the first bidding process.

I. The Bidding Process

On or about November 4, 1988, ASPA published an invitation for bids for diesel fuel to be supplied during the first six months of 1989. Four sealed bids were received, including those of PPP and SPRI. [10ASR2d79]

The bids were opened on December 5, 1988. Representatives from PPP and SPRI were present.

The first bid opened was that of PPP, which was for 48.12 cents per gallon "plus applicable American Samoa Government Terminal Fees. II When this bid was opened it was passed to the SPRI representative, who looked at it, turned to the PPP representative, and said, "You are giving it away," or words to this effect.

The SPRI bid was opened next. It was for 48.8 cents per gallon and made no reference to a terminal fee. After the bid had been opened and while it was being examined by the PPP representative, the SPRI representative said, "SPRI's price includes the terminal fee."

The terminal fee is one cent per gallon. Since SPRI's bid was less that one cent per gallon higher than PPP's bid, SPRI was the low bidder if and only if its bid should have been construed to include the terminal fee. If not, PPP was the low bidder. (The other two bids were substantially higher.)

On December 6, the day after the bids had been opened, the General Manager of SPRI sent a telephone facsimile message stating:

In response to ASP A's request for bid clarification, SPRI's
price offer includes terminal fee of USD $0.01 per U.S.
gallon and any other applicable taxes. (Emphasis in the
original.)

On December 12 ASP A awarded the contract to SPRI.

On December 15 PPP protested the award in a letter to ASP A, arguing that SPRI's bid should have been construed not to include the terminal fee and that PPP was therefore the low bidder.

On December 21 the Chairman of the Board of Directors of ASP A convened a meeting at which only one other director was present. These two were the only directors physically present in Samoa and not disqualified by conflict of interest from participating in a decision on the PPP complaint. In a memorandum to the executive director of ASPA. [10ASR2d80] they announced their "conclusion on behalf of ASPA's board of directors" that the original award should be cancelled because of ambiguities in the invitation and a new invitation issued.

On December 22 the executive director issued a second invitation for bids.

Later on December 22 this appeal was filed.

II. The Terminal Fee

The one-cent terminal fee has been imposed by law since December 30, 1987, on all petroleum drawn out of American Samoa Government petroleum storage facilities. A.S.C.A. § 20.1607(b)(3), as amended by Public Law 20-43. (For some months prior to the enactment of Public Law 20-43, a terminal fee had been collected by Executive Order.)

The bidding process that is the subject of the present appeal is the third such process for ASPA fuel contracts during the time the terminal fee has been collected. In each of the two prior contracts the successful bidder did not include the terminal fee in its per-gallon bid price, but did charge ASPA for the terminal fee in addition to the bid price. As it happens, one of these two suppliers was PPP and the other was SPRI.

The ASP A fuel contract for the first six months of 1988 was awarded to PPP as a result of a competitive bidding process in December 1987. The PPP bid had specified a price of 60.47 per gallon "plus applicable American Samoa Government Terminal Fees." PPP did in fact charge ASPA for the terminal fee in addition to the specified per- gallon price. (SPRI had been an unsuccessful bidder. The SPRI bid was for 67.33 cents per gallon and did not mention terminal fees.)

The ASPA fuel contract for the second half of 1988 was awarded to SPRI. The SPRI bid for this contract had specified a price of 59.0 cents per gallon. The bid made no mention of the terminal fee. SPRI has, however, charged ASPA the one-cent terminal fee in addition to the specified contract price throughout the duration of its contract. (PPP, an unsuccessful bidder in this process, had specified a price of 59.34 cents per gallon plus the terminal fee.) [10ASR2d81]

In other words, during the time between the enactment of the terminal fee and the opening of the bids that led to the present appeal, both PPP and SPRI consistently took the position that they would charge ASPA the terminal fee in addition to the contract price for fuel. PPP consistently made this an explicit term of its proposals to ASPA; SPRI gave no such advance notice of the additional fee, but did charge and collect it.

III. Exhaustion of Administrative Remedies

SPRI initially maintained that the Court lacked jurisdiction over this appeal because PPP had failed to exhaust its administrative remedies. SPRI has since requested affirmative relief from the Court, thus implicitly waiving objection to the Court's jurisdiction. ASPA has explicitly consented to the Court's jurisdiction.

It is not invariably the case that parties to a lawsuit can supply a court with jurisdiction denied to it by the constitutional and statutory provisions that comprise its charter. A party can generally waive the benefit of a limitation on jurisdiction that is clearly designed only for his own protection, such as a rule requiring personal service on defendants. But when the limits of jurisdiction reflect a fundamental decision that certain kinds of questions should be resolved in another court or in some non-judicial forum ---as when the court lacks subject matter jurisdiction over an entire class of cases ---the court is bound by this allocation of decision making power even when the parties to a particular case would willingly submit to a different one.

The requirement that a claimant against a government agency must exhaust his administrative remedies within the agency before bringing suit has been held to comprise both waiveable and non-waiveable elements. Laws prescribing detailed procedures for presenting claims to an agency are generally designed to give the agency a fair chance to review and respond to the claim before being haled into court. See Matthews v. Eldridge, 424 U.S. 319 (1976); Weinberger v. Salfi, 422 U.S. 749 [10ASR2d82] (1975). (1) In a particular case the agency may decide that these purposes have been served notwithstanding the claimant's failure to adhere precisely to all the specified procedures; it may therefore waive its right to object and the court may proceed to hear the case. (2) Neither the agency nor the court, however, may dispense with requirements designed to ensure that the case admits of judicial resolution: that there be a genuine dispute between the claimant and the agency on at least one specific and identifiable question of law or fact. One such requirement is that the agency's decision be final before the claimant challenges it in court. See Matthews, 424 U.S. at 328; Salfi, 422 U.S. at 765-67.

The territorial Administrative Procedures Act, A.S.C.A. §§ 4.1001 et seq. (hereinafter cited as A.P.A.), codifies the doctrine of exhaustion of administrative remedies in many of its particulars. Most of these particulars, such as the aggrieved party's right to an administrative hearing and the rule that the agency must make written findings of fact and conclusions of law, are provided for the protection or convenience of the agency or the aggrieved party. See, e.g. A.S.C.A. § 4.1026, [10ASR2d83] 4.1030. As such they are waiveable and have been waived by the parties' submission to the jurisdiction of this Court.

The A.P.A. also provides, however, that judicial review is available only to "[a] person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case." A.S. C.A. § 4.1040(a). (3) Insofar as this section merely gives the agency the right to insist that all its internal review procedures be exhausted prior to judicial review, it is waiveable and has been expressly waived by ASPA in the present case. But insofar as the "final decision" requirement incorporates the fundamental rule that courts should be in the business of deciding real controversies rather than giving advice about theoretical ones, we must be concerned with it even if the parties are not.

We conclude, however, that ASPA did finally dispose of PPP's claim. The substance of this claim is that by being the low bidder on December 5, 1988, PPP acquired the contractual right to sell ASPA such diesel fuel as it would need between January and June of 1989 at a price of 48.12 cents per gallon plus the terminal fee. ASP A's decision to issue a new invitation for bids, although raising the theoretical possibility that PPP might reoffer its original bid and win the second competition, entails first and foremost a renunciation of the proposition that ASPA incurred any contractual obligations as a result of the first competition.

The decision to rebid the contract came six days after PPP had filed a written protest of the [10ASR2d84] initial award to SPRI. The stated justification for the rebid is that the initial invitation for bids contained three ambiguities, two of which have to do with whether a terminal fee will be added to the per-gallon bid price. In context it is clear that the rebid decision was a response by the governing authority of ASPA to PPP's claim that it should have been awarded the contract.

SPRI points out that there was no quorum of the Board of Directors at the December 21 meeting. The quorum for meetings of the ASP A Board of Directors is three of the five directors. A.S.C.A. § 15.0103(c). At the time there were only four directors of ASPA, the fifth position being vacant. Two members were present at the December 21 meeting: Chairman Smith S. Lutu, and Director and Legal Counsel Enere Levi. One of the two remaining directors, who manages a company that had bid for the fuel supply contract, disqualified himself from participating in the decision because of this conflict of interest. The fourth director resides in Hawaii and the record does not reflect the extent, if any, to which he participated in the decision.

ASPA does not assert that there was a quorum, but contends that the rebid decision did not require a formal meeting of the Board of Directors. ASPA contends that immediate action to resolve the uncertainty over who was entitled to the fuel supply contract was urgently necessary since ASPA would otherwise run out of fuel within about two weeks, leaving the Territory without electricity, fresh water, or a waste water disposal system. Under these circumstances ASPA maintains that a decision taken by two-thirds of the eligible directors, although not at a formal meeting, should be regarded as a decision of the Board; or that the executive director of ASPA, who is its chief operating officer and is vested by A.S.C.A. § 15.0104 with "all executive functions," had authority to act on the recommendation of the Chairman and Legal Counsel of the Board.

It does not seem unreasonable to attribute to ASPA, acting through those of its directors who can be assembled for an emergency meeting or even through its chief executive officer acting alone, the power to respond conclusively to administrative complaints in cases whose circumstances do not admit of delay. At this stage of our analysis, [10ASR2d85] however, we are concerned not with whether the rebid decision was lawful but only with whether it should be regarded as the agency's final decision. It is important to notice that these are different questions: a decision may be substantively illegal and yet be the real and settled position of the agency.

Moreover, the rebid decision may be "final," for the limited purpose of determining whether it gave rise to a justiciable controversy, even if the process by which it was made was defective in ways that would have entitled ASP A or another party to insist that it be reconsidered at a proper meeting of the Board prior to any judicial review. Since all parties to this case have implicitly or explicitly consented to the jurisdiction of the Court, any procedural defects that are waiveable by the parties must be regarded as waived. See Weinberger v. Salfi. supra Matthews v. Eldridge, supra; The only non-waiveable defects are those that would render the decision tentative or interlocutory rather than final. A decision is final in this sense, even though it might theoretically have come out differently if the agency or an aggrieved party had insisted on the full panoply of available administrative procedures, provided that it is meant to reflect the settled position of the agency and that it leaves the parties genuinely adverse. (4)

These conditions are met in the present case. After PPP filed its administrative complaint, two of the three directors who were eligible to participate in the proceeding met and formulated what they clearly intended to be ASPA's final response to that complaint. No party to the appeal has suggested that the agency's position would be any different if the three eligible directors were required to assemble in the same room to reconsider their decision. The chief executive officer of the agency lent his own authority to the decision by implementing it. Before this appeal was filed the agency had already translated its response into action by cancelling the original award and issuing the invitation for new bids. Finally, in its conduct of this appeal ASPA has treated the rebid decision as conclusive: although government entities commonly resist challenges to their actions by seeking judicial affirmation of their continued discretion over the matter in controversy, the primary relief sought by ASPA in this case is a judicial order that the new bidding process go forward.

The agency may have responded in the wrong way to the PPP complaint, but the agency has clearly and definitely responded. We therefore decline to contradict the judgment of both ASP A and PPP that the dispute between them is a genuine one that admits of judicial review.

IV. The Merits of the PPP Complaint

The sole argument urged by PPP on appeal is that the SPRI bid should have been construed to exclude the terminal fee.

ASPA contends, on the other hand, that the original invitation for bids contained two ambiguities with respect to the terminal fee: it did not make clear whether fuel destined for ASP A, a government agency, would be subject to terminal fees; and it did not make clear whether terminal fees charged to the supplier, if any, would be passed on to ASPA in addition to the per-gallon bid price. The decision to issue a new invitation for bids was therefore justified by the administrative rule providing for such action in the event of "[i]nadequate or ambiguous specifications contained in the solicitation." A.S.A.C. § 10.0232. [10ASR2d87]

This contention ignores the possibility that the bids themselves might have eliminated any ambiguity latent in the invitation. Suppose, for instance, that all four bidders had added to their per-gallon bid prices the language used by PPP: "plus applicable American Samoa Government Terminal Fees." Both of the ambiguities would then have been eliminated: ASPA could have ascertained with certainty the identity of the low bidder and the exact price it would have to pay for fuel, the former by a glance at the bids and the latter by a call to the Tax Office about whether the terminal fee would be "applicable" to ASPA fuel.

The SPRI bid did not indicate on its face whether the terminal charge was included or excluded. PPP argues, however, that SPRI had eliminated any ambiguity on this count by its performance under the ASPA fuel contract for the second half of 1988. We agree.

The successful SPRI bid for the 1988 contract, like the SPRI bid for the 1989 contract, gave a per-gallon price without mention of the terminal fee. Indeed, the language of the two documents is identical in every important respect. Yet throughout the duration of the 1988 contract SPRI charged ASP A the terminal fee in addition to the per-gallon price. At the moment the bids for the new contract were opened on December 5, 1988, SPRI was still interpreting the price term on its existing contract to exclude the terminal fee. The first notice to ASPA that SPRI would interpret the identical language in its 1989 bid to include the fee came after the opening of the bids, after the SPRI representative had seen the PPP bid, and after it was clear that SPRI would be the low bidder it and only if it changed its interpretation.

It is a well-established tenet of contract law that ambiguities in the offer and acceptance, which otherwise might prevent the formation of a contract, may be resolved by reference to the prior business relations of the parties. See Restatement (Second) of Contracts §§ 202, 203, 223, and comment (a) to § 33; Corbin on Contracts §§ 95, 556; Uniform Commercial Code § 1-205. The circumstances of this case are unusual, in that the record suggests ASP A's management never realized it was being charged the terminal fee under the 1988 contract. While this distinction might be helpful to ASPA in a suit against SPRI, it does not [10ASR2d88] extricate SPRI from the consequences of its own former interpretation. A party who unilaterally places a practical construction on contract language does not necessarily bind other parties to this construction, but he seriously limits his own chances of enforcing an opposite construction when the old one should be of no further benefit to him. See Corbin, supra, § 558.

When asked by ASPA to explain the shift in its interpretation, SPRI argued that the fuel supply business in American Samoa had changed between June and December of 1988. The change was laid to a single important event. In a letter to ASPA dated December 16, 1988, the general manager of SPRI stated that

there was significant confusion during the first six months
as to the legality of [the terminal] fee and if it would remain
in effect. The legality question ...was not resolved until July
1988 with legislation being passed by the American Samoa
legislature. ...Under these circumstances no petroleum supplier
could include the terminal fee in a bid proposal....

The above cited questions were resolved with the terminal
fee legislation being enacted in July 1988. Therefore, SPRI
did include the $0.01 per gallon terminal fee in the bid proposal
to supply ASPA during the January-June 1989 time period.

This argument ---that the terminal fee was arguably illegal and its collection uncertain in June, but was legal and therefore certain in December ---was the sole justification advanced by SPRI in response to PPP's administrative claim that title SPRI bid should have been construed consistently with its prior performance. It is, however, clearly wrong. The terminal fee was enacted into law in December 1987, not July 1988. Its continued collection was at least as certain in June 1988 as in December 1988. There were no changed circumstances.

With its brief on this appeal SPRI has filed [10ASR2d89] an affidavit (5) from its general manager, acknowledge that he was mistaken about the date the terminal fee was enacted but affirming that "the referenced confusion over the continued applicability of the fee to ASPA was nonetheless accurate." His affidavit also states that at some unspecified time between June and December "SPRI switched its bidding practice over to providing an all inclusive price." He asserts that this change was based on a general trend among fuel suppliers toward "inclusive" prices. He attaches two billing statements from SPRI as illustrations. One bill, dated February 1988, offers fuel at "USD .650 plus .035 excise tax plus .01 terminal fee per gallon." The other, dated November 1988, offers "bunkering at USD .565 per gallon delivered."

The manager further attests that specifically instructed SPRI's local representative to include the terminal fee in its December bid to ASPA. SPRI also files an affidavit from its local representative confirming that the general manager had so instructed him.

This evidence creates for SPRI at least as many problems as it solves. The two billing statements, when construed with the bids submitted by various fuel suppliers to ASP A in December 1987, June 1988, and December 1988, do not even begin to prove the asserted change in local commercial practices during the period in question. On the contrary, only one supplier other than SPRI seems to have made any change in the way it describes its prices, and that supplier was already quoting "inclusive" prices in 1987. With regard to SPRI's pricing policies, the evidence establishes only that (I) as early as February 1988 SPRI knew how to tell a customer whether or not its per-gallon price included the terminal fee; (2) nevertheless, on at least one occasion (in June 1988) SPRI quoted what would appear to the naked eye to be an "inclusive" [10ASR2d90] price but later charged its customer extra for the terminal fee; (3) on at least one occasion prior to February (in December 1987) SPRI had also quoted what appeared to be an "inclusive" price but would have charged extra for the terminal fee if it had been awarded the contract; (4) in November 1988 SPRI again quoted a customer a per-gallon price without mentioning the terminal fee one way or another, but we have no evidence of whether the customer was in fact charged extra for the terminal fee; and (5) in its December 1988 bid SPRI employed the same language it had used in three prior quotations, in connection with at least two of which it did intend to charge extra for the terminal fee.

The affidavits by the two SPRI officials about their private conversations raise a related question. If SPRI specifically anticipated the question whether the terminal fee would be included, discussed it within the firm, and resolved that the question should be answered in a way that was directly contrary to the clear inference from SPRI's then existing relationship with ASPA, why not say so before the bids were opened? The bidding process is not a multiple choice test in which it is forbidden to explain one's answers. SPRI had access to the previous bids of PPP and other bidders which clearly indicated whether the terminal fee was included or excluded in the per-gallon price. Indeed, SPRI's own description of its price in the December 1988 bid is a complicated one incorporating several terms and conditions; and on at least one occasion (in February 1988) SPRI considered it important to tell a customer whether or not the terminal fee would be included.

Even if SPRI really had changed its pricing policy toward other customers and really did intend to make such a change with regard to ASP A, it knew or should have known that this would not be so obvious as to go without saying. The prior dealings between SPRI and ASPA were an indelible part of the record in any controversy that might arise over the December 1988 bid. Until the bids were opened there was no way to tell what form such a controversy might take ---whether it would be to SPRI's advantage to have bid 48.8 cents including the terminal fee or 48.8 cents plus the terminal fee. By not countermanding the evidentiary effect of its prior dealings by a clear contrary statement [10ASR2d91] prior to the opening of the bids, therefore, SPRI inevitably did one of two things: either it bound itself to its prior interpretation of the per-gallon price term, or it gave itself a one-cent "point spread" over other bidders. The latter possibility would defeat the central purpose of requiring sealed bids.

We conclude that ASPA's initial construction of the SPRI bid to include the terminal fee was clearly erroneous. The bid should have been construed, consistently with the objective evidence of SPRI's pricing policy toward ASPA as of the day bids were opened, as for 48.8 cents per gallon plus the one-cent terminal fee. This is higher than the PPP bid which was 48.12 cents plus the terminal fee. The two other bids were for 61.0 cents and at least 50.04 cents respectively; even if they are construed as including the terminal fee, they are higher than the PPP bid. PPP was therefore the low bidder.

A call for new bids on the ground of an ambiguity that has already been cured by the bids themselves would not seem to be strictly inconsistent with the language of the administrative rule on which ASPA relies. The rule seems to allow cancellation of bids on account of [i]nadequate or ambiguous specifications contained in the solicitation" when such cancellation is believed by the procurement officer to be "in the best interest of the government." A.S.A.C. § 10.0232 (emphasis added). Rejection of a bid which is clearly the low one on the ground of an irrelevant ambiguity in the solicitation, however, would violate the statutory law governing competitive bidding. Such a rejection followed by a new invitation for bids would amount to allowing "changes in bid prices or other provisions of bids prejudicial to... fair competition" in violation of A.S.C.A. § 12.0211.

ASPA relies not only on the administrative rule regarding ambiguities, but also on a clause reserving "the right to reject all offers." This clause is in a section of the invitation for bids that itemizes specific grounds on which ASPA may reject a particular offer: non-compliance with the terms of the invitation, reason to believe the bidder is not financially responsible, and so forth. In this context, the most obvious reading of the clause not cited by ASPA is that ASPA [10ASR2d92] reserved the right to reject bidders on any of the stated grounds even if this resulted in the elimination of all bidders. In the absence of this or some other limiting construction, the clause would appear to be contrary to the competitive bidding law. An attempted reservation of the right to order a second round of bidding for no reason at all, or just because the government might get a better price if bidders are allowed to rebid after looking at their competitors' bids, would permit changes in bids prejudicial to fair competition. See A.S.C.A. § 12.0211.

We are not suggesting that ASPA had any such ulterior motive in the present case. Nevertheless, since ASPA has advanced no reason for rejecting the PPP bid other than alleged ambiguities in the solicitation, the clause reserving the right to reject all bidders affords no authority for the rejection so long as PPP's bid was unambiguously the low one.

V. Platt's Oilgram Reports

ASPA 's pleading in this appeal alludes to a third ambiguity in the invitation as a further ground for ordering the rebid. This ambiguity has nothing to do with the terminal fee, which was the subject of PPP's appeal of the initial award to SPRI. Nor was it the subject of an administrative complaint by any other bidder.

Indeed, this alleged ambiguity was not in the invitation itself but in certain of the bids. The invitation offered bidders the option of citing "a flat per gallon price with escalators". All four bidders chose to take advantage of this option, and all four referred to an industry standard called Platt's Oilgram Reports. A letter from Mobil Oil Australia Limited submitted with its bid suggests that different parties may mean different things by their references to dates for which Platt's provides price data. The proposed rebid would demand more information from any bidder citing Platt's Oilgram Reports ---although not, it would appear , precisely the information Mobil suggests would be necessary to clear up the ambiguity.

