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15ASR2d

15ASR2d

National Pacific Ins.; Mauga v.


TASI and FA'ASAGA MAUGA, Plaintiffs

v.

FA'AFETAI TO'OTO'O, PURSE SEINER SERVICES
and NATIONAL PACIFIC INSURANCE, Defendants

High Court of American Samoa
Trial Division

CA No. 2-90

May 7, 1990

__________

Compulsory Insurance Act requires an auto insurance omnibus clause to insure the named insured and persons using the vehicle with his express or implied permission. A.S.C.A. § 22.2001.

Under the initial permission rule, the owner of a vehicle who permits it to be used by a first person is considered to have allowed that person's permittees to use the vehicle, even if the owner tried to limit his consent to the first person.

Under the initial permission rule, the owner of a vehicle who permits it to be used by another is considered to have permitted any later use by that person short of theft or conversion, even if such use violates the scope of the use originally permitted by the owner. [15ASR2d36]
Under the strict rule, if the owner of a car expressly forbids his permittee to lend it to another, anyone driving the car in violation of such a prohibition is not covered by the omnibus insurance clause.

Compulsory Insurance Act limits recovery to victims who prove actionable fault on the part of a named insured or persons driving the insured vehicle with his express or implied permission. A.S.C.A. § 22.2003(2).

Whether a particular driver has the insured's permission and is thus insured is a matter of fact to be proven on the evidence.

Initial permission rule reflects a public policy of avoiding litigation of the details of factual issues concerning the terms and scope of permission granted by a named insured .

American Samoa statutory scheme does not reflect the public policy underlying the initial permission rule; instead, it extends coverage only to express or implied permittees of the named insured, and does not deem permission to exist as a matter of law for all uses short of theft or conversion.

Auto rental contract expressly prohibiting all drivers except the party signing the contract does not conclusively prove that other drivers are not covered by the owner's omnibus insurance clause, since the facts may show that the owner gave implied permission regardless of the contractual prohibition.

Summary judgment was denied since the permission of an owner of a rental car was a triable issue of fact where the court refused to imply or deny as a matter of law that the owner permitted drivers not specified in the rental contract.

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, and MATA'UTIA, Associate Judge,

Counsel: For Plaintiffs, Robert A. Dennison III

  For Defendants NPI and Purse Seiner, John L. Ward II

On Motion for Summary Judgment:

Introduction

Vani Atafua rented a car from Purse Seiner Services (hereinafter "PSS"), under a rental agreement which expressly prohibited other drivers.(1) Subsequently, one Fa'afetai Tuatoo somehow ended up behind the wheel of the rented car, and an accident resulted. National Pacific Insurance (hereinafter "NPI") is PSS's insurer for the third party liability insurance coverage mandated by the territorial Compulsory Insurance Act, A.S.C.A. §§ 22.2001 et seq., (hereinafter "the Act"). [15ASR2d37]

The victims of the accident are suing the driver Fa'afetai Tuatoo, the rental agency PSS, and the rental agency's insurance carrier NPI.(2)

NPI and PSS move to dismiss or, in the alternative, for summary judgment, contending that insurance coverage did not extend to Fa'afetai Tuatoo (the second permittee) since the vehicle owner (PSS) had, by the terms of the rental agreement, forbidden Atafua (the first permittee) from allowing anyone else to use the vehicle. To the contrary, plaintiffs contend that coverage does indeed extend to this situation under the American Samoa compulsory insurance laws. Plaintiffs also submit that material questions of fact remain--namely, whether the renter gave permission to the second permittee and whether the renter was even made aware of the restriction.

The insurance policy defines the insured as follows: "'Insured' means and includes only the named Insured and a person who is using an insured vehicle with the express or implied permission of the named Insured " This definition of "insured " is consistent with the Act's requirements of a policy's Omnibus Clause. The statute mandates that a policy "shall insure the person named therein and any other person who uses the vehicle or vehicles with the express or implied permission of the named insured " A.S.C.A. § 22.2003(2). Given the prohibitory provisions of the rental agreement regarding third party use of the rental vehicle, the question arises whether permission can be "implied" in the circumstances ---implied permission would extend insurance coverage to Tuatoo under the policy and the Act.

Discussion

The problem posed by the permittee's permittee within the meaning of the omnibus clause has been the source of much litigation. [15ASR2d38] The courts are divided on the rules for determining whether a second permittee who is expressly prohibited from use of the vehicle by the owner's instructions to the original or first permittee nevertheless has "implied" permission and is therefore an omnibus "insured" within the meaning of the Act.

I. The Initial Permission Rule

Under the "initial permission" rule developed in some states, PSS's initial permission to Atafua would be held effective as to Atafua's permittees, regardless of the fact that PSS had attempted to limit the scope of its consent to its "Customer" only. The initial permission rule extends coverage whenever the first permittee received permission, regardless of what the permittee does with the car, except in situations of theft or conversion. This rule is founded on public policy. "Primary justification for the 'initial permission' rule is that it alone guarantees fulfillment of the state' s policy of compensating innocent accident victims from financial disaster." Milbank Mutual Insurance Co. v. U. S. Fidelity, 332 N.W.2d 160, 166 (Minn. 1983). Likewise, it was noted in Williams v. American Home Assurance Co., 297 A.2d 193, 197 (N.J. 1972), that a "liability insurance contract is for the benefit of the public as well as for the benefit of the named or additional insured.” See also Annotation, Omnibus Clause as Extending Automobile Liability Coverage to Third Persons Using Car with Consent of Permittee of Named Insured, 21 A.L.R. 4th 1159 § 3, 1185 § 10 (1983). In Odolecki v. Hartford Accident & Indemnity Company, 264 A.2d 38 (N.J. 1970), a mother allowed her son to drive, with the repeated admonition not to let anyone else drive the car. The son allowed a friend to use the car and a crash occurred. The omnibus clause in question extended coverage to any person using the vehicle "provided the actual use of the automobile is by the named insured or such spouse or with the permission of either." Id. at 39. The court noted that the initial permission rule had already been adopted in cases involving a permittee who deviated from the scope of the permission granted. Citing policy in favor of limiting litigation and assuring that all persons wrongfully injured have financially responsible persons to look to for damages, the court extended coverage to the second permittee despite the named insured's prohibition on driving.

Another application of the initial Permission rule is presented in Milbank Mutual Insurance Co. v. U.S. Fidelity, supra. The court held that when a motor vehicle owner initially consents to use by a permittee, subsequent use short of conversion or theft remains permissive even if the subsequent use was outside limitations placed on the initial grant of [15ASR2d39] permission. In this case, the driver was given permission to take the vehicle home but was not supposed to use it further. The accident occurred during a subsequent test-drive. The court held that if a named insured grants another permission to use the vehicle, "any violation of a limited scope of permission by the operator, short of theft or conversion of the vehicle, will not relieve the insurer from affording to the named insured coverage protecting him against claims. ..." Id. at 167. Significantly, the court also noted that Minnesota statutory law would impose liability on the vehicle owner for torts committed by permittees using his vehicle. Id. at 165. The court thus acknowledged an independent and separate basis for the imposition of liability on the vehicle owner. In addition, the court noted several related statutes which evidenced a general legislative intent of affording compensation to victims of automobile accidents.

II. The Strict Rule

In contrast, this view is generally stated as "[i]f the owner of the car expressly forbids the permittee to lend his car to another, but the permittee nevertheless allows a second permittee to drive the car in violation of the named insured's express orders, the insurer is not liable while the second permittee is driving...." 12 Couch on Insurance 2d §§ 45:410 (1981). Where "the insured expressly prohibits the operation of a vehicle by any person other than the permittee, a second permittee does not have permission and is not an omnibus insured. " 12 Couch, supra. See also Annotation, Omnibus Clause as Extending Automobile Liability Coverage to Third Persons Using Car with Consent of Permittee of Named Insured, 21 A.L.R.4th 1167 §§ 7 (1983); 7 Am. Jur.2d Automobile Insurance § 251 (1980). Thus under the strict rule, the insured owner's permission is essential for the extension of coverage in order to render the insurer liable.

Cases applying this rule generally adhere to the literal statutory language. For example, in Sabino v. Junio, 272 A.2d 508 (Pa. 1971), a Hertz rental car was rented by one individual and then wrecked by an unauthorized driver. The court noted that the insurance policy covered only the renter who signed the agreement and observed that the court could not change the terms of the policy. The relevant enactment was similar to American Samoa's in that it required only that the insurance cover persons using the car with the permission of the insured, in this [15ASR2d40] case, Hertz.(3) The unauthorized driver did not have Hertz's permission and therefore was not covered by the insurance. Similarly, in Liberty Mutual Insurance Co. v. Mueller, 432 F. Supp 325 (W.D. Va. 1977), aff'd 570 F.2d 508 (4th Cir. 1978), a friend of the renter was, at the time of the accident, driving an Avis rental car in contravention of the rental agreement. The statutorily required omnibus clause specified that any person using the car with the permission of the named insured (the rental agency) was covered. The court noted that in Virginia "express permission for a given purpose does not imply permission for all other purposes," and that "permission cannot be inferred where it has been explicitly denied." Id. at 328. The court also noted, however, that a stricter view of implied permission is appropriate where the original permission of the insured is given in furtherance of the insured's business purposes, while a more liberal interpretation is correct when the original permission was granted for personal or social purposes. Id. In Colston v. Liberty Mutual Insurance Company, 210 So.2d 152 (La. App. 1968), the lessee of the car gave another driver, Moses Key, express permission to use the car despite signing an agreement that only the lessee would drive. An accident occurred while Moses Key was driving. In the ensuing suit, it was held that coverage did not extend to the unauthorized driver and the insurance company was granted summary judgment. The court noted that the insurance agreement's requirement of naming any other drivers was reasonable because it allowed the lessor an opportunity to investigate all persons who were to be afforded an opportunity to drive the car. Similar results were reached in American Motorists Insurance Co. v. Samson, 596 F.2d 804 (8th Cir. 1979), where permission was held not to extend to the son of the permittee, and in Whittaker v. Royal Globe Insurance Companies, 471 A.2d 1149 (N.H. 1983), where the court observed that the extension of implied consent was inappropriate where there were precise restrictions under the rental agreement.

III. The Strict versus Initial Permission Rule

The initial permission rule has been spoken of by one commentator as a "stern measure of judicial regulation of the terms of omnibus clauses," R. Keeton, Insurance Law 226 §4.7(b)(2) (1971). As noted above, the rule is a creature of policy. In Odolecki v. [15ASR2d41] Hartford Accident and Indemnity Co., supra, for example, the court, while overruling a case directly on point, upheld the initial permission rule and stated that "[a] second and more important policy is that of assuring that all persons wrongfully injured have financially responsible persons to look to for damages." Id. at 42.

These are admirable and noble sentiments and there can be little quarrel with such policy goals. On the other hand, "financial responsibility, " like many other civilized notions which cost money, is a matter of relative concern. What might be regarded, from a financial point of view, as thoroughly responsible in American Samoa, might be well be viewed in California as thoroughly irresponsible. Thus, the initial inquiry is what are the policy sentiments expressed by our Fono.(4)

A glance at the Act tells us immediately that the Fono did not attempt to provide for all hapless victims of the highway. Indeed, the legislature has arbitrarily limited financial responsibility to: 1) victims who can prove actionable fault on the part of a named insured; and 2) victims who can establish actionable fault on the part of other drivers operating a vehicle with the expressed or implied permission of the named insured. A.S.C.A. § 22.2003(2). Furthermore, the issue of whether a particular driver has the insured's permission ---and is, therefore, an omnibus insured ---is a matter of fact to be proven on the evidence. Sataua v. Himphill, 5 A.S.R.2d 61 (1987); Toleafoa v. Sioka, 5 A.S.R.2d 18 (1987). On the other hand, the adherents of the initial permission rule apparently seek to do away altogether with the very factual inquiry ---of whether a driver, albeit a second permittee, has the express or implied permission of the named insured ---envisaged by the requirements of A.S.C.A. § 22.2003(2).

The initial permission rule is a minority rule,(5) and given the requirements of the Act, the adoption of this rule would be tantamount [15ASR2d42] to judicial legislation in the guise of statutory construction. As rioted by Professor Keeton, "[i]ssues rising from the use of the insured vehicle by ...the permittee's permittee ...are complicated by the major shortcoming of omnibus clauses in general; that is, all too often there is room for doubt and debate about one or more decisive fact-oriented questions." Keeton, supra at 226. This shortcoming prompted the judicially created "initial permission" rule in order to avoid having to otherwise confront those numerous fact-oriented questions concerning permission. Id. It was a lot simpler to impose a rule in the name of policy which readily implied permission to all second permittees, rather than struggle with complicated questions concerning the terms and scope of a named insured's permission in order to discover whether or not a second permittee is an omnibus insured.(6)

The American Samoastatutory scheme does not reflect the same comprehensive policy objectives that have been invoked by certain jurisdictions to justify the adoption of the initial permission rule. The straightforward language of the Act only requires the extension of coverage to the named insured's express or implied permittee(s). Therefore, in order to extend omnibus coverage envisaged by the Act to a second permittee, it must be shown, as with every other issue of fact, that the second permittee had the expressed or implied permission of the named insured as well. InAmerican Samoa, implied permission cannot be deemed as a matter of law to exist for all uses short of theft or conversion.

IV. Motion to Dismiss or for Summary Judgment

We now turn to the defendants' motion. Summary judgment is appropriate when there is no genuine issue of material fact requiring trial. Palelei v. Star Kist Samoa, 5 A.S.R. 2d 162, 166-67 (1987).

Movants in their argument appear to suggest that the prohibition clause against other drivers forecloses further inquiry into the issue of expressed or implied permission and that ipso facto a prohibition clause [15ASR2d43] in the automobile rental agreement conclusively settles the issue of permission under the omnibus clause. Like the initial permission rule, such a suggestion is repugnant to the Act. It similarly proposes the total displacement of a factual inquiry into a statutory issue by the imposition of judicial rule for general application.

Given the public policy aims of automobile compulsory insurance legislation, a number of cases have found implied permission, notwithstanding expressed prohibition. For example, in Schelving v. Johnson, 122 F.Supp 87 (D.C. Conn. 1953), the court found implied permission under circumstances of long continued surrender of the vehicle to the control of the first permittee, even though the owner had expressly forbidden his permittee son from allowing others to drive the loaned vehicle. See also Country Mutual Insurance v. Bowe, 300 N .E.2d 274 (Ill. App. 1973). In another context, the courts have shown concern in the realm of automobile rental agreements that rental companies not unduly restrict the availability of coverage under the omnibus clause by private agreement. See, e.g., Atlantic National Insurance Co. v. Armstrong, 52 Cal. Rptr. 569, 574 (1966); Malmgren v. Southwestern Auto Ins. Co., 255 P. 512 (Ca. 1927). Thus with standard form rental contracts, the concern has been shown that a prohibition clause is only meaningful if the prohibitee is made aware of the fact of prohibition. An otherwise broadly construed grant of permission may be, and has been, held to include the power to delegate that permission. In Financial Indemnity Co. v. Hertz Co., 38 Cal. Rptr. 249 (Ct. App. 1964), the factual issues before the court were whether the Hertz-prepared rental contract restriction was in such type and so placed as to reasonably come to the attention of one renting an automobile; and whether the restriction was read by or called to the notice of the renter:

[T]he trial court found that 'Hertz did not have a reasonable basis for believing that the said restriction contained in the referred to Hertz contract would be carried out; and since Hertz had no such reasonable expectations, Hertz is deemed to have given implied permission to the user of the subject automobile without the said restriction.'

Id. at 254. The court further noted that where neither the renter nor his permittee was aware of such a restriction, Hertz, under such circumstances, "must be held to have anticipated such use by others than the renter with his permission, and, hence, impliedly consented thereto." Id. [15ASR2d44]
The courts have also found implied pern1ission under circumstances indicating the rental car company's recurring sufferance of the use of rental vehicles by different people, notwithstanding the fact of a prohibition clause in their standard form rental agreement. See, e.g., Krupp v. Pan Air Corp., 183 So.2d 403 (La. App. 1966).

Conclusion

On the foregoing, we refuse to imply pern1ission as a matter of law. Secondly, the extent of the record before us does not conclusively foreclose the possibility of pern1ission despite the rental agreement's prohibitory language. We accordingly conclude that triable issues of fact are presented and that, therefore, defendants have not shown entitlement to judgment as a matter of law. T.C.R.P. 56. Motion denied.

It is so Ordered.

*********

1. The relevant provision reads as follows: "Vehicle shall not be used, operated or driven [b]y any person other than the Customer signing this Agreement unless written consent of lessor is endorsed on Page I. If such consent is wanted, such other driven [sic] or drivers are also offered to herein as Customer."

2. The Act gives an injured person the right of direct action against an insurer, within the terms and limits of the insurance policy. A.S.C.A. § 22.2018.

3. The statute required the owner's liability policy to .insure the person named therein and any other person as insured using any such motor vehicle. ..with the express or implied permission of such named, insured. Sabino, 272 A.2d at 509 (quoting Pennsylvania Vehicle Code, Act of April 29, 1959, P.L. 58, Section 1421, 75 P.S. 1421(b)(2).

4. The Court must be very careful to avoid enlarging on public policy by judicial fiat since other interdependent policy considerations ---such as fiscal responsibility and whether we can afford it ---will inevitably come into play.  These are matters within the Fono's exclusive competence.

5. Government Employee Insurance Co., v. Johnson, 396 A.2d 331, 333 (N.H. 1978); 4 A.L.R.2d at 40-41; 21 A.L.R.4th, supra at § 2[a]; Keeton, supra at 226 § 4.7(b)(2). But see Milbank Mutual Insurance Co. v. U.S. Fidelity, supra at 166 ("the initial permission rule is said to be supported by the weight of authority.") (quoting Konrad v. Hartford Accident & Indemnity Co., 137 N.E.2d 855 (III. App. 1956)).

6. Avoiding the tedium of litigating details of permission and use is one avowed rationale for the initial permission rule. See, e.g., Odoleck v. Hartford Accident & Indemnity Co., supra (overruling Baesler v. Globe Indemnity Co., 162 A.2d 854 (N.J. 1960) which held the question of coverage of a second permittee under an omnibus clause to be dependent upon the nature of the permission given to the first permittee. In overruling Baesler, the Odolecki court imposed the initial permission rule to avoid litigating omnibus permission issues by allowing omnibus coverage to all second permittee drivers.

Star-Kist Samoa, Inc.; Palelei v.


SIO PALELEI, Plaintiff

v.

STAR-KIST SAMOA, Inc., Defendant

High Court of American Samoa
Trial Division

CA No. 89-87

June 6, 1990

__________

Defendant is entitled to come to trial prepared to defend only against the allegations in the verified complaint, not against a new and different set of allegations.

When the court finds that adequate grounds for discharge existed and requiring an employer to conduct a post-termination hearing would not change the result, due process has been satisfied.

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

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, John L. Ward II

The facts of this case, except as noted below, are found at 5 A.S.R.2d 162 (1987). In that reported opinion we rendered summary judgment in favor of defendant Star-Kist. The summary judgment was reversed by the Appellate Division on the basis that material facts remained in dispute between the parties. 9 A.S.R.2d 35 (1988). [15ASR2d121]

The allegations in plaintiff’s verified complaint which the Appellate Division found to contain his version of the material facts in dispute were as follows:

9) On October 9th, 1986, there was a problem in the process which created a backlog of fish at the cleaning tables.

10) Plaintiff was expected by his supervisor to increase his table's production by placing more baskets of fish on the table than could be reasonably handled by the cleaners.

11) Plaintiff maintained the normal routine to avoid overloading the cleaners.

12) A complaint was made that day against plaintiff and he was summarily suspended from his employment by his supervisor, Henry Bernard.

Id. at 37. Other material allegations in the verified complaint, not reproduced by the Appellate Division, were as follows:

6) On October 9th, 1986, plaintiff was working as a supervisor of one of many tables where baskets of fish were cleaned by fish cleaners.

7) Plaintiff's job was to ensure that the flow of fish to each fish cleaner was uninterrupted and to account for the number of fish cleaned by each person at his table.

8) Star Kist rules provided that each basket of fish delivered to each cleaner contained eight fish. Because the size of each fish varied, employees in plaintiff's position were given the [sic] some discretionary authority to reduce or increase the expected number fish per basket if circumstances warrented [sic].

The verified complaint further alleges that plaintiff was summarily suspended and later fired without benefit of certain "progressive discipline" procedures outlined in an employee handbook. [15ASR2d122]

Defendant's answer was to the effect that plaintiff was "given an immediate written warning when discovered to have been falsifying the fish cleaners' production punch cards"; that plaintiff refused to sign an acknowledgment that he had received this warning; and that he had thereupon been suspended and subsequently terminated. Defendant specifically denied plaintiffs allegation that he had any discretionary authority to reduce or increase the number of fish each cleaner was expected to clean before receiving a punch.

In granting summary judgment we pointed out that the employee handbook specifically excluded certain offenses from the coverage of the "progressive discipline" proceedings. These offenses included "[g]iving or receiving free punches or wrong punches for fish being cleaned" and also "[i]nsubordination or willful disobedience to an order, assignment or instruction." We held that plaintiff and defendant did not materially disagree on the facts: that defendant admitted he had disobeyed the order of a superior with regard to how many punches to give, taking issue only with defendant's characterization of the undisputed fact. We therefore found that on the undisputed facts plaintiff been fired either for "insubordination" or for "overpunching," and that he was accordingly not entitled to the progressive discipline procedures set forth in the handbook.

In reversing, the Appellate Division observed that "defendant denies in its answer that plaintiff was terminated for insubordination and plaintiff denies 'over-punching.'" Id. at 39. The case was remanded for trial.

Our reading of the Appellate Division's holding is that the material facts in dispute were whether plaintiff had in fact committed either "insubordination" or "overpunching." Since the verified complaint did admit that plaintiff had been "expected by his supervisor to increase his table's production" but chose nevertheless to "maintain[] the normal routine to avoid overloading the cleaners, " the dispute boils down to plaintiffs contention that he had "discretionary authority. " If he did have such authority, his decision to countermand his supervisor's judgment on how many fish could "be reasonably handled by the cleaners" would amount neither to overpunching nor to insubordination. This is what we expected the trial to be about.

In his testimony at trial, however, plaintiff told an altogether different story than the one set forth in his verified petition. He denied that his supervisor had ordered him to increase the pace of production;[15ASR2d123] indeed, he testified that the day he was suspended was an ordinary day in which fish cleaning was proceeding at its usual pace. He said he was therefore very surprised when someone named Tino brought him a written warning.

Significantly, in his trial testimony plaintiff also denied that he had any discretion about how many fish should be cleaned by each cleaner before a punch was given. He said he was to give one punch per basket of fish; that the speed with which baskets were given to fish cleaners was in somebody else's control; and that he had faithfully followed instructions and had given no free punches.

Defendant Star-Kist put on no direct testimonial evidence of what happened on the fish cleaning floor the day plaintiff was suspended. Defendant did present the written warning itself, which states: "This is to warn you for giving free punches for the cleaners without dumping fish." There is also a place on the warning for the employee to acknowledge receipt of the warning; on this line someone has written, "Refused to Sign." Star-Kist also presented plaintiff's supervisor, Henry Bernard, whose recollection of the event was hazy but who did recall that the charge of "free punches" had involved punches given not just to one or two fish cleaners but to a whole tableful.

From this evidence it appears beyond dispute that plaintiff was in fact charged with "overpunching" rather than with some offense for which progressive disciplinary procedures were applicable. It further appears, according to plaintiff's own admissions in his verified complaint and on the witness stand, that he was actually guilty of overpunching. In his complaint he stated that he had had a disagreement with his supervisor over how many fish the cleaners should be required to clean, and had exercised his "discretionary authority" to require a different pace than the one his supervisor expected. At trial, however, he admitted that he had no such discretion.

Instead of relying on his previously asserted discretion, plaintiff presented a new, different, and inconsistent story: that there had never been any disagreement at all about how many fish should be cleaned. Defendant Star-Kist, however, was entitled to come to trial prepared to defend only against the allegations in the verified complaint, not against a new and different set of allegations. Paragraphs 9 through II of the verified complaint, acknowledging that plaintiff did authorize a different number of fish to be cleaned than his supervisor expected of him, were judicial admissions and as such were binding on plaintiff. (Indeed, they [15ASR2d124] were specifically quoted by the Appellate Division as the allegations on which plaintiff was entitled to go to trial.)

In view of plaintiffs admission in the pleadings that he did substitute his own judgment for that of his supervisor about how many fish should be cleaned per basket, and of his admission at trial that he had no discretionary authority to do so, we conclude that he was guilty of "giving free punches or wrong punches," an offense specifically excluded from the progressive disciplinary procedures set forth in the employee handbook. (Defendant's theory in its pleadings---that giving free punches amounted to "falsification of company records," another offense for which employees can be fired without progressive discipline---was also sustained by the evidence. It further appears that by refusing to sign the acknowledgment of receipt of the warning when asked to do so by his supervisor, he was guilty of "willful disobedience to an order, assignment, or instruction," yet another such offense. ) He has therefore failed to sustain his burden of proving that he was wrongfully discharged.

Finally, however, plaintiff argues that even if he was charged with a "termination" offense rather than a "progressive discipline" offense, he was entitled to an investigation which should include his side of the story. He testified that he never got a chance to tell his story; rather, the personnel director told him each week only to come back the next week, until he was eventually told he had been fired.

At trial defendant Star-Kist did not produce the personnel director ---who was the company's representative in dealing with plaintiff Palelei at all times between the initial warning and the eventual firing, whose affidavit was the principal evidence for its motion for summary judgment, and who now works in Texas for Star-Kist Samoa's parent company. The only evidence presented at trial with respect to the disciplinary investigation, other than the testimony of plaintiff himself, was that of defendant' s present personnel director. She testified that company procedure is always to get an employee's side of the story as part of a disciplinary investigation; that this was also company procedure at the time of defendant's termination; and that she has never heard of a case in which this was not done.

Failing to present the testimony of the only person who had direct personal knowledge of the Palelei investigation impresses us as an extremely poor strategic decision. Against a plaintiff who was able to present a reasonably credible and internally consistent account of his allegedly arbitrary firing, it would probably have been fatal to the [15ASR2d125] defendant's case. As it happens, however, the plaintiff did not present such an account. The dramatic changes in plaintiffs story with regard to what happened in the fish room leave us with no confidence in his story about what happened later between him and the personnel director. He had the burden of proof on this as on other questions; although the testimony of defendant's present personnel director amounted only to circumstantial evidence with respect to what probably happened in the Palelei investigation, the totality of the evidence leaves us unconvinced of plaintiff’s allegation that he never had a chance to tell his version of events.

Nor, in any event, is it at all clear that any particular disciplinary procedure would be required in the case of an employee who from the outset had signaled his refusal to co-operate in such a procedure by refusing to acknowledge receipt of the written warning which the handbook specifies as its first step.

It is, moreover, difficult to imagine what remedy we could give plaintiff if we were to determine that (a) he had been fired without a hearing, but that (b) after a plenary hearing before the Court, the substantive grounds for his firing had been proved. For Star-Kist to give plaintiff a chance to tell his side of the story at this stage would be superfluous; in its capacity as defendant in the present case, it has already heard two different versions of that story. There is no reason to suspect that such a hearing might have a different result than the judicial hearing that has already been held. Plaintiff has had at least as much process as is due.

Accordingly, the complaint is dismissed and judgment is rendered for the defendant.

It is so Ordered.

*********

To'omalatai v. Moliga,


IOKAPETA TO'OMALATAI, Plaintiff

v.

NATIONAL PACIFIC INSURANCE COMPANY,
GALUFUAINA MOLIGA, and TALAGU MOLIGA, Defendants

High Court of American Samoa
Trial Division

CA No. 85-89

May 31, 1990

__________

Damages resulting from auto accident were limited to the maximum insurance coverage under defendant's policy where the evidence showed that some pain and suffering resulted from plaintiffs delay in acting on and following up medical recommendations, and her loss of earnings resulted from an unrelated medical condition rather than from the injuries caused by the accident.

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

Counsel: For Plaintiff, Togiola T.A. Tulafono

  For Defendants, Roy J.D. Hall Jr.

Plaintiff seeks damages for personal injuries sustained following a collision between a certain bus in which she was riding as a passenger, and another vehicle driven by the defendant Talagu Moliga. Galufuaina Moliga is joined principally because she is registered as joint owner with Talagu Moliga of the vehicle which the latter was driving. National Pacific Insurance is sued as the insurer of the vehicle under the Compulsory Insurance Act, A.S.C.A. §§ 22.2001 et seq.(1) Through a series of pre-trial agreements developed immediately before trial in a rather untidy fashion, the following stipulations were presented to the Court: that the defendants Talagu Moliga and National Pacific Insurance conceded liability to the extent of coverage under the terms of the insurance policy, namely, $10,000.00; that the collision occurred on [15ASR2d78] September 17, 1988, at approximately 1830 hours; and that defendant Galufuaina be dismissed from the case.

The parties did not agree on damages. Plaintiff contended that actual damages were in excess of the policy limits while defendants submitted that $10,000.00 adequately represented damages. To this end, Court heard testimony.

Subsequent to the accident, plaintiff was seen by Dr. Teariki No'ovao, of the Surgical Services Division, L.B.J. Tropical Medical Center. At the time, plaintiff was found to have suffered a broken arm (X-Rays confirmed a fractured left humerus). She had also sustained some minor cuts about her face and bruises to her chest, and her blood pressure was noted to be elevated. At the time of admission, she was conscious and lucid and her vital signs intact. Plaintiff’s lacerations were treated and, according to Dr. No'ovao, have healed nicely. For her broken arm, Dr. No'ovao opted for closed reduction and the application a split cast. After a week's admission plaintiff Was discharged, and over the next few months, she made several visits to Dr. No'ovao on an outpatient basis. During this time, plaintiff endured much pain and discomfort. Follow-up X-rays revealed a slow mending process in the break, so much so that upon her visit to see Dr. No'ovao on December 1988, he recommended to plaintiff the option of open surgery and internal fixation of a plate and screws to bind the break. Plaintiff declined and did not return for her next appointment. However, in the following month of March, 1989, plaintiff did undergo the operation suggested by Dr. No'ovao in Hawaii. Plaintiff was seen very recently Dr. No'ovao regarding complaints with her knees; at the same time he had occasion to examine her arm. Dr. No'ovao testified that the arm had healed perfectly.

Plaintiffs proof of damages essentially related to pain and suffering and lost wages. For lost wages, plaintiff testified that for more than a year prior to the accident, she had been employed by Star-Kist as fish cleaner earning an average weekly wage of $95.00. She further claims that she has not been able to work since returning fromHawaii.

In assessing pain and suffering, we consider that period of time between Dr. No'ovao's recommendation for open surgery and the date actual surgery in Hawaii as a period of healing delay attributable to plaintiff. Internal fixation of a broken bone is an operation available at the L.B.J. Tropical Medical Center, and Dr. No'ovao himself has performed many such operations. We further note plaintiff’s reluctance [15ASR2d79] for medical follow-up on her operation after returning to the territory. She testified that she last saw her doctor inHawaii at the end of June, 1989, and she acknowledged that he had advised physiotherapy. Although plaintiff returned to the territory some time in July, 1989, she has not seen a doctor on her arm nor sought guidance on physiotherapy requirements. Her claims to continuing pain to date do not impress.

With regard to loss in earnings we first reject counsel's suggestion of permanent disability. In Dr. No'ovao's opinion, plaintiffs arm had healed completely and that it was not her arm that prevented her from resuming work but a severe case of osteoarthritic knees. (Plaintiffs difficulty with ambulation were obvious to the Court when going to and from the witness stand. Furthermore we could not but notice plaintiffs obese condition which must certainly intensify her arthritic difficulties.)  It seems that plaintiff, after returning to the territory, had simply resigned herself as being unfit to work again. Since returning fromHawaii, she has not sought the benefit of a medical opinion, nor had she considered the possibility of less strenuous work. Although she vaguely complained about her arm as not being able to pull weeds with the same effectiveness, she candidly admitted that her legs affected her ability to find work.

On the foregoing, and bearing in mind the plaintiffs duty to mitigate damages, we fix total damages in the sum of $10,000.00.

It is so Ordered.

*********

1. A.S.C.A. § 22.2018 provides a right of direct action against the insurer.

Talili v. Satele,


TU'ULIMA TALILI, Plaintiff

v.

FAGA WILLIAMS and SATELE UOKA MOMOSEA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 6-89

April 19, 1990

__________

Notwithstanding the pre-eminent role of the matai in Samoan family land decisions, some situations arise in which the matai's power is subject to traditional limitations in favor of other family members, and on some of these occasions these limitations are enforceable in judicial proceedings.

Judicial enforcement of traditional limitations on a matai's power over family land decisions is particularly appropriate when a matai begins an ambitious program of reallocation of family land to members of his own branch of a family at the expense of more distant relatives.

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

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendants, Afoa L.S. Lutu

On Motion for Preliminary Injunction:

Plaintiff Tu'ulima Talili is a member of the Satele family. For many years he and certain of his immediate relatives have been occupying a portion of Satele land called Tomea or To'omea. Other portions of Tomea have long been occupied by the Pili branch of the Satele family, to which belongs the present holder of the Satele title, Satele Momosea. The Pilis and the Talilis have been quarreling over Tomea for many years. See, e.g., Satele v. Faga, 2 A.S.R. 26 (1938); Satele Mosegi v. Momosea, L.T. 1544-1975; Momosea v. Talili, L.T. 29-77; Talili v. Foma'i, L.T. 72-79; Momosea Satele v. Talili, L. T. 19- 84; and Talili v. Satele, 4 A.S.R. 23 (1987). [15ASR2d6]

The most recent of these disputes arose from a decision by Satele Momosea to build a house for his sister on land that had long been occupied by the Talilis. The Court reaffirmed its earlier decisions with respect to Tomea. First, we reminded the parties that "'the matai does not own the family lands for his own benefit,' but is 'a sort of trustee in whose name the family lands are held for the benefit of the family members.'" Talili v. Satele, supra, 4 A.S.R.2d at 24, quoting Satele v. Faga, supra, 2 A.S.R. at 27. We also reaffirmed the presumptive right of all family members to remain on those portions of family land currently occupied by them provided that they render service to the sa'o and otherwise behave responsibly. We noted, however, that the right of a family member to occupy a particular piece of family land is not absolute; the sa'o "can reallocate the land within the family provided that he provides the displaced family members with some other equivalent land." Talili v. Satele, supra, 4 A.S.R.2d at 27 (emphasis added); see Ifopo v. Vaiao, 2 A.S.R. 472 (1949); Tiumalo v. Lio, 3 A.S.R. 176 (1955). We therefore ruled that Satele could build a home on land occupied by the Talilis provided that he did so only after full consultation with the Talilis and other family members affected by the transaction, and further provided that the Talilis should be compensated by the assignment of equivalent family land in place of that taken for the house. Talili v. Satele, supra, 4 A.S.R.2d at 28.

The Court was later informed by counsel for both parties that the consultation ordered in the 1987 Talili case had taken place and that the Talilis had withdrawn their objection to the building of the house. In exchange, Satele Momosea had pointed out to the Talilis the part of Tomea that would theretofore be occupied by them. From the information communicated to the Court by counsel in the 1987 case and from the testimony at the hearing on the present motion, it does not appear that the Talilis were given any additional land to replace that taken by Satele's sister's house. Their acceptance of this arrangement was presumably motivated by some combination of deference to Satele and expectation that their situation within the family would thereafter be more secure.

This expectation appears to have been unjustified. The present case arose in early 1989 when Satele Momosea once again authorized the building of a house for one of his own immediate relatives (Faga Williams is a member of the Pili clan and a first cousin of Momosea) on a part of Tomea occupied by Talili plantations. It is clear, moreover , that the proposed house site is within the very land whose assignment to [15ASR2d7] the Talilis was reiterated as part of the settlement that concluded the 1987 lawsuit.

The facts and the law pertaining to the current dispute appear virtually indistinguishable from those that generated the Court's 1987 decision in Talili v. Satele. Indeed, it is difficult to characterize the assignment to Faga otherwise than as an attempt to avoid and undo the 1987 decision and the ensuing agreement among the parties. It therefore appears that plaintiff Talili has an extremely high probability of prevailing on the merits at trial.(1)

Counsel for Satele makes two principal arguments: First, that the power of a sa'o over family land is virtually absolute, and that the many High Court precedents enforcing limits on such power are contrary and injurious to Samoan custom. Second, that any requirement that a family member whose assigned land is taken by the sa'o for family purposes must be compensated by an assignment of equivalent land, assuming arguendo that it was consistent with Samoan tradition, is nevertheless inconsistent with modern conditions in which an expanding population must occupy an unexpanding amount of land.(2) [15ASR2d8]

The short answer to the first contention is that the body of law to which counsel now objects has been elaborated in dozens of reported High Court opinions, including several Appellate Division opinions, spanning eighty years. See, e.g., Mailo v. Fanene, 1 A.S.R. 191 (1907); American Samoa v. Jose, 2 A.S.R. 638, 640 (1939) ("[U]nder the Samoan custom. ...the plantation and the fruits thereof are the property of the man putting in the plantation subject to the duty of service to the matai."); Malaea v. Fiapapalagi, 2 A.S.R. 651 (1951); Vaotuua Family v. Puletele, 3 A.S.R. 145 (1955); Tago v. Faleulu, 3 A.S.R. 370 (1958); Tali v. Tupeona, 4 A.S.R. 199 (1961); Leapaga v. Masalosalo, 4 A.S.R. 868 (1962); Ifopo v. Vaiao, supra; Tiumalo v. Lio, supra; Satele v. Faga, supra; Talili v. Satele, supra. Notwithstanding the pre-eminent role of the matai in Samoan family land decisions, it was the considered judgment of the Court in all these cases that some situations do arise in which the matai's power is subject to traditional limitations in favor of other family members, and that on some occasions these limitations are enforceable in judicial proceedings.

Perhaps the most obvious occasion for such enforcement is when a matai, perhaps newly selected by the Court itself, begins an ambitious program of reallocation of family land to members of his own branch of the family at the expense of more distant relatives. Indeed, before he acquired the Satele title Momosea himself sought and received judicial protection against such an attempted reallocation of part of Tomea by the then incumbent Satele. Satele v. Momosea, LT No.1544-75. Even if it were not so late in the day to argue for an unconditional and unreviewable power of the sa'o to divest family members of the land they occupy, it would seem awkward for the present defendants to make such an argument with respect to Tomea. Moreover, this summary pre-trial proceeding is hardly the appropriate vehicle for such a dramatic reversal of settled law. [15ASR2d9]

The argument that overcrowding may necessitate a change in the law is more interesting. If it appeared that the assignment to Faga were even arguably explicable by reference to the absence of other suitable Satele family land, the Talilis would be hard pressed to insist on the full extent of their current holdings. On the contrary, however, the record affirmatively reflects that there is a suitable house site immediately behind the house belonging to Satele's sister which was the subject of the 1987 case. In light of this fact and of the history of the dispute over Tomea, this case seems a singularly inappropriate vehicle for a change in the general rule that a family member whose plantations are taken for family purposes must be assigned equivalent land in return.

It is the Court's fervent hope that this controversy will be amicably settled within the family---as it appeared to have been after the 1987 trial---rather than come to court again. Despite whatever discussions have taken place, there remain important areas in which the parties appear simply to misunderstand each other. For instance, Satele testified that the Talilis have been unwilling to render tautua to Satele. Plaintiff Talili, on the other hand, testified that he had attempted to render tautua but that it had been rejected by Satele. Relations within the family would undoubtedly be put on a stronger basis if it were made clear that the Talilis were willing to give, and Satele to accept, the full measure of traditional service owing from a branch of the family with substantial plantations on family land.

Finally, we note our concern for Faga Williams, who appears to have been innocently injected into a dispute that has been ongoing for a number of years. If Satele is sincere about finding a place on family land for Faga to build his house, some site can undoubtedly be located that will be less threatening than the present site to the peace and harmony of the family. If Satele nevertheless has his heart set on establishing Faga amidst the Talili plantations, we do not hold that he can never do so. We do hold that such a dramatic reallocation of family land could only be accomplished after strict observance of the traditional requirements of full consultation and fair compensation.

For the reasons stated, the preliminary injunction will issue. The defendants and those in concert with them are enjoined pending trial from any further construction on that part of Tomea occupied by the plantations of plaintiff Talili and his immediate relatives and from any further destruction of or interference with such plantations. Trial on the merits will be scheduled upon motion of any party at any time after the [15ASR2d10] passage of ninety days, during which time the parties are urged to engage in further discussions in an effort to resolve the case amicably and to restore harmony within the Satele family.

