23ASR2d

23ASR2d

Reid v. Puailoa,


EUGENE E.F.W. REID, for and in Behalf of the LDS CHURCH,
Plaintiff

v.

PUAILOA TAVETE, JOSE, FAIMA, LAVATAI,
and DOES I TO V, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 41-79

March 5, 1993

__________

A "void" judgment, from which relief may be granted, is one in which a court lacked the power to enter the judgment, as when a court lacked jurisdiction over the parties or the subject matter, violated "due process of law," or engaged in "a plain usurpation of power." Fed. R. Civ. P. 60(b)(4); T.C.R.C.P. Rule 60(b)(4).

Relief from a final judgment is available when a prior judgment forming its basis has been reversed or vacated, in the sense of res judicata or collateral estoppel; as such, relief is unavailable merely if the law used by a court was later overruled or declared to be erroneous in an unrelated proceeding. Fed. R. Civ. P. 60(b)(5); T.C.R.C.P. Rule 60(b)(5).

Relief from a final judgment is available if giving it prospective application would be inequitable; an order has prospective application if it compels or prohibits certain future actions or requires a court's supervision of conduct between the parties. Fed. R. Civ. P . 60(b)(5); T.C.R.C.P. Rule 60(b)(5).

Obtaining relief under the "catch-all" provision is extremely difficult because the party seeking relief must allege and prove such "extraordinary circumstances" as are sufficient to overcome the overriding interest in the finality of judgments. Fed. R. Civ. P. 60(b)(6); T.C.R.C.P. Rule 60(b)(6).

The interest in the finality of judgments is especially strong in regards to land titles. Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).

Granting relief from a final judgment is at the trial court's discretion. Fed. R. Civ. P . 60(b); T.C.R.C.P. Rule 60(b).

Before RICHMOND, Associate Justice, MAILO, Associate Judge, BETHAM, Associate Judge.

Counsel: For Plaintiff, Wilford W. Kirton, Jr., Merrill F. Nelson, and Gata E. Gurr [23ASR2d145]
For Defendants, Charles v. Ala'ilima

Opinion and Order Denying Motion for New Trial, Reconsideration, or Rehearing:

On January 29, 1993, plaintiff filed a motion, with a supporting memorandum, for new trial, reconsideration, or rehearing. For the following reasons, this motion is denied.

I. The Reid decision is not void under Rule 60(b)(4)

Rule 60(b)(4) permits a court to grant relief for a "void" judgment. A judgment is void if the court lacked the power to enter the judgment, usually when it lacked subject-matter or personal jurisdiction or if the court violated "due process of law" or engaged in "a plain usurpation of power." Matter of Whitney-Forbes , 770 F .2d 692, 696-97 (7thCir. 1985); V.T.A., Inc. v. Airco, Inc., 597 F.2d220, 224-25 (loth Cir. 1979); United States v. Holtzman, 762 F.2d 720, 724 (9th Cir. 1985); Nouata v. Pasene, 1 A.S.R.2d 25, 31 (App. Div. 1980). However, "[a] judgment which a court has the power to make, and one which [is] rendered in accordance with minimal standards of due process, is a valid judgment, even if it is incorrect." Nouata, 1 A.S.R.2d at 30; see Margoles v. Johns, 660 F.2d 291, 295 (7th Cir. 1981) (quoting V.T.A., 597 F.2d at 224); Holtzman, 762 F.2d at 724; United States v. 119.67 Acres of Land, 663 F.2d 1328,1331 (5th Cir. 1981); Whitney- Forbes, 770 F.2d at 696 (even "gross errors" do not render a judgment void).

Two federal courts have upheld the Reid court's decision. The federal district court stated that Reid was "not clearly erroneous or even an abuse of discretion. It certainly does not constitute the type of arbitrary , gross, or 'perverse' reading of the law" necessary to constitute a taking of property without due process. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Hodel, 637 F. Supp. 1398, 1410 (D.D.C. 1986), aff'd 830 F.2d 374 (D.C. Cir. 1987) .The appellate court said that the 1931 Nouata decision was "ambiguous on its face" and that the Reid court did not act arbitrarily in refusing to apply res judicata. Hodel, 830 F .2d at 380, 387. "[T]he errors alleged in the Samoan court proceedings did not constitute gross error or arbitrary action in violation of the Fifth Amendment. " Id. at 387. The Lagafuaina decision, even if contrary to Reid, did not transform a valid judgment into a void judgment. [23ASR2d146]

II. The Reid decision does not have prospective application under Rule 60(b)(5)

Contrary to appellant's statement, Rule 60(b )(5) relief "is limited to a judgment based on a prior judgment reversed or otherwise vacated-- based in the sense of res judicata, or collateral estoppel, or somehow part of the same proceeding." Tomlin v. McDaniel, 865 F.2d 209,210-11 (9th Cir. 1989) (emphasis in original); see Marshall v. Board of Education, Bergenfield, New Jersey, 575 F.2d 417,424 (3d Cir. 1978). No relief is available if the law used by a court was later overruled or declared to be erroneous in an unrelated proceeding. Marshall , 575 F .2d at 424 n.24 (quoting Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645,650 (Ist Cir. 1972»»; Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 394 F. Supp. 393,395 n.4 (S.D.N.Y. 1975), aff'd 532 F .2d 846 (2d Cir. 1976); In re Master Key Antitrust Litigation, 76 F.R.D. 460,463 (D.C. Conn. 1977), aff'd without opinion 580 F.2d 1045 (2d Cir. 1978).

Subsection (5) is inapplicable to the Reid judgment because the standard for "determining whether an order or judgment has prospective application. ..is whether it is 'executory' or involves 'the supervision of changing conduct or conditions.'" Twelve John Does v. District of Columbia, 841 F.2d 1133,1139 (D.C. Cir. 1988) (citing United States v. Swift & Co. , 286 U.S. 106 (1932); Pennsylvania v. Wheeling & Belmont Bridge Co. , 59 U .S. 421 (1856)). The Reid court did not issue an order which compelled or prohibited certain future actions or which required supervision of the parties' conduct. See id.

III. This Court properly exercised its discretion in denying relief under Rule 60(b)(6)

The power to vacate judgments is only to be exercised in "extraordinary circumstances." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,864 (quoting Ackermann v. United States, 340 U.S. 193, 199-200 (1950)); see Davisdon v. Dixon, 386 F. Supp. 482, 493 & n.2 (D. Del. 1974), aff'd without opinion 529 F.2d 511 (3d Cir. 1975); Nouata, 1 A.S.R.2d at 34. Obtaining relief under subsection (6) is also very difficult because "the movant must allege and prove such extraordinary circumstances as will be sufficient to overcome our overriding interest in the finality of judgments." Wilson v. Fenton, 684 F.2d 249,251 (3d Cir. 1982) (quoting Mayberry v. Maroney, 529 F.2d 332, 337 (3d Cir. 1976)). This reluctance to reopen a final judgment is especially strong in regards to land titles. "The need for certainty with [23ASR2d147] respect to land titles warrants a great deference to the need for finality of judgments." Ritter v. Smith, 811 F.2d 1398, 1401-02 (11th Cir. 1987); see also Collins v. City of Wichita, Kansas, 254 F.2d 837, 839 (l0th Cir. 1958).

Even if the subsequent Lagafuaina decision were a sufficient basis on which to grant relief from Reid, the court is not obligated to do so; relief remains at the court's discretion. See Professional Assets Mgmt. ,616 F. Supp. at 1419-20 (citing Pierce v. Cook & Co. ,518 F.2d 720 (10th Cir. 1975)); Ritter, 811 F.2d at 1401; Adams v. Merrill Lynch Pierce Fenner & Smith, 888 F.2d 696, 702 (10th Cir. 1989) ("absent such abuse of discretion, the district court's [denial of relief] should not be disturbed ") .Additionally, conflicting factual findings are possible in cases with different parties. Lagafuaina, 11 A.S.R.2d at 78-79. The granting of relief under subsection (6) is at the sound discretion of the court.

IV. Conclusion

Subsections (4) and (5) do not apply because the Reid judgment is not "arbitrary," nor does it have prospective application. Subsection (6) was the only possible means of relief from the Reid judgment, but this court has exercised its discretion in denying relief. Petitioner's Rule 60(b) motion for relief from the final judgment was properly denied. Therefore, plaintiff's motion for new trial, reconsideration, or rehearing is denied.

It is so ordered.

*********

Reid v. Puailoa,


EUGENE E.F. W. REID, for and in Behalf of the LDS CHURCH,
Plaintiff

v.

PUAILOA TAVETE, IOSE, FAIMA, LAVATAI,
and DOES I TO V, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 41-79

January 21, 1993

__________
[23ASR2d102] Granting relief from a final judgment is at the trial court's discretion; its ruling will be reversed on appeal only for abuse of discretion. Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).

Motions for relief from a final judgment are primarily granted in regard to default judgments or other situations, such as those involving fraud, in which a failure to consider a case's merits would result in an obvious injustice. Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).

Because of the strong interest in the finality of judgments, relief from a final judgment is rarely available, even if a judgment is subsequently found to be wrong. Fed. R. Civ. P . 60(b); T.C.R.C.P. Rule 60(b).

A "void" judgment, from which relief may be granted, is one in which a court lacked the power to enter the judgment, as when a court lacked jurisdiction over the parties or the subject matter, violated "due process of law," or engaged in "a plain usurpation of power." Fed. R. Civ. P. 60(b)(4); T.C.R.C.P. Rule 60(b)(4).

Only the most extraordinary circumstances will support a finding of a void judgment, and even then usually only as to default judgments; as such, changes in precedent and factual errors do not result in voidness. Fed. R. Civ. P. 60(b)(4); T.C.R.C.P. Rule 60(b)(4).

Relief from a final judgment is available when a prior judgment forming its basis has been reversed or vacated, in the sense of res judicata or collateral estoppel; as such, relief is unavailable if the law used by a court was merely overruled or declared to be erroneous in an unrelated proceeding. Fed. R. Civ. P. 60(b)(5); T.C.R.C.P. Rule 60(b)(5).

Relief from a final judgment is available if giving it prospective application would be inequitable; an order has prospective application if it compels or prohibits certain future actions or requires a court's supervision of conduct between the parties. Fed. R. Civ. P . 60(b)(5); T.C.R.C.P. Rule 60(b)(5).

Under the "catch-all" clause, which permits a court to reopen a judgment for "any other reason justifying relief, " courts have "broad authority to vacate judgments when doing so is appropriate to accomplish justice. Fed. R. Civ. P. 60(b)(6); T.C.R.C.P. Rule 60(b)(6).

Obtaining relief under the "catch-all" provision is extremely difficult because the party seeking relief must allege and prove such "extraordinary circumstances" as are sufficient to overcome the overriding interest in the finality of judgments. Fed. R. Civ. P. 60(b)(6); T.C.R.C.P. Rule 60(b)(6).

The interest in the finality of judgments is especially strong in regards to land titles. Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b).

A case is not overruled by a later case when they differ in findings of fact or issues raised and not in interpretation of law.

A case does not have res judicata or collateral estoppel effect when the parties and subject matter in a later case are different.

Because an appellate court uses the "clearly erroneous" standard of review, it is possible for trial courts to make different factual findings in cases with different parties. [23ASR2d103]

Before RICHMOND, Associate Justice, MAILO, Associate Judge, BETHAM, Associate Judge.

Counsel: For Plaintiff, Wilford W. Kirton, Jr., Merrill F. Nelson,
and Gata E. Gurr
For Defendants, Charles V. Ala'ilima

Opinion and Order Denying Motion for Rule 60(b) Relief:

I. CASE HISTORY

The dispute over this 300 acre portion of the land called "Malaeimi" has a long history indeed. In deciding a dispute over the matai title "Puailoa" in favor of Nouata, the High Court stated that approximately 360 acres of Malaeimi, including the land at issue, was the individually owned land of the title predecessor's widow, Salatiama. Nouata v. Pasene, LT No.18-1930 (Land & Titles Div. 1931). Nouata's subsequent protests of the decision to the Chief Justice and the Governor went unheeded. In 1953, Salataima sold approximately 300 acres to the LDS Church, which had previously leased the land. Forty- seven years after the 1931 Nouata decision, Puailoa Tavete sought to set aside the judgment or obtain a new trial on T.C.R.C.P. 60(b) and other grounds, but his motion was denied. Nouata v. Pasene, LT No.18-1930 (Land & Titles Div. 1979), aff'd 1 A.S.R.2d 25 (App. Div. 1980).

Shortly thereafter, the LDS Church filed suit to enjoin the Puailoa family from trespassing. The High Court overruled the 1931 Nouata case, holding that Malaeimi was the Puailoa family's communal land and the 300 acre parcel was not legally alienated to the LDS Church. Reid v. Puailoa, LT Nos. 7-79 & 41-79 (Land & Titles Div. 1982), aff'd in part and rev 'd in part, 1 A.S.R.2d 85 (App. Div. 1983), aff'd sub nom. Corporation of the Presiding Bishop v. Hodel, 637 F. Supp. 1398 (D.D.C. 1986), aff'd 830 F.2d 374 (1987), cert. denied 486 U.S. 1015 (1988).

In 1983, Puailoa Tavete filed suit to establish his claim for the other 60 acres. Declaring that it was bound by the 1931 Nouata decision but not Reid, the High Court held that this land was legally alienated as Salataima's individually owned land. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54 (Land & Titles Div. 1989), aff'd AP No.20-89 (App. Div. 1991). On the basis of the Lagafuaina decision, the LDS Church [23ASR2d104] now seeks relief from the Reid judgment under T.C.R.C.P. 60(b)(4)-(6). (1)

II. RULE 60(b) RELIEF, GENERALLY

T.C.R.C.P. Rule 60(b), which is patterned after Fed. R. Civ. P. 60(b) , permits relief from a final judgment or order in certain enumerated situations; other, unforeseen situations are covered by a "catch-all" clause. Such relief is not mandatory , though; Rule 60(b) relief is at the trial court's discretion. Taulaga v. Patea, 12 A.S.R.2d 64, 65 (Land & Titles Div. 1989); Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54,57 (App. Div. 1987) (trial court's ruling will be reversed on appeal only for abuse of discretion). Rule 60(b) motions are primarily granted in regard to default judgments or other situations, such as those involving fraud, in which a failure to consider the merits of the case would result in an obvious injustice. Fackelman v. Bell, 564 F.2d 734, 735 (5th Cir. 1977); see Satele v. Uiagalelei (Mem.), 8 A.S.R.2d 97 (Land & Titles Div. 1988) ("(m]otions for relief from judgment after trial should not be granted as freely as those seeking relief from default judgments ") .The strong interest in the finality of judgments means Rule 60(b) is rarely available, even if a judgment is subsequently found to be wrong. The general limits of Rule 60(b) relief are described as follows:

Weighing against the grant of a 60(b) motion is the desirability
of finality in judgments. This is particularly true where the
reopening of a judgment could unfairly prejudice the opposing
party.... But even without such prejudice, the desirability of
orderliness and predictability in the judicial process [23ASR2d105]
speaks for caution in the reopening of judgments. These are
matters that are addressed to the sound discretion of the trial
court.....

Fackelman, 564 F .2d at 736.

III. RULE 60(b)(4)

A. Statement of Law

Rule 60(b)(4) permits a court to grant relief from a "void" judgment. "Void" means the court lacked the power to enter the judgment, usually when it lacked jurisdiction over the parties or the subject matter. A judgment can also be void if the court violated "due .process of law" or engaged in" a plain usurpation of power. " Matter of Whitney-Forbes, 770 F.2d 692,696-97 (7th Cir. 1985); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220,224-25 (loth Cir. 1979); United States v. Holtzman, 762 F.2d 720,724 (9th Cir. 1985) (a plain misinterpretation of statutorily delegated power is "blatant usurpation "); Nouata v. Pasene, 1 A.S.R.2d 25,31 (App. Div. 1980) (clear usurpation of power, lack of jurisdiction, or lack of notice may void a judgment). Nevertheless, "[a] judgment which a court has the power to make, and one which [is] rendered in accordance with minimal standards of due process, is a valid judgment, even if it is incorrect." Nouata, 1 A.S.R.2d at 30.

Only the most extraordinary circumstances will support a finding of a void judgment, and even then usually only as to default judgments. Nouata, 1 A.S.R.2d at 31. Thus, a "judgment is not void merely because it is or may be erroneous." Margoles v. Johns, 660 F.2d 291, 295 (7th Cir. 1981) (quoting V.T.A., 597 F.2d at 224); Holtzman, 762 F.2d at 724; United States v. 119.67Acres of Land, 663 F.2d 1328, 1331 (5th Cir. 1981); Whitney-Forbes, 770 F.2d at 696 (even "gross errors" do not render a judgment void). Because of the interest in finality, voidness grounds are "narrowly restricted. " V.T.A., 597 F .2d at 225; 119.67 Acres, 663 F.2d at 1331; see also Whitney-Forbes, 770 F.2d at 696.

B. Discussion

The High Court has jurisdiction over land and land titles under A.S.C.A. § 3.0208(b). Furthermore, federal courts have held that the Reid court did not deny the plaintiff due process. The federal district court stated that Reid was "not clearly erroneous or even an abuse of

[23ASR2d106] discretion. It certainly does not constitute the type of arbitrary , gross, or 'perverse' reading of the law" necessary to constitute a taking of property without due process. Corporation of the Presiding Bishop, 637 F. Supp. at 1410. The court of appeals said that the 1931 Nouata decision was ambiguous and that the Reid court's failure to give that decision res judicata effect did not deprive the church of due process. Co1poration of the Presiding Bishop, 830 F.2d at 380-81, 387. The High Court is bound by those decisions.