The record with regard to this alleged ambiguity is between sketchy and nonexistent. The reference to it in ASP A 's pleading seems unusually opaque even for a reference to industry standards. [10ASR2d93] Since ASPA did not brief this appeal and the other parties did not allude to this issue in their briefs, we have received no guidance from the parties on whether and how this alleged ambiguity matters.

From the record we do have it appears that PPP is unambiguously the low bidder notwithstanding the failure of various bidders to specify the "reference date[s] for the bid prices" that would be requested by the rebid. PPP and SPRI, despite using different reference dates, came up with an identical figure of 40.5 cents per gallon as the base price from which they calculated their bid prices. Mobil used a range of base prices from 36 to 42 cents per gallon and quoted a corresponding range of bid prices, the lowest of which was higher than either the PPP or the SPRI bid. The fourth bid was so much higher than any of the other three that it would seem uncompetitive no matter how many ambiguities were resolved in its favor.

We note further that both PPP and SPRI have a record of performance on ASPA fuel supply contracts that should afford an objective basis for resolving any residual ambiguity on this point. On the present state of the record we hold that PPP was unambiguously the low bidder notwithstanding any uncertainty over "reference date for the bid price." If we have misread the record or otherwise erred in this conclusion, ASP A and SPRI remain free to urge such error by timely petition for rehearing .

VI. Conclusion and Order

Since PPP was the low bidder, and since there was no ground on which to reject the low bid, PPP acquired the right to the fuel supply award upon the opening of the bids. The initial award to SPRI was based on a clearly erroneous interpretation of the SPRI bid, and the subsequent decision to reject all bids was contrary to law. A.S.C.A. § 12.0211.

After a preliminary hearing on this appeal, all three parties stipulated that SPRI should continue to supply fuel to ASPA on the terms of its 1988 contract pending the Court's decision on the appeal. The parties further stipulated that in the event PPP should be determined to have won the contract, the period of the award would be "extended to at least a six-month period next [10ASR2d94] following resolution" of this appeal. We therefore order that PPP be awarded at least a six-month fuel supply contract on the terms of its December 1988 bid.

By agreement of the parties and in accordance with Appellate Court Rule 40, the time for filing any petition for rehearing of this appeal is hereby set at seven days. Our judgment and order in this appeal will be stayed pending the disposition of any such petition, and the term for which PPP shall be awarded the contract will begin at the conclusion of this stay or any extension thereof.

It is so ordered.

*********

1. Exhaustion is generally required as a matter of preventing
premature interference with agency processes, so that the agency
may function efficiently and so that it may have an opportunity
to correct its own errors, to afford the parties and the courts
the benefit of its experience and expertise, and to compile a
record which is adequate for judicial review.

Weinberger v. Salfi, 422 U.S. at 765.

2. [T]he Secretary may waive the exhaustion requirement if he
satisfies himself, at any stage of the administrative process,
that no further review is warranted either because the internal
needs of the agency are fulfilled or because the relief that is
sought is beyond his power to confer.

Matthews v. Eldridge, 424 U.S. at 330. See also Weinberger v. Salfi, 422 U.S. at 765-67.

3. But see also A.S.C.A. § 4.1040(c):

A preliminary, procedural or intermediate agency action
or ruling shall be immediately reviewable only if review
of the final agency decision would not provide an adequate
remedy.

Since we conclude that the ASP A decision was final, we need not address the application of this subsection to the present case.

4. Cf. Weinberger v. Salfi, 422 U.S. at 767:

Much the same may be said for the statutory requirement
that the Secretary's decision must be made "after a hearing."
...[A] hearing [would] be futile and wasteful, once the
Secretary has determined that the only issue... is a matter
of constitutional law concededly beyond his competence
to decide.... In the present case the Secretary does not raise
any challenge to the sufficiency of the allegations of
exhaustion in appellees' complaint. We interpret this to be
a determination by him that for the purposes of this litigation
the reconsideration determination is "final." [10ASR2d86]

5. Although this evidence is not in the record, the A.P .A. authorizes the court in its discretion to receive evidence to supplement the record. A.S.C.A. § 4.1043(a). In light of the expedited process employed by ASPA to resolve the complaint before it, it would be unfair not to exercise our discretion to receive the affidavits and exhibits offered by SPRI into evidence.

American Samoa Gov’ t v. Hawaiian Airlines, Inc.,


AMERICAN SAMOA GOVERNMENT
ex rel. AFAESE UIKIRIFI, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

AMERICAN SAMOA GOVERNMENT
ex rel. GEORGE NERU, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

High Court of American Samoa
Trial Division

CA No. 35-88
CA No. 36-88

February 16,1989

__________

Since deregulation of the airline industry, baggage liability limitations no longer are tariffs having [10ASR2d32] the force and effect of law but are contractual terms whose construction and enforcement depends on applicable law.

Deregulation of airlines does not leave territorial, court free to look only to the territorial law of contracts in deciding cases relating to lost baggage, since detailed federal regulations apply to baggage liability and since even in areas not expressly regulated the continued federal interest in air transportation suggests that federal common law should provide the rule of decision.

Promulgation by the Civil Aeronautics Board of regulations allowing airlines to limit the amount of their liability for lost baggage does not indicate regulatory approval of attempts by airlines to exclude fill liability for entire classes of goods.

In choosing between reasonable interpretations of a contract, court would opt for that construction which operates against the draftsman. Restatement (Second) of Contracts § 206.

Provision of airline's contract of carriage that airline would accept as baggage personal property for the "wear, use, comfort, or convenience" of passenger does not relieve the airline of liability for its loss of business goods accepted as baggage, since (1) the positive does not always imply the negative; and (2) having accepted business goods for transportation, the defendant should not be heard to say that it takes no responsibility for that which it has carried.

Provision of airline's contract of carriage, disclaiming liability for damage to certain items caused solely by the fragile nature of such items, implied that the contract did not exclude all liability for loss of "business goods" carried as baggage, since some of the listed items could only be carried for "business purposes."

Attempt by airline to exclude all liability for loss of certain classes of baggage was void for violation of public policy, since a carrier who stipulates not to be bound to the exercise of care and diligence seeks to put off the essential duties of his employment. [10ASR2d33]

Airlines seeking to incorporate by reference baggage liability limitations must provide to their passengers "conspicuous" notice that terms incorporated by reference are part of the contract and that such terms include baggage liability limitations. 14 C.F .R. Part 253.

Minuscule, lilliputian, or exceedingly fine print does not satisfy requirement that passengers be given conspicuous notice of incorporation by reference of baggage liability limitations.

To be sufficiently conspicuous, a notice of baggage liability limitations must be positioned and identified so as to penetrate the traveling public's reasonably focused consciousness.

Defendant airline's notice of incorporated terms was sufficiently conspicuous when the notice: (1) though small was legible; (2) was preceded by a bold-face heading; and (3) was the first thing a passenger would see in the ticket after the flight coupons.

In order for airline to limit its liability for lost luggage it must provide passengers conspicuous written material on or with the ticket that sets forth either (1) that airline's monetary limitation or (2) a notice that "[f]ederal rules require any limit on an airline's baggage liability to be at least $1250 per passenger." 14 C.F .R. § 254.5.

Airline ticket's notice which neither stated the airline's monetary limit on liability for lost baggage, nor contained the exact text of an alternate notice approved by federal regulation, was insufficient to limit the airline's liability. 14 C.F .R. § 254.5.

Baggage liability limitation notice which was behind the flap in the ticket jacket which would ordinarily contain the ticket did not provide passenger with conspicuous notice, since the message was poorly positioned and the design encouraged the obscuring of the terms of contract.

Baggage liability limitation found on ticket jacket was sufficiently conspicuous where: (1) type though small was legible; (2) the message was set out in a separate box at the tope of the page; and (3) a bold faced "PLEASE NOTE" drew attention to it. [10ASR2d34]

Where defendant airline did not provide conspicuous notice of its liability limits for lost baggage, it would not be able to limit liability and plaintiff would recover the full value of his baggage since (1) a reasonable reading of the contract led to that result and (2) that is the logical implication of federal regulations requiring conspicuous notice.

Al though the common law prohibited a common carrier from attempting to exculpate itself from all liability for loss of baggage due to its own negligence, federal common law has developed the "released value doctrine" under which a carrier may limit the amount of its liability to the agreed value of the goods, provided that the shipper has the option of obtaining coverage for the full value of its goods, is made aware of that option, and knowingly chooses to pay a lower price for the lesser coverage.

In promulgating regulations allowing airlines to limit liability for lost baggage by providing notice to passengers, and in rejecting a proposal that would have required passengers to sign a "statement of understanding" as a prerequisite to limitation of liability, the Civil Aeronautics Board implicitly limited the extent to which passengers may rely on the "released value doctrine" to avoid an airline's attempt to limit liability.

Expressed intention of Civil Aeronautics Board not to preempt state courts on applicability of "released value doctrine" to limitation of airlines' liability for lost baggage, and the Board's somewhat conflicting intention to facilitate incorporation by reference of limitations of liability, could be harmonized by requiring carriers (1) to make excess valuation insurance available; (2) to make this fact known to the traveling public in a manner at least as conspicuous as the required notices of the airline's limited liability; and (3) to set out the outlines of the coverage provided.

Conspicuous statement on airline ticket that excess valuation insurance was available, and on ticket jacket detailing the terms of such insurance, were sufficient so that passenger who had not purchased such insurance was entitled to recover only the [10ASR2d35] amount available under the airline's contract of carriage for loss of baggage.

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

Counsel: For Plaintiff, Tauivi Tuinei
For Defendant, Charles Ala'ilima

Facts

Plaintiff Uikirifi made two trips on Hawaiian Airlines (hereinafter "Hawaiian") from Honolulu to Pago Pago. On an August 7, 1987 trip, Hawaiian lost two bags containing clothing which plaintiff valued at $1,926.64. On September 17, 1987 nine pieces of luggage valued by plaintiff at $5,055.24 were lost. Four boxes were said to contain 227 fine mats which the plaintiff valued at $2,270.00. The other five bags contained clothing. The District Court awarded plaintiff $1,929,00 on the first claim and $4,999.00 on the second.

Plaintiff Neru traveled on Hawaiian on February 8, 1987. He carried with him four pieces of baggage, two of which were lost. They contained auto parts that plaintiff valued at $2,286.70. The District Court awarded plaintiff relief in that sum.

Hawaiian has appealed these decisions maintaining that certain contractual clauses either bar or substantially limit the claims of Uikirifi and Neru.

Discussion

During the past decade the airline industry has undergone substantial deregulation and the tariff structure which airlines once could rely on to limit their baggage liability no longer exists. See 49 U.S.C. § 1551. At the outset, therefore, we reject any 'suggestion that these cases may be simply disposed of because the baggage liability limitations at issue are "tariffs" that have the force and effect of law in binding passengers. This is not to say, however, that this Court is left to its own devices and that the contract law of American Samoa is all that we need look to in interpreting the contract of carriage which lies at [10ASR2d36] the heart of this controversy. There are rather detailed federal regulations which regulate the area of baggage liability, (1) and even in areas not covered explicitly by federal rules, applying territorial law does not seem appropriate because of the "continued federal interest in air transportation." See Arkwright-Boston Manufacturers Mutual Insurance-Co. v. Great Western Airlines, Inc., 767 F.2d 425, 427 (8th Cir. 1985). Federal common law should provide the rule of decision in these cases.

There are three major issues for decision. First, Hawaiian argues that it is absolved of any liability for the loss of these passengers' bags because of contractual provisions purporting to exclude the classes of items Uikirifi and Neru carried from liability. Second, Hawaiian maintains that even if it has some liability, it is limited to $1250.00 per passenger because of compliance with federal regulations that allow limitations of liability to be incorporated by reference into air carriage contracts. Finally, plaintiffs contend that, even if Hawaiian's limitation of liability conformed to applicable federal regulations, the [10ASR2d37] common law "released value" doctrine supersedes the limitation of liability and allows them full recovery.

I. Exclusions from Liability

Hawaiian maintains that certain contractual provisions release it from any liability for the lost bags. Almost half of Uikirifi's claim from the September 17, 1987 flight was for lost fine mats. The contract states that Hawaiian "assumes no liability for irreplaceable articles and/ or valuable items including but not limited to. .. religious or ceremonial mats and artifacts. " Rule 26 (B)(2), Terms of Contract of Carriage, at 49 (April 9, 1987). Accordingly, Hawaiian maintains it is not liable at all for loss of the fine mats. Hawaiian also states that it has no liability for the rest of Uikirifi's luggage and all of Neru's bags because they contained business goods, not the "personal effects" which Hawaiian had contracted to carry. Appellant's Memorandum, Hawaiian Airlines v. American Samoa Government ex rel. Langford, CA No. 37-88, at 7 (Sept. 19, 1988). Finally, Hawaiian contends that the "restriction of certain items from any liability was specifically approved by the CAB [Civil Aeronautics Board]." Id., citing Civil Aeronautics Board, Final Rule on Part 254--- Domestic Baggage Liability, ER-1374, at 6 (December 23, 1983), reprinted in Air Transport Association of America, Memorandum No.84-10 re: Domestic Baggage Liability (February 10, 1984) [hereinafter ER-1374].

To deal with Hawaiian's last point first, the Civil Aeronautics Board [C.A.B. or Board] did not "specifically" approve such limitations as are present here. Rather, the Board required that carriers seeking to incorporate by reference terms of contract include with their tickets a notice of any "'[l]imits on the air carrier's liability. .. for loss, damage, or delay of goods and baggage, including fragile and perishable items."' ER-1374, supra, at 6, citing 14 C.F .R. § 253.5 (b)(1). As is discussed in Part III below, a "limit" on the amount of a carrier's liability does not mean the same thing as the exclusion of all liability. We assume that the Board, which was conscious of this difference (see Part III, infra), did not intend to use "limit" in the sense suggested by Hawaiian. [10ASR2d38]

As to the argument that liability is contractually limited to "personal effects" to the exclusion of "business goods," we see the agreement quite differently. (2) Firstly, we could not find an explicit exclusion for "personal effects" in the contract, although the contract does explicitly disclaim liability for certain items ---such as fine mats. It would appear reasonable to us, therefore, that if "business goods" were meant to be excluded from liability an explicit exclusion for "business goods" would have been provided as well. (3)

At the same time, another clause provides that Hawaiian will "accept for transportation as baggage, such personal property as is necessary or appropriate for the wear, use, comfort, or convenience of the passenger for the purpose of the trip." Rule 19 (A), Terms of Contract of Carriage, at 30 (November 23, 1987) (emphasis added). Two observations may be made about this clause. First, the positive does not always imply the negative. Second, even accepting Hawaiian's reading, having once "broken" its own condition of carriage, Hawaiian should not now be heard to say that it takes no responsibility for that which it has carried. Cf,. Klicker v. Northwest Airlines, Inc., 563 F .2d 1310, 1316 (9th Cir. 1977) ("If the airline erred in accepting the animal, the responsibility for the mistake falls on the airline, not on the innocent shipper.") This is especially so given the extent of the class of goods sought to be excluded by Hawaiian's suggested [10ASR2d39] interpretation of this clause. (4) In fact, the contractual baggage liability clause states simply that Hawaiian "shall be liable for the provable loss of, damage to, or delay in the delivery of a fare-paying passenger's baggage, or other property." Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987). Nowhere here is it mentioned that Hawaiian is responsible only for "acceptable" baggage or for "personal" property or effects.

Furthermore, we find that the items questioned come within the definition of "acceptable" baggage. We find listed in another section of the contract several items that Hawaiian will only transport subject to a disclaimer of liability for any damage caused to such items due solely to their fragile nature. This class of fragile items includes " [a]dvertising displays, models, sketches, blueprints and maps" and "[m]icroscopes, oscilloscopes, meters, counters and polygraphs." Rule 20 (L)(3)(e), (L)(3)(h), Terms of Contract of Carriage, at 33 (January 1, 1983). If indeed responsibility for "personal " items were all that was envisaged by the contract, then "personal" items would thus seem to include a polygraph machine or advertising model, if the contract is to be consistently interpreted. We find it hard to imagine a logical definition of "personal use" which could differentiate between a polygraph machine or advertising model and auto parts or clothing for resale. We accordingly conclude that recovery for clothing and auto parts even where they are for "business purposes" is not excluded.

Finally, even if we were to concede that the contract does reasonably attempt to exclude all liability for the clothing and auto parts, the exclusion is void for violating public policy. In Klicker v. Northwest Airlines. Inc., the Ninth Circuit held invalid an airline tariff which purported to exclude all liability for damage due [10ASR2d40] to the death of an animal transported as baggage. 563 F.2d 1310, 1312-14 (9th Cir. 1977). The Court first explained that under the common law, carriers were not allowed to exculpate themselves from liability for their own negligence. Id. at 1312. Otherwise ""'[a] carrier who stipulates not to be bound to the exercise of care and diligence 'seeks to put off the essential duties of his employment.""" Id. at 1313, quoting New York, New Haven and Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 136 (1953) (emphasis in original) (other citations omitted). The Court reasoned that allowing the airline to exclude all liability for damage to animals which it accepted as baggage would violate this rule even where a tariff had been filed with and approved by the C.A.B. Id. at 1314. (5)

Prior to Klicker, the Second Circuit had issued decisions which arrived at the opposite conclusion. These decisions disallowed recovery for jewelry contained in lost baggage, reasoning that the airline tariffs excluding liability for jewelry had been approved by the C.A.B. , and that such tariffs had the force and effect of law. Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403-04 (2d Cir. 1969); Lichten v. Eastern Airlines, 189 F .2d 939, 941 (2d Cir. 1951). The Klicker decision cast doubt on the reasoning of these Second Circuit decisions. The court went so far as to say that it declined to follow the rationale of Tishman & Lipp and Lichten because "it is flatly wrong," Klicker, supra at 1314, and noted that Lichten had "been uniformly criticized by commentators." Id. at n.6.

A choice between these two lines of authority is unnecessary for our purposes. It is important to note that even the Lichten court acknowledged that it was "the common law rule that a common carrier may not by contract relieve itself from [10ASR2d41] liability for the consequences of its own negligence." Lichten, supra at 941. Thus, the Lichten decision did not question the principle of law that concerns us here. Instead, it was grounded on the court's interpretation of the effect regulation of airlines by the C.A.B. had on that rule. Id. In an era of deregulation, where neither the C.A.B. nor the tariffs considered by the Lichten court exist, it seems clear that exculpatory contractual clauses such as those in question here are no longer valid.

Here, Hawaiian has attempted to exculpate itself from any liability in carrying the enumerated goods including, presumably, liability for the intentional acts of its employees. The clause therefore, as it attempts to exclude responsibility for the loss of these "business goods," is void. Of course, this reasoning applies equally to the attempted exclusion of plaintiff Uikirifi's ceremonial fine mats.

II. Limitation of Liability to $1250

Hawaiian seeks to limit its liability for lost baggage through incorporating by reference a contractual term setting a maximum recovery of $1250 per passenger for loss of baggage. A passenger may avoid the $1250 limit by declaring a higher value for his baggage and paying an excess valuation charge of $1.00 for each additional $100 worth of baggage. Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987).

To so limit its liability, Hawaiian is required to comply with two sets of federal regulations ---14 C.F .R. Parts 253 and 254. (6) The former establishes the method by which airlines may incorporate by reference terms of a contract of carriage. The latter establishes specific rules relating to notice of limitation of baggage liability. [10ASR2d42]

A. Incorporation by Reference

Federal regulations specifically allow an airline in interstate transportation to incorporate by reference terms of its contract so long as proper notice of such incorporation is given the passenger. 14 C.F .R. § 253.4. When such notice is given, local law is preempted and the local authorities cannot require disclosures beyond those federally required. ld § 253.1. As it here concerns us, the regulations first require each airline seeking to incorporate by reference terms of contract to provide a "conspicuous notice" that any terms incorporated by reference are part of the contract. ld § 253.5 (a). The regulations further require notice that the contract of carriage incorporates by reference "[l]imits on the air carrier's liability. ..for loss, damage, or delay of goods and baggage. II ld § 253.5(b)(1). If such notice is not given, the carrier may not claim the benefit of the incorporated baggage liability limitations. Id § 253.4 (a).

Here, it is clear that language appears on the ticket which fulfills the substantive requirements of Part 253. The second page of the ticket following the flight coupons contains a notice that the air transportation "is subject to the individual terms of the transporting air carriers, which are herein incorporated by reference and made part of the contract of carriage." Exhibit 4, Hawaiian Airlines v. American Samoa Government ex rel. Neru, CA 36-88 (August 4, 1988). Thus the requirement of section 253.5 (a) is met. There is a further notice that the incorporated terms include "[l]imits on liability for baggage, including fragile or perishable goods." This then conforms to the requirements of section 253.5(b)(1).