It is so Ordered.

*********

1. A.S.C.A. § 43.1301(j) provides that a preliminary injunction can be issued only when the Court finds a substantial likelihood that the applicant will prevail on the merits and that great or irreparable injury will occur before trial if a preliminary injunction does not issue. The completion of Faga's house on family land currently occupied by Talili would be likely to cause great or irreparable harm of the same sort we found in granting a preliminary injunction in 1986 pending trial of the case involving Satele's sister's house. See Talili v. Salele, 3 A.S.R.2d 36 (1986). Precisely because a family member living on family land does not individually own the land he occupies, his future enjoyment of the land---indeed, his whole life within the extended family---can be profoundly affected by events for which the law might afford a complete remedy to a fee simple owner. To allow the construction to go forward pending trial would put plaintiff in the untenable intra-family situation of having to insist that another family member's house be torn down. Since it would be most difficult for a Samoan family member to insist on such a thing, plaintiff's position after trial would be considerably worse than his current position, in which he merely objects to construction that has not taken place. See Id. at 37-38. Insofar as a party in Talili's situation is substantially likely to prevail at trial on the merits, therefore, a preliminary injunction is necessary to prevent the probable judgment in his favor from being practically unenforceable.

2. Defendants Satele and Williams also contend that plaintiff Talili, through his brother Mene at a meeting in October, apologized for having taken this matter to court and agreed that Faga's house could be built on the proposed site. Faga says he then began preparing to build the house and was surprised when Talili made the present motion for a preliminary injunction. Defendants argue that by acquiescing in the proposed construction for over three months (October 1989 to January 1990) plaintiff induced detrimental reliance [15ASR2d8] and lost whatever right he might have had to object to construction. Plaintiff denies ever having acquiesced in the proposed construction; he says the only apology he made in October was for being late to the meeting. This version of events is far more consistent than defendants' version with the remainder of the record before us. The certificate of irreconcilable dispute from the Office of Samoan Affairs reflects that on two occasions---once on August 8, 1989, and again on November 7, 1989---plaintiff and defendant were unable to reconcile their differences and agreed to submit the matter for judicial resolution. So if defendants ever understood plaintiff to have acquiesced, they should have been disabused of that notion by November 7 at the latest. The record further reflects that defendant Williams did not actually begin construction until the end of and lost whatever right he might have had to object to construction. Plaintiff denies ever having acquiesced in the proposed construction; he says the only apology he made in October was for being late to the meeting.

United Airlines, Inc. v. Pritchard,


UNITED AIRLINES, Inc., Plaintiff

v.

RON E. PRITCHARD, JR., Defendant

High Court of American Samoa
Trial Division

PJ No. 2-88

May 25, 1990

__________

Funds that are in the judgment debtor's possession, freely available for his personal expenses and actually used by him for such expenses, are similarly available for garnishment and the satisfaction of his debts.

A judgment creditor's rights do not depend upon whether the debtor has obtained money by earning it or because it was lent or given to him.

Garnishment may not be evaded by placing in the debtor's hands possession and control of a fund freely available to him but not to his creditors.

Before REES, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Charles v. Ala'ilima

  For Defendant, Togiola T .A. Tulafono

This proceeding concerns the ownership of funds seized pursuant to a writ of garnishment. Plaintiff United Airlines registered a foreign money judgment against defendant Ron E. Pritchard Jr., and garnished the rental payments owed by tenants in theRonaldE.PritchardBuilding.

Plaintiff takes the position that the building, and accordingly the rental payments, belong to defendant Pritchard, the judgment debtor. At the outset of this proceeding Mr. Pritchard himself took the position that the building belonged to the estate of his late father. The estate was later closed and all its assets distributed to Mary Pritchard, widow of decedent Ronald E. Pritchard and mother of the defendant, Ron E. Pritchard Jr. Mary Pritchard then intervened in this proceeding to assert her ownership of the rental proceeds. [15ASR2d57]

We find the facts to be as follows:

1) In 1949 Ronald E. Pritchard entered into a land lease with Lutu Simaile, sa'o of the Lutu family of Fagatogo. Mr. Pritchard (hereinafter "Ronald Sr.") then constructed theRonaldE.PritchardBuilding on the land. The lease agreement gave the lessee the right to remove any buildings on the leased land at the conclusion of its original fifteen-year term or of any renewal. It also gave the lessee (Ronald Sr.) an option to renew for an additional fifteen years.

2) The parties to the 1949 lease entered into a new fifteen-year lease in December of 1951. This agreement was identical to the 1949 lease in all respects relevant to the present proceeding. Its original term extended until December 31, 1966.

3) The parties agree that the land lease was renewed, presumably at some time during the 1960s. We have no evidence of the circumstances of such renewal. Plaintiff maintains that the renewal was of the original 1949 lease and therefore expired in 1979; defendant (Ronald Jr.) and intervenor (Mary Pritchard) assert that the renewed term did not expire until 1981.

5) Ronald Sr. died in 1968. His will was admitted to probate in 1977. Mary Pritchard was the administratrix and also the sole legatee. In re Estate of Pritchard, PR No. 18-77.

6) In 1982 there was another lease, this one signed by Lutu Teneri Fuimaono for the Lutu family and by "Ronald E. Pritchard" as "Lessee." The "Ronald E. Pritchard" who negotiated and signed this agreement was Ronald Jr., the present defendant.

7) At the hearing on the present motion, Ronald Jr. testified that he negotiated and signed the 1982 lease not in his own capacity but as agent for Mary Pritchard, administratrix of the estate of Ronald Sr.

8) The 1982 lease document was prepared by the attorney representing lessor Lutu. On page 5 of this document the notarized signature of Ronald Jr. and the typed identification of the lessee (immediately below the signature line) both read "Ronald E. Pritchard." The notary's certificate following the signature line refers to "Ronald E. Pritchard, Jr., Lessee." The attorney who prepared the document testified in the present proceeding. The gist of his testimony was that he could not recall any discussion or deliberation as to the precise identity [15ASR2d58]of the lessee. The implication is that Ronald Jr. was inadvertently named as lessee because his name was virtually identical to that of the former lessee and/or because he was the person with whom Lutu was negotiating in 1982.

9) A 1982 lease of office space in the PritchardBuildingto South Pacific Traders, Inc., names "R.E. Pritchard" as lessor. Ronald Jr. signed the document as "R.E. Pritchard.” We have no evidence of who is designated as lessor on any other such agreements.

10) At least since 1985 there have been only three tenants in thePritchardBuilding: South Pacific Traders, Island Printing Co., and a law firm now known as Ward & Associates.

11) All three tenants were issued writs of garnishment in the present proceeding. The writs required, inter alia, that the garnishees hold and secure any funds in their possession that were owed to "Ron E. Pritchard." As a result of these writs and of further communications between the garnishees and counsel for plaintiff, garnishee Ward & Associates began depositing its rent checks with the Clerk of the High Court pending the outcome of the present proceeding. Garnishee South Pacific Traders began holding the money it would otherwise have paid in rent on its space in thePritchardBuilding.

12) Mary Pritchard then intervened in her capacity as administratrix of the Estate of Ronald E. Pritchard (Ronald Senior). As it happened, the Court had previously ordered counsel for Mrs. Pritchard to file an interim accounting of the status of the Estate and to take immediate steps toward final distribution. This previous order had arisen out of a routine review of old Court files and had nothing to do with the present proceeding. See Order, PR No.18-77, issued November 14, 1988.

13) At the hearing on the Estate's motion to intervene in the present proceeding, the Court suggested that the accounting already ordered in the probate case ---with particular reference to receipts and disbursements of rental proceeds from the Pritchard Building during the eleven years the Estate had been in existence ---would be essential to a determination of the rights of the Estate as against the creditors of Ronald Jr. The Court suggested that such an accounting would show whether the administratrix and other interested parties, prior to the assertion of the creditor's interest, had treated these funds as though they were property of the Estate or of Ronald Jr. [15ASR2d59]

14) The administratrix subsequently declined to file an accounting of the disposition of rental proceeds received during the pendency of the Estate. Because the administratrix, Mary Pritchard, was also the sole beneficiary, and because there were no creditors of the Estate, the Court allowed the Estate to be closed and all its assets distributed to Mrs. Pritchard without insisting on an accounting of the rental proceeds.

15) The Court reiterated to counsel for the Estate, however, that if the administratrix refused to present any evidence with regard to prior treatment of the rental proceeds by herself and Ronald Jr., the Court would order that all such proceeds garnished during the pendency of the Estate be released to the judgment creditor. Counsel responded that the administratrix understood this and that she still did not wish to file an accounting. The Court then ordered that the garnished funds be released to the judgment creditor .

16) Pursuant to the Court's order, $4800 was distributed to plaintiff by the Clerk of the High Court. This consisted entirely of money paid into the registry of the Court by garnishee Ward & Associates. An undisclosed amount, consisting of several months' rent from South Pacific Traders, was paid directly to counsel for plaintiff by garnishee South Pacific Traders. The third tenant, Island Printing Co., has not paid anything to plaintiff, apparently on the ground that its landlord is R. Pritchard Ground Services and that it therefore owes nothing to Ronald E. Pritchard Jr.

17) On June 5, 1989, counsel for the Estate filed a Proposed Decree of Final Distribution. The proposed order, contrary to the Court's previous order from the bench, appeared affirmatively to recognize the Estate as owner of thePritchardBuilding. The Court altered the proposed order by inserting the words "or a claim thereto," and by adding the handwritten notation:

The Court makes no judgment with regard to the validity of any controverted claim to any of the property listed in the distribution, but distributes to Mrs. Pritchard such interest as the Estate may have had.

Decree of Final Distribution, PR No.18-77, issued June 7, 1989. [15ASR2d60]

18) On June 28, 1989, Ronald Jr. delivered to the tenant/garnishees a "Notice to Tenants." It contained the erroneous statement that "at the conclusion of the Pritchard Estate probate, the PritchardBuildingwas distributed, together with all profits therefrom, to Mary Pritchard as her sole and exclusive property." (This is directly contrary to the Court's clear statement in the final decree that it was not adjudicating the rights of the Estate as against other claimants to the property, but only distributing to Mrs. Pritchard "such interest as the Estate may have had.") The notice also advised the tenants that "Mary Jewett Pritchard has appointed her son, RONALD E. PRITCHARD, Jr., her attorney-in-fact to handle all her business." It then directed tenants to make all future rent checks payable to Mary Pritchard and to send them to Ronald Jr.

19) After receiving this notice, garnishee South Pacific Traders stopped holding its rent checks and began sending them to Ronald Jr. as directed in the notice. Ward & Associates continued depositing its rent checks in the registry of the Court.

20) About a month later, counsel for Mrs. Pritchard (apparently in her capacity as an individual rather than as administratrix of the former Estate) filed a motion in the probate case, PR 18- 77. The motion requested that the Court dissolve all writs of garnishment in the present proceeding and release all garnished funds to Mrs. Pritchard. An accompanying affidavit of counsel stated that "Mary J. Pritchard was distributed ...the Pritchard building as her s[o]le and exclusive property from the R.E. Pritchard Estate."

21) At the hearing on Mary Pritchard's motion, the Court reiterated that the decree of final distribution had no bearing on the rights of the Estate or of Mrs. Pritchard as against third parties, but simply distributed to Mrs. Pritchard whatever interest the Estate had. The Court suggested that if Mrs. Pritchard now wished to assert her right to the rental proceeds, she should move to substitute herself for the Estate in the garnishment proceeding.

22) Mrs. Pritchard then moved to intervene in the present proceeding. In a memorandum accompanying the motion, counsel asserted yet again that the Court had "distributed to Intervenor the building called Pritchard Building," and concluded that "Mrs. Pritchard is entitled to receive the rents as her personal property.” [15ASR2d61]

23) Counsel for plaintiff, judgment creditor United Airlines filed an answer to the complaint in intervention. The answer alleges that intervenor Mary Pritchard "expressly or impliedly assigned or gifted" her interest in the building to Ronald Jr. when he signed the 1982 lease on his own behalf. In the alternative, the answer alleges that the Estate lost its claim to the building by neglecting to renew the lease or remove the building within a reasonable time after expiration; and that Ronald Jr. then acquired the building by negotiating a new lease with Lutu.

24) Mary Pritchard's motion to intervene was granted. The Court subsequently held a hearing on the issues raised by the complaint in intervention. Mary Pritchard herself did not testify at the hearing. Ronald Pritchard Jr. did testify as a witness for Mrs. Pritchard. He presented the following evidence with respect to the way he and his mother had handled past rental proceeds:

a) Between 1985 and the onset of the present proceeding, each of the three tenants wrote its rent checks to a different payee. South Pacific Traders paid $1500 per month to Ronald E. Pritchard. Island Printing Co. paid $1600 per month ($1200 during part of 1985) to "R. Pritchard Ground Services," an entity controlled by Ronald Jr. The law firm has paid $400 per month ($300 during 1985) to "R.E. Pritchard Estate."

b) The tenants' rent checks were given to Ronald Jr. or delivered to the offices of Pritchard Travel Services, another entity then controlled by Ronald Jr.

c) All checks, regardless of the designated payee, appear to have been deposited into one of two bank accounts: until mid-1987 an account at the Amerika Samoa Bank labeled the "R.E. Pritchard Building Account" and since then an account at the Bank of Hawaii in the name of "R.E. Pritchard Building Estate."

d) All transactions into and out of these bank accounts were handled by Ronald Jr. or by his former wife. Ronald Jr. testified that he was acting at all times for his mother in her capacity as administratrix [15ASR2d62] of the Estate. He testified that withdrawals from the accounts were made for three purposes: repairs and maintenance on thePritchardBuilding; "family expenses," principally having to do with Samoan traditional obligations; and unspecified expenditures by Ronald Jr. himself. All withdrawals in this last category, according to Ronald Jr., were regarded by himself and by his mother as loans.

25) The Court requested counsel for Mary Pritchard to provide copies of all records of the two building bank accounts. The record was held open after the hearing pending receipt of such records. Counsel has provided the Court with records of deposits into the account, but not with records (e.g., cancelled checks) pertaining to the amount, nature, and recipient of withdrawals from the account. We are therefore unable to determine the extent to which the account was used for building and family expenses and the extent to which it was used for personal expenses of Ronald Jr.

26) The only information we do have about withdrawals consists of two bank statements from December 1986 and June 1987. Assuming that all rent checks were deposited into the accounts during the seven months spanned by the two statements, we calculate that about $46,000 was withdrawn during these seven months. That most or all of this money was consumed by building maintenance or traditional family expenses is conceivable but not likely. Intervenor presented no evidence of such expenses during this or any other period.

27) Because the intervenor failed to produce evidence that was within her exclusive possession with respect to the amount and purpose of expenditures, and because it is clear from the little evidence we do have that substantial amounts were withdrawn, we conclude that Ronald Jr. did withdraw substantial amounts for his own personal use.

28) The evidence reflects that Mary Pritchard knew of Ronald Jr.'s personal expenditures from the building accounts and did not disapprove of them. We have no reason to disbelieve his testimony that both he and his mother regarded them as loans. There is no evidence, however, that any accounting has been required or given with respect to the precise amount or purpose of such loans.

29) Since July of 1989 at least one tenant has begun designating Mary Pritchard as the payee on its rent checks. The checks are then [15ASR2d63]delivered into the possession of Ron Jr., as was done with rent checks made out to various payees during the pendency of the Estate. Neither the testimony of Ronald Jr. nor any other evidence presented by counsel for Mary Pritchard suggests any other changes in the manner in which rental proceeds have been handled. We therefore presume that there have been no such changes: that Ronald Jr. deposits the checks into a bank account which is under his own control; that withdrawals from this account are for building expenses, traditional family obligations, and personal expenses of Ronald Jr.; and that Ronald Jr. and his mother both regard his withdrawals for personal expenses as loans.

On these facts we conclude intervenor Mary Pritchard rather than her son Ronald Jr. is the owner of the Pritchard Building. We also conclude, however, that the intervenor has allowed Ronald Jr. unlimited personal access to the rental proceeds and that they are therefore subject to garnishment by his judgment creditor .

The evidence does not sustain plaintiffs contention that Mary Pritchard gave the building to Ronald Jr. by allowing him to sign the 1982 lease in his own name. There is no evidence that Mary Pritchard ever saw the lease or knew that Ronald Jr. was designated as the lessor.

Nor can we accept plaintiffs alternative argument: that the Lutu family acquired the building when the Estate did not remove it within a reasonable time after the expiration of the original lease, and that Ronald Jr. acquired it from the Lutu family by signing the 1982 lease. In the first place, it appears that the 1951 lease was renewed and did not expire until December 31, 1981. Negotiations between Lutu and Ronald Jr. began even before this date, and the new lease was signed soon thereafter. Moreover, the testimony of Lutu's attorney is far more consistent with the Pritchards' version of the 1982 events than with the complicated series of transfers suggested by plaintiff. Finally, we note that the law firm retained by Ronald Jr. in the 1982 lease negotiations, which was also a tenant in the Pritchard building, continued to make its rent checks out to the Estate rather than to Ronald Jr. Nobody believed at the time that ownership of the building was being transferred from the Estate to Ronald Jr. Rather, all parties including Lutu and his attorney apparently felt that the building belonged to "the Pritchards" and that Ronald Jr. was the Pritchard with whom one dealt on such matters.

It does not follow, however, that the plaintiff cannot garnish the rents. Had these funds not been garnished, they would have been put into the possession of Ronald Jr. and thence into an account which he [15ASR2d64] controlled and to which he had apparently unlimited access to satisfy his personal needs and wants. Funds that are in the judgment debtor's possession, freely available for his personal expenses and actually used by him for such expenses, are similarly available for the satisfaction of his debts.

The situation would be quite different if the evidence showed that Ronald Jr. was a fiduciary whose personal expenditures had been unauthorized by his principal, or even that the principal had imposed important limitations on the purpose or amount of such expenditures. In the absence of any evidence that Mary Pritchard has ever placed any such restrictions or limitations on Ronald Jr.'s personal use of the funds, however, she cannot be heard to interpose her rights in order to deny his creditors the very access he has been permitted. See Landrigan v. Opelle, 5 A.S.R.2d 155 (1987). Nor does it make any difference that amounts expended by Ronald Jr. for his own personal use may have been regarded as loans which he would eventually have to repay. A judgment creditor's rights do not depend upon whether the debtor has obtained money by earning it or because his mother gave or rent it to him.

This is not to say that the intervenor cannot re-order her affairs so as to insulate the rental proceeds from her son's creditors. She can do so by taking personal control of such proceeds, by designating another agent to control them for her, or by imposing such limitations on her son's use of them as to make them clearly distinguishable from his own personal funds. She can even do this and then give or lend her son some of the money. It will be subject to the claims of his creditors as soon as it is within his control and available for his personal use, but not before.

The only thing the intervenor cannot do is to place in her son's possession and control a fund that will be freely available to him but not to his creditors. The evidence reflects that this has been the arrangement with thePritchardBuilding rentals, both before and after the closing of the Estate and the July 1989 "Notice to Tenants."

Accordingly, we hold that all PritchardBuildingrentals accruing after service of the writs of garnishment should have been held and secured in accordance with the writs, and we order that all such sums be released to the judgment creditor. This order will stand until the judgment debt is satisfied or until the intervenor shows that the order is no longer appropriate. [15ASR2d65]

We are not now presented with the question of what action, if any, should be taken with respect to the failure of garnishees Island Printing Co. and South Pacific Traders to hold and secure all rental payments.

The relief sought by the complaint in intervention is denied.

*********

M/V Sans End; United Airlines Employee Credit Union v.


UNITED AIR LINES EMPLOYEES' CREDIT UNION, Plaintiff

v.

THE M\V SANS END, its cargo, freight, equipment,
engines, mast, sails, tackle, furniture,
and all other necessaries appertaining
thereto, and HARRY M. BAARS, Defendants

WILLIAM RIZZO, Plaintiff-Intervenor

High Court of American Samoa
Trial Division

CA No. 17-89

June 4, 1990

__________

For the purpose of foreclosing a ship's preferred mortgage lien, the High Court is considered a "district court" and thus has jurisdiction to enforce such a lien. 46 U.S.C. §§ 31301(2)(E), 31325-26.

Upon judicial sale in a civil action in rem brought to enforce a preferred mortgage lien, the preferred mortgage lien has priority over all claims against the proceeds, except for (1) expenses and fees allowed by the court, (2) costs imposed by the court, and (3) preferred maritime liens, which include those for damages arising out of maritime tort. 46 U.S.C. §§ 31325, 31301(5)(B).

Admiralty jurisdiction only exists over torts occurring in navigable waters and having a sufficient "maritime flavor," which is determined by reference to the parties, the sorts of vessels or other objects involved, the nature and cause of the injury, and the implications for traditional concepts of admiralty law.

Doctrines of last clear chance and intervening negligence are supplanted by comparative fault principles, whereby liability for damage is to be allocated among the parties proportionately to the comparative degree of their fault.

Claims for costs incurred in securing vessel while it was in custodia legis prior to judicial sale are recoverable from the proceeds of the sale and have priority over the claims of the litigants. 46 U.S.C. § 31326.

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

Counsel: For Plaintiff, John L. Ward II

  For Intervenor Rizzo, Charles V. Ala'ilima [15ASR2d96]

This case concerns distribution of the proceeds of the judicial lien of a sailing yacht. Plaintiff Credit Union was the holder of the preferred ship's mortgage whose foreclosure led to the sale. Intervenor Rizzo is the owner of another sailing yacht which was damaged after becoming entangled, both in law and in fact, with the defendant vessel. The principle dispute between the parties concerns the extent to which the doctrines of "intervening negligence" and "last clear chance" in maritime tort actions should be held to have survived the United States Supreme Court's decision in United States v. Reliable Transfer Co., 421 U .S. 397 ( 1975).

I. Facts and Procedural History

The M/V Sans End, defendant in rem, is a 48-foot wooden trimaran built in 1969. It appears to have been purchased in 1985 by defendant in personam Harry Baars, then a resident of Huntington Beach, California, with the assistance of a $30,000 loan from the plaintiff Credit Union. In 1987 Baars executed a First Preferred Ship Mortgage to secure the balance on the loan, which had increased to about $32,000 due to late payments and refinancing.

Baars promptly fell even further behind on his payments. Apparently seeking a definitive and peaceful resolution of this problem, he then set sail for Hawaii, where, however, the Credit Union soon tracked him down. Baars then made a number of payments; but the balance still hovered around $30,000, and the payments stopped altogether in October of 1988. About two months later Baars and the Sans End turned up in Pago Pago.

The Credit Union somehow managed yet again to find Baars. It retained counsel in American Samoa who instituted the present action, seeking foreclosure of the Preferred Ship Mortgage as well as judgment in personam against Baars for $30,388.69 plus interest, costs, and attorney fees. On March 1, 1989, the Marshal of the High Court served Baars personally with a summons and complaint and also arrested the Sans End.

In the meantime, however, Baars and the Sans End had become Involved with intervenor Rizzo and his vessel, the Curved Air.

Upon arriving in Pago Pago Harbor, Baars had moored the Sans End in a location regarded as dangerous by the local yacht community. [15ASR2d97] Baars was warned by occupants of neighboring vessels that boats moored in this area have a tendency to "drag anchor" in high winds. He nevertheless left the Sans End in this location for an indeterminate period, probably several weeks. On or about January 31, 1989, the vessel did drag anchor and collided with the Curved Air. It is undisputed that this collision resulted solely from the negligence of the Sans End's captain Baars in improperly mooring his vessel. The Curved Air, a 46-foot trimaran of wood and fiberglass construction, suffered chafing and cracking on its starboard float. The anchor lines of the two vessels also became entangled.

In an effort to prevent further damage, Baars lashed his vessel to the Curved Air. He then went to find Rizzo to tell him what had happened and to ask permission to keep the Sans End lashed to the Curved Air until he could untangle the anchor lines. Rizzo gave him one day to do this. Baars, however, did not remove his vessel until about seven days later, after a further incident in which the wind propelled the Curved Air and the Sans End together across the harbor. The boats did not collide with anything this time, but Rizzo complains that his vessel suffered further chafing during the time it was lashed to the Sans End. This he attributes to Baars' incompetent lashing. Another yachtsman, whose deposition was admitted into evidence, agreed that the boats were not tied tightly enough together and also that "[t]he lines were everywhere. I mean there were lines lying over the water, lying everywhere, screwing all over the boat."

On or about February 7, Baars finally untied the two boats. Rizzo, who was then living and working onshore, went out that evening to inspect the Curved Air. He did not board the vessel but took a quick look around, inspected the coupling by which the Curved Air was attached to her mooring, and saw nothing amiss.

One afternoon a few days or weeks later, the occupants of nearby yachts observed the Curved Air in the process of sinking. Some of these observers went to the boat and others went onshore to find Mr. Rizzo, who soon arrived to oversee the effort to raise the vessel. He, and others, bailed with buckets until someone arrived with a power-driven suction pump. One of those present dived overboard to inspect the bottom of the boat; he discovered that the rudder had come off, leaving a one-and-one-half inch hole through which water had been allowed to enter. The hole was plugged and the Curved Air was raised, but its interior, equipment, and contents suffered substantial water damage. [15ASR2d98]

It is far from clear how the rudder came off. It has not been found. (The water in this part of Pago Pago Harbor affords practically no visibility.) Mr. Rizzo, a boat builder by trade, testified that the rudder and its accompanying shaft were designed not to detach unless the upper housing inside the boat were first removed. He also testified, however, that another one of the people helping him to raise the Curved Air had discovered a loose springline dangling in the water from a starboard cleat. Mr. Rizzo said he did not recognize the line, that it did not belong to him, and that he would never have left a line dangling in the water. He inferred that Mr. Baars must have left the line dangling when he untied the Sans End; that it must have snagged the rudder, and also some other object such as the reef below; and that the line pulled the rudder loose.

The Court has not heard Mr. Baars's version of the story. He never answered the complaint or filed any sort of appearance for himself or the Sans End. He was thought to have left the Territory by the time of trial. The Credit Union took a default judgment against Mr. Baars in the amount of $32,706.35 plus costs and attorney fees; probably it will find him again someday.

Sans End was sold at a judicial auction. The Court originally set a $30,000 reserve bid and ordered that the auction be advertised not only in American Samoabut also in Honolulu, in order to ensure a fair price and minimize the amount of any deficiency judgment against Mr. Baars. Ultimately, however, the vessel brought only $17,000. This sum has been held in the registry of the Court pending the trial of intervenor's claim that he was injured by a maritime tort of the Sans End, is entitled to recover from the proceeds of the sale, and has priority over the Credit Union.

Counsel for plaintiff Credit Union, forced by the procedural posture of the case into the awkward position of defending the hapless Baars, does not propose an alternative theory of what happened to the rudder. Rather, he confines himself (1) to doubting Rizzo's springline hypothesis; and (2) to arguing that, no matter how the rudder came loose, the proximate cause of the water damage was Rizzo's own negligence in not conducting a thorough inspection of the Curved Air after it had been untied from the Sans End.

We find that the detachment of the rudder did result in some way from the lengthy encounter between the Sans End and the Curved Air. Mr. Rizzo proved to our satisfaction that the rudder assembly was [15ASR2d99] designed and constructed so as not to fall off by itself. There being no particular reason to suspect sabotage, the least unlikely culprit would seem to be one of the many lines hanging beneath the water at various times between January 31 and mid-February---not only the mysterious springline, but also the entangled mooring lines of both vessels as well as the lines that had been "screwing allover the boat" for a week or so. The rudder may have been caught on one or both of the anchor lines during the time they were entangled; one of these lines may have snagged the rudder as the two boats were dragging anchor across the harbor a few days later. (These mooring lines were evidently strong enough, and the forces at work powerful enough, to drag at least one and possibly two several-hundred-pound anchors allover the harbor bottom.) Or some other line, including but not limited to the springline accused by Mr. Rizzo, may have attached itself to the rudder and also to the reef at some time between January 31 and mid-to-late February. It is impossible to say just when, as the rudder assembly may have taken some time to work its way loose. The resulting leak was a slow one---we do not know exactly how slow, as no party presented evidence of whether it would have taken hours or days for water entering through a one-and-one-half inch hole to fill a 46-foot boat. The evidence in this case, such as it is, does not compel any particular conclusion, but it does preponderate in favor of a finding that the loosening of the Curved Air's rudder was caused at least partly by the series of stressful and traumatic events to which she had recently been subjected by the Sans End.

It is also clear, however, that Mr. Rizzo conducted only a cursory inspection of his vessel after the departure of Mr. Baars and the Sans End. He went to the boat only once, at or around dusk when visibility was poor. He did not inspect the starboard side of the boat, where the dangling springline turned out to be, at all. Except for this one visit he left the Curved Air absolutely unattended for an indeterminate period of days or weeks, although he knew of the stresses and traumas we have already discussed. This failure to inspect was almost certainly a cause-in-fact of the swamping. At the very least, a thorough inspection of the Curved Air at any time, after it was untangled from the Sans End would have revealed the presence of the dangling springline. If the rudder assembly had already been snagged and damaged or loosened (by the springline, by a mooring line during the dragging incident, or by some other object) this would also have been discoverable. Finally, the boat would not have filled up with water if it had been inspected, attended, or even visited at any time after the slow leak had begun. [15ASR2d100]

The relative "proximateness" of these two causes-in-fact of the swamping of the Curved Air, although technically a question of fact, is closely related to certain questions of law. We therefore postpone consideration of proximate cause, as well as the assessment of damages, until after discussion of these legal issues.

II. Jurisdiction and Applicable Law

Actions in the High Court of American Samoa to foreclose ship's mortgages were formerly fraught with confusion and uncertainty.(1) This uncertainty has been resolved by the enactment in 1988 of Public Law 10, 102 Stat. 4735 et seq., which repealed the Ship Mortgage Act and substituted Chapter 313 of Title 46 of the United States Code Commercial Instruments And Liens"). The High Court of American Samoa is specifically defined as a "district court" for the purpose of the chapter. 46 U.S.C. § 31301(2)(E), added by P.L. 100-710. The High Court therefore has jurisdiction to enforce a preferred mortgage lien. 46 U.S.C. §§ 31325-26, added by P.L. 100-710.

Upon judicial sale in a civil action in rem brought to enforce a preferred mortgage lien, the preferred mortgage lien has priority over all claims against the proceeds, except for (1) expenses and fees allowed by the (2) costs imposed by the court, and (3) preferred maritime liens, 46 U.S.C. § 31325, added by P.L. 100-710. Preferred maritime liens include, inter alia, those for damages arising out of maritime tort. 46 § 31301(5)(B). Intervenor Rizzo's claim therefore takes priority over that of the Credit Union, assuming that Rizzo's damages arose from a maritime tort attributable to the Sans End.

The plaintiff Credit Union concedes that the initial collision was a maritime tort. Plaintiff argues, however, that the swamping of the [15ASR2d101] Curved Air, insofar as it was caused by Baars' actions or omissions in tying or untying the boats, gave rise only to damages recoverable against Baars in personam and not out of the proceeds from the sale of the Sans End. This is tantamount to arguing that any negligence of Baars was not a maritime tort and was therefore outside the admiralty jurisdiction.

In Foremost Insurance Co. v. Richardson, 457 U .S. 668 (1982), the Supreme Court held that claims arising from an accident involving two pleasure boats was within the admiralty jurisdiction. The Court stated that not every such accident would support federal admiralty jurisdiction, but that such jurisdiction would be present when (1) the accident occurred in navigable waters, (2) the conduct alleged to have caused the accident was potentially disruptive of maritime commerce, and (3) the "potential hazard to maritime commerce arises out of activity [e.g., navigation] that bears a substantial relationship to traditional maritime activity, " and with respect to which there is a need for uniform rules and a central admiralty authority. Id., 457 U .S. at 675 & n.5. See also 46 U.S.C. § 740 (1982) (the "Extension of Admiralty Jurisdiction Act"), extending admiralty jurisdiction to "all cases of damage or injury caused by a vessel on navigable waters."

The rule of Foremost and of the Extension of Admiralty Jurisdiction Act has been summed up as encompassing "only those torts that occur on navigable waters and have a sufficient' maritime flavor." Complaint of Sheen, 709 F. Supp. 1123, 1129 (S.D. Fla. 1989). Courts have determined whether a tort had "maritime flavor" by reference to the parties, the sorts of vessels or other objects involved, the nature and cause of the injury, and the implications for traditional concepts of admiralty law. See id. at 1129 (citing Kelly v. Smith, 485 F.2d 520,525 (1973)).

In the present case all these factors militate in favor of the determination that this was a maritime tort. Mr. Rizzo's damages arose from the near-sinking of an ocean-going vessel, in a harbor which is not just a navigable waterway but one of the busiest and most important centers of commercial shipping within a radius of several thousand miles. The incident was alleged to have resulted from an act or acts of incompetent seamanship by the captain of another ocean-going vessel, done in the course of attempting to prevent further damage after a collision between the two vessels.(2) Even if these two vessels can be [15ASR2d102] characterized as "pleasure boats, " the implications for maritime commerce and the relationship of the activity ---lashing and unlashing two fifty-foot vessels that have collided in a busy harbor ---to traditional admiralty concerns are at least as pronounced as they were in the incident that gave rise to the Supreme Court's decision in Foremost. (3) We conclude that the negligence of Mr. Baars, acting as captain of the Sans End, was a maritime tort. Damages, if any, are recoverable in rem against the vessel as well as in personam against owner/captain/tortfeasor Baars.

The Sans End having been judicially sold, Mr. Rizzo has a preffered maritime lien against the proceeds for any damages attributable to the maritime tort. This lien is superior to that arising from the Credit Union's preferred mortgage. [15ASR2d103]

III. Comparative Negligence, Intervening Negligence, and Last Clear Chance

Plaintiff contends, however, that the damage that occurred during the swamping of the Curved Air was not caused by Mr. Baars at all ---not even if Baars did negligently leave the springline, and not even if it did pull the rudder from its housing. More precisely, plaintiff urges that even if such negligence was in fact a cause of the swamping, as a matter of law the only "proximate" cause was the later failure of Mr. Rizzo to inspect the Curved Air and to take remedial measures.

In support of this proposition plaintiff cites two cases in which boats were tortiously damaged, were later taken into the possession of their owners, and eventually sank after the owners failed to conduct such inspections or make such repairs as would have prevented them from sinking. In each case it was held that "[t]he proximate cause of the sinking. ..was not the collision but the intervening negligence of the owner in failing properly to tend his vessel." Danos v. The Henry Louis, 159 F. Supp. 640, 642 (E.D. La. 1958) (Wright, I.); see also Sinram v. Pennsylvania Ry. Co., 61 F.2d 767, 768 (2d Cir. 1932) (L. Hand, I.). Plaintiff contends that Rizzo's failure to inspect similarly "intervened" and thereby prevented Baars's earlier negligence from being a proximate cause of the sinking.

Before considering the present force and scope of the doctrine of "intervening negligence" in admiralty law, we note that the two cases cited are distinguishable on their facts from the present case. In Danos, as in Sinram, the owner took custody of the boat after the boat had been damaged by a calamitous event, and with full knowledge of that event. It is hardly "reasonable foreseeable," from the standpoint of the original tortfeasor, that an owner so apprised and so situated would not immediately conduct a thorough inspection and take all appropriate remedial measures. Moreover, such an owner is in a far better position to prevent any further damage than the original tortfeasor, who is probably no longer in a position to do anything for good or ill. Finally, in both Sinram and Danos the owner committed some affirmative act that contributed to the sinking: in Sinram the owner loaded the boat without inspecting it (see 61 F.2d at 768) and in Danos the vessel sank when "some caulking in the hull. ..required as a result of the collision, gave way." 159 F. Supp. at 642. Such facts afford good reasons to allocate sole responsibility to the owner for the sinking, without the need for any blanket rule or special doctrine about owners of damaged boats. [15ASR2d104]

The case before us affords no such reasons. At the time Baars untangled his boat from the Curved Air, leaving the latter in the constructive possession of Rizzo, the dangling springline had not yet caused any damage at all. Rizzo was unaware of the dangling springline until after the boat had already sunk, and had no particular reason to suspect its presence. (The owners in Sinram and Danos, in contrast, had actual knowledge of the prior tortious conduct that eventually sank their ships.) Baars, who evidently did know about this continuing threat to the safety of the Curved Air, continued to be in a position to do something about it ---if only to tell Rizzo ---even after he had unlashed the Sans End and moved a few hundred feet down the harbor. Moreover, Rizzo's inattentiveness was quite foreseeable to Baars, who knew or had reason to know that Rizzo rarely visited the Curved Air. Although these facts do not entirely absolve Rizzo from responsibility for the consequences of his inattentiveness, they do suggest that this inattentiveness should not absolve Baars from the consequences of his own negligence.(4)

Both the doctrine of intervening negligence, and that of last clear chance can be justified as special instances of the principle that an act or omission, although it was one of the causes of a certain result, may yet have borne such a trivial or attenuated relationship to the result that it would be unsound public policy to hold the actor liable. Such an act or omission, although a "cause in fact" of an event, is held not to be among the "proximate" causes. As special instances of general principles will do, however, these doctrines have sometimes threatened to exceed the limits of their logic. "Unconscious last clear chance," like the strong version of intervening negligence being asserted in this case, has the effect of absolving a party from the consequences of his negligence even when it was reasonably foreseeable that such negligence would combine with another person's later negligence to cause disastrous consequences; [15ASR2d105] and even when the two parties seem equally culpable and equally "connected" to the ultimate result.

It is generally agreed that the vitality of such doctrines as intervening negligence and last clear chance owe much to their utility as partial substitutes for the allocation of liability according to comparative fault. See Prosser & Keeton, supra, § 66 at 469-70. At common law they have been used to mitigate the harshness of the doctrine of contributory negligence, whereby a party who was greatly injured and slightly negligent might otherwise be unable to recover from a far more culpable party. In the law of admiralty these and other doctrines have been regarded as antidotes to the" divided damages rule," whereunder the damage caused by an accident was divided equally among all parties regardless of their degree of culpability. See Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069, 1075 (11th Cir. 1985); Prudential Lines, Inc. v. McAllister Brothers, Inc., 801 F.2d616, 620-21 (2d Cir. 1986); Note, Admiralty: Comparative Negligence in Collision Cases, 36 La. L. Rev. 288,295-96 (1975). (5)

The divided damages rule was abandoned by the United States Supreme Court in United States v. Reliable Transfer Co., 421 U.S. 397 (1975). The Court substituted a rule by which liability is to be apportioned among the parties according to their comparative degree of fault. Id. at 260-62. It was immediately suggested that the next step should be to "abrogate those rules which were developed to protect the slightly negligent party from bearing an inequitable share of the damages." Note, supra, 36 La. L. Rev. at 295. With respect to the rules of intervening negligence and last clear chance, the federal courts seem thus far to agree. As the Eleventh Circuit observed in Hercules, Inc. v. Stevens Shipping Co., supra: [15ASR2d106]

Under a 'proportional fault' system, no justification exists for applying the doctrines of intervening negligence and last clear chance. ... Unless it can truly be said that one party's negligence did not in any way contribute to the loss, complete apportionment between the negligent parties, based on their respective degrees of fault, is the proper method for calculating and awarding damages in maritime cases The doctrines of intervening negligence and last clear chance should not be used to circumvent this 'proportional fault' concept.

Id., 765 F.2dat 1075 (citations omitted). Accord, Prudential Lines, Inc. v. McAllister Brothers, Inc., supra, 801 F.2d at 21 (2d Cir. 1986) ("The disease of divided damages having been destroyed, the balm of last clear chance has become superfluous."); Complaint of Sheen, 709 F. Supp, 1123 (S.D. Fla. 1989).

This is not to say that the circumstantial distinctions represented hy the ideas of last clear chance and intervening negligence are no longer important. Rather, the proportional fault principle announced by Reliable comprehends these distinctions, making it unnecessary for them to be embodied in separate rules. Indeed, the proportional fault model accommodates a far wider range of situations than the divided-damages-cum-mitigating-doctrines model, despite having fewer moving parts. Last clear chance and intervening negligence made it possible to impose the whole burden on the more negligent party, which in many cases was more just than forcing the less negligent party to pay half the damages. The Reliable Transfer rule that "liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault" (421U.S. at 411) preserves both of these options and also provides for situations in which justice was represented by neither.