Plaintiff alleges that the Lagafuaina decision held that Reid was wrongly decided. However, changes in precedent and evidence of factual errors do not result in voidness. Even if Lagafuaina's holding were, in fact, contrary to that of Reid, this would not convert Reid from an enforceable judgment to one which "usurped" power. Therefore, the judgment in Reid is not void; and relief is unavailable under Rule 60(b)(4).

IV. RULE 60(b)(5)

A. Statement of Law

Rule 60(b)(5) permits relief from a judgment when a prior judgment forming its basis has been reversed or vacated, or if giving it prospective application would be inequitable. (2) As such, Rule 60(b)(5) relief is available

only in situations where a temporary factual underpinning of an
order has ceased to exist, as when an order to pay damages is
no longer appropriate because the claim has been satisfied in
some way different from that contemplated by the order, or
there is an implicit limitation to the time during which a prospective
judgment is to be given effect.

Nouata, 1 A.S.R.2d at 33-34 (citing, e.g., Jackson v. Jackson, 276 F.2d 501 (D.C. Cir. 1960), cert. denied 364 U.S. 849 (1960); Loney v. Scurr, 474 F. Supp. 1186 (S.D. Iowa 1979); John w. Johnson, Inc. v. J.A. Jones Constr. Co., 369 F. Supp. 484 (E.D. Va. 1973)). [23ASR2d107]

Subsection (5) does not apply just because a precedent on
which the decision relied was overruled. Rather, its application
is limited to a judgment based on a prior judgment reversed or
otherwise vacated--based in the sense of res judicata, or
collateral estoppel, or somehow part of the same proceeding....
The relation between the present judgment and the prior
judgment must thus be closer than that of a later case relying
on the precedent of an earlier case. ...

Tomlin v. McDaniel, 865 F.2d 209, 210-11 (9th Cir. 1989) (change in applicable law after a final judgment is insufficient to vacate) (citing 11 C. Wright & A. Miller, Federal Practice and Procedure § 2863, at 202- 04 (1973); 7 J. Moore & J. Lucas, Moore's Federal Practice § 60.26[3], at 60-246 to 60-248 (1987) (emphasis in original)); see Marshall v. Board of Education, Bergenfield, New Jersey, 575 F.2d 417, 424 (3d Cir. 1978). As such, a later change in the law provides grounds for relief only in situations such as a reversal or modification of a prior judgment or an amending of a statute. Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 394 F. Supp. 393, 395 n.4 (S.D.N.Y. 1975), aff'd 532 F.2d 846 (2d Cir. 1976), cert. denied 425 U.S. 976 (1976). Thus, no relief is available if the law used by a court was later overruled or declared to be erroneous in an unrelated proceeding. Marshall, 575 F.2d at 424 n.24 (quoting Lubben v. Selective Service System Local Board No.27, 453 F.2d 645, 650 (1st Cir. 1972)); Wallace Clark, 394 F. Supp. at 395 n.4; In re Master Key Antitrust Litigation, 76 F.R.D. 460, 463 (D.C. Conn. 1977), aff'd without opinion 580 F.2d 1045 (2d Cir. 1978) (citing 7 Moore's Federal Practice' 60.26[3] at 325 (2d ed. 1975)).

A court may also grant relief from a judgment whose application is "prospective" or "executory." Marshall, 575 F.2d at 425 (contrasted with a damage award, which is "inherently final " and is unaffected by a later change in the law). The standard for "determining whether an order or judgment has prospective application. ..is whether it is 'executory' or involves 'the supervision of changing conduct or conditions....'" Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C. Cir. 1988) (citing United States v. Swift & Co., 286 U.S. 106 (1932); Pennsylvania v. Wheeling & Belmont Bridge Co. , 59 U .S. 421 (1856)). Such an order compels or prohibits certain future actions or requires a court's supervision of conduct between the parties. Id. The court thus rejected the argument that" any order that precludes relitigation of a claim has 'prospective application' for that reason alone." Id. at 1140. [23ASR2d108]

B. Discussion

No res judicata or collateral estoppel relationship exists between Reid and Lagafuaina to constitute a "prior judgment" under subsection (5). Additionally, the Reid court's holding as to title to the 300 acres of Malaeimi is not a decision having "prospective application. " The decision does not involve a court order or injunction, in which the court either mandates conduct or supervises a party's conduct. Because neither of the elements necessary for relief are present in this case, and the " satisfied, released, or discharged" clause is inapplicable, plaintiffs are not entitled to Rule 60(b)(5) relief.

V. RULE 60(b)(6)

A. Statement of Law

Rule 60(b)(6) is the "catch-all" clause, which permits a court to reopen a judgment for "any other reason justifying relief. " Subsection (6) gives courts "broad authority to relieve a party from a final judgment 'upon such terms as are just' [I]t provides courts with authority , adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice' " Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,863-64 (1988) (quoting Klapprott v. United States, 335 U.S. 601, 614-15 (1949), modified on other grounds 336 U.S. 942 (1949)).

However, this power is only to be exercised in "extraordinary circumstances." Liljeberg, 486 U.S. at 864 (quoting Ackermann v. United States, 340 U.S. 193, 199-200 (1950)); see Davisdon v. Dixon, 386 F. Supp. 482,493 & n.2 (D. Del. 1974), aff'd without opinion 529 F.2d 511 (3d Cir. 1975) (relief confined to "extraordinary, exceptional cases"); Nouata, 1 A.S.R.2d at 34 ("extraordinary circumstances" include physical duress preventing a party from protecting his interests before a court). Thus, Rule 60(b) "should only be sparingly used." Twelve John Does, 841 F.2d at 1140 (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572,577 (D.C. Cir. 1980)).

Obtaining relief under the "catch-all" provision is extremely difficult, because the party seeking relief bears a "heavy burden of showing" greatly changed circumstances and must demonstrate that "'extreme' and 'unexpected' hardship will result" without relief. Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977) (discussing Rule 60(b)(5)&(6)). As such, "the movant must allege and prove such [23ASR2d109] extraordinary circumstances as will be sufficient to overcome our overriding interest in the finality of judgments." Wilson v. Fenton, 684 F.2d 249,251 (3d Cir. 1982) (quoting Mayberry v. Maroney, 529 F.2d 332,337 (3d Cir. 1976)). This is especially true in regards to land titles. "The need for certainty with respect to land titles warrants a great deference to the need for finality of judgments." Ritter v. Smith, 811 F.2d 1398, 1401-02 (11th Cir. 1987); see also Collins v. City of Wichita, Kansas, 254 F.2d 837,839 (10th Cir. 1958). The rationale for infrequently granting relief under subsection (6) is as follows:

Any reopening of a case, whether prior to or following entry
of judgment, involves some delay, expense and prejudice to
the other party. The Court must balance the need for prompt
and efficient handling of litigation ...against the attainment of a
just resolution of a particular dispute before the court.... In
addition, the court must consider whether the other party will
be substantially prejudiced by a reopening, and, if so, whether
the prejudice can be mitigated by an award of costs or other
shaping of relief.

Bell Telephone Laboratories v. Hughes Aircraft Co., 73 F.R.D. 16, 22 (D.C. Del. 1976).

Although the circumstances sufficient to successfully invoke Rule 60(b)(6) have not been specifically delineated, a number of cases provide some guidance. The United States Supreme Court roughly defined the outer boundaries of Rule 60(b)(6) in Klapprott v. United States, 335 U .S. 601 (1949) (relief granted) and Ackermann v. United States, 340 U.S. 193 (1950) (relief denied). See Twelve John Does, 841 F.2d at 1140 (contrasting Klapprott and Ackermann). Despite their superficial similarity as deportation challenges, "[t]he comparison strikingly points up the difference between no choice and choice; imprisonment and freedom of action; no trial and trial; no counsel and counsel; no chance for negligence and inexcusable negligence." Ackermann, 340 U.S. at 202.

Other important considerations include "the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process. " Liljeberg, 486 U .S. at 864 (upholding court of appeals' vacating of district court's judgment, on the [23ASR2d110] grounds of "appearance of impropriety" due to a judge's failure to disqualify himself, in violation of 28 U.S.C. § 455(a)).

In most jurisdictions, a change in applicable case law is not, in itself, enough to justify Rule 60(b)(6) relief. "Numerous courts have held that mere showing of a change in the law is not enough to demonstrate such an extraordinary situation when the judgment has become final." Overbee v. Van Waters & Rogers, 765 F.2d 578, 580 (6th Cir. 1985); see Professional Assets Mgmt., Inc. v. Penn Square Bank, N.A., 616 F. Supp. 1418,1420 n.l (W.D. Okla. 1985).

If relief is sought because a subsequent case was overruled or vacated, most courts require that the case in which relief is sought be virtually identical or otherwise closely related to it. One situation is when the case law changes after a ruling in another case, which was decided to resolve a conflict with the holding of the case at issue. For example, one factor in Ritter was two cases' close relationship. The state of Alabama was granted relief from an order to resentence defendant, whose death sentence was vacated when the same court of appeals had previously held Alabama's death-penalty statute to be unconstitutional. The Alabama Supreme Court, in another case, expressly rejected the court's reasoning; and the United States Supreme Court granted certiorari to resolve the conflict between the cases and held that the statute was constitutional. Ritter, 811 F.2d at 1402-03. Similarly, five years after the original judgment, the Supreme Court granted certiorari to resolve a conflict between two district court decisions and vacated judgment. Tsakonites v. Transpacific Carriers Corp., 322 F. Supp. 722, 723 (S.D.N.Y.1970).

An analogous situation exists when the two cases are related because they "arose out of the same transaction." Ritter, 811 F.2d at 1402-03. For example, relief was granted when a state court decision relied upon by a defendant was overturned by the state supreme court in an action by another plaintiff. The" extraordinary circumstances" were that (1) both suits arose from the same vehicular accident and (2) the suits' results differed because one set of plaintiffs had to sue in federal court (based on diverse citizenship) rather than in state court. Pierce v. Cook & Co., 518 F.2d 720,723 (loth Cir. 1975) (non-uniform results violated policy of Erie Railroad v. Tompkins, 304 U.S. 64, 74-75 (1938)), cert. denied 423 U.S. 1079 (1976). Similarly, the Supreme Court reversed a judgment after a court of appeals misinterpreted its decision setting forth a liability standard and another court of appeals upheld an award to the survivors of another employee killed in the same [23ASR2d111] accident. Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 27-28 (1965).

Some federal courts of appeal do permit Rule 60(b)(6) relief based on a change of precedent on which a judgment is based. Wilson, 684 F .2d at 251 ("A decision of the Supreme Court of the United States or a Court of Appeals may provide the extraordinary circumstances"); Ritter, 811 F.2d at 1401 (relief allowed when "there has been a clear-cut change in the law"); Adams v. Merrill Lynch Pierce Fenner & Smith, 888 F.2d 696,702 (loth Cir. 1989) ("a change in relevant case law by the United States Supreme Court warrants relief") (citing Pierce, 518 F.2d at 722-24); Professional Assets Mgmt. , 616 F. Supp. at 1419-20 (citing Pierce); see Overbee, 765 F.2d at 580 (denying relief was an abuse of discretion because "unique facts" compelled relief; the "extraordinary circumstances" consisted of the state supreme court's reversing itself, within a year, on a question of substantive law and the fact that plaintiffs, motion for a new trial was pending at the time of the state court decision) .However, this line of cases has been criticized. Professional Assets Mgmt., 616 F. Supp. at 1420 n.l (discussing authorities on both sides of the issue).

Even in jurisdictions following this more liberal doctrine, though, Rule 60(b)(6) relief remains at the court's discretion. "[R]elief under Rule 60(b) because of a change in precedent is directed to the trial court's discretion and consideration in equity." Professional Assets Mgmt., 616 F. Supp. at 1419-20 (citing Pierce). Likewise, "a change in the law will not always provide the truly extraordinary circumstances necessary to reopen a case." Ritter, 811 F.2d at 1401 (emphasis in original); see Adams, 888 F.2d at 702 (affirming grant of Rule 60(b)(6) relief).

B. Discussion

Even if plaintiff were correct that Lagafuaina constituted a change in precedent and that this is a sufficient basis on which to grant relief, the High Court is not obligated to do so. The granting of relief under T.C.R.C.P. Rule 60(b)(6) is solely at this court's discretion.

However, Lagafuaina can be distinguished from Reid as disagreeing on findings of fact and not conclusions of law. The Lagafuaina court was careful to emphasize that it agreed with the Reid court on the applicable law. Rather, the differences in the holdings [23ASR2d112] resulted from different conclusions drawn from the evidence presented in their respective cases.

Furthermore, Lagafuaina was only binding on the parties in that case. Although Lagafuaina held that the land was individually owned land, the Court went to great lengths to differentiate that case from Reid as differing in the findings of fact or issues raised, not in interpretation of law. Lagafuaina did not overrule Reid because the disagreement between the two cases "is not about general propositions of law but about the application of those principles to a particular fact situation." Lagafuaina, 11 A.S.R.2d at 77-78 (noting that the appellate court in Reid also treated the trial court's interpretation of the 1931 Nouata decision as a question of fact and not of law). Similarly, Reid did not have res judicata or collateral estoppel effect on the parties in Lagafuaina because the parties were different and the subject matter (the land) was not "exactly the same." Lagafuaina, 11 A.S.R.2d at 76, 78.

Because the appellate court in Reid used the "clearly erroneous" standard of review, it is possible to have different results regarding factual questions in cases with different parties. Lagafuaina, 11 A.S.R.2d at 78-79. In fact, the appellate court in Reid held that its decision was not binding on those who were not parties in that case or regarding land not claimed by the LDS Church. Id. at 78 (citing Reid, 1 A.S.R.2d at 89).

Thus, Lagafuaina did not overrule Reid, as their contradictory holdings stem from different findings of fact. Furthermore, the granting of relief under subsection (6) must be founded on extraordinary circumstances and is at the sound discretion of the court. This court hereby exercises this discretion in denying relief from a final judgment under Rule 60(b)(6).

VI. CONCLUSION

The litigation pertaining to the Reid case has gone on for quite some time--some would say far too long. See Reid v. Puailoa, LT Nos. 7-79 & 41-79 (Land & Titles Div. 1982), aff'd in part and rev 'd in part, 1 A.S.R.2d 85,87 (App. Div. 1983), aff'd sub nom. Corporation of the Presiding Bishop v. Rode/, 637 F. Supp. 1398 (D.D.C. 1986), aff'd 830 F.2d 374 (1987), cert. denied 486 U.S. 1015 (1988). When all the other cases which have at least made statements as to the ownership of Malaeimi are counted, the litigation has been volumous indeed. See generally Lagafuaina, 11 A.S.R.2d at 55-67. All lawsuits, though, must [23ASR2d113] eventually come to an end. It may be argued that Reid itself significantly lengthened this trail of litigation. However, this does not mean that this court should utilize the extraordinary remedy provided by Rule 60(b) to further prolong this litigation. First, subsections (4) and (5) are clearly inapplicable to this case. Second, this court has concluded that the circumstances of this case do not warrant the granting of relief under subsection (6). Therefore, petitioner's Rule 60(b) motion for relief from a final judgment is denied.

It is so ordered.

**********

1. The pertinent portions of T.C.R.C.P. Rule 60(b) are as follows;

On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment,
order, or proceeding for the following reasons: ...(4) the
judgment is void; (5) the judgment has been satisfied, released,
or discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application; or (6)
any other reason justifying relief from the operation of the judgment.

2. The provision regarding "satisfied, released, or discharged" judgments is inapplicable here.

Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71,


SOUTHWEST MARINE OF SAMOA, JNC., Plaintiff

v.

The M/V KW ANG MYONG #71, its Cargo, Freight,
Equipment, Engines, Mast, Boats, Anchors,
Cables, Chains, Rigging, Tackle, Furniture
and All Other Necessaries Appertaining to the Vessel,
Defendant in Rem

and v.

KOREA WONYANG FISHERIES CO. LTD.,
a Korean Corporation, STAR-KIST FOODS, INC., and
STAR-KIST SAMOA INC., Defendants in Personam

High Court of American Samoa
Trial Division

CA No. 105-92

March 23, 1993

__________

While in rem and in personam claims may be joined, res judicata applies from an in personam action against a shipowner to an in rem action against his ship (and vice versa); thus, one may not sue twice on the legal fiction that a ship and her owner are two different parties.

Wharfage charges can give rise to a maritime lien, though a lien does not arise against a vessel "withdrawn from navigation," which includes an abandoned vessel.

Before KRUSE, Chief Justice, MATA'UTIA, Associate Judge, BETHAM, Associate Judge.

Counsel: For Plaintiff, Robert A. Dennison III
For Defendant in Personam Star-Kist Samoa, Roy J.D. Hall, Jr.

On Motion for Default Judgment in Rem:

Plaintiff, Southwest Marine of Samoa, Inc. ("SWM"), operates a ship-repair facility in Pago Pago harbor. Defendant Korea Wonyang [23ASR2d157] Fisheries Co. Ltd. ("KWF") once operated a number of long-liners (tuna boats), including the M/V Kwang Myong #71, out of the territory. In the past, KWF numbered among SWM's customers; however, at this time KWF, the fishing-boat operator, is no longer around. It has not only left a number of unpaid and unhappy creditors (giving rise to a string of lawsuits (1)), but it has also left, to the consternation of the local Coast Guard station, a number of effectively-abandoned vessels in and around the Pago Pago harbor. (2)

On January 31, 1992, literally in the midst of the hurricane season, the defendant vessel M/V Kwang Myong quietly tied-up, unannounced, at plaintiff's wharf. There it joined a number of other KWF vessels which were already moored there. The crew subsequently left, and the vessel has since sat at plaintiff's wharf "substantially deteriorating. ..[ and accumulating] heavy rust allover the decks and decking machinery," as well as posing as a "hazardous threat" to navigation.