The question, then, is whether these notices constitute "conspicuous notice" of the incorporated terms. We were not able to find any cases that have dealt directly with what constitutes "conspicuous notice" within the meaning of 14 C.F.R. § 253.5. However, cases decided under the Warsaw Convention have dealt with a similar issue in an analogous context and should be helpful in defining "conspicuous notice." There is also one helpful case involving the adequacy of notice at a time when a tariff required such notice. [10ASR2d43]

When its requirements are complied with, the Warsaw Convention (7) limits liability of carriers in international transportation by air for loss, delay, or damage to a passenger's baggage; for personal injury or death of passengers; and for air freight shipments. Warsaw Convention, arts. 17-19. As a prerequisite to obtaining the benefits of limited liability, the carrier must provide the passenger or shipper with a ticket, baggage check, or air waybill (as the case may be) which contains a "statement that the transportation is subject to the rules relating to liability established by this convention." 19.., arts. 3(e), 4(h), 8(q). Courts interpreting these provisions have held that the "statement" contemplated by the Convention must be more than "[i]nconspicuous and hypertechnical 'notice."' In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1313 n.13 (9th Cir. 1982). Rather, courts have held that as the quid pro quo for the Convention's substantial limitations on recovery of damages, the d9cuments involved must give the passengers "adequate notice" of the applicability of the Convention so that they might take self-protective measures such as purchasing additional coverage. Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., 370 F .2d 508, 513 (2d Cir .1966).

Not surprisingly, the factors which the courts have found important in deciding what is "adequate notice" under the Warsaw Convention bear a close relation to what one might intuitively expect to constitute "conspicuous notice." These include print size, type of print, legibility, and placement of the message.

In Lisi, the notice warning passengers about the applicability of the Warsaw Convention was:

"camouflaged in Lilliputian print in a thicket of 'Conditions
of Contract'... Indeed the exculpatory statements on
[10ASR2d44] which defendant relies are virtually invisible.
They are ineffectively positioned, diminutively sized, and
unemphasized by bold face type, contrasting color, or
anything else. The simple truth is that they are so artfully
camouflaged that their presence is concealed. "

Lisi at 514, quoting the decision of the lower court at 253 F.Supp. 237, 243 (S.D.N. Y. 1966).

In addition, on the front of the ticket and the baggage check a message drawing the passengers attention to the actual notice was printed in "exceedingly small print." Id. at 513. Accordingly, the appellate court affirmed the trial court's decision granting plaintiff's motion for summary judgment to strike defendant's Warsaw Convention defense. (A reproduction of the ticket involved in Lisi can be found at 253 F.Supp. 237, 240-42.)

In another illustrative case where the warning given was found inadequate, the first notice that the ticket was subject to the Convention found in a footnote to the face of the ticket was "in exceedingly small, almost unreadable (4 1/2 point) print." Egan v. Kollsman Instrument Corp., 234 N.E.2d 199, 200 (N. Y. 1967), cert. denied 390 U.S. 1039 (1968). On the outside back cover of the ticket "likewise printed in miniscule [sic] type" appeared some Conditions of Contract which included a statement that the transportation was subject to the Convention. Id. at 200 n.1. A final notice was "in such exceedingly small and fine print as almost to defy reading." Id. at 203. The court concluded that even though the airline had literally complied with the Convention notice requirement, this was nevertheless insufficient and not in accord with the overall purposes of the notice regime because "a statement which cannot reasonably be deciphered fails of its purpose and function of affording notice and may not be accepted as the sort of statement contemplated or required by the Convention." Id. at 203. The appellate court reversed the trial court's denial of plaintiff's motion to dismiss the defendant's affirmative defense grounded on the Convention.

The courts have also upheld the applicability of the Convention against claims that the notice [10ASR2d45] provided was inadequate. One court did so because the "printing on the back of the ticket and baggage check in this case, though small, is certainly readable." Parker v. Pan American World Airways, Inc , 447 S.W.2d 731, 735 (Tex. Civ. App. 1969) (affirming limitation of passenger's claim to the Convention amount). In another case:

each sheet of the five page ticket issued to appellees
contained three warnings that the provisions of the
Warsaw Convention applied to international flights.
The reverse side of each sheet contained one warning
in type about twice the size of the rest of the printing
on the page. The other warning, on the reverse side, was
in bold-face type in the body of the "Conditions of
Contract."

Trans World Airlines, Inc. v. Christophel, 500 S. W .2d 409, 410-11 (Ky. 1973) (reversing lower court decision and ordering j.n.o.v. for appellant).

Finally, another court held that because an air waybill had notice of the applicability of the Convention "in bold face, easily legible type placed directly above the space wherein Mr. Tobin affixed his signature" the message was adequate notice of the applicability of the Convention as a matter of law. Bianchi v. United Air Lines 587 P.2d 632, 635 (Wash. App. 1978).

The last case of interest to us was not under the Warsaw Convention but under former C.A.B. tariffs. The ticket in question had the notice of domestic baggage liability limitations below a paragraph that had the bold-faced heading "Advice to International Passengers on Limitation of Liability." Greenberg v. United Airlines. Inc., 414 N.Y.S.2d 240, 240 (1979) (emphasis added). The court held that "[a]ny reasonable person, let alone a harried tourist, would conclude that the described page, under its top line, applies solely to international passengers." Id. at 241. The court continued that "[a] notice so elusive cannot fulfill the office provided for it in the tariff. In order to succeed defendant's communication must be positioned and identified so as to penetrate the traveling public's reasonably focused consciousness. Instead, defendant has set before the [10ASR2d46] traveler a morsel of nourishment hidden in a banquet of dust." Id.

In this scheme of things, it is clear that defendant's Notice of Incorporated Terms is "conspicuous." The print is not small, and it is certainly legible. Cf. Egan, supra (4 1/2 point type). Also, there is a bold-faced heading which announces the content of the notice which follows. Cf. Bianchi, supra, and the suggestion of Lisi. Moreover, although the particular notice of baggage liability limitations is buried in the midst of five other specific notices, it is important to note that each of these other notices is also required by regulations. Given the fact that the C.A.B. has specifically referred to the advantages of short form ticketing (see Part III below), it would be hard to do this with a message much larger than that here. Also, if the message ran on to several pages because it were in larger type, the airline would potentially be accused of obscuring the notice by burying it in a morass of pages. Finally, the page is the first thing a passenger would see once she got past the flight coupons. In that sense then it is effectively positioned. Cf. Greenberg, supra.

B. Notice of Baggage Liability Limits

However, for Hawaiian to successfully limit its baggage liability merely providing notice of incorporation by reference would not be enough. According to 14 C.F .R. § 254.5 Hawaiian must also:

provide to passengers, by conspicuous written material
included on or with its ticket, either:
(a) Notice of any monetary limitation on its baggage
liability to passengers; or
(b) The following notice: "Federal rules require any
limit on an airline's baggage liability to be at least $1250
per passenger."

There are two places on the ticket and accompanying material dealing with baggage liability limitations. First, on the ticket itself. Second, on the ticket jacket. In analyzing each of these statements, the first question to ask is whether Hawaiian provided such a notice at all and then whether it was the [10ASR2d47] "conspicuous written material" required by the enactment. (8)

In our opinion, although the notice provided on the ticket itself is sufficiently "conspicuous," (9) its content renders it inadequate. The notice states that:

Liability for loss, delay, or damage to baggage is limited
as follows unless a higher value is declared in advance and
additional charges are paid:.... (2) For travel wholly between
U .S. points, to $1250 per passenger on most carriers (a
few have lower limits).

Exhibit 4, Neru, supra.

The notice does not comply with 14 C.F.R. 254.5(b) since it deviates in several material respects from the federally prescribed language of that subsection. Additionally, we do not think it fulfills the requirement of section 254.5(a). Instead of stating the "monetary limitation on ill baggage liability to passengers," (emphasis added), [10ASR2d48] the ticket clause states a hypothetical limitation on "most carriers" without indicating what this carrier's liability limitations are. The difference is not merely semantic. A traveler deciding whether to buy additional baggage coverage must make his decision on the basis of what he might recover without that additional insurance. Where the airline does not provide notice of its actual limitation, the customer cannot choose properly. That the importance of this distinction was understood during the rule making process seems clear when we consider that when the C.A.B. promulgated 14 C.F .R. § 254.5 it stated that it found the inclusion of either "(1) the Board- mandated notice, or (2) a specific statement of its actual liability limitation" preferable to "a general 'notice that liability may be limited." ER-1374, supra, at 6 (emphasis added). Although the notice provided on the ticket is more than a "general notice," in our opinion it seems closer to being a "general notice" than a "specific" statement of "actual" liability limitations.

Hawaiian's ticket jackets also include a notice of baggage liability limitation. The language here unambiguously sets forth Hawaiian's actual limitation. It states:

Liability for loss or damage: not over $1250 per passenger
unless higher value declared in advance. Charge for higher
value declared $1.00 per $100 (up to $2,500).*

*Not liable for fragile or valuable articles.

Exhibit 11, Hawaiian Airlines v. American Samoa Government ex. rel. Uikirifi, CA No.35-88 (August 4, 1988); Exhibit 5, Hawaiian Airlines v. American Samoa Government ex rel. Neru, supra.

However, it is less clear that the language of limitation on the jackets is the "conspicuous written material" required by the regulation.

Hawaiian uses at least two different types of ticket jackets. In one version, the baggage liability limitation is behind the flap in the ticket jacket in which one puts the ticket. (Hereinafter referred to as Type 1 jacket.) The contractual terms here appearing would ordinarily [10ASR2d49] be hidden from view by the passenger's ticket. Presumably the ticket will be placed in that part of the jacket designed for ticket placement. The design of this ticket jacket is inconsistent with conspicuousness; it naturally encourages the passenger to block from view the terms of contract. In Greenberg, supra, the court talked about positioning the message so that it penetrates the consciousness of the traveling public. This message would not.

We are mindful of the fact that the front of the flap has a boldface and capitalized message that says "FOR BAGGAGE INFORMATION LIFT FLAP." Even though it is the largest sized print on that page, this alone does not render the limitation of liability "conspicuous." It does not indicate what sort of "baggage information" is to be imparted--- it could just as well refer to size and weight limitations as to liability limitations. More importantly, the jacket's design just does not encourage the message to be found.

The other ticket jacket used by Hawaiian (hereinafter referred to as Type 2 jacket) has the baggage liability limitation on an inside page of the jacket. Perhaps some may say that this message is not as eye catching as it could be, but we find the same conspicuous. (10) The typeface, though small, is legible. See Parker, supra. Also, the [10ASR2d50] message is at the top of the flap and set out in its own box. Thus the notice is not buried in a mass of other .information as the information was in Lisi. or Greenberg. Finally, a bold face message asking the passenger to "PLEASE NOTE" precedes it. (This last factor may not immediately appear that impressive considering there is a plethora of such "Notes"-s and "Notice"-s on the jacket. An attempt, however, to be eye catching is certainly better than no attempt at all.)

In summary, our conclusions with regard to ticket jackets are that the Type 1 jacket is inadequate notice while the Type 2 jacket is adequate notice.

Having so concluded, we consider the evidence presented. In Uikirifi, the evidence indicates that plaintiff took two flights. Yet only one ticket jacket was introduced into evidence. That ticket jacket, exhibit 11 in CA No. 35-88, is a Type 2 jacket ---the kind which provides adequate notice. On the extent of our record, and mindful of plaintiff's burden of proof, we hold on the evidence before us, that the Type 2 jacket was the applicable jacket issued on both flights. (We note that Judge Sunia's findings below appear to be premised on Uikirifi having received a Type 1 jacket. Judge Sunia found the baggage liability limitation inadequate because it was located "underneath the flap," Findings of Facts, Conclusions of Law, and Order , American Samoa Government ex. rel. Uikirifi v. Hawaiian Airlines, CA No. 63-87 , at 2 (District Court, March 2, 1988). Notwithstanding this, since these matters have come to us by way of trial de novo, Rule 14 D.C.R., it is our record of the evidence that must govern our findings.) At this juncture, then, Uikirifi's recovery would seem to be limited to $1250 per flight.

Now , turning to the ticket jacket in the Neru case, the jacket introduced into evidence here was a Type 1 (underneath the flap) jacket ---i.e., providing inadequate notice. Section 254.5 does not state what consequences befall an airline which does not provide conspicuous notice of its liability limitations. However, the logical implication is that the airline would lose its contractual right to limit its baggage liability. Essentially, the statutory provisions having been rendered inapplicable by the absence of notice, [10ASR2d51] there is a reversion to the common-law liability of common carriers. Under the common law, only in very narrow circumstances could the carrier escape liability for loss of or damage to a customer's baggage. See discussion infra. Even if this were not the necessary result of failure to provide adequate notice under section 254.5, it is the result contemplated by the parties' contract. The contractual provision limiting liability to $1250 specifically states that this level of "maximum liability shall be waived for an individual claimant where it can be shown that with respect to that claimant HA [Hawaiian Airlines] failed to provide notice of limited liability for baggage." Rule 26 (A)(l), Terms of Contract of Carriage, at 49 (April 9, 1987). Given the regulatory framework Hawaiian operates under, it seems logical to treat the "notice" referred to in the contract as being synonymous to the "conspicuous" notice required by the regulations. Accordingly, we find that Neru is entitled to recover the full extent of his damages. Neru's unrebutted testimony valued his loss at $2,286.70. Because the items lost were all new, there is no question of depreciation and we find that Neru is entitled to that amount.

III. Released Value Doctrine

Having found that Uikirifi was provided sufficiently "conspicuous" notice to meet the requirements of 14 C.F .R. § 254.5, we next consider whether or not the "released value doctrine" affects the limitation of liability asserted against Uikirifi.

As noted above, the common law prohibited any attempts by carriers to exculpate themselves from all liability for their own negligence. Notwithstanding, federal common law developed the "released value" doctrine which essentially permitted a carrier to limit its liability for loss to the agreed value of property shipped in circumstances where the rate charged is related to the value of the shipment. See First Pennsylvania Bank v. Eastern Airlines, Inc., 731 F.2d 1113 (3d Cir .1984). The doctrine is nicely capsulized in that court's conclusions.

[U]nder federal common law, the authority of a common
carrier to limit its liability for the loss of the goods in its
care is governed by the "released [10ASR2d52] value
doctrine," under which a carrier may limit its liability to
the agreed value of the goods, provided that the shipper
has the option of obtaining coverage for the full value of
its goods, is made aware of that option, and knowingly
chooses to pay a lower price for the lesser coverage.

Id. at 1122.

Without the released value agreement, the carrier's liability under common law principles would equal the actual value of the property. Id., at 1116. Thus, when the carrier gave the shipper the chance to choose the higher fare ---which bought with it full liability coverage ---over the lower fare--- with its correspondingly lower coverage ---the passenger would be estopped from asserting the carrier's common law liability. One recent air shipment case has held that the carrier must give "'reasonable notice"' to the shipper of his options and that the shipper must make "'an absolute, deliberate and well-informed choice"' of the lower fare with its lower liability. Fireman's Fund Insurance Cos. v. Barnes Electric. Inc., 540 F.Supp. 640, 646-47 (N.D. Ind. 1982), quoting Trans-American Van Services, Inc. v. Shirzad, 596 S. W .2d 587, 590-91 (Tex. Ct. App. 1980). In Fireman's Fund, the shipper had actually signed a statement which assigned a value to a shipment of art which was destroyed while in the carrier's custody. However, the court found this fact insufficient to grant the carrier's motion for summary judgment to limit liability to the agreed upon amount because the shipper had a limited knowledge of English and maintained that he thought the contract of carriage to be a ('questionnaire," rather than a contract. Id.,. at 647-48. The court thought that a jury might believe that under those facts, the shipper "was not afforded [the] 'fair opportunity"' required by the released value doctrine. Id. at 647.

On the foregoing discussion of the released value doctrine, Hawaiian would seem to be fully liable for Uikirifi's losses because there has been no "absolute, deliberate and well informed" choice of limited liability by the passenger. No document declaring the value of the shipment or choosing the lower over the higher fare was signed, nor was there testimony that the availability of excess [10ASR2d53] valuation protection was pointed out to plaintiff or otherwise explained to him. However, in promulgating the applicable baggage liability regulations, the C.A.B. implicitly limited the extent to which passengers may rely on the released value doctrine to avoid an airline's attempt to limit liability. (11)

During the rule making process, the C.A.B. considered whether to adopt a proposal, the main feature of which was, that "passengers should be given oral and written notice of the carrier's liability policy, and asked to sign a 'statement of understanding' at check-in." ER-1374, supra, at 4. The Board rejected the proposal because it found the suggestion to be not "justified in light of the costs that would be involved." Id. at 6. The Board's action in effect is a rejection of one of the principal features of the released value doctrine since the suggested "statement of understanding" is simply the sort of waiver which would seem to be necessary for a carrier to demonstrate that the passenger had made an "absolute, deliberate and well informed choice." Another commenter expressed concern over allowing incorporation by reference of the liability rules. Id. at 5. The C.A.B. responded that:

short-form ticketing was important to the efficiency of the
air transportation system, and that there was no cost
justification for replacing the tariff system with one of bulky
individual contracts to be given out to each airline passenger.
Baggage liability is just one of the many terms of the contract
of carriage that are comprehended by that basic policy
decision. The Board has recognized, however, the importance
of baggage liability to the individual rules that are the subject
of this proceeding. [10ASR2d54] The intent of the rules
is to alert every passenger directly, in simple terms, of the
carrier's limitation of liability, while making the details
available through less costly means under the provisions
of Part 253.

Id. This too implies that the Board had rejected an explicit waiver approach, since it would be a step toward undesirable "bulky" contracts, in favor of allowing the carriers to limit their liability through incorporation by reference.

On the other hand, the C.A.B. may also seem equivocal on the issue because in the same rule making, it also considered and refused to promulgate a rule requiring the airlines to carry excess valuation insurance. (12) In so doing, the C.A.B. noted that nevertheless it would appear "to be in the carriers' own interest to offer excess valuation insurance coverage, or at least to make sure that it is readily available" because the released-value doctrine was the very basis upon which an airline was allowed to limit its liability in the first place. ER-1374, supra, at 11. The Board then stated that its decision to not require excess valuation insurance was "not intended to preempt state courts on the issue of excess valuation coverage." Id.

Extending the import of this last statement of the Board's intent to its limits, one might argue that by not intending to preempt courts on the issue of excess valuation coverage, the C.A.B. must also have not intended to preempt application of the full scope of the "waiver" requirement. Such a view would ignore the Board's previously mentioned [10ASR2d55] intention to facilitate incorporation by reference without the costs associated with individual sign- offs and we refuse to adopt it. Instead, we believe that these somewhat conflicting expressions of intention may be harmonized without doing violence to each other. This can be done by requiring that a carrier make available excess valuation insurance, make this fact known to the traveling public in a notice at least as "conspicuous" as the ones which are provided under sections 253.5 and 254.5 on incorporation by reference and baggage liability limitations, and set out the outlines of the coverage provided. This much Hawaiian has done. The ticket itself contains a statement attached to the one on baggage liability limitations that the contract also incorporates by reference terms on the "availability of excess valuation coverage." Exhibit 4, Neru, supra. Also, Uikirifi's ticket jacket includes a statement that details the availability of excess valuation insurance on Hawaiian. The jacket reads "[c]harge for higher value declared [is] $1.00 per $100 (up to $2500)." Id., Exhibit 5; Uikirifi, supra, Exhibit 11. Since the excess valuation statement is of the same size and in the same location as the baggage limitation statement, in the Uikirifi case it is, like the notice of limited liability, sufficiently "conspicuous." (13) Accordingly, Uikirifi would not be entitled to recover any more than the contract ceiling, namely, $1250 per flight or $2500. (14) [10ASR2d56]

Conclusion

We conclude that the ticket and ticket jacket given plaintiff Neru did not comply with federal regulations allowing limitation of liability for loss of bags to $1250 and thus were inadequate to inform him or those limitations. Further, it would violate public policy to allow Hawaiian to disclaim all liability for loss of the bags. Therefore, Neru is entitled to recover the full amount of his loss ---$2,286.70.

In Uikirifi's case, Hawaiian likewise could not disclaim all responsibility for the contents of the bags. However, because the notice requirements of the federal regulatory scheme were complied with, he may only recover $2500 for loss of his bags ---that is, $1250 for each of the two flights he took. We also note that Uikirifi paid $129.00 in excess baggage fees on his September 17, 1987 flight. Since Hawaiian did not deliver a single one of these bags, we find this to be an additional item of damage due Uikirifi. He will accordingly have judgment for $2629.00.

It is so Ordered.

*********

1. These regulations were promulgated by the Civil Aeronautics Board. Although the particular statutory authority under which the regulations were promulgated is unclear , former 49 U.S.C. § 1374(a) provides ample room for the promulgation of these regulations. That provision provides, in part, that carriers are to provide "adequate service." This clause has been interpreted broadly enough to include regulation of smoking on aircraft as a factor of adequate service. Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039, 1044-46 (5th Cir. 1982), cert. denied 459 U .S. 1107 (1983). Clearly, then, baggage liability would also be subject to regulation under that interpretation of "adequate service." The C.A.B. no longer exists, having been deregulated out of existence. However, its authority to regulate in the areas of "safe and adequate service" has been transferred to the Department of Transportation. 49 U.S.C. §§ 1551(a)(4)(C), 1551(b)(1)(E). Thus, the Congress has expressed its concern that these areas remain subject to direct federal regulatory control.

2. In the Neru case, plaintiff concedes that the automobile parts were bought for resale. In Uikirifi, Hawaiian maintains that the amount of clothing bought by plaintiff indicates that he intended to resell the clothes. Although Uikirifi characterized the items as "family shopping" in his claim form, we accept for the purposes of analysis Hawaiian's contention.

3. As defendant supplied the myriad terms of contract, in choosing between reasonable interpretations of the contract, we opt for that construction which operates against the draftsman. See Restatement (Second) of Contracts § 206.

4. The net effect of Hawaiian's position simply fails to address the possibilities, indeed the realities, that some people who use its air service do so in furtherance of a business purpose and therefore it is not unlikely that accompanying baggage of the business traveler will have something to with that business purpose.