In the present case neither Baars nor Rizzo was more negligent than the other. Baars left a harmless-looking line hanging into the water from another person's boat. The possibility that it would catch on something and thereby damage the boat, while perhaps not a likely one, is nevertheless the very reason competent sailors do not leave ropes hanging off of boats. Baars should have foreseen this possibility and guarded against it. Similarly, Mr. Rizzo took a brief look at his boat and, seeing nothing wrong, postponed indefinitely any further inspection. The possibility that danger might be lurking just below the surface, [15ASR2d107] although hardly ever an actuarial probability, is the reason careful boat owners inspect their vessels more thoroughly than Mr. Rizzo did. Moreover, each man had reason to suspect that the other would behave more or less as he did: Mr. Rizzo knew from painful experience that vessels coming into contact with Mr. Baars tended to emerge in less than ship shape, and Mr. Baars knew or should have known that Mr. Rizzo had not been paying much attention to his boat lately. Neither was grossly negligent, but each was clearly negligent. We assess the proportional fault of each at fifty per cent.(6)

IV. Damages

The Curved Air was damaged twice: first by the collision, for which Mr. Baars and the Sans End are solely responsible and for which Mr. Rizzo may recover one hundred per cent of his damages; and later by the swamping, for which Mr. Rizzo himself was fifty per cent responsible and for which he may therefore recover only fifty per cent of his damages.

In his initial report a week after the collision, Mr. Rizzo estimated his damages (cracking and chafing of the starboard float, including some damage alleged to have been caused by improper lashing after the collision) at $700. By the time of trial he had revised this estimate to $1000. Although the sole basis for each of these figures was Mr. Rizzo's estimate of the value of his own labor, plaintiff concedes that this damage amounted to between $500 and $1000. We assess damages from the collision, together with any minor damage to the same part of the boat caused by improper lashing, at $700. [15ASR2d108]

The evidence presented with respect to damage caused by the swamping is more complex without being much more precise. In his amended complaint Mr. Rizzo estimated his total damage (excluding a $10,000 claim for "emotional distress," but including his claim for damage caused by the initial collision) at $15,000. He has revised this estimate to include $ 8751 for damaged equipment, exclusive of his estimate of what it will cost to install such equipment; $13,468 for labor, including installation of equipment; and $2300 for damaged books, charts, and clothing. The new total is $ 24,520, exclusive of emotional distress and of his $1000 claim for damage caused by the initial collision.

These estimates are fraught with difficulties. Mr. Rizzo has estimated the damage to his equipment at its purchase price when new; the items for which receipts were available, however, were purchased between four and six years prior to the accident. Because such equipment depreciates in value over time, the estimates appear to be far greater than the diminution in value of the used equipment resulting from the accident ---even on the unlikely assumption that every damaged piece of equipment was thereby rendered useless and valueless. The $1000 worth of clothes, according to the undisputed account of plaintiff’s counsel, turned out to consist of "one suit of clothes and a small box of soiled clothing. ..with the statement that the rest had been returned to the States for cleaning." The $1300 worth of books and charts filled another box. The largest single category of damages, $ 13,468 for repairs and installation, appears to consist entirely or almost entirely of the value of Mr. Rizzo's own labor, and the sole evidence for this figure was Mr. Rizzo's own testimony. Although Mr. Rizzo was clearly damaged by the accident, and although his damages were clearly far more than zero, the evidence presented is not conducive to a more precise estimate of the actual figure.

A less problematic starting point is Mr. Rizzo's own estimate of the diminution in the market value of the Curved Air. He estimates that the boat was worth $50,000 immediately before the initial collision and $38,880 immediately after the swamping. Although both these estimates seem high, at least for a boat located in Pago Pago---the Sans End, a vessel of approximately the same size and type as Mr. Rizzo's, somewhat older but in reasonably good condition, assiduously advertised locally and abroad, brought $17,000---the proportional diminution in value (22.4%) seems consistent with the evidence of the damage to the vessel and its equipment. [15ASR2d109]

We estimate that the market value of the Curved Air was $35,000 immediately before the collision, $27,160 ($35,000 less 22.4% ) immediately after the swamping. The damage caused to the vessel, including its equipment, by both incidents would thus amount to $7840. $700 of this amount has been assessed as the damage caused by the collision. This leaves $7140 as the diminution in value of the vessel and its equipment as a result of the swamping. We also assess $100 for damaged clothes, $100 for books, and $200 for charts, for a total of $7540 in damages from the swamping.

We therefore calculate the total amount of Mr. Rizzo's recovery as follows:

Collision damages:

100% x $700 = $ 700.

Damages from swamping:

50% x $7540 = $ 3770.


Total recovery: = $ 4470.

V. Costs and Fees

Plaintiff incurred substantial costs in securing the Sans End during the time it was in custodia legis prior to the judicial sale. These costs are recoverable from the proceeds of the sale and have priority over the recovery of either party. See 46 U.S.C. §§ 31326, added by P.L. 100-710 (1988). We assess these costs (including attorney fees related to securing and selling the vessel but not those attributable to pressing plaintifrs claim against defendant Baars in personam or to resisting the claims of the intervenor) at $8249.

The default judgment already rendered in favor of plaintiff Credit Union against defendant in personam Baars included costs and attorney fees as provided in the contract between the parties. Because the proceeds of the judicial sale are extremely limited, we assess no attorney fees (other than those included in the costs of maintaining the vessel in custodia legis) on behalf of plaintiff against the defendant in rem.

Because of the limited size of the fund and because the intervenor's claim arose from an event partly attributable to his own fault, we award no attorney fees to intervenor Rizzo. [15ASR2d110]

VI. Conclusion

Plaintiff Credit Union shall have judgment against defendant in personam Baars in the amount of $32,706.35 plus $10,416.00 for costs and attorney fees, a total of $43,122.35; the judgment to bear interest at the contract rate of 15 per cent per annum from April 20, 1989.

Intervenor Rizzo shall have judgment against defendant in personam Baars in the amount of $4,470 plus $55 in court costs, a total of $4525; the judgment to bear interest at the legal rate of 6 per cent per annum June 4, 1990.

The judicial sale having effected a release of all claims against defendant in rem Sans End, and the claims thus terminated having attached in the same amounts and in accordance with their priorities to the proceeds of the sale, plaintiff and intervenor shall recover the following amounts from the proceeds in lieu of judgment against the defendant in rem, in the following order of priority:

1) Plaintiff Credit Union, $8249 for the cost of securing the vessel while in custodia legis;

2) Intervenor Rizzo, $4470 plus court costs in the amount of $55, a total of $4525;

3) Plaintiff Credit Union, the balance of the proceeds (about $5000) up to the amount of its judgment against defendant in rem Baars exclusive of attorney fees.

It is so Ordered.

***********

1. See Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 40 (1985) ["Conquest I"] (High Court has jurisdiction to foreclose preferred mortgages under Ship Mortgage Act); Star-Kist Samoa, Inc., v. The M/V Conquest, 3 A.S.R.2d 25, 41 (1986) ["Conquest II"] (High Court is not a "district court of the United States" within meaning of the Ship Mortgage Act and therefore has no jurisdiction to foreclose preferred mortgages under the Act); Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59 (1987) ["Conquest III"] (Although Ship Mortgage Act does not confer jurisdiction on the High Court, the Court can foreclose ship mortgages under its general admiralty jurisdiction and give such mortgages the priority to which they would be entitled if foreclosed in a district court of the United States). The 1988 enactment of 46 U.S.C. § 31301(2)(B), discussed in the text, has the approximate effect of superseding Conquest III, legislatively overruling Conquest II, and reinstating the rule announced in Conquest I.

2. The initial collision between the two boats appears to have been a cause-in-fact of the later swamping of the Sans End. This is true even if the swamping was caused not by any direct contact between the boats or their lines during the time they were lashed together, but by Baars' negligent failure to remove the springline a week after the collision. Were it not for the collision, Baars would never have been on the Curved Air tying and untying lines.

It is by no means essential to the Sans End's liability in rem, however, that its captain's negligence have had anything to do with a collision. If the two vessels had been lashed together for any reason having the requisite impact on the traditional concerns of admiralty law (e.g., for necessary repairs or protection from a storm), the Sans End would still he liable in rem for damage occasioned by the negligence by its captain in the lashing or unlashing.

While the collision claims and the personal injury claims. ..account for the great bulk of maritime line tort litigation, it seems on principle that any kind of maritime tort connected with the ship or its use for which those in control of the ship are responsible should create a lien, ...[It has been held that] any conduct which is tortious under the general law and which is connected with the ship or its use creates a maritime lien.

Gilmore & Black, The Law of Admiralty § 9-19 at 628-29 (citing State of California v. S/S Bournemouth, 307 F. Supp. 922 (C.D. Cal. 1969)) (negligent discharge of oil into navigable waters gave rise to maritime lien against vessel). See generally authorities cited in Gilmore & Black, supra, § 9-19 at 629 nn. 95b & 95c.

3. One of the boats in Foremost was "used for pleasure boating, such as boat riding and water skiing, and at the time of the accident the boat was actually pulling a skier on "zip sled." 457 U.S. at 670. The other was "described as a bass boat." Id. They collided on the Amite River, a stream that was "assumed" to be navigable but was "seldom, if ever, used for commercial traffic." Id. at 670 n.2. Neither the boats, the owners, the drivers, nor the passengers had anything to do with maritime commerce. Id. at 670-71.

4. "The risk created by the defendant may include the intervention of the foreseeable negligence of others. ...[O]nce it is determined that the defendant has a duty to "mitigate the intervening misconduct, and guard against it, it cannot supersede the defendant's liability." Prosser & Keeton on Torts § 44 at 304-05 (5th ed. 1984).

5. Judge Learned Hand, who appears to have imported the doctrine of intervening negligence into admiralty with his Sinram opinion, was perhaps the most outspoken judicial critic of the divided damages rule. See, e.g., National Bulk Carriers v. United States, 183 F.2d 405, 410 (1950) (Hand,I., dissenting):

An equal division in this case would be plainly unjust; they ought to be divided in some such proportion as five to one. And so they could be but for our obstinate cleaving to the ancient rule which has been abrogated by nearly all civilized nations.

See also Chemical Transporter, Inc. v. Turecamo, Inc., 290 F.2d 496 (2d Cir. 1961) (L. Hand, I.) (last clear chance doctrine applied to relieve a plaintiff whose negligence was "trifling" from sharing in liability according to the divided damages rule).

6. The foregoing analysis assumes that the rudder assembly was pulled loose by the dangling springline, as intervenor Baars alleges. In our discussion of the facts we found that the loosening was most probably caused either by the springline or by some contact between the vessels, their lines, and/or some other object or objects during the initial collision or the subsequent period when the boats were lashed together. See Part I, supra . If the accident happened in the latter way, the facts are closer to the Danos/Sinram situation. Because Mr. Rizzo actually knew about the collision and the subsequent dragging of the two boats across the harbor, his failure to inspect and repair would constitute greater fault with respect to damage caused by these events than with respect to damage caused by the springline, of which he knew nothing. On the other hand, Baars' negligence in risking the initial collision was also greater than his subsequent negligence in leaving a line hanging from the cleat of the Curved Air. In either case, therefore, we assess fault at fifty per cent for each party.

Loia; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

NAPOLEONE LOIA, Defendant

High Court of American Samoa 
Trial Division

CR No. 10-90

June 7, 1990

__________

The government was not estopped from arguing that a warrantless search and seizure was valid for purposes of a second possession charge where the second charge stemmed from marijuana found on defendant while booking him on an arrest warrant for a first possession charge, the warrant for the first charge was based on marijuana found during the warrantless search and seizure, and thewarrantless search and seizure was held unlawful by the lower court in dismissing the first possessions charge stemming from the search; held, since the High Court was considering the second charge the legality of the warrantless search for that purpose was an issue properly before the court.

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

Counsel: For Plaintiff, Jeffrey Buckner, Assistant Attorney General

  For Defendant, Barry I. Rose, Assistant Public Defender

On Motion to Suppress:

Defendant is charged with possession of a controlled substance, marijuana. He has filed a motion to suppress evidence under the following circumstances: On the evening of March 6, 1990, two officers, who were on patrol on the main east-west highway, encountered an oncoming vehicle in the vicinity of Fatumafuti which appeared to them to be driven at a high rate of speed. The officers gave chase and finally ended up at the emergency entrance of the L.B.J. Tropical Medical Center. When the officers arrived at the hospital, they found the defendant's vehicle parked and unoccupied. One officer went into the emergency clinic where he located the defendant, while the other officer went and looked inside the parked vehicle. In a preliminary examination proceeding before the District Court, the latter testified that his purpose [15ASR2d127] for checking the defendant's vehicle was "just to look inside if the keys were in there," and that while looking inside he "observed an ashtray, something that looked like --like a butt, like a cigarette butt. So I left it there and informed OfficerMaifea that that was probably marijuana. It doesn't have, you know, like a filter."(1) A radio call was then placed to the station for a narcotics officer who later attended with field test equipment. The butts tested positive.

A week later, and armed with these results, the testing officer sought a warrant for the defendant's arrest charging him with possession of an unlawful substance. The affidavit in support of the warrant contained in pertinent part the following: "Affiant responded to a call from the police station and, upon arrival, was informed by PSO L. MAIFEA that, during a routine vehicle search, he observed what appeared to be two marijuana cigarettes in the ash tray of the pickup driven by NAPOLEONE LOIA following his arrest for drunk driving; That Affiant seized the cigarettes and performed a field test, the results of which were positive for marijuana. ..." An arrest warrant issued.

Upon execution of the warrant on March 16, 1990, the defendant was immediately taken to the Tafuna Correctional Facilities. During the attendant booking process at the correctional facilities, a quantity of alleged marijuana was found on the defendant's person and, accordingly, another charge of possession was filed.

On March 26, 1990, the preliminary examination on the first charge of possession came before the District Court. Departing from past practice and citing A.S.G. v. Samana, 8 A.S.R.2d 1 (1988),(2) the District Court judge felt that he was bound to entertain a defense motion to suppress. From the evidence adduced at this hearing, the judge was not satisfied that the search of the defendant's vehicle was in fact the routine search following arrest for drunken driving as alleged in the supporting affidavit. Dismissing the government's arguments about [15ASR2d128] "plain view, " the judge went on to find that the marijuana butts taken from the defendant's vehicle were seized pursuant to an unlawful search and, therefore, inadmissible as evidence. Lacking the physical evidence, the complaint was dismissed for insufficient showing of probable cause.(3)

The second possession charge is the basis of the proceedings now before us. The motion to suppress alluded to at the outset is premised on the contention that the marijuana seized, together with any inculpatory statements made by the defendant, at the correctional facilities, were "fruits" of an unlawful arrest and attendant search and, therefore, inadmissible evidence under Wong Sun v. United States, 371 U.S. 471 (1963).

Defendant's "fruits of the poisonous tree" claim is, however, dependent on the contention that the District Court's conclusion of an unlawful search and seizure on March 6, 1990, is somehow conclusive in the proceedings before us. Defendant argues that the government is estopped from further reviving the issue of whether the search calumniating in the first possession charge was lawful. Defendant argues that if the government is permitted to reopen the issue, this would have the practical effect of allowing the back door appeal of an issue which the government was entitled to appeal and which it did not. The concern stated is that if the High Court views the evidence differently, then the District Court's decision in A.S.G. v. Loia, DCR No. 21-90, will have been effectively overruled, and, therefore, the government could conceivably refile the first possession charge. Defendant submits that this peculiar effect singularly arises in the territory because of its distinctive constitutional exclusionary rule and the fact that in American Samoa, unlike other jurisdictions, a felony complaint may only be filed in the High Court consequent to a preliminary examination.

The argument for estoppel is not persuasive. That the government has a right to appeal does not mean that the government has the duty to do so. We are unwilling to give such unnecessary effect to the relevant statute, A.S.C.A. § 46.2405. Secondly, whether the government mayor may not refile the first possession charge is matter governed by the provisions of High Court of Rules of Criminal [15ASR2d129] Procedure, Rule 5.1(b),(4)and not on how we view, in these entirely separate proceedings, the legality of the March 6, 1990, seizure. Thirdly, our concern in this case is the question of guilt or innocence, which in turn is dependent on the competency and quality of the evidence to be presented by the government. It is the duty of this court to determine all questions as to the competency of the evidence; we see no reason to here depart from that duty. Finally, the curious situation in which the District Court Judge found himself in A.S.G. v. Loia, DCR No. 21-90, is not the inevitable consequence of the territory's uncommon constitutional exclusionary rule. A constitutional mandate extending the exclusionary rule to preliminary examination proceedings would also be served by the referral of such suppression motions for disposition by the High Court. A simple amendment to that effect toT.C.R.Cr.P. 5.1 would not be inconsistent with the mandate.

We conclude that the government is not estopped from arguing the legality of the seizure of March 6, 1990. It is thus unnecessary, at least at this point in the record, to consider the teaching of Wong Sun. The issue of whether or not the March 6, 1990, seizure was valid is an issue for this Court's determination and should therefore be briefed and addressed by the parties accordingly. This matter will be set for further hearing upon the motion of either party.

It is so Ordered.

*********

1. A.S.G. v. Loia, DCR No. 21-90, Reporter's Transcript of Proceedings held March 26, 1990, page 5.

2. This case held that the exclusionary rule in American Samoa, a constitutional rule, applied also to probation revocation proceedings. Rev'd. Const. Am. Samoa art I, § 5. This provision tracks the language of the Fourteenth Amendment relating to unreasonable searches and seizures; however, unlike its federal counterpart, art. I, § 5 also provides: "Evidence obtained in violation of this section shall not be admitted in any court." (emphasis added).

3. A.S.G. v. Loia, OCR No. 21-90, Reporter's Transcript of Proceedings held March 26, 1990, pages 7-20.

4. T.C.R.Cr.P. Rule 5.1(b) provides as follows:

(b) Discharge of Defendant. If from the evidence [at the preliminary examination] it appears that there is not probable cause to believe that an offense has been committed or that the defendant committed it, the district court judge shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the government from instituting a subsequent prosecution for the same offense.

Id. (Emphasis added).

Liua; In re Matai Title


PISAMOA TAIFANE, Claimant

v.

SIAOSI P. LIUA, and MOU LIUA, Objectors

[In the Matter of the Matai title 
"LIUA" in the village of Poloa]

High Court of American Samoa 
Land and Titles Division

MT No. 04-88

June 1, 1990

__________

Objection to a matai title claim was not filed within the sixty days required by statute where the timely original objection was filed and withdrawn by relatives without objector's knowledge and his motion to intervene in the case was not filed until eight years later. A.S.C.A. § 1.0407(a).

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

Counsel: For Claimant, Tau'ese P.F. Sunia

  For Objector Siaosi LiuaAsaua Fuimaono

This outstanding matter originated back in August 7, 1981, when Pisamoa Taifane filed with the Territorial Registrar a succession claim to the title "Liua" of the village of Poloa. Consistent with the requirements of A.S.C.A. § 1.0407, the Registrar publicly posted notice of the said claim for the requisite period of 60 days. The claim attracted a timely objection from Mou Liua, as well as an objection filed on behalf of Siaosi Liua by Sala Sarniuas counsel for Siaosi Liua. On October 16, 1981, the Registrar referred the matter to the Office of Samoan Affairs In accordance with A.S.C.A. § 43.0302. Somehow, the matter then got buried at the Office of Samoan Affairs for the next five years. On November 19, 1986, the Territorial Registrar received from the then hearing officer for the Office of Samoan Affairs, Pulele'i'ite M.F. Tufele, a memo (which also appears to have been signed by objector Mou Liua) advising that Mou Liua had withdrawn his objection and that ill terms of the requirements of A.S.C.A. § 43.0302, "the case has been [15ASR2d81] settled and closed.” Memorandum, Office of Samoan Affairs to Territorial Registrar, Serial 319:86, November 19, 1986. Notwithstanding this opinion rendered about a concluded settlement, the Territorial Registrar refused to register the title in favor of the claimant Pisamoa Taifane for the very obvious reason that the objection filed on behalf of Siaosi Liua was still pending. The Territorial Registrar finally submitted the matter to the High Court on October 25, 1988, as a "disputed claim" for judicial resolution in accordance with A.S.C.A. § 1.0409. The Clerk of Courts accordingly assigned the Territorial Registrar's file the next regular docket number, MT No. 04-88.

The next thing that happened with the file is that on January 10, 1989, a document was filed with the Clerk styled "Notice of withdrawal of counterclaim." It stated, among other things, that "counter-claimant Siaosi Liua has desired to withdraw his counter-claim to the title of Liua," and it was signed by Sala E. Samiu as counsel for Siaosi Liua. Then on February 7, 1989, claimant Pisamoa Taifane filed an ex-parte motion pro se seeking dismissal upon the ground that Siaosi Liua had now withdrawn his objection. The motion was neither granted nor denied by the Chief Justice who required, among other things, that an affidavit from Siaosi Liua himself be supplied to confirm the withdrawal of his objection.

On December 12, 1989, Siaosi Liua, now represented by attorney Asaua Fuimaono, filed a motion to intervene and set trial date. In response, counsel Tau'ese Sunia entered appearance on behalf of the claimant and filed a reply to the motion. The motion was heard and denied on December 29, 1989. The Court further ordered that Siaosi Liua either file his affidavit affirming or disaffirming counsel Sala Samiu's withdrawal of his objection within 60 days or suffer the dismissal of any claims he may have for lack of prosecution. On January 26, 1990, yet another motion to intervene and set a trial date was filed by Siaosi Liua. With this filing, however, an affidavit by Siaosi Liua (a member of the United States Air Force stationed at Tucson, Arizona) finally materialized; it nonetheless failed in its entirety to address the issue of whether the objection withdrawal by counselSala Samiu was authorized or not. For a variety of reasons, the hearing of the motion was postponed. In the interim, claimant Pisamoa Taifane also filed a motion for summary judgment. Eventually the Court set all pending motions for hearing on May 30, 1990, and further ordered that a subpoena issue to Sala Samiu to appear and testify as to the circumstances behind his representation of Siaosi Liua[15ASR2d82]

At the hearing, Sala Samiu testified that he was instructed by his sister, the mother of Siaosi Liua, to file an objection on her son's behalf. He was also instructed by his sister to withdraw the objection after being reassured by his sister that the matter had been settled within the family. Sala Samiu had no direct communication, however, with his off-island nephew. Siaosi Liua was also present at the hearing and he also took the stand. He testified that he had no idea in 1981 that the Liua title was the subject of succession claims nor that an objection had been registered on his behalf. He candidly admitted that he had only heard about the matter sometime last year and then decided to get involved with contesting the family title because of the urging of one of his aunts, and because he had discovered that his cousin Mou Liua was no longer interested in the title.

Conclusion

On the testimony, it is abundantly clear that Siaosi Liua was not an objector to Pisamoa Taifane's claim filed with the Territorial Registrar in 1981. For some seven years he was not even aware that he was put forth as an objector, let alone as a candidate, for the matai title Liua. Furthermore, the evidence was also very clear that Siaosi Liua's present desires for the title relate to a recent fallout between certain members of his side of the family and claimant Pisamoa Taifane.

On the law, there is not the slightest ambiguity with the statute's requirement that objections to a matai title claim are to be filed with the Territorial Registrar within the sixty (60) days of the public posting of that claim. A.S.C.A. § 1.0407(a) provides in part: "The territorial registrar may not accept any counterclaims or objections filed after the sixtieth day as defined herein." To permit Siaosi Liua to intervene at this stage would be to ignore the unequivocal statutory mandate.

The situation before us then is that of one party remaining. In such circumstances, there is no disputed claim for trial and dismissal is, therefore, appropriate. In re the Matai title Lutali, 4 A.S.R. 10 (1970). The matter is dismissed and remanded to the Territorial Registrar.

It is so Ordered.

*********

KMST, Inc.; Diocese of Samoa Pago Pago v.


DIOCESE OF SAMOA PAGO PAGO, Plaintiff

v.

KMST, Inc. and JUM YONG JUNG, Defendants

High Court of American Samoa

Land and Titles Division

LT No.18-90 
CA No.23-90

May 1, 1990

__________

The defense of failure to state a cause of action upon which relief can be granted has traditionally been regarded as a defense on the merits.

The rules pertaining to a demand letter for possession or payment of rent, like those dealing with service of process or the exhaustion of some types of administrative remedies, seem designed not to allocate decision-making power among tribunals or to ensure the existence of a case or controversy, but to protect a particular party; presumably, these rules may be waived by that party. A.S.C.A. § 43.1406.

Entry of an appearance by counsel, the raising of defenses on the merits without objection to the Court's jurisdiction, and active participation in a trial on the merits would generally be regarded as a waiver of any waiveable jurisdictional defenses.

Enactment of summary eviction statute did not deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages. A.S.C.A. § 43.1401 et seq.

The only important difference between a "summary" and a "non-summary" proceeding for eviction is that plaintiffs who qualify for the former proceeding are ordinarily entitled to have trial within ten days, but this does not necessarily prohibit equally speedy trials in other cases. A.S.C.A. § 43.1410(b).

Since the only difference between a three-judge panel sitting as the Land and Titles Division and the same three judges sitting as the Trial Division is whether the case is styled "CA " or "LT", a final decision by one division is not subject to attack on jurisdictional grounds.

Even if the summary eviction statute was jurisdictional and the demand letter for possession or payment did not comply with the statute, the court properly exercised its general jurisdiction in the absence of prejudice. A.S.C.A. § 43.1401 et seq.

To hold a trial only a few minutes after the filing of the answer, over the objection of a party or under equivalent circumstances would be fundamentally unfair. [15ASR2d21]

Before REES, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Togiola T.A. Tulafono

  For Defendants, Charles V. Ala'ilima

This is an action for eviction. The complaint invoked the provisions of A.S.C.A. §§ 43.1401 et seq., for a summary proceeding and also contained a prayer for such relief as should prove to be justified on the pleadings and the evidence.

The principal feature of the summary eviction procedure is that trial shall be held within ten days of service of the summons, "unless extended by the court."  In the present case the ten-day period would have expired on a Sunday, so trial was set for the following day, March 5, 1990.

At the trial both plaintiff and defendants were represented by counsel. Counsel for defendant filed an answer. The answer alleged that defendants had in fact complied with all their obligations under the lease and also raised certain technical defenses (e.g., the plaintiff Archdiocese "has no capacity to sue. "). The answer did not allege that plaintiff had failed to comply with the statutory prerequisites for summary eviction. Nor was this defense raised at trial until after both the plaintiff and the defendant had rested.

The evidence taken at trial showed that defendants had been seriously and chronically deficient in making rental payments; that in March and April of 1989 plaintiff had engaged an attorney to commence eviction proceedings; that upon being threatened with eviction the defendants had paid the entire amount of overdue rent; that about six months later, in October of 1989, the defendants had again failed to make a rental payment when due; and that the rent had been at least one month overdue at all times between October 1989 and March 5, 1990, the date of trial.

Defendant Jum (who is in physical possession of the premises and who is an officer of the other defendant, KMST) did not disagree with plaintiff about the amounts paid and the dates on which they were paid. Instead he testified about his financial and logistical difficulties; about a conversation with the Bishop from which he, Jum, had derived some hope of an eventual settlement; and about various improvements he had made to the building.[15ASR2d22]

The principal defense urged by counsel for the defendant in his closing argument was that defendant should be entitled to a credit against rentals for three months at the beginning of the lease term during which the premises had been unfit for their intended use. The Court rejected this argument on the ground that the lease agreement clearly reflected the parties' understanding that the building would need substantial repairs and improvements in order to make it fit for defendant's intended use; and that the agreement had specifically provided that the defendant lessee would be responsible for fitting the building for its intended use and should pay rent during the time this was being done.

The Court also noted that defendants, when threatened with eviction in April of 1989, had paid the entire amount of overdue rent demanded by plaintiff, plus plaintiff’s attorney fees. Their failure to suggest at that time that they were entitled to a three-month credit or abatement---which, if true, would have meant that they were ahead rather than behind on their rent---bolstered the Court's impression that the parties did not understand the lease agreement to provide for such a credit. (1)

In his closing argument counsel for defendant also raised another issue: the failure of plaintiffs demand letter to comply strictly with the provision of A.S.C.A, § 43.1406 that "[a] demand for possession or payment" must state, inter alia, "the amount due at the time of the demand." Although the demand letter in this case did state that "your [15ASR2d23] company KMST is now three months behind in payments of rentals to the Catholic Church, "it did not state a dollar figure. Moreover, the letter did not contain "the address or a brief description of the premises," as also required by § 43.1406.

In its ruling from the bench, the Court observed that these deficiencies, had they been pointed out prior to trial, might have caused the Court to conclude that the summary eviction process was not available. The Court ruled, however, that the insufficiency of the demand letter was the sort of defense that should have been raised in defendants' answer or at the beginning of the trial. By letting the trial proceed without objection, the defendants waived any such objection.

Defendants now urge us to reconsider this ruling. They characterize the statutory requirements for the demand letter as jurisdictional, and correctly observe that the Court can and should notice the absence of jurisdiction at any time.

This argument fails for three reasons. In the first place, although defendants assert that the form and content of the demand letter are jurisdictional, they have advanced no reasons to support this assertion. The defense that a landlord did not notify tenants of the substance of his demand would seem to go to the merits of his claim for eviction rather than to the competence of the Court. Indeed, the defendants themselves argue that this defense was raised by their blanket allegation that "[t]he complaint fails to state a cause of action upon which relief can be granted." A defense of no cause of action has traditionally been regarded as a defense on the merits.

In any case, some prerequisites to the exercise of jurisdiction can be waived by the parties. The test is set forth in a recent decision of the Appellate Division:

A party can generally waive the benefit of a limitation on jurisdiction that is clearly designed only for his own protection. ...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. ..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. [15ASR2d24]

Pago Petroleum Products, Inc. v. American Samoa Power Authority, 10 A.S.R.2d 75, 81 (1989).

The rules pertaining to the demand letter, like those having to do with service of process or with the exhaustion of some types of administrative remedies, seem designed not to allocate decision making power among tribunals or to ensure the existence of a case or controversy, but to protect a particular party. If so, they are presumably waiveable by that party. Entry of an appearance by counsel, the raising of defenses on the merits without objection to the Court's jurisdiction, and active participation in a trial on the merits would generally be regarded as a waiver of any waiveable jurisdictional defenses.

On a more fundamental level, defendant's argument that the Court was without jurisdiction to conduct the trial misconstrues the nature of the remedy provided by the summary eviction statute and its relation to the jurisdiction of the High Court. In providing a new summary process and specifying that this process was to be available only in certain cases, §§ 43.1401 et seq. did not purport to deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages. The Court's exercise of this general jurisdiction, both before and after the enactment of the summary eviction statute in 1984, has frequently included orders that people wrongfully occupying premises should vacate such premises and/or pay damages grounded in tort or contract. See generally A.S.C.A. §§ 3.0101, 3.0208(a), 3.0208(b)(2), 43.1101 et seq. , 43.1301 et seq.

The only important difference between a "summary" and a "non- summary" proceeding for eviction is that plaintiffs who qualify for the former sort of proceeding are ordinarily entitled to have trial within ten days.(2) The provision of such an entitlement in some cases need not be [15ASR2d25] construed as a prohibition against equally speedy trials in other cases, at least not when the Court and all parties are willing.

Assuming (but not deciding) that the requirements for a demand letter set forth in A.S.C.A. § 43.1406 are indeed jurisdictional, they can only deprive the Court of its jurisdiction to conduct a summary eviction proceeding under the terms of the statute. Further assuming that the demand letter in the case did not comply with the statute, it would appear that the Clerk of the High Court should not have set the present action for trial within the statutory ten-day period. Rather, he should have waited for defendants to answer and then for one of the parties to move for a trial date, or for the Court to assign the case for trial on its own motion.

It is important to notice, however, that the only respect in which the trial of the present action was "summary"---the only way in which it differed from the trial of an ordinary civil action ---was that it was held sooner than would ordinarily have been the case. It is also important that shortly before the commencement of the trial (on March 5 at 9:00 a.m.), defendants filed their answer with the Clerk. At any time after the filing of the answer, with or without a request from either party, the Court was free to hold a trial without resort to the special statutory provision for summary proceedings. See Trial Court Rules of Civil Procedure, Rule 40.(3) Even if the demand letter was so deficient as to deprive the Court of the special jurisdiction granted by A.S.C.A. § 43.1401, therefore, the March 5 trial was a valid exercise of the Court's general jurisdiction. [15ASR2d26]

We hasten to add that jurisdiction is not everything. Courts ought not to do many of the things they have jurisdiction to do. To hold a trial only a few minutes after the filing of the answer, over the objection of a party or under equivalent circumstances (e.g., an absent defendant or one who is unrepresented by counsel and unfamiliar with Court procedures), would be fundamentally unfair. Cf. Wray v. Wray, 5 A.S.R.2d 34 (1987).

In the present case, however, there is no evidence that holding the trial on March 5 rather than, say, April 5 resulted in any surprise or other procedural unfairness to the defendant. Not only was no objection raised by defendant Jum or his counsel, but both appeared to be reasonably well prepared for trial. Counsel has not suggested any evidence or argument that was unavailable to defendants on March 5 but that might have become available had the trial been held later. Defendant Jum did request a few extra days so that he could attempt another discussion with the Bishop; the Court effectively granted this request by staying execution of its judgment for two weeks or until the ruling on a motion for reconsideration, whichever should be later. (As it turns out, the pendency of the present motion has caused the stay to remain in effect for 56 days, which is longer than an eviction under the general non-summary process might have taken. )

Nor do the arguable deficiencies in the demand letter ---the absence of a precise dollar figure and of a description of the premises --- suggest, on the facts of the present case, that eviction would be substantively unfair to the defendants. Defendant Jum knew exactly what premises were referred to in the letter, knew what the monthly rental was, and knew how to multiply by three. If the defendants were correct in their argument that the Court would have no jurisdiction to decide the case unless the demand letter stated certain terms in certain ways, then it would of course be irrelevant whether the absence of such terms was in fact prejudicial. Insofar as the case was within the scope of the Court's general jurisdiction, the demand letter is still important but for a different reason: it must be scrutinized to determine whether it gave defendants actual notice of what was being demanded and of the consequences of noncompliance. This it did.

In conclusion, the omission from the demand letter of a dollar figure and of a description of the premises may well have deprived plaintiff of its right to insist on a trial date within ten days of filing the complaint. It did not, however, deprive the Court of its general jurisdiction to decide cases concerning the right to possession of [15ASR2d27] property. The Court was free to hear such a case on the day of its choosing, at least in the absence of objection by either party.

One possible objection to the above analysis is that all of us --- the Court, the Clerk, the parties, their counsel ---were operating under the impression that this was indeed a summary proceeding, at least until after the close of evidence when somebody noticed the problems with the demand letter. For this reason, we would be inclined to grant a new trial if there appeared to be the slightest possibility that such a trial would result in a different outcome. We would do this not because we did not have jurisdiction to hear the case on March 5, but because the interests of justice would not be served by allowing a result to stand which might be attributable to confusion or even to undue haste.(4) The March 5 trial, however, was a fair one in which both parties thoroughly addressed the merits of the case. A new trial would appear certain to produce identical evidence, identical arguments, and an identical result.

Accordingly, the motion to reconsider is denied. The motion for a further stay of execution is also denied.

It is so Ordered.

*********

1. In any case, the April 1989 settlement appears to have been an accord and satisfaction which defendants were thenceforth estopped to contest. (Defendants, who are respectively a corporation engaged in extensive trans-national commerce and an apparently sophisticated businessman, have raised no suggestion that the April 1989 settlement was unconscionable or otherwise unenforceable.) By claiming a credit or abatement allegedly accruing in early 1988 as a defense to an action based on overdue rents for late 1989 and early 1990, defendants necessarily seek to undo the April 1989 settlement. In every month between that settlement and the onset of the present controversy ---May through September of 1989 --defendants paid plaintiff exactly one month's rent. Their contention that they did not fall behind when they stopped paying in October, because they had really been three months ahead all along, is not based on anything that happened during those post-settlement months. Rather, it entails arguments about the pre-settlement rights and obligations of the parties, which defendants were entitled to believe had been resolved by the settlement.

Even if the April 1989 agreement was for some reason not a binding accord and satisfaction, the defendants' conduct in paying the monthly rentals between May and September provides further evidence that the alleged three-month abatement was no part of the parties' original understanding, but was instead an afterthought designed to avoid the consequences of defendants' recenlnon-payment. Tenants do not generally pay their rent three months in advance without saying something about it at the time.

2. Another difference is that A.S.C.A. § 43.1402 inexplicably gives jurisdiction over summary eviction proceedings to the Trial Division, whereas other actions for the possession of land are brought in the Land and Titles Division. The only practical difference is that the present action was therefore styled "CA" for Civil Action, whereas a non-summary eviction proceeding would have been styled "LT" for Land and Titles.

All Justices and Judges of the High Court are qualified to sit in both the Trial and Land and Titles Divisions. The present three-judge panel is fully qualified as a panel of either division. Cases are rather frequently styled "CA" that should have been styled "LT" and vice versa; when this appears during the course of the litigation, the appropriate remedy is not to dismiss the case, but simply to give it a new number.

Since the only difference between a three-judge panel sitting as the Land and Titles Division and the same three judges sitting as the Trial Division is whether the case is styled "CA " or "LT ," a final decision by one division in a suit that should have been brought in another division is not subject to attack on jurisdictional grounds. Indeed, from time to time the Court hears cases in which some of the relief sought can only be granted by the Land and Titles Division and another part can only be granted by the Trial Division. This would appear to include eviction cases in which the plaintiff seeks both summary and non-summary remedies. See, e.g.American Samoa Government v. Samoa Aviation, Inc., 11 A.S.R.2d 144(1989).

Because we conclude that the relief granted in the present case should properly have been treated as an exercise of our general jurisdiction over cases involving the right to possession of land, we have assigned the case an LT number in place of its original CA number.

3. Indeed, Rule 40 does not say in so many words that a case can be assigned for trial only after an answer has been filed. While it would be sloppy practice to proceed to trial in the absence ofan answer, and to do so over the objection or without the knowledge of a party might deprive that party of due process of law, it is not clear that the out,:ome of such a trial would be subject to attack on jurisdictional grounds.

4. Seee.g.American Samoa Government v. Samoa Aviation, Inc., 11 A.S.R.2d 144, 154 (1989):

In retrospect, this was not the sort of case that should have been tried ten days after it was filed. The purpose of summary eviction proceedings is to provide speedy relief for landowners against deadbeats and squatters who have no fairly arguable legal right to remain on the premises and who would otherwise take unfair advantage of the law's delay. This was clearly not such a case. The Court therefore puts counsel on notice that it will take the motion for new trial seriously, especially insofar as questions of law are concerned. Counsel are urged to provide such authorities to the Court as might have been provided at or before trial there had [sic] been more time.

KMST Wholesale, Inc.; Shantilal Brothers, Ltd. v.


SHANTILAL BROTHERS, Ltd., Plaintiff

v.

KMST WHOLESALE, Inc., Defendant

NELSON & ROBERTSON PTV., Ltd., AMERICAN
SAMOA GOVERNMENT, DIOCESE OF PAGO PAGO,

and AFOA L.S. LUTU, Intervenors

High Court of American Samoa
Trial Division

CA No. 87-88

June 5, 1990

__________

At common law, the landlord-tenant relationship did not give rise to a lien against the tenant's property; while such liens have been created by statute in other jurisdictions, no such statute has been enacted in American Samoa.

Creditor who already obtained a judgment and a writ of execution and levied upon the property of judgment creditor prior to the notice of ASG's tax lien, prevails against the ASG as a judgment lien creditor with respect to such property. 26 U.S.C. § 6323(a); A.S.C.A. § 11.0401 et seq. [15ASR2d116]

The holder of a security interest, in the form of a chattel mortgage duly registered, prevails over the tax lien of ASG with respect to the proceeds of the sale of those items covered by its mortgage on the date the tax lien became effective. 26 U.S.C. §§ 6323(a); A.S.C.A. § 11.0401 et seq.

The general rule of lien priorities is that first in time is first in right.

Chattel mortgages in American Samoa create a lien rather than pass legal title. A.S.C.A. § 37.1502.

Statute which states that no instrument shall be effective to create a security interest unless it contains a description of items to be mortgaged prevents the creation of a "general mortgage" and reinforces the statutory prohibition against mortgages on after-acquired real property and fixtures, as well as security interests in personal property. A.S.C.A. §§ 27.1501(c), 37.1003.