On January 30, 1992, SWM filed a separate lawsuit against KWF alleging among other things, unpaid "bills for repairs and services rendered on a periodic basis." See Complaint & Amended Complaint, para. 6, South-.vest Marine of Samoa Inc. v. Koram #2 and Korea Wonyang Fisheries Co., Ltd. , CA No.15-92. On October 27, 1992, the court entered a default judgment in favor of SWM and against KWF in the sum of $439,395.10, along with attorneys fees and costs.

In the matter before us, however, SWM seeks judgment by default on the very same indebtedness (as it relates specifically to "repairs and services" rendered to the Kwang Myong #71) which was [23ASR2d158] already reduced to judgment in CA No.15-92. As we understand the argument advanced for this seemingly duplicitous effort, an in rem judgment is sought against the vessel (which is itself a separate entity), whereas the judgment rendered in CA No.15-92 was one in personam against the vessel's owner only. Plaintiff then seeks to establish, in this suit against the vessel, its claim against the res by arguing that its services rendered to the Kwang Myong #71 gave rise to maritime liens.

We deny the motion for default judgment in rem. First, reliance on the ship's "personification" theory is misplaced. While in rem and in personam claims may be joined, res judicata applies from an in personam action against a shipowner to an in rem action against his ship (and vice versa); and one may not sue twice on the legal fiction that a ship and her owner are two different parties. Continental Grain Co. v. Barge FBL-585, 364 U .S. 19,25 (1960); see also S.E.L. Maduro (Fla.), Inc. v. M/V Antonio de Gastenata, 639 F. Supp. 1432, 1437-38 (S.D. Fla. 1986). Thus, "[w]hen the plaintiff has two alternative remedies available to him upon the same' cause of action, , he may not reserve one and sue upon the other, and a judgment for the defendant upon one will be a bar to a later suit upon the other." Burns Bros. v. The Central R.R. of New Jersey, 202 F.2d 910, 913 (2d Cir. 1953) (citing § 65(1) Restatement of Judgments). This case "decisively rejected the theory that in rem and in personam suits can be successively maintained, on the 'atavistic' notion of the ship's personality." G. Gilmore & C. Black, Jr ., The Law of Admiralty, § 9-17, at 614.

Second, we are unable to conclude on the evidence that plaintiff's claim for moorage services rendered is, in fact, maritime in nature. Wharfage charges can give rise to a maritime lien. Miles v. States Marine & Commercial Co., 286 F. 286,288 (E.D.N.Y. 1922); see 1 Benedict on Admiralty § 233, at 15-26 to 15-27. A lien, however, does not arise against a vessel "withdrawn from navigation." The Andrew i. Smith, 263 F. 1004,1005 (E.D.N.Y. 1920); The Poznan, 9 F.2d 838,842-43 (2d Cir. 1925), rev 'd on other grounds New York Dock Co. v. S.S. Poznan, 274 U.S. 117,120 (1927). An abandoned vessel is deemed "withdrawn from navigation." Miles, 286 F. at 288 (citing The Andrew J. Smith).

The vessel in question has been left to sit idle without appropriate maintenance to its hull, decking, and machinery for over a year (through two hurricane seasons), and as a result, it has been steadily deteriorating. We see nothing in the evidence to indicate any further interest in the vessel on the part of KWF or to suggest that the vessel [23ASR2d159] would ever again go out fishing. Under these circumstances, there is simply no support to SWM's contention that its mooring service may somehow be regarded as being in furtherance of the vessel's maritime purpose; it is, unfortunately, stuck with an abandoned vessel.

The motion for default judgment in rem is, therefore, DENIED.

It is so ordered.

*********

1. See YKL Japan Ltd v. Korbee #1, CA No.07-92; YKL Japan Ltd v. Koram #2, CA No.08-92; Samoa Export 7 Import Inc., v. Korbee #1, CA No.10-92; Southwest Marine of Samoa Inc., v. Koram #2, CA No. 15-92; Samoa Export & Import Inc., v. Korbee #5, CA No.17-92; Pago Pago Petroleum Products, Inc., v. Korbee #6, CA No.18-92; Honor Marine South Pacific Inc., v. Wonyang #2, CA No.52-91; Southwest Marine of Samoa Inc v. Korbee #2, CA No.96-92.

2. As a result of hurricane Val, which occurred at the end of 1991, a number of abandoned long-liners were beached along the Aua/Onesosopo foreshore, where they remain to this day. Their respective owners have mysteriously vaporized as well.

Seventh Day Adventist Church of American Samoa v. Maneafaiga


SEVENTH DAY ADVENTIST CHURCH OF AMERICAN
SAMOA and HTC TUATO'O TAUTALATASI, Plaintiffs

v.

GATAI MANEAFAIGA and SINAALEVAIFOA FANENE,
Defendants

High Court of American Samoa
Land and Titles Division

LT No. 5-92

March 12, 1993

__________

Under Samoan custom, the sa'o has pule (authority) to make decisions about family lands, including assignments of family land for the use of individual family members. [23ASR2d151]

A matai does not lose pule over land assigned to family members, as an outright assignn1ent of communal land is contrary to law and custom.

The right of a family member to use land owned by a Samoan communal family is a property right protected by the territorial constitution's due process clause. Rev. Const. Am. Samoa Art. I, § 2.

The right of a family member to use land owned by a Samoan communal family is conditioned on reciprocal obligations towards the sa'o and family, including the obligation to perform tautua (traditional service); and failure to render tautua is grounds for eviction.

Before KRUSE, Chief Justice, LOGOAI, Associate Judge.

Counsel: For Plaintiffs, Afoa Moega Lutu
For Defendants, Charles V. Ala'ilima

Plaintiff Tuato'o Tautalatasi is the sa'o (senior matai) of the Tuato'o family of Alofau, American Samoa. He seeks eviction of the defendant Gatai Maneafaiga, also known by his title "Moemalemalo" (hereinafter "Moemalemalo"), a lesser matai of the Tuato'o family, from a particular structure which is claimed by both Moemalemalo and the Seventh Day Adventist Church (hereinafter the "church"). The structure was recently built by the church as a residence for its pastor; in fact, Moemalemalo had arranged the building permit on behalf of the church. Moemalemalo, however, claims this as a replacement for his original dwelling, which the church was using prior to its destruction by a recent hurricane.

No one disputes that the structure lies within the Tuato'o communal land known as "Salamau"; indeed, Moemalemalo claims entitlement to Salamau as a member of the Tuato'o family. Rather, the dispute concerns pule, a matter which, according to settled law and custom, is clearly the exclusive prerogative of the sa'o. Notwithstanding, Moemalemalo and certain of his siblings appear to have other ideas about pule. This lawsuit followed; besides the differences on pule, Tuato'o further seeks eviction because Moemalemalo does not render tautua (traditional service).

FACTS

A number of years ago, Moemalemalo, on his own initiative, brought the church onto the site after inviting a pastor and a small number of fellow adherents to utilize his home for worship. This [23ASR2d152] dwelling was described as a semi-European structure--essentially an open Samoan fale with a corrugated iron roof--to which the church later added improvements. According to Tuato'o, this all happened while he was off-island, but after his return, he confronted Moemalemalo with the church's unauthorized use of family land.

The matter eventually escalated into a lawsuit, with Tuato'o seeking an injunction to enjoin Moemalemalo from building on Salamau without first obtaining his permission as the family's sa'o. See Tuato'o v. Moemalemalo, LT No.1214-71 (1971). Tuato'o testified that he filed this suit after Moemalemalo and his sisters openly challenged his pule; however, he subsequently relented to church use of the site after Moemalemalo apologized, and peace was again restored to the family.

In 1974, Moemalemalo and his immediate family moved to the mainland, where they reside to the present day. At least since leaving the territory, Moemalemalo has not rendered tautua. Until quite recently, however, Moemalemalo continued to remain the go-between the church and the sa'o. When the former needed the matai's permission, Moemalemalo attended to securing that permission. In time, the church added other structures on Salamau.

In 1981, Tuato'o decided that the church's use of Salamau should be documented, and he accordingly advised the church that he desired to formalize any further use of his family' s land by way of lease. Word subsequently got to Moemalemalo, still on the mainland, who then traveled to Samoa to work things out with the sa'o on the church's behalf. His efforts culminated in a document, styled "Assignment of Land for Church Purposes," which he presented to Tuato'o for execution and which the latter signed. The document talks about the assignment of an ill-defined area of Salamau for a period of ten years at a nominal annual rent. It also talks of Moemalemalo as an "assignor" with provision made to include him as an additional signatory on behalf of the Tuato'o family. The document thus conveys the unmistakable impression that Moemalemalo also has something to do with pule. (1) [23ASR2d153]

The defense theory here presented in explanation is that the land encompassing the site was the subject of an outright assignment by the present Tuato'o's father, and his predecessor-in-title, to Moemalemalo's side of the family. The alleged assignee was said to be Moemalemalo's maternal grandmother, who was also the assigning matai's sister; hence, this supposedly explained the manner of the document's wording and its inclusion of Moemalemalo as a signatory .Thus, Moemalemalo in his testimony referred to a shared pule with the sa'o to this area of Salamau. Furthermore, one of his sisters, who also resides on the mainland, took the stand and asserted somewhat defiantly that she too had pule over the site. As may be gathered, the claimed out-and-out assignment is flatly denied by the sa'o.

The dispute arose following a 1992 split among the membership of the church in American Samoa. In the aftermath, Moemalemalo opted to go with the breakaway sect. He now wants the church's access to Salamau to cease; however, in trying to accomplish this, he has again alienated the sa'o because of his manipulative efforts. As noted, the assignment document with the church provided for a ten-year term, which would end in 1991. The document also contained a provision which referred to a renewal option to be exercised upon the giving of notice to "both assignors." Shortly after the split, however, Moemalemalo approached the sa'o and told him that the church was not seeking to renew the assignment since it was planning to move to either Tula or Masefau. The sa'o thereupon instructed Moemalemalo to prepare some sort of writing to accordingly advise the church that there would not be a renewal of assignment. Tuato'o was thereafter surprised to receive a delegation of church officials who visited him at home beseeching a renewal of the assignment. Tuato'o then learned for the first time that Moemalemalo had in fact left the church and that the church's relocation plans, as related by Moemalemalo, were nothing more than misrepresentation.

After dwelling on the matter, Tuato'o subsequently signed a ten- year lease with the church. Moemalemalo, on the other hand, was not to be rebuffed. After his further attempts to dissuade the sa'o proved unsuccessful, he took it upon himself to physically oust the church by moving into the structure at issue and then setting up the co-defendant, Sinaalevaifoa Fanene, as its occupant. [23ASR2d154]

DISCUSSION

Under Samoan custom, the sa'o has pule, or the authority to make decisions about family lands. See Gi v. Leia, 11 A.S.R.2d 137 (1989); Coffin v. Mageo, 4 A.S.R. 14 (1970); Malaga v. Alaga, 4 A.S.R. 735 (1966); Lutu v. Fuimaono, 4 A.S.R. 450 (1964); Lolo v. Heirs ofSekio, 4 A.S.R. 477 (1964); Tiumalu v. Scanlan, 4 A.S.R. 194 (1961). By virtue of that pule, the sa'o parcels out and assigns family land for the use of individual family members. See Malaga v. Alaga, supra; Leapaga v. Masalosalo, 4 A.S.R. 868 (1962); Tiumalu v. Scanlan, supra. The authorities thus clearly recognize that the pule to Tuato'o family property, Salamau, lies with the Tuato'o, the sa'o of the Tuato'o family. The claim, therefore, to some sort of shared pule with respect to Salamau is without any basis whatsoever .

At the same time, the authorities are also clear that while the matai may assign and parcel out family land, his pule over such assigned property is not thereby terminated. Pisa v. Solaita, 1 A.S.R. 520 (1935); Mailo v. Fuamaila 1 A.S.R. 449 (1931); Levu v. Maluia, 1 A.S.R. 197 (1909); Toleafoa v. Tiapula, 7 A.S.R.2d 117 (1988), a.ff'd 12 A.S.R.2d 56 (1989). Thus, no ground exists for the contention that an "exclusive" assignment of Salamau to the Moemalemalo side of the family thereby deprived the sa'o of his pule or somehow restricted it. What seems to be canvassed here again is a theory of outright assignment of communal land--a theory which this court has previously rejected as being contrary to law (against the alienation of communal land) as well as custom. See Gi v. Leia, supra; Sivia v. Porter, 13 A.S.R.2d 95 (1989). (2)

On the other hand, Moemalemalo has certain rights to Salamau as a member of the Tuato'o family. [23ASR2d155]

[U]nder Samoan customs (fa'a Samoa) ...communal family land
is owned by the Samoan family as such and each member of the
family has a right to the use of a portion of the family land. This
right to use family land has also been held to be a proprietary right
within the due process clause.

Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 (1989) (quoting Tuana'itau v. Pago.fie, 4 A.S.R. 375, 381 (1963)). These property rights, however, are "conditional" to the extent that they attract reciprocal obligations towards the sa'o and family. Fairholt v. Aulava, 1 A.S.R.2d 73 (1983). Significant among these is the obligation to tautua. Toleafoa v. Tiapula, supra. Indeed, failure to tautua is grounds for eviction from family land. Leapaga v. Masalosalo, supra; Vaotuua Family v. Puletele, 3 A.S.R. 145 (1955).

CONCLUSIONS OF LAW

We conclude on the foregoing that the Tuato'o, as the sa'o or senior matai of the Tuato'o family, has the singular pule with respect to Tuato'o family land Salamau; that in exercise of that pule, the sa'o may evict from family lands a family member who fails to render tautua in accordance with Samoan custom; and that since Moemalemalo has failed to serve the sa'o in accordance with custom, he is not entitled to Tuato'o family property and may be evicted by the sa'o. The petition for eviction is therefore granted, and judgment will enter accordingly.

It is so ordered.

*********

1. A similar effect appears to have been likewise attempted in the government application form for a land-use and building permit for the structure now in dispute. Moemalemalo filled out the form by holding himself out as the landowner, although the document was apparently signed by the sa'o.

2. Counsel also submitted that the church-assignment document was evidence of a shared pule, and he referred our attention to Satele v. Seumalo, 6 A.S.R.2d 103 (1987), for the proposition that certain assignments of communal land could be outright. We reject the submission; the cited case does not stand for this proposition, and the evidentiary value of the document is naught since the document itself rests on the invalid premise that pule is shared with a lesser matai. Cf Mailo v. Fuamaila, 1 A.S.R. 449 (1931) (senior matai retains pule to lands assigned to a lesser matai).

Scratch v. Sua,


SALA SCRATCH, Plaintiff

v.

SE'I SUA, PEPE SUA, and Son, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 6-92

October 23, 1992

__________

The failure of defendants' former counsel to properly seek a continuance of trial, on the grounds that one of the defendants was seeking medical treatment, does not constitute excusable neglect justifying relief from judgment. T.C.R.C.P. Rule 60(b).

Before KRUSE, Chief Justice.

Counsel: For Plaintiff, Gata E. Gurr
For Defendants, Charles V. Ala'ilima

On Motion for Relief from Judgment:

Defendants move for relief from judgment on the grounds of excusable neglect pursuant to T.C.R.C.P. Rule 60(b). By way of background, we noted the following ip our Decision and Order filed in the above-entitled matter on August 28, 1992:

This matter was set for trial on July 23, 1992. On the day of
trial, plaintiff appeared with her counsel Gata Edwin Gurr;
neither the defendants nor their counsel of [23ASR2d21] record,
Fai'ivae A. Galea'i, appeared. We noted on file, however, a
letter from counsel Fai'ivae's office dated July 10, 1992,
requesting the clerk to reschedule trial to another date. The letter,
which was not filed until July 17,1992, states that Se'i Sua was
seeking medical attention in the United States and that counsel
Fai'ivae was unavailable owing to a family emergency in the
United States. We apprised counsel of the contents of the letter
and he objected to a continuance; he advised that his client was
prepared for trial and that he had no prior notice of the letter
request from Fai'ivae's office.

22 A.S.R.2d 53, 54 (Land & Titles Div. 1992). We sustained plaintiff's objection to a continuance after also noting that:

T.C.R.C.P. Rule 7(b)(1) requires, inter alia, that "[a]n application
to the court for an order shall be by motion ...," and T.C.R.C.P.
Rule 6(d) requires, inter alia, that "[a] written motion. ..and notice
of the hearing thereof shall be served not later than 10 days before
the time specified for the hearing."

22 A.S.R.2d at 54 n.2.

Defendants' principal argument for relief is that they should not be penalized for the failings of their former counsel. (1) After carefully considering the evidence, the arguments of counsel, and the matters on file, we hold that defendants' former counsel's inexplicable failure to properly seek a continuance of trial, on the grounds that one of the defendants was seeking medical treatment, is not excusable neglect within Rule 60(b). As noted by the Supreme Court in Link v. Wabash Railroad Co., 370 U.S. 626,633 (1962): [23ASR2d22]

There is certainly no merit to the contention that dismissal of
petitioner's claim because of his counsel's unexcused conduct
imposes an unjust penalty on the client. Petitioner voluntarily
chose this attorney as his representative in the action, and he
cannot now avoid the consequences of the acts or omissions
of this freely selected agent. Any other notion would be wholly
inconsistent with our system of representative litigation, in which
each party is deemed bound by the acts of his lawyer-agent
and is considered to have "notice of all facts, notice of which
can charged upon the attorney." Smith v. Ayer, 101 U.S. 320,
326 (1879).