5. By the time that the case reached the appellate level, the C.A.B. had invalidated the tariffs in question as unreasonable. This, however, would not have helped the plaintiffs as the tariff was in full force at the time they traveled and it would take a judicial determination that the tariff had been void as against public policy to give them relief. Id at 1313.

6. As we will see in Part Ill, in some circumstances limiting liability to a fixed amount is not considered to be the same as an attempt at exculpation and may be valid.

7. Convention for the Unification of Certain Rules Relating to International Transportation by Air , opened for signature Oct. 12, 1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, T.S. No. 876, reprinted as note to 49 U .S. C.A. sec. 1502 [hereinafter Warsaw Convention].

8. Although section 253.5 speaks of "conspicuous notice" and 254.5 of "conspicuous written material," we do not think that there is a relevant difference between these two phrases on the facts of this case and will treat them as synonyms. There might be a valid difference if, for example, an airline gave "conspicuous notice" by orally informing each passenger of the areas of incorporated terms. This would seemingly not satisfy the "conspicuous written material" requirement on baggage liability. However, on the facts of this case there is no reason to treat them differently.

9. The notice is conspicuous because it is in fairly large type, easily legible by one who gets that far into the ticket, and has a bold-face heading which would draw attention to the statement. Basically, there is not that much more that an airline can do to make this more conspicuous without using individual sign-offs, larger format tickets, or similar devices which the C.A.B. has in effect said they need not do. (See below.)

10. There would be any number of ways that Hawaiian could have made the limitation more conspicuous ---e.g., using larger type, bold print throughout, or putting the message on the jacket cover itself next to the seat information. However, it is easy to say that things could be made more conspicuous. The question that needs to be answered is whether what was provided was conspicuous enough. Also, in answering this question, we have to be careful to remember that some of the rest of the material on the jacket is required by other federal regulations. If too much attention is drawn to this provision, then less will be drawn to such things as, for example, the notice on overbooking of flights. We should not place the defendant in the situation of having to choose to comply with one set of regulations at the expense of noncompliance with another.

11. It is to be noted that Fireman's Fund involved air shipments, and not passenger accompanying baggage. In the air freight situation, we could not find comparable regulations regarding liability similar to 14 C.F.R. Parts 253 and 254. Thus the standard explicated in Fireman's Fund is not necessarily the same as that applicable in the context of accompanying baggage.

12. Although phrased in terms of "excess valuation insurance" the C.A.B.'s reference is clearly to the released value doctrine. The vocabulary merely reflects a different way of saying the same thing. The classical released value doctrine talked of rates being lower for released values. Insurance implies an extra charge for additional baggage. But whether phrased in terms of a discount for lower coverage or a premium for additional coverage, the economic effect of either is the same--one pays a lower rate for limited liability and a higher one for full protection.

13. In the Neru case, the excess valuation notice is inadequate because of its location behind the ticket jacket flap. However, this makes no practical difference since Neru is already entitled to full recovery as explained above.

14. The plaintiffs also contended that they were deprived of notice of the limitations and entitled to full recovery because Hawaiian was obligated to provide notice of the baggage liability limitations in Samoan. Without expressing agreement on the merits of this contention, we find it factually inappropriate. We are not impressed with Uikirifi's asserted inability to read English because he was able to respond to and fill out claim forms to a degree which demonstrates sufficient proficiency in English to understand the limitations of liability on the tickets. (Since we have awarded Neru full recovery, the issue does not arise in his case.)

American Samoa Gov’t; Galo v.


IVA T. GALO and PEATA GALO, personally,
as personal representatives of the Estate
of DAVID GALO, Deceased, and as Guardians

ad Litem of FA'AFAGA GALO and MALAE aka
PATISEPA GALO, Minor Children, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa
Trial Division

CA No.113-87

March 8, 1989

__________

Parents who relinquished rights to their child so that he could be adopted by another family did not thereby terminate the child's legal relationship to his brother.

When parents who had accepted appointment as guardians ad litem for their minor child relinquished their parental rights to the child, parents and their attorney continued to have a fiduciary relationship requiring vigorous protection of the child's interests in connection with the lawsuit, especially insofar as these interests might conflict with their own. [10ASR2d95]

For guardians ad litem and their counsel to request that minor child receive no share in settlement award was inconsistent with their fiduciary obligation to him, especially where the result of disregarding the child's interests was to leave more money to be distributed among other family members including the guardians themselves.

Attorney for guardians ad litem of minor child should have advised guardians of their fiduciary obligation rather than acquiescing in their request to eliminate the child from distribution of settlement award.

Parents' intention to make use of settlement award in a way that would benefit the whole family was insufficient reason to award parents a greater portion of the settlement, and children a lesser portion, than reflected the injuries actually suffered by the various parties.

Parents, as personal representatives of their child's estate, were entitled to recover for the child's pain and suffering and for medical and funeral expenses. A.S.C.A. §§ 43.5001, 43.5002.

Where attorney had failed to represent one of his four clients, a minor child, and had failed to advise his other clients of their fiduciary obligations to the child, court charged with settlements involving minors would not approve an attorney's fee in the maximum amount permitted by law but would require a reduction in the fee. A.S.C.A. § 43.1213.

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

Counsel: For Plaintiffs, Asaua Fuimaono
For Defendant, Robert Dennison, Assistant Attorney General

On Motion to Allocate Funds and for Approval of Attorney Fees:

This action arose from the death of infant David Galo shortly after his birth at the Lyndon Baines Johnson Tropical Medical Center. Defendant American Samoa Government negotiated a settlement with the single attorney who was representing all [10ASR2d96] parties including the minor children. The attorney now files a request for the following distribution of the $25,000 settlement:

Peata Galo (father) $ 9,000
Iva Galo (mother) 9,000
Patisepa Galo (minor child) 1,000
Fa' apiano Galo (minor child) 1,000
Fa' afaga Galo (minor child) 0
Attorney Fees 5,000

Fa' apiano Galo is a child born to Iva and Peata Galo two years after the death of David. He is not a plaintiff in this action. The attorney has not requested any funds for Fa'afaga Galo, who is a plaintiff and for whom Iva and Peata Galo have been appointed Guardians ad Litem, on the ground that Fa'afaga has been adopted by another family. The attorney requests that the bulk of the settlement be given to the parents, with only a token amount for the children, so that the parents can purchase a piece of property.

There are several things wrong with the proposed distribution.

First, although it is possible to construct an argument that Fa' apiano has suffered injury during his lifetime from an event that occurred two years before he was born, counsel has not bothered to do so. Indeed, Fa'apiano was never named as a plaintiff in the action. Counsel proceeds instead on a theory that the Court should treat Fa'apiano as having stepped into the shoes of plaintiff Fa'afaga as a result of the adoption of the latter and the birth of the former .

This raises the second problem: although Iva and Peata Galo did relinquish their parental rights so that Fa'afaga could be adopted by another family, they did not thereby terminate his status as the brother of David. Nor was there an end to the status of Iva and Peata as guardians ad litem for Fa'afaga (a status described in the order drafted by their attorney as "Personal Representative of.... their other children FA'AFAGA GALO and MALAE GALO."). Despite the termination of their legal rights and obligations as the parents of Fa'afaga, the parents and their attorney continued to have a fiduciary relationship to the child as his guardians ad litem or "personal representatives. " The principal obligation imposed [10ASR2d97] by that relationship was the vigorous protection of the child's interests in connection with this lawsuit, especially insofar as these interests might conflict with their own.

It does not seem unreasonable to maintain that a child suffers less by the death of his brother when the brother does not live in the same household. For the child's guardians and their counsel to treat the child's interests as worth exactly nothing, however, was inconsistent with their fiduciary obligation to him. This is particularly true insofar as the result of disregarding Fa' afaga's interests was to leave more money to be distributed among other family members including the guardians themselves. Although the guardians may not have understood this, their attorney should have advised them of it rather than simply acquiescing in their request to eliminate Fa' afaga from the proposed distribution.

Finally, the parents' intention to make use of the settlement in a way that will benefit the whole family is insufficient reason to award them a greater portion of the settlement, and the children a lesser portion, than reflects the injuries actually suffered by the various parties on account of David's death. (This is not to say that the result desired by the parents was impossible to achieve. Upon a showing that the proposed purchase would be the best possible use of funds to which the children are rightfully entitled, the Court would presumably authorize such use subject to appropriate safeguards of the children's interest in the property. Again, the attorney should have known the difference.)

As it happens, we believe that the parents are entitled to a larger share than the children, not because of what they intend to do with the money but because they are likely to have suffered more by David's death. Indeed, the complaint states a cause of action for Iva Galo's pain and suffering during labor as well as upon the death of her child. Also, as the sole legal heirs of David Galo his parents were appointed his personal representatives in this action. See A.S.C.A. §§ 40.0201(d), 43.5002. As such they are entitled to recover for the pain and suffering of David himself before his death and for medical and funeral expenses. See A.S.C.A. §§ 43.5001(b), 43.5002; [10ASR2d98] Fa'avae v. American Samoa Power Authority, 5 A.S.R.2d 53 (1987).

Accordingly, we order the settlement funds distributed as follows:

Iva Galo $ 8000
Peata Galo 5000
Iva & Peata Galo as personal representatives of David Galo 4000
Patisepa Galo 3000
Fa'afaga Galo aka Fa'afaga Gaoa 2000
Attorney Fees 3000

The original proposed distribution allocated a $5000 attorney fee. This is 20% of the total settlement, the statutory maximum in cases against the government that are resolved by settlement. A.S.C.A. § 43.1213. Under the circumstances of this case, including the attorney's total failure to represent one of his four clients and his failure to advise his other clients with respect to their fiduciary obligations, $3000 is the largest fee we can possibly approve.

The funds to be distributed to Patisepa and Fa' afaga should be deposited in the registry of the Court, where a trust account will be established for them with the guardians ad litem as trustees, or in some other trust account approved in advance by the Court.

At the request of counsel for the government and without objection from plaintiffs, the settlement agreement approved by the Court is amended to correct a typographical error. The amendment is to replace the name "Fa' afetai" with "Fa'afaga" wherever it appears.

It is so ordered.

*********

American Samoa Gov’t v. Talamoa,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

PAULO TALAMOA, Defendant

High Court of American Samoa
Trial Division

CR No. 80-88

January 17, 1989

__________

Request that government investigate each of its prospective witnesses at criminal trial in order to ascertain whether any witness had a criminal record in another jurisdiction, and inform defense counsel of any such record, was beyond the scope defendant's right to discovery.

Provision of territorial constitution prohibiting deprivation of life, liberty, or property without due process of law prohibits prosecution from suppressing any evidence favorable to an accused where the evidence is material either to guilt or punishment. Rev'd Const. Am. Samoa art. I § 2.

General request by defense counsel for any evidence in the possession of the prosecution that might tend to exculpate the defendant was within the scope of rule prohibiting suppression of material evidence favorable to the accused. Rev'd Const. Am. Samoa art. I § 2.

Before KRUSE, Chief Justice.

Counsel: For Plaintiff, Barry I. Rose, Assistant Attorney General
For Defendant, Herbert Evans, Assistant Public Defender

On Motion to Compel Discovery:

Defendant made a number of discovery requests with the government and subsequent to a motion by the defendant to compel discovery of certain matters objected to by the government, the issues [10ASR2d15] for consideration by the Court were narrowed to: whether the government must disclose (1) any criminal records of its witnesses; (1) and (2) exculpatory evidence.

It appeared at the hearing that defendant's primary concern was the possibility of any witness having an off-island criminal record which would remain unknown to defendant. Defendant feels that with the government's comparative investigative resources, the requested information should be obtained by the government.

We hold this request to be beyond the scope of the discoverable and deny relief.

With regard to defendant's request for exculpatory evidence, defendant cites Brady v. Maryland. 373 U.S. 83 (1963). In Brady the Supreme Court held that the requirements of due process prohibit the prosecution from suppressing any evidence favorable to an accused where the evidence is material either to guilt or punishment. Without conceding that the Brady rule is applicable in American Samoa, the government objects to the request as being overly broad and beyond the bounds of Brady. The defense in effect addresses the possibility that such evidence may exist and contends that such a general request is appropriate under Brady. They accordingly request the Court for a holding that Brady is equally applicable in American Samoa. [10ASR2d16]

We hold that the demands of due process, with regard to an accused's right to a fair trial, as found in Brady, are similarly the demands of Article 1, section 2 of the Revised Constitution of American Samoa, which requires that "[n]o person shall be; deprived of life, liberty, or property, without due process of law." Secondly, and contrary to the government's position, we agree with the defense that notwithstanding the general nature of their request, it is nonetheless within the scope of Brady. United States v. Agurs. 427 U.S. 97, (1976). That scope is not unlimited and a careful reading of the Agurs case should dispel any of the uncertainties alluded to by the prosecution.

*********

1. The government has stipulated to the disclosure of its witness list at least three days prior to trial with the continuing obligation to update that list as it may change. We intimate no conclusions whatsoever with regard to the question of whether such a list of witnesses is discoverable in this jurisdiction. Cf. 18 U.S.C. § 3432. It might also be noted on the particular facts of this matter that the government had, in accordance with its claim to normal policy in these matters, made available to defendant the complete police interview file in connection with this case which contained among other things the names and statements of all people the police interviewed for statements.

Fanene; Seva'aetasi v.


SEVA'AETASI FAMILY by TAGO
ROBERT SEVA'AETASI, Plaintiff

v.

FANENE TAUVEVE, MULIUFI FANENE, and
FETAIAIGA FANENE, Defendants

TAGO SEVA'AETASI, ASUEGA FA'AMAMATA L. SALANOA,
and LOTOA GI TAVAI, Objectors/Plaintiffs

v.

FANENE F. TAOFI KAVA for FANENE
FAMILY, Defendants/Claimants

[10ASR2d145]

ROBERT S. TAGO SEVA' AETASI, Objector/Plaintiff

v.

UA TA'ITA'I and EPI TA'ITA'I, Defendants/Claimants

EPI UA TA'ITA'I, ASUEGA F. LAUVAI SALANOA,
FANENE FETAlAIGA TAOFI KAVA, and
IVI K. PENEUTA Plaintiffs/Objectors

v.

ROBERT S. TAGO SEVA'AETASI for
SEVA'AETASI FAMILY, Defendant/Claimant

UIVA TE'O for TE'O FAMILY, Intervenor

High Court of American Samoa
Land & Titles Division

LT No. 25-85
LT No. 33-86
LT No. 31-87
LT No. 32-87

March 23, 1989

__________

Since the history of how a tract of land was first named and occupied, told and retold over centuries, tends to vary from family to family, one family's history will not ordinarily be dispositive of judicial proceedings regarding land ownership.

Rather than base its decision on ownership of land on which party had the most comprehensive theory about the history of the land, court based its decision primarily on the best evidence of occupation during the last hundred years.

Where matai who claimed land belonged to her family was also a member of another family that claimed the same land, and prior to obtaining her matai title had urged the matai of the other family to register part of the land, her earlier action would not absolutely preclude her later claim but was evidence supporting the court's conclusion that the [10ASR2d146] land had traditionally been regarded as belonging to the other family.

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

Counsel: For Asuega Family, Charles Ala'ilima
For Fanene Family, A viata Fa' alevao
For Gi Family, Edwin Gurr and Sala Samiu
For Leota, Aumoeualogo Soli For Tuaolo Maliuga, Tau' ese P. Sunia
For Seva' aetasi Family, Asaua Fuimaono
For Pulu Talalotu and Family, Aitofele Sunia
For Epi Ua Ta'ita'i, Togiola T.A. Tulafono
For Uiva Te' o, Lutu T. Fuimaono

On Motion for Reconsideration or New Trial:

Asuega moves for reconsideration of our decision allowing registration of certain land by the Fanene family and by the Seva'aetasi family.

Asueg'a principally contends that the Court erred in declaring the land called "Tuilemuia" to be the land of the Fanene family.

The first ground of error is that the Court failed to give consideration to the fact that Asuega offered a theory of how the land got its name, whereas Fanene offered no such theory. Asuega maintains the true name of the land is "Tu'ulemuia." She says this name commemorates an event that happened during the battle to repel the Tongan invasion hundreds or thousands of years ago. There was a battle at the top of the mountain and the Asuega titleholder at that time was supervising the evacuation of the wounded from the battle ground. As the wounded warrior or' warriors were carried down the mountain, Asuega made various remarks at places on the way. Each of these places then acquired the name of what Asuega had said there. When he got to the area presently in dispute, he instructed those carrying the wounded to "put them down softly" (tu'u lemu ia). Hence the name.

Al though the Court was most interested in this story of how the land was named, we have no idea[10ASR2d147] whether it is a true story. much less whether the person who knows the story necessarily owns the land. Histories told and retold over the centuries tend to vary in the telling from family to family; this one might be exactly accurate. or it might be accurate in every detail except that it was a Fanene or a Te'o or a Mauga who gave the orders. We note that counsel for Fanene. in cross-examining Asuega. asked whether she had not heard that Fanene had instructed those fighting the Tongans to stab them softly (tui lemu ia} because they were already dead. Although counsel for Asuega may be correct in pointing out that this theory was not put in evidence. its use in cross-examination brought home the point that there were other plausible ways in which the land might have been named.

We note that all non-Asuega witnesses who adverted to the name of this parcel. including those who appeared disinterested as between Fanene and Asuega, called it "Tuilemuia" rather than "Tu'ulemuia." Asuega's own pleadings refer to Tuilemuia, and her objections before the Registrar refer to "Tulemuia." We note also that Asuega's theory would entail the authority of Asuega over various tracts of land further up the mountain. There was no evidence of such authority other than the story itself. Although the ownership of the land further up the mountain is not before us. such evidence as was incidentally presented would suggest that claims of a general Asuega overlordship in this area would be warmly resisted by the Gi. Tuaolo. Poiali'i. and Te'o families. among others.

The main point. however, is that family history is not the sort of evidence that can ordinarily be dispositive of land trials. If this case had turned on which party had the most comprehensive and spellbinding theory about the history of the land. the whole area would have been awarded to Seva' aetasi or Te'o. Instead the Court based its decision primarily on the best evidence of who has occupied the land for the last hundred years or so.

In their pleadings the Asuega and Fanene families agreed that. Tuilemuia belonged to only one of them. The two families are connected by married, and each family insisted that members of the other family were on the land only because of [10ASR2d148] this connection. (1) Indeed, at trial both parties agreed that every member of the Asuega family who had been on the land was also a member of the Fanene family and vice versa. The only question for the Court to resolve was whether they were on the land in their capacity as Fanenes or as Asuegas.

After the conclusion of the trial, Asuega submitted an affidavit to the effect that she had been in error on this point. She said that two people who had been on the land, Toali' i and Tiute, were members of the Asuega family but not of the Fanene' family. At a brief post-trial hearing, counsel for Fanene did not contest this new evidence (We were incorrect in our observation that" [o]nly Asuega herself identified the two non-Fanene family members as occupying the area in question") The Fanene family still maintains, however', that any Asuega family members who were ever on the land were there because of a connection to the Fanene family. By Asuega's own version of this connection, the two people in question were descended from Asuega Aumalaga. Asuega Aumalaga married a Fanene woman, the daughter of Fanene Fogatau. He later took a second wife who was not a Fanene. The two non-Fanenes who were identified as having lived on Tuilemuia were descended from this second marriage.

The presence of these two people on Tuilemuia at some time in the past does not answer the [10ASR2d149] question before the Court, which is why they came. Asuega says that Fogatau came onto the land because of his son-in-law Asuega Aumalaga; Fanene says Aumalaga came because of his father-in-law Fanene Fogatau. In either case it would not have been inconsistent with Samoan custom for the children of Asuega by his second marriage to remain on the land along with their half-brothers and sisters. Their customary rights and obligations would have differed depending on whether they were blood members or merely connections of the family that owned the land, but as long as relations were friendly and land plentiful it is unlikely that they would have been evicted.

The question for the Court remains whether the people on Tuilemuia have traditionally regarded it as Fanene or Asuega land. We have no evidence of what Tiute and Toali'i thought, but we do know that members of both families who have lived on the land during the last forty years or so have regarded it as Fanene land under the pule of the Fanene titleholder. This was the testimony of Oti, the Fanene/Asuega family member most prominently identified with the land, at trial. It is also the position of Aleki and Muliufi, whose construction on Tuilemuia was the event that gave rise to these consolidated cases. Throughout the course of a long boundary dispute with Tago Seva' aetasi they have consistently relied on the authority of Fanene rather than Asuega, although they are members of both families. .

We do not believe we erred, moreover, in taking account of Asuega's testimony that, during a previous case prior to her acquisition of the Asuega title, she urged the Fanene titleholder to file a claim to land in this immediate vicinity but gave no such counsel to the Asuega titleholder. While such an action does not absolutely preclude a later claim by the Asuega family, it does bolster our conclusion that most members of both families have traditionally regarded Tuilemuia as Fanene land. [10ASR2d150]

Finally, Asuega urges that her family should be awarded at least those areas that are within the Asuega survey but outside the Fanene survey. One such area is to the east of the Fanene survey, where Asuega stresses the fact that her boundary is a "natural" one, along a gully. (We do not recall whether Fanene was asked at trial to describe her eastern boundary. At the hearing on the order to show cause she testified that it was along a stone wall that had been wrongfully bulldozed by Tago.) The weight of the evidence, however, shows that the area just to the west of the boundary claimed by Asuega belongs to the Seva'aetasi family.