Before REES, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Gata E. Gurr

  For Defendant, Togiola T .A. Tulafono

  For Intervenor Nelson & Robertson, John L. Ward II

  For American Samoa Government, Aitofele T. Sunia, Assistant Attorney General

  For Diocese of Pago Pago and Afoa L.S. Lutu, Charles V. Ala'ilima

This case concerns the existence and priority of liens asserted against the proceeds of a judicial sale of certain equipment belonging to defendant KMST Wholesale, Inc.

The pertinent facts are as follows:

On December 1, 1985, Ruby Grisard, as landlord, leased a certain piece of real property in Fagotogo to KMST. Grisard's interest in that property was later transferred to Intervenor Afoa. KMST allegedly began defaulting on the rental payments in September 1989.

On January 1, 1988, the Roman Catholic Diocese of Samoa, Pago Pago, leased KMST a certain structure in Leone. KMST defaulted on this lease and the Diocese brought an action seeking, inter alia, a money judgment for overdue rent. (On March 7, 1990, after all of the other events important to this case, the Diocese secured a judgment in an amount in excess of $4400.) [15ASR2d117]

On March 1, 1988, KMST executed a chattel mortgage in favor of Nelson & Robertson to secure indebtedness in excess of $212,000. The chattel mortgage applied, inter alia, to all equipment which then belonged to KMST or which should be later acquired.

Plaintiff Shantilal filed a complaint on September 13, 1988, and obtained judgment on December 6, 1988, in the amount of $41,749.76. A writ of execution on the judgment was entered on December 4, 1989. Certain property of KMST was seized pursuant to the writ and advertised for sale.

On January 22, 1990, following newspaper notice of the pending judicial sale, Nelson & Robertson moved to intervene. The American Samoa Government (ASG) filed notice of a tax lien on January 26, 1990.

By stipulation of the parties, the public auction proceeded as scheduled on January 29, 1990. The proceeds amounted to $25,800.

On February 2, 1990, the landlords (the Diocese and Afoa) moved to intervene.

We discuss the claims of intervenors in reverse order of difficulty:

I. The Landlords

The landlords argue that either a contractual or an equitable lien exists. At common law, the landlord-tenant relationship did not give rise to a lien against the tenant's property. Such liens have been created by statute in some jurisdictions and are frequently included in lease agreements. Neither of the lease agreements with which we are now concerned, however, purports to create a lien, andAmerican Samoahas no statutory landlord's lien.

The landlords urge, however, that provisions in their leases giving them the right to re-enter upon the property upon default should be construed to provide a lien upon property located on the premises. This is hardly a straightforward construction of the provisions in question. Counsel for the landlords cites three cases alleged to stand for the proposition that a lien can be implied from such a clause; however, these cases all involved construction of leases which explicitly provided for liens. Nor do the landlords allege any particular circumstances that [15ASR2d118] would justify an "equitable" lien whose only effect would be to give the landlords priority over other creditors whose right to recover against the proceeds is grounded in statute or contract. While such protection for landlords may be desirable, it is up to them to bargain for it or to persuade the Fono to mandate it.

II. The ASG Lien

American Samoahas adopted the United States Internal Revenue Code. See A.S.C.A. § 11.0401 et seq. Like the United States, ASG therefore has a lien against the taxpayer's property for any unpaid taxes. 26 U.SC 6321. However, the lien "shall not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof ...has been filed by the Secretary." 26 U.SC § 6323(a).

Plaintiff Shantilal had already obtained a judgment and a writ of execution, and levied on the property of the judgment creditor prior to notice of the tax lien, and so prevails against ASG as a judgment lien creditor with respect to such property. See United States v. Equitable Life Assurance Society, 384 U.S. 323, 327-28 (1966), and authorities cited therein; S&S Gasket Co. v. United States, 635 F.2d 568 (5th Cir. 1980),

As the "holder of a security interest," viz., a chattel mortgage duly registered, Nelson & Robertson also prevails over ASG, under the express language of 26 U.S.C. § 6323(a), with respect to proceeds of the sale of those items, if any, covered by its mortgage on the date the tax lien became effective. See generally Rice Investment Co. v.U. S., 625 F .2d 565 (5th Cir. 1980).

Because the landlords have no lien on the property, the claim of ASG against the proceeds does prevail over those of the landlords.

III. The Nelson & Robertson Lien

The general rule of lien priorities is that the first in time is the first in right. United States v. Equitable Life Assurance Society, supra; Rice Investment Co. v. U.S., supra. A chattel mortgage may either pass legal title or create a lien. Mortgages in American Samoa are of the lien rather than title variety. A.S.C.A. § 37.1001. Although our statutory law has little to say about chattel mortgages, one territorial statute clearly implies that they also create liens rather than pass title. See A.S.C.A. [15ASR2d119] § 37.1502. Nelson & Robertson's lien was created when it registered its chattel mortgage on March 1, 1988; plaintiff’s lien did not come into being until at least December 2, 1988, when it obtained its judgment, and possibly not until much later when it levied upon the property. Nelson & Robertson's lien therefore takes priority over that of plaintiff with respect to the things mortgaged.

Unfortunately for Nelson & Robertson, its chattel mortgage does not cover any particular chattel. Instead, it purports to apply to everything KMST owns or may later acquire. Our law provides, however, that no instrument shall be effective to create a security interest unless it "contains a description of the specific article, articles, or land ...mortgaged." A.S.C.A. § 27.1510(c). This provision specifically prevents the creation of a "general mortgage" such as that attempted by Nelson & Robertson in its contract with KMST, even on property already owned by the debtor. It also has the effect of reinforcing the specific prohibition of § 37.1003 on mortgages of after-acquired real property and fixtures, and of applying the same principle to security interests in personal property.

It is quite possibly true, as counsel for Nelson & Robertson suggests, that this rule reflects an outmoded attitude toward security interests. It is also true that this Court, in deciding cases governed by common law rather than statute, has sometimes adopted "by analogy" rules embodied in widely-adopted statutory provisions such as the Uniform Commercial Code. See, e.g., Theo H. Davies & Co. v. Reid, 6 A.S.R.2d 5 (1987). We are not free to adopt such a rule, however, in the face of a contrary rule embodied in the statutory law ofAmerican Samoa.

Because the instrument purporting to create a chattel mortgage in favor of Nelson & Robertson did not contain "a description of the specific article [or] articles" being mortgaged, it did not create an interest effective against anyone who did not have actual knowledge of it. A.S.C.A. § 27.1510. There has been no showing that plaintiff Shantilal had any knowledge of the Nelson & Robertson claim at the time it levied upon the property of KMST. The judgment lien of KMST is therefore prior to any interest of Nelson & Robertson in the proceeds of the judicial sale.

The proceeds, in the amount of $25,800 less incidental expenses of the Marshal in the amount of $1,169.75, are substantially less than the judgment in favor of plaintiff Shantilal. The proceeds, after payment of [15ASR2d120] the Marshal's expenses, shall therefore be distributed to plaintiff. Such distribution will be stayed for ten days or until the ruling on any timely motion for consideration of this order, whichever is later.

It is so Ordered.

*********

In re Two Minor Children (Juv. Nos. 02-90, 11-90),


In the Matter of TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV No. 2-90
JUV No.11-90

May 1, 1990

__________

Informal fa'a Samoa adoptions do not require the consent of the Court because they do not affect the legal rights and obligations of the parties.

A legal termination of parental rights can be granted only if it is in the best interests of the children; absent a showing that the children will be better off, an adoption petition is properly denied.

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

Counsel: For Petitioners, Togiola T.A. Tulafono and Roger Hazell

These petitions seek the termination of the rights of the natural parents so that the children can be legally adopted by their maternal grandparents. The children are nine and eleven years old, respectively. Until quite recently the children, their natural parents, and the prospective adopting parents lived together in the same household. This arrangement was in effect since the children were born. The natural parents have now moved to an adjacent house also owned by the grandparents; the evidence does not reflect whether the two children reside primarily in the house with their natural parents or with their grandparents.

When asked why she wanted to give her children up for adoption, the natural mother responded that it was because her parents had no one around the house to do the chores. This is a frequent motivation for informal fa'a Samoa adoptions. Such informal adoptions do not require the consent of the Court because they do not affect the legal rights and obligations of the parties. If the natural parents want to let their children live with the grandparents, and if the children want to live there, they are free to do so. A legal termination of parental rights - --in which the natural parents would have no right to reclaim the [15ASR2d29] children, and would have no legal obligation to support them in the event of the death or incapacity of the adopting parents ---is absolutely unnecessary.

A legal termination of parental rights can be granted only when it would be in the best interest of the children. In this case the natural parents are married, gainfully employed, and in their thirties. The grandfather is fifty-eight, retired, and receiving a disability pension. The grandmother is sixty and receives a small income from work she does in connection with the Territorial Administration On Aging. There has been no showing that the children will be better off if the legal rights and obligations of their parents are terminated.

The petitions are denied.

*********

In re Matai Title “Tuiteleapaga”,


TUISE'E ALOSIO TUITELELEAPAGA, Claimant

v.

FOE I. TUITELELEAPAGA, FOFOGAOALI'I
TUITELELEAPAGA, and FAUATEA IOSEFO PELESASA,
Objectors

[In the Matter of the Matai Title
"TUITELELEAPAGA" of the Village of Leone]

High Court of American Samoa
Land and Titles Division

MT No.6-89

June 4, 1990

__________

The "Sotoa Rule," whereby the blood relationship of matai candidates is calculated not to the nearest titleholder in a candidate's genealogy but to the original titleholder, while criticized and not often used, may nevertheless be appropriate in certain cases.

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

Counsel: For Claimant, Afoa L.S. Lutu

  For Objector Fue, Tau'ese P.F. Sunia

  For Objector Fofogaoali'i, Fai'ivae A. Galea'i

  For Objector Fauatea, Asaua Fuirnaono

This is a difficult decision among four well qualified candidates. The Court herewith announces its findings with respect to the four statutory criteria set forth in A.S.C.A. § 1.0409(c) for the resolution of disputes over the right to hold a matai title.

I. Best Hereditary Right

The Court finds that Tuise'e, Fue(1), and Fofogaoali'i are all the [15ASR2d91] sons of former holders of the Tuiteleleapaga title. According to the method traditionally used by the Court for calculating blood relationship to a title, each therefore has a 50% or 1/2 relationship to the title. Fauatea is the great-great-grandson of a former Tuiteleleapaga and therefore has a 1/16 relationship to the title.

The Court gave some consideration to applying the alternate method of calculating blood relationship set forth in In re Matai Title Sotoa, MT No.5-82, or some variant of this method. According to the "Sotoa rule,” blood relationship is calculated not to the nearest titleholder in a candidate's genealogy but to the original titleholder. One variant of the Sotoa rule would be to trace the ancestry of all candidates to the titleholder who was their nearest common ancestor .

The "Sotoa rule" has been criticized by the Appellate Division of the High Court and has not been applied for several years. See, e.g., In re Matai Title Le'iato, 3 A.S.R. 133 (1986); In re Matai Title La'apui, 4 A.S.R.2d 7 (1987); In re Matai Title Tauaifaiva, 5 A.S.R.2d 13 (1987). It may nevertheless be appropriate in certain cases, as where it appears that a particular family's tradition is to rotate the matai title among the different branches of the family; or where domination of the title by one branch of the family has resulted from previous Court decisions rather than from the family's own consensus, such decisions having produced the unintended result that no person from any other branch has a close relationship to any recent titleholder.

In the present case candidate Fauatea pointed out that his branch A of the family has not had a titleholder for several generations and argued that this fact should weigh in his favor rather than against him. Even [15ASR2d92] under the Sotoa rule or the nearest-common-ancestor variant, however, Fauatea would be somewhat more distantly related to the title than any of the other three candidates. This is because Fauatea is a member of a "younger" generation, in genealogical rather than chronological terms, than the other three candidates. He is a great-great-great-grandson of the candidates' common ancestor Tuiteleleapaga Gatagiala, whereas Fue and Fofogaoali'i are great-great-grandsons and Tuise'e is a great-grandson.

The application of the Sotoa or nearest-common-ancestor rules, therefore, would benefit Tuise'e rather than Fauatea. Tuise'e, however, uses the traditional rule in calculating his own hereditary right, and willingly conceded during his testimony that Fue and Fofogaoali'i have the same blood relationship (50% or 1/2) as he does.

Since digression from the traditional rule would do nothing to address the issue raised by Fauatea, this does not seem an appropriate case for such digression.

We therefore apply the traditional rule and find that Tuise'e, Fue, and Fofogaoali'i are tied on the criterion of hereditary right, each having a 1/2 relationship to the title.

II. Wish of the Majority or Plurality of the Clans

This was one of those rare cases in which the candidates more or less agreed on what the "clans" of the family are. At least during the tenure of the late Tuiteleleapaga Napoleone II, the most recent titleholder, the family has been organized into five clans.

It appears that one of these clans, Maualalo, consists entirely of people who are related to the progenitor of the clan not by blood but by adoption. The Maualalo people are, however, true members of the Tuiteleleapaga family, tracing their blood ancestry through other clans. It further appears that prior to the Napoleone period the family may have been divided into only two clans, one descended from Tuiteleleapaga Fue and the other from his sister Melesala. The five current clans have, however, participated as such in family affairs for some years, evidently without objection from anyone. We assess clan support accordingly.

All four candidates have some family support. Tuise'e appears to predominate within the Posu and Lusia clans and to have some support in other clans. Fue appears to predominate within the Napoleone I and Maualalo clans and to have some support in other clans. Fauatea appears [15ASR2d93] to predominate within the Fue or Alosio clan. Fofogaoali'i does not appear to predominate within any clan, although he does appear to have some support within several clans.

We find that Tuise'e and Fue are tied on the criterion of clan support, each having shown wide support including predominant support within two clans.

III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom

All four candidates are well qualified with respect to this criterion. Each has different strengths.

Tuise'e has lived in the Tuiteleleapaga family for twenty years and has served the family with diligence and devotion; he appears to be an honest, devout, and extraordinarily good-natured man who is well loved within the family.

Fue retired from the United States Marine Corps after thirty years, numerous important assignments, and an impressive number of commendations and decorations. He has since served in a number of important positions within the American Samoa Government and is also quite active in Church activities. He is the most materially successful of the candidates; his success outside the fa'aSamoa, however, does not seem to have been accompanied by any diminution in his respect for traditional virtues or in his devotion to the family.

Fofogaoali'i served for some years as pulenu'u of Leone, has served for many years as a matai, is active in Church affairs, and appears to have the dignity, knowledge, and sense of responsibility that befit such activities.

Fauatea, although he only recently begun living within the family in Leone and has not been as active as the other candidates in family, village, or public affairs, appears nevertheless to be an intelligent and agreeable person who is genuinely devoted to the family.

All the candidates have distinguished military records, are active churchgoers, and acquitted themselves well in response to questions designed to test their knowledge of Samoan custom. [15ASR2d94]

The judges have determined that the accomplishments of Fue stand out in this distinguished field, and therefore find that Fue prevails on this criterion.

IV. Value to Family, Village, and Country

For the reasons stated in the discussion of the third criterion, all four candidates would be of value to the family, village, and country. Again, however, the many accomplishments of Fue, his energy and diligence, and the status he has already attained within the community cause him to prevail on this criterion.

It was suggested by some opposing counsel that Fue might be insufficiently flexible and conciliatory to accomplish the most important task of a matai, which is to bring and keep the family together. There is great truth in the observation that authority is always most effectively exercised with humility; Despite some friction during the recent contest, however, relations within the family and among the candidates appear generally to be characterized by affection and respect. We are confident that Fue will direct his energies and his leadership qualities toward uniting rather than dividing the family, and that in so doing he will have the help of Tuise'e, Fofogaoali'i, and Fauatea.

V. Conclusion

Fue, having prevailed along with Tuise'e and Fofogaoali on the first criterion and with Tuise'e on the second, and having prevailed outright on the third and fourth criteria, has the right to hold the title Tuiteleleapaga. Judgment will enter accordingly.

It is so Ordered.

*********

1. Objector Fue I. Tuiteleleapaga is also a holder of the matai title "Peseta" in Western Samoa. On cross-examination he revealed that he has registered this title in Western Samoa but that he is not a citizen of Western Samoa. Opposing counsel laid great stress on this apparent violation of that nation's "Samoan Status Act," which makes it a crime for anyone but a Western Samoan citizen with some Samoan blood to hold a matai title. See Tuika v. Chief Election Officer, 9 A.S.R.2d 57 (1988). The candidate testified, however, that he was unaware of the provisions of that Act and had never been required to take an oath of allegiance to Western Samoa. The apparent violation of Western Samoan law, therefore, does not reflect on the candidate's character or on any other qualification to hold the Tuiteleleapaga title.

On cross-examination of candidates Tuise'e and Fauatea it developed that these candidates are the holders of unregistered matai titles in apparent violation of A.S.C.A. § 1.0414. In neither case, however, does the failure to register appear to have been motivated by a desire to defeat the rights of any other claimant to the title. Without conferring our approval on the use of unregistered matai titles in violation of A.S.C.A. § 1.0414, but in the interest of convenience and clarity, we refer to each candidate by the name he used in filing his claim or objection in the present case.

In re Matai Title “Tauala”,


LUA VASA TAUALA, Claimant

v.

TA'AVASA F. FALESIGAGO TAUALA, Objector

[In the Matter of the Matai Title

"TAUALA” of the Village of Ta'u]

High Court of American Samoa
Land and Titles Division

MT No. 6-88

May 29, 1990

__________

When an Associate Judge of the High Court made a comment during trial that a party had obstructed the installation of a chief who was a cousin of the judge's wife, this relationship was too attenuated and the incident too peripheral to require disqualification of that judge.

Waiting until after a trial to move for a judge's disqualification is highly improper; doing so constitutes a waiver of the objection.

The Court must make its assessment of family support for a matai candidate as of the time of trial.

Statute which lists the priority of criteria with which the Court is to evaluate matai candidates requires only that the Court give more weight to each criterion than to each of those which follow it; some consideration should also be given to the relative margins by which various candidates prevail on each of the four criteria. A.S.C.A. § 1.0409. [15ASR2d66]

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

Counsel: For Claimant, Charles V. Ala'ilima

  For Objector, Togiola T.A. Tulafono

On Motion to Reconsider or for New Trial:

We held that Ta'avasa F. Falesigago Tauala was entitled to hold the Tauala title of the Village of Ta'u, Manu'a. The losing candidate, Luavasa Tauala, brings this motion for reconsideration or new trial. We address the grounds for Luavasa's motion in the order in which they were raised.

I. Disqualification of Associate Judge

Luavasa argues that one of the four Associate Judges on the panel should have disqualified himself. This argument is based on a suggestion made during the trial that Luavasa had obstructed the installation of a chief who is a cousin of the judge's wife. No motion to disqualify the judge was made during the trial; the issue is raised for the first time by way of the present motion.

A motion to disqualify would almost certainly have been denied even if it had been timely made. Although extended families are more important in Samoa than they are in most Western cultures, the relationship involved in this case was too attenuated and the incident in question too peripheral to require disqualification. If the judge's wife were herself a member of the Tauala family, or even if her cousin were himself one of the contenders, disqualification would probably be appropriate to avoid the appearance of impropriety. If, however, a Samoan judge were required to disqualify himself whenever a party was alleged to have opposed or offended one of his wife's cousins, it would frequently be impossible to assemble a quorum of the Court.

Such a rule would also work to the peculiar advantage of certain kinds of litigants: the more people's cousins somebody had offended, the better his chances of trial by the judges of his choice.

The incident, moreover, was barely mentioned at trial; it was not specifically discussed in the Court's opinion; and, contrary to the [15ASR2d67] central assumption behind the present motion, it played no significant role in the Court's deliberations. It was one in a string of instances in which Luavasa was alleged to have been inappropriately combative or high-handed. Several far more egregious instances of such conduct---principally Luavasa’s own repeated violations of statutes and court orders during the ongoing Tauala title controversy, and his role in the installation of an illegal claimant to the Sotoa title---did figure heavily in the Court's decision. These instances alone would have compelled our conclusions about this aspect of Luavasa’s character. (Even these, however, were overshadowed by other character issues and by other issues altogether. Exclusions from the village council and similar incidents consumed only a few lines in a twenty-page opinion.)

Last but not least, it is highly improper to wait until after the trial and then move for disqualification of the judge. Counsel tries to get around this fundamental rule by suggesting that he and his client did not know before trial that this incident would be brought up. This is no excuse for failing to suggest disqualification after the incident was mentioned at trial. Counsel then suggests that he had no way of knowing that it would be significant to the Court's decision. It was not; but even if it were, Luavasa would have waived his objection by waiting to see which issues would impress the Court (and, not incidentally, who would win and who would lose) before moving to disqualify the judge.

II. Support of the Clans---Factual Contentions

Counsel takes issue with our findings of fact relating to this criterion. We reiterate those findings, with the following additional observations:

a) The "Samoan Affairs letter" on which counsel relies was shown to have been written not as a result of any family decision made in the presence of the Samoan Affairs official who wrote the letter, but because the Samoan Affairs official was told by some unidentified person or persons that Ta'avasa had agreed to withdraw his candidacy. He denies having made such an agreement, and never did withdraw.

b) Although it is apparently true that Tunupopo Laeli is not a registered matai ---and although we do not approve of his failure to register his title in accordance with law ---we did not rely on him for any proposition on which registration would substantially enhance the probable accuracy of his opinion. It is undisputed that he was chosen by the family, with the support of Luavasa himself, for a position of great [15ASR2d68] respect and authority within the family. His statement that many people the family support Ta'avasa is important evidence, as is his personal support of Ta'avasa.

c) The two recent family meetings on which counsel places his heaviest reliance were not shown to have been representative enough or deliberative enough to be indicative of "the support of a majority or plurality of the clans." The most recent meeting, the only one of which w~ were presented with detailed evidence, was called on the eve of trial by a prominent supporter of Luavasa and appeared to consist entirely of eight speeches.

d) We hope and trust that we did not "def[y] all logic" by suggesting that some of Luavasa's support was generated by his having illegally undergone the formalities requisite to assumption of the Tauala title. As counsel well knows, many Samoans attach a quasi-sacramental importance to such ceremonies. As opposing counsel put it in 1976 in his application for an order to restrain Luavasa from participating in the pa'i faleula, the person who underwent this ritual would be regarded as the Tauala "in the eyes of the family, the village and the whole Samoa"---no matter what the law said and no matter how many family members did not wish him to undergo the ceremony.

The Court order restraining Luavasa from undergoing the ceremony, and the subsequent orders restraining him from holding himself out as the Tauala, were issued partly in order to ensure a level playing field while each candidate sought to gather and demonstrate support within the family. Luavasa defied these orders. In so doing he bained some of the tactical advantages the orders (and the statutes on which they were based) were designed to deny him. We did not and do not say that no candidate who illegally assumes a title can ever prove that he has the support of the family. Nor, however, could we simply ignore this factor in our assessment of the candidates' relative support. Its effect was to take a muddled situation and muddle it even more.

e) Finally, Luavasa makes the ironic claim that the Court ignored clear evidence of his overwhelming support by failing to give him credit for this person or that one who formerly supported him but who now supports Ta'avasa. This is irrelevant, if not positively harmful to Luavasa's case. The Court must make its assessment of family support as of the time of trial. Assuming the truth of Luavasa's assertion that Lefiti, Laeli, and others formerly supported Luavasa but later [15ASR2d69] became angry with him and went over to Ta'avasa, they still count as supporters of Ta'avasa.

III. Support of the Clans---Legal Contention

Even if we had found that Luavasa had the support of the plurality of the clans, it would have been a close decision. Under the circumstances of the present case, a relatively indecisive showing on this criterion would have been outweighed by our stronger findings for Ta'avasa on the third and fourth criteria.

Counsel for Luavasa, however, seems to argue that a finding for one candidate on the second criterion outweighs findings for the other candidate on the third and fourth criteria, invariably and as a matter of law. He bases this argument on the statutory mandate that the Court "shall be guided by the [four statutory] considerations, in the priority listed." A.S.C.A. § 1.0409. The first of these considerations is blood relation to the title; the second is support of the clans; the third is "forcefulness, character and personality" and "knowledge of Samoan customs"; the fourth and final criterion is "value. ..to the family, village and country."Id.

We read the statute to require only that we give more weight to each criterion than to each of those that follow it. This is not inconsistent with the idea that some consideration should also be given to the relative margins by which various candidates prevail on each of the four criteria. Thus a strong showing on the second criterion could outweigh a relatively weak one on the first criterion ---so that, for instance, a candidate with strong family support and a "25% relationship” to the title could prevail over a candidate with weak family support but a "50% relationship." Similarly, an Eagle Scout with abundant knowledge of Samoan custom and strong family support might prevail over an axe-murderer with no knowledge of Samoan custom but slightly stronger family support.

More to the point, a candidate might win by tying his opponent on blood relationship; making a creditable but not quite victorious showing on clan support; and prevailing hands down on character , knowledge of Samoan custom, value to the family, etc. This would be the situation in which Ta'avasa would find himself if we had found Luavasa to prevail on the clan support criterion. [15ASR2d70]

We are acutely aware of the danger that giving excessive weight to "subjective" aspects of the matai selection statute could lead to the Court's imposing its own values over against those of the family. We try to guard against this tendency; it is not going too far to say that we agonize over it. The statute, however, explicitly requires us to give some weight to each of the four criteria and to make written findings on all four. See A.S.C.A. § 1.0409(d).

The alternative interpretation of the statute suggested by counsel would seem inconsistent with these statutory requirements. If a finding f(Jr one candidate on the first or second criterion necessarily precluded a victory for another candidate who prevailed on subsequent criteria, then it would be superfluous to consider the subsequent criteria at all. A son ()f a former matai would have a "50% blood relationship" and would always prevail over a grandson, who would have only a "25% relationship, " regardless of their other qualifications. This has never been the law.

IV. Character, Value to the Family, Etc.

Counsel for Luavasa primarily objects to the relative weight we attached to various undisputed facts respecting the third and fourth statutory criteria. We have considered the arguments of counsel and stand by our original opinion on these matters.

Counsel does, however, raise one factual contention that must be addressed. He asserts that the crimes Luavasa committed while in the military were "apparently minor AWOL charges." At the hearing on this motion the Court pointed out that the record was at least as consistent with serious crimes as with minor ones. The Court also observed that Luavasa's testimony and demeanor when confronted with the charges did not seem consistent with the proposition that they were trivial infractions. In our original opinion we were not so much concerned with the crimes themselves as with the fact that he lied under oath when confronted with them. Since Luavasa himself seemed to be putting the seriousness of the offenses at issue, however, we offered his counsel an opportunity for a supplemental evidentiary hearing on this issue. Counsel declined this offer.

We note also counsel's positive assertion that there were only two courts martial. The record is at least as consistent with the proposition that there were three. Luavasa finally admitted to two, after initial denials and evasions. When asked a detailed and specific question [15ASR2d71] about a third court martial (whether he was not also convicted "on October 24, 1967," of "making. ..a false statement with intent to deceive") he did not deny it but said he did not remember.

Accordingly, the motion is denied.

It is so Ordered.

**********

In re Matai Title “Muagututi'a”,


TUPUSEMANUIA M. TAUOA, Claimant

v.

MALELE A. MUAGUTUTI'A, Objector

[In the matter of the Registration of the Matai Title
"MUAGUTUTI'A of the Village of Faga'itua]

High Court of American Samoa
Land and Titles Division

MT No. 2-86

April 18, 1990

 __________

The statutory deadline for filing motions for reconsideration or new trial is jurisdictional; if no such motion is filed within the requisite ten days, the Court no longer has the power to reconsider or amend its judgment and the losing party no longer has a right to appeal. A.S.C.A. § 43.0802(a)

Relief from a judgment under Rule 60(b) of the Trial Court Rules of Civil Procedure is not available to a party who could have raised the same claims or defenses by motion for new trial but did not.

Although mere consultation with a prospective client does not always give rise to the full panoply of attorney-client obligations, it imposes at the very least a duty not to induce detrimental reliance on the part of the prospective client.

A lawyer or legal practitioner who indicates his willingness to take a particular case if a retainer is paid, without even inquiring into the existence of any impending deadlines in the case, runs a great risk of inducing detrimental reliance in the client.

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

Counsel: For Claimant, Utu Sinagege R.M.

  For Objector, Tau'ese P.F. Sunia

On Motion for New Trial: [15ASR2d2]

On March 6, 1990, the date scheduled for trial of this matai title case, only claimant Tupusemanuia appeared in Court. Tupusemanuia and his counsel informed the Court that a family meeting had been held the day before, at which Malele had announced that he would withdraw his objection. On the strength of this representation (and also because the record reflected that Malele knew about the trial, having been present in Court when the trial date was announced) the Court proceeded to hear the testimony of Tupusemanuia and to render judgment in his favor.

The Court's opinion also noted, however, that Malele would have until 4:00 p.m. on March 19, 1990, to file a motion for reconsideration and/or new trial. This was in accordance with A.S.C.A. § 43.0802(a), which provides that a motion for new trial shall be filed within ten days after announcement of the judgment. The section also makes the timely filing of such a motion a prerequisite to any appeal.

On March 21, 1990, Malele filed a motion for new trial. He alleges that he never told anyone that he intended to withdraw his claim to the title, and that his failure to appear in Court on the trial date was due to illness.

At the outset we note that the motion for new trial was filed two days late. The statutory deadline for filing motions for reconsideration or new trial has been held to be jurisdictional; if no such motion is filed within the requisite ten days, the Court no longer has power to reconsider or amend its judgment and the losing party no longer has a right to appeal. Fai'ivae v. Aumavae, AP No.2-76; see generally Judicial Memorandum No.2-87, 4 A.S.R.2d 172 (1987). A motion for relief from a judgment more than ten days old can be granted only under the very limited circumstances set forth in Rule 60(b) of the Trial Court Rules of Civil Procedure. See Amerika Samoa Bank v. Pritchard, 5 A.S.R.2d 106 (1987). Relief under Rule 60(b) is not available to a party who could have raised the same claims or defenses by motion for new trial but did not get around to it. See Wray v. Wray, 5 A.S.R.2d 34, 43- 44 (1987).

The explanation proffered by Malele for the late filing of this motion is that he had consulted prior to trial with someone in the Office of the Public Defender and had been under the impression that the Public Defender was representing him. Upon receiving a copy of the judgment he attempted a further consultation with the Public Defender and learned that the Public Defender cannot represent him in this non-criminal matter. He consulted with his present counsel on March 18, when there [15ASR2d3]was still one day left in which to file a motion for new trial. This counsel was willing to represent Malele on a motion for new trial, but told him ---without bothering to look at the date of the judgment ---to come back with some money for a "retainer." Malele apparently followed this instruction, and on March 21 his new counsel got around to looking at the Court's opinion. Noticing at last that the filing deadline had expired, counsel nevertheless immediately filed a motion for new trial and hoped for the best.

Needless to say, this is the sort of conduct that leads to disciplinary action and to malpractice liability. The attitude that an attorney or legal practitioner has no ethical obligations toward a client or prospective client until he has been paid some money is incorrect and dangerous.

An attorney-client relationship ordinarily rests on contract, but it is not necessary that the contract be express or that a retainer be requested or paid. The contract may be implied from conduct of the parties. . ..The relationship is created when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.   Kurtenbach v. TeKippe, 260 N .W .2d 53, 56 (Iowa 1977) (citations omitted).

Although mere consultation with a prospective client does not always give rise to the full panoply of attorney-client obligations, it imposes at the very least a duty not to induce detrimental reliance on the part of the prospective client. A lawyer or legal practitioner who indicates his willingness to take a particular case if a retainer is paid, without even inquiring into the existence of any impending deadlines in the case, runs a great risk of inducing such reliance.

If the present motion were otherwise meritorious, we would have to decide whether the delay in filing it was due to "excusable neglect" within the meaning of Rule 60(b). If so, the judgment could be set aside; if not, Malele would be left to seek whatever satisfaction he might derive from a malpractice suit against his counsel. [15ASR2d4]

The circumstances surrounding Malele's absence from the trial, however, are such that a motion for new trial would not have been granted even if it had been timely filed. At the hearing on this motion Malele testified that he knew about the trial but was too sick to appear in Court. He testified that he called his place of employment to say he would not be coming to work, but that he did not call the Court because he did not know the telephone number. He also testified, however, that he has a telephone directory at home. He further testified that many members of his family support his claim to the Muaguluti'a title. It is inconceivable that a serious contender for a matai title who was sufficiently lucid to call in sick from work would not also arrange for someone to appear in Court to explain his absence at the scheduled trial. Malele's inability to explain why he neither made such arrangements nor even made a telephone call to the Court, to his opponent Tupusemanuia, or to some friend or relative in an effort to seek a postponement, lends strong support to the version of events originally offered by Tupusemanuia.

We conclude that Malele did agree, however grudgingly, to withdraw his objection; that he mayor may not have been ill on the day of trial, but in any case did not care enough to appear in Court or to explain his absence; and that he later had a change of heart, perhaps upon receiving the Court's opinion with its faint praise for Tupusemanuia and its reminder that he, Malele, could still seek a new trial. On these facts a motion for new trial should be denied even if timely filed.

In conclusion, the motion for new trial is untimely and the Court therefore has no jurisdiction to consider it. Treating the motion as one for relief from judgment under Rule 60(b), it is denied for failure to state a meritorious claim.

It is so Ordered.

   *********

 

In re Matai Title “Liua”,


PISAMOA TAIFANE, Claimant

v.

SIAOSI P. LIUA, and MOU LIUA, Objectors

[In the Matter of the Matai title
"LIUA" in the village of Poloa]

High Court of American Samoa
Land and Titles Division

MT No. 04-88

June 1, 1990

__________

Objection to a matai title claim was not filed within the sixty days required by statute where the timely original objection was filed and withdrawn by relatives without objector's knowledge and his motion to intervene in the case was not filed until eight years later. A.S.C.A. § 1.0407(a).

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

Counsel: For Claimant, Tau'ese P.F. Sunia

  For Objector Siaosi Liua, Asaua Fuimaono

This outstanding matter originated back in August 7, 1981, when Pisamoa Taifane filed with the Territorial Registrar a succession claim to the title "Liua" of the village of Poloa. Consistent with the requirements of A.S.C.A. § 1.0407, the Registrar publicly posted notice of the said claim for the requisite period of 60 days. The claim attracted a timely objection from Mou Liua, as well as an objection filed on behalf of Siaosi Liua by Sala Sarniu as counsel for Siaosi Liua. On October 16, 1981, the Registrar referred the matter to the Office of Samoan Affairs In accordance with A.S.C.A. § 43.0302. Somehow, the matter then got buried at the Office of Samoan Affairs for the next five years. On November 19, 1986, the Territorial Registrar received from the then hearing officer for the Office of Samoan Affairs, Pulele'i'ite M.F. Tufele, a memo (which also appears to have been signed by objector Mou Liua) advising that Mou Liua had withdrawn his objection and that ill terms of the requirements of A.S.C.A. § 43.0302, "the case has been [15ASR2d81] settled and closed.” Memorandum, Office of Samoan Affairs to Territorial Registrar, Serial 319:86, November 19, 1986. Notwithstanding this opinion rendered about a concluded settlement, the Territorial Registrar refused to register the title in favor of the claimant Pisamoa Taifane for the very obvious reason that the objection filed on behalf of Siaosi Liua was still pending. The Territorial Registrar finally submitted the matter to the High Court on October 25, 1988, as a "disputed claim" for judicial resolution in accordance with A.S.C.A. § 1.0409. The Clerk of Courts accordingly assigned the Territorial Registrar's file the next regular docket number, MT No. 04-88.

The next thing that happened with the file is that on January 10, 1989, a document was filed with the Clerk styled "Notice of withdrawal of counterclaim." It stated, among other things, that "counter-claimant Siaosi Liua has desired to withdraw his counter-claim to the title of Liua," and it was signed by Sala E. Samiu as counsel for Siaosi Liua. Then on February 7, 1989, claimant Pisamoa Taifane filed an ex-parte motion pro se seeking dismissal upon the ground that Siaosi Liua had now withdrawn his objection. The motion was neither granted nor denied by the Chief Justice who required, among other things, that an affidavit from Siaosi Liua himself be supplied to confirm the withdrawal of his objection.

On December 12, 1989, Siaosi Liua, now represented by attorney Asaua Fuimaono, filed a motion to intervene and set trial date. In response, counsel Tau'ese Sunia entered appearance on behalf of the claimant and filed a reply to the motion. The motion was heard and denied on December 29, 1989. The Court further ordered that Siaosi Liua either file his affidavit affirming or disaffirming counsel Sala Samiu's withdrawal of his objection within 60 days or suffer the dismissal of any claims he may have for lack of prosecution. On January 26, 1990, yet another motion to intervene and set a trial date was filed by Siaosi Liua. With this filing, however, an affidavit by Siaosi Liua (a member of the United States Air Force stationed at Tucson, Arizona) finally materialized; it nonetheless failed in its entirety to address the issue of whether the objection withdrawal by counsel Sala Samiu was authorized or not. For a variety of reasons, the hearing of the motion was postponed. In the interim, claimant Pisamoa Taifane also filed a motion for summary judgment. Eventually the Court set all pending motions for hearing on May 30, 1990, and further ordered that a subpoena issue to Sala Samiu to appear and testify as to the circumstances behind his representation of Siaosi Liua. [15ASR2d82]

At the hearing, Sala Samiu testified that he was instructed by his sister, the mother of Siaosi Liua, to file an objection on her son's behalf. He was also instructed by his sister to withdraw the objection after being reassured by his sister that the matter had been settled within the family. Sala Samiu had no direct communication, however, with his off-island nephew. Siaosi Liua was also present at the hearing and he also took the stand. He testified that he had no idea in 1981 that the Liua title was the subject of succession claims nor that an objection had been registered on his behalf. He candidly admitted that he had only heard about the matter sometime last year and then decided to get involved with contesting the family title because of the urging of one of his aunts, and because he had discovered that his cousin Mou Liua was no longer interested in the title.

Conclusion

On the testimony, it is abundantly clear that Siaosi Liua was not an objector to Pisamoa Taifane's claim filed with the Territorial Registrar in 1981. For some seven years he was not even aware that he was put forth as an objector, let alone as a candidate, for the matai title Liua. Furthermore, the evidence was also very clear that Siaosi Liua's present desires for the title relate to a recent fallout between certain members of his side of the family and claimant Pisamoa Taifane.

On the law, there is not the slightest ambiguity with the statute's requirement that objections to a matai title claim are to be filed with the Territorial Registrar within the sixty (60) days of the public posting of that claim. A.S.C.A. § 1.0407(a) provides in part: "The territorial registrar may not accept any counterclaims or objections filed after the sixtieth day as defined herein." To permit Siaosi Liua to intervene at this stage would be to ignore the unequivocal statutory mandate.

The situation before us then is that of one party remaining. In such circumstances, there is no disputed claim for trial and dismissal is, therefore, appropriate. In re the Matai title Lutali, 4 A.S.R. 10 (1970). The matter is dismissed and remanded to the Territorial Registrar.

It is so Ordered.

*********

In re Estate of Poiali'i,


In the Matter of the Estate of
TUI POIALI'I aka TUI BOI, Deceased

High Court of American Samoa
Trial Division

PR No. 24-76

June 5, 1990

__________

Statutory requirement that testator's signature must be witnessed is not satisfied when the "witness" has no idea whether the signature appearing on the will is that of the testator or not. A.S.C.A. § 40.0102.

Proof of testator's signature can be obtained either by the witness's observation of the testator in the act of signing or by the testator's later acknowledgment of the signature; the bare presence of the testator when the witnesses sign is insufficient.

Provisions of Rule 11 of the Territorial Court Rules of Probate Procedure, which allow proof of a will by other evidence when witnesses are unavailable, requires a showing that the witnesses could not have been located by the exercise of due diligence.

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

Counsel: For Manu'a, John L. Ward II

  For Manuma, Charles V. Ala'ilima

Tui Poiali'i, a resident of American Samoa, died in San Francisco in the early morning hours of May 6, 1973. About three years later a son by decedent's first marriage, Manuma Tui Poiali'i, offered a will for probate. The will was dated May 3, 1973. It named Manuma as executor and left all the decedent's property to his children by the first marriage.

The probate action then languished for about twelve years. In 1988 the Court reviewed its old files and ordered Manuma to file an accounting. Apparently as a result of some activity generated by this order, the Court was then presented with a second will. This one was filed by Manu'a Peau Poiali'i, who had been the third and final wife of the deceased. It distributed the decedent's property to Manu'a herself, except for two conveyances (or "confirmations" of "assignments") of [15ASR2d112] interests in real property which, we have learned, mayor may not have been the decedent's to convey. This will was dated March 21, 1973.