Motion for T.C.R.C.P. Rule 60(b) relief from judgment is denied.

It is so ordered.

*********

1. Although counsel Fai'ivae's letter of July 10, 1991, states that his client Se'i Sua was off-island seeking medical attention, the evidence presented in Mr. Sua's motion for relief from judgment shows that Mr. Sua was not transported off-island until July 28, 1991, and that he was thus actually on-island during the date of trial. Mr. Sua was treated at Tripler Army Medical Center in Honolulu, Hawaii, for kidney stones.

Utu v. Paolo,


UTU SINAGEGE and UTU FAMILY, Plaintiffs

v.

PAOLO SIVIA, MOENOA SIVIA, and PAOLO FAMILY,
Defendants

High Court of American Samoa
Land and Titles Division

LT No. 45-90

October 28, 1992

__________

A parcel of land was determined to belong to a family when a cemetery in which family members were buried, and a guesthouse, were located on the land and when a second family's presence on the land was of recent origin.

Before KRUSE, Chief Justice, LOGOAI, Associate Judge, MAILO, Associate Judge. [23ASR2d23]

Counsel: For Plaintiffs, Falefatu J. Ala'ilima-Utu
For Defendants, Togiola T .A. Tulafono

The Utu family seeks to enjoin the construction of a certain structure by the Paolo family on land which each party claims as its communal property. The construction concerned is a proposed, 16' x 16' "FEMA home" of hurricane Ofa era. It consists of a concrete slab to which wooden framing was later added, notwithstanding the issuance of a preliminary injunction. The proposed structure is intended to replace a fallen faleo'o (a small shack), which plaintiffs have described as an umu (a cook house) but which the defendants have said was also a residential structure. The plaintiffs maintain that the disputed site is a part of their burial ground located on Utu land known as "Malaetele." They acknowledge the Savea family alone as their neighbor to the east, claiming that the Paolo family came upon Malaetele through the permission of Utu Ta'a. The Paolo family, on the other hand, claims that the site is within Paolo- family land known as "Amoamoniu"; they claim that Utu's presence in the area was derived through the pule (authority) and permission of a past Paolo titleholder. After the evidentiary hearing, the court visited the disputed site.

The location of the construction is immediately adjacent to, if not upon, what is very obviously a long-established cemetery .While a few of the more recent graves are well-marked and appear to be attended to, a great number of the other graves are very evidently neglected and perhaps even forgotten. Indeed, the testimony alluded to an umu that was once set up amidst the graves by a member of the Utu family and to a driveway, set up by the defendants, which traversed through the graveyard until one Utu tomb started to cave in. (The tomb has since been visibly marked with characteristic concrete work).

For the reasons given, we find that the disputed site lies within the Utu family's communal land. First, the burial ground is clearly that of the Utu family. Except for two relatively recent burials of the Paolo family, the cemetery is comprised entirely of late Utu members. In our assessment of the evidence, the fact of Paolo burials in the graveyard is better explained by plaintiffs' permission claim, rather than by defendants' somewhat-tenuous attempt to set up a boundary line through the cemetery--a boundary line which not only proposes to incorporate the two Paolo graves but also unavoidably those of Utu-family members as well. Additionally, the Utu-family presence in the vicinity is markedly more established. Towards the sami side of the old graves, the Utu [23ASR2d24] guest-house is located on a site that has been long established for that purpose--the Utu guest-house site, traditionally known as "Mataava." Utu testified that there have been in his lifetime at least three different Utu guest-houses built on the site. Furthermore, the Utu family has had houses in the immediate vicinity for many generations.

By comparison, the Paolo presence is only of recent origin; theirs is a history which can hardly be viewed as that of an extended family with long-established roots in the disputed area. The defendants are the son and grandchildren of Paolo Fa'aoli, who first came into the vicinity in the early 1940s following his ministry with the Methodist Church. The parties had for many years managed to co-exist in harmony until, it seems, the defendants began to replace their faleo'o-type housing with modern structures of a more-permanent nature. For instance, the claimed Paolo guest-house, the first one they have ever built on the site, originated as the private residence of one Fita S. Paolo, a grandson of Paolo Fa'aoli. It was built in 1974 over the unsuccessful objection of certain Utu-family members, (1) at a time when the Utu title was vacant. The site had previously housed a faleo'o which, according to the testimony of Sivia Paolo, had been occupied by him. (2) Similarly, the genesis of the dispute before us is, as alluded to above, defendants' attempt to a replace another faleo'o, destroyed by hurricane Ofa, with a new structure, albeit 16' x 16' , involving concrete and other building materials of a more-lasting nature.

We find that the preponderance of the evidence favors the Utu family and conclude that the proposed construction by the Paolo family is located on communal land of the Utu family. The defendants are hereby permanently enjoined from further construction on the said burial ground. The defendants shall have 60 days to remove, without disturbing any of the graves in the vicinity, their property from the site.

It is so ordered.

**********

1. See Lavea'i v. Paolo, LT No. 1391-74 (1974).

2. Subsequently, on November 6, 1985, Fita Paolo executed a deed in favor of his father, defendant Paolo Sivia, transferring his "european- type house. ..located on a certain portion of land known as 'Mataava.'"

Lutali; Sciascia v.


KATRINA MAY SCIASCIA, Guardian ad Litem
for SHARLEA KIMIORANGA, Plaintiffs

v.

SHERRY LUTALl and WILLIE LUTALl, Defendants

High Court of American Samoa
Trial Division

CA No. 144-91

November 13, 1992

__________

Drivers whose conduct might result in injury to a child have a duty to exercise proportional vigilance and caution.

Drivers have an overriding duty to pedestrians, especially children, and a duty to refrain from careless driving. A.S.C.A. § 22.0406, 22.0701.

Pedestrian, a minor, was comparatively negligent in crossing the road into the unavoidable path of a vehicle and in failing to yield the right-of-way to vehicles when crossing at a point other than a crosswalk. A.S.C.A. § 22.0401(c)-(d), 43.5101.

When a wife was driving a vehicle with her husband's express or implied knowledge and consent, her negligence in injuring a pedestrian was imputed to him, and he is equally liable.

Damages for projected medical expenses are allowed when permanent and troublesome injuries will probably require medical treatment in the future.

A damage award to a minor shall be deposited directly into the depositary of the High Court of American Samoa and placed in an interest-bearing account with the minor as beneficiary ; disbursements are to be made only on application by the guardian ad litem and with the approval of one of the Justices. [23ASR2d39]

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and MAILO, Associate Judge.

Counsel: For Plaintiffs, Charles V, Ala`ilima
For Defendants, Togiola T.A. Tulafono

This action seeks damages for personal injuries sustained in a motor vehicle accident. Trial was held on August 6, 1992.

FINDINGS OF FACT

A. The Accident.

This accident involved the collision of a pickup truck and a pedestrian. It occurred during daylight hours in the early afternoon of August 28, 1991, on the public highway adjacent to the Kym residence in the Village of Pava`ia`i, American Samoa. At the time of the accident, the vehicle was owned by defendants Sherry Lutali (Sherry) and Willie Lutali (Willie), who are married to each other, and was operated without liability insurance coverage. Hence, no action was filed against an insurer. Sherry was driving the pickup. The pedestrian was plaintiff Sharlea Kimioranga Jasmin Sciascia (Sharlea), who was then nine years old.

Shortly before the accident occurred, Sharlea and her brother Israel, who is 13 years of age, had crossed the highway from the Kym house, located on the ocean side of the road, to return to their home in Aoloau on the mountain side of the road. They had been at the Kym house with the Kym children during the course of the day. Helen Kym, who is 14 years old, reminded Sharlea that she had forgotten to take her sleeping bag. As Sharlea was about to return to the Kym residence, a westbound bus stopped or was stopping to her left. The driver waved to her to cross the road, saying something which Sharlea understood to mean she should go ahead. An eastbound bus was stopped across from Sharlea at the ocean side edge of the road. The pickup driven by Sherry was approaching from the west in the eastbound lane. Without looking further at immediate traffic conditions and unaware of the pickup, Sharlea started running, at a jogging rate, diagonally across the road towards the Kym house. She slowed down, perhaps to a walk, as she entered the eastbound lane. She suddenly became aware of Sherry's pickup, raised her right hand signaling and shouted to stop, but she and the pickup momentarily collided. [23ASR2d40]

Sherry, who was 23 years old at the time of the accident, was accompanied in the pickup only by her young son. She did not see any buses or other vehicles on either side of the road at or near the accident scene. She knew and waved at Helen, which Helen confirmed. Sherry believed that the speed of the pickup was approximately 20 miles per hour. From her perspective, Sharlea darted across the road and was almost to the middle of the road, about 20 feet ahead of the pickup, when Sherry realized the danger in the situation. Sharlea, still running, raised her hand and shouted to stop. Sherry braked and swerved to avoid Sharlea, but Sharlea and the pickup collided. The impact point on the pickup was near the side-view mirror on the left door.

At this point, we note that four eyewitnesses at different locations testifed to the events of the accident. There were some discrepancies in their respective versions of these events. However, their testimonies were remarkably similar with respect to the key circumstances, and except for further comment below on the presence or absence of buses, these differences do not affect our findings.

B. Liability.

Turning to analysis of the events of the accident on the issue of liability, we take judicial notice of several facts to assist in evaluating both the speed of the pickup when Sherry became aware of the danger presented by Sharlea's presence on the road and any negligence by Sherry due to violation of the speed limit prescribed by A.S.C.A. § 22.0323. First, we will use the factual information on stopping distances for a single-unit vehicle, with a gross weight rating of less than 10,000 pounds, contained in the Uniform Table on Driver Stopping Distances, Including Perception-Reaction Distance, 10 P.O.F. App., Fig. 21 (1961).(1) Second, we recognize that at a speed of 20 miles per hour, a vehicle travels 29.33 feet per second. Third, we note that several signs, erected by the Commissioner of Public Safety, on both sides of the road within the Village of Pava`ia`i, give notice of a maximum speed of 25 miles per hour.

The Uniform Table indicates that the driver stopping distance for a pickup traveling at 20 miles per hour is 74 feet, including driver [23ASR2d41] perception distance of 22 feet, driver reaction distance of 22 feet, and vehicle stopping distance of 30 feet. At 25 miles per hour, the total stopping distance is 98 feet, including driver perception distance of 28 feet, driver reaction distance of 28 feet, and vehicle stopping distance of 42 feet. Since the impact occurred almost immediately after Sherry became aware of the dangerous situation, we find that the pickup and Sharlea were approximately 20 to 30 feet apart when Sherry became aware of the situation; that, within a second later, Sherry started to brake and the impact occurred almost simultaneously; and that the speed of the pickup when Sherry began to perceive the danger was approximately 20 to 25 miles per hour. We further find that Sherry was not negligent due to any violation of the maximum speed limit prescribed by A.S.C.A. § 22.0323.

We are convinced, however, that Sherry was negligent in failing to notice the precarious situation and in not taking defensive action any sooner than she did. She was aware of the group of children along the road when she waved at Helen. However, she did not observe the two buses that were stopped or stopping on each side of the road.(2) She did not grasp the need to reduce the speed of the pickup until it was too late to avoid the accident. Sherry's inattentiveness to the full circumstances of the situation establishes a lack of ordinary or reasonable care, which persons of ordinary prudence would use to avoid foreseeable injuries to children who are nine years of age. [23ASR2d42]

Persons dealing with children must anticipate the ordinary behavior of children, taking into account their maturity, intelligence and experience. The fact that children usually do not exercise the same degree of prudence for their own safety as adults--that they often are thoughtless and impulsive--imposes on those dealing with children, and from whose conduct injury to a child might result, a duty to exercise proportional vigilance and caution. Schwartz v. Helms Bakery Ltd., 67 Cal. 2d 232, 240, 60 Cal. Rptr. 510, 515, 430 P.2d 68, 73-74 (1967). Statutory descriptions of this standard of care are found in A.S.C.A. § 22.0701, defining careless driving, and A.S.C.A. § 22.0406, prescribing a driver's overriding duties to pedestrians, especially children. Sherry's negligent operation of the pickup was clearly a proximate cause of the accident and Sharlea's injuries.

At the same time, it is clear that Sharlea's conduct was also negligent and that her negligence was a contributory cause of the accident and her injuries. Sharlea crossed the road into the unavoidable path of Sherry's vehicle, at least at the time when Sherry belatedly perceived Sharlea's presence. Also, because Sharlea crossed the road at a point other than within a designated, marked or unmarked crosswalk, she was required to yield the right-of-way to all vehicles. These are standards of conduct set forth in A.S.C.A. §§ 22.0401(c) and (d).

Thus, it becomes necessary to compare the respective negligent conduct by Sherry and Sharlea and to diminish the award of damages in proportion to the amount of negligence attributable to Sharlea. A.S.C.A. § 43.5101. Apportioning their negligence, we find that each is equally culpable. On one hand, Sherry failed to keep a proper lookout when she knew or should have known of the risk to children in the area. On the other hand, Sharlea could have readily avoided the dangerous situation in which she found herself. Therefore, we assess Sherry's responsibility at 60% of the damages suffered by Sharlea.

Based on Willie's joint ownership with Sherry of the pickup and their marital relationship, we further find that Sherry was operating the vehicle at the time of the accident with Willie's express or implied knowledge and consent. See Wilcox v. Berry, 32 Cal. 2d 189, 195 P.2d 414, 415 (1948). Therefore, Sherry's negligence is imputed to Willie, and he is equally responsible with Sherry to the extent of her liability to Sharlea. See Foma`i v. Semana, 4 A.S.R.2d 102, 104-109 (1987); Toleafoa v. Sioka, 5 A.S.R.2d 18, 21 (1987); Sataua v. Himphill, 5 A.S.R.2d 61,63 (1987); A.S.C.A. § 22.2003(2). [23ASR2d43]

C. Damages.

After the impact, the pickup quickly stopped, partially off the ocean side of the road. Sherry thought that she stopped almost immediately and that the pickup did not drag Sharlea. However, based on the Uniform Table information for a single- unit vehicle, with a gross weight rating of less than 10,000 pounds, moving at 20 to 25 miles per hour, it is apparent that Sharlea was dragged some 52 to 70 feet before the vehicle came to a complete stop. That Sharlea was dragged for some significant distance is also consistent with the nature of her injuries, described below.

After the collision, Sharlea was taken to the hospital by her uncle. She next recalled being held by a friend of her uncle in the cab of her uncle's pickup. She was not sure whether or not she had been unconscious. She saw blood and the skin removed from her right foot. She was in severe pain which she had never experienced before. She did not remember arriving at the hospital or exactly what initially happened there. She did recall that at some point, she was in a room with people moving around. She then felt dizzy and great pain. There was a cast on her right leg when she next woke up. She did not recall the length of time that she was hospitalized. Back at home, her mother dressed her foot more than once a day. She did not attend school for a while, but she was not sure of the length of her absence. Her leg was checked by doctors from time to time. She is now used to the sight of her foot. She can do the same things now that she did before the accident, but she feels pain on the bottom of her foot when running. Today she can wear shoes and walk straight, but differently, with an up and down "bump." Her friends had called the sight of her foot gross, but this description does not bother her any longer.

Katrina May Sciascia, Sharlea's mother, first saw her daughter about two hours after the accident. A neighbor took her to the hospital. Sharlea was then crying in pain, calling for her mother. It was about three to four hours after the accident before a doctor was available to care for Sharlea, and it was about five hours before she was sedated. Sharlea was hospitalized for about one month. After Sharlea was released, her mother tended to her wounds twice a day. For a while, Sharlea was confined to a wheelchair and was emotionally depressed. However, her mother has encouraged her daughter to lead a normal life. Her mother thinks Sharlea can now do most of the things she did before the accident. Sharlea started playing basketball, a game she loves, about [23ASR2d44] a month ago, but she cannot play a whole game. Sharlea also walks as though she needs to constantly balance herself.

Dr. Ronald W. Vinyard, an orthopedic surgeon, first saw Sharlea on the day of the accident at the request of Dr. Reilly Magiin, who wanted a second opinion on her condition. Sharlea was conscious and reasonably stable, in shock but not grossly so. She had suffered a compound fracture of her right leg between the ankle and knee. Two bones protruded. The tissue along the inside of her right foot was torn away from her ankle to the toes. She also had facial abrasions and contusions, which were not serious injuries. Under anesthesia, her leg and foot were debrided of dead tissue and irrigated, and the foot wound was dressed. Then the leg bones were reduced to normal alignment, and a cast to the toes was placed on the leg. The foot part of the cast was removed three days later to treat the foot further by grafting skin from other parts of her leg to granulated foot tissue, placed at measured intervals to grow together. This procedure is done under general anesthesia and, at the donor site, involves acute pain for two to three days and takes 10 days to three weeks of healing time, depending on the thickness of the removed skin. The grafts are then regularly watched for the growth and viability of the grafted skin. Treatment also included medication for pain and antibiotics for infections.

Dr. Vinyard also testified that, according to the medical records, Sharlea was actually hospitalized from August 28 to September 20, 1991, and has regularly received outpatient treatment since her release. She was last treated on April 8, 1992, and another treatment was scheduled about three months later. Dr. Vinyard examined Sharlea the week before the trial. The grafting process is still incomplete, as there is still exposed granulated tissue. In time, the foot will be frozen and superficial skin ground off in preparation of new grafts, perhaps done in a series, as may be necessary. The foot functions mechanically well now, but it will never be completely normal. Sharlea can expect to participate in sports, probably on a somewhat restricted basis. The foot will continue to require superficial skin care on a regular basis. Sharlea is also a candidate for early arthritis due to this injury. She also has four to five years of normal bone growth ahead of her, and a "club foot" may develop. She should be seen every six months until her normal growth period is over.