The only other area outside the Fanene survey that was claimed by Asuega is a small strip of land along the southern boundary with Epi and Ua Ta'ita'i, with a total area of perhaps one-tenth of an acre The Fanene and Epi surveys did not quite meet, and yet witnesses for each of these parties testified to a common boundary with the other. The weight the evidence was that the mutual boundary was along the line claimed by Epi. To have awarded this tiny strip of land to either of the two parties that included it in their surveys, Seva'etasi, or Asuega, would not only have presented extraordinary opportunities for future discord but would also have been contrary to the evidence,

The motion for reconsideration or new trial is accordingly denied.

It is so ordered.

*********

1. The Fanene/Asuega disagreement was not, in other words, a boundary dispute in which both sides might win a portion of the (disputed area. Rather, each party's claim depended on controverting the legitimacy of the other's title. Such controversies can be at least as difficult to resolve as boundary disputes, but are far more likely to end up with clear winners and losers. Counsel for Asuega now argues that even if Fanene prevails with regard to the land within her survey, certain adjoining lands should be awarded to Asuega. This would entail a decision that each of the two families was occupying lands within the Tuilemuial Leiliili area in its own right. Whatever its emotional appeal, such a decision would be contrary to the central argument and evidence of both parties.

Fai'ivae; Uo v.


UO EDGAR REID, LUCY UO AH CHING,
EUGENE UO, and EMILE UO for
the UO FAMILY, Plaintiffs

v.

AMOS GALEA'I and FAI'IVAE GALEA 'I,
Defendants

High Court of American Samoa
Land & Titles Division

[10ASR2d151]

LT No. 6-87

March 27, 1989

__________

One who begins construction on disputed land after notice of the opposing party's claim, and especially during the pendency of litigation to determine title the land, does so at his own risk and is not entitled upon eviction to compensation for the value of his improvements, at least where the opposing party has pursued its claim with diligence.

Before REES, Associate Justice.

Counsel: For Plaintiffs, Edwin Gurr
For Defendants, Fai'ivae Galea'i

On Motion for Preliminary Injunction:

This case is one of those that have been consolidated with LT Nos. 45-81 et al., Willis v. Fai'ivae. This motion involves only the Uo family and the Fai'ivae family.

In 1987 certain members of the Uo family sued to enjoin the defendants, members of the Fai'ivae family, from occupying land the Uo family calls Leifi. Lucy Uo commissioned a retracing of a 1915 survey of Leifi on record with the Territorial Registrar. The retracing shows two houses occupied by Fai'ivae family members to be within the boundaries of Leifi. The Fai'ivae family maintains that the retracing is incorrect and that the houses are actually within the boundaries of land claimed by Fai'ivae called Lefega.

The present motion for a preliminary injunction was occasioned by the construction, now in progress, of a third Fai'ivae house adjacent to the existing houses in the disputed area.

The Court visited the land and made the following observations:

1) The house now under construction is roughly 600 feet north of a bathing pool identified by chief Fai'ivae to be the pool called "Pugaloa." [10ASR2d152]

2) The evidence at the first hearing on the consolidated cases showed that there was land called Pugaloa or Pagaloa belonging to the heirs of Matthew Hunkin; that this land was a few hundred feet to the south of Leifi; and that at the northern boundary of Pugaloa there was a bathing pool.

2) Fai'ivae defends his claim that the house is outside the boundaries of Leifi by reference to two maps that were introduced into evidence at the first hearing on the consolidated cases. One of these maps (Exhibit 32) is of property called Lepala, registered in 1915 by Mrs. Thomas Meredith. The other (Exhibit 30) is the 1915 map of Leifi, registered by Uo.

3) According to the 1915 map, Lepala should extends about 290 feet from north to south along the trail or road that traverses it.

4) According to he 1915 map and also to the position currently taken by both Uo and Fai'ivae, Leifi should extend about 200 feet from North to south along the trail or road.

5) The 1915 map of Leifi shows Pule and Tuiteleapaga as neighbors to the south, Fai'ivae and Le'oso as neighbors to the north. The 1915 map of Lepala shows "Fai'ivae" to the south and Suafoa to the northwest. (Fai'ivae in 1915 was Alfred Hunkin, an heir and executor of Matthew Hunkin.) The 1915 map of Lepala does not say who owns the land directly to the north.

6) If the pool pointed out to the Court by Fai'ivae is the same as the pool on pre-1900 maps of the area (see, e.g., Exhibit 20), and Pugaloa was immediately adjacent to Lapala on the south, and Leifi was immediately adjacent to Lepala on the north, then Leifi begins about 290 feet north of the pool and ends about 490 feet north of the pool. In the case the Fai'ivae house now under construction is to the north of Leifi and outside its boundaries, and would appear to be with land that was claimed by the Fai'ivae in 1915.

7) For the purpose of this motion the Court assumes that the current bathing pool is the same as the historic one. It is also assumed that Lepala was immediately to the north of Pugaloa. It Lepala was immediately to the north of Pugaloa. It is not clear from the 1915 maps, however, whether[10ASR2d153] Leifi was just to the north of Lepala or whether there was other land in between these two tracts.

8) One of the two neighbors to the south of Leifi in 1915 was "Pule." Lepala was registered not by "Pule" but by Mrs. Thomas Meredith.

9) The land along the road between Pugaloa and the area now in dispute between Uo and Fai'ivae appears to be occupied primarily by Chief Puletu Meredith, who has appeared in the consolidated cases on behalf of the Puletu family.

10) Puletu pointed out to the court what he claims to be the northern boundary of his land. It agrees with what the Uo family claims to be the southern boundary of Leifi. It is roughly 535 feet north of the bathing pool.

11) It would appear, therefore, that Puletu Meredith claims not only the tract registered by Mrs. Meredith, but also an area claimed to be communal land of the Puletu family extending about 245 feet to the north of this tract. (This seemed to be the gist of a third map shown to the Court by Fai'ivae and said to be Puletu's recent resurvey of the area. This map, however, has not been introduced in evidence.) Puletu appears to believe that "Leifi" begins at the north of this area rather than immediately to the north of the Meredith survey. The Uo family appears to agree with him.

12) The Court has no strong opinion, either from looking at the land or from evidence in the current record, whether the Meredith survey of Lepala and the Uo survey of Leifi adjoined each other or whether there was an area in between that belonged to Puletu or someone else.

13) The notation on the 1915 map of Leifi to the effect that "Pule" owned the land to the south would lend some support to the existence of a Puletu tract north of the Meredith survey and south of Leifi.

14) According to composite maps prepared by a surveyor for plaintiff Tony Willis in the consolidated cases, and introduced at the first hearing as Exhibits 18 and 29, the southern boundary of Leifi would appear to be about 400 feet north of the bathing pool. This is about halfway [10ASR2d154] between Fai'ivae's estimate of about 290 feet and Uo's estimate of about 535 feet. If the surveyor was exactly correct, then the house now under construction would appear to te almost exactly on the northern boundary of Leifi. It is not clear, however, what the margin of error on the composite maps was.

15) The evidence is also insufficient to determine whether the disputed land has been occupied by the Fai'ivae family for long enough and under such circumstances as would give them title by adverse possession. Fai'ivae appeared at the hearing on this motion to be making such a claim, although it was not articulated very precisely.

Conclusion

The court cannot conclude from the evidence now before it whether Fai'ivae or Uo will probably prevail at trial on this issue. It also appears that a remarkable amount of progress has been made on the construction of the house during the short has been under way. The exterior construction appears to be almost entirely complete. We therefore no longer have the option of ordering the land to be left "as is" during the pendency of the litigation; the damage to avoided injunction ---that one person might turn out to have built a house on land belonging to another -- has already been done.

We note, however, that beginning construction on disputed land after notice of the opposing party's claim, and especially during the pendency of litigation to determine title to the land, is a foolhardy thing to do. Fai'ivae may proceed with the construction of the house, but he does so at his own risk. If the house now under construction is determined at trial to be on Uo property, Fai'ivae will not be entitled to compensation for the value of his improvements. His only choice will be between removing the house and abandoning it.

Counsel for the Uo family has expressed the fear that without an injunction his clients may ultimately be forced to pay for improvements made by other on their land. Counsel cites Atofau v. Lopa, 2 A.S.R.2d 45 (1985), in which the Court did invoke its equitable powers to compensate a person who had built a house even after the true landowner [10ASR2d155] had sued him. The plaintiff in Atofau. however . had let his objection languish for several years while the construction continued. He even allowed his first lawsuit to be dismissed for lack of prosecution. The Uo family. on the other hand. has "respond[ed] with diligence" to the present construction. See Atofau. supra at 47. If the Uo family prevail at trial they will be put in possession of their land free and clear of any obligation to pay for improvements undertaken by persons who had adequate notice of their claim. This might or might not include houses built prior to 1987. but it would certainly include the house currently under construction.

Accordingly. the motion for a preliminary injunction is denied.

*********

Country Comfort; Kane v.


JOHN KANE, Plaintiff

v.

COUNTRY COMFORT, SAMOA PACIFIC
ENTERPRISES, and RANDY FORCHT, Defendants

High Court of American Samoa
Trial Division

CA No. 40-85

January 19, 1989

__________

Where plaintiff's counsel had been ordered to amend his pleading, did not do so for a period of two years, and did not answer letters from opposing counsel respecting the failure to amend, court would not dismiss the action for failure of diligent prosecution, but would assess against plaintiff's counsel an award to opposing parties of the fees incurred in connection with the motion to dismiss, and would impose deadlines within which plaintiff must complete discovery and move to set a trial date.

Before REES, Associate Justice.

Counsel: For Plaintiff, Asaua Fuimaono
For Defendant Traditional Medicinals [10ASR2d17] (Country Comfort),
Roy J.D. Hall Jr.
For Defendants Forcht and Samoa Pacific Enterprises John Ward

On Motion to Dismiss:

Defendants move to dismiss this action for failure of diligent prosecution. They allege (1) that in September 1986 counsel for plaintiff was ordered to amend his pleading to join another defendant; (2) that in April 1987 counsel for defendant Country Comfort wrote to counsel for plaintiffs noting that he had not amended the pleading and suggesting the action be dismissed; (3) that in July 1987 counsel for defendant Country Comfort again wrote counsel for plaintiffs requesting a reply to his earlier letter; (4) that no reply was ever received to either letter; (5) that aside from one unproductive deposition later in 1987, nothing has been done on the case since 1986.

At the hearing on this motion counsel for plaintiff explained that he had never joined the additional defendant, said to be a California corporation, because the California official who keeps track of corporations had told him there was no such corporation. He offered no explanation for his failure to explain this or to respond in any other way to defense counsel's April 1987 and July 1987 letters. Counsel for plaintiff says his failure to do much about the case is due primarily to the fact that there has been no one in American Samoa who might serve as a consultant and expert witness on skin conditions. He added that he has "pretty much left up to [his] client" the search for such a consultant outside Samoa but that the recent return to the Territory of a doctor who formerly treated his client is an encouraging sign.

It is clear that plaintiff's counsel has neglected the case, at least in failing to answer the two letters and probably also in not doing more about finding an expert witness and otherwise preparing the case for trial. Judged against the usual standard of diligence with which lawsuits in American Samoa have been prosecuted this neglect is insufficient to overcome the law's strong bias in favor of disposition of claims on their merits. It is, however t sufficient to justify an award against plaintiff's counsel of the fees incurred by [10ASR2d18] opposing parties in connection with this motion to dismiss.

The Court is also concerned that the denial of this motion might result in further delay. Accordingly, counsel for plaintiff is ordered to make any further discovery requests no later than fifteen days from the date of this order. No later than thirty days after defendants' responses to any such requests, counsel for plaintiff shall move to set a trial date. These deadlines should also be sufficient for counsel to locate and consult with an expert witness.

Counsel for defendants should prove by affidavit the fees incurred by their clients in connection with this motion.

It is so ordered.

*********

Bank of Hawaii v. Pene,


BANK OF HAWAll, Plaintiff

v.

ROPATI S. PENE and CARMENCITA
PENE, Defendants

High Court of American Samoa
Trial Division

CA No. 28-88

March 30, 1989

__________

Before REES, Associate Justice.

Counsel: For Plaintiff, John Ward
Defendants Ropati S. Pene and Carmencita Pene pro se

On "Motion in Apposition to Proposed Judgment":

On July 18, 1988, the Court granted plaintiff's motion for summary judgment. The Court held that, assuming all disputed facts in the light most favorable to defendants, the defenses raised were insufficient as a matter of law. Plaintiff was therefore entitled to recover the unpaid balance of $4750 on its loan to defendants plus accrued interest, court costs, and attorney fees to be proved by affidavit. 8 A.S.R. 30 (1988).

On July 28, 1988, defendants moved for reconsideration. The Court held a hearing on September 2, 1988, and denied the motion for reconsideration except that the 18% interest rate specified in the original judgment was reduced to 15%. The Court ordered the Bank to submit a proposed judgment reflecting the revised interest rate.

Due to an apparent misunderstanding of the Court's order, the Bank did not file a proposed judgment until January 30, 1989. After reviewing the proposed judgment to ensure that it accurately reflected the revised judgment that had been announced from the bench, the Court signed it. Defendant R.S. Pene then filed the present motion. [10ASR2d159]

Defendant urges that at the September 1988 hearing the Court did not deny the motion for reconsideration of the summary judgment. Rather, defendant contends that the Court promised to review the transcript of the evidentiary hearing that had been held on the motion for summary judgment. According to defendant's recollection, the purpose of the promised review was to see whether "defendants had raised the issue that the automobile was inoperative, due to the actions or inactions of the plaintiff." If the transcript of that hearing did show that these facts had been alleged by defendants, "it will then be grounds to set the matter for trial." Defendants maintain that "we are still waiting for said review of said transcript."

Defendant's recollection of what happened at the September 2 hearing differs from the recollection of the Court and of plaintiff's counsel. It also differs from the record taken by the Clerk at the September hearing, which states as the follows:

Court: Motion for Reconsideration is denied.
Bank will submit a new judgment on the
interest rate will be 15% instead of 18%.
Pene will have ten (10) days to appeal.

At the hearing on the present motion, however, the Court undertook to review the court reporter's verbatim record of the September 2 hearing to see whether defendant's recollection might be accurate.

The reporter has prepared a transcript of the only portion of the September 2 hearing in which the Court discusses the question of an inoperative car. The Court's remarks on this question, in pertinent part, were as follows:

Now, this business about the car being inoperative. Frankly, I
had a sneaking suspicion it might have been inoperative....I
don't want to give you any inappropriate encouragement, but I
will tell you that.... [i]f the bank had somehow immobilized that
car, if they had deliberately taken possession of the car by
saying, "No, we have got the title documents and we are going
to keep them, [10ASR2d160] we are not going to let you get
your license for that car until you pay us the money," then that
might constitute a repossession and at least to the extent of the
value of the car, you might have a case. I don't think that case
was presented before we tried the motion for summary judgment,
and I have searched in my mind for what you said orally. If I
was wrong about that, there is really on one way of finding out.
I am so sure that I am right about it, I am not going to deal with
it any further. If you think I am wrong, you are entitled to bring
an appeal. If I thought there was any significant chance that I was
wrong about that, I wouldn't rule this way. But it simply is not my
recollection that the issue was ever raised, and you did have the
right to raise the issue at the time the motion was made.

Defendant Pene evidently misinterpreted the Court's statement. What the Court said was that if defendants had raised a certain issue at the evidentiary hearing, then the case should have been set for trial. The Court did not, however, promise to go back and check to see whether defendants had raised this issue. On the contrary, the Court said it was quite sure defendants had not raised that issue, and reminded defendants that "[i]f you think I am wrong, you are entitled to bring an appeal." If defendants wished upon appeal to contest the Court's recollection of what evidence had been presented at the evidentiary hearing, the burden of producing a transcript would be on defendants themselves. See Appellate Court Rule 10.

The present "motion in apposition" is construed as a motion to reconsider the judgment as revised, and is denied. Defendants have ten days from the date of this order to file notice of any appeal" (Counsel for the Bank has indicated his intention to argue that the time in which defendants may appeal has already expired. This argument, and any further arguments by either party, should be addressed to the Appellate Division.)

It is so ordered.

*********

American Samoa Gov’t v. Malae,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

JACK MALAE aka TITO MALAE, Defendant

High Court of American Samoa
Trial Division

CR No. 89-88

March 13, 1989

__________

Defendant charged with traffic infraction who was represented by counsel in traffic case and had appeared in court with his counsel, who later chose to appear without counsel to plead guilty to the infraction, could not object to introduction of guilty plea as evidence in collateral prosecution for driving with suspended license on ground that he had been denied effective assistance of counsel.

Constitutional right to assistance of counsel in traffic cases does not attach unless defendant is sentenced to serve time in jail.

Court could conclude beyond any doubt that defendant who received speeding ticket was the same defendant whose license had previously been suspended after conviction for driving under the influence, although the speeding defendant had signed a different first name to the ticket, where (1) the last names were identical; (2) the signature on the ticket appeared to have been written in the same distinctive handwriting as the signature on the earlier ticket for driving under the influence; (3) the speeding defendant gave the same date of birth and village of residence as the driving under the influence defendant; (4) the speeding defendant did not present the arresting officer with a driver's license; (5) since the license of the driving under the influence defendant was still suspended at the time the speeding ticket was issued, he would not have had his license in his possession, and would have had motive and opportunity to misinform the officer of his identity. [10ASR2d100]

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

Counsel: For Plaintiff, Jerry Williams, Assistant Attorney General

For Defendant, William Reardon

Defendant is charged with Felony Driving in violation of A.S.C.A. § 22.0223 that is, operating a vehicle while his driver's license was suspended consequent to a prior conviction for driving while under the influence of drugs or alcohol. Felony Driving is a Class D felony, punishable by imprisonment for a period not less than 90 days and not to exceed 5 years.

In terms of proofs, the government first offered into evidence a copy of the District Court's judgment and sentence entered July 25, 1988 in Traffic No. 37617, which found the defendant therein, "Tito Malae," guilty of Driving Under the Influence. Among other things, the District Court sentenced the defendant to suspension of his driver's license for a period of "6 months until January 22, 1989."

The government also submitted into evidence, over defendant's objection, a copy of the Uniform Traffic Complaint and Summons No.36723 (hereinafter the "citation"). The citation was issued to a "Jack Malae" on October 26, 1988 and accuses the driver of operating a vehicle on the highway in the vicinity of Futiga at the rate of speed of 42 mph in a 25 mph posted zone. The citation also reveals that the accused was required to attend court on November 14,1988. The District Court's record on the reverse side of the citation shows that the matter was continued to November 17, 1988. On November 17, 1988 it appears that the government also secured a warrant of arrest upon complaint and information filed against a "Jack Malae" charging Felony Driving. This matter was docketed District Court CR. No. 177-88. The minutes below on the felony matter reveal that the defendant therein was taken before the court that same day, November 17, 1988, and was informed of the charge against him as well as of his rights. The minutes go on to say that the defendant notified the court that his lawyer was counsel William Reardon and that he entered a plea of not guilty to the speeding citation which was then [10ASR2d101] apparently set for trial on November 22, 1988. The court also set for that same date the preliminary examination of the criminal matter. On November 22, 1988 the court's minutes in the criminal matter reflect the presence of both the defendant and his counsel, Mr. Reardon; the defendant's apparent waiver of his right to a preliminary examination; and an order by the Court holding defendant over to answer the Felony Driving charge before the High Court. Arraignment was scheduled before the High Court on November 28, 1988 while the speeding matter was continued over to December 23, 1988. On this latter date a different judge heard the traffic calendar and the defendant appeared without counsel and entered a change of plea to guilty. The plea was accepted and the defendant was sentenced to a fine.

As above noted, the defense objected to the admission of the record of the speeding citation. The basis of the objection was to the effect that defendant was not represented by counsel below when he tendered his amended plea of guilt. The argument was that this traffic record should not be admitted because somehow defendant's right to counsel was affected. We overruled the objection. (1) [10ASR2d102]

Having submitted the District Court's judgment and sentence on the above discussed traffic matters, the government rested without calling any witnesses. Whereupon the defense also rested.

On the evidence before the Court, we are able to conclude beyond any doubt that the defendant before the District Court on the 17th and 22nd of November 1988 because of the criminal charge and the traffic speeding matter under the name "Jack Malae" was one and the same person. The question which next arises is whether we can conclude beyond a reasonable doubt that this Jack Malae is the one and same person as that "Tito Malae," found guilty and sentenced in the prior traffic matter involving license suspension.

The economy of proofs which counsel for the government opted to go forward with requires our further consideration of the traffic court's record below. We hold that we may so take notice of the lower court's record given the fact that one of the elements of the crime before our consideration is the prior conviction of the defendant for the traffic offense of Driving Under the Influence. In reviewing the Uniform Traffic Complaint and Summons No. 37617 (Driving Under The Influence) and the lower court's record thereon, we find that Tito Malae of the village of Tafuna, born on July 28, 1966 and formerly issued territorial driver's license number 576-78-2522 was convicted thereunder as charged and sentenced inter alia to the suspension of his driver's license for a six month period. Such period of suspension was to terminate on January 22, 1989. We find that the said Tito Malae is one and the same person who was issued the subsequent Uniform Traffic Complaint and Summons No. 36723 and was convicted for speeding. We so [10ASR2d103] conclude for the following reasons. The lower court's record also reveals that defendant was issued in addition to the speeding citation, Uniform Traffic Complaint and Summons No.36724 for operating a motor vehicle without the possession of a driver's license. We are convinced that the same person acknowledged by signature the three citations. The same distinctive handwritten scrawl of the name "Malae" is consistent in all these citations. In the subsequent matters, the defendant in the Driving Under the Influence case would not have had his driver's license in his possession as the same was suspended. In these circumstances the citing officer necessarily relied on the defendant for identification information. Defendant had reason and opportunity to misinform the officer about his identity and we find that while the defendant did not give the officer his correct first name, he did not have the same presence of mind when it came to his birth date and village. He admitted to the officer his correct birth date of July 28, 1966 and residence in the village of Tafuna.