An evidentiary hearing was held with respect to the validity of the two wills. The principal witness on behalf of the March 21 will was the widow, Manu'a; the principal witness for the May 3 will was the son, Manuma. Manu'a also presented a deposition from one of the two subscribing witnesses to the March 21 will. Manuma did not present the testimony or affidavit of any of the witnesses whose names appear on the May 6 will.

A.S.C.A. § 40.0102 provides in pertinent part that "the signature of the testator...must be witnessed by 2 competent persons who shall sign their names thereto as attesting witnesses." This provision incorporates a rule which has long been in effect throughout the Anglo-American legal world, with variations from jurisdiction to jurisdiction.

Rule 11 of the Territorial Court Rules of Probate Procedure provides that "the valid execution of a will, the capacity of the testator to execute the will and the voluntariness of the execution" must be proved by the testimony or affidavit of one of the attesting witnesses to the will. Rule 11 further provides that "[i]f both attesting witnesses are dead or unlocatable, the Court may accept whatever extrinsic evidence as to the validity of the will as the Court deems appropriate." This provision also restates the general rule in most jurisdictions.

The deposition testimony of Sapele Taito was to the effect that during March of 1973 she signed a "document concerning Tui Poiali'i." She said she did not know what the document was or what it meant. She further testified that she signed the document inside Poiali'i's house in Pago Pago. She identified her own signature on the will and that of the other subscribing witness, who has passed away. She did not recognize the signature of Tui Poiali'i himself, because he did not sign in her presence. She did say that Tui, as well as his wife Manu'a, were there when she and the other witness signed the document and that Tui did not appear to be ill. This was the extent of her testimony.

This testimony is insufficient to prove that Tui Poiali'i executed the March 21 will. The requirement of A.S.C.A. § 40.0102 that "the testator's signature. ..must be witnessed" is not fulfilled when the "witness" has no idea whether the signature is that of the testator or not. Such knowledge can be obtained either by the witness's observation of the testator in the act of signing or by the testator's later acknowledgment [15ASR2d113] of the signature. Estate of McKellar, 380 So.2d 1273 (1980); Manners v. Manners, 66 A. 583 (N.J. Eq. 1907); Atkinson on Wills § 66 (2d ed. 1953). Some courts have held that the testator must specifically acknowledge not just the document but the signature itself. Argo v. Geise, 134 S.E.2d 134 (1968). Others have required only that the testator make it clear to the witnesses that the document was intended to be his will. Estate of Cunningham, 487 A.2d 777, 778 (N.J. App. 1984); Luper v. Werts, 23 P. 850 (Or. 1890). "However, the bare presence of the testator when the witnesses sign is not an acknowledgment. There must be something more than simple passivity." Atkinson on Wills § 66 at 325 (citations omitted). Here there was evidence of the testator's bare presence and nothing more.

The proof of the May 3 will was even less satisfactory. None of the witnesses testified and no affidavit from any of them was offered. Manuma testified that the three witnesses were friends of a friend of his, brought to the hospital in which Tui Poiali'i lay dying for the express purpose of witnessing the will. He said he had never seen any of them before, never saw any of them again, and had no idea how to get in touch with any of them. All he could remember was that they were all about twenty-one years old in 1973. (It seems that the friend had initially procured some younger witnesses, but had then been informed that twenty-one-year-olds would be necessary.)

Provisions such as that of our Rule 11, to the effect that wills may be proved by other evidence when the subscribing witnesses are unavailable, have been uniformly interpreted to require a showing that the witnesses could not have been located by the exercise of due diligence. Gillis v. Gillis, 23 S.E. 107 (Ga. 1895); Tackett v. Tackett, 265 S.W. 336 (Ky. 1924); Helms v. Sheek, 77 So.2d 820 (Miss. 1917). It follows a fortiori that the evidence should be sufficient to convince the Court that the subscribing witnesses actually did exist.

Atkinson on Wills provides the following suggestion on the choice of witnesses to a will:

In the case of a testator in the prime of life, of undoubted mental competency, and not subject to undue influence. ...it would not be objectionable if the witnesses had no previous acquaintance with the testator. Such witnesses should be introduced to the testator by a common acquaintance, however, and the parties should be permitted to talk together for a few [15ASR2d114] moments in order that the witnesses can throw some light upon the mental state of the testator. Of course one should not select a legatee or devisee or anyone who might be considered financially interested Naturally, the witnesses should be sufficiently mature so that no question might arise on this score. ... They should be permanent residents of the locality so that they can be reached readily when needed. A witness who is deceased presents less of a problem upon probate than one who cannot be located....

When the testator is old and infirm, or if there are any possible circumstances upon which his competency might be questioned, it is advisable to choose the attesting witnesses from among the testator's closest acquaintances.

Id. § 74 at 351-52. Manuma, whose own testimony made it clear that he was the principal organizer of the May 3 will, violated every rule in the book. The testator was about to die; his medical records raise serious questions about his testamentary capacity in the days before his death; his signature on the will, assuming it to be his signature, was so faint that somebody later found it necessary to trace over the signature with a darker pen; the will specifically disinherits a widow and three young children; and Manuma chose witnesses who were virtually guaranteed to be unavailable to testify and whose evidence about the identity and capacity of the testator would in any event have been next to useless. He offered no explanation of why the (unidentified) attorney who prepared the will did not also attest it, or why attending medical personnel or family friends were not asked to be witnesses. Indeed, it is hard to understand why it was necessary for Manuma's friend to go out and find three twenty-one-year-olds rather than serve as a witness himself. The trier of fact is told, in effect, that the will was obtained from an honest-looking fellow in a bar who said he found it when it fell off a truck.

Under these circumstances we do not "deem appropriate" the interested testimony of Manuma himself as sufficient extrinsic evidence of the validity of the May 3 will.

Accordingly, we find that Tui Poiali'i died intestate. A.S.C.A. § 40.0305 provides that his widow, Manuma, has the statutory right to serve as administratrix. She has already applied and is therefore [15ASR2d115] appointed. She shall provide an inventory of the property in the estate within three months. (We understand that a further hearing may be necessary to determine, inter alia, whether the house occupied by the parents of Manu'a and a property called "Nuumau" apparently now in the possession of Manuma are property of the estate. We urge once again that all parties attempt to reach a reasonable settlement in lieu of further litigation.)

Manu'a will be issued letters of administration upon submission of such letters by her counsel along with proof that she has taken the requisite oath.

It is so Ordered.

*********

Huff; Huff v.


BUCK MATHIS HUFF, Petitioner

v.

ADELINE PRITCHARD HUFF, Respondent

High Court of American Samoa 
Trial Division

FJ No. 3-89

June 4, 1990

__________

The Uniform Enforcement of Foreign Judgments Act was designed to give a foreign judgment creditor the same right to enforce his judgment in American Samoa that he would have in the State or Territory in which he obtained the judgment. A.S.C.A. § 43.1701 et seq.

Although the California family court which granted divorce judgment retained jurisdiction to enforce the judgment and the parties to that judgment could move to enforce it in that California court, High Court was not precluded from enforcing the judgment under the Uniform Enforcement of Foreign Judgments Act where both parties currently resided in American Samoa. A.S.C.A. § 43.1701 et seq.

Where enforcement of California judgment is sought in American Samoa, party against whom enforcement is sought is entitled to the same process here that he would receive in California. A.S.C.A. § 43.1701 et seq.

Defense of estoppel requires that the party who raises the defense establish his own good faith or "clean hands."

Even without a showing of "clean hands," the Orders in Aid of Judgment statute permits relief from having to pay the entire amount of a judgment at once. A.S.C.A. § 43.1501 et seq.

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

Counsel: For Petitioner, William A. Reardon

  For Respondent, John L. Ward II

Petitioner and respondent were divorced in California in 1982. The California judgment provided, inter alia, that respondent "shall be awarded ...as her sole and separate property ...proportionate interest in Petitioner's retirement benefits with Ralston Purina Company." [15ASR2d84] Respondent has filed this judgment with the High Court of American Samoa in accordance with A.S.C.A. § 43.1701 et seq., the Uniform Enforcement of Foreign Judgments Act, and now requests the Court to "allow execution or further process to issue."

The dispute between the parties concerns retirement benefits which Ralston Purina paid to petitioner between 1984 and 1989, apparently in ignorance of the divorce judgment awarding a portion of these benefits to respondent. The respondent claims that the share of these benefits belonging to her was $20,873.40. Petitioner does not dispute this amount, but argues that respondent is estopped from collecting it because she never notified Ralston Purina of the divorce judgment. Respondent further contends that this Court should decline to enforce the judgment because Ralston Purina is an indispensable party to the proceedings, and also because the California family court retained jurisdiction to enforce the judgment.

Counsel for respondent directs our attention to a recent case in which the California courts were faced with facts quite similar to those of the present case. In Farner v. Farner, 90 Daily Journal D.A.R. 45 (Cal. App. 1989), the appellate court held that when retirement benefits adjudicated to be the property of one spouse had been paid to the other spouse and the other spouse had converted such benefits to his own use, the spouse whose property had been thus converted should be treated as a creditor with a money judgment against the other spouse. The Judgment debt was therefore properly subject to a writ of execution. The appellate court held, however, that it was within the trial court's discretion to determine whether a writ of execution was appropriate in the circumstances, and remanded to the trial court for such a determination.

Although Farner involved domestic rather than foreign execution on a judgment, this distinction does not suggest a different outcome in the present case. The Uniform Enforcement of Foreign Judgments Act was designed to give a foreign judgment creditor the same right to enforce his judgment in this Territory that he would have in the State or Territory in which he obtained the judgment. Petitioner and respondent now both reside inAmerican Samoa; this Court is manifestly the most convenient forum for adjudication of their respective rights under the judgment. Although respondent could undoubtedly move to enforce the judgment in the Californiacourt that issued it, nothing about that judgment suggests that the court retained jurisdiction in order to obstruct rather than facilitate enforcement. [15ASR2d85]

Petitioner is, however, entitled to the same process here that he would receive had enforcement been sought in California. Under California law a person against whom an award has been made in a divorce decree is entitled to judicial consideration of his arguments against enforcement. See Farnersupra, at 46, and authorities cited therein. Moreover, the judgment in the present case, like that in Farner,

raise[s] a judicial question because the clerk could not, with any certainty, ascertain the amount to be paid either from the order itself or the record as it existed upon entry of the order. The order potentially [is] a candidate for enforcement by execution, but only after review and hearing in the trial court.

Id. at 46. Cf. Parisi v. Parisi, 10 A.S.R.2d 106, 107-08 (Foreign judgment was enforceable as rendered, but subsequent assignment of judgment was "a private contract which, unlike a judgment, is not entitled to full faith and credit.") We therefore turn to the merits of petitioner's contentions.

We conclude that the California judgment did not allocate the burden of notifying Ralston Purina to either petitioner or respondent. The respondent would obviously have been well advised to do so. The record suggests no explanation for her failure to do so. On the other hand, the petitioner was the one who worked for Ralston Purina; who knew exactly when he was going to retire and thereby make it necessary for someone to notify Ralston Purina about the division of benefits; who presumably did have some dealings with the benefits office immediately prior to his retirement in 1984; and who knew or should have known, once he began receiving benefits, that part of what he was receiving was the property of someone else.

These circumstances may not have imposed on petitioner an affirmative duty to notify Ralston Purina of the divorce decree; but they weigh heavily against petitioner's defense that respondent is now estopped, on account of laches or otherwise, from retrieving her property. In order to sustain such a defense it would be necessary for petitioner to establish his own good faith or "clean hands.” In the present case this would require a showing that at all times between 1984 and 1989 he was under the impression Ralston Purina was paying him only his own share of the retirement benefits. No such showing has been attempted, and the record suggests it could not be made. [15ASR2d86]

In any case, such a showing would probably prove only that it \could be inequitable to force petitioner to pay the whole $20,000 to its rightful owner all at once, not that he should be allowed to evade payment altogether. As it happens, similar relief is available under A.S.C.A. § 43.1501 et seq., the Orders in Aid of Judgment statute, even without a showing of clean hands.

We do not believe that Ralston Purina is an indispensable party to this action. Indeed, we are not even sure it is a proper party, since it was not a party to the proceeding in which the foreign judgment was rendered. SeeParisisupra. Assuming that joinder were possible and that respondent were to prove that Ralston Purina owed her part of the money it sent to petitioner between 1984 and 1989, however, Ralston would appear entitled to indemnity from the petitioner himself." As between the two parties who violated the order, the party who received and spent the money must indemnify the party who merely released it." Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100, 104 (1988).

Accordingly, a writ of execution shall issue against the petitioner in the amount of $20,873.40. This order is without prejudice to the right of respondent to petition the Court for a further writ of execution for an amount equal to interest at the legal rate on the various amounts belonging to her which were received by petitioner. It is also without prejudice to the right of petitioner to petition the Court for an Order in Aid of Judgment. (We urge the parties to agree on a schedule of payments so as to render such further proceedings unnecessary.)

It is so Ordered.

*********

Garcia v. Galea'i,


JULIO ALVARADO GARCIA, Plaintiff 

v.

FATIMA GALEA'I dba PARADISE TRAVEL INC., 
and KEN VILIAMU, Defendants

CA No. 41-87

High Court of American Samoa 
Trial Division

April 27, 1990

__________

Bailment for mutual benefit arises whenever both parties benefit from the transaction.

Bailee need not receive tangible compensation for a transaction to constitute a bailment, so long as the transaction is an incident of the business in which bailee profits, or was accepted because of benefits expected to accrue.

Bailee exercising "due diligence" in care of bailed property must use the ordinary care which ordinarily prudent persons, as a class, would show in caring for their own property in similar situation.

Bailee who fails to return bailed property upon the bailor's demand is prima facie negligent, and must rebut the presumed negligence by showing he used due care in safeguarding the property.

Under doctrine of respondeat superior, a bailee employer is vicariously liable for loss or injury with respect to the bailed property which results from the negligence or wrongful acts or omissions of his employees in executing the bailment within the course and scope of their employment.

Bailee may not escape liability for his employee's negligence simply by instructing the employee to exercise due care.

Employer/bailee is also contractually liable for the negligence of his employees in executing the bailment, since he cannot receive money for performing a duty and at the same time escape liability for violating such duty by shifting the responsibility to an employee.

Bailee/employer was both vicariously and contractually liable for cash missing from bailed luggage, where he offered a luggage transport service to attract customers; his employee [15ASR2d15]picked up the luggage; and both bailee/employer and employee failed to take adequate security precautions to prevent tampering with the luggage.

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

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendants, Gata E. Gurr

Facts

At all relevant times, defendant Fatima Galea'i owned and operated a travel agency doing business as Paradise Travel, hereafter referred to as "Paradise". Part of the service which Paradise offered to its clientele included the earlier transfer of a customer's luggage, and then his later transport as well, to the airport. Paradise had the defendant Ken Viliamu in its employ to provide this special pick up service. The parties' written stipulation of facts contained the following description of Viliamu's duties:

[t]he instructions given by Paradise Travel to the employee [Ken Viliamu] was [sic] to pick up the bags from the purse seiner in a vehicle provided by the company, [and] lock them up inside the trunk of the car while the employee is at home awaiting the time to check them in. When it [was] time to check in, the employee was to take the luggage to the airport and check them in with the airline.

At all relevant times, plaintiff Garcia was a fisherman with a vessel affiliated with one of the canneries which numbered among Paradise's clients. He made plans to visit his family in Peru after his return from a certain fishing voyage and, as with his previous trips home, plaintiff’s employer arranged his round trip airline tickets through Paradise. On the appointed day of travel, therefore, defendant Viliamu was sent to collect plaintiff’s luggage. On this occasion Viliamu did not take the vehicle provided by his employer, but went in a pickup truck and was accompanied by four young men. He arrived at plaintiff’s vessel around eight in the evening, whereupon the plaintiff hurriedly changed and packed away a pair of shorts he was earlier wearing and in which he was carrying certain funds to be taken on the trip. Plaintiff [15ASR2d16] testified that this consisted of cash in the amount of $3,300.00 and traveller's checks in the amount of $420.00. He realized only after Viliamu had left that he had packed away his money along with his shorts. He made a mental note to remove his money from his bag once he got to the airport.

The parties further stipulated that:

[f]rom the purse seiner, Ken Viliamu and the men went to the main dock to pick up a fish. After picking up the fish the men proceeded towards Nu'uuli. On their way they picked up one Kapeneta Leuat Utulei. From Utulei Ken and his men went to Nu'uuli to drop off the fish. From Nu'uuli the group went to Pava'ia'i to drop off Mr. Leu. Upon leaving Pava'ia'i they headed for Tafuna. At Tafuna the luggage was unloaded and taken into the house belonging to Ken's family. At about 10:45 p.m., Ken took the luggage to the airport to be checked in.

When plaintiff arrived at the airport, he located Viliamu together with his luggage. Upon opening his bags, plaintiff discovered that the contents of his luggage had been tampered with; some of his clothing had been removed and all of his money was missing. After some exchange with Viliamu about the missing money, and after plaintiff made known his refusal to travel without his funds, Viliamuleft momentarily but then returned with plaintiffs traveller's checks. In the end, plaintiff did not get his cash nor did he travel that day; instead, he remained and filed a complaint with the Police Department. However, before the police had made any headway in their investigation of that complaint, Viliamu quietly managed to depart the territory and he is now thought to be living somewhere inNew Zealand.

Discussion

Plaintiff sues Viliamu's employer for the recovery of his missing funds arguing a breach of bailment and/or vicarious liability on the grounds of respondeat superior. For reasons given, plaintiff must prevail.

Firstly, we reject the notion harbored by the defense that Paradise could not have been a bailee because its luggage pick up service was gratis and "not a bargained-for exchange." To the contrary, [15ASR2d17]

[a] bailment for mutual benefit arises whenever it appears that both of the parties receive a benefit from the transaction. It is not essential, to constitute a bailment for mutual benefit, that the bailee actually receive compensation in money or tangible property, so long as the bailment is an incident of the business in which the bailee makes a profit, or was accepted because of benefits expected to accrue.

Global Tank Trailer Sales v. Texitilana-Nease, Inc., 496 P .2d 1292, 1294-95 (Kan. 1972). In the matter before us, Paradise can hardly claim to be acting gratuitously with its pick up service. Its efforts in this regard are business related and revenue motivated ---the attraction of clientele and the sale of airline passage. As Ms. Galea'i candidly explained, the pick up service was offered as an inducement for people to travel withParadise. In these circumstances Paradise became a depositary of its customers' property as an incident to its business (the bailment purpose being the attraction of patronage) and as such it is liable for the loss of that property as a bailee for hire, the relationship between the parties being one for mutual benefit. See also Berlow v. Sheraton Dallas Corporation, 629 S. W.2d 818 (Tex. App. 1982); Greer v. Los Angeles Athletic Club, 258 P. 155, (Cal. App. 1927), Hotels Statler Co. v. Safier, 134 N.E. 460 (Ohio 1921); See generally 8 C.J.S. Bailments § 8 (1962).

Since there was a bailment for mutual benefit, the next question is whether Paradise exercised the required due diligence in the care of plaintiffs luggage. Seee.g.Fraam v. Grand Rapids & I. Ry. Co., 126 N. W. 851 (Mich. 1910). That due diligence has been spoken of in terms of "ordinary care" which "ordinarily prudent men, as a class, would exercise in caring for their own property under the like circumstances." Id. at 853. See also8 Am. Jur.2d Bailments § 222 (1980).

We are satisfied that there was a bailment, and that certain of the bailed property was never returned by the bailee to the bailor upon the latter's demand. By the same token, however, we were told nothing about the funds except that they remained missing save for the returned traveler’s checks. There can hardly be any argument with the claim that Ken Viliamu simply did not take care of plaintiff’s luggage while he had it in his possession. The evidence was very clear; Viliamu failed to take any security precautions whatsoever with regard to plaintiffs property. From the time he picked up the bags to the time of check in, Viliamu had exposed the luggage to numerous opportunities for tampering, and,[15ASR2d18] indeed, it was tampered with. The bags were picked up in the hours of darkness; they were loaded into a pickup truck with a number of people and transported about for an extended period of time; during this time, third parties had access to the bags. Assuming that Viliamu himself was not responsible for the theft of plaintiffs funds, it logically follows, on the extent of the record before us, that plaintiffs loss arose through, or was proximately caused by, Viliamu's failure to properly look after the luggage.(1)

This is a loss for which Paradise is vicariously liable. As a master is vicariously liable for the actionable wrongs of his servants committed within the scope and course of employment,(2) so is the bailee employer answerable for loss or injury with respect to the thing bailed resulting from the negligence or wrongful acts or omissions of his employees in the execution of the bailment, within the course and scope of their employment. 8 Am. Jur.2d,supra at §§ 236-37. Certainly in the matter before us, the missing bailed property was stolen during the course of Viliamu's employment; his duties were to pick up plaintiffs bags and look after them, however, the bags were interfered with while Viliamu was supposed to be looking after them. [15ASR2d19]

We also find Paradise to be directly liable to plaintiff. We are told nothing about storage measures taken in connection with allowing an employee to take home a passenger's luggage except that he is instructed to lock up the luggage in the trunk of a company provided vehicle. We agree with the doubts raised by plaintiff as to the security of this practice. Paradise as the bailee enterprise had the primary duty of care towards the security of plaintiff’s property. It seems, however, that Paradise shifted that responsibility to Viliamu by being content to rely entirely on the employee to secure a reasonably safe storage when allowing him to take a customer's luggage home as opposed to a facility provided by Paradise specifically for this holding purpose. This entails reasonably foreseeable opportunities for tampering with a customer's luggage. Furthermore, a bailee should not be able to escape liability for his employee's failure merely because he had instructed the employee to exercise due care. In Metzger v. Downtown Garage Corp., 82 A.2d 507 (Pa. Super. 1951), it was held that a parking lot owner (the bailee) could not escape his contractual obligation towards the car owner simply by saying that he is not liable because his servant had stolen the owner's vehicle. The court here reasoned that "[t]hebailee cannot receive money for the performance of a duty, and at the same time shift responsibility to a servant, and thus be relieved from liability for the violation of the very duties attending the bailment. " Id. at 508. This" contractual" basis of liability is direct as opposed to liability imputed under the doctrine of respondeat superior for employee wrongs committed "during the course of employment. " See also Joseph v. Mutual Garage Co., Inc., 270 S.W.2d 137 (Kan. App. 1954); 8 Am. Jur.2d, supra at §§ 237-38.

For the foregoing reasons, plaintiff shall have judgment against defendant in the sum of $3,300.00.

*********

1. The courts have in many instances held that a bailee's failure to return bailed property upon demand by the bailor establishes a presumption or prima facie case of negligence against him. Accordingly, it has been determined that such a bailee must rebut the presumption or demonstrate that he did indeed use due care to safeguard the bailed property. See Am. Jur.2d Bailments §§ 329-338 (1980).

2. This principle of law, usually referred to by the label respondeat superior, and which in itself means nothing more than "look to the man higher up," is a rule of policy, a deliberate allocation of risk. Prosser and Keaton on Torts 500 (51h ed. 1984).

The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed on the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance to the public, and so to shift them to society, to the community at large.

Id. at 500-501.

Fauolo v. Satele ,


TUITASI FA'ASEMONO NAMU. UIAGALELEI LEALOFI,
UIAGALELEI IONE, ULUFALE SAGUE, FALE FAI'AI for
the DESCENDANTS OF FA'AILOILO FAUOLO, Plaintiffs

v.

SATELE MOMOSEA UOKA for the SATELE FAMILY, Defendant

High Court of American Samoa 
Land and Titles Division

LT No. 39-87

June 8, 1990

__________

Because statute permits freehold land to revert to communal status at the request of the owner, it follows afortiori that the same process is available for individual land. A.S.C.A. § 37.0201(b).

A land owner with title good against the world can alienate his land in a number of ways, including a stipulated judgment.

Before REES, Associate Justice, and MATA'UTIA, Associate Judge. [15ASR2d142]

 

Counsel: For Plaintiffs Namu and Fai'ai, Charles v. Ala'ilirna

  For Plaintiffs Lealofi and loaneLevaula Kamu and Fai 'ivae A. Galea'i

  For Plaintiff SagueGata E. Gurr

  For Defendants, Steven H. Watson and Tupa'i Se Apa

This case is a sequel to Satele v. Uiagalelei, LT No.17-86, 6 A.S.R.2d 143 (1988), aff'd sub nomSatele v. Fai'ai, 9 A.S.R.2d 19 (1989). The facts of this case, except as hereinafter discussed, are set forth in that opinion [hereinafter "the 1988 case"] at 6 A.S.R.2d 144-46.

The decision in the 1988 case involved most of the land contained in the survey now offered for registration; three of the four parties to that case ---the Satele and Uiagalelei families and Fale Fai 'ai for herself and the descendants of Fa'ailoilo Fauolo ---are also parties to the present case. All questions explicitly or necessarily decided in the 1988 case are, of course, res judicata among those parties.

The 1988 case held a tract comprising most of the area now offered for registration to be the individual property of the heirs of Fa'ailoilo. It also held an area to the north of the Fa'ailoilo tract to be Uiagalelei communal land and delineated the boundary between the two tracts. The case further held that a strip comprising roughly one acre in between the Fa'ailoilo and Uiagalelei tracts had been purchased from Uiagalelei by MariotaTuiasosopo on behalf of himself, his brother, and sister, as part of a settlement approved by the Court in a previous land dispute, and therefore belonged to them.

What is left for us to decide in this case concerns certain "p.<>ckets" within the Satele survey at its extreme northern, eastern, southern, and western boundaries. We also must adjudicate the rights of Namu and Ulufale, objectors to the present survey who were not parties to LT No.17-86; since their claims are almost entirely within the aforementioned "pockets, " we will discuss their claims together with those of the other parties.(1)

In discussing the various pockets of land presently at issue, we refer frequently to a composite map admitted into evidence as Exhibit 4. [15ASR2d143] This map, prepared by a surveyor at the request of objectors Fai'aiand Namu, illustrates the claims of all parties except Uiagalelei. The surveyor informed the Court he could not put the Uiagalelei claim on the map due to certain technical defects in the 1972 registered survey on which the claim is based. For the purposes of the present litigation, however, and without prejudice to the rights of non-parties, the Court is satisfied that a 1987 retrace of the 1972 survey (Exhibit 16, designating the 1972 tract as "Saumolia I") and a 1987 composite drawing (Exhibit 13) adequately locate the Uiagalelei claim with reference to the claims of other parties.

I. The Northern Pocket

The area to the north of the Fale Fai'ai/Fa'ailoilo resurvey (the red line on Exhibit 4, hereinafter "Fai'ai survey") and to the northwest of the land claimed by Namu (the black line on Exhibit 4, hereinafter "Namu claim") is the property of the Uiagalelei family, with the exception of a small section at the western edge of this pocket which is the property of the Satele family. The section which is the property of the Satele survey is the area within theSatele survey that is to the north of the Fai'ai survey and to the southwest of Saumolia I.

Satele claims the whole northern pocket. Although almost all of this area is within the 1972 Uiagalelei registered survey ("Saumolia i"), Satele raises objections to the validity of that survey. He did not, however, raise these objections in the 1988 trial, and the decision in that case held that this part of Saumolia I was the communal property of the Uiagalelei family. Conclusion of Law No. 46 A.S.R.2d at 146.

The objections raised by Satele to the Uiagalelei survey are, moreover, without merit. First, he observes that the land was registered as individual property of the late Uiagalelei Sinapati, whereas it is now claimed as communal land of the Uiagalelei family. The current Uiagalelei titleholder, however, testified that he and the other individual heirs of Uiagalelei had met and agreed that the land should belong to the whole family as communal land. Our law regards communal land as an institution to be sedulously fostered and specifically permits freehold land to revert to communal status "at the request of the owner." A.S.C.A. § 37.0201(b). It would seem to follow afortiori that the same process is possible for individual land. While an individual heir of the late Uiagalelei would have standing to prove that the owners have not in fact agreed that the land should be communal, we cannot see why a rival land claimant from outside the family would have such standing. [15ASR2d144]

Satele also points out that the "affidavit of posting" in the 1972 registration was not notarized. As we have had frequent occasion to observe, however, the" affidavit of posting" is an administrative convenience (albeit a salutary one) rather than a statutory requirement, and such self-described "affidavits" were frequently not notarized in those days.

With respect to the area of this pocket that is outside Saumolia I, however, Satele made the best claim. This general area (the northwestern part of the Satele survey, to the west of the area presently leased by the American Samoa Government for a landfill) is one of two areas within which there was solid evidence of long-time Satele occupation and cultivation.

Aside from the dispute between Satele and Uiagalelei in the area discussed above, there is one other dispute in the North. This has to do with the claim of Uiagalelei that the 1988 case incorrectly held part of Saumolia I to be the property of the Fa 'ailoilo heirs. Uiagalelei relies on Ifopo v. Siatu'u, AP No.12-89, holding that a valid land registration conveys title good against the world. Since some of the land held to belong to the Fa'ailoiloheirs in 1988 had already been registered by Uiagalelei, he urges that we restore it to him.

Again, the ownership of the parcel of land to which this argument refers was adjudicated in 1988, twice appealed by Uiagalelei, and twice upheld by the Appellate Division. It is res judicata. In any case, our holding with respect to the southern boundary of Saumolia I was based on a stipulated judgment to which Uiagalelei was a party. When Uiagalelei judicially acknowledged his southern boundary with Tuiasosopo (a relative of Fa'ailoilowho was then occupying the tract belonging to her) he implicitly acknowledged this boundary as against the true owner of the tract then occupied by Tuiasosopo as licensee. Even if the ownership of this area were not resjudicata, we would uphold the 1988 result. There is no inconsistency with Ifopo; an owner with title good against the world can alienate his land in any number of ways, including stipulated judgment.

II. The Eastern Pocket

The "eastern pocket" is defined as the area within Namu's claim. We hold that this area belongs to Namu, except for the portion at the north which is part of the 1972 registered survey ("Saumolia I") [15ASR2d145]belonging to Uiagalelei, and the portion at the south which is within the Ulufale claim.

Namu raises some excellent arguments to the effect that Uiagalelei's 1972 survey may have been conducted in violation of the statutory requirements and therefore did not convey title good against the world. See Ifopo,supra, slip opinion at 4; Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). Nor, unlike other parties to this case, is Namu barred by res judicata from relitigating the result of the 1988 case; he was not a party to that case.

Namu was, however, a witness in the 1988 case. He testified for Uiagalelei, and he testified under oath that the very land he now disputes with Uiagalelei is Uiagalelei land. The evidence is otherwise in equipoise as between the claims of these two parties; each presented evidence that he has claimed this land at various fairly recent times, and each claimed that his family has claimed it from time immemorial. The balance is tilted byNamu's sworn testimony two years ago that the land he now claims is actually Uiagalelei land.

With respect to Namu's dispute with Ulufale in the South, the evidence is that this area has been occupied by Ulufale at least since the 1950s and probably much longer. A trial transcript from the early part of this century , introduced by Namu to show that Ulufale may have derived his claim from an 'Upolu chief called Te'o Seva'aetasi, had the more important effect of providing reasonably objective evidence that Ulufale has long occupied land in this area. This evidence is inconsistent with the claim of Namu that he owns all the land on both sides of the road all the way from the land presently in dispute to the sea. Moreover, Namu's own testimony corroborated the claim by Ulufale that his family (including his brother Fuimaono, named by Namu as the person who deprived him of his land about thirty years ago) occupied the land for at least twenty years during a time when twenty years was the requisite period for adverse possession. Their occupation of this area was actual, open, notorious, exclusive, continuous, and certainly hostile to the claim of Namu.(2) [15ASR2d146]

III. The Southern Pocket

The Southern pocket is defined as everything within the Satele survey and south of a line defined by (a) the northern boundary of the Ulufale survey up to the point where it intersects the Fai'ai survey; and (b) the southern boundary of the Fai'ai survey from that point until it intersects the southern boundary of the Satele survey. (The Ulufale and Fai'ai surveys are the green and red lines, respectively, on Exhibit 4.)

For the reasons already discussed in part II above, Ulufale is the owner of the eastern portion of this area. This pocket includes a small portion of the Fai'ai survey; since Ulufale was not a party to the 1988 case, he was free to relitigate the questions decided therein. Tuiasosopo, the principal occupant of the Fai 'ai tract for many years, testified that the Ulufale people were his neighbors to the south and also testified to their boundary .This evidence was far more specific than what we had to go on in the 1988 case, and it establishes the boundary claimed by Ulufale with Fai'ai.

The dispute between Ulufale and Satele in the southwest is more difficult. Most of this land is outside the Ulufale fence. The Ulufale witnesses testified that the fence was just to keep cattle from running loose and did not represent the extent of the land occupied by Ulufale from time immemorial. On the other hand, it appears that the Satele family has long had a claim in this area. The Satele claim arises not from any historic claim toFasamea, but from historic occupation of an area to the south of Fasamea called Lagoe'e. In the first recorded dispute between Ulufale people and Satele people in this area, during the early 1980s, the Satele people referred to the area just west of the Ulufale fence not as part of Fasamea but as part of Lagoe'e.

Lagoe'e is a tract of about forty-four acres beginning at a ridge above the sea and extending northward to land that was labelled the property of "Fauolo" on a 1929 registered survey of Lagoe'e. This land was held to be the property of Satele in Satele v. Afoa, LT No.10-1932, and has been registered as Satele land for over fifty years. It is clearly Satele land, and it is almost as clearly the basis for the Satele claim in the southern part of the area now in dispute. Unfortunately, the 1929 survey is not calculated according to co-ordinates, so we cannot tell exactly where its northern boundary is with respect to the land now in dispute. This would, however, be relatively easy for a surveyor to locate, since the southern boundary is the top of a ridge overlooking the ocean and the northern boundary is a specified distance therefrom[15ASR2d147]

At present we have insufficient evidence to determine the boundary between Satele and Fuimaono; indeed, neither side offered particularly impressive evidence of historic occupation in this boundary area. Accordingly, we hold as follows with respect to the "southern pocket": Ulufale is the owner of that part of his survey which is also within the Fai'ai survey. Satele is the owner of that part of his survey which is outside the Ulufale survey and also outside the Fai'ai survey. With respect to the area within both the Ulufale and Satele surveys, but outside the Fai'ai survey, neither party presented sufficient evidence to sustain a registration of this area. Satele is the owner of that part, if any, which is within the registered survey of l..agoe'e. Adjudication of title to the remaining part of this area, assuming the parties cannot amicably resolve their boundary, will have to be decided in some other case. (We note that Ulufale has surveyed a large area, mostly outside the boundaries of the land now in dispute, apparently with the intention of offering it for registration. )

IV. The Western Pocket

There is a small area to the west of the Satele survey which is outside the Fai'ai survey. Only Satele claims this land, and there is some evidence of historic Satele occupation in this area. This land is therefore held to be the property of Satele.

V. Conclusion

Accordingly, we hold that SateleUiagaleleiNamu, and Ulufale are entitled to register the land described in parts I-IV above as belonging to them, provided that such land is also within the Satele survey offered for registration in the present case. (The land held to belong to Uiagalelei is already registered, but in view of the arguable deficiencies in .the 1972 registration it might not be a bad idea to register these portions again.) Such land is to be registered as the communal property of the parties' respective families.

It is so Ordered.

*********

1. Meleisea Samuelu, another objector to the Satele survey, did not appear in this action despite repeated notices to do so. He therefore did not prove his claim to any part of the land within the survey.

2. Because the area in dispute between Ulufale and Namu is outside the Satele survey offered for registration herein, this portion of our decision is not binding on third parties. The decision does not, therefore, permitUlufale to register this part of the land. Both Namu and Ulufale, however, chose this case as a forum in which to litigate their competing claims in this area, and the decision herein is binding on them and on the other parties to the present case.

Immigration Bd.; Rakhshan v.


DAVOUD RAKHSHAN, Appellant

v.

IMMIGRATION BOARD, AMERICAN SAMOA
GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 7-90

May 4, 1990

__________

Alien who willfully fails to report a change of address to the immigration authorities is subject to deportation. A.S.C.A. § 41.0312.

Alien may be deported on the ground of being the object of a valid foreign arrest warrant only when the warrant is issued by his country of citizenship. A.S.C.A. § 41.0616(17). [15ASR2d30]

Alien who makes statements he knows are false in an immigration application is subject to deportation. A.S.C.A. § 41.0313.

Immigration Board finding that an alien submitted false information "with intention to mislead the Board" implies that the alien knew the information was false.

Person who loses the status on which his permit to enter the Territory was based is presumed not to be entitled to remain, and may rebut such presumption only by showing that he is of good character, has no excludable offenses or characteristics, has a local sponsor, is not likely to be a financial burden on Samoa, and offers a needed skill or expertise not readily available in American Samoa. A.S.C.A. § 41.0401.

Pending civil suit by an alien in the High Court is not a ground on which the Court may grant a stay of deportation.

Deposition of a witness absent from the Territory is admissible as evidence in the High Court provided that the deposition is taken according to applicable rules, the party offering it cannot procure the attendance of the witness by process or other reasonable means, and the opposing party has an opportunity and motive to cross-examine the witness. T.C.R.Ev. 804(a)(5), (b)(1).

Government's refusal to accept a surety bond in lieu of cash bail for an alien arrested for immigration offenses violated his constitutional rights, where government's reason for refusal was its hope that his friends would put up the money it would otherwise cost the government to deport him.

Order of deportation must be made by the Attorney General. A.S.C.A. § 41.0616.

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

Counsel: For Appellant, Asaua Fuimaono

  For Appellee, Tauivi Tuinei, Assistant Attorney General

On Motion for Stay:

Appellant is an Iranian national who came to American Samoaon a temporary visitor's permit in 1987. The immigration authorities have apparently been attempting to deport him since mid-1988. Their failure to accomplish this objective appears to be attributable not to any particular merit in appellant's claim of entitlement to remain in the Territory , but to a series of difficulties the Immigration Board and its legal counsel have had in understanding and following the laws governing the conduct of their own proceedings. [15ASR2d31]

This case has been before the Appellate Division of the High Court once before. In Rakhshan v. Immigration Board, 13 A.S.R.2d 25 (1989), we granted a stay of the Board's deportation order on two grounds: (1) the Board had not produced a complete record of its proceedings, as contemplated by A.S.C.A. § 41.0210, so that judicial review on the record was impossible; (2) although what there was of the record did suggest that the Board would have been legally authorized to deport appellant after he lost his employment in May of 1989, it was not clear that the Board would have deported petitioner on this ground in the absence of other charges that had not been proved.

We therefore granted a stay and remanded the case to the Board for further proceedings. The Board was free to deport petitioner on the ground of his loss of employment; to deport him because of the other charges, providing a record could be produced to support them; to consider further charges; or to allow petitioner to remain in the Territory.

The proceeding and order from which the present appeal is taken seem to reflect a fundamental misunderstanding of our decision in the previous appeal. The Board begins by deciding not to consider the "overstaying" charge resulting from defendant's loss of employment status in 1989. Apparently this decision was based on the Board's erroneous impression that the stay of proceedings in the earlier appeal had somehow immunized defendant from the underlying charge that he had remained in the Territory beyond the terms (i.e. , length of stay and employment status) of his original permit.

The Board's decision then proceeds to order appellant's deportation on three other grounds: failing to report a change of address to the immigration authorities; making false statements in an immigration application; and being the object of a valid foreign arrest warrant.

Appellant's defense to the charge of failing to report his change of address amounts to the assertion that this is a "technicality" on which the Board is placing undue emphasis. The Board takes the position that the failure to report change of address was part of a deliberate scheme on the part of Mr. Rakhshan to evade service of an arrest warrant by immigration officials:

[T]hey were unable to locate Mr. Rakshan [sic] for about 2 months and was later located on a mountain next to Canco Hill. Mr. Rakshan had a binocular with [15ASR2d32] him when he was located and. ..was about to run away at the time of his location.

While purporting not to question appellant's "integrity,” the Board notes that "Mr. Rakshan knew that arrest warrants were issued against him and, integrity and all, purposesly [sic] hide [sic] himself on the mountain."

Appellant's response is that his past experience with the immigration authorities had convinced him his rights would be violated if he allowed himself to be arrested. Asked by the Court why he secreted himself instead of consulting with a lawyer about his rights, appellant responded that he had lost confidence in his lawyer and that he was perhaps not thinking clearly at the time.

Regardless of the motives of appellant or of the immigration authorities, it does appear that appellant failed to report a change of address and that this failure was wilful rather than accidental. A.S.C.A. § 41.0312 defines such conduct as a ground for deportation.