Her foot will never look like it did originally. Regardless of the success of the healing or growth processes, Sharlea will eventually require additional cosmetic surgery, at best, and "club foot" corrective [23ASR2d45] surgery, at worst. Special instruments, which are presently unavailable locally, are needed for these kinds of surgery. The current cost of each such operation in the U.S. mainland is about $5,000. Three cosmetic operations will probably be necessary to make the foot appear as normal as possible. Five to 12 operations may be required if more severe conditions are encountered.

In determining special damages for medical expenses, we first note that although it is apparent that some current medical expenses were associated with both Sharlea's inpatient and outpatient care, the record evidence is not specific on incurred medical expenses. However, since Sharlea is not entitled to medical attention under A.S.C.A. § 13.0601, lawful charges were $60 per day for inpatient care under A.S.A.C. § 11.0302(b)(1) and $2 per visit for outpatient care under A.S.A.C. § 11.0302(b)(1). Thus, by reason of Sharlea's hospitalization for 24 days, her inpatient medical expenses would have been $1,440. Again, we do not know the exact frequency of her regular outpatient checkups after her release in September 1992 through April 1992, but given the nature of her injuries, a reasonable estimate is three times a month, resulting in outpatient charges of $42. Therefore, we find that Sharlea's past medical expenses were $1,482.

Damages for projected medical expenses are allowed when, as has been shown in this case, permanent and troublesome injuries will probably require medical treatment in the future. Besch v. Triplett, 23 Ariz. App. 301, 532 P.2d 876, 877-878 (1969). Additional skin grafts, locally performed in a series, are reasonably certain. We think that the equivalent of 12 inpatient days, costing $720, is a reasonable estimate for this medical expense. There is also reasonable probability or certainty of at least three cosmetic operations, estimated at $5,000 each by today's cost standards, or a total of $15,000. Finally, the recommended outpatient checkups to be conducted at six month intervals for the next five years, if they are done in American Samoa, will add another $20 to the projected medical costs. Therefore, we find that Sharlea's projected medical costs are $15,740. Combining these determinations of past and future medical expenses, special damages for medical expenses are $17,222.

Clearly, Sharlea suffered and in the future will suffer substantial pain and suffering, including but not limited to the effects of lifelong disfigurement and some permanent disability. Taking into account typical awards for pain and suffering in American Samoa, and recognizing that any dollar value for this purpose is objectively neither right nor wrong, [23ASR2d46] we find that Sharlea's general damages for pain and suffering are $50,000.

Apportioning the total damages of $67,222 on a 60%-40% basis according to our comparative negligence evaluation, we find that Sharlea is entitled to $40,333.20 in damages.

CONCLUSIONS OF LAW

1. Sherry negligently operated a motor vehicle on the occasion of this accident, and her negligence was one proximate cause of Sharlea's personal injuries.

2. Sharlea negligently crossed the road, and her negligence was the other proximate cause of her injuries.

3. Comparing the negligent conduct by Sherry and Sharlea, assessment of responsibility at 60% to Sherry and 40% to Sharlea is reasonable.

4. Sherry's negligence is properly imputed to Willie to the full extent of her liability to Sharlea.

5. Sharlea's special damages for medical expenses are $17,222. Her general damages for pain and suffering, including disfigurement and permanent disability, are $50,000. Her total damages are $67,222.

6. Apportioning the damages on a 60%-40% basis between Sherry and Sharlea, Sherry and Willie are jointly and severally liable to Sharlea in the sum of $40,333.20.

7. In accordance with Judicial Memorandum No. 1-1988, 7 A.S.R.2d 144 (1988), until further order of the court, the amount of the damages shall be deposited directly into the depositary of the High Court of American Samoa and shall be placed in an interest bearing account with Sharlea as the beneficiary. Disbursements will be made only on application by Katrina May Sciascia as guardian adlitem, or by her successor of record, and only on approval by one of the justices.

Judgment shall enter accordingly. It is so ordered.

**********

1. This table was agreed on by 10 national traffic safety organizations and was approved by the National Conference on Uniform Stopping Distance Charts.

2. Of the four eyewitnesses, Sharlea was the only one who recalled seeing both buses. Helen, who was on the mountain side of the road when the accident occurred, noticed only the westbound bus. Neither Sherry nor Mrs. Tuitele, who was picking up trash in her yard next door to the Kym house, observed any buses. However, we do not think that these differences in the witnesses' perceptions indicated a lack of credibility of any of them. We also do not think that the presence or absence of the buses, particularly the eastbound bus, had a direct bearing on the accident in the sense that Sherry had to pay attention to avoid striking any bus. We do think that Mrs. Tuitele, based on her yard activity, and Helen, perhaps based on her recognition of Sherry's greeting, were not necessarily alert to every circumstance immediately before the impact. Moreover, while Sherry's failure to notice the eastbound bus further illustrates her lack of awareness, we think that even if there were no eastbound bus, her inadequate attention to the situation was amply shown.

Lualemaga v. Asifoa,


LUALEMAGA E. FAOA, Plaintiff

v.

SOSENE ASIFOA and LEFOTU TUILESU, Defendants

LUALEMAGA E. FAOA for the LUALEMAGA FAMILY 
and the VILLAGE OF A'ASU, and TUITELE K.A. LE'OSO 
for the VILLAGE OF LEONE, Plaintiffs/Objectors

v.

A'OLOAU VILLAGE COUNCIL, Defendant/Claimant

A.U. FUIMAONO and the VILLAGE OF A'OLOAU, Plaintiffs

v.

TOLUAO FETALAIGA, Defendant

TUANAITAU TUIA, AVA VILI, and TOLUAO FETALAIGA for 
THEMSELVES and the VILLAGE OF PAVA'IA'I, Intervenors

LEPUAPUA STANLEY MASSEY UTU, for HIMSELF and 
on Behalf of the UTU FAMILY , Intervenors

TUILEFANO VAELAA, TUIAGAMOA TUIOLEMOTU, 
and TUITASI for "AlGA AITULAGI," Intervenors

High Court of American Samoa 
Land and Titles Division

LT No. 29-86 
LT No. 41-86 
LT No. 12-87

October 7, 1992

__________

Persons continuing to occupy and cultivate land adjudicated as belonging to another family are subject to sanctions for contempt. [23ASR2d18]

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge.

Counsel: For Intervenors Lepuapua Stanley Massey Utu 
and the Utu Family, Togiola T .A. Tulafono 
For Defendant/Intervenor Toluao Fetalaiga, Asaua Fuimaono

On Imposition of Sanctions for Contempt:

The motion in these consolidated actions by intervenor Lepuapua Stanley Massey Utu, for himself and on behalf of the Utu family ("Utu" or "Utu family"), to impose sanctions against defendant/intervenor Toluao Fetalaiga ("Toluao" or "Toluao family") and Pepe Lam Yeun ("Lam Yeun") for contempt came regularly for hearing on October 2, 1992. Lam Yeun is married to a member of the Toluao family.

The judgment in these consolidated actions was issued and entered on August 6,1990. As applied to Toluao and the Toluao family, this judgment: (1) enjoined Toluao from further occupation and cultivation of land within the Village-of-A'oloau survey in evidence (with the exception of an area which is not involved in the present contempt proceedings) and (2) declared that a small parcel of land, approximately 2.076 acres, which is depicted in survey Drawing No, 32"15"89, within a larger tract of land known as "Lago," and within the Village of A'oloau survey, was the communal land of the Utu family. On August 9, 1990, the judgment was amended to allow certain parties, including Toluao, until September 10, 1990, at 4:00 p.m., to harvest crops belonging to them on land on which they were enjoined from further activities.

After September 10, 1990, Toluao and the Toluao family, principally through Lam Yeun's acts, continued to occupy and cultivate the declared Utu family land. On April 24, 1991, this Court found Toluao and Lam Yeun in contempt of the Court's orders in the judgment, as amended. The imposition of sanctions was suspended for 30 days to allow them time for compliance with the Court's orders. Both Toluao and Lam Yeun were present when they were found in contempt. The proceedings at that hearing were translated into Samoan.

It appears from the testimony at the hearing on the present motion that Toluao and Lam Yeun may have been influenced before, on [23ASR2d19] and after April 24, 1991, by faulty legal advice from their counselor unlawful legal advice from their counsel's associate, or both, during the period of various post-judgment proceedings, until their present attorney was retained. Nonetheless, they have continued their contemptuous occupation and cultivation of the declared Utu-family land up to and including the day of the hearing on the present motion. In addition, Lam Yeun and his workers on this land have acted in an aggressive manner towards members of the Utu family and on August 23, 1991, threatened physical violence against some of them.

Both Toluao and Lam Yeun have the present ability to comply with Court's orders with respect to the declared Utu family land as set forth in the Court's judgment, as amended.

IT IS THEREFORE ORDERED as follows:

1. Toluao is imprisoned for a period of 30 days and is fined in the sum of $5,000.

2. Lam Yeun is imprisoned until the orders with respect to the declared Utu-family land in the Court's judgment of August 6, 1990, as amended on August 9, 1990, are performed.

IT IS FURTHER ORDERED that execution of the foregoing sentences is stayed on condition that Toluao and Lam Yeun fully comply with the orders with respect to the declared Utu family land in the Court's judgment of August 6, 1990, as amended on August 9, 1990. Toluao, Lam Yeun and all other members of the Toluao family, and their agents, servants and employees, must immediately remove themselves and hereafter stay off of the declared Utu-family land.

IT IS FURTHER ORDERED that any trees and crops on the declared Utu-family land belonging to Toluao, Lam Yeun or other members of the Toluao family are forfeited to and are now the property of the Utu family.

IT IS FURTHER ORDERED that Toluao and Lam Yeun shall pay, not later than November 5, 1992, directly to Togiola T.A. Tulafono, attorney for Utu and the Utu family, the sum of $500 for attorney' s fees and costs incurred in these contempt proceedings .

IT IS FURTHER ORDERED that this matter is continued to November 6, 1992, at 9:00 a.m., for the purpose of reviewing Toluao's [23ASR2d20] and Lam Yeun's compliance with the orders of this Court in the judgment of August 6, 1990, as amended on August 9, 1990, and this order on the imposition of sanctions for contempt. Toluao and Lam Yeun are ordered to return to this Court on November 6, 1992, at 9:00 a.m. , without further order, notice or subpoena.

 

*********

Leilua v. Ali`itaeao,


UA TIME LEILUA, Plaintiff

v.

TAVITA ALI'ITAEAO, LYDIA AMISONE, and 
NATIONAL PACIFIC INSURANCE CO., Defendants

LAUMATA FAIFAIESE, Plaintiff

v.

LYDIA AMISONE, TAVITA ALI'ITAEAO, and 
NATIONAL PACIFIC INSURANCE CO., Defendants

High Court of American Samoa 
Trial Division

CA No. 127-91 
CA No. 57-92

January 12, 1993

__________

Compulsory vehicle insurance covers the named insured, as well as any other person who uses the insured's vehicle with his express or implied permission. A.S.C.A. § 22.2003(2).

Inferential in nature, implied permission for a vehicle's use is usually shown by usage and practice of the parties over a sufficient period of time.

Although weaker evidence will support a finding of implied permission to use a vehicle if the drivers are blood relatives than if they were strangers or mere acquaintances, the mere existence of a close family relationship does not of itself establish permissive use.

Before KRUSE, Chief Justice, MATA'UTIA, BETHAM, Associate Judge.

Associate Judge,

Counsel : For Plaintiff Uatime Leilua, Charles V. Ala-ilima 
For Plaintiff Laumata Faifaiese, Asaua Fuimaono 
For Defendants, Roy J.D. Hall, Jr.

These separate actions arose out of the same incident and were thus consolidated for trial. Plaintiffs, Uatime Leilua and Laumata Faifaiese, were injured after their vehicle was involved in a front-end collision with another vehicle, driven by defendant Tavita Ali'itaeo. The [23ASR2d98] accident occurred because the latter, an unlicensed driver, had rounded a blind curve on the wrong side of the road. The vehicle driven by Ali'itaeao belonged to his sister, defendant Rita Amisone. Amisone is here joined together with her insurer for compulsory third-party liability insurance, defendant National Pacific Insurance, pursuant to A.S.C.A. § 22.2018. (1)Unfortunately, Ali'itaea has since departed the territory, and nothing indicates that process has been served upon him. Thus, we presently lack in personam jurisdiction over this defendant.

The evidence shows that Ali 'itaeao, a student from Manu'a, was at all relevant times living here on Tutuila with Amisone and her family while he attended high school. The Amisones are a two-car family; however, on the day in question, Mrs. Amisone and her husband had taken one car to work while leaving the other parked next to the house. Shortly after they had left that morning, Ali'itaeao somehow obtained the keys to this other car and drove away. He later ran into plaintiffs' vehicle.

Mrs. Amisone testified that she had neither authorized Ali'itaiao's taking of the vehicle that morning nor had she ever allowed him to drive the vehicle before. She emphasized her awareness of the fact that her brother did not have a driver's license. She further testified that she kept the vehicle's keys in her desk in the bedroom; however, she also stated that she had left the bedroom door unlocked so that her children would have access to a refrigerator located there.

The insurer contests liability on the ground that the Ali'itaeao was not a permittee of its insured, Amisone, and hence was not an additional insured under the provisions of the compulsory insurance statute, A.S.C.A. § 22.2001 et seq.

DISCUSSION

Compulsory insurance covers the named insured as well as" any other person who uses the [insured's] vehicle. ..with the express or implied permission of the named insured..." A.S.C.A. § 22.2003(2). The issue here is whether there was "implied" permission within the [23ASR2d99] meaning of A.S.C.A. § 22.2003(2)--nothing in the evidence suggests express permission. (2)

Implied permission is inferential in nature and is usually shown by usage and practice of the parties over a sufficient period of time. 12 M. Rhodes, Couch on Insurance 2d, Automobile Insurance, § 45.353 (Rev. ed. 1981 & Supp. 1992); 7 Am. Jur. 2d, Automobile Insurance, § 252, at 826-27 (1980 & Supp. 1992) (citing a number of state cases). "It is permission which may be inferred from circumstances whereby the owner may be seen as having tacitly consented to the vehicle's use." Maulupe v. American International Underwriters, 12 A.S.R.2d 1, 4 (Trial Div. 1989). While the relationship between the vehicle's driver and owner is very important in determining the existence of implied permission, (3) the mere existence of a close family relationship does not of itself establish permissive use. 12 Couch on Insurance 2d, Automobile Insurance, § 45.357, at 709.

On the evidence, all that is before us is a family relationship between the owner of the vehicle and its operator. The evidence falls short in the way of attendant circumstances from which a conclusion of permissive use can be reasonably inferred. "Permission" is the statutory criterion for coverage, "and that fact must appear on the evidence in order to bring the wrongful acts of the driver within the coverage of compulsory insurance policies. " Sataua v. Himphill, 5 A.S.R.2d 61, 68 (Trial Div. 1987). Therefore, we conclude that the complaint against [23ASR2d100] defendants Amisone and National Pacific Insurance must be DISMISSED.

It is so ordered.

*********

1. A.S.C.A. § 22.2018 gives an injured automobile victim a right of direct action against the insurer, within the limits of the policy, and "[s]uch action may be brought against the insurer alone, or against the both the insured and insurer."

2. Although plaintiff Laumata Faifaiese's complaint also alleges that his injuries were the proximate result of the vehicle owner's "gross negligence and reckless conduct," he tendered no proof to this effect or evidence to substantiate actionable conduct on the part of the vehicle's owner.

3. If they are blood relatives, weaker evidence will support a finding of permission than if they were strangers or mere acquaintances. 7 Am. Jur. 2d, Automobile Insurance, § 252, at 828 (citing Hardware Mutual Casualty Co. v. Home Indemnity Co., 50 Cal. Rptr. 508, 514 (App. Ct. 1966) (implied permission found in situation in which the car's owner was the driver's cousin)). Thus, "a family relationship, with its attendant familiarity, lends itself to an inquiry into past conduct and circumstances likely to show acquiescence, or lack of objection, tantamount to consent." Toleafoa v. Sioka, 5 A.S.R.2d 18, 21-22 (Trial Div. 1987).

Le Vaomatua v. American Samoa Gov’t,


LE VAOMATUA, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, 
RAYMOND McMOORE, SESE McMOORE, 
and SAMOANA FELLOWSHIP, INC., Defendants

High Court of American Samoa 
Land and Titles Division

LT No. 43-92

October 8, 1992

__________

Gambling and the keeping of gaming facilities is a criminal offense, though an exception exists for occasional bingo games whose profits are used for charitable, religious, or educational purposes. A.S.C.A. §§ 46.4301-46.4302.

To establish standing to enforce environmental laws, (1) a party must show that he has suffered an injury-in-fact, and (2) the alleged injury must arguably be within the statute's zone of interests.

For purposes of standing, aesthetic and environmental harm can constitute injury-in-fact.

Although an organization may represent members who are injured, a mere "interest in a problem" is insufficient to establish standing.

Being an extraordinary remedy, a preliminary injunction is granted only when clearly warranted and may be denied when administrative remedies have not been exhausted. A.S.C.A. § 4.1040.

A preliminary injunction is unwarranted when an environmental organization fails to plead specific harm to itself or its members and when it did not seek a stop order from the territorial Development Planning Office. A.S.C.A. §§ 4.1040, 24.0505(c).