On the foregoing, we find the defendant before the Court, Tito Malae, also having held himself out as Jack Malae, guilty of the offense of Felony Driving in violation of A.S.C.A. § 22.0223 as charged.

It is so Ordered.

*********

1. The argument is puzzling. As we gathered on our review of the available records below, defendant appeared before the District Court on November 17, 1988 on both the criminal matter and speeding citation and indicated to the court that his attorney was counsel Reardon. On the speeding matter, a plea of not guilty was entered. The defendant again appeared in court on November 22, 1988 but this time with his counsel. This was the day that was set for the preliminary examination on the felony matter and for trial on the speeding matter. Here defendant waived his right to preliminary examination while trial of the traffic matter was put over to December 23, 1988. Why defendant therefore appeared without counsel on December 23, 1988 and there tendered a plea of guilt to the speeding citation, is not revealed on the record. Nonetheless, in these circumstances, the fact of being without the assistance of counsel at the traffic matter would seem to be a problem, if indeed there was one, attributable to defendant and his counsel.
Furthermore, a speeding violation is an "infraction" under the Traffic Code. A.S.C.A. §§ 22.0323, 22.0360. In the normal course, the traffic judge would not be concerned with questions regarding the right to counsel in traffic proceedings involving a speeding charge as the right to counsel does not attach when a defendant is not sentenced to actually serve time in jail. Argersinger v. Hamlin, 407 U.S. 25 (1972). Here the defendant was only fined.

American Samoa Gov’t v. District Court,


AMERICAN SAMOA GOVERNMENT, Petitioner

v.

DISTRICT COURT, Respondent

VAELUAGA SOOALO, Real Party in Interest

High Court of American Samoa
Trial Division

CA No. 6-89

January 20, 1989

__________

A prerequisite to granting a writ of mandamus is the absence of other adequate relief.

Trial court rule authorizing the government to file a new criminal complaint for the same offense after dismissal of the complaint by district court for lack of probable cause provided government with an adequate remedy where government claimed the complaint should not have been dismissed. T.C.R.Cr.P. 5.1(b). [10ASR2d19]

Statute authorizing the government to appeal from dismissal of criminal complaint where dismissal arose from construction of statute provided government with an adequate remedy for errors of law by district court. A.S.C.A. § 46.2405.

Where statutory right of appeal from alleged errors of law by district court provided government with an adequate remedy, government's petition to High Court for writ of mandamus should be denied. A.S.C.A. § 46.2405.

Before KRUSE, Chief Justice.

Counsel: For Petitioner, Jerry Williams, Assistant Attorney General

The American Samoa Government (hereafter "A.S.G.") petitions for an alternative writ of mandamus directed to the District Court to show cause why its order dismissing the complaint in Criminal Action No. 192-88 should not be vacated. The complaint filed below contained a count accusing the defendant (Real Party in Interest) of having committed the crime of assault in the second degree. The order complained of arose during the preliminary examination hearing held consequent to the complaint. The District Court Judge was not satisfied that probable cause had been established on the assault charge and accordingly dismissed that count of the complaint.

A prerequisite to granting a writ of mandamus is the absence of other adequate relief.

For the reasons given below, the petition must be denied. Firstly, the A.S.G. is not without adequate remedy. Trial Court Rules of Criminal Procedure Rule 5.1(b) authorizes the A.S.G. to re file the complaint for the same offense. Hence the government may reprosecute the defendant. If the defendant should again invoke his right to a preliminary examination, the A.S.G. will in effect have another chance to reevaluate its evidence to be presented to establish probable cause before the District Court.

Secondly, an appeal is available pursuant to A.S.C.A. § 46.2405 where dismissal of the complaint below arose from "construction of the statute upon [10ASR2d20] which the prosecution is founded." That is, appeals lie from errors of law. While the A.S.G. has recited in its petition that the order complained of was not premised on an error of law, counsel's Memorandum of Points and Authorities attributes to the court below what appear to be errors of a legal nature. The memorandum reads:

[t]he District Court erroneously dismissed the Complaint on
two grounds. First, the rock was not introduced into evidence
and second, no injuries were sustained.... The statute... does
not require a rock of any particular size. ..[n]o size need be
shown by the prosecution to establish probable cause.
Nor is the government required to show injuries sustained...
Apparently, the District Court believes that injuries must be
"sustained" before Assault Second will lie.

A.S.G. 's Memorandum of Points and Authorities page 3. The exception taken to the District Court's decision goes to the construction of the criminal assault statute. Hence A.S.C.A. § 46.2405 is the remedy adequately provided and the writ should not issue.

As such a statutory right to appeal has certain time limitations for filing, this petition will be summarily denied so that the A.S.G. may timely file an appeal, if it so desires.

It is so Ordered.

*********

Aitu; Uiliata v.


MOEA'I UILIATA, Appellant

v.

ALAI'A FILIFILI, SI'UFANUA AlTU, and
TUIA'ANA MOI, Appellees

TUIA'ANA MOl, Appellant

v.

MOEA'I UILIATA, Appellee

High Court of American Samoa
Appellate Division

[10ASR2d104]

AP No.35-88
AP No.37-88

March 13, 1989

__________

Appellant who ordered production of a trial transcript and later attempted to countermand the order would be required to pay pro rata share of the cost of producing the transcript, where (1) another appellant had requested an estimate of the cost of a transcript; (2) court reporter, in reliance on first appellant's order for a transcript, had served both appellants with an estimate that assessed half the cost against each appellant; (3) second appellant had then ordered a transcript within the ten-day period prescribed by appellate court rule for parties to decide what parts of the transcript would be necessary; (4) first appellant's countermand of his order took place well after the expiration of the ten-day period. Appellate Court Rule 10(b)(1).

Before KRUSE, Chief Justice.

Counsel: For Moea'i, Togiola T.A. Tulafono
For Tuia'ana, Albert Mailo

Order for Payment of Estimated Cost of Transcript:

On December 16, 1988, Moea' i filed his notice of appeal from the judgment of the Land and Titles Division and requested an estimate of the cost of a transcript.

On December 20, 1988, Tuia'ana filed his notice of appeal from the same judgment. The notice stated that Tuia'ana "further requests a transcript and record of the trial."

On December 23, 1988, the court reporter served a notice of the estimated cost of a transcript on counsel for both parties. The estimated cost was $1507.50, or $753.75 per party.

Appellate Court Rule 10(b)(1) provides in pertinent part that

[w]ithin 10 days after receiving the reporter's or clerk's
estimate the [10ASR2d105] appellant shall order from
the reporter a transcript of such parts of the proceedings
not already on file as he deems necessary. The order
shall be in writing and within the same period a copy
shall be filed with the clerk of court and served on the
appellee.

Appellate Court Rule 10(b)(4) requires that "[a]t the time of ordering, a party must deposit an amount of cash equal to the estimated cost with the reporter." The rule also requires that the party file with the clerk a copy of the reporter's receipt.

In the course of a routine inquiry into the status of pending appeals, the Court has learned that Moea'i did not deposit the estimated cost with the reporter until January 27, 1989, and that Tuia'ana has not deposited anything to date. Moreover, the court reporters have informed the Court that counsel for Tuia'ana has informed them orally that he now wishes to order only part of the transcript. The court reporter to whom counsel communicated this information says that it came during a chance encounter with counsel later on the same day (January 27) that Moea'i had paid for his half of the transcript.

The revised request for a partial transcript would appear to violate Rule 10 in several respects: it was not made in writing, was not served on the Clerk or opposing counsel, and was made well after the expiration of the ten-day period provided in the Rule.

By countermanding his original order for the entire transcript, counsel for Tuia'ana would increase the amount that Moea'i would have to pay. If such a change had been made in writing within the ten-day period specified in Rule 10 for ordering the transcript, it would not represent an imposition on the opposing party. After the expiration of this period, however, Tuia'ana was bound by his counsel's earlier order for transcript and record of the trial." Moea'i therefore ordered the transcript in the expectation that he would be required to pay only half the cost. Since counsel for Tuia'ana failed to countermand his original order until after the expiration of the deadline for deciding what parts [10ASR2d106] of the transcript would be necessary, Moea'i was entitled to rely on the original order.

Counsel for Tuia'ana is directed to deposit $753.50 with the court reporter no later than 4:00 p.m. on Friday, March 17, 1989.

It is so ordered.

*********

American Samoa Gov’t v. Hawaiian Airlines, Inc.,


AMERICAN SAMOA GOVERNMENT ex rel.
JERRY LANGFORD, Plaintiff

v.

HAWAIIAN AIRLINES, Inc., Defendant

High Court of American Samoa
Trial Division

CA No. 37-88

January 5, 1989

__________

Territorial government whose consumer protection agency brought action in a representative capacity on behalf of a named individual, and which was not named as a plaintiff in its own right, could not recover damages in the consumer protection action for the loss of its own property. A.S.C.A. § 27.0402.

Mere possibility that plaintiff's employer may hold him financially responsible for loss of employer's property by defendant airline does not entitle plaintiff to recover damages for such loss.

Rules of liability established by the Warsaw apply to "international transportation," to air transportation between one country and another. Warsaw Convention, art. 1(2).

In order to effectuate its drafters' intent to foster international air transportation by creating uniform rules of liability, the Warsaw Convention should be read to create its own cause of action for loss of baggage, so that whether particular damage occasioned by loss of baggage is compensable depends on construction of the Convention and not on internal law of signatory countries. Warsaw Convention art. 18(1).

Provision of the Warsaw Convention creating liability for "damage sustained by" loss of baggage, and containing no language limiting the amount of recovery to the value of the lost baggage or to "foreseeable" damages, should be construed to [10ASR2d2] allow recovery of consequential damages occasioned by loss of baggage. Warsaw Convention art. 18(1).

Under provision of the Warsaw Convention which, unlike the common law, allows recovery of consequential damages whether or not they were foreseeable, passenger's purchase of a battery pack for use during his trip to replace one lost by defendant airline constitutes compensable damage even though the lost battery pack belonged to plaintiff's employer and not to plaintiff. Warsaw Convention art. 18(1).

Terms of air carriage contract which were inconsistent with Warsaw Convention were void, because the contract itself so provided and also because treaty obligations are the supreme law of the land and therefore supersede private contracts. U .8. Const. art. VI.

Airline's disclaimer of liability for "valuable items" such as video equipment is unenforceable in light of Warsaw Convention clause that nullifies contractual provisions "tending to relieve the carrier of liability or to fix a lower limit" than that allowed by the Convention. Warsaw Convention art. 23.

Warsaw Convention limits liability for lost baggage to $9.07 per pound. Warsaw Convention art. 22(4).

Under Warsaw Convention where carrier's liability for lost baggage depends on weight, defendant airline has the burden of proving weight of the lost bag, and in the absence of such proof court will assume the bag weighed seventy pounds, the maximum amount the contract allowed passenger to carry in one bag.

Before KRU8E, Chief Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Plaintiff, Tauivi Tuinei

For Defendant, Charles Ala'lima

On July 27, 1987, Jerry Langford flew from Tongatapu, Tonga to Honolulu, Hawaii on Hawaiian Airlines. One piece of baggage checked with the airline never arrived in Honolulu. The lost metal box contained both some personal effects of [10ASR2d3] Langford's and television equipment which conceded by Langford to have belonged to employer, the American Samoa Government. District Court found that plaintiff Langford had suffered $80 in damages for lost clothing and awarded the American Samoa Government (hereinafter referred to as "A.S.G.") $1366.00 in damages for the lost equipment. Pursuant to A.S.C.A § 3.0309, Hawaiian appealed to the Trial Division of the High Court by way of trial de novo.

The most important issues as they developed at trial were: (1) whether plaintiff Langford was entitled to recover damages consequential in nature; and (2) the measure of such damages.

Our main problem wi th giving relief similar to the relief decreed in the court below is that the television equipment was simply not Langford's and A.S.G. is not before the Court. The District Court characterized the A.S.G. as a "plaintiff" in its own right and awarded the A.S.G. the lion's share of the damages. Findings of Fact, Conclusions of Law, and Order , American Samoa Government ex rel Langford v. Hawaiian Airlines, CA No. 58-87 (District Court March 2, 1988). However, the complaint in that case does not indicate that A.S.G. was a plaintiff. Moreover, the complaint sets out the basis of the suit as the right of the Director of the Bureau of Consumer Protection to bring suit on behalf of individuals. A.S.C.A. § 27.0402. As a non-party, the A.S.G. may not be allowed to recover directly.

It was tenuously suggested that Langford ought to be able to recover the full value of the lost case. His supervisor stated something on the order of: "If we do not recover during this trial, we will be looking to someone to reimburse us for the lost equipment." We doubt that statement alone would suffice to show that Langford will have suffered damages equal to the full value of the case. After all, no one has forced him to pay over the value of the lost equipment and it is doubtful that an independent suit by the A.S.G. could find Langford liable for the loss.

Langford, however, testified that he spent $395.00 of his own funds in Guam to replace one of the lost items, a battery pack, in order that he could do the filming which was the whole purpose of his travel to Guam. Langford now holds the battery [10ASR2d4] pack, although it is of no personal use to him, in the hopes of reimbursement. Hawaiian has denied liability, while his employer, A.S.G., on the other hand chose not to entertain reimbursement expecting that Hawaiian should be responsible. We feel that in these circumstances Langford has been damaged to a greater degree than the $80.00 for lost personal effects ---he is out of pocket of $395.00 because his baggage did not arrive with him in Guam.

Hawaiian defended Langford's claim on basis that its contract had disclaimed liability for "valuable items including but not limited to . ..electronic equipment. ..[and] photographic, video and optical equipment" and that the television components here fell within this exclusion of liability. Rule 26 (B) (2), Terms of Contract of Carriage, at 49 (April 9, 1987).

Discussion

There is no real question that the Warsaw Convention (1) is applicable to this case. The Convention applies to "international transportation." Warsaw Convention, art. 1(2). Here, Langford traveled between two countries which have signed the Convention ---Tonga and the United States. Thus, whether Langford's expenditure of $395.00 is compensable depends on the construction of the Convention.

The Convention provides that "[t]he carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage." Warsaw Convention, art. 18(1). (2) [10ASR2d5]

Courts interpreting this provision and the analogous clause creating liability for personal injury or death have reached two different results. (3) Some courts have said that the clause does not itself create a cause of action. So, the definition of what is "damage" compensable under article 18 would be left up to the internal law of the court hearing the suit. See, e.g., Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied 355 U.S. 907 (1957). More recently, some federal circuit courts have reversed their previous opinions and have construed the language of the clause to create a cause of action, see. e.g., In re Mexico City Aircrash of October 31, 1979, 708 F .2d 400, 415 (9th Cir .1983); Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), cert. denied 439 U.S. 1114 (1979), and have held that the meaning of what is "damage" is controlled by construction of the Convention.

From our analysis of the cases, it is the Court's view that the interpretation provided by the latter line of authority suggests the more logical and natural result of the Convention. Among the reasons given by the more recent cases to sustain the view that the Convention establishes a cause of action, was the apparent and primary concern among the delegates to create and formulate a uniform law relating to the regulation of international air carriage. The court in Benjamins pointed out that making a plaintiff's rights under the Convention dependent on the prior question whether the domestic law of a signatory provided him a cause of action was inconsistent with the spirit of the Convention. The policy of uniformity can only be best effectuated by interpreting the Convention as establishing causes of action independent of local law. The cases further go on to consider in context a number of the Convention's provisions as well as conference minutes as clearly establishing the intendment of universal regulation. As a result the Ninth Circuit in In re Mexico City Aircrash concluded that article 17 of [10ASR2d6] the Convention established a wrongful death cause of action independent of the provisions of California law. Accordingly, this Court shall be guided by the terms of the Convention in determining what damages and the amount of damages plaintiff may recover.

Under the interpretation of cases such as Benjamins the Convention creates liability "for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage." Warsaw Convention, art. 18(1) (emphasis added). In construing this clause to determine what "damages" are recoverable, it is instructive to note that were the sentence meant to exclude "consequential" damages, it could more simply have been phrased in terms of the "value of the lost, destroyed, or damaged merchandise." At least one court has held that consequential damages are recoverable under this article. Saiyed v. Transmediterranean Airways, 509 F. Supp. 1167, 1169 (W .D. Mich. 1981). Also, the scheme of the Convention would make little sense if one were not able to recover consequential damages. Article 19 provides that airlines "shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." Warsaw Convention, art. 19. The major types of damages one might have due to delay are consequential in nature ---having to do without goods, fallen market prices, replacement in the interim, etc. It would make little sense if one could recover consequential damages for the delay of baggage but not for its destruction.

Finally, it is to be noted that the common law requirement of "foreseeability" of consequential damage under the rule of Hadley v. Baxendale, 9 Exch. 341 (1854), is not applicable under the Convention. The rule of Hadley v. Baxendale on consequential damages results in an allocation of economic risks. The common law limited the type of damages available to those foreseen by the parties when contracting. The Convention, on the other hand, while allowing recovery of consequential damages, allocates risk in a different fashion. Instead of limiting the type of damages recoverable, it imposes a ceiling on the amount of provable damages one may recover and thus seeks to secure reasonable rates of carriage within the industry given, potential risk. Saiyed, 509 F. Supp. at 1169. Otherwise, "[t]he alternative would result in recovery of different elements of damage[10ASR2d7] depending upon the country in which the action for breach was instituted and uniformity could soon be lost." Id.

On the facts herein, Langford traveled to Guam to film and document an event, a meeting of the Pacific Post Secondary Education Council. He was not able to do so without the missing battery pack and given the exigencies of his situation he accordingly purchased with his own funds a battery pack in order to do the filming that took him all the way to Guam in the first place. In the ordinary course of things, Langford had expected his checked baggage, and hence the missing battery pack, to be available to him upon his arrival in Guam. As things turned out, he had to spend money, which he would otherwise have not, had his baggage not gone astray.

We conclude that Langford's need to acquire the battery with his own funds, constituted damage within the provisions of article 18(1) of the Convention.

We next consider the impact of Hawaiian's contractual disclaimer .

The Convention provides that" [a]ny provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this convention shall be null and void." Warsaw Convention, art. 23. The exclusion asserted here by Hawaiian must be viewed as one "tending to relieve the carrier of liability" since the contractual term attempts to exclude from liability such a large class of goods ---"valuable items"-- -which the Convention itself never mentions as items which are excludable. Instead, the Convention speaks in the near-absolute terms we noted above ---the carrier "shall be liable for damage."

Further any terms of contract which are inconsistent with the terms of the Convention are void for of two reasons: first, the contract explicitly states that any contractual provision "which is inconsistent with any provision of the said [Warsaw] Convention shall, to that extent, but only to that extent, be inapplicable to international transportation." Rule l(B), Terms of Contract of Carriage, at 5 (October 30, 1983). Also, the Convention is a treaty obligation of the [10ASR2d8] United States. It is thus the supreme law of the land, U .S. Const. art. VI, and supersedes both state laws, In re Aircrash in Bali. Indonesia on April 22, 1974, 684 F.2d 1301, 1309 (9th Cir. 1982), and private contractual terms.

In the Saiyed case, the contract of carriage had disclaimed liability for consequential damages. The plaintiff's shipment of goods was delayed and damaged when it arrived in Pakistan and the plaintiff sought damages for his lost profits and injury to his credit rating. Saiyed, at 1168. The court held that the contractual provision violated article 23 because it "tends to relieve the carrier of liability for damages which would otherwise be recoverable under the Convention." Id. at 1169. Similar reasoning would invalidate the electronic equipment exclusion. More closely analogous on its facts is Schedlmayer v. Trans International Airlines, 99 Misc. 2d 478, 416 N.Y.S.2d 461 (1979). The court in Schedlmayer found unenforceable an airline tariff disclaiming responsibility for cash in passengers' baggage. The court held that to allow such a tariff to stand would be tantamount to allowing the airline to relieve itself of liability beyond the extent permitted by the Convention and thus contravene article 23. Id.., 416 N.Y.S. 2d at 464.

Finally we look to the carrier's limits of liability under the Convention.

The Convention limits a plaintiff to recovering $9.07 a pound in damages for lost, delayed, or damaged baggage. (4) Neither party proved the weight of the bag. However, it would seem that the burden is on Hawaiian to demonstrate how much the bag weighed. See DeMarines v. KLM Roval Dutch Airlines, 433 F .Supp. 1047, 1061 (E.D. Pa. 1977), rev'd on other grounds 580 F.2d 1193 (3d Cir. 1978) (the airline must prove delivery of ticket to claim limitation of liability for personal injuries or [10ASR2d9] death). Having failed to do so, it is reasonable to assume that the bag weighed up to 70 pounds--- the most weight which Hawaiian's contract purports to authorize the passenger to carry in one bag. Rule 24 (A), Terms of Contract of Carriage, at 46 (June 24, 1986). If we assume this, Langford's maximum recovery of $475.00 ($80.00 in clothing plus $395.00 for the replacement battery pack) is well below the $634.90 ceiling under the Convention.