The other stated grounds for deportation are more doubtful. The record does reflect that there is a valid Philippine arrest warrant issued against appellant. Since appellant is not a Philippine citizen, however , and since an arrest warrant is only a deportable offense when issued by the country of citizenship, the Board does not appear likely to prevail on this ground. See A.S.C.A. §§ 41.0615(23), 41.0616(17). Moreover, the Board charged this offense under A.S.C.A. § 41.0615 ("excludable" aliens) rather than under § 41.0616 ("deportable" aliens).

With respect to the charge of filing false statements, the Board made the following finding:

During hearing [sic], Dr. Laumoli testified that [certain statements about appellant's job prospects and dental experience were] not true. That Mr. Rakshan had dictated to him what to write that he signed the letter mainly to help Mr. Rakshan and that all these falsification was not for employment but to help keep Mr. Rakshan here in American Samoa. Mr. Rakshan has countered this by calling Dr. Laumoli a liar. The fact remains that the Immigration Board had been made a fool by both Dr. Laumoli and Davoud Rakshan in submitting false information with intention to mislead the Board. The Board on its own motion, [15ASR2d33] determines that alien Rakshan has violated ASCA 41.0313 as above.

It is probable, although not certain, that this finding satisfies the statutory standard that false statements in immigration documents be "known by [the applicant] to be false" in order to justify deportation. See A.S.C.A. § 41.0313. Although the apparent gravamen of the charge, making a fool of the Immigration Board, is not a statutory offense, and although the Board declines to decide whether it was appellant or the other witness who was lying, the finding that appellant submitted false information "with intention to mislead the Board" implies that appellant knew the information to be false.

In order to prevail on the merits of this appeal it is necessary only that the Board prevail on anyone of the three grounds. Since it appears probable that the Board will prevail at least on the ground of willful failure to report a change of address, it is unnecessary to decide whether the other two grounds also have merit. Appellant has not shown that he is likely to prevail on the merits of his appeal, and is therefore not entitled to a stay of execution pending the ultimate disposition of the appeal.(1)

Appellant has also asked for a stay pending the outcome of a civil action he has against the government. This is not a ground on which we can grant a stay of deportation. We have, however, already granted a temporary stay of deportation until 4:00 p.m. Thursday, May [15ASR2d34] 10. This should be sufficient time for appellant's counsel to arrange to take his deposition. The deposition of a witness who is absent from the Territory is admissible as evidence in High Court proceedings provided (1) that the deposition was conducted in accordance with all applicable rules; (2) that the party offering the deposition has not been able to procure the attendance of the witness by process or other reasonable means; and (3) that the opposing party had an opportunity and motive to cross-examine the witness. See T.C.R.Ev. 804(a)(5) & (b)(1).

There is, however, one part of the Board's order from which the record does compel us to grant relief. This is the designation ofIranas the country to which appellant will be deported. Although an Iranian citizen, appellant came here from the Republic of thePhilippines. The evidence taken at the hearing is to the effect that he is eligible for readmission there. There are important differences between deportation to thePhilippinesand deportation toIran. If further inquiry on the part of the Board should cast doubt on appellant's eligibility to reenter thePhilippines, we will hold a further hearing to determine the effects that deportation toIranwould have on appellant's ability to prosecute this appeal.

We also state herein our reasons for ordering on April 19, 1990, that the appellant be released on bail in the form of a $7,000 surety bond. Counsel for the Board stated that he had refused to accept the surety bond in lieu of a cash bail not because it was feared that the appellant would not make required appearances, and not because appellant posed any danger to any person, but in the hope that some friend of the appellant would "be reasonable" and offer to put up the money it would otherwise cost the Government to pay appellant's air fare to Iran. This is outrageous conduct, hard to characterize as anything but the official holding of a hostage for ransom. A denial of bail for such a reason to an accused burglar or child abuser would violate the constitutional rights of the accused. It is hardly appropriate that a person who is accused of failing to report a change of address should be incarcerated under circumstances in which the Government would not incarcerate one accused of a violent crime.

Finally, we note that an order of deportation has not been made by the Attorney General as required by A.S.C.A. § 41.0616. In many cases this may be regarded as a formality, since the Board is subordinate to the Attorney General and advised by a member of his staff. The allegations of vindictiveness and selective enforcement in this case, however, and the patent and repeated bungling by the Board and/or its [15ASR2d35] legal counsel, suggest that the Attorney General himself should take a hard look to determine whether the order is an appropriate exercise of the discretion vested in the Government.

The stay previously granted is modified as follows: execution of the order of deportation is stayed until 4:00 p.m. on May 10, 1990, or until the order is personally reviewed and approved by the Attorney General, whichever is later, provided that deportation shall be to the Republic of thePhilippinesrather than toIran. Deportation toIranis stayed until further order of the Court.

It is so Ordered.

*********

1. We note further that the Board's misconstruction of our earlier opinion apparently caused it to discard its strongest ground for deportation. The record of this proceeding and of the prior one clearly reflect that appellant did stay in the Territory after he had lost the employment status which had been the basis of his original permit. If the Board had ever decided clearly and unequivocally that he should be deported on this ground, it would almost certainly have prevailed. As we noted in our original opinion, A.S.C.A. § 41.0407 provides that a person who loses the status on which his permit was based "shall be deemed a person seeking to enter American Samoa from the date when he ceases to hold such status." He would then be presumed not to be entitled to remain in the Territory, and the presumption could only be rebutted by a showing that he satisfies each of the criteria set forth in § 41.0401---that he is of good character, has no "excludable" offenses or characteristics, has a local sponsor, is not likely to be a financial burden on Samoa, and offers a skill or expertise needed and not readily available in American Samoa. A Board finding that appellant did not meet one or more of these criteria, while not unreviewable, would be sustained in the absence of clear error. In particular, the Court has traditionally been most reluctant to substitute its own judgment for that of the Immigration Board on the question of what skills and expertise are needed inAmerican Samoa.

Huff v. Huff,


BUCK MATHIS HUFF, Petitioner

v.

ADELINE PRITCHARD HUFF, Respondent

High Court of American Samoa
Trial Division

FJ No. 3-89

June 4, 1990

__________

The Uniform Enforcement of Foreign Judgments Act was designed to give a foreign judgment creditor the same right to enforce his judgment in American Samoa that he would have in the State or Territory in which he obtained the judgment. A.S.C.A. § 43.1701 et seq.

Although the California family court which granted divorce judgment retained jurisdiction to enforce the judgment and the parties to that judgment could move to enforce it in that California court, High Court was not precluded from enforcing the judgment under the Uniform Enforcement of Foreign Judgments Act where both parties currently resided in American Samoa. A.S.C.A. § 43.1701 et seq.

Where enforcement of California judgment is sought in American Samoa, party against whom enforcement is sought is entitled to the same process here that he would receive in California. A.S.C.A. § 43.1701 et seq.

Defense of estoppel requires that the party who raises the defense establish his own good faith or "clean hands."

Even without a showing of "clean hands," the Orders in Aid of Judgment statute permits relief from having to pay the entire amount of a judgment at once. A.S.C.A. § 43.1501 et seq.

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

Counsel: For Petitioner, William A. Reardon

  For Respondent, John L. Ward II

Petitioner and respondent were divorced in Californiain 1982. The Californiajudgment provided, inter alia, that respondent "shall be awarded ...as her sole and separate property ...proportionate interest in Petitioner's retirement benefits with Ralston Purina Company." [15ASR2d84] Respondent has filed this judgment with the High Court of American Samoa in accordance with A.S.C.A. § 43.1701 et seq., the Uniform Enforcement of Foreign Judgments Act, and now requests the Court to "allow execution or further process to issue."

The dispute between the parties concerns retirement benefits which Ralston Purina paid to petitioner between 1984 and 1989, apparently in ignorance of the divorce judgment awarding a portion of these benefits to respondent. The respondent claims that the share of these benefits belonging to her was $20,873.40. Petitioner does not dispute this amount, but argues that respondent is estopped from collecting it because she never notified Ralston Purina of the divorce judgment. Respondent further contends that this Court should decline to enforce the judgment because Ralston Purina is an indispensable party to the proceedings, and also because theCalifornia family court retained jurisdiction to enforce the judgment.

Counsel for respondent directs our attention to a recent case in which the Californiacourts were faced with facts quite similar to those of the present case. In Farner v. Farner, 90 Daily Journal D.A.R. 45 (Cal. App. 1989), the appellate court held that when retirement benefits adjudicated to be the property of one spouse had been paid to the other spouse and the other spouse had converted such benefits to his own use, the spouse whose property had been thus converted should be treated as a creditor with a money judgment against the other spouse. The Judgment debt was therefore properly subject to a writ of execution. The appellate court held, however, that it was within the trial court's discretion to determine whether a writ of execution was appropriate in the circumstances, and remanded to the trial court for such a determination.

Although Farner involved domestic rather than foreign execution on a judgment, this distinction does not suggest a different outcome in the present case. The Uniform Enforcement of Foreign Judgments Act was designed to give a foreign judgment creditor the same right to enforce his judgment in this Territory that he would have in the State or Territory in which he obtained the judgment. Petitioner and respondent now both reside in American Samoa; this Court is manifestly the most convenient forum for adjudication of their respective rights under the judgment. Although respondent could undoubtedly move to enforce the judgment in the California court that issued it, nothing about that judgment suggests that the court retained jurisdiction in order to obstruct rather than facilitate enforcement. [15ASR2d85]

Petitioner is, however, entitled to the same process here that he would receive had enforcement been sought in California. Under Californialaw a person against whom an award has been made in a divorce decree is entitled to judicial consideration of his arguments against enforcement. See Farner, supra, at 46, and authorities cited therein. Moreover, the judgment in the present case, like that in Farner,

raise[s] a judicial question because the clerk could not, with any certainty, ascertain the amount to be paid either from the order itself or the record as it existed upon entry of the order. The order potentially [is] a candidate for enforcement by execution, but only after review and hearing in the trial court.

Id. at 46. Cf. Parisi v. Parisi, 10 A.S.R.2d 106, 107-08 (Foreign judgment was enforceable as rendered, but subsequent assignment of judgment was "a private contract which, unlike a judgment, is not entitled to full faith and credit.") We therefore turn to the merits of petitioner's contentions.

We conclude that theCaliforniajudgment did not allocate the burden of notifying Ralston Purina to either petitioner or respondent. The respondent would obviously have been well advised to do so. The record suggests no explanation for her failure to do so. On the other hand, the petitioner was the one who worked for Ralston Purina; who knew exactly when he was going to retire and thereby make it necessary for someone to notify Ralston Purina about the division of benefits; who presumably did have some dealings with the benefits office immediately prior to his retirement in 1984; and who knew or should have known, once he began receiving benefits, that part of what he was receiving was the property of someone else.

These circumstances may not have imposed on petitioner an affirmative duty to notify Ralston Purina of the divorce decree; but they weigh heavily against petitioner's defense that respondent is now estopped, on account of laches or otherwise, from retrieving her property. In order to sustain such a defense it would be necessary for petitioner to establish his own good faith or "clean hands.” In the present case this would require a showing that at all times between 1984 and 1989 he was under the impression Ralston Purina was paying him only his own share of the retirement benefits. No such showing has been attempted, and the record suggests it could not be made. [15ASR2d86]

In any case, such a showing would probably prove only that it \could be inequitable to force petitioner to pay the whole $20,000 to its rightful owner all at once, not that he should be allowed to evade payment altogether. As it happens, similar relief is available under A.S.C.A. § 43.1501 et seq., the Orders in Aid of Judgment statute, even without a showing of clean hands.

We do not believe that Ralston Purina is an indispensable party to this action. Indeed, we are not even sure it is a proper party, since it was not a party to the proceeding in which the foreign judgment was rendered. See Parisi, supra. Assuming that joinder were possible and that respondent were to prove that Ralston Purina owed her part of the money it sent to petitioner between 1984 and 1989, however, Ralston would appear entitled to indemnity from the petitioner himself." As between the two parties who violated the order, the party who received and spent the money must indemnify the party who merely released it." Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100, 104 (1988).

Accordingly, a writ of execution shall issue against the petitioner in the amount of $20,873.40. This order is without prejudice to the right of respondent to petition the Court for a further writ of execution for an amount equal to interest at the legal rate on the various amounts belonging to her which were received by petitioner. It is also without prejudice to the right of petitioner to petition the Court for an Order in Aid of Judgment. (We urge the parties to agree on a schedule of payments so as to render such further proceedings unnecessary.)

It is so Ordered.

*********

Haleck's Island Motors; Holland v.


JACK and JOAN HOLLAND, Plaintiffs

v.

HALECK'S ISLAND MOTORS, Defendant

High Court of American Samoa
Trial Division

CA No. 95-89

May 16, 1990

__________

On causes of action arising in American Samoa from any policy of liability insurance, a plaintiff may take direct action against an insurer regardless of whether the policy forbids such action, whether the insured is bankrupt, or whether the plaintiff is suing for personal injury or property damages. A.S.C.A. § 29.1537.

Statute granting a right of direct action against an insurer even if a policy forbids such action must be liberally construed to enhance its public policy purpose of allowing direct actions on liability insurance policies. A.S.C.A. § 29.1537. [15ASR2d45]

Statutory right of direct action applies to any policy of liability insurance. A.S.C.A. § 29.1537.

Insurance statute that specifically includes certain losses but does not comprehensively define "liability insurance" does not necessarily exclude all other losses.

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

Counsel: For Plaintiffs, Robert A. Dennison III

  For Defendant, John L. Ward II

On Motion for Leave to Amend:

Plaintiffs, Jack and Joan Holland, filed action against the defendant, Haleck Island Motors, alleging the non-return of their vehicle, which was given over to defendant for repair work. They seek damages claiming a bailment and breach thereof as well as negligence on the part of defendant. At this time, plaintiffs seek leave to amend their complaint to add the Royal Insurance Company as a party defendant. The insurance company is said to be Haleck Island Motors' liability insurer. In support of their motion to add or join, plaintiffs invoke the direct action statute, A.S.C.A. § 29.1537. The enactment reads:

On any policy of liability insurance, the injured person or his heirs or representatives has a right of direct action against the insurer within the terms and the limits of the policy, whether or not the policy of insurance sued upon was written or delivered in American Samoa, and whether or not the policy contains a provision forbidding direct action, provided that the cause of action arose in American Samoa. The action may be brought against the insurer alone, or against both the insured and insurer.

The Fono has further ensured that this direct action right applies irrespective of the insured's bankruptcy. See A.S.C.A. § 29.1538.

On the other hand, the insurance company contends that the right of direct action provided under A.S.C.A. § 29.1537 is limited only to actions for "personal injuries or wrongful death," to the exclusion of actions for "property damage." The insurance company argues that the [15ASR2d46] statute is so limited because it talks about "injured persons." It further claims that the definition of "liability insurance" as found in A.S.C.A. § 29.1505(b) references only personal injury or wrongful death. A.S.C.A. § 29.1505(b) reads:

(b) Liability insurance includes all insurance against loss or damage resulting from accident to, or injury, fatal or nonfatal, suffered by, any person, and for which the insurer is liable.

Thus, the company submits, "[f]or the right of direct action against an insurance carrier to arise, the plaintiff must be injured, not the plaintiffs property." (Emphasis in original.) Defendant's Memorandum of Points & Authorities at 2.

Discussion

For reasons given, we reject the insurance company's reading of the enactments as being unnecessarily restrictive. Firstly, we note that A.S.C.A. § 29.1537 is a statement of territorial public policy. The enactment provides the right to sue an insurer on any policy of liability insurance "whether or not the policy contains a provision forbidding direct action."(1) The statute must, therefore, be liberally construed so as to enhance its public policy purpose, namely, allowing direct actions on liability insurance policies. Furthermore, this statutory right of direct action is made available with respect to "any" policy of liability insurance. See A.S.C.A. § 29.1537. At the same time, we cannot agree with the insurance company's suggestion that the language of A.S.C.A. § 29.1505(b) does not admit property insurance coverage. In any event, the enactment does not attempt a comprehensive definition of "liability insurance." The definition includes certain named losses, it does not necessarily exclude all other losses from coming within its ambit. [15ASR2d47]

Finally, we simply cannot see any sensible basis for discriminating between personal injury causes and property damage causes in the context of direct actions against an insurer. What, for example, would be the social purpose achieved in requiring a plaintiff who has suffered both personal injuries and property damage in one accident to conduct two different law suits because he opts to invoke his rights under A.S.C.A. § 29.1537 or § 29.1538? There is none. In the context of compulsory automobile liability insurance---A.S.C.A. §§ 22.2001 et seq.---liability insurance encompasses both damages for personal injuries and property losses. See A.S.C.A. § 22.2003. The experience under this statutory scheme, which also provides a right of direct action, has yet to suggest any difficulty with allowing an insurer to be sued directly for both personal injury and property loss.

Motion granted. It is so Ordered.

*********

1. Liability insurance policies customarily provide that no action shall lie against the company until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company. The principal reason for inserting the "no action" clause in policy forms was to require an adjudication of the tort action against the insured without involving the insurer as a party and thereby incurring the disadvantage of jury prejudice against insurers. R. Keeton, Insurance Law 534 § 7.11 (1971).

Galea'i; Garcia v.


JULIO ALVARADO GARCIA, Plaintiff

v.

FATIMA GALEA'I dba PARADISE TRAVEL INC.,
and KEN VILIAMU, Defendants

CA No. 41-87

High Court of American Samoa
Trial Division

April 27, 1990

__________

Bailment for mutual benefit arises whenever both parties benefit from the transaction.

Bailee need not receive tangible compensation for a transaction to constitute a bailment, so long as the transaction is an incident of the business in which bailee profits, or was accepted because of benefits expected to accrue.

Bailee exercising "due diligence" in care of bailed property must use the ordinary care which ordinarily prudent persons, as a class, would show in caring for their own property in similar situation.

Bailee who fails to return bailed property upon the bailor's demand is prima facie negligent, and must rebut the presumed negligence by showing he used due care in safeguarding the property.

Under doctrine of respondeat superior, a bailee employer is vicariously liable for loss or injury with respect to the bailed property which results from the negligence or wrongful acts or omissions of his employees in executing the bailment within the course and scope of their employment.

Bailee may not escape liability for his employee's negligence simply by instructing the employee to exercise due care.

Employer/bailee is also contractually liable for the negligence of his employees in executing the bailment, since he cannot receive money for performing a duty and at the same time escape liability for violating such duty by shifting the responsibility to an employee.

Bailee/employer was both vicariously and contractually liable for cash missing from bailed luggage, where he offered a luggage transport service to attract customers; his employee [15ASR2d15] picked up the luggage; and both bailee/employer and employee failed to take adequate security precautions to prevent tampering with the luggage.

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

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendants, Gata E. Gurr

Facts

At all relevant times, defendant Fatima Galea'i owned and operated a travel agency doing business as Paradise Travel, hereafter referred to as "Paradise". Part of the service which Paradise offered to its clientele included the earlier transfer of a customer's luggage, and then his later transport as well, to the airport. Paradise had the defendant Ken Viliamu in its employ to provide this special pick up service. The parties' written stipulation of facts contained the following description of Viliamu's duties:

[t]he instructions given by Paradise Travel to the employee [Ken Viliamu] was [sic] to pick up the bags from the purse seiner in a vehicle provided by the company, [and] lock them up inside the trunk of the car while the employee is at home awaiting the time to check them in. When it [was] time to check in, the employee was to take the luggage to the airport and check them in with the airline.

At all relevant times, plaintiff Garcia was a fisherman with a vessel affiliated with one of the canneries which numbered among Paradise's clients. He made plans to visit his family in Peruafter his return from a certain fishing voyage and, as with his previous trips home, plaintiff’s employer arranged his round trip airline tickets through Paradise. On the appointed day of travel, therefore, defendant Viliamu was sent to collect plaintiff’s luggage. On this occasion Viliamu did not take the vehicle provided by his employer, but went in a pickup truck and was accompanied by four young men. He arrived at plaintiff’s vessel around eight in the evening, whereupon the plaintiff hurriedly changed and packed away a pair of shorts he was earlier wearing and in which he was carrying certain funds to be taken on the trip. Plaintiff [15ASR2d16] testified that this consisted of cash in the amount of $3,300.00 and traveller's checks in the amount of $420.00. He realized only after Viliamu had left that he had packed away his money along with his shorts. He made a mental note to remove his money from his bag once he got to the airport.

The parties further stipulated that:

[f]rom the purse seiner, Ken Viliamu and the men went to the main dock to pick up a fish. After picking up the fish the men proceeded towards Nu'uuli. On their way they picked up one Kapeneta Leu at Utulei. From Utulei Ken and his men went to Nu'uuli to drop off the fish. From Nu'uuli the group went to Pava'ia'i to drop off Mr. Leu. Upon leaving Pava'ia'i they headed for Tafuna. At Tafuna the luggage was unloaded and taken into the house belonging to Ken's family. At about 10:45 p.m., Ken took the luggage to the airport to be checked in.

When plaintiff arrived at the airport, he located Viliamu together with his luggage. Upon opening his bags, plaintiff discovered that the contents of his luggage had been tampered with; some of his clothing had been removed and all of his money was missing. After some exchange with Viliamu about the missing money, and after plaintiff made known his refusal to travel without his funds, Viliamu left momentarily but then returned with plaintiffs traveller's checks. In the end, plaintiff did not get his cash nor did he travel that day; instead, he remained and filed a complaint with the Police Department. However, before the police had made any headway in their investigation of that complaint, Viliamu quietly managed to depart the territory and he is now thought to be living somewhere inNew Zealand.

Discussion

Plaintiff sues Viliamu's employer for the recovery of his missing funds arguing a breach of bailment and/or vicarious liability on the grounds of respondeat superior. For reasons given, plaintiff must prevail.

Firstly, we reject the notion harbored by the defense that Paradisecould not have been a bailee because its luggage pick up service was gratis and "not a bargained-for exchange." To the contrary, [15ASR2d17]

[a] bailment for mutual benefit arises whenever it appears that both of the parties receive a benefit from the transaction. It is not essential, to constitute a bailment for mutual benefit, that the bailee actually receive compensation in money or tangible property, so long as the bailment is an incident of the business in which the bailee makes a profit, or was accepted because of benefits expected to accrue.

Global Tank Trailer Sales v. Texitilana-Nease, Inc., 496 P .2d 1292, 1294-95 (Kan. 1972). In the matter before us, Paradise can hardly claim to be acting gratuitously with its pick up service. Its efforts in this regard are business related and revenue motivated ---the attraction of clientele and the sale of airline passage. As Ms. Galea'i candidly explained, the pick up service was offered as an inducement for people to travel with Paradise. In these circumstances Paradise became a depositary of its customers' property as an incident to its business (the bailment purpose being the attraction of patronage) and as such it is liable for the loss of that property as a bailee for hire, the relationship between the parties being one for mutual benefit. See also Berlow v. Sheraton Dallas Corporation, 629 S. W.2d 818 (Tex. App. 1982); Greer v. Los Angeles Athletic Club, 258 P. 155, (Cal. App. 1927), Hotels Statler Co. v. Safier, 134 N.E. 460 (Ohio 1921); See generally 8 C.J.S. Bailments § 8 (1962).

Since there was a bailment for mutual benefit, the next question is whether Paradiseexercised the required due diligence in the care of plaintiffs luggage. See, e.g., Fraam v. Grand Rapids & I. Ry. Co., 126 N. W. 851 (Mich. 1910). That due diligence has been spoken of in terms of "ordinary care" which "ordinarily prudent men, as a class, would exercise in caring for their own property under the like circumstances." Id. at 853. See also 8 Am. Jur.2d Bailments § 222 (1980).

We are satisfied that there was a bailment, and that certain of the bailed property was never returned by the bailee to the bailor upon the latter's demand. By the same token, however, we were told nothing about the funds except that they remained missing save for the returned traveler’s checks. There can hardly be any argument with the claim that Ken Viliamu simply did not take care of plaintiff’s luggage while he had it in his possession. The evidence was very clear; Viliamu failed to take any security precautions whatsoever with regard to plaintiffs property. From the time he picked up the bags to the time of check in, Viliamu had exposed the luggage to numerous opportunities for tampering, and,[15ASR2d18] indeed, it was tampered with. The bags were picked up in the hours of darkness; they were loaded into a pickup truck with a number of people and transported about for an extended period of time; during this time, third parties had access to the bags. Assuming that Viliamu himself was not responsible for the theft of plaintiffs funds, it logically follows, on the extent of the record before us, that plaintiffs loss arose through, or was proximately caused by, Viliamu's failure to properly look after the luggage.(1)

This is a loss for which Paradiseis vicariously liable. As a master is vicariously liable for the actionable wrongs of his servants committed within the scope and course of employment,(2) so is the bailee employer answerable for loss or injury with respect to the thing bailed resulting from the negligence or wrongful acts or omissions of his employees in the execution of the bailment, within the course and scope of their employment. 8 Am. Jur.2d, supra at §§ 236-37. Certainly in the matter before us, the missing bailed property was stolen during the course of Viliamu's employment; his duties were to pick up plaintiffs bags and look after them, however, the bags were interfered with while Viliamu was supposed to be looking after them. [15ASR2d19]

We also find Paradiseto be directly liable to plaintiff. We are told nothing about storage measures taken in connection with allowing an employee to take home a passenger's luggage except that he is instructed to lock up the luggage in the trunk of a company provided vehicle. We agree with the doubts raised by plaintiff as to the security of this practice. Paradiseas the bailee enterprise had the primary duty of care towards the security of plaintiff’s property. It seems, however, that Paradise shifted that responsibility to Viliamu by being content to rely entirely on the employee to secure a reasonably safe storage when allowing him to take a customer's luggage home as opposed to a facility provided by Paradise specifically for this holding purpose. This entails reasonably foreseeable opportunities for tampering with a customer's luggage. Furthermore, a bailee should not be able to escape liability for his employee's failure merely because he had instructed the employee to exercise due care. In Metzger v. Downtown Garage Corp., 82 A.2d 507 (Pa. Super. 1951), it was held that a parking lot owner (the bailee) could not escape his contractual obligation towards the car owner simply by saying that he is not liable because his servant had stolen the owner's vehicle. The court here reasoned that "[t]he bailee cannot receive money for the performance of a duty, and at the same time shift responsibility to a servant, and thus be relieved from liability for the violation of the very duties attending the bailment. " Id. at 508. This" contractual" basis of liability is direct as opposed to liability imputed under the doctrine of respondeat superior for employee wrongs committed "during the course of employment. " See also Joseph v. Mutual Garage Co., Inc., 270 S.W.2d 137 (Kan. App. 1954); 8 Am. Jur.2d, supra at §§ 237-38.

For the foregoing reasons, plaintiff shall have judgment against defendant in the sum of $3,300.00.

*********

1. The courts have in many instances held that a bailee's failure to return bailed property upon demand by the bailor establishes a presumption or prima facie case of negligence against him. Accordingly, it has been determined that such a bailee must rebut the presumption or demonstrate that he did indeed use due care to safeguard the bailed property. See Am. Jur.2d Bailments §§ 329-338 (1980).

2. This principle of law, usually referred to by the label respondeat superior, and which in itself means nothing more than "look to the man higher up," is a rule of policy, a deliberate allocation of risk. Prosser and Keaton on Torts 500 (51h ed. 1984).

The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed on the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance to the public, and so to shift them to society, to the community at large.

Id. at 500-501.

American Samoa Gov’t; Stephens v.


JIMMY STEPHENS and MAAMU STEPHENS, Plaintiffs

v.

TALI PETER COLEMAN, COMMISSIONER OF REVENUE,

AMERICAN SAMOA GOVERNMENT, Defendants

 

High Court of American Samoa

Trial Division

CA No. 14-90

June 4, 1990

__________

Statutory requirement that petition for redetermination of deficiency of income taxes be made within 90 days after notice of deficiency was mailed is jurisdictional. 26 U .S.C. § 6213(a); A.S.C.A. § 11.0401.

The High Court, while sitting as a Tax Court for deficiency proceedings, does not have jurisdiction to hear such a deficiency proceeding unless it was filed within the statutory deadline; while sitting as a District Court for refund cases, it lacks jurisdiction until there has been payment or collection of disputed taxes. 26 U.S.C. § 7422; A.S.C.A. § 11.0409.

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

Counsel: For Plaintiff Jimmy Stephens, Roy J.D. Hall Jr.

  For Defendants, Richard D. Lerner, Assistant Attorney General

On Motion to Dismiss:

On October 27, 1988, the Tax Office of respondent American Samoa Government (ASG) mailed the petitioners a Notice of Deficiency. On January 25, 1990, the petitioners filed with the High Court a petition for redetermination of the deficiency.

26 U.S.C. § 6213(a), which as incorporated by reference in A.S.C.A. § 11.0403 governs actions for redetermination of American Samoa income taxes alleged to have been erroneously assessed, requires that a petition for redetermination be filed within 90 days after the notice of deficiency was mailed. January 25, 1990, was the 91st day after October 27, 1989. Respondent ASG moves for dismissal on the ground [15ASR2d88] that the Court lacks subject matter jurisdiction over a petition not filed within the requisite 90 days.

It is well settled that the 90-day filing requirement imposed by 26 U .S.C. § 6213(a) is jurisdictional. See Shipley v. Commissioner of Internal Revenue, 572 U.S.212 (9th Cir. 1978), and authorities cited therein at 213. Indeed, the statute itself expressly provides that "the Tax Court shall have no jurisdiction. ..unless a timely petition for a redetermination has been filed." 26 U.S.C. § 6213(a). A.S.C.A. § 11.0401 provides in pertinent part that the words "tax court" in the internal Revenue Code shall be construed to mean "High Court" for the purposes of the American Samoa income tax provisions. The High Court therefore has no jurisdiction over this action.

Petitioners urge, however, that the High Court (unlike the United States Tax Court) is a court of general jurisdiction. The implication seems to be that this Court can therefore treat an untimely tiled petition for redetermination as though it were an ordinary civil action of which the Court has general subject matter jurisdiction. This argument, however, overlooks the provision of A.S.C.A. § 11.0409(a) that actions for the recovery of erroneously or illegally assessed or collected income taxes are subject to the same rules that would govern such actions in the district courts of the United States. This provision acts as an explicit limitation on our general jurisdiction; perhaps the most important statutory requirement incorporated therein is the requirement that the taxpayer pay the disputed tax before suing for its recovery. See 26 U.S.C. § 7422.

The resulting jurisdictional scheme is well settled and clearly defined(1): "The High Court sits as a Tax Court in deficiency proceedings, [15ASR2d89] and. ..as a District Court when hearing refund cases." Klauk v. American Samoa Government, 13 A.S.R.2d 52, 55 (1989). As a tax court, we have no jurisdiction to hear a deficiency petition unless it was filed within the statutory deadline; as a district court, we lack jurisdiction to hear a refund suit until there has been payment or collection.

Finally, petitioners cite several cases in which courts treated time limits as procedural rather than jurisdictional. In one case even more poignant than the one now before us, a petitioner arrived in the offices of the Federal Communications Commission a few minutes before closing time on the last day provided for filing his petition. It took him a few minutes to sort out his papers, however, and during this time the Commission's official business hours came to a close. The petition was therefore dismissed as untimely filed. The D.C. Circuit reversed the Commission's decision, pointing out that the closing time was a matter of administrative convenience not set by statute nor even by regulation, and suggesting that "[z]eal for orderly procedures hardly calls for such Cinderella-like treatment of a protest. ..." Valley Broadcasting Co. v. Federal Communications Commission, 237 F.2d 784 (1956) (Burger, J.).

Valley Broadcasting and other cases cited by petitioners underscore the difference between time limits that reflect an institution's own preferences and those that define the outer limits of the institution's power. The former can be suspended, stretched, or overlooked for reasons of equity or even of convenience. The latter cannot. We did not make the ninety-day rule, and we may not break it. Although arguments about Cinderella are not without emotional and aesthetic appeal, they can no more supply jurisdiction to a court without it than to a pumpkin.

Accordingly, the motion is granted and the petition is dismissed.

It is so Ordered.

*********

1. Petitioner urges that American Samoa .s statutes incorporating the federal statutory scheme are "on their face. ..unconstitutional, because they are overly broad and unnecessarily vague" and that "the only purpose is to circumvent due process in favor of the American Samoa Government and to the detriment of the taxpayer." With respect to the issues raised in this action, however, the statutory scheme is straightforward and affords the taxpayer notice and an opportunity to be heard, both before and after collection of the disputed amount.

Petitioner also suggests that the Governor's failure to adopt "needful rules" bars ASG from enforcing the statute. Again, it is conceivable that in some situation the failure to adopt a rule would result in impermissible vagueness or ambiguity with respect to the taxpayer's rights. In the present case, however, the problem the taxpayer is up against is precisely the opposite: the statute itself provides a rule that is unusually easy to interpret and clearly designed to be self-executing. Indeed, although administrative law is a house in which there are many mansions, it is hard to see where the Governor would get the authority to promulgate a rule providing that ninety days should mean eighty-nine or ninety-one even if he wanted to.

Fauolo v. Satele;


TUITASI FA'ASEMONO NAMU. UIAGALELEI LEALOFI,
UIAGALELEI IONE, ULUFALE SAGUE, FALE FAI'AI for
the DESCENDANTS OF FA'AILOILO FAUOLO, Plaintiffs

v.

SATELE MOMOSEA UOKA for the SATELE FAMILY, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 39-87

June 8, 1990

__________

Because statute permits freehold land to revert to communal status at the request of the owner, it follows afortiori that the same process is available for individual land. A.S.C.A. § 37.0201(b).

A land owner with title good against the world can alienate his land in a number of ways, including a stipulated judgment.

Before REES, Associate Justice, and MATA'UTIA, Associate Judge. [15ASR2d142]

 

Counsel: For Plaintiffs Namu and Fai'ai, Charles v. Ala'ilirna

  For Plaintiffs Lealofi and loane, Levaula Kamu and Fai 'ivae A. Galea'i

  For Plaintiff Sague, Gata E. Gurr

  For Defendants, Steven H. Watson and Tupa'i Se Apa

This case is a sequel to Satele v. Uiagalelei, LT No.17-86, 6 A.S.R.2d 143 (1988), aff'd sub nom. Satele v. Fai'ai, 9 A.S.R.2d 19 (1989). The facts of this case, except as hereinafter discussed, are set forth in that opinion [hereinafter "the 1988 case"] at 6 A.S.R.2d 144-46.

The decision in the 1988 case involved most of the land contained in the survey now offered for registration; three of the four parties to that case ---the Satele and Uiagalelei families and Fale Fai 'ai for herself and the descendants of Fa'ailoilo Fauolo ---are also parties to the present case. All questions explicitly or necessarily decided in the 1988 case are, of course, res judicata among those parties.

The 1988 case held a tract comprising most of the area now offered for registration to be the individual property of the heirs of Fa'ailoilo. It also held an area to the north of the Fa'ailoilo tract to be Uiagalelei communal land and delineated the boundary between the two tracts. The case further held that a strip comprising roughly one acre in between the Fa'ailoilo and Uiagalelei tracts had been purchased from Uiagalelei by Mariota Tuiasosopo on behalf of himself, his brother, and sister, as part of a settlement approved by the Court in a previous land dispute, and therefore belonged to them.

What is left for us to decide in this case concerns certain "p.<>ckets" within the Satele survey at its extreme northern, eastern, southern, and western boundaries. We also must adjudicate the rights of Namu and Ulufale, objectors to the present survey who were not parties to LT No.17-86; since their claims are almost entirely within the aforementioned "pockets, " we will discuss their claims together with those of the other parties.(1)

In discussing the various pockets of land presently at issue, we refer frequently to a composite map admitted into evidence as Exhibit 4. [15ASR2d143] This map, prepared by a surveyor at the request of objectors Fai'ai and Namu, illustrates the claims of all parties except Uiagalelei. The surveyor informed the Court he could not put the Uiagalelei claim on the map due to certain technical defects in the 1972 registered survey on which the claim is based. For the purposes of the present litigation, however, and without prejudice to the rights of non-parties, the Court is satisfied that a 1987 retrace of the 1972 survey (Exhibit 16, designating the 1972 tract as "Saumolia I") and a 1987 composite drawing (Exhibit 13) adequately locate the Uiagalelei claim with reference to the claims of other parties.

I. The Northern Pocket

The area to the north of the Fale Fai'ai/Fa'ailoilo resurvey (the red line on Exhibit 4, hereinafter "Fai'ai survey") and to the northwest of the land claimed by Namu (the black line on Exhibit 4, hereinafter "Namu claim") is the property of the Uiagalelei family, with the exception of a small section at the western edge of this pocket which is the property of the Satele family. The section which is the property of the Satele survey is the area within the Satele survey that is to the north of the Fai'ai survey and to the southwest of Saumolia I.

Satele claims the whole northern pocket. Although almost all of this area is within the 1972 Uiagalelei registered survey ("Saumolia i"), Satele raises objections to the validity of that survey. He did not, however, raise these objections in the 1988 trial, and the decision in that case held that this part of Saumolia I was the communal property of the Uiagalelei family. Conclusion of Law No. 4, 6 A.S.R.2d at 146.

The objections raised by Satele to the Uiagalelei survey are, moreover, without merit. First, he observes that the land was registered as individual property of the late Uiagalelei Sinapati, whereas it is now claimed as communal land of the Uiagalelei family. The current Uiagalelei titleholder, however, testified that he and the other individual heirs of Uiagalelei had met and agreed that the land should belong to the whole family as communal land. Our law regards communal land as an institution to be sedulously fostered and specifically permits freehold land to revert to communal status "at the request of the owner." A.S.C.A. § 37.0201(b). It would seem to follow afortiori that the same process is possible for individual land. While an individual heir of the late Uiagalelei would have standing to prove that the owners have not in fact agreed that the land should be communal, we cannot see why a rival land claimant from outside the family would have such standing. [15ASR2d144]

Satele also points out that the "affidavit of posting" in the 1972 registration was not notarized. As we have had frequent occasion to observe, however, the" affidavit of posting" is an administrative convenience (albeit a salutary one) rather than a statutory requirement, and such self-described "affidavits" were frequently not notarized in those days.

With respect to the area of this pocket that is outside Saumolia I, however, Satele made the best claim. This general area (the northwestern part of the Satele survey, to the west of the area presently leased by the American Samoa Government for a landfill) is one of two areas within which there was solid evidence of long-time Satele occupation and cultivation.

Aside from the dispute between Satele and Uiagalelei in the area discussed above, there is one other dispute in the North. This has to do with the claim of Uiagalelei that the 1988 case incorrectly held part of Saumolia I to be the property of the Fa 'ailoilo heirs. Uiagalelei relies on Ifopo v. Siatu'u, AP No.12-89, holding that a valid land registration conveys title good against the world. Since some of the land held to belong to the Fa'ailoilo heirs in 1988 had already been registered by Uiagalelei, he urges that we restore it to him.

Again, the ownership of the parcel of land to which this argument refers was adjudicated in 1988, twice appealed by Uiagalelei, and twice upheld by the Appellate Division. It is res judicata. In any case, our holding with respect to the southern boundary of Saumolia I was based on a stipulated judgment to which Uiagalelei was a party. When Uiagalelei judicially acknowledged his southern boundary with Tuiasosopo (a relative of Fa'ailoilo who was then occupying the tract belonging to her) he implicitly acknowledged this boundary as against the true owner of the tract then occupied by Tuiasosopo as licensee. Even if the ownership of this area were not res judicata, we would uphold the 1988 result. There is no inconsistency with Ifopo; an owner with title good against the world can alienate his land in any number of ways, including stipulated judgment.

II. The Eastern Pocket

The "eastern pocket" is defined as the area within Namu's claim. We hold that this area belongs to Namu, except for the portion at the north which is part of the 1972 registered survey ("Saumolia I") [15ASR2d145] belonging to Uiagalelei, and the portion at the south which is within the Ulufale claim.

Namu raises some excellent arguments to the effect that Uiagalelei's 1972 survey may have been conducted in violation of the statutory requirements and therefore did not convey title good against the world. See Ifopo, supra, slip opinion at 4; Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). Nor, unlike other parties to this case, is Namu barred by res judicata from relitigating the result of the 1988 case; he was not a party to that case.

Namu was, however, a witness in the 1988 case. He testified for Uiagalelei, and he testified under oath that the very land he now disputes with Uiagalelei is Uiagalelei land. The evidence is otherwise in equipoise as between the claims of these two parties; each presented evidence that he has claimed this land at various fairly recent times, and each claimed that his family has claimed it from time immemorial. The balance is tilted by Namu's sworn testimony two years ago that the land he now claims is actually Uiagalelei land.