Existing coastal management rules and regulations were not nullified by the Development Planning Office's failure to formally promulgate new, statutorily-required rules for [23ASR2d12] administering the American Samoa Coastal Management Program. A.S.C.A. §§ 24.0506(a)-(b); A.S.A.C. §§ 26.0201 et seq.

A preliminary injunction may be issued only when (1) a substantial likelihood exists that the applicant will prevail at trial on the merits and that a permanent injunction will be issued; and (2) great or irreparable injury will result to the applicant before a full and final trial on a permanent injunction.

A party seeking a preliminary injunction must post security to cover the costs and damages of a party wrongfully enjoined or restrained prior to a trial on the merits. A.S.C.A. § 41.1309.

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

Counsel: For Plaintiff, Charles V. Ala'ilima 
For Defendant American Samoa Government, 
Elvis R.P. Patea, Assistant Attorney General
For Defendants Raymond McMoore, Sese McMoore, 
and Samoana Fellowship, Togiola T.A. Tulafono

On Motion for Preliminary Injunction:

Plaintiff is an eleemosynary corporation whose corporate objects embrace the preservation and protection of the environment. Defendant American Samoa Government has leased a certain parcel of land next to the Pala Lagoon to the defendants Ray and Sese McMoore, dba Samoana Fellowship Incorporated, for the stipulated purpose of developing "a community center for community related activities for the youth and senior citizens." The latter defendants are well-known bingo operators in the territory. (1) Plaintiff, claiming non-compliance with the territory's environmental laws, seeks a preliminary injunction to enjoin the McMoores from proceeding with their proposed construction next to the Pala Lagoon. For reasons given, the application must be denied. [23ASR2d13]

I. Standing

In order for a party to establish standing to enforce provisions of environmental laws, two criteria must be met. One, the party must show that he has suffered an "injury-in-fact" ; two, the alleged injury must arguably be within the statute's "zone of interests. " United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669,686 (1973); Sierra Club v. Morton, 405 U.S. 727,733 (1972); California by Brown v. Watt, 683 F.2d 1253, 1270 (9th Cir. 1982) (citing Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151-53 (1970); Barlow v. Collins, 397 U.S. 159, (1970); Glacier Park Foundation v. Watt, 663 F.2d 882,885 (9th Cir. 1981)). Aesthetic and environmental harm can constitute "injury-in-fact. " SCRAP, 412 U.S. at 686; Sierra Club, 405 U.S., at 734; Brown, 683 F.2d at 1270-71; see Japan Whaling Association v. American Cetacean Society, 478 U.S. 221,230 n.4 (1986).

A plaintiff is required to allege" specific and perceptible harm, " and these "allegations must be true and capable of proof at trial. " SCRAP 412 U.S. at 689. Demonstrating personal harm of some sort is crucial because this "gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. " SCRAP, 412 U .S. at 687, (citing Sierra Club at 740). As such, "a mere 'interest in a problem, , no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient to establish standing. " Sierra Club, 405 U .S. at 739; Foundation on Economic Trends v. Lyng, 943 F.2d 79, 83, 85 (D.C. Cir. 1991) (quoting Sierra Club) (an interest in disseminating environmental information, by itself, is insufficient). A party must show injury , although an organization may represent members who are injured. Sierra Club, 405 U.S. at 739; Brown, 683 F.2d at 1270; Lyng, 943 F.2d at 83, 85 (an organization can derive standing from its members).

Plaintiff Le Vaomatua has failed to plead, let alone demonstrate, specific harm to itself or its members. Rather, it has been content to assert standing in a conclusionary fashion, citing its corporate objectives. The fact that it is an organization concerned with the environment or the public interest fails to meet the test set forth in the cases. Therefore, we conclude that Le Vaomatua lacks standing to pursue this action. [23ASR2d14]

II. Exhaustion of Administrative Remedies

A preliminary injunction is an extraordinary remedy and is granted only when clearly warranted. Sierra Club v. Hickel, 33 F .2d 24, 33 (9th Cir. 1970), aff'd sub nom. Sierra Club v. Morton, 405 U.S. 727 (1972); United States v. School District of Omaha, State of Nebraska, 367 F. Supp. 179 (D. Neb. 1973) (citing Yakus v. United States, 321 U.S. 414 (1944)); Crimmins v. American Stock Exchange, Inc., 346 F. Supp. 1256 (S.D.N.Y. 1972). Indeed, courts have gone so far as to deny standing when an organization failed to exhaust its administrative remedies. See, e.g. , National Audubon Society v. Johnson, 317 F. Supp. 1330 (D.C. Tex. 1970) (denying standing when an organization had many administrative remedies but did not complain to any agency, even though the agencies were better able to research the problem and could grant the same relief).

Plaintiff Le Vaomatua has not demonstrated that a preliminary injunction is necessary .The territory's governing statute, the American Samoa Coastal Management Act of 1990 (A.S.C.A. §§ 24.0501 et seq.), charges the director of the Development Planning Office ("DPO") with enforcement of the Act's provisions; he may issue a stop order if the American Samoa Coastal Management Program, or a rule adopted pursuant to it, is being violated. If the stop order is violated, the director can seek an injunction from the High Court. A.S.C.A. § 24.0505(c); see also A.S.C.A. § 4.1040. Thus, an administrative enforcement remedy is available, and the DPO is the appropriate enforcement agency. However, the evidence fails to show that the plaintiff has attempted to pursue any administrative remedies. Plaintiff's counsel submits, again in conclusionary fashion, that the administrative route would only prove fruitless and that plaintiff has therefore petitioned the court directly. We conclude that plaintiff has not shown a need for the extraordinary relief which a preliminary injunction provides. Thus, even if plaintiff had standing, a preliminary injunction is unwarranted.

III. Coastal Zone Administrative Rules

Although its pleadings acknowledge the existence of rules and regulations for administering the American Samoa Coastal Management Program (see Complaint, para. 7), plaintiff has nonetheless argued that valid rules to govern the administrative process are lacking (presumably, the argument is arbitrariness within the administrative process). Plaintiff cites the DPO director's failure to formally establish rules within one year after the enactment of the American Samoa Coastal Management [23ASR2d15] Act, as mandated by A.S.C.A. § 24.0506(a). However, the Act also provides that the rules promulgated as A.S.A.C. §§ 26.0201 et seq. are to remain in effect until the new rules are in place, "notwithstanding any other law or rule." A.S.C.A. § 24.0506(b). These are two separate, distinct provisions, and any violation of the former does not nullify the latter. Thus, the procedures codified in A.S.A.C. §§ 26.0201 et seq. govern, and plaintiffs challenge to their validity fails.

IV. Sufficient Grounds

A preliminary injunction may only issue after a hearing in which "sufficient grounds. ..has been established by a preponderance of the evidence adduced." A.S.C.A. § 43.1301(g). A.S.C.A. § 43.1401(j) provides that "sufficient grounds" for the issuance of a preliminary injunction means:

(1) there is a substantial likelihood that the applicant will prevail 
at trial on the merits and that a permanent injunction will be 
issued against the opposing party; and

(2) great or irreparable injury will result to the applicant before 
a full and final trial can be fairly held on whether a permanent 
injunction should issue.

Plaintiff Le Vaomatua has not sustained the required statutory showing. On the basis of the evidence received, the defendants would probably prevail on the merits at trial. While plaintiff claims non-compliance by the government with existing land-use permit procedures, and non-compliance by the McMoores with the conditions of the permit issued to them, the evidence adduced tends to the support the opposite conclusion. On the question of irreparable injury, plaintiff made no attempt to show any particular harm to itself (as discussed above), irreparable or otherwise.

Finally, A.S.C.A. § 41.1309 essentially requires a party seeking a preliminary injunction to post security to cover the costs and damages suffered by a party wrongfully enjoined or restrained prior to the opportunity for a trial on the merits. The plaintiff has shown neither the willingness nor the ability to post the required security. [23ASR2d16]

V. Conclusion

Plaintiff Le Vaomatua's application for a preliminary injunction is denied.

It is so ordered.

*********

1. Cf. A.S.C.A. § 46.4301, which proscribes gambling and the keeping of gaming facilities as a criminal offense, and A.S.C.A. § 46.4302, which exempts from this general proscription the "occasional playing of bingo. ..when the profits [therefrom] are used for religious, educational or charitable purposes." (Emphasis added).

Interocean Ships, Inc. v. Samoa Gases,


INTEROCEAN SHIPS, INC., a Delaware Corporation,
Plaintiff

v.

SAMOA GASES, a Corporation, Defendant

High Court of American Samoa
Trial Division

CA No. 123-85

December 22, 1992

__________

In general, strict liability looks at the product itself and determines if it is defective, whereas negligence looks at the act of the manufacturer and determines if it exercised ordinary care, although this distinction is not as clear in failure-to-warn cases.

The widely accepted rule of Restatement (Second) of Torts § 402A, which states that an action for recovery under a theory of strict products liability may be entertained by a court sitting in admiralty, is now accepted in American Samoa.

Having been made applicable by statute to actions for personal injury or property damage and so being compatible with the legislature's will, comparative negligence is properly incorporated into admiralty.

Under Restatement (Second) of Torts § 402A, the elements of a strict-liability action are (1) the product is sold in a defective condition which is unreasonably dangerous to the user or consumer or to his property, (2) the seller is engaged in the business of selling such a product, and (3) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Under Restatement (Second) of Torts § 402A, a seller is not strictly liable when he delivers the product in a safe condition and when subsequent mishandling or other causes make it harmful by the time it is consumed; thus, a plaintiff bears the burden of proving that the product was in a defective condition when it left the seller.

The general rule is that subsequent changes in the condition of the product do not relieve the seller or manufacturer of strict liability, if the changes were foreseeable and did not unforeseeably render the product unsafe.

Under Restatement (Second) of Torts § 388, a supplier is liable for physical harm caused by the product's use if the supplier (1) knows or has reason to know that the product's use is likely to be dangerous, (2) has no reason to believe that the product's users will realize its dangerous condition, and (3) fails to exercise reasonable care to inform users of the product's dangerous condition. [23ASR2d77]

A seller has a duty to warn of the inherent dangers of its products, though the warning's adequacy must take into account the expertise of the consumer to whom the warning is directed.

Rejecting "expert user," assumption of risk, and contributory negligence defenses as barring recovery, American Samoa adopts the comparative-negligence approach in admiralty.

Under Restatement (Second) of Torts § 402A, a manufacturer may be strictly liable even if a product is used in an unintended manner and so is not warned against, if the misuse is reasonably foreseeable.

In determining proximate cause for tort cases in admiralty, American Samoa adopts the approach of weighing all of plaintiff's conduct, defendant's liability, and all other factors causing the loss or injury.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and MATA`UTIA, Associate Judge

Counsel: For Plaintiff, William H. Reardon and Don L. Marshall
For Defendant, Gata E. Gurr

This action arose out of an explosion which occurred aboard the purse seiner Ocean Pearl on November 21, 1983. This explosion, which killed the captain of the vessel and injured six crew members, was caused when the crew attempted to "jump start" the stalled engine of the ship by using a combination of oxygen from cylinders supplied by the defendant Samoa Gases and an ether-based starter fluid. Several actions were filed in various jurisdictions by the injured crew members and the widow of the Ocean Pearl's captain, naming plaintiff Interocean Ships, Inc. ("Interocean") as defendant. Interocean settled these claims, and then brought actions against the companies which supplied the diesel fuel, the starter fluid, and the oxygen cylinders to the Ocean Pearl. All of these suits have been settled, save the one presently before the court. The court bifurcated this trial, postponing the determination of damages until a decision was reached regarding the liability of Samoa Gases.

Interocean asks us, for the first time, to apply the doctrine of strict products liability to a proceeding within admiralty jurisdiction. We accept Interocean's invitation. Applying the principles of comparative fault (comparative negligence) to this strict products liability action, we [23ASR2d78] hold Samoa Gases liable in proportion to the amount by which its fault furthered the accident.

FACTS

On November 16, 1983, the Ocean Pearl sailed from Pago Pago, American Samoa, on a fishing voyage. Two days later, while the vessel was on the high seas, the diesel propulsion engine of the Ocean Pearl stopped, due to tainted diesel fuel which was taken on while in Pago Pago. On November 21, 1983, after three days on the high seas unsuccessfully attempting to restart the engine, the decision was made to utilize a combination of ether-based starter spray and pure oxygen gas in an attempt to "jump start" the engine.

Purse seiners normally carry cylinders of oxygen and acetylene for use in routine welding and splicing jobs which occasionally arise during their fishing trips. Samoa Gases had supplied the Ocean Pearl with the oxygen cylinders for this purpose. These cylinders were stored on the Ocean Pearl's "wet deck," a subdeck which, as its name implies, is exposed to harsh, wet conditions.

The cylinders were brought into the engine room, and their valves were opened so that their contents would discharge into the air filter of the engine. At the same time, the starter fluid was sprayed into the air filter. The first attempt met with small encouragement, so a third cylinder of oxygen was placed next to the original two, and another attempt was made. This resulted in a low order explosion, which severely burned the captain and six crew members, and damaged the engine room and the engine itself. The captain subsequently died of his injuries.

Interocean, the owner of the Ocean Pearl, is seeking indemnification from Samoa Gases, under the theory that the latter is liable for failure to provide a warning label on its oxygen cylinders.

DISCUSSION

I. Justifications for Strict Products Liability in Tort

"The purpose of [strict products liability in tort] is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." Greenman v. [23ASR2d79] Yuba Power Products, Inc. 377 P.2d 897, 901 (Cal. 1962). The seminal Yuba Power Products case laid the foundation for the application of strict products liability in tort, as opposed to similar actions based upon negligence or breach of warranty. Allowing such an action directly, in tort, obviated the need for plaintiffs to meet the cumbersome and difficult requirements imposed by these latter theories of recovery, such as proof of specific acts of negligence or privity with the defendant. See, e.g., Schuldies v. Service Machine Company, Inc., 448 F.Supp. 1196 (E.D. Wis. 1978); see generally, Annotation, Products Liability-Strict Liability, 13 A.L.R.3d 1057, § 2 (1967).

The main theoretical justifications for strict products liability are that: (1) the seller or manufacturer is in a position to spread the cost of accidents evenly among the purchasers of the products; (2) the burden of liability will provide incentives for the production of safer goods; and (3) the marketer of a product has made an implied representation that the product, when put to its intended use, will not be unreasonably dangerous and will be at least as safe as other, comparable products. See W. Prosser & P. Keeton, The Law of Torts §98 at 693-694 (5th ed. 1984); McKay v. Rockwell International Corp., 704 F.2d 444, 451 (9th Cir. 1983). Such considerations motivated the American Law Institute to draft the Restatement (Second) of Torts § 402 A (1965), which sets forth the elements of strict products liability.

It is generally said that strict liability looks at the product itself and determines if it is defective, whereas negligence looks at the act of the manufacturer and determines if it exercised ordinary care. See, e.g., Syrie v. Kroll International, 748 F.2d 304 (5th Cir. 1984). This distinction, however, is not so clear in failure to warn cases, as will be discussed below.

II. Application of Strict Products Liability in Admiralty

It is well settled that an action for recovery under a theory of strict products liability may be entertained by a court sitting in admiralty jurisdiction. The Supreme Court has stated that they "[J]oin the Courts of Appeals in recognizing products liability, including strict liability, as part of the general maritime law." East River S.S. v. Transamerica Delaval, 90 L.Ed.2d 865, 873 (1986). The vast majority of circuit courts considering the question of strict products liability in admiralty have applied § 402 A in their analysis. See Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129 (9th Cir. 1977); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. [23ASR2d80] 1972); Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121 (3rd Cir. 1984); Vickers v. Chiles Drilling Co., 822 F.2d 535 (5th Cir. 1987); McKee v. Brunswick Corp., 354 F.2d 577 (7th Cir. 1965). Indeed, the Ninth Circuit has called § 402 A "the best and most widely-accepted expression of the theory of strict products liability...." Pan-Alaska at 1135.

We agree with the reasoning of these courts and accept § 402 A as the rule for strict products liability in our admiralty jurisdiction. Indeed, the need for consistency within the law of admiralty virtually demands this decision. The issue of the applicability of § 402 A to a non-admiralty action is not presently before the court and we do not consider it at this time.

III. Application of Comparative Fault in Admiralty

Comparative fault (also termed comparative negligence), long recognized in admiralty in actions for unseaworthiness [Pope & Talbot, Inc. v. Hawn, 98 L.Ed. 143 (1953)], under the Jones Act [46 U.S.C. 688], the Death on the High Seas Act ("DOHSA") [46 U.S.C. 761, 766], and the Longshoremen's and Harbor Workers' Compensation Act [33 U.S.C. §901 et seq.] (See Lewis v. Timco, Inc., 716 F.2d 1425, 1428 (5th Cir. 1983)(en banc)), has been applied also to strict products liability actions under maritime law. See Pan-Alaska Fisheries at 1138; Lewis v. Timco, Inc. at 1428; National Marine Service, Inc. v. Petroleum Service Corp., 736 F.2d 272, 277 (5th Cir. 1984). "The admiralty rule in personal injury cases is, in effect, one of comparative negligence." Lewis v. Timco, Inc. at 1428 (quoting G. Gilmore & C. Black, The Law of Admiralty 500 n. 70 (2d ed. 1975)).

Lewis put forward several arguments for the incorporation of comparative fault into admiralty. They are important enough to cite at length. First, the court noted, DOHSA explicitly instructs courts to apply comparative fault. Failure to apply the same to strict products liability actions could create a situation in which:

when a worker's death on the high seas was caused by a
defective product, the recovery would be reduced on account
of the worker's negligence, but not when he was only injured.
Moreover, because DOHSA applies to accidents occurring
beyond a marine league from shore plaintiffs would be treated
differently depending upon where a fatal accident occurred.
[23ASR2d81]

Lewis at 1428.