For the foregoing reasons, plaintiff Langford shall have judgment against defendant Hawaiian Airlines for the sum of $475.00. It is also decreed that the battery pack in question held by Langford shall be delivered to, and disposed of by, defendant Hawaiian Airlines in mitigation of damages.

It is so Ordered.

*********

1. Multilateral Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature Oct. 12, 1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, T.S. No.876 (reprinted as note to 49 U.S.C.A. § 1502).

2. The Convention allows a carrier to escape liability by demonstrating that it had taken all necessary measures to avoid damage or by showing that the passenger contributed to his damage. Warsaw Convention, arts. 20, 21. Hawaiian has not attempted to make any such showing.

3. Although the cases to be cited in this paragraph deal primarily with questions of jurisdiction and whether a plaintiff in a Warsaw Convention case needs to meet independent jurisdictional requirements of diversity cases, the principles they discuss apply to the question discussed as well.

4. The Convention limits liability to a certain amount of gold per kilogram. Warsaw Convention, art. 22(4). The figure of $9.07 per pound derives from the last "official" price for gold before gold prices became set on the free market. Trans World Airlines. Inc. v. Franklin Mint Corn., 466 U.S. 243 (1984).

Fai'ivae; Willis v.


TONY WILLIS on behalf of himself and
the HEIRS OF AMELIA VA, Plaintiff

v.

FAI'IVAE GALEA'I and FAI'IVAE FAMILY, TO'OMATA
M. T. TUITELE, CHIEFS OF LEONE VILLAGE, SUAPA'IA
ANETERE'A, PIO LE'OSO and SE'E LE'OSO, Defendants

SA'AGA LEVI on behalf of himself and the
HEIRS OF AFELE LEVI, Plaintiff/Intervenor

WILLIAM AH KUOI, Defendant/Intervenor

[10ASR2d122]

PAT M. GALEA'I, Defendant/Intervenor

OLO LETULI, Defendant/Intervenor

SUAFO'A VELIO, Defendant/Intervenor

PIO SAGOTE on behalf of himself and
the SAGOTE FAMILY, Defendant/Intervenor

PULETU M. MEREDITH, Defendant/Intervenor

TAELEIFI MANE, Defendant/Intervenor

TONY WILLIS and VAETOIFAGA D. ASUEGA
on behalf of themselves and the HEIRS OF
AMELIA VA, Plaintiffs/Objectors

v.

FAI'IVAE FAMILY and MAUOLEFALE P.
SALAVE'A, Claimants/Defendants

TO'OMATA M.T. TUITELE, AVEGALIO FAMILY,
LE'ALAIALOA FAMILY, AIGAMAUA FAMILY,
CHIEFS AND TALKING CHIEFS OF LEONE, FAI'IVAE
GALEA 'I, TAELEIFI A. RIPLEY, and

FAILAUTUSI AVEGALIO, Plaintiffs/Objectors

v.

DOROTHY V. ASUEGA on behalf of the HEIRS OF
AMELIA VA TALAMAIVAO, Defendant/Claimant

TONY WILLIS, Plaintiff

v.

SU' A of the Village of Auma, ETUALE & SONS
of the Village of Auma, and DOES I through X,
Defendants

TUITELELEAPAGA NAPOLEONE, Plaintiff

v.

TONY WILLIS, Defendant

[10ASR2d123]

LUCY UO AH CHING, EUGENE UO, EDWARD UO, and
EMILE UO for the UO FAMILY, Plaintiffs

v.

AMOS GALEA 'I and FAI'IVAE GALEA'I, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 45-81
LT No. 45-82
LT No. 8-84
LT No. 22-86
LT No. 6-87

March 21, 1989

__________

Judgment affirming a decision of land commission, in which one party had made a claim to ownership of land and another party had filed an objection, and in which the commission's decision purported only to reject the claim advanced by the original claimant, did not convey to the objector a title good against the world.

Court was bound by its own judgment in a case decided eighty-two years earlier, whose parties were ancestors in title of the parties to the later case and in which the court had specifically defined the rights of the parties, notwithstanding any contrary implication in an even earlier decision of another court in which the parties and the questions before the court were somewhat different than in both later cases.

Standard of proof on a motion to dismiss at the conclusion of plaintiffs' evidence at trial, unlike the standard on a motion for summary judgment before trial, is that plaintiffs must prevail by a preponderance of the evidence.

Court acted properly in granting motion to dismiss at conclusion of plaintiffs' case, at least in light of territorial statute allowing land court to proceed in such manner as it considers to be most consistent with natural justice and convenience, where plaintiffs objected that evidence they had been saving for rebuttal could have established a [10ASR2d124] prima facie case but court concluded that defendants would prevail even if plaintiffs succeeded in proving every fact they offered to prove on rebuttal. A.S.C.A. § 3.0242.

Before REES, Associate Justice, and AFUOLA Associate Judge

Counsel: For Ah Kuoi, Edwin Gurr
For Avegalio, Aigamaua, and Le'alaialoa, Aitofele Sunia
For Fai'ivae Family, Fai'ivae Galea'i
For Levi Family, Enere H. Levi
For Meredith, Isa-Lei Iuli
For Suapa'ia and Uo, Albert Mailo
For To'omata and Tuitele, Tauese P. Sunia
For Tuiteleleapaga, Aviata Fa'alevao
For Willis, Charles Ala'ilima

On Motion for Reconsideration:

These consolidated cases concern title to various lands in and around the village of Leone, all claimed to be parts of land called "Lega'oa."

Le ga'oa means "the flat land." Litigants Tony Willis, Dorothy V. Asuega, and Sa'aga Levi--- hereinafter referred to as "plaintiffs," although their posture varies from case to case ---maintain that Lega'oa once consisted of all the flat land in the valley that includes Leone, from the ocean to the mountains.

Plaintiffs contend that Lega"oa was once the individual property of Talamaivao Lei, a chief from 'Upolu, and that Talamaivao gave it to his wife Amelia Va and two of her relatives, To'omata and Tali. They further contend that two High Court decisions in 1906 and 1918 effectively divided the flat land in the Leone valley into two parts, the seaward half belonging to the chiefs of Leone and the mountain side to Va, Tali, and To'omata as tenants in common. Finally, they maintain that after the 1906 decision there was a "compromise," under which Va, Tali, and To'omata (or perhaps Va alone) received the mountain slopes surrounding the back half of the valley.

Plaintiffs have submitted for registration a survey, claimed to be a retracing of a survey [10ASR2d125] prepared for To'omata in 1906. (The latter survey was described on its face as containing 297 acres and is hereinafter referred to as "the 297-acre survey," although evidence adduced at trial suggests this figure may not be exactly accurate.) Plaintiffs say their survey reflects the land awarded to Amelia Va, To'omata, and Tali in the 1906 High Court decision and the subsequent "compromise."

Most of the other parties (hereinafter "defendants") are chiefs of Leone or members of families appertaining to the village of Leone. They claim that they and their ancestors have occupied the land in question since the memory of man runneth not to the contrary; that Talamaivao, his legatees, and their descendants were never "residents or citizens or tagata moni of Leone"; that insofar as the High Court ever awarded anything to Amelia Va and her relatives, it must have been a relatively small tract toward the mountains that has long been occupied by descendants of these people, including plaintiff Tony Willis; and that insofar as the Va people ever had title to other lands, such title has been superseded by the adverse possession of various Leone families. (1) [10ASR2d126]

At the suggestion of counsel for plaintiffs and without objection from any party, the Court ordered a bifurcated trial. The first hearing would concern all events up to and including the 1918 High Court case. It was anticipated that much of the evidence at this hearing would be documentary, with live testimony serving primarily to authenticate and explain old land grants, judicial decisions, surveys, and so forth. The Court would then issue an opinion dealing with plaintiffs' primary claim: that as a result of the 1906 and 1918 High Court decisions and events that led up to them, Va, Tali, and To'omata were in 1918 the co-owners of land called Lega'oa roughly defined by the 297-acre survey.

The second hearing would concern events since 1918. It was anticipated that this hearing would have to do primarily with claims based on adverse possession. Most of the defendants had asserted such claims, which would become important if and only if plaintiffs should prevail on the threshold questions to be resolved after the first hearing. The first hearing began on December 1, 1988. The first day was consumed with the introduction of exhibits, the testimony of plaintiffs' surveyor, and the testimony of plaintiff Tony Willis. The Willis/Va plaintiffs then rested. The next day, however, the Court heard from plaintiff Tony Willis again, this time as a witness for plaintiff Levi. This testimony did not have to do with issues uniquely relevant to the Levi claim (which is based on an assignment from an heir of Amelia Va) but consisted largely of reiteration and elaboration of what plaintiff Willis had told the Court the day before. The Court then heard from the final plaintiff, To'omata.

After all plaintiffs had rested, we granted a motion to dismiss.

Our order of dismissal did not dispose of all claims by all parties, but only ---in keeping with the arrangement for a bifurcated trial of

[10ASR2d127] plaintiffs' claim that Amelia Va, Tali, and To'omata were co-owners of Lega'oa (as defined by the 297-acre survey) as a result of the 1906 and 1918 High Court cases and an associated compromise."

We held that the 297-acre survey reflected not the award to To'omata in the 1906 case, but the entire extent of his original claim. The 1906 decision awarded To'omata only a fraction of what he had claimed. The Court first held that Lega'oa included only flat land and no mountains, then divided the flat part of Lega'oa in two and awarded only half to To'omata. To'omata v. People of Leone, 1 A.S.R. 142 (1906). The 1918 decision recognized that To'omata was not a sole proprietor but a co-tenant with Tali and Va. Falesau v. Tuitele, 1 A.S.R. 298 (1918).

Plaintiffs had offered their survey, a retracing of the 297-acre survey apparently prepared for To'omata in 1906, as the map of what To'omata, Tali, and Va owned after the Court decisions had denied most of their original claim. We held, on the contrary, that the Court had awarded those three persons only the back half of the flat portion of plaintiffs' survey.

Plaintiffs now move for reconsideration of our order dismissing their claim to ownership of all the land encompassed in the 297-acre survey. We deny the motion, believing the facts and the law to be consistent with the opinion and order announced from the bench.

Facts

1) At some time prior to 1852 Talamaivao Saisaofai, a chief of Upolu, began to claim certain lands on the island of Tutuila in the vicinity of the village of Leone. Plaintiff Tony Willis testified that Talamaivao had been given these lands by Malietoa. An earlier Talamaivao family tradition is that Saisaofai's ancestor Ulualofaiga saved the life of a great chief of Upolu called Fonoti. According to this tradition, Fonoti then declared mualofaiga to be a Togiola (life-giver or saviour) and gave him the Tutuila land as a reward.

2) In 1852 Saisaofai sold Matthew Hunkin a tract of land in Leone. Hunkin paid "One hundred dollars (or its value [in] pork)." Matthew Hunkin, [10ASR2d128] also known as Mataio, settled in Leone at some time during the 19th century and became the progenitor of a prominent family of that village and its environs. The tract he purchased was described in the deed of sale as "Lepule with its 'Tuafanua.'"

3) Lepule (sometimes written as Le Pule or le Pule) is a small tract of land near the center of the village of Leone, at some distance from the lands presently in dispute.

4) The term Tuafanua (or tua fanua) means "back lands." It was a generic term used to describe the unsettled and uncultivated land, if any, behind a tract of settled or cultivated land. Samoan land owners often regard their property rights as extending not only over the land they actually occupy, but also over any unoccupied land extending behind them to the mountains and forward to the ocean reef. (2) The most logical construction of the term "Lepule with its 'Tuafanua'" in a deed of sale would be that the buyer acquired the tract called Lepule, together with whatever rights the seller would have had to cultivate the adjacent bush. As is further discussed below, however, by around 1900 the term "Tuafanua" was being used as a collective term for various tracts of land to the mountain side of the village of Leone.

The 1895 Decision of the Apia Court

5) In 1894 Matthew Hunkin's executors sought confirmation by the Samoan Land Commission in Apia [10ASR2d129] of his claim to "'Lepule' & its 'Tuafanua' adjoining it." They based their claim on the 1852 purchase from Saisaofai.

6) A person named Iulio, sometimes calling himself Talamaivao Iulio, was the only objector to the Hunkin claim. He objected not to Hunkin's claim to Lepule itself, but only to "its Tuafanua." Iulio's objection was signed and apparently prepared by "Natives' Advocate" E.W. Gurr. The stated reason for the objection was "Fact of sale is disputed."

7) Julio was a son of Talamaivao Saisaofai. He was also the half-brother of Talamaivao Lei, who was (at least from 1895 until 1910) the holder of the Talamaivao title. Iulio was a catechist from Upolu who spent a good deal of time in Leone. He sometimes claimed to be the true holder of the Talamaivao title, and he sometimes also claimed to be the individual owner of the Talamaivao or Saisaofai lands in Leone. It is clear, however, that in the trial against Hunkin he was acting as agent for Talamaivao Lei. See Exhibits 6 (letter from Iulio to Misitea dated 12 March 1906 re land Le Gaoa, from record of LT 5-1906) and 12 (letter from Julio to Misitea dated 12 March 1906 re land Le Pala); see also Iulio v. Talamaivao, No. 6-1910, 1 A.S.R. 217 (1910).

8) The Land Commission confirmed Hunkin's claim to Lepule but rejected his claim to the Tuafanua. The Land Commission's decision with regard to the Tuafanua was limited to a rejection of Hunkin's claim. It did not purport to declare Iulio or anyone else to be the owner of the disputed lands. Exhibit 2; see also Iulio v. Talamaivao, supra, 1 A.S.R. at 220 ("[T]his Court is convinced that it [the Land Commission] merely rejected or recommended the rejection of the petition of the foreign claimant for a court grant.")

9) Alfred Hunkin appealed to the Supreme Court of Samoa, sitting at Apia, from the decision of the Land Commission. The appeal was heard in 1895. Alfred Hunkin was the part-Samoan son of Matthew Hunkin and was one of Matthew's executors. He was also, at all times relevant to the 1895 and 1906 proceedings, the holder of the title Fai' ivae in Leone. [10ASR2d130]

10) Fai' ivae Alfrod Hunkin claimed on appeal ---contrary to his original claim before the Land Commission ---that "the Tuafanua" which he had purchased from Saisaofai included various lands that did not directly adjoin Le Pule but were in back of the village of Leone. He said there were about a hundred parcels of land included in the Tuafanua of Leone, but that he laid claim to only fifteen. These fifteen parcels, he said, were in addition to three that had "already been confirmed to me." According to his testimony, these three parcels had been awarded to him in a previous proceeding in which he had claimed all 100 pieces of the Tuafanua of Leone, including the nearby village of Amanave. In the 1895 proceeding he specifically disavowed any claim to Amanave.

11) Seven of the fifteen parcels claimed by Hunkin in the 1895 appeal were in a portion of the Tuafanua called Lepala or le Pala ("the swamp.") The remaining eight parcels were in another portion of the Tuafanua called Lega'oa, "about 1 1/2 miles from Leone." The dimensions of Lega'oa were "about in width from the court house to Blacklock (3) and about the same distance in lengths." Hunkin had originally estimated the size of his entire claim, including at least Lepule, Lepala, and Lega'oa, to be 50 acres (Exhibit 2). In his testimony he estimated that his entire claim was about 100 acres (Exhibit 5).

12) The Supreme Court denied Hunkin's claim to the aforementioned 15 parcels of the Tuafanua. Hunkin v. Iulio, Rehearing of Claim No. 2791, Supreme Court of Samoa, decided September l0th, 1895. [10ASR2d131]

13) It is difficult to discern the precise grounds for the 1895 opinion, or even what the court thought it was deciding. Hunkin's claim had been to "'Lepule' & its 'Tuafanua' adjoining it" (Exhibit 2; see also Exhibit 1, the 1852 deed). The most obvious ground for the court's rejection of Hunkin's claim to any "Tuafanua" was that by 1895 there was no unsettled back land adjoining Lepule. All adjacent tracts had been sold and occupied by others. See Exhibits 5 and 6. Although Hunkin may well have cultivated other lands behind Leone in an area known as "the Tuafanua of Leone," any rights he may have had to such lands would seem to have been unconnected to his purchase of "Lepule and its Tuafanua." In any case such rights were not put at issue by his claim before the Land Commission to"'Lepule' & its 'Tuafanua' adjoining it." (Exhibit 2, Description of Land, emphasis added.)

14) The Apia court appears, however, to have addressed matters not raised by the appeal that was before it. It "confirmed by ten years occupation and cultivation undisputed" Hunkin's ownership of Onu'uolupe and Pagaloa (Pugaloa) although he had not claimed them. (Exhibit 6.) Perhaps these were among the three parcels he said had already been confirmed to him, or perhaps they were parts of the larger tracts Hunkin called Lepala and Lega'oa. (The record of Hunkin's testimony, Exhibit 5, is ambiguous: Pugaloa may be the name of one of the fifteen parcels claimed by him, but seems more likely to have been the name of the land immediately to the west of that parcel.)

15) The scope of the 1895 decision of the Apia court is further confused by what appears to have been an unofficial record prepared by "Misikea, Councillor for Samoa." Misikea (sometimes written Misitea) is a Samoan transliteration of "Mister Gurr." This was the same E.W. Gurr who had appeared for Iulio before the Land Commission. Gurr's undated note (Exhibit 8) was found in the record of Iulio v. Talamaivao, supra, a 1910 case having to do with the ownership of the village of Amanave. It varies in several ways from the official report of the Apia case. First, it states that the appeal was heard on September 10, 1896; the official record is dated September 10, 1895. (The latter date is corroborated by a letter Gurr himself wrote a few days after the proceeding. See note 4, infra.) Gurr's caption for the case is [10ASR2d132] "Amanave, Lepule & its backgrounds"; the official documents (Exhibits 2, 3, and 6) speak only of Lepule and its backgrounds. In Gurr's version of the decision the Court "restored" the rights of "Iulio and his family" to "the town Amanave, & the land Lepala, & the land Legaoa, & other lands of the background of Lepule that is left. " The official report signed by the clerk (Exhibit 6) does not mention Amanave and does not mention any award or "restoration" of rights to Julio. Gurr's report, on the other hand, omits any mention of the court's affirmation of the rights of landowners adjacent to Lepule, which the official report does mention. The pattern of variations from the official report, and the error regarding the year in which the appeal was heard, strongly suggest that Gurr's note was not a contemporaneous record of the 1895 case but was prepared in anticipation of a 1906 case having to do with Amanave, in which it was Iulio's principal exhibit. See Iulio v. Talamaivao, supra, 1 A.S.R. at 219. In any case it appears that Gurr, denominated "Natives' Advocate" in Iulio's objection before the Land Commission and "Councillor for Samoa" in his own letters describing the Apia court case, was acting throughout as an advocate for Iulio. (4) [10ASR2d133]

The 1906 High Court Case

16) On March 12, 1906, several years after the cession of Tutuila to the United States, Iulio wrote a letter to the Secretary of Native Affairs and Registrar of Titles and Lands for American Samoa. It appears from the letter that these two offices were combined in one person, who was none other than the aforementioned Misikea or E. W. Gurr. The letter seems to have been intended to operate as a deed of conveyance. In it Iulio announced:

a) that eleven years previously he had been awarded "the back land of Lepule in Leone" [O le Tuafanua o le Pule i Leone] by the Land Commission;

b) that "this back land is called Lega'oa";

c) that Iulio and Talamaivao have agreed to give the land to To'omata and Tali and Amelia Va--"in her [Amelia] and her children is the true ownership [pule], because Amelia is the wife of Talamaivao and the daughter of Tuitele; this is our paolo [family connection] to Tuitele, this our true family."

d) "The true ownership of Lega'oa will be in Amelia and To'omata and Tali forever, without any disturbance from our family or our children."

e) The text concludes with the following sentences: "Also all the lands of the foreigners and missionaries, the true ownership is in them, because these lands have all been registered with the government in years gone by, because of fa'ataufua [sales that were invalid or [10ASR2d134] unauthorized] by some chiefs of Leone. These lands are within le Ga'oa, but pieces of land are with the chiefs of the village of Leone. Amelia Va and her whole family are the true owners forever. II

f) The letter is signed "Iulio." Below this signature are other signatures purporting to be those of Talamaivao, "Sasafai," To'omata, Talita'ua (Tali), and Amelia.

17) On or about the same day that Iulio wrote as recounted above to the Registrar about the land he called Le Ga'oa, he undertook to sell the proposal to certain chiefs of Leone by promising them gifts of land. To Le'oso he wrote that if Le'oso would "testify to Talamaivao's pule over Lega'oa ...your lands in Lega'oa will remain." Iulio also hinted that it was futile to fight Talamaivao in court, reminding Le'oso that when Fai'ivae had tried this in 1895 he had lost badly. Meanwhile, however, Iulio appears to have written Fai'ivae a letter of which we have no record; we do have a terse letter from Fai'ivae to Iulio, dated March 12, apparently rejecting an offer and making a counter-offer: "If there is no land around Le Pala, then in my opinion it would be useless for you to give my family any land or share in Le Gaoa." (The evidence also includes a blank form dated March 1906, purporting to be a letter from Talamaivao and written in a style similar to that used by Iulio in his other letters, by which Talamaivao would "give the land Le Pala to the Faiivae family at no cost to be Faiivae land forever." The form is not signed by anyone, and was apparently never executed. But there is a letter dated March 12 from Iulio to Gurr in his capacity as registrar of land titles, stating the intention of Iulio and Talamaivao to give Le Pala to Faiivae and agreeing to have the property registered in Faiivae's name.)