With respect to Namu's dispute with Ulufale in the South, the evidence is that this area has been occupied by Ulufale at least since the 1950s and probably much longer. A trial transcript from the early part of this century , introduced by Namu to show that Ulufale may have derived his claim from an 'Upolu chief called Te'o Seva'aetasi, had the more important effect of providing reasonably objective evidence that Ulufale has long occupied land in this area. This evidence is inconsistent with the claim of Namu that he owns all the land on both sides of the road all the way from the land presently in dispute to the sea. Moreover, Namu's own testimony corroborated the claim by Ulufale that his family (including his brother Fuimaono, named by Namu as the person who deprived him of his land about thirty years ago) occupied the land for at least twenty years during a time when twenty years was the requisite period for adverse possession. Their occupation of this area was actual, open, notorious, exclusive, continuous, and certainly hostile to the claim of Namu.(2) [15ASR2d146]

III. The Southern Pocket

The Southern pocket is defined as everything within the Satele survey and south of a line defined by (a) the northern boundary of the Ulufale survey up to the point where it intersects the Fai'ai survey; and (b) the southern boundary of the Fai'ai survey from that point until it intersects the southern boundary of the Satele survey. (The Ulufale and Fai'ai surveys are the green and red lines, respectively, on Exhibit 4.)

For the reasons already discussed in part II above, Ulufale is the owner of the eastern portion of this area. This pocket includes a small portion of the Fai'ai survey; since Ulufale was not a party to the 1988 case, he was free to relitigate the questions decided therein. Tuiasosopo, the principal occupant of the Fai 'ai tract for many years, testified that the Ulufale people were his neighbors to the south and also testified to their boundary .This evidence was far more specific than what we had to go on in the 1988 case, and it establishes the boundary claimed by Ulufale with Fai'ai.

The dispute between Ulufale and Satele in the southwest is more difficult. Most of this land is outside the Ulufale fence. The Ulufale witnesses testified that the fence was just to keep cattle from running loose and did not represent the extent of the land occupied by Ulufale from time immemorial. On the other hand, it appears that the Satele family has long had a claim in this area. The Satele claim arises not from any historic claim to Fasamea, but from historic occupation of an area to the south of Fasamea called Lagoe'e. In the first recorded dispute between Ulufale people and Satele people in this area, during the early 1980s, the Satele people referred to the area just west of the Ulufale fence not as part of Fasamea but as part of Lagoe'e.

Lagoe'e is a tract of about forty-four acres beginning at a ridge above the sea and extending northward to land that was labelled the property of "Fauolo" on a 1929 registered survey of Lagoe'e. This land was held to be the property of Satele in Satele v. Afoa, LT No.10-1932, and has been registered as Satele land for over fifty years. It is clearly Satele land, and it is almost as clearly the basis for the Satele claim in the southern part of the area now in dispute. Unfortunately, the 1929 survey is not calculated according to co-ordinates, so we cannot tell exactly where its northern boundary is with respect to the land now in dispute. This would, however, be relatively easy for a surveyor to locate, since the southern boundary is the top of a ridge overlooking the ocean and the northern boundary is a specified distance therefrom. [15ASR2d147]

At present we have insufficient evidence to determine the boundary between Satele and Fuimaono; indeed, neither side offered particularly impressive evidence of historic occupation in this boundary area. Accordingly, we hold as follows with respect to the "southern pocket": Ulufale is the owner of that part of his survey which is also within the Fai'ai survey. Satele is the owner of that part of his survey which is outside the Ulufale survey and also outside the Fai'ai survey. With respect to the area within both the Ulufale and Satele surveys, but outside the Fai'ai survey, neither party presented sufficient evidence to sustain a registration of this area. Satele is the owner of that part, if any, which is within the registered survey of l..agoe'e. Adjudication of title to the remaining part of this area, assuming the parties cannot amicably resolve their boundary, will have to be decided in some other case. (We note that Ulufale has surveyed a large area, mostly outside the boundaries of the land now in dispute, apparently with the intention of offering it for registration. )

IV. The Western Pocket

There is a small area to the west of the Satele survey which is outside the Fai'ai survey. Only Satele claims this land, and there is some evidence of historic Satele occupation in this area. This land is therefore held to be the property of Satele.

V. Conclusion

Accordingly, we hold that Satele, Uiagalelei, Namu, and Ulufale are entitled to register the land described in parts I-IV above as belonging to them, provided that such land is also within the Satele survey offered for registration in the present case. (The land held to belong to Uiagalelei is already registered, but in view of the arguable deficiencies in .the 1972 registration it might not be a bad idea to register these portions again.) Such land is to be registered as the communal property of the parties' respective families.

It is so Ordered.

*********

1. Meleisea Samuelu, another objector to the Satele survey, did not appear in this action despite repeated notices to do so. He therefore did not prove his claim to any part of the land within the survey.

2. Because the area in dispute between Ulufale and Namu is outside the Satele survey offered for registration herein, this portion of our decision is not binding on third parties. The decision does not, therefore, permit Ulufale to register this part of the land. Both Namu and Ulufale, however, chose this case as a forum in which to litigate their competing claims in this area, and the decision herein is binding on them and on the other parties to the present case.

Fa'aaua'a v. Tauiliili,


FA'AAUA'A MALAUULU and TAFAIFA FA'AUA'A
for FONOTI FAMILY, Plaintiffs

v.

TAUILIILI PEMERIKA and DOES I through X, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 28-84

May 31, 1990

__________

A land registration, effected in accordance with all statutory procedures, establishes good title against the world, and a later registration of the same land is of no legal effect. A.S.C.A. § 37.0101 et seq.

Courts may disregard land registrations if the failure to give notice, as required by statute, appears in the registration record itself. A.S.C.A. § 37.0101 et seq.

A land registration in conflict with a Court order in a prior adjudication of land claims is void-or at least voidable in the absence of reliance by innocent third parties-for the same reasons that a registration would be without legal effect if it conflicted with an earlier valid registration.

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

Counsel: For Plaintiffs, Asaua Fuimaono

  For Defendants, Tau'ese P.F. Sunia [15ASR2d72]

This is a boundary dispute. The contested area consists of about four acres in the vicinity of Tafuna Fou. This land is included both with survey that defendant Tauiliili registered in 1981 and within a survey that Fonoti Aufata registered in behalf of the plaintiff Fonoti family in 1984. The Territorial Registrar inadvertently allowed this dual registration possibly because each offer of registration purported to include only such land as had been held to be the property of the registration the celebrated "Fanene Land Claims Trial," consolidated cases LT No. 64-77 et al.

Tauiliili maintains that when his survey was registered in 1981 without objection from Fonoti, the latter was thereafter barred from asserting ownership to any part of it. He contends, therefore, that the later Fonoti registration is void with respect to the four acres already registered by Tauiliili.

It is quite true that a land registration, effected in accordance with the procedures set forth in A.S.C.A. § 37.0101 et seq., establishes good title against the world. Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989). A later registration of the same land would therefore be of no legal effect this rule applies, however, only when the earlier registration was effected in accordance with all statutory requirements. One of these requirements is that the registered survey have been conducted after public notice by the pulenu'u at a meeting of the chiefs of the village "in which or nearest to which the land is located." A.S.C.A. § 37.0102(b).

In the present case it affirmatively appears of record that the only public notice of this survey was given in the villageof Pava'ia'i. The Fonoti plaintiffs, however, claim that the land has traditionally been regarded as part of Tafuna. To the extent they could succeed in proving this contention on the merits, they would also have proven that the 1981 registration was void on its face. "Courts can and do disregard registrations ...in which the failure to afford the required notice affirmatively appears in the record of the registration itself." Ifopo, supra, at 28. See also Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988); Afualo v. Fanene, 15 A.S.R.2d 48, slip opinion at 9 (1990).

In this case, moreover, each of the two conflicting registrations purported on its face to incorporate the decision in the 1977 Fanene trial, to which both Fonoti and Tauiliili were parties. Whichever of these two registrations incorrectly reflected the decision was in conflict with a prior Court order, specifically binding upon the registrant and adjudicating the extent of his rights. A registration in conflict with such a Court order [15ASR2d73] would appear to void---or at least voidable in the absence of reliance by innocent third parties---for the same reasons that a registration would be without legal effect if it conflicted with an earlier valid registration. To hold otherwise would be inconsistent with the principle of res judicata: if Tauiliili lost his dispute with Fonoti in Court in 1977, he was not free to relitigate it by offering the same land for registration in 1981.

We hold, however, that Tauiliili has proven his case on the merits. The preponderance of the evidence at trial was to the following effect:

1) Tauiliili began occupying and cultivating this land between in or about 1966, at which time it was virgin bush. By 1969 he had plantings throughout the area now in dispute. Such plantings consisted of coconut trees and perhaps other crops as well. It appears, however, that these crops were more sparse than those within adjoining plantations belonging to Tauiliili. (This finding is based not only on the testimony of Tauiliili himself, but also on that of the surveyor who surveyed the area for Fonoti in 1972. He testified that the area now in dispute contained coconut trees that appeared to be between three and five years old. These would therefore have been planted between 1967 and 1969, which is when Tauiliili says he first planted in this area. On the other hand, the trees are far too young to lend much credibility to the testimony of one Fonoti witness who said her relatives cultivated the area during the early 1950s; and they are too old to buttress the testimony of the other Fonoti witness who says the Fonoti plantings began in the early 1970s.)

2) During the time Tauiliili was beginning to extend his plantings into this area, he and Fonoti Aufata had occasional discussions about their boundary. They eventually agreed that Tauiliili would not cultivate a disputed area to the north of a certain road. This road passes through adjoining lands of both parties and had been built by Tauiliili with the consent of Fonoti. They also agreed that Tauiliili's boundary to the east would be a certain gully or depressed area. This corresponds to the boundary now claimed by Tauiliili.

3) The Fonoti witnesses were not in complete agreement about when Fonoti people began using parts of the land now in dispute. See paragraph (1) above. The most detailed and plausible evidence is that this occurred during the early 1970s. [15ASR2d74]

4) In or around 1972 there was a confrontation between Fonoti people and Tauiliili people concerning the area now in dispute. Tauiliili met with Fonoti Aufata, who then told his people to stop using this land. (The late Fonoti's daughter, who is the principal plaintiff in the present proceeding, testified that this forbearance was due only to a family relationship between Tauiliili and Fonoti. It is clear, however, that Tauiliili was using this land on his own account and not to serve Fonoti.)

5) Also in 1972, however, Fonoti surveyed 40.79 acres which include the present four acres. He offered the 40.79 acre survey for registration as the individually owned land of himself and his sisters. Several neighboring landholders, including Tauiliili, objected. The registration was sent to the High Court and became LT No. 1406-74. The Court denied registration on the ground that much of the 40.79 tract was uncultivated and that original clearing and cultivation is essential to a claim that land in Samoa is individually owned. Fonoti v. Niue, LT No. 1406-74 (slip opinion issued May 20, 1975).

6) On June 14, 1977, Fonoti Aufata offered the same 40.79 acre tract as the communal property of the Fonoti family. There were again several objections, but this time Tauiliili did not object. The registration was sent to the High Court and was designated LT No.60-77.

7) On June 15, 1977, Tauiliili offered for registration his own survey of 24.4 acres including the tract presently in dispute. Several neighboring landowners filed objections to the registration. Fonoti filed no objection. The contested registration was sent to the High Court for resolution, and was designated L T No. 62-77.

8) The Fonoti and Tauiliili registrations were then consolidated with nine other cases. These consolidated cases, involving several hundred acres and at least fifteen parties, were tried in December of 1977 in what became known as the "Fanene Land Claims Trial."

9) Before or during the trial, Fonoti and Tauiliili again settled their boundary. It may be that this happened during the 60-day period (June to August of 1977) during which both registrations were pending. This would explain why neither party objected to the other's offer of registration.

10) In any case, Court records indicate that by the time of trial the Court was of the opinion that there was no conflict between Fonoti and Tauiliili. See Fanene v. Magalei, LT Nos. 64-77 et al., slip opinion [15ASR2d75] at 19 (issued December 13, 1977) ("Tauiliili has no border dispute with ...Fonoti to the east...."). Since the two surveys clearly did conflict, this opinion on the part of the Court requires some explanation. Tauiliili offered one: he testified that the presiding judge had asked them about the overlap between the two surveys, and Fonoti had said he now agreed with Tauiliili's survey. Unfortunately, the transcript of the 1977 trial was only partly reproduced, so we cannot confirm this. Tauiliili did introduce, however, a composite map showing the claims of all parties as of the time of trial. He testified that this map had been prepared not by a surveyor working for a particular party, but by order of the Court in order to assist the Court and the parties in understanding where the conflicts were, and that each party had been given a copy. This map does appear to be what Tauiliili says it is, and the Court's 1977 opinion reflects that it did order the preparation of two such maps. Fanene v. Magalei, LT Nos. 64-77 et al., slip opinion at 5 (issued December 13, 1977). The composite map, which does not appear to have been tampered with, shows no conflict between the claims of Tauiliili and Fonoti. Rather, it reflects a boundary between the two surveys corresponding to the boundary now claimed by Tauiliili. It is strong objective evidence for Tauiliili's claim that he and Fonoti had settled their boundary along this line.

11) The late Fonoti's daughter testified that there was no settlement, but that the Court did not find it necessary to resolve the boundary between Fonoti and Tauiliili because it had ordered the two to settle their own boundary between themselves. This testimony does not ring true, since the very thing the Court was doing was to settle boundaries between parties who had been unable to do so. Why not tell the other thirteen parties to settle their own boundaries? This version of the 1977 trial also conflicts with the composite map.

12) Tauiliili's testimony is further buttressed by a 1983 affidavit of Fonoti Aufata himself. In the course of a post-trial proceeding against another party to the 1977 dispute, Fonoti recounted that "I was awarded outright ...the 40.79 acres less an undisputed portion." Affidavit of Fonoti Aufata, filed June 27, 1983, LT No.60-77 (emphasis added).

13) The parties agree that during the early 1980s there was yet another confrontation between Fonoti people and Tauiliili people, and that once again Fonoti told his family not to go on the land now in dispute. Fonoti's daughter says this is because her father felt sorry for Tauiliili, because he was "an outsider" and "would have nothing at all" [15ASR2d76] if he did not have this land. Tauiliili says it was because the land belonged to Tauiliili.

14) Nevertheless, in 1984 Fonoti did register his 40.97 acre survey, including the portion now in dispute which he appeared to have conceded to Tauiliili on several previous occasions. Tauiliili says he believes Fonoti reopened the dispute because he was disappointed that Tauiliili had not testified as a witness for Fonoti in a trial against another neighboring landowner in 1983. The Fonoti witnesses say it is because the land had always belonged to Fonoti.

We conclude that Tauiliili cleared and cultivated this land during the 1960s and is entitled to register it as his individual property, as he did in 1981. The 1984 Fonoti registration is void with respect to this overlapping area, since it conflicts with a prior valid registration. We further conclude that the result we now reach was probably the one intended by the Court in 1977, which did not adjudicate the dispute between Fonoti and Tauiliili because it had been informed of a settlement along the line we now reaffirm.

The relief requested by the complaint is therefore denied and the preliminary injunction is dissolved.

It is so Ordered.

*********

Diocese of Samoa Pago Pago v. KMST, Inc.,


DIOCESE OF SAMOA PAGO PAGO, Plaintiff

v.

KMST, Inc. and JUM YONG JUNG, Defendants

High Court of American Samoa

Land and Titles Division

LT No.18-90
CA No.23-90

May 1, 1990

__________

The defense of failure to state a cause of action upon which relief can be granted has traditionally been regarded as a defense on the merits.

The rules pertaining to a demand letter for possession or payment of rent, like those dealing with service of process or the exhaustion of some types of administrative remedies, seem designed not to allocate decision-making power among tribunals or to ensure the existence of a case or controversy, but to protect a particular party; presumably, these rules may be waived by that party. A.S.C.A. § 43.1406.

Entry of an appearance by counsel, the raising of defenses on the merits without objection to the Court's jurisdiction, and active participation in a trial on the merits would generally be regarded as a waiver of any waiveable jurisdictional defenses.

Enactment of summary eviction statute did not deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages. A.S.C.A. § 43.1401 et seq.

The only important difference between a "summary" and a "non-summary" proceeding for eviction is that plaintiffs who qualify for the former proceeding are ordinarily entitled to have trial within ten days, but this does not necessarily prohibit equally speedy trials in other cases. A.S.C.A. § 43.1410(b).

Since the only difference between a three-judge panel sitting as the Land and Titles Division and the same three judges sitting as the Trial Division is whether the case is styled "CA " or "LT", a final decision by one division is not subject to attack on jurisdictional grounds.

Even if the summary eviction statute was jurisdictional and the demand letter for possession or payment did not comply with the statute, the court properly exercised its general jurisdiction in the absence of prejudice. A.S.C.A. § 43.1401 et seq.

To hold a trial only a few minutes after the filing of the answer, over the objection of a party or under equivalent circumstances would be fundamentally unfair. [15ASR2d21]

Before REES, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Togiola T.A. Tulafono

  For Defendants, Charles V. Ala'ilima

This is an action for eviction. The complaint invoked the provisions of A.S.C.A. §§ 43.1401 et seq., for a summary proceeding and also contained a prayer for such relief as should prove to be justified on the pleadings and the evidence.

The principal feature of the summary eviction procedure is that trial shall be held within ten days of service of the summons, "unless extended by the court."  In the present case the ten-day period would have expired on a Sunday, so trial was set for the following day, March 5, 1990.

At the trial both plaintiff and defendants were represented by counsel. Counsel for defendant filed an answer. The answer alleged that defendants had in fact complied with all their obligations under the lease and also raised certain technical defenses (e.g., the plaintiff Archdiocese "has no capacity to sue. "). The answer did not allege that plaintiff had failed to comply with the statutory prerequisites for summary eviction. Nor was this defense raised at trial until after both the plaintiff and the defendant had rested.

The evidence taken at trial showed that defendants had been seriously and chronically deficient in making rental payments; that in March and April of 1989 plaintiff had engaged an attorney to commence eviction proceedings; that upon being threatened with eviction the defendants had paid the entire amount of overdue rent; that about six months later, in October of 1989, the defendants had again failed to make a rental payment when due; and that the rent had been at least one month overdue at all times between October 1989 and March 5, 1990, the date of trial.

Defendant Jum (who is in physical possession of the premises and who is an officer of the other defendant, KMST) did not disagree with plaintiff about the amounts paid and the dates on which they were paid. Instead he testified about his financial and logistical difficulties; about a conversation with the Bishop from which he, Jum, had derived some hope of an eventual settlement; and about various improvements he had made to the building. [15ASR2d22]

The principal defense urged by counsel for the defendant in his closing argument was that defendant should be entitled to a credit against rentals for three months at the beginning of the lease term during which the premises had been unfit for their intended use. The Court rejected this argument on the ground that the lease agreement clearly reflected the parties' understanding that the building would need substantial repairs and improvements in order to make it fit for defendant's intended use; and that the agreement had specifically provided that the defendant lessee would be responsible for fitting the building for its intended use and should pay rent during the time this was being done.

The Court also noted that defendants, when threatened with eviction in April of 1989, had paid the entire amount of overdue rent demanded by plaintiff, plus plaintiff’s attorney fees. Their failure to suggest at that time that they were entitled to a three-month credit or abatement---which, if true, would have meant that they were ahead rather than behind on their rent---bolstered the Court's impression that the parties did not understand the lease agreement to provide for such a credit. (1)

In his closing argument counsel for defendant also raised another issue: the failure of plaintiffs demand letter to comply strictly with the provision of A.S.C.A, § 43.1406 that "[a] demand for possession or payment" must state, inter alia, "the amount due at the time of the demand." Although the demand letter in this case did state that "your [15ASR2d23] company KMST is now three months behind in payments of rentals to the Catholic Church, "it did not state a dollar figure. Moreover, the letter did not contain "the address or a brief description of the premises," as also required by § 43.1406.

In its ruling from the bench, the Court observed that these deficiencies, had they been pointed out prior to trial, might have caused the Court to conclude that the summary eviction process was not available. The Court ruled, however, that the insufficiency of the demand letter was the sort of defense that should have been raised in defendants' answer or at the beginning of the trial. By letting the trial proceed without objection, the defendants waived any such objection.

Defendants now urge us to reconsider this ruling. They characterize the statutory requirements for the demand letter as jurisdictional, and correctly observe that the Court can and should notice the absence of jurisdiction at any time.

This argument fails for three reasons. In the first place, although defendants assert that the form and content of the demand letter are jurisdictional, they have advanced no reasons to support this assertion. The defense that a landlord did not notify tenants of the substance of his demand would seem to go to the merits of his claim for eviction rather than to the competence of the Court. Indeed, the defendants themselves argue that this defense was raised by their blanket allegation that "[t]he complaint fails to state a cause of action upon which relief can be granted." A defense of no cause of action has traditionally been regarded as a defense on the merits.

In any case, some prerequisites to the exercise of jurisdiction can be waived by the parties. The test is set forth in a recent decision of the Appellate Division:

A party can generally waive the benefit of a limitation on jurisdiction that is clearly designed only for his own protection. ...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. ..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. [15ASR2d24]

Pago Petroleum Products, Inc. v. American Samoa Power Authority, 10 A.S.R.2d 75, 81 (1989).

The rules pertaining to the demand letter, like those having to do with service of process or with the exhaustion of some types of administrative remedies, seem designed not to allocate decision making power among tribunals or to ensure the existence of a case or controversy, but to protect a particular party. If so, they are presumably waiveable by that party. Entry of an appearance by counsel, the raising of defenses on the merits without objection to the Court's jurisdiction, and active participation in a trial on the merits would generally be regarded as a waiver of any waiveable jurisdictional defenses.

On a more fundamental level, defendant's argument that the Court was without jurisdiction to conduct the trial misconstrues the nature of the remedy provided by the summary eviction statute and its relation to the jurisdiction of the High Court. In providing a new summary process and specifying that this process was to be available only in certain cases, §§ 43.1401 et seq. did not purport to deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages. The Court's exercise of this general jurisdiction, both before and after the enactment of the summary eviction statute in 1984, has frequently included orders that people wrongfully occupying premises should vacate such premises and/or pay damages grounded in tort or contract. See generally A.S.C.A. §§ 3.0101, 3.0208(a), 3.0208(b)(2), 43.1101 et seq. , 43.1301 et seq.

The only important difference between a "summary" and a "non- summary" proceeding for eviction is that plaintiffs who qualify for the former sort of proceeding are ordinarily entitled to have trial within ten days.(2) The provision of such an entitlement in some cases need not be [15ASR2d25] construed as a prohibition against equally speedy trials in other cases, at least not when the Court and all parties are willing.

Assuming (but not deciding) that the requirements for a demand letter set forth in A.S.C.A. § 43.1406 are indeed jurisdictional, they can only deprive the Court of its jurisdiction to conduct a summary eviction proceeding under the terms of the statute. Further assuming that the demand letter in the case did not comply with the statute, it would appear that the Clerk of the High Court should not have set the present action for trial within the statutory ten-day period. Rather, he should have waited for defendants to answer and then for one of the parties to move for a trial date, or for the Court to assign the case for trial on its own motion.

It is important to notice, however, that the only respect in which the trial of the present action was "summary"---the only way in which it differed from the trial of an ordinary civil action ---was that it was held sooner than would ordinarily have been the case. It is also important that shortly before the commencement of the trial (on March 5 at 9:00 a.m.), defendants filed their answer with the Clerk. At any time after the filing of the answer, with or without a request from either party, the Court was free to hold a trial without resort to the special statutory provision for summary proceedings. See Trial Court Rules of Civil Procedure, Rule 40.(3) Even if the demand letter was so deficient as to deprive the Court of the special jurisdiction granted by A.S.C.A. § 43.1401, therefore, the March 5 trial was a valid exercise of the Court's general jurisdiction. [15ASR2d26]

We hasten to add that jurisdiction is not everything. Courts ought not to do many of the things they have jurisdiction to do. To hold a trial only a few minutes after the filing of the answer, over the objection of a party or under equivalent circumstances (e.g., an absent defendant or one who is unrepresented by counsel and unfamiliar with Court procedures), would be fundamentally unfair. Cf. Wray v. Wray, 5 A.S.R.2d 34 (1987).

In the present case, however, there is no evidence that holding the trial on March 5 rather than, say, April 5 resulted in any surprise or other procedural unfairness to the defendant. Not only was no objection raised by defendant Jum or his counsel, but both appeared to be reasonably well prepared for trial. Counsel has not suggested any evidence or argument that was unavailable to defendants on March 5 but that might have become available had the trial been held later. Defendant Jum did request a few extra days so that he could attempt another discussion with the Bishop; the Court effectively granted this request by staying execution of its judgment for two weeks or until the ruling on a motion for reconsideration, whichever should be later. (As it turns out, the pendency of the present motion has caused the stay to remain in effect for 56 days, which is longer than an eviction under the general non-summary process might have taken. )

Nor do the arguable deficiencies in the demand letter ---the absence of a precise dollar figure and of a description of the premises --- suggest, on the facts of the present case, that eviction would be substantively unfair to the defendants. Defendant Jum knew exactly what premises were referred to in the letter, knew what the monthly rental was, and knew how to multiply by three. If the defendants were correct in their argument that the Court would have no jurisdiction to decide the case unless the demand letter stated certain terms in certain ways, then it would of course be irrelevant whether the absence of such terms was in fact prejudicial. Insofar as the case was within the scope of the Court's general jurisdiction, the demand letter is still important but for a different reason: it must be scrutinized to determine whether it gave defendants actual notice of what was being demanded and of the consequences of noncompliance. This it did.

In conclusion, the omission from the demand letter of a dollar figure and of a description of the premises may well have deprived plaintiff of its right to insist on a trial date within ten days of filing the complaint. It did not, however, deprive the Court of its general jurisdiction to decide cases concerning the right to possession of [15ASR2d27] property. The Court was free to hear such a case on the day of its choosing, at least in the absence of objection by either party.

One possible objection to the above analysis is that all of us --- the Court, the Clerk, the parties, their counsel ---were operating under the impression that this was indeed a summary proceeding, at least until after the close of evidence when somebody noticed the problems with the demand letter. For this reason, we would be inclined to grant a new trial if there appeared to be the slightest possibility that such a trial would result in a different outcome. We would do this not because we did not have jurisdiction to hear the case on March 5, but because the interests of justice would not be served by allowing a result to stand which might be attributable to confusion or even to undue haste.(4) The March 5 trial, however, was a fair one in which both parties thoroughly addressed the merits of the case. A new trial would appear certain to produce identical evidence, identical arguments, and an identical result.

Accordingly, the motion to reconsider is denied. The motion for a further stay of execution is also denied.

It is so Ordered.

*********

1. In any case, the April 1989 settlement appears to have been an accord and satisfaction which defendants were thenceforth estopped to contest. (Defendants, who are respectively a corporation engaged in extensive trans-national commerce and an apparently sophisticated businessman, have raised no suggestion that the April 1989 settlement was unconscionable or otherwise unenforceable.) By claiming a credit or abatement allegedly accruing in early 1988 as a defense to an action based on overdue rents for late 1989 and early 1990, defendants necessarily seek to undo the April 1989 settlement. In every month between that settlement and the onset of the present controversy ---May through September of 1989 --defendants paid plaintiff exactly one month's rent. Their contention that they did not fall behind when they stopped paying in October, because they had really been three months ahead all along, is not based on anything that happened during those post-settlement months. Rather, it entails arguments about the pre-settlement rights and obligations of the parties, which defendants were entitled to believe had been resolved by the settlement.

Even if the April 1989 agreement was for some reason not a binding accord and satisfaction, the defendants' conduct in paying the monthly rentals between May and September provides further evidence that the alleged three-month abatement was no part of the parties' original understanding, but was instead an afterthought designed to avoid the consequences of defendants' recenlnon-payment. Tenants do not generally pay their rent three months in advance without saying something about it at the time.

2. Another difference is that A.S.C.A. § 43.1402 inexplicably gives jurisdiction over summary eviction proceedings to the Trial Division, whereas other actions for the possession of land are brought in the Land and Titles Division. The only practical difference is that the present action was therefore styled "CA" for Civil Action, whereas a non-summary eviction proceeding would have been styled "LT" for Land and Titles.

All Justices and Judges of the High Court are qualified to sit in both the Trial and Land and Titles Divisions. The present three-judge panel is fully qualified as a panel of either division. Cases are rather frequently styled "CA" that should have been styled "LT" and vice versa; when this appears during the course of the litigation, the appropriate remedy is not to dismiss the case, but simply to give it a new number.

Since the only difference between a three-judge panel sitting as the Land and Titles Division and the same three judges sitting as the Trial Division is whether the case is styled "CA " or "LT ," a final decision by one division in a suit that should have been brought in another division is not subject to attack on jurisdictional grounds. Indeed, from time to time the Court hears cases in which some of the relief sought can only be granted by the Land and Titles Division and another part can only be granted by the Trial Division. This would appear to include eviction cases in which the plaintiff seeks both summary and non-summary remedies. See, e.g., American Samoa Government v. Samoa Aviation, Inc., 11 A.S.R.2d 144(1989).

Because we conclude that the relief granted in the present case should properly have been treated as an exercise of our general jurisdiction over cases involving the right to possession of land, we have assigned the case an LT number in place of its original CA number.

3. Indeed, Rule 40 does not say in so many words that a case can be assigned for trial only after an answer has been filed. While it would be sloppy practice to proceed to trial in the absence ofan answer, and to do so over the objection or without the knowledge of a party might deprive that party of due process of law, it is not clear that the out,:ome of such a trial would be subject to attack on jurisdictional grounds.

4. See, e.g., American Samoa Government v. Samoa Aviation, Inc., 11 A.S.R.2d 144, 154 (1989):

In retrospect, this was not the sort of case that should have been tried ten days after it was filed. The purpose of summary eviction proceedings is to provide speedy relief for landowners against deadbeats and squatters who have no fairly arguable legal right to remain on the premises and who would otherwise take unfair advantage of the law's delay. This was clearly not such a case. The Court therefore puts counsel on notice that it will take the motion for new trial seriously, especially insofar as questions of law are concerned. Counsel are urged to provide such authorities to the Court as might have been provided at or before trial there had [sic] been more time.

Continental Ins. Co. v. Workmen's Comp. Comm’n,


CONTINENTAL INSURANCE CO., Plaintiff

v.

WORKMEN'S COMPENSATION COMMISSION, Defendant

AMERICAN SAMOA GOVERNMENT, SOUTHWEST MARINE
OF SAMOA, Inc., AMERICAN INTERNATIONAL UNDERWRITERS,
and ERNEST FUIMAONO, Real Parties in Interest

High Court of American Samoa
Trial Division

CA No. 75-89

June 8, 1990

__________

Although occupational diseases differ from "typical" injuries in that they generally do not have a discrete and readily identifiable instant of occurrence, and although this may give rise to difficulties in the proof of causation, such diseases are injuries under the American Samoa Workmen's Compensation statute. A.S.C.A. § 32.0502(i).

The Workmen's Compensation Commission's findings of fact and inferences derived therefrom are to be upheld by the High Court if supported by "substantial evidence," using a reasonableness standard.

That a different conclusion might also have been supported by the evidence is insufficient to warrant reversal of the Workmen's Compensation Commission's conclusions.

Even if the "last injurious exposure" rule were not the law in American Samoa, employers and insurers may contractually adopt this rule, which places full liability on the insurer providing coverage at the time of the most recent injury causally related to the disability.

In occupational disease cases, the best estimate of the "date of injury" will ordinarily be the date on which the progress of the disease made it impossible for the claimant to continue working. A.S.C.A. § 32.0621.

When the medical officer of the Workmen's Compensation Commission was removed on the plaintiff's own motion and in accordance with statute because the physician was an employee of ASG and ASG was a party to the proceedings, there is nonetheless substantial compliance with the statute. A.S.C.A. § 32.0505.

Workmen's Compensation Commission has wide discretion in awarding medical and related travel expenses. A.S.C.A. § 32.0619. [15ASR2d131]

Workmen's Compensation statute does not require the Commission to order an examination, but instead requires the claimant to submit to any examination which the Commission does order. A.S.C.A. § 32.0638.

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

Counsel: For Plaintiff, John L. Ward II

  For Defendant, Robert A. Dennison III

  ForAmerican Samoa Government, Richard D. Lerner, Assistant Attorney General

  For Southwest Marine and American International Underwriters, Roy J.D. Hall Jr.

  For Enesi Fuimaono, Gata E. Gurr

This is an action to set aside an order of the Workmen's Compensation Commission. Claimant Enesi Fuimaono was an employee of the American Samoa Government's marine railway from 1967 until 1985, when the facility was transferred (whether by sale, lease, or otherwise does not appear in the record) to Southwest Marine. Fuimaono continued as an employee of Southwest Marine until November 20, 1987, when he was prol;1ounced totally disabled by mesothelioma, a type of lung cancer caused by exposure to asbestos. He was then placed on disability leave and his employment later terminated due to the disability.

During the time relevant to this action, Fuimaono's two successive employers were insured by at least three and possibly four workmen's compensation carriers. The American Samoa Government (hereinafter ASG) was self-insured unti11973. It was alleged before the Commission, although not proved to the Commission's satisfaction, that ASG was insured by Hartford Fire Insurance, Inc., between 1973 and 1976. Continental Insurance Company, the plaintiff in this action, was the workmen's compensation insurer for ASG from July 1, 1976 until April 30, 1985, when the facility was sold to Southwest Marine. American International Underwriters (hereinafter AIU) was the insurer of Southwest Marine at all times between May 1, 1985, and November 30, 1987. At the time of his disability claimant Fuimaono was making $10.10 per hour. The Commission therefore found that "[h]is then average weekly wage was $404." Workmen's Compensation Commission Finding of Fact No.12.

The Commission further found that the claimant was exposed to asbestos while employed by ASG; that he was exposed to sandblasting [15ASR2d132] and painting while employed by both the ASG and Southwest Marine, but there was no evidence of any deleterious effects from these activities; that the use of asbestos products was "immediately terminated" when Southwest Marine took over the marine railway in 1985; and that the inventory of asbestos products was "immediately removed" at the same time. See Workmen's Compensation Commission Findings of Fact Nos. 5 -7. The Commission therefore concluded that the disease arose out of and in the course of the claimant's employment by the ASG. Workmen's Compensation Commission Conclusion of Law 2. The Commission therefore ordered ASG and its insurer Continental to pay disability compensation.

Plaintiff Continental puts forth five principal arguments. First, it disputes the Commission's finding that claimant's employment at Southwest Marine did not contribute to his disability. Second, plaintiff argues that since it insured ASG during only part of the time the claimant was exposed to asbestos in the course of his employment by ASG, it should not be required to pay the entire compensation award. Third, it contends the Commission had insufficient evidence from which to conclude that claimant's weekly wage was $404. Fourth, it contends that the medical and travel expenses were incorrectly ruled compensable. Finally, it argues that the Commission failed to comply with certain statutory procedures.

At the outset we observe that the question whether occupational diseases are "injuries" within the American Samoaworkmen's compensation statute is technically one of first impression. Unlike some statutes,(1) ours does not specifically include occupational diseases within the definition of the term "injury." Rather, this term is generally defined by A.S.C.A. § 32.0502(i) to include "any harmful change in the human organism arising out of and in the course of employment...." Although occupational diseases differ from" typical" injuries in that they generally do not have a discrete and readily identifiable instant of occurrence, and although this may give rise to difficulties in the proof of causation, it nevertheless seems clear that such diseases are injuries within both the letter and the spirit of our statute.[15ASR2d133]

We also observe that our task is not to substitute our own judgment for that of the Commission, but to set aside the order only if it is "not in accordance with law." A.S.C.A. § 32.0652(a). With respect to findings of fact and inferences therefrom, this standard requires the Commission's holdings to be upheld if supported "by substantial evidence. " Continental Insurance Co. v. Workmen's Compensation Commissioner, 8 A.S.R.2d 152 (1988). This standard, in turn, is met if "'a reasoning mind reasonably could have reached the factual conclusion the agency reached.'" Id. at 155, quoting Dickinson-Tidewater, Inc., v. Supervisor of Assessments, 329 A.2d 18, 25 (1974).

I. Liability of Southwest Marine and AIU

Plaintiff contends that Southwest Marine should rightfully be held liable for the claimant's benefits. The specific questions before us are whether the Commission's finding that the Southwest Marine employment was not a substantial contributing cause of the injury was supported by substantial evidence, and whether the consequent conclusion that no liability attached to Southwest Marine was in accordance with law.

There is substantial evidence in the record to support the Commission's finding that Southwest Marine was not a substantial contributing cause of the claimant's disease. This evidence includes medical testimony that this disease usually requires three to five years to develop; since claimant was with Southwest Marine only between 1985 and 1987, it would arguably have been impossible for a record compiled in 1989 to reflect any deleterious effects of this employment. See Halvorsen v. Larrivy Plumbing & Heating Co., 322 N .W .2d 203 (Minn. 1982); Busse v. Quality Insulation Co., 322 N. W .2d 206 (Minn. 1982). This theory, although widely accepted, seems problematic insofar as it may imply that a trier of fact could not find recent exposure to asbestos to have aggravated a prior condition. The Commission, however, seems to have based its conclusion primarily on the far more important and persuasive evidence that Southwest Marine had removed and disposed of all asbestos products "immediately" upon taking over the marine railway. The record therefore contained no evidence that the Southwest Marine employment could have caused or aggravated claimant's asbestos-induced mesothelioma.

Plaintiff points out that the claimant did perform tasks including painting and sandblasting while he worked for Southwest Marine. Although mesothelioma is caused by asbestos and not by painting or [15ASR2d134] sandblasting, there was some evidence in the Commission's record that the claimant may have suffered from other lung diseases as well. The Commission apparently did not regard these other diseases as disabling, however, for it concluded that there was no evidence of deleterious effects from the painting or sandblasting and that the disability was caused by asbestos-related mesothelioma. These conclusions were not unsupported by the evidence; the worst that can be said about them is that a different conclusion might also have been supported by the evidence. This, however, is insufficient to warrant reversal.

Finally, plaintiff argues that ASG and Southwest Marine should be treated as a single employer rather than as two separate employers. Claimant did not resign from one job and go to another; rather, his work place was sold (or otherwise transferred) and the new owner retained most of the old employees. There is no evidence, however, that Southwest Marine assumed ownership or control of anything but the physical plant, or otherwise agreed to assume liabilities of ASG arising out of its prior operation of the marine railway. In the absence of such evidence, the operative facts are (1) that Southwest Marine and ASG are distinct entities; (2) that claimant's employment by one of these entities was shown to have been a cause of his injury; and (3) that his employment by the other entity was not shown to have contributed to the injury.

Finally, plaintiff suggests that the Commission erroneously absolved Southwest Marine of liability on the ground that Southwest was not "at fault." This is not what the Commission decided. Although, as plaintiff observes, the workmen's compensation statute does allow recovery against employers "without regard to fault as to cause of the injury, " it does not permit such recovery "without regard to cause" of the injury. See A.S.C.A. §§ 32.0520. Indeed, the statute specifically limits compensation to injuries "arising out of and, in the course or' claimant's employment. Id.In stressing that Southwest Marine removed the asbestos from the marine railway immediately upon assuming control, the Commission was not rewarding Southwest Marine for being a careful employer; rather, it was drawing a logical inference about whether the injury had anything to do with claimant's employment by Southwest Marine.(2) [15ASR2d135]

II. Liability of ASG as Self-Insurer

Continental also argues for a proportional allocation of the compensation award among the various insurers who carried workmen's compensation insurance for the claimant's employer(s) during the period to which his disease was attributable. As we have upheld the Commission's conclusion that the disease was in no way attributable to the Southwest Marine employment, such apportionment would be among the three insurers who are alleged to have covered ASG during the eighteen years it employed claimant Fuirnaono. These are: (1) ASG itself, which was a self-insurer between 1967 and 1973; (2) Hartford Insurance Company, which the parties seem generally to acknowledge as ASG's insurer between 1973 and 1976, but whose status as insurer the Commission found not to have been proved; and (3) plaintiff Continental, the insurer between 1976 and 1985.

A leading authority on workmen's compensation law has said that such apportionment "would be the ideal theory in a perfect world." 4 A. Larson, The Law of Workmen's Compensation § 95.12 at 17-111. However, the perceived difficulty of administration and of precise allocation (particularly in occupational disease cases) have caused most courts to reject this approach in favor of the "last injurious exposure" rule. This rule "places full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability."Id. § 95.20 at 17-112.