Second, the court pointed out that:

When a negligent plaintiff, negligent defendants, and the
manufacturer of a defective product are all held jointly
responsible for injuries, plaintiff's negligence would diminish
his potential recovery from the negligent defendants but not
from the manufacturer. If the liability was joint and several,
plaintiff could recover the entire amount of his damages from
the manufacturer. From the plaintiff's perspective, assuming
the solvency of the manufacturer, it is as if there were no
doctrine of comparative fault with respect to the negligent
defendants as well. From the manufacturer's perspective,
contribution might be available, but somebody would bear
more than his share of the damages. In other words, erosion
of the comparative fault principle, once started in the products
liability field, will cut at the legs of negligence as well.

Id.

Finally:

The traditional doctrine of seaworthiness will also likely be affected.
If a vessel is unseaworthy because a product was defective, we will
be forced to decide whether to hold the manufacturer of the product
to a stricter standard of liability than the vessel owner, traditionally
a near insurer in cases of unseaworthy vessels. Even more taxing will
be the categorization process as seamen attempt to escape the
comparative fault of the traditional theory of unseaworthiness and
label their case products cases. Ultimately, there would be the inquiry
of whether a vessel is not itself a product....[S]hould we reject
comparative fault, many maritime torts of our circuit will become
product cases with the companion problem that the courts of this
circuit would be favored over more convenient courts by seamen
with a choice of forum.

Id. at 1429. [23ASR2d82]

While the applicability of such federal legislation as the Jones Act or DOHSA has not yet come before this court, our failure to apply comparative fault to admiralty actions within this jurisdiction would erode the "cardinal mark" of maritime law, universality. Seeid. at 1428.

There is no consensus outside of admiralty on the application of comparative fault to strict products liability actions. The most frequently mentioned objection of courts who oppose the incorporation of comparative fault is "that it would be inappropriate to inject negligence concepts into an area of liability which is based, not on negligence principles, but on a no-fault concept...." Annotation,Applicability of Comparative Negligence Doctrine to Actions Based on Strict Liability in Tort, 9 A.L.R.4th 633 § 2 at 636 (1981). This objection, however, seems particularly inappropriate in failure to warn actions, as courts have generally recognized that the difference between such cases and negligence cases is more apparent than real.

In addition, the Legislature of American Samoa has directed that we apply comparative fault to actions for personal injury or property damage. A.S.C.A. § 43.5101. Thus, we do not contravene the will of the Legislature by incorporating this principle into admiralty.

The rule of comparative fault can be stated quite simply: "the defendant is strictly liable for the harm caused from his defective product, except that the award of damages shall be reduced in proportion to the plaintiff's contribution to his own loss or injury." Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129, 1139 (9th Cir. 1977).

IV. Restatement (Second) of Torts § 402 A

Restatement (Second) of Torts § 402 A describes the elements of a successful strict products liability action. It reads:

1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused
to the ultimate user or consumer, or to his property, if

a) the seller is engaged in the business of selling such a
product, and [23ASR2d83]

b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it is sold.

2) The rule stated in Subsection (1) applies although

a) the seller has exercised all possible care in the preparation
and sale of his product, and

b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.

Application of § 402 A, then, is predicated on several distinct determinations of both fact and law. In the instant case, it must be shown that: (1) Samoa Gases was engaged in the business of selling oxygen tanks (this is not in dispute); (2) the oxygen tanks reached the users (here, the crew of the Ocean Pearl) without substantial change in the condition in which they were sold; (3) the oxygen tanks were in a defective condition, i.e., were unreasonably dangerous to the crew of the Ocean Pearl.

A. No substantial change in condition sold

§ 402 A comment g reads, in part:

The rule stated in this Section applies only where the product is,
at the time it leaves the seller's hands, in a condition not
contemplated by the ultimate consumer, which will be unreasonably
dangerous to him. The seller is not liable when he delivers the
product in a safe condition, and subsequent mishandling or other
causes make it harmful by the time it is consumed. The burden
of proof that the product was in a defective condition at the time
that it left the hands of the particular seller is upon the injured
plaintiff; and unless evidence can be produced which will support
the conclusion that it was then defective, the burden is not sustained.
[23ASR2d84]

Safe condition at the time of delivery by the seller will, however,
include proper packaging....and other precautions required to permit
the product to remain safe for a normal length of time when handled
in a normal manner.

Interocean, therefore, bears the burden of proof by a preponderance of the evidence that the cylinders were unlabelled when they left the control of Samoa Gases. Restatement (Second) of Torts § 402 A comment g (1965); Molett v. Penrod Drilling Co., 826 F.2d 1419, 1424 (5th Cir. 1987). This fact, "like all others, may be established by either direct or circumstantial evidence....Identification of a specific defect is often impossible, and the plaintiff need create only a reasonable inference that the defective condition of the product was present at the time of manufacture." Id. Interocean's witness Robert Parkerson stated that he brought oxygen bottles on board the Ocean Pearl, and that these bottles had no warning labels. Deposition of Robert Parkerson at 30. This was the only direct evidence put forward by Interocean to prove that the tanks were not labelled when they left the control of Samoa Gases. Samoa Gases offered no direct evidence on the matter. We find that Interocean has met its burden of proof in this issue, and that Samoa Gases failed to deliver properly labelled oxygen cylinders to the Ocean Pearl.

However, even if it were shown that warning labels were affixed to the cylinders when they left Samoa Gases' hands, Interocean's case might still survive. The general rule is that subsequent changes in the condition of the product (here, the possible wearing away of the labels while they were being stored on the "wet deck") do not relieve the seller or manufacturer of strict liability if the changes were foreseeable and did not unforeseeably render the product unsafe. Vanskike v. ACF Industries, Inc., 665 F.2d 188, 195 (8th Cir. 1981),cert. denied, 71 L.Ed.2d 867 (1982) (citing Hales v. Green Colonial, Inc., 490 F.2d 1015, 1020 (8th Cir. 1974)). Put another way:

To constitute a defect it is not necessary that the ultimate
"defect" as it appeared and developed shortly prior to the
accidental occurrence existed in that form at the time
possession was surrendered....The rule is that if the
manufacturer or assembler surrenders possession and control
of a product in which change will occur, or in which the change
can be anticipated [23ASR2d85] to occur so as to cause a
product failure, the existence of a defect at the vital time is
established.

Whitehead v. St. Joe Lead Co., Inc., 729 F.2d 238, 250 (3rd Cir. 1984) (citing Sharp v. Chrysler Corp., 432 S.W.2d 131, 136 (Tex.Civ.App. 1968)). See also Saupitty v. Yazoo Mfg. Co., Inc., 726 F.2d 657, 659 (10th Cir. 1984); Scott v. White Trucks, 699 F.2d 714, 716 (5th Cir. 1983); C&S Fuel, Inc. v. Clark Equipment Co., 552 F.Supp. 340, 345 (E.D. Ky. 1982).

While this issue of foreseeability of change has not been raised by courts sitting in admiralty, the United States Supreme Court has noted that, "[d]rawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." East River S.S. v. Transamerica Delaval, 90 L.Ed.2d 865, 873 (1986). Indeed, "[i]n maritime tort cases courts traditionally apply principles of maritime law, as informed by common law tort developments....unless a policy determination has been made by the Congress." Lewis v. Timco, 716 F.2d 1425, 1427 (5th Cir. 1983) (citations omitted). Thus, even if we are incorrect in finding the lack of labels at the time of delivery, it is not a fatal error. Interocean's witness Robert Parkerson testified by deposition that he examined the oxygen cylinders immediately prior to the accident and found no warning labels. Deposition of Robert Parkerson at 28-29. Furthermore, Interocean's exhibits, which included photographs taken on board the Ocean Pearl, establish that there were no labels on the tanks after the explosion. Interocean's witnesses asserted that it was unlikely that any labels would have been burned away by the explosion. Thus, we further find that the oxygen tanks were unlabelled directly prior to their use, before the explosion. The foreseeability of their condition reinforces our finding that Samoa Gases breached its duty to provide a sufficient warning to the crew of the Ocean Pearl.

B. Defective Condition/Unreasonably Dangerous

There is little or no difference between "defective condition" and "unreasonably dangerous" as applied under § 402 A. Several courts and, indeed, the Restatement (Second) of Torts itself, consider these two terms synonymous; a finding of one will preclude the necessity of finding the other. Pavlides v. Galveston Yacht Basin 727 F.2d 330, 338 n.13 (5th Cir. 1984)(adopting the position of § 402 A in considering "defective condition" as synonymous with "unreasonably dangerous"); Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1087, n.20 (5th Cir. 1973)(same), cert. denied 419 U.S. 869 (1974). [23ASR2d86]

But regardless of the label applied, the finding is a prerequisite to Samoa Gases' liability. In actions based upon failure to warn, however, the term "strict liability" may be inappropriate, for in these cases, the "threshold question [is] whether a duty to warn exists" Hull v. Eaton Corp., 825 F.2d 448, 454 (D.C. Cir. 1987). This is, in essence, a negligence inquiry. The First Circuit has said:

[S]ince the duty to warn under both theories is a function of,
chiefly, what the manufacturer knows or should know about
the danger necessitating the warning, the two theories often
seem similar. In fact, other courts have concluded that the
strict liability duty to warn is so largely informed by negligence
principles as to be essentially identical to the negligence duty.

Kotler v. American Tobacco Co., 926 F.2d 1217, 1231 (1st Cir. 1990). Accord Hull v. Eaton Corp., 825 F.2d 448, 454 (D.C. Cir. 1987)(per curiam); Gonzalez v. Volvo of America Corp., 752 F.2d 295, 300 (7th Cir. 1985); Birchfield v. International Harvester Co., 726 F.2d 1131, 1139 (6th Cir. 1984); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 466 (7th Cir. 1984); Werner v. Upjohn Co., Inc., 628 F.2d 848, 858 (4th Cir. 1980).

The D.C. Circuit put it thusly:

[S]trict liability in tort imposes liability for unreasonably dangerous
products regardless of the fault of the defendant. If a product is
dangerous only because it has not been labelled properly, however,
the fault of the defendant is relevant to the question whether the
labeling is adequate. Such a product is unreasonably dangerous
only if it was reasonably foreseeable that the product, as labelled,
would cause injuries.

Young v. Up-Right Scaffolds, Inc., 637 F.2d 810, 814 (D.C. Cir. 1980)(emphasis in original).

And Prosser states:

[N]otwithstanding what a few courts have said, a claimant who
seeks recovery on [a theory of failure to warn] must, according
to the generally accepted view, prove that the manufacturer-designer
was negligent. [23ASR2d87] There will be no liability without a
showing that the defendant designer knew or should have known
in the exercise of ordinary care of the risk or hazard about which
he failed to warn....Although this ground of recovery is sometimes
referred to as strict liability, it is really nothing more than a ground
of negligence liability described as the sale of a product in a
defective condition, subject, however, only to the defenses and
other limitations on liability applicable to strict liability rather than
negligence.

W. Prosser & P. Keeton, The Law of Torts §99, at 697 (5th ed. 1984).

Section 402A comment j itself suggests the application of a negligence standard to failure to warn cases. It reads, in part:

In order to prevent the product from being unreasonably
dangerous, the seller may be required to give directions or
warning, on the container, as to its use....Where, however, the
product contains an ingredient to which a substantial number
of the population are allergic, and the ingredient is one whose
danger is not generally known, or if known is one which the
consumer would reasonably not expect to find in the product,
the seller is required to give warning against it, if he has
knowledge, or by the application of reasonable, developed
human skill and foresight should have knowledge, of the
presence of the ingredient and the danger (emphasis added).(1)

The Seventh Circuit noted that "This similarity [between negligence and strict liability in failure to warn cases] exists because the language and concepts of reasonableness which determine unreasonable risk under Section 402 A are the same concepts used in a negligence case." Gonzalez v. Volvo of America Corp., 752 F.2d 295, 300 (7th Cir. 1985). [23ASR2d88]

Some courts have refused to apply an identical standard to negligence and strict liability actions. They tend to hold the seller or manufacturer to a higher duty of care in a strict products liability action than in a negligence action; this should not, however, distract from the fact that they, too, speak in the negligence language of standard of care. See, e.g., Pavlides v. Galveston Yacht Basin, 727 F.2d 330, 338 (5th Cir.1984) (manufacturer is to be held to standard of an expert); Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1088 (5th Cir. 1973), cert.denied, 42 L.Ed.2d 107 (1974)(same); Anderson v. Owens-Illinois, Inc., 799 F.2d 1, 4 (1st Cir. 1986)(same).(2)

It should be noted, however, that for the issue at hand, the standard of knowledge to which Samoa Gases is held is of little or no consequence.(3) The danger of oxygen's volatility when combined with [23ASR2d89] petroleum products and/or open flame or sparks is not so esoteric that an expert should be aware of it while a "mere merchant" could remain safely ignorant. The danger should be apparent to anyone in the field of selling compressed gases, expert or no.(4) It is clear that such a seller has a duty to warn of the inherent dangers of its products. However, this duty is not static and independent of its audience. Rather, it is influenced by those towards whom it is owed. [23ASR2d90]

In judging the effectiveness of a warning, most courts, interpreting Restatement (Second) of Torts § 402 A comment i or § 388 comment k,(5) have held that it is necessary to take into account the parties towards whom the warning is directed. "Where, for example, a product is marketed solely to professionals experienced in using the product, the manufacturer may rely on the knowledge which a reasonable professional would apply in using the product." Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1087, note 20 (5th Cir. 1973).

It is relatively clear that, in some instances, the expertise of the consumer may be sufficient to completely obviate the need for a warning. There are several cases sufficient to support the statement that the manufacturer's or seller's duty to warn is unnecessary when the consumer is an expert who has or should have knowledge of the dangers of the product. See, e.g., Jacobson v. Colorado Fuel and Iron Corporation, 409 F.2d 1263, 1271 (9th Cir. 1969)(applying Montana law); Martinez v. Dixie Carriers, 529 F.2d 457, 466 (5th Cir. 1976)(in admiralty); In re Incident Aboard D/B Ocean King on 8/30/80, 813 F.2d 679, 686 (5th Cir. 1987)(in admiralty); Helene Curtis Industries v. Pruitt, 385 F.2d 841, 860 (5th Cir. 1967)(applying Texas law); White v. Amoco Oil Co., 835 F.2d 1113, 1118 (5th Cir. 1988)(applying Louisiana law); Koonce v. Quaker Safety Products & Mfg., 798 F.2d 700, 716 (5th Cir. 1986)(applying Texas law); Strong v. E.I. DuPont de Nemours Co., Inc., 667 F.2d [23ASR2d91] 682, 686 (8th Cir. 1981)(applying Nebraska law); Andrulonis v. U.S., 924 F.2d 1210, 1222 (2nd Cir. 1991)(applying New York law).

In addition, courts have held that a manufacturer need not warn of an "open and obvious danger" associated with their products. "A manufacturer is under no duty to guard against injury from a patent peril or from a source that is manifestly dangerous. There is no duty to warn of obvious common dangers connected with the use of a product." Pressley v. Sears-Robuck and Co., 738 F.2d 1222, 1223 (11th Cir. 1984)(applying Georgia law). "[A] product is not defective if the peril from which injury could result is patent or obvious to the user." Wilson v. Bicycle South, Inc., 915 F.2d 1503, 1507 (11th Cir. 1990)(applying Georgia law). This rule, however, has been explicitly rejected by other courts. See, e.g., Lovell v. Marion Power Shovel Co., Inc., 909 F.2d 1088, 1090 (7th Cir. 1990)(under Indiana law, "open and obvious" rule does not act as an absolute bar to recovery); Harris v. Karri-On Campers, Inc., 640 F.2d 65, 76 (7th Cir. 1981)(West Virginia law rejects the "seldom used and often criticized" obvious danger doctrine). The "open and obvious" doctrine seems to be nothing more than a variant of the "expert user" defense with a lower standard of knowledge on the user's part. See, e.g., Gracyalny v Westinghouse Elec. Corp. 723 F.2d 1311, 1319 (C.A.Wis. 1983)(status of the user determines whether the danger is "open and obvious").

Application of either the "open and obvious" or the "expert user" doctrines, however, should be made cautiously, for they fully preclude recovery by the injured party, and resemble the application of the "all-or-nothing" defenses of assumption of risk and contributory negligence, which have been definitively rejected by courts sitting in admiralty. See, e.g., National Marine Service Inc. v. Petroleum Service Corp., 736 F.2d 272, 276 (5th Cir. 1984)("all-or-nothing" defenses, including assumption of risk and contributory negligence are inequitable in their operation because they fail to distribute responsibility in proportion to fault; comparative fault should be applied instead). In fact, the "expert user" defense can be viewed as more draconian than assumption of risk. Unlike the latter defense which requires the plaintiff's actual consciousness of the danger, id. at 276, the "expert user" defense merely requires that "manufacturers need not warn sophisticated users of dangers that they should know of" (White v. Amoco Oil Co., 835 F.2d 1113, 1118 (5th Cir. 1988)(emphasis added)), a much less demanding showing. But see In re Incident Aboard D/B Ocean King on 8/30/80, 813 F.2d 679, 686 (5th Cir. 1987)(sophisticated user defense applies "only when the user knew of the particular danger"). Indeed, inquiry into what a plaintiff should know would unavoidably devolve into a contributory negligence analysis. This latter doctrine has been specifically rejected as [23ASR2d92] a defense to strict products liability actions. See § 402 A comment n ("Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.").(6) But see Young v. Up-Right Scaffolds, Inc., 637 F.2d 810, 815 (D.C.Cir. 1980)(contributory negligence, assumption of risk and misuse are not always interchangeable). Contributory negligence as a bar to recovery has also been explicitly rejected by the Legislature of American Samoa. A.S.C.A. § 43.5101.