18) Instead of supporting Talamaivao's proposal to register Le Gaoa as the land of To'omata, Tali, and Va, neighboring chiefs registered their objections. On March 12 the Western District Governor wrote to Gurr (this time in his capacity as Chief District Judge) "because I have heard that Talamaivao is going to register with the government the name Legaoa.... and... everyone has a piece of land there." On March 13 Fai'ivae objects that his land "Lefega" is in Legaoa. (Fai'ivae identifies himself as Western [10ASR2d135] District Governor, but the handwriting of the two letters described above differs markedly.) On March 14 Leone chiefs Salave'a, Samaga, Tuiteleleapaga, Toilolo, Suafo'a, Su'a, Tavai, Talava, Puloto, Aigamaua, Uo, and Iuli wrote to object to "what Talamaivao has done to the nu'u [village, district, or people] of Le Gaoa" and listing their lands within Lega'oa.

19) On or about March 27, 1906, it appears that Iulio or To'omata filed the 297-acre survey with Gurr. The survey is dated March 27, 1906 and purports to be "Le Ga'oa, land of To'omaata, Leone." The original is contained in the High Court file for Land and Titles case No. 5-1906.

20) On March 28, 1906, Le'oso wrote to Gurr-- -addressing him as "Chief Judge" ---objecting to "Iulio and Talamaivao's survey [fua]." Significantly, this is the first mention of a "survey." Objectors who lodged their objections prior to March 27 spoke of what they had heard, or of a proposed registration, or of "what Talamaivao is trying to do." We conclude that the 297-acre survey must have been given to the Registrar , or at least made public, on or about the date on its face, March 27, 1906.

21) It is clear from the two surveys and from the testimony of plaintiffs' surveyor that the 297-acre survey dated March 27, 1906, and the 1988 retracing designated "Legaoa 1906" on Exhibit 18 are substantially identical. These are also substantially identical to the Willis/Va plaintiffs' survey submitted for registration in LT No.45-81, one of the cases now before us.

22) Lega'oa as defined by the three surveys mentioned above is bounded on the east, north, and west by mountain ridges or slopes. It is bounded on the south by a stone wall and by land called Pugaloa or Pagaloa. Much of the land in the eastern and northern portions of this tract, and some of the land in the western portion, is mountainous. The southern and. southwestern portions, and much of the area in the center of the survey, are flat land.

23) The evidence establishes that the following tracts, some of which were registered as freehold land prior to 1906, are within plaintiffs' survey: the "Sisters' Land"; Fai'ivae land called [10ASR2d136] Lefega; Le'oso land called Lesolo; Uo land called Leifi; and two tracts called Lepala, out of at least three by that name in the vicinity. The evidence establishes that the following lands are outside the survey: Hunkin's land called Pugaloa; Hunkin's land called Lepule; Lalopua; and the French Roman Catholic Mission. These lists are not exhaustive of the tracts within and without Lega'oa, but only of the lands of whose location plaintiffs submitted sufficient evidence to allow us to make a finding.

24) Of the lands listed above, all but one of those within plaintiffs' survey were listed by objectors to the proposed Iulio/To'omata registration as being within Lega'oa: Lefega, Lepala, Lesolo, and Leifi. Only the "Sisters' Land" was not part of the dispute. Of the lands we find to be outside plaintiffs' survey, none was listed as a source of objection in 1906.

25) The trial was held on May 3, 1906. Presiding was E.W. Gurr, Chief District Judge. All witnesses testified that the boundaries of Lega'oa were substantially those stated in our description of the 297-acre survey, except that some witnesses testified that Lega'oa included only flat land. In particular, Talamaivao testified that the seaward boundary of Lega'oa was Pugaloa.

26) At trial a number of Leone chiefs testified that they had long had plantations within the area being offered for registration by Talamaivao on behalf of To'omata.

27) The Court announced its decision at the conclusion of trial. It held that "[t]he land named Lega' oa is the flat land below the mountain." It ordered that the land be divided in the middle. The inland portion was to be that of To'omata and the seaward portion the property of "the Leone people whose names are now recorded." The Court also announced that "Leoso will get the two lands Togiagogo and Lesolo that are situated on the sami side of Legaoa."

28) In a written decision dated May 4, 1906, the Court held that "the property in controversy LEGAOA is defined to be the flat land of the valley before the rise to the hills surrounding"; that it was the property of To'omata by gift of Talamaivao but had long been occupied by others, who were [10ASR2d137] entitled to compensation for their improvements; and that Legaoa should be divided equally as stated above. To'omata v. People of Leone, 1 A.S.R. 142 (1906).

29) It is absolutely clear that the court was defining Lega'oa as "the flat land of the valley" within the survey that had been offered for registration. There is no evidence at all to support the alternative hypothesis offered by plaintiffs, that Lega'oa originally consisted of the entire Leone valley and that the 297-acre survey reflects the portion that was awarded to To'omata in the 1906 case. And there is abundant evidence to the contrary: (a) The 297-acre is dated March 27,1906, before rather than after the trial. (b) From the first mention of Lega'oa in 1895 it is described as among the "back lands" behind the village of Leone. (c) In 1906 the objectors were obviously unhappy with Talamaivao and Iulio, but no one alluded to an attempt by Talamaivao or Iulio to register the entire Leone valley. Such an event would have been a remarkable event in the life of the village of Leone; if Talamaivao had attempted to register the whole valley including the central village, it is inconceivable that the chiefs' objections would have mentioned only some backlands toward the mountain. (d) On the contrary , however , every land which any objector claimed to be part of the original proposed registration, and of which we have any evidence at all, has been shown to be part of the 297-acre survey. (e) At trial Talamaivao himself testified that Pugaloa ---not the ocean or anything near the ocean was the seaward boundary of Lega'oa. Pugaloa is also the southern boundary of the 297-acre survey and of plaintiffs' current survey. (f) Finally, the Court itself alluded to the location of Lesolo "on the sami [seaward] side of Legaoa." Lesolo is in the sami portion of the 297 acre survey (see Exhibits 18 and 29) but it is nowhere near the sami side of the Leone valley.

On plaintiffs' hypothesis that the tract called "Lega'oa" consisted of the entire Leone valley before the Court divided it in two, everyone involved in the case ---Talamaivao, the objectors, the Court itself ---was badly confused about the tract's location and its boundaries. On the contrary hypothesis, that Talamaivao and To'omata attempted to register only the 297- acre survey, all the evidence makes sense. The flat land within [10ASR2d138] the 297-acre survey ---a survey substantially identical to the one now offered by plaintiffs as "'their" portion of Lega'oa ---was what the court in 1906 ordered to be divided between plaintiffs' ancestors and defendants' ancestors.

30) The flat portion of the 297-acre survey is substantially identical to the 60.1 acres marked "Lot A" on plaintiffs' Exhibit 36. This is the area that was ordered to be divided in two, the inward portion to belong to To'omata and the seaward portion to the chiefs of Leone whose cultivations had been within Lega'oa.

The 1918 Case

31) By 1918 To'omata had acquired the Tuitele title. Two of the children of Amelia Va sued him, urging that he had made unauthorized sales of parts of the land belonging partly to their mother .

32) Although the Court found the children had no standing so long as Amelia Va lived, she appeared at the trial and the Court issued a judgment on the merits.

33) The Court's judgment was that "the title to the land in controversy is vested in TO'OMATA, now known as TUITELE, TALI and AMELIA VA, as tenants in common, each of these persons having an equal interest in the same."

34) In a finding or preamble preceding the above judgment, the Court stated that "[t]he portion of the land "LEGAOA", which was given by this deed to AMELIA VA alone was by the High Court, in said case [i.e., the 1906 case], awarded to the people of Leone." This finding was apparently based on a letter from E.W. Gurr explaining the 1906 Court's decision.

35) We believe the letter from Gurr, and the 1918 Court's finding, to be based on a misconstruction of the deed. The deed is in the record of LT No. 5-1906 and its principal parts are stated in paragraph 16 supra. We do not find any evidence of an intention to give any part of Lega'oa to Amelia Va alone; rather, the deed says in one place that "in her is the true ownership of the land," because she is the connection between the Talamaivao and the Tuitele families. Nevertheless, in two other places the deed speaks [10ASR2d139] of the "true ownership" belonging to To'omata, Tali, and Va jointly. Judge Gurr in his letter to the Court in 1918 apparently tried to resolve the conflict by reading the last sentence of the deed as a gift to Amelia Va alone of lands that were "with the chiefs of Leone." We do not think that is what the deed says.

36) To' omata and Tali were close relatives of Amelia Va. In 1906 the High Court had already declared To'omata the heir apparent to the Tuitele title. In re Matai Title Tuitele, 1 A.S.R. 25 (ca. 1902). The stated purpose of the 1906 transfer was to illustrate and strengthen Iulio's and Talamaivao's paolo [family connection, but also "shade" or "protection"] to the powerful Tuitele family. The apparently conflicting terms of the deed ---one sentence that appears to give the "true" ownership of the land to Amelia Va, while the rest of the deed gives ownership to her "whole family" or to the three named persons ---make sense in this light. The brothers Talamaivao were giving the land to To'omata et al. because of Amelia Va, and so were giving it "truly" to her and also to the whole family.

37) Our difference of opinion with the 1918 Court on this question of fact is, however, moot. Despite its view that Talamaivao had intended to give Amelia Va certain lands separately and that those lands had been awarded to the chiefs of Leone in 1906, the Court concluded that she was an equal co-owner with To'omata and Tali of the portion of Lega'oa that had been awarded to them.

38) Plaintiffs' counsel has alluded to a missing deed, and sometimes to a second deed. We have no evidence that there was ever any deed other than the one described in paragraph 16 supra. Although we believe Judge Gurr's 1918 letter (contained in the record of the 1918 case) to be an incorrect interpretation of the deed that is before us, its structure strongly suggests that it is an attempt to construe this deed rather than some other or other.

39) Nor have we any evidence of a "compromise" subsequent to the 1906 case, whereby the chiefs of Leone awarded Amelia Va any additional lands in compensation for what she lost in the 1906 litigation.[10ASR2d140]

Conclusions

1) Although we assume for the purpose of this motion that the 1895 decision of the Apia court is binding on us, it has no bearing on the outcome of this litigation. The only issue properly before the Court was Alfred Hunkin's appeal of the denial of his father's claim to "Lepule and its 'Tuafanua' adjoining it." The land in dispute in the present case clearly does not adjoin Lepule. Even if we are bound by what the court seemed to think it was deciding ---the denial of Hunkin's expanded claim to an area of 50 to 100 acres in the backland of Leone, part of which he called Le Ga'oa ---the official record of the decision purports only to reject Hunkin's claim and not to confirm that of Julio as against the world. Moreover, even if Julio had won Hunkin's eight portions of the backland called "Le Gaoa" in 1895, we would have no evidence of how much of the 297-acre survey was included in those tracts. Finally, the far more specific ruling of the High Court of American Samoa in 1906, which did define the rights in Lega'oa of the Talamaivao legatees and of the Leone chiefs, would seem to supersede any contrary implication of the earlier Apia decision.

2) The High Court in 1906 held that Lega'oa consisted of the flat land within the 297-acre survey that had been offered for registration. The Court ordered that the land be divided into two equal parts, with the back portion belonging to To'omata and the seaward portion to the chiefs of Leone whose cultivations had been within the survey. To'omata v. People of Leone, supra. In 1918 the Court held that To'omata had not been awarded the land as a sole proprietor, but that he was a tenant in common with Tali and Amelia Va. Falesau v. Tuitele, supra. These holdings are binding on us and on the parties to the present case by the rule of res judicata.

3) Much of plaintiffs' argument on rehearing .was devoted to urging that we had misapplied the standard of proof on a motion for summary judgment. But the motion we granted was not a motion for summary judgment. It is true that at the conclusion of the plaintiffs' evidence, the Court announced that it would hear arguments on a motion for summary judgment that it had previously deferred until trial on the merits. When, in response to this announcement, plaintiffs' counsel [10ASR2d141] argued that the Court would have an obligation to find the facts in the most favorable possible light for plaintiffs, the Court asked if defense counsel wished to make a motion to dismiss. Defense counsel did make a motion to dismiss, and argument resumed on that motion. The motion was in order, plaintiffs having rested and defendants not having put on any evidence.

4) The standard of proof on a motion to dismiss at the conclusion of plaintiffs' evidence at trial, unlike the standard on a motion for summary judgment prior to trial, is that plaintiffs must prevail by a preponderance of the evidence.

The court is not to make any special inferences in the plaintiff's favor
nor concern itself with whether plaintiff has made out a prima facie
case. Instead it is to weigh the evidence, resolve any conflicts in it,
and decide for itself where the preponderance lies.

9 Wright & Miller, Federal Practice and Procedure: Civil § 2371 at 224-25 (1971).

At the conclusion of the plaintiffs' case the Court would have been justified in treating the case as though defendants had rested without submitting any evidence. As it happened, the clear contemporaneous evidence of what happened in 1906 ---almost all of it offered by the plaintiffs and much of it from the Court's own files ---and the testimony of plaintiffs' own surveyor about the current location of the various tracts discussed by the parties and the Court in 1906 and earlier, far outweighed the slight contrary evidence. This consisted almost exclusively of the testimony of plaintiff Tony Willis to the effect that his family had once owned all of Leone and had been consigned to the 297 acres of plaintiffs' survey after "the first illegal division of the land" by the High Court in 1906.

The Court, moreover, did far more than what was strictly necessary to ensure plaintiffs a fair hearing. First we allowed plaintiff Tony Willis to testify for a second time at the request of counsel for plaintiff Levi, although we had heard plaintiff Willis for several hours the day before and counsel for plaintiff Levi had previously had the opportunity to question him. Then, having noted that the [10ASR2d142] testimony of plaintiff To'omata ---technically a plaintiff since his claim was derived through the 1906 conveyance from Talamaivao was more helpful to defendants than to plaintiffs, the Court decided to disregard this testimony in reaching a decision on the motion to dismiss. Finally, in response to the argument of plaintiffs' counsel that he had been saving certain evidence for rebuttal, the Court heard plaintiffs' offer of proof and agreed to assume the truth of every bit of the proffered evidence in reaching its decision on the motion to dismiss.

Plaintiffs had a fair trial. Plaintiffs' counsel did an excellent job. They simply did not have much of a case. At the close of the plaintiffs' evidence it was quite clear that defendants should prevail on the only issue before the Court, and that neither the Court nor any party would benefit from another two days of testimony.

The Land and Titles Division of the High Court is specially authorized by statute, in cases where "the strict compliance with any rule of practice or procedure may be inequitable or inconvenient," to act "in such manner as it considers to be most consistent with natural justice and convenience." A.S.C.A. § 3.0242. Although we feel that the procedures we followed were correct even in the absence of this statute, we reaffirm our conviction that justice and convenience would have been disserved by requiring the many defendants in this case to present evidence and arguments in the slim hope that the plaintiffs' case would be struck by the evidentiary equivalent of lightning.

5) For the purpose of the motion to dismiss we agreed to assume that the United States Government established a rifle range in the seaward half of the 297 -acre survey during World War n. Tony Willis testified that his mother received a damage award from the government after the war on account of the rifle range; he also submits documentation of an award, which does not mention whether it was on account of a rifle range. We assume, however, that it was. We also assume the truth of testimony that plaintiffs' counsel said he would have offered on rebuttal, to the effect that Dorothy Asuega, an heir of Amelia Va, has lived in the seaward portion of the 297-acre survey; and that aerial photographs of Lega'oa and vicinity taken during the last [10ASR2d143] twenty years, or so would not show clear boundary lines between a number of small cultivated tracts.

This evidence might be relevant to a claim based on adverse possession, which is not now before us. We understand also that relatively recent patterns of occupation are not altogether irrelevant to what the Court might have done in 1906. These three pieces of evidence, however, and Tony Willis's testimony with regard to his version of Talamaivao family history, are insufficient to overcome the clear contemporaneous documentary evidence of what was before the Court in 1906 and what the Court then decided.

6) Finally, with regard to the mountainous portion of plaintiffs' survey we are bound by the rule of res judicata to the holding of Leuma v. Willis, 1 A.S.R.2d 48 (1980).

The land is not the individually owned land of Defendant [Tony
Willis, plaintiff in the present case]....We have found that Willis
[the same Tony Willis who is a plaintiff in the present case] and
his co-tenants were deeded only the flat land of the valley. Since
we have found that the land in question is not part of the flat land
of the valley, Willis cannot claim this land by the deed, whether
or not the deed is valid.

Id. at 55.

This does not, of course, preclude plaintiff Willis or any other party from proving a claim based on original occupation or on adverse possession. Those issues, by stipulation of the parties, are not presently before us.

Order

We reiterate our judgment from the bench. amended complaint of the Willis\Va plaintiffs in consolidated cases 45-81 and 45-82 is dismissed, and all the relief demanded therein is denied with prejudice, except that the following declaratory judgment will issue:

The inland half of the flat portion of the 1906 To'omata survey of
Lega'oa, more particularly identified as the inland [10ASR2d144]
half of Lot A on Plaintiffs' Exhibit 36 in the present case, is the
individual property of the successors in interest of To'omata, Tali,
and Amelia Va, who held equal interests in the land as tenants in
common. The seaward half of the same survey, more particularly
identified as the seaward half of Lot A on Plaintiffs' Exhibit 36, is
the communal property of those families of Leone who were
occupants prior to 1906 of any part of the land described by the
survey. This judgment is without prejudice to the rights of any person
who has acquired a title to any portion of the described land by
registration in accordance with law, or by adverse possession.

The Court will hold a second hearing at the convenience of the parties in order to resolve any claims by adverse possession, to allow the various defendants to prove their claims within the seaward half of the survey, to consider any claims within the mountainous portion of the survey, and for other purposes not inconsistent with this decision. All claims in cases LT No. 8-84, LT No. 22-86, and LT No. 6-87 are also deferred until the second hearing, to be resolved consistently with this opinion and the judgment herein.

The motion to reconsider is denied. It is so ordered.

*********

1. Litigant To'omata M. T. Tuitele, claiming to appear on behalf of himself and the heirs of To'omata and Tali, is hard to characterize as a plaintiff or defendant. To'omata and Tali are the other two people to whom (along with Amelia Va) Talamaivao is said to have given Lega'oa. Thus a victory for plaintiff Willis and the heirs of Va, awarding the full 297 acres to the three legatees and their descendants, would seem to be a victory for To'omata as well. To'omata is also, however, a chief of Leone, as was his ancestor of the same name who received the legacy from Talamaivao. The present To'omata first appeared in this litigation as an objector to the attempted registration of the whole 297 acres as property of the heirs of Va. After the cases had been consolidated, counsel for To'omata filed a three-sentence answer from which it is not possible to discern a theory of the case. In determining the order in which evidence should be presented, the Court ordered without objection that To'omata should be characterized as a plaintiff. His testimony with regard to the historic boundaries of Lega'oa, however, turned out to be in substantial agreement with the position taken by most of the defendants.

2. We take judicial notice of this attitude only for the purpose of understanding the term "tuafanua." We do not hold that it has the force of law in this or any other case. The current law of American Samoa is that an individual or family that clears and cultivates virgin bush can acquire a property right in the land, notwithstanding its proximity to other land that has previously been occupied or cultivated by others. See Leuma v. Willis, 1 A.S.R.2d 48, 49-54 (1980), and authorities cited therein; Lago v. Mageo, 4 A.S.R. 287 (1962), and authorities cited therein; A.S.C.A. § 37.0101. See also Lago v. Mageo, supra, at 299-302 (land below the high-water mark is held by the United States in trust for all the people of the Territory).

3. The Court is of the opinion that it can take judicial notice that the Court House and Blacklock's store (later Parkhouse & Brown's store) were both located in downtown Apia. See Cyclopedia of Samoa at 27, 99, 110 (1910). If Hunkin's estimate was correct, the land called "Lega'oa" involved in the 1895 case therefore constituted only a few acres. Such a finding, however, is unnecessary to our decision; it is sufficient that the evidence establishes Hunkin's entire claim to have comprised only 50 to 100 acres. See also Conclusion of Law No.1, infra.

4. Gurr also wrote a letter in 1895 to the "Chiefs and Councillors of Amanave," telling them that Iulio had "put before the judge an objection to protect your town & cultivations & also land." He informed the chiefs that "the Case is now over & the town Amanave & its lands are saved. " The only hitch, according to Gurr, was that "you [the chiefs of Amanave] are to pay taxation for the investigation of the land, the sum of one hundred dollars, then your land will be saved." Otherwise the Chief Judge and the Government would "be at a disposal of selling your land to whom they choose." Gurr suggested that each resident of Amanave contribute two or three dollars. The letter was signed "Misitea, Councillor for Samoa" and was dated September 16, 1895, six days after the Apia trial. The chiefs later claimed that they had paid the $100 to Iulio. (Gurr's letter to the chiefs and the chiefs' claim to have paid the money to Iulio are part of the record of Julio v. Talamaivao, supra.) The official report of the Apia case, contrary to Gurr's letter, assesses $100 not against the chiefs of Amanave but against Iulio himself. Moreover, the assessment appears on its face to have to do with "all the rest of the Tuafanua" ---that is, such portions of "the Tuafanua of Lepule" as were not confirmed to Hunkin ---rather than with Amanave in particular .Assuming that "Councillor for Samoa" was something other than a self-description, and whatever the official duties of that post might have been, it is difficult to escape the conclusion that Gurr was operating as an advocate for Iulio.