The last injurious exposure rule is "particularly useful for allocating liability in occupational disease situations, which often involve a number of insurers." Id. § 95.24 at 17-148. It has been applied in two different situations: those involving multiple employers, and those involving a single employer who has had several insurance carriers. See, e.g., Osteen v. A.C.& S., Inc., 307 N.W.2d 514 (Nebr. 1981) (multiple employers); Pacific Employers Ins. Co. v. Industrial Comm'n., 157 P.2d 800 (Utah 1945) (one employer with multiple carriers). Some courts [15ASR2d136] depart from the rule in the one employer/multiple carriers situation, imposing the whole burden on the last insurer whether or not there was injurious exposure during the insurance period. See, e.g. Flowers v. Consolidated Container Corp., 336 N. W .2d 255 (Minn. 1983).(3)

It is unnecessary, however, for us to decide whether the "last injurious exposure" rule applies inAmerican Samoaas a matter of law. This is because the rule has plainly been adopted as a matter of private contract between ASG and its most recent insurer, plaintiff Continental. The policy provides in pertinent part:

This policy applies only to injury. ..by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occur during the policy period.

This provision imposes responsibility on Continental for the ASG's liability even if some injury occurred during the self-insurance period (1973 or earlier), as long as the disease was at least aggravated during Continental's policy period (1976 to 1985).

Even if we should be persuaded to reject the last injurious exposure rule in favor of proportional allocation among insurers, the rule thus adopted would be suppletive rather than imperative; that is, employers and insurers would be free to derogate from it by contract. If we were to assess part of the award in the present case against ASG [15ASR2d137] as self-insurer, another part against Hartford, and another part against Continental, ASG would still be liable as principal obligor on the entire assessment. Because the record clearly establishes that claimant's disease was at least aggravated during the period of Continental's coverage, Continental would be liable under its contract for any assessment against ASG.(4)

We have no evidence in the record to consider whetherHartfordmight also be contractually liable under the terms of a policy with ASG, or even that there ever was such a policy. On its face, however, the Continental policy makes it responsible for injuries during theHartfordperiod, if any, provided they were at least aggravated during the Continental period. Because the policy covers the entire award in the present case, the possible existence of another policy that might also cover the award is not a ground for overturning the Commission's assessment against Continental.

We offer no opinion with respect to whether avenues remain open by which Continental might seek contribution fromHartford, either on a proportional allocation theory or by reference to provisions of the two policies.

III. Amount of Compensation

The only evidence at the hearing with respect to claimant's wages was his testimony that his wage at the time of his disability was $10.10 per hour. The Commission concluded (apparently as a result of multiplying by forty) that his average weekly wage was $404. The plaintiff contends that the statutory formula tor determining the "average weekly wage," A.S.C.A. § 32.0621(d)(1)(5) was not complied with. [15ASR2d138]

The Commission's finding complies with the statute if and only if the Commission was within its authority in assuming (1) that the claimant was a full-time rather than a part-time employee for at least thirteen weeks before the injury; and (2) that his $10.10 hourly wage had remained the same for at least thirteen weeks before the injury. In the absence of any record evidence to the contrary, we cannot say that the Commission erred in making these assumptions. From a record indicating that a person's hourly wage was $10.10 and containing no suggestion that he was other than a full-time employee, a "reasoning mind might reasonably conclude" that his average weekly wage during the last thirteen weeks was $404.

Plaintiff also contends that A.S.C.A. § 32.0621 requires the use of the date of "injury" in calculating the wage, and not the date of disability, which the Commission used. In occupational disease cases, however, the best estimate of the "date of injury" will ordinarily be the date on which the progress of the disease made it impossible for the claimant to continue working. See IB Larson's Workmen's Compensation Law Section 41.84 at 7-546; Osteen v. A.C. & S., Inc., supra, 307 N.W.2d at 517.

The plaintiff finally alleges that it was contradictory for the Commission to hold that for compensation purposes the "injury" date was the 1987 disability, while for liability purposes the" injury" ceased in 1985. This is not what the Commission found; it found only that claimant's employment between 1985 and 1987 was not a substantial contributing cause of the injury (i.e., the occupational disease), not that the injury/disease "ceased" in 1985.

For these reasons we decline to overturn the Commission's finding of a weekly wage of $404.00 as unsupported by substantial evidence or not in accordance with law.

IV. Medical and Travel Expenses

This issue was not raised below, and so technically cannot be raised here. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 184 (1980). [15ASR2d139]

In any event, we note that the Commission was clearly correct in finding that the claimant "has incurred and will incur medical expenses and related travel expenses as a result of his disease of mesothelioma." Finding of Fact 13. The Commission concluded that the claimant was entitled to payment of his medical and travel expenses, in accordance with A.S.C.A. § 32.0619. Conclusion of Law 7. The Commission has wide latitude in making this award in the interest of justice, and it did not exceed this discretion.(6) The Commission's findings on medical and travel expenses comply with A.S.C.A. § 32.0619.

Plaintiff will presumably have the opportunity to submit any dispute over the amount of any future medical or travel expense claim to the Commission. Any order of the Commission would then be subject to judicial review. The only question addressed thus far by the Commission with respect to medical or travel expenses is the question of liability for such expenses. We find no error in the Commission's conclusion or order.

V. The Commission's Compliance with Statutory Procedures

The plaintiff complains of several alleged violations of statutory procedures by the Commission.

First, plaintiff claims that adequate notice of the hearing was not given. Ten days notice is required. A.S.C.A. § 32.0628. Plaintiff does not specify how much notice was received, describing it as "none until a few days before",(7) or as having been given in "June, 1989".(8) The hearing was scheduled for June 28, 1989, but was continued for one week. According to Continental's counsel, Oxford Pacific is the agency through which Continental conducts its business in the territory, although it Is not itself a carrier. Service on Oxford was made on June 22, 1989; the actual hearing date was July 5, 1989. The Commission found that [15ASR2d140] sufficient notice of the claim was given in Conclusion of Law 1, and this is supported by substantial evidence. The notice substantially complied with the statute.

Second, the plaintiff complains that there was no medical officer on the Commission. This is true; the medical officer was removed on the plaintiff's own motion and in accordance with A.S.C.A. § 32.0505(e), because the physician was an ASG employee, and the ASG was a party to the proceedings. However, because the only hospital in American Samoais government operated, all practicing physicians in the territory are government employees. The ASG is a large employer inAmerican Samoa, and so this situation must recur. The only alternative to simply doing without the medical officer would be to fly in off-island physicians to sit on each Commission considering claims to which the ASG is a party. It is an established principle of Anglo-Saxon jurisprudence that non-expert judges may, with the help of expert testimony, resolve scientific or medical matters. The Commission substantially complied with A.S.C.A. § 32.0505, governing the makeup of the Commission. (In any case, plaintiff made no objection below to going forward without a medical member of the Commission. It cannot raise this issue for the first time on judicial review. )

Third, plaintiff contends that the Commission failed to order a medical examination as required under A.S.C.A. § 32.0638. This section provides that an "injured employee ...shall submit to such physical examination. ..as the commissioner may require." This provision does not require the Commission to order an examination, but instead requires the claimant to submit to any examination which the Commission does order.

Fourth, the plaintiff seeks to invoke A.S.C.A. § 32.0613, which addresses injuries increasing existing impairments. This section is inapplicable unless the employer has shown with written records knowledge of the impairment when the claimant was hired. A.S.C.A. § 32.0913(d). Also, the provision is of dubious applicability in this case because the injury and impairment are one and the same. There is no injury which increased an impairment, but rather only the progression of one debilitating disease. Moreover, the disease almost certainly did not exist at the time claimant Fuimaono was employed by plaintiff’s principal, ASG.

Lastly, plaintiff levels the general complaint that the Commission failed to "best ascertain the rights of the parties," under A.S.C.A. § [15ASR2d141] 32.0640. A.S.C.A. § 32.0640 reads, "[i]n ...conducting a hearing, the commissioner. ..may. ..conduct such hearing in such a manner as to best ascertain the rights of the parties." Upon review of the Commission's procedures, it appears that the Commission satisfied the requirements of A.S.C.A. § 32.0640.

VI. Conclusion

In summary, the Commission's findings are supported by substantial evidence and its order was in accordance with the law. The petition to set aside the order must therefore be dismissed.

It is so Ordered.

*********

1. For instance, the federal Longshoreman's and Harbor Worker's Compensation Act, on which the American Samoa workmen's compensation statute is generally patterned, specifically includes occupational diseases within the definition of injuries. See 33 U.S.C . § 902(2) (1980).

2. Plaintiff puts its argument in yet another way by saying that Southwest Marine had produced insufficient evidence to rebut the "presumption of compensability" embodied in A.S.C.A. § 32.0642. We note in passing that this presumption appears intended to embody a pro-claimant bias; it is not a presumption that all employers are liable, and its citation by an insurer intending to escape liability reflects a certain wrenching from context. In this case, moreover, there was evidence sufficient to rebut any presumption that claimant's mesothelioma was caused by his employment with Southwest Marine. Not only was there a showing that Southwest Marine used no asbestos in its operations, but the record also suggested a far more obvious explanation for the disease: plaintiffs eighteen years of employment with ASG, which did use asbestos. Once rebutted, the presumption drops out of the case. See Whitmore v. AFIA Worldwide Insurance, 837 F.2d 513 (D.C. Cir. 1988).

3. The Flowers rule relies on the law of averages to fairly distribute the loss among insurers of the same employer. It may be criticized for abandoning a search for truth in favor of simplicity and ease of administration. Moreover, if imprecision is the reason to reject proportional allocation, it seems awkward to substitute a rule that attempts to ensure fairness through randomness. However, ease of administration and application is a great strength in a system whose overriding purpose is to minimize the obstacles to compensation for injured workers.

It is important to note that the "last insurer" rule (as opposed to the "last injurious exposure" rule) has been applied only in cases where several insurers covered the same employer. The single-employer situation is very different from the case of multiple employers, in that workmen's compensation statutes firmly insist upon causation as an element in the proof of employer liability but have far less to say about the contract between the employer and its insurer(s). Where there was no injurious exposure during the tenure of the last employer, the "requisite causation" for the imposition of liability does not exist. Bertrand v. API, Inc., 365 N.W.2d 222, 224 (Minn. 1985). When there has been only one employer, each new insurance carrier may assess its risk (by, inter alia, reviewing working conditions over previous years) as it assumes an employer's coverage.

4. Continental also offers the suggestion that the entire award be assessed against ASG as self-insurer, on the ground that claimant already had mesothelioma by 1972. This is not what the record reflected or what the Commission found. Claimant was found "possibly" to have displayed early symptoms of mesothelioma in 1972, but not "probably" to have contracted the disease until about 1984. For the reasons stated in the text, moreover, Continental's policy would make it liable for any assessment against ASG even if the claimant did have the disease by 1972, since it was at least aggravated by his exposure to asbestos between 1976 and 1985.

5. The text of A.S.C.A. § 32.0621(d)(1) reads: "If at the time of the injury the wages are fixed by the day or hour, or by the output of the employee, the average weekly wage shall be the wage most favorable to the employee, computed by dividing by 13 the wages (not including overtime or premium pay) of the employee earned in the employ of the employer in the first, second, third or fourth period of 13 consecutive calendar weeks in the 52 weeks immediately preceding the injury."

6. A.S.C.A. § 32.0619 requires a report within 20 days of the first treatment, but the "commissioner may excuse the failure to furnish such report within 20 days if he finds it to be in the interest of justice to do so, and he may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee."

7. Petitioner's Opening Brief at 12.

8. Petitioner's Closing Brief 19.

Congregational Christian Church; Tuato'o v.


TUATO'O TAUTALATASI, Plaintiff

v.

TAUA'A LI, FAUMUINA FAMILY, TOIA FALEUILA,
Rev. ELI FUlMAONO, and Members of the
CONGREGATIONAL CHRISTIAN CHURCH in the
Village of Alofau, Defendants

LT No. 26-88

High Court of American Samoa

Land and Titles Division

April 23, 1990

__________

Plaintiff failed to carry burden of proving land ownership when his evidence largely consisted of his memories, especially when defendants' evidence as to leases and actual control clearly predominates and is more plausible.

Before REES, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Asaua Fuimaono

  For Defendants, Togiola T .A. Tulafono

This action began as an effort by plaintiff Tuato'o Tautalatasi to enjoin the construction of a minister's house. The house is on a tract of land in Alofau long used by the Congregational Christian Church. [15ASR2d11]Plaintiff claims this tract to be a Tuato'o family land called Falesa. The defendants claim the land is called Asosama and belongs to the Faumuina family.

During the course of the litigation it became clear that plaintiff did not in fact object to the construction of a new house for the minister , but wished only that the building permit should designate the Tuato'o family rather than the Faumuina family as the land owner. By stipulation among the parties the construction was therefore allowed to proceed. The action proceeded as one between the two families over title to the land, and those defendants who had been sued in their capacities as church officials took no further part.

Plaintiff contends that the land in question has already been held to belong to the Tuato'o family. He directs our attention to Tia v. Faumuina, 1 A.S.R. 201 (1909). That case was precipitated partly by two leases contracted by the then reigning Faumuina, and partly by a will in which the same Faumuina purported to leave his children the whole village of Alofau and much of the island of Aunu'u. Several chiefs of Alofau, including Tuato'o, claimed to own the two tracts of land that had been leased: one called Asosama and another called Fale Sa, a part of larger tract known as Faleteine. These chiefs based their claim on their descent from a person called Fepulea'i.

The Court found that Fepulea'i had once held pule over all the lands of Alofau, but that Faumuina had come from Upolu and acquired lands in Alofau including the land called Asosama. Since Faumuina had long occupied Asosama, the Court declined to "investigat(e] the equities of the alleged transfer, or seizure, of the land, at the time Faumuina came over from Upolu." Id., 1 A.S.R. at 203. With regard to Faleteine, however, the Court held that the pule of Faumuina had been "steadily denied and disregarded" by the descendants of Fepulea'i. Id. at 204. This land therefore belonged to the plaintiffs, including Tuato'o.

Plaintiff contends that the land now in dispute is the tract called Fale Sa which was discussed in the 1909 opinion. He supports this contention by reference to his own childhood memories of playing amid the ruins of a former church building (fale sa) on the land; to his father's having pointed out the boundaries of Faleteine to him; and to the existence of some ifi trees toward the back of the area he calls Faleteine, an ifi grove apparently figuring heavily in the history of the Tuato'o family. [15ASR2d12] Defendants contend that Faleteine is a considerable distance from the land presently in dispute. Their position was supported at trial by the testimony of Tago Seva'aetasi, whose ancestor in title was one of the co- plaintiffs in the 1909 case, to the effect that Asosama extends as far as a stream about two hundred feet east of the minister:'s house. To the east of this stream, according to Tago and the other Faumuina witnesses, are the lands of his family and one other. To the east of these lands, in turn, is the Tuato'o land called Faleteine. (Tuato'o acknowledges that his family owns this land to the east and that it is called Faleteine, but maintains that Faleteine also includes the land presently in dispute.)

According to Tago and the other Faumuina witnesses, the part of Faleteine called "Fale Sa" was named not after the old church building remembered by Tuato'o ---which was in use perhaps as late as the 1930s ---but after a small chapel which had been abandoned at some time prior to 1904 when Fale Sa was leased to H.J. Moors. This chapel, according to Tago, was located some distance to the east of the land now used by the Church, in roughly the same place he identifies as Faleteine. Tago also testified, however, that the shoreline has unfortunately receded over a hundred feet during the present century .If so, the entire tract called Fale Sa that was leased to Moors in 1904 ---which extended 150 feet along the shoreline and 101 feet back from the shore ---is presently under water .

Whether or not the land called Fale Sa still exists, we hold that Tuato'o has not carried his burden of proving that it includes the land presently at issue. Indeed, the evidence clearly preponderates in favor of the defendants' position that this land is part of the Faumuina tract called Asosama. In the first place, both the 19041ease and a later lease (from the victorious plaintiffs in the 1909 case, including Tuato'o, to E.H. Partridge) designate "the creek" as the western boundary of Fale Sa. There is no creek at the western boundary of the area designated by plaintiff as Fale Sa. The best plaintiffs surveyor could say was that there may once have been a creek, although he can find no particular evidence of it. There is, however, a creek about two hundred feet to the east (where the Faumuina family locates the eastern boundary of Asosama) and another a short distance further east (where Tago says his boundary with the Tuato'o family is located). Either of these two locations is thus a far more plausible candidate for the western boundary of Falesa than the line Tuato'o says his father pointed out to him. The defendants' historical evidence is more plausible than plaintiffs in yet another way. It makes no sense that Moors or Partridge [15ASR2d13] would want to rent a small tract (Fale Sa was only about a third of an acre) on which stood a church building still in active service, even if its owners were willing to rent it out. The map accompanying the 1904 lease refers to the "Old Church," presumably referring to a building no longer used as such. It makes perfect sense that a tract such as the one described by Tago, containing an abandoned church, would have been leased to Moors and Partridge under the name "Fale Sa"; it seems far less likely that they would have rented the land now in dispute, on which a church building remained in use twenty or thirty years after the date of the lease.

Moreover, the evidence is to the effect that the Faumuina family has for some time exercised actual control over the area now in dispute. Most recently, in 1977 Faumuina was designated as the land owner on a building permit for a Church residence and meeting hall. Tuato'o raised no objection. In contrast, the building permits introduced into evidence by plaintiff as evidence of Tuato'o pule over Faleteine all have to do with an area well to the east of the Church buildings ---apparently with the very land identified by Tago as the extent of the Tuato'o holdings called Faleteine. (It is undisputed that the Tuato'o family also owns some land to the west and inland from Asosama, but this land is not claimed to be part of Faleteine.)

Finally, the 1909 decision on which plaintiff relies did not hold Faleteine to be the sole property of the Tuato'o family. Rather, it held this tract to belong to the descendants of Fepulea'i including "Tago, Fepuliai [sic], Tia, Tafea, Maata, Muafono, Tuatoo, [and] Ufagafa. Tia v. Faumuina, 1 A.S.R. at 201. With respect to the part of Faleteine designated as Fale Sa, the 1910 lease designated "Tia, Tuato'o, and Salavea Tafea, chiefs and landowners of the village of Alofau," as "lessors." We have no evidence of which parts of Fale Sa belonged to the Tuato'o family and which to the other families. Even if plaintiff had carried his burden of proving that Fale Sa was where he says it is, therefore, he would not have shown himself entitled to the relief he requests.

We hold the land currently occupied by the Church buildings to be part of the Faumuina land called Asosama. Accordingly, judgment will be entered for the defendants dismissing the complaint.

It is so Ordered.

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American Samoa Gov’t v. Loia,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

NAPOLEONE LOIA, Defendant

High Court of American Samoa
Trial Division

CR No. 10-90

June 7, 1990

__________

The government was not estopped from arguing that a warrantless search and seizure was valid for purposes of a second possession charge where the second charge stemmed from marijuana found on defendant while booking him on an arrest warrant for a first possession charge, the warrant for the first charge was based on marijuana found during the warrantless search and seizure, and the warrantless search and seizure was held unlawful by the lower court in dismissing the first possessions charge stemming from the search; held, since the High Court was considering the second charge the legality of the warrantless search for that purpose was an issue properly before the court.

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

Counsel: For Plaintiff, Jeffrey Buckner, Assistant Attorney General

  For Defendant, Barry I. Rose, Assistant Public Defender

On Motion to Suppress:

Defendant is charged with possession of a controlled substance, marijuana. He has filed a motion to suppress evidence under the following circumstances: On the evening of March 6, 1990, two officers, who were on patrol on the main east-west highway, encountered an oncoming vehicle in the vicinity of Fatumafuti which appeared to them to be driven at a high rate of speed. The officers gave chase and finally ended up at the emergency entrance of the L.B.J. Tropical Medical Center. When the officers arrived at the hospital, they found the defendant's vehicle parked and unoccupied. One officer went into the emergency clinic where he located the defendant, while the other officer went and looked inside the parked vehicle. In a preliminary examination proceeding before the District Court, the latter testified that his purpose [15ASR2d127] for checking the defendant's vehicle was "just to look inside if the keys were in there," and that while looking inside he "observed an ashtray, something that looked like --like a butt, like a cigarette butt. So I left it there and informed Officer Maifea that that was probably marijuana. It doesn't have, you know, like a filter."(1) A radio call was then placed to the station for a narcotics officer who later attended with field test equipment. The butts tested positive.

A week later, and armed with these results, the testing officer sought a warrant for the defendant's arrest charging him with possession of an unlawful substance. The affidavit in support of the warrant contained in pertinent part the following: "Affiant responded to a call from the police station and, upon arrival, was informed by PSO L. MAIFEA that, during a routine vehicle search, he observed what appeared to be two marijuana cigarettes in the ash tray of the pickup driven by NAPOLEONE LOIA following his arrest for drunk driving; That Affiant seized the cigarettes and performed a field test, the results of which were positive for marijuana. ..." An arrest warrant issued.

Upon execution of the warrant on March 16, 1990, the defendant was immediately taken to the Tafuna Correctional Facilities. During the attendant booking process at the correctional facilities, a quantity of alleged marijuana was found on the defendant's person and, accordingly, another charge of possession was filed.

On March 26, 1990, the preliminary examination on the first charge of possession came before the District Court. Departing from past practice and citing A.S.G. v. Samana, 8 A.S.R.2d 1 (1988),(2) the District Court judge felt that he was bound to entertain a defense motion to suppress. From the evidence adduced at this hearing, the judge was not satisfied that the search of the defendant's vehicle was in fact the routine search following arrest for drunken driving as alleged in the supporting affidavit. Dismissing the government's arguments about [15ASR2d128] "plain view, " the judge went on to find that the marijuana butts taken from the defendant's vehicle were seized pursuant to an unlawful search and, therefore, inadmissible as evidence. Lacking the physical evidence, the complaint was dismissed for insufficient showing of probable cause.(3)

The second possession charge is the basis of the proceedings now before us. The motion to suppress alluded to at the outset is premised on the contention that the marijuana seized, together with any inculpatory statements made by the defendant, at the correctional facilities, were "fruits" of an unlawful arrest and attendant search and, therefore, inadmissible evidence under Wong Sun v. United States, 371 U.S. 471 (1963).

Defendant's "fruits of the poisonous tree" claim is, however, dependent on the contention that the District Court's conclusion of an unlawful search and seizure on March 6, 1990, is somehow conclusive in the proceedings before us. Defendant argues that the government is estopped from further reviving the issue of whether the search calumniating in the first possession charge was lawful. Defendant argues that if the government is permitted to reopen the issue, this would have the practical effect of allowing the back door appeal of an issue which the government was entitled to appeal and which it did not. The concern stated is that if the High Court views the evidence differently, then the District Court's decision in A.S.G. v. Loia, DCR No. 21-90, will have been effectively overruled, and, therefore, the government could conceivably refile the first possession charge. Defendant submits that this peculiar effect singularly arises in the territory because of its distinctive constitutional exclusionary rule and the fact that inAmerican Samoa, unlike other jurisdictions, a felony complaint may only be filed in the High Court consequent to a preliminary examination.

The argument for estoppel is not persuasive. That the government has a right to appeal does not mean that the government has the duty to do so. We are unwilling to give such unnecessary effect to the relevant statute, A.S.C.A. § 46.2405. Secondly, whether the government mayor may not refile the first possession charge is matter governed by the provisions of High Court of Rules of Criminal [15ASR2d129] Procedure, Rule 5.1(b),(4) and not on how we view, in these entirely separate proceedings, the legality of the March 6, 1990, seizure. Thirdly, our concern in this case is the question of guilt or innocence, which in turn is dependent on the competency and quality of the evidence to be presented by the government. It is the duty of this court to determine all questions as to the competency of the evidence; we see no reason to here depart from that duty. Finally, the curious situation in which the District Court Judge found himself in A.S.G. v. Loia, DCR No. 21-90, is not the inevitable consequence of the territory's uncommon constitutional exclusionary rule. A constitutional mandate extending the exclusionary rule to preliminary examination proceedings would also be served by the referral of such suppression motions for disposition by the High Court. A simple amendment to that effect to T.C.R.Cr.P. 5.1 would not be inconsistent with the mandate.

We conclude that the government is not estopped from arguing the legality of the seizure of March 6, 1990. It is thus unnecessary, at least at this point in the record, to consider the teaching of Wong Sun. The issue of whether or not the March 6, 1990, seizure was valid is an issue for this Court's determination and should therefore be briefed and addressed by the parties accordingly. This matter will be set for further hearing upon the motion of either party.

It is so Ordered.

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1. A.S.G. v. Loia, DCR No. 21-90, Reporter's Transcript of Proceedings held March 26, 1990, page 5.

2. This case held that the exclusionary rule in American Samoa, a constitutional rule, applied also to probation revocation proceedings. Rev'd. Const. Am. Samoa art I, § 5. This provision tracks the language of the Fourteenth Amendment relating to unreasonable searches and seizures; however, unlike its federal counterpart, art. I, § 5 also provides: "Evidence obtained in violation of this section shall not be admitted in any court." (emphasis added).

3. A.S.G. v. Loia, OCR No. 21-90, Reporter's Transcript of Proceedings held March 26, 1990, pages 7-20.

4. T.C.R.Cr.P. Rule 5.1(b) provides as follows:

(b) Discharge of Defendant. If from the evidence [at the preliminary examination] it appears that there is not probable cause to believe that an offense has been committed or that the defendant committed it, the district court judge shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the government from instituting a subsequent prosecution for the same offense.

Id. (Emphasis added).

Afualo; Puailoa v.


OPAPO AFUALO, Plaintiff

v.

PUAILOA TAVETE and SIUFAGA FANENE, Defendants

T.M. PUAILOA, MOEA'I ULIATA, ALAI'A FILIFILI,
and PENIROSA FANENE, Plaintiffs/Objectors

v.

OPAPO AFUALO, Claimant/Defendant

High Court of American Samoa
Land and Titles Division

LT No. 7-88
LT No. 3-89

May 21, 1990

__________

Activities on land pursuant to a license, no matter how extensive and no matter what the original state of the land, cannot give rise to a claim of ownership.

The idea that the owner of a valley has a right to the adjoining mountainsides as a sort of curtilage or natural frontier, while having some support in Western political theory and Samoan tradition, is not a principle of universal application.

In deciding between competing claims to ownership of communal land the Court must look primarily to facts such as the record of occupation and cultivation, rather than to claims based upon family history.

Barring land claims by res judicata or collateral estoppel is improper if the parties or their predecessors-in-title were not parties in the previous case.

Court may disregard land registrations if the failure to give statutory notice appears in the registration record itself. A.S.C.A. § 37.0101 et seq.

Before REES, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff Afualo, Gata E. Gurr

  For Defendants Puailoa Tavete and Siufaga Fanene, Charles V. Ala'ilima [15ASR2d49]

  For Plaintiff/Objectors Penirosa Fanene and Fanene Family, Fai'ivae Galea'i

  For Plaintiff/Objector Moea'i Uiliata, Tau'ese P.F. Sunia

These consolidated cases concern a 24-acre tract referred to as "Malaeimi" or "part of Malaeimi." It is located on the western slopes overlooking the Malaeimi Valley, adjacent to the village of Faleniu. Opapo Afualo has offered it for registration as the individually owned land of "the children of Luteru Afualo."

This tract is immediately to the west of the 300-acre tract (also called "Malaeimi") long occupied by the Mormon Church and held in Reid v. Puailoa, 1 A.S.R.2d 85 (1983), to be the communal property of the Puailoa family of the village of Nu'uuli. It is also slightly to the east of an area called Mesepa or Mapusaga Tuai, a part of Faleniu belonging to Alai'a and Moea'i among other families of that village. Moea'i v. Te'o, 8 A.S.R.2d 85 (1988), aff'd sub nom. Moea'i v. Alai'a, 12 A.S.R.2d 91 (1989).

The Puailoa, Moea'i, and Alai'a families have all objected to Afualo's offer of registration. The fourth objector is Penirosa Fanene for the Fanene family of Nu'uuli.

In addition to the Afualo registration case (LT No.7-88) we are presented with an injunctive action by Afualo against Puailoa and his son-in-law (LT No.3-89). The two cases were consolidated for trial.

Finally, we note that all but about 7.6 acres of the land now in dispute is also included in a 153-acre tract which has been offered for registration by Puailoa. Moea'i is the only objector to the Puailoa registration, which is presently pending before the Court as LT No.7-88. Although that case was inadvertently not consolidated with the present cases, it is important to the present proceeding in at least two ways. First, a map of the 153-acre Puailoa survey and accompanying exhibits have been introduced as evidence of Puailoa's claim. Second, Puailoa argues that because Afualo, Alai'a, and Fanene failed to lodge timely objections to the 153-acre survey when it was offered for registration in 1986, they are barred from asserting claims to that tract or any part of it in any subsequent proceeding, including this one. [15ASR2d50]

I. Afualo's Claim

Opapo Afualo bases his claim on individual occupation and cultivation. He claims that his father began occupying and cultivating the 24-acre tract in 1932 and that no one interfered with him until recently.

The evidence is overwhelming, however, that Afualo's father came to Malaeimi in his capacity as an official or employee of the Church. It was the practice of the Church to let members and employees cultivate small plots for their own use within Church lands. Such cultivators, however, were acting as licensees of the Church rather than as putative owners. Activities on the land in pursuance of a license, no matter how extensive and no matter what the original state of the land, cannot give rise to a claim of ownership. See, e.g., Tuileata v. Talivaa, 3 A.S.R. 201 (1956); Satele v. Uiagalelei, 6 A.S.R.2d 143, 145 (1987) (licensee who occupied land for many years and established a large commercial farm did not thereby acquire title).

Counsel for Afualo relies heavily on the fact that the land claimed in the present case was outside the 300-acre tract then thought to belong to the Church. In the context of the circumstances surrounding the senior Afualo's presence in Malaeimi, however, this is insufficient to prove that he acted on his own account under a claim of right in cultivating such lands. While it is theoretically possible that the same person could have cultivated lands inside the Church tract in his capacity as a Church employee while simultaneously cultivating immediately adjacent lands under a claim of ownership, in the present case there is no evidence (other than the bare assertion of Opapo Afualo) to support this hypothesis. On the contrary, the evidence is to the effect that in those days Church members did not know exactly where the boundary was. This is a far more plausible explanation than the dual-roles hypothesis for any Afualo cultivations that may have been outside the Church tract.

Moreover, the preponderance of the evidence (including that offered by Afualo's own principal witness other than himself) was to the effect that Luteru Afualo's plantings were primarily in an altogether different area than the one now in dispute. While he apparently did have some association with some plantings in the southeastern portion of the present 24-acre survey, these plantings appear to have been a Church project carried out by a group of schoolchildren of whom Luteru Afualo was the supervisor. (The evidence, including aerial photographs, is that the northern part of the 24-acre survey was not extensively cultivated by [15ASR2d51] anyone until quite recently. This area is on a fairly steep hillside at elevations between 500 and 700 feet. )

The argument that Luteru was acting as owner of the land is further contradicted by the evidence that he and his family left the land when their Church service in Malaeimi ended. They were absent for many years until the fairly recent return of Opapo Afualo. At first Opapo worked at least primarily within the 300-acre Church tract. When Puailoa recovered this tract from the Church in 1983, Afualo made his peace with Puailoa and continued to work on the 300-acre tract. Although he may also have worked some adjacent lands, as did the Puailoas themselves during this period, Afualo never claimed individual ownership of any of the land he was cultivating until after Puailoa ordered him to leave in 1987.

Since we find that Afualo has not presented evidence sufficient to establish his claim of ownership, we need not decide whether he was barred from doing so by his failure to object to the 1986 Puailoa survey.

II. The Claims of Puailoa, Moea'i, and Alai'a

Puailoa's claim to the 24 acres---and to the whole 153 acres he offered for registration in 1986 ---is based primarily on the idea that the owner of a valley has a right to the adjoining mountainsides as a sort of curtilage or natural frontier. Although this proposition has some support not only in Western political theory but also in Samoan tradition, it is demonstrably not a principle of universal application. While almost every Samoan land claimant believes that the true and original extent of his family's holdings was "from the mountaintop to the ocean reef," the island of Tutuila has for some years had rather more families than mountains. Accommodation, itself important to Samoan tradition, has been necessary. A walk from the mountain to the shore more often than not traverses the lands of five or ten landholders, each perhaps believing the others to be ancient usurpers, each more or less resigned to the imperfect boundaries that have evolved over time. .

In deciding between competing claims to ownership of communal land in Samoa, therefore, the Court must look primarily to the facts: to the record of occupation and cultivation rather than to claims based on family history. In the present case the Puailoas are strong on family history but weak on occupation and cultivation. Puailoa hin1Self admits that his family was absent from the land presently in dispute from "after World War II" until about 1971. The best evidence is that the [15ASR2d52] absence was of even longer duration. Indeed, it appears that the only people who worked on the slopes west of the 300-acre tract then occupied by the Church at any time between about 1900 and about 1979 were (a) Church members whose plantings extended beyond the boundaries of the Church tract, probably by inadvertence; and (b) families of the adjoining village of Faleniu, including the Moea'i and Alai'a families.

This evidence would ordinarily lead to the conclusion that the family histories of the Faleniu claimants---in which the slopes belonged to them and to other Faleniu families, not to Puailoa---are the correct histories and that Moea'i and Alai'a ought to prevail. In the present case, however, it is necessary to take note of a plausible alternative explanation.

Perhaps the single undisputed fact about the Malaeimi Valley that emerges from the many cases litigated about it during the last hundred years is that it was once the site of a village that was later abandoned. Fanene and Puailoa, two chiefs of Malaeimi, moved to the village of Nu'uuli. Other Malaeimi people, however, appear to have moved to Faleniu. (Faleniu is immediately adjacent to Malaeimi, whereas Nu'uuli is a larger and more distant village.) It was these immigrants to Faleniu who continued to visit Malaeimi, to gather timber, and to guard against encroachments by strangers during the years or centuries in which nobody lived there. See Puailoa v. Alo Taisi, 1 A.S.R. 196 (1909). In 1909, however, the Court concluded that these Faleniu caretakers were operating by appointment and authority of Puailoa. Id. at 196.

The 1909 case was between Puailoa and a chief of Fagasa, a village on the opposite side of Malaeimi from the land presently in dispute. It concerned a small tract within the 360 acres then leased to the Church, apparently at the Fagasa end of the valley. No one from Faleniu was a party to the case. Although at least one Faleniu chief was a witness for Puailoa, he was not an ancestor in title of either of the two present claimants. It would therefore be improper to treat the present Faleniu claims as barred either by res judicata or by collateral estoppel. On the other hand, we cannot ignore the possibility that the Faleniu occupation of the mountainsides during the Twentieth Century might have been subject to the general overlordship of Puailoa, as the 1909 Court found to be the case with Faleniu activities in the valley itself during the Nineteenth Century .Since no party to the present case has specifically [15ASR2d53] addressed this question, for us to attempt a definitive resolution of it would both difficult and inappropriate.

Finally, a determination that the land in dispute belongs to the Faleniu claimants ---the result most consistent with the evidence in the present case, leaving aside any inference from the 1909 decision ---could not lead to a judgment in favor of either claimant. Neither Moea'i nor Alai'a put on any particular evidence of his family's boundaries. Instead, the two agreed to join forces and to confine themselves to arguing for the proposition that the whole 24 acres belongs to the village of Faleniu. This may well be. With rare exceptions, however, land in Samoa is owned by families rather than villages. Olo v. Fuimaono, AP Nos. 27- 81 & 28-81 (1982). The Faleniu claimants have not proved that this case is among the exceptions to this rule; on the contrary, it seems clear that Moea'i believes his own family to own much of the land in dispute, notwithstanding his tactical alliance with Alai'a.

We do note that the Alai'a claim is not barred by the claimant's failure to object to Puailoa's survey in 1986. That survey was performed in 1980 under the auspices of the pulenu'u of the "Village of Malaeimi, " ostensibly a subdivision of the Village of Nu'uuli. To the exact extent that the Faleniu chiefs can prove their case on the merits ---i.e., that the slopes to the west of the valley are part of Faleniu ---the survey will have been shown to be facially inconsistent with the territorial statute on land registration, A.S.C.A. §§ 37.0101 et seq., since the notice required by the statute was not given to the chiefs of Faleniu. "Courts can and do disregard registrations. ..in which the failure to afford the required notice affirmatively appears in the record of the registration itself." Ifopo v. Siatu'u, 12 A.S.R.2d 24, 28 (1989). See also Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988). (The record reflects that the 24-acre survey in the present case, unlike Puailoa's earlier 153-acre survey, was conducted with notice to the chiefs of Faleniu.)

With respect to the claims of Puailoa, Moea'i, and Alai'a, therefore, we can find facts but draw no legal conclusion. The best evidence of occupation and cultivation of this area, other than by Church members immediately adjacent to the Church boundary, was by various families of Faleniu. Whether this occupation and cultivation was under a claim of right (as we would ordinarily presume) or whether it was pursuant to a still-existing relationship between Puailoa and certain Faleniu people dating back to the ancient village of Malaeimi (as the 1909 case suggests but does not resolve) is a question we have insufficient evidence to decide. [15ASR2d54]

III. The Fanene Claim

Fanene, like Puailoa a chief of Nu'uuli, is also reputed to have been a chief of the ancient village of Malaeimi. The Fanene family has been judicially acknowledged to be the owner of Malaeimi on the sea side of the main government road. See, e.g., Tu'utau v. Fanene, No. 1-1931 (1932). The land presently in dispute is on the mountain side. Fanene contends, however, that he owns a certain tract within this land, at the edge of the mountain but not otherwise precisely identified, by right of original occupancy. He testified that he went on this land at some time during the 1970s and cultivated it for several years before abandoning it.

The timing and approximate location of the plantings now asserted by Fanene suggest that they may have been the very ones involved in Reid v. Fanene, LT No.7-79, one of the consolidated cases decided in Reid v. Puailoa, supra. In that case it was held that "the Fanene family has no interest in or right to the subject land." Id., 1 A.S.R.2d at 86. Although the holding of Reid extended only to the 300-acre Church tract, the trial court's conclusion with respect to the Fanene family appears to have been that they were on the wrong side of the road. See Reid v. Fanene, supra, slip opinion at 16 (summarily disposing of Fanene's claim with a citation of Tu'utau v. Fanene, supra). Fanene would therefore be collaterally estopped to assert his present claim.

This claim must also fail on the merits. For the reasons we have stated in our discussion of the Puailoa, Moea'i, and Alai'a claims, the Malaeimi valley and the surrounding mountains were not available in 1970 to be claimed by "original" occupation and cultivation. At least 300 acres, comprising the bulk of the valley and also including the lower part of the western slopes, was the communal land of the Puailoa family. The higher ground had long been occupied by Faleniu people, as had the valley itself prior to the coming of the Church shortly after 1900. Whether the occupation of the slopes was on the occupants' own account or under the authority of Puailoa is a question to be settled or litigated among the parties in question, but it rendered the land insusceptible of new "original occupation." The land already had an owner or owners, who could be divested of title only by thirty years' worth of adverse possession (or twenty years, if completed before the statute was amended in 1982). Fanene does not claim to have occupied any land on the mountain side of the road for twenty years. (This analysis also applies to the Afualo claim.) [15ASR2d55]

Finally, Fanene's claim may be barred by failure to object to the Puailoa survey even if it was not properly noticed, since the record reflects that he had actual notice of the survey. The record reflects that Fanene himself was the pulenu'u of the "Village of Malaeimi" who certified that notice had been given.

IV. Conclusion

The Afualo survey cannot be registered. The land in question appears to belong either to some family or families of Faleniu or to Puailoa. Judgment will issue denying the claim of Afualo.

Since Afualo does not own the land, the collateral relief requested in LT No. 7-88 will be denied. The preliminary injunction will remain in force for ninety days in order for Afualo to harvest any crops and remove any other property he may have on the land.

Our decision in this case is without prejudice to the right of Puailoa, Moea'i, or Alai'a to bring any subsequent action with regard to the land in question. If Puailoa wishes to press his claim to his 153-acre surveyor to any part of it, however, he would be well advised to review the record and to cure any statutory deficiencies. (The 153-acre survey appears to include not only the western Malaeimi slopes up to an elevation of over 1000 feet, but also a substantial portion of the opposite slope overlooking Mesepa. If Puailoa is sure that the Court will hold these mountains to be part of Nu'uuli rather than of Faleniu or some other village, he will presumably find no need to cure any deficiencies in the survey process.)

Judgment will issue denying the offer of registration and denying the requested collateral relief.

It is so Ordered.

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