Under the comparative fault approach, which we adopt today, the knowledge of the user is not disregarded. It is, rather, one element in the calculus of liability determination. This approach eliminates the inequities which "all-or-nothing" defenses can perpetuate, but does not reject the rationale behind these rules. Indeed, if the court were to find the user of a product to be inexcusably ignorant, the result under comparative fault might be the same as that resulting from the "expert user" or "open and obvious" danger defenses.

While Samoa Gases attempted at trial to establish that it did, in fact, label the cylinders supplied to the Ocean Pearl, its trial brief focused on the defense of misuse, the successful establishment of which precludes a finding of duty.(7) This will be considered further below.

One additional consideration in the instant case is the ease and minimal costs involved in labelling the cylinders. Although it discussed defective design rather than failure to warn, Vickers v. Chiles Drilling Co., 822 F.2d 535 (5th Cir. 1987) seems relevant. The plaintiff in Vickers was a seaman who was attaching a large air compressor to a crane, in the process of removing it from a ship. He climbed onto the roof of the air compressor, attached the hook of the crane to the lifting eye of the compressor, then fell while jumping back down to the deck of the ship. In his suit against the manufacturer of the air compressor, the court, sitting in admiralty, found the [23ASR2d93] compressor to be defectively designed, solely because it did not bear any notice of its internal access to the lifting eye. "[T]o decide whether a product is defectively designed and unreasonably dangerous, we may consider how easily the manufacturer could have designed a safer alternative product....[The manufacturer] easily could have attached a notice to the compressor, explaining the availability of the interior access to the roof." Id. at 539. This balancing of ease and cost of improvement is relevant here, for in failure to warn actions, as in Vickers, it is the failure to communicate information about the product which is the essence of the tort.

V. Misuse

A seller obviously cannot warn of every possible use. "A product is not in a defective condition when it is safe for normal handling and consumption." § 402 A comment h. "[I]n admiralty cases, the 'normal' use includes all reasonably foreseeable uses, including misuse. This is the virtually universal rule in all states." Vickers v. Chiles Drilling Co., 822 F.2d 535, 537 (5th Cir. 1987). The Ninth Circuit, applying California law, said, "A plaintiff may recover from the manufacturer even if the product is used in a manner not intended by the manufacturer, and therefore unanticipated by warnings or other instructions, if the unintended manner of use is reasonably foreseeable to the manufacturer." Kay v. Cessna Aircraft, 548 F.2d 1370, 1372 (9th Cir. 1977)(citations omitted)(emphasis in original). (8)

Misuse, like assumption of risk, is a negligence concept. Stueve v. American Honda Motors Co., Inc., 457 F.Supp. 740, 752 (D. Kan. 1978). Therefore, like assumption of risk and contributory negligence, it should properly be subsumed under the doctrine of comparative fault. Although the court has not found any admiralty decision which specifically held that misuse was to be supplanted by or factored into the comparative fault calculus, several courts not sitting in admiralty have suggested as much. See, e.g., Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598, 603 (D. Idaho 1976)("rationale of comparative negligence was meant to apply as well in a products liability action, such that misuse may not be an absolute bar to recovery"); DeLeon v. Commercial Mfg. and Supply Co., 195 Cal. Rptr. 867, 872 [23ASR2d94] (Cal. App. 1983)("[E]ven if plaintiff's acts could be considered misuse of the product and contributory negligence, this would not foreclose an action in products liability but only reduces any award she might receive in an amount proportionate to the degree she is deemed to be at fault."). Cf. Courturier v. Heidelberger Druckmaschinen, 341 N.W.2d 226, 228 (Mich. App. 1983)(misuse not a complete defense to breach of warranty action). See generally, Annotation, Products Liability: Product Misuse Defense, 65 A.L.R.4th 263 (1988).

The reasoning of these last cases seems confused, however. If misuse is to be defined as unforeseeable use only, then rejecting it as a complete defense to liability removes the foreseeability issue from failure to warn cases and transforms them into actions based upon absolute liability. This would require the manufacturer or seller to warn of dangers of which it did not, and could not, know.(9) This conundrum is the result of semantics. In order for the label "misuse" to have any meaning at all independent of contributory negligence, the application of that label to a plaintiff's conduct must always serve as a complete bar to recovery.(10) The alternative is to impose absolute liability upon manufacturers and sellers for their products. This is not only contrary to the case law cited above in section IV.B., but would also make manufacturers absolute insurers of their products if used in an unforeseeable manner, and would ultimately result in wasted time as litigants argued over the proper label to apply to a plaintiff's conduct.

The better method, and the one which we adopt today, is to do away with labels altogether, and simply weigh the fault of Samoa Gases directly against that of all other causal parties. This is essentially the approach advocated by the Ninth Circuit for admiralty cases in its jurisdiction. "[A]ll of plaintiff's conduct contributing to the cause of his loss or injury can be compared to the defendants' liability, regardless of the labels attached to that conduct." Pan-Alaska Fisheries, 565 F.2d at [23ASR2d95] 1139. This seems to be the most consonant with the paradigm of comparative fault. If the conduct of the Ocean Pearl's crew was completely unforeseeable (i.e., constituted misuse), then the scales would fall completely in favor of Samoa Gases, and there would be no liability and no recovery. This approach has been taken by at least two states. See Kennedy v. City of Sawyer, 618 P.2d 788, 798 (Kan. 1980); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex. 1984).

However, it is still necessary to address the real issue which the misuse defense targets. Translated into the language of comparative fault, this question is: Even if the standard label warning of the hazards of exposing oxygen to petroleum products was present, would it have prevented the accident at hand? The principles of comparative fault again help frame this issue, through the concept of proximate cause.

VI. Proximate Cause

Proximate cause, like misuse, contributory negligence and assumption of risk, has been melded with the concept of comparative fault. Indeed, the Ninth Circuit has stated that "perhaps the term 'comparative causation' is a conceptually more precise term than 'comparative fault,' since fault alone without causation does not subject one to liability." Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129, 1139 (9th Cir. 1977)(citing Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598, 603 (D. Idaho 1976)). See also Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427 (Tex. 1984)(comparative causation more accurate than comparative fault); Lewis v. Timco, 716 F.2d 1425, 1431 (5th Cir. 1983)(same); Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42, 47 (Alaska 1976) (Rabinowitz, J., concurring)(same); Daly v. General Motors Corp., 144 Cal. Rptr. 380, 386 (1978)("equitable apportionment or allocation of loss" more descriptive than "comparative fault"). In short, once the legal fault of Samoa Gases is established, then its actions are to be weighed against all other causal factors, and liability is to be assigned upon this basis. Thus, having found Samoa Gases at fault for failure to label, we need only to decide, for the purposes of the first part of this bifurcated trial, whether the failure to label the cylinders played any causal role in the accident. Interocean alleges that Richard Gonsalves, chief engineer of the Ocean Pearl, read the label on the can of starter fluid, and would have done the same for the oxygen cylinders. We are inclined to agree. Thus, the failure to label was, at least,a proximate cause of the accident, to be weighed against the conduct of the other causal actors (i.e., the crew of the Ocean Pearl, the suppliers of the diesel fuel and the ether based starter fluid). [23ASR2d96]

CONCLUSIONS

Having enunciated the approach we have taken in this case, and based on the foregoing findings of fact, we conclude as follows:

1. Since (a) the oxygen cylinders supplied by Samoa Gases to the Ocean Pearl did not have a warning label adhered to them (i) at the time of delivery, or (ii) immediately prior to the explosion, a reasonably foreseeable condition at that time, and (b) the unlabelled cylinders were unreasonably dangerous, and (c) the lack of labels was a proximate cause of the accident aboard the vessel, Samoa Gases is liable to Interocean.

2. Since some of the crew of the Ocean Pearl were experienced in the use of oxygen, at least for welding purposes, and should have known of the danger of using it in the circumstances which brought about the explosion, the crew and, therefore, Interocean also bear some significant quantum of responsibility for the accident.

Determination of the exact percentages of fault to be assigned to each party will be made after the second part of this bifurcated trial, which will specifically address the issue of damages. The causal role of the suppliers of the diesel fuel and the starter fluid will be considered at that time.

**********

1. The illustrative example of allergies in Comment (j) probably reflects the fact that strict products liability originated to protect consumers from impure food and drink. See Restatement (Second) of Torts § 402 A comment b.

2. Although Anderson did state that the manufacturer or seller was to be charged with expert knowledge in products liability cases based upon failure to warn, as opposed to mere trade knowledge, that same court later stated that Anderson stood for the proposition that "since even expert knowledge does not rise to the level of perfectly developed knowledge, a showing must still be made that the state of knowledge supports the conclusion that a certain risk is knowable--or what the law calls `reasonably foreseeable'...." Kotler v. American Tobacco Co., 926 F.2d 1217, 1232 (1st Cir. 1990).

3. Perhaps the main import of equating the strict liability duty with the negligence duty is that it makes analysis under either standard equivalent. E.g., Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311, 1317 note 11 (7th Cir. 1983)(impliedly incorporating § 388 of the Restatement (Second) of Torts and its duty of care into § 402 A analysis, and vice versa); Russel v. G A F Corp., 422 A.2d 989, 992 (D.C.App. 1980)(same). The Restatement (Second) of Torts § 388 reads:

One who supplies directly or through a third person a chattel
for another to use is subject to liability to those whom the
supplier should expect to use the chattel with the consent of the
other or to be endangered by its probable use, for physical harm
caused by the use of the chattel in the manner for which and by
a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely
to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel
is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous
condition or of the facts which make it likely to be dangerous.

However, it is important to keep in mind that substantial differences between common law negligence and strict products liability do exist outside of the area of standard of care.

4. There was some mention at trial that the label proffered by Samoa Gases as being of the type that was affixed to the cylinders was in compliance with Occupational Safety and Health Administration ("OSHA") and Compressed Gas Association standards. However, "The Occupational Safety and Health Act, which provides the legislative grant of authority to OSHA, specifically states that it is not intended to affect the civil standard of liability.....To use OSHA regulations to establish whether a product is unreasonably dangerous is thus improper." Minichello v. U.S. Industries, Inc., 756 F.2d 26, 29 (6th Cir. 1985). But cf. Rexrode v. American Laundry Press Co., 674 F.2d 826, 832 (10th Cir. 1982)(assuming the relevance of OSHA standards in context of feasibility of safer product design); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1144 (5th Cir. 1985)(taking judicial notice of pertinent OSHA guidelines); Lorenz v. Celotex Corp., 896 F.2d 148, 151(5th Cir. 1990)(compliance with government safety standards constitutes strong and substantial evidence that a product is not defective, but is not automatically preclusive of the issue of liability). We disagree with the reasoning of Minichello and instead adopt the approach of these other courts. We therefore find the violations of OSHA and Compressed Gas Association standards relevant as to the level of knowledge to which a dealer of such gases should be held.

5. § 402 A comment i states that, for a product to be unreasonably dangerous, it must be "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."

§ 388 comment k states:

One who supplies a chattel to others to use for any purpose is
under a duty to exercise reasonable care to inform them of its
dangerous character in so far as it is known to him....but only if,
he has no reason to expect that those for whose use the chattel
is supplied will discover its condition and realize the danger
involved.

See supra note 3.

6. § 402 A comment n does specifically accept the defense of assumption of risk; however, this defense has been thoroughly rejected by courts sitting in admiralty. See, e.g., Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129 (9th Cir. 1977)(rejecting defense of contributory negligence in favor of comparative fault paradigm in strict products liability actions in admiralty).

7. See Jones v. Menard, 559 F.2d 1282, 1285 (5th Cir. 1977)(seller has no duty to warn against unforeseeable uses of its products).

8. This is consistent with the idea that foreseeable change in the condition of the product will not relieve the seller of liability. See supra Section IV.A.

9. "[I]f a danger is unknowable, how can effective warning be given? To warn that a product may have unknown and unknowable risks is to give no meaningful warning at all." Anderson v. Owens-Illinois, Inc., 799 F.2d 1, 4 (1st. Cir. 1986).

10. Some jurisdictions not applying comparative fault principles have defined misuse in terms of foreseeability, such that it would serve as a complete bar to recovery. See Annotation, Products Liability: Product Misuse Defense, 65 A.L.R.4th 263, 295 §8 (1988), and cases cited therein. We reject this approach as incompatible with comparative fault.

In re Three Minor Children (Juv. Nos. 68-91, 69-91, 70-91),


ÿWPCá  %3aÙ“KW!´³gÙ“P/"(Ë{~Ç Š”Ù®%³v2´Í¨x¡“ Kn¸9©XÆ$c2[0jµæ XÎÏ[‡o{ÒGǏVJ˜i”QÓƒ‘>µ˜sÚ÷þC_ $1ÝŒxÁJJŽtÖÁS¾£b‚«{W>Kv¾ábôb]õ3OÑõíh«"k@¼¼é¥Qæóz‰×¬¬-Í0<µˆÁîzˆßñ?Æ« `˜•ŠxÒØÃ+ý1D Sò¹Ä×vÇ3¶Ta@ɤ\~ªæ#_Ö ‚a‡ò·rj¼SÐ-é)N½r9ù©ÃàÆ"!eN}ìæ¾H±”öš³IU_*u¨¯oOÕ™”&T»:,’³œÓ¬³5¶º];|¥+‚ª«@P“ ,ŽÍü…gUe›|"MDrSºGOd¯ñØÞÝæNó~¸ºH¤ik BŸ¥ë ÎjJG~«±òa»P:!óæÍ(^Ò®b ¶ ºº‰Œ€ {J¼$³˜¸š QÐ…#ò4`A…×…PNÜÊψ…b´£—3'R•p¾ŠÉ¬®/.™’©ˆ/Øý­s YŽ¥7!d®>¤ØÚÊšî…bPJfiÇ^4Ž’Z‡ íþlàFý„ZCÍ-ÅšWsxÁ8§9zd 0à Í mÍ#ÁäUN¥ %óNù ~û¶y D-/U>\pš?¢ ^ ¬ w¸ 4¼ Ð ß (›Å©$¡¡ÔUSUS.,ÔÓK€ (€X°KÓÔ€ XîXXXÔÔ€ XîXXXîÔ ƒÿU‹ÿÀÀÀ˜0&Öd9 Z‹6Times New Roman RegularX ˜C:\PROGRA~1\Corel\WORDPE~1\Template\CUSTOM~1\Web\wp9web.wptC:\Program Files\Corel\WordPerfect Office 2000\Template\Custom WP Templates\Web\wp9web.wpt)!ÈÈÈÈdxdx&Öd9 Z‹&Times New RomanC:\PROGRA~1\Corel\WORDPE~1\template\CUSTOM~1\poplar.gif pC:\PROGRA~1\Corel\WORDPE~1\template\CUSTOM~1\poplar.gifC:\Program Files\Corel\WordPerfect Office 2000\template\Custom WP Templates\poplar.gif8Ï Ø.wÐoDwÐo,°ÑJ¬?$Ï\R¬?$Ï°ã`ÔúO¬?Ðo€YˆàΰÔ}qÝs”°ã?š,L Ÿn,3|xÝ ƒÅ©!ÝÔUSUS.,ÔÓK€ (€XKÓÔ€ XîÌXXXÔÔ€ XîÌXX XîÌÔÝ  ÝÔ_ÔÓ  Óò òIn€the€Matter€of€THREE€MINOR€CHILDREN€ó óÐ ÜÜ Ðò òHigh€Court€of€American€Samoa€Ð ²² ÐTrial€Division€ó óÐ ¬¬ Ðò òÔ_ÔJUVÔ_Ô€No.€68-91€Ð ‚‚ ÐÔ_ÔJUVÔ_Ô€No.€69-91€Ð || ÐÔ_ÔJUVÔ_Ô€No.€70-91€ó óÐ vv Ðò òJanuary€29,€1993ó óÐ L L  Ðò ò__________€ó óÐ " "  ÐÓ  Óò òRelinquishment€of€parental€rights€must€be€predicated€on€the€best€interests€of€all€concerned,€but€disruption€of€natural€familyÐ ø ø  Ðrelationships€may€not€be€in€the€children's€long-term€best€interests.€Ô_ÔA.S.C.A.Ô_Ô€ðð€45.0402(e).€ó óÐ ò ò  ÐBefore€RICHMOND,€Associate€Justice,€Ô_ÔTAUANU'UÔ_Ô,€Chief€Associate€Judge.€Ð ÈÈ  ÐCounsel:€For€Petitioners,€Roger€K.€Ô_ÔHazellÔ_ԀРžž  Ѐ€€€€This€matter€came€on€regularly€for€hearing€on€January€15,€1993,€upon€the€natural€parents'€petitions€to€relinquish€their€parental€rights€toÐ tt  Ðtheir€three€minor€children€to€enable€the€children's€availability€for€adoption€by€their€paternal€grandmother.€Ð nn  Ѐ€€€€The€three€children€are,€respectively,€ages€four,€five€and€six€years.€They€live€with€their€father,€age€37€years,€and€mother,€age€30Ð DD Ðò ò[23ASR2d114]€ó óyears,€who€love€their€children€and€provide€significantly€for€their€children's€emotional€and€physical€care.€TheirÐ >> Ðgrandmother,€age€68€years,€lives€nearby.€At€this€time,€this€family€group's€income€is€derived€principally,€if€not€entirely,€from€theÐ 88 Ðgrandmother's€retirement€pay€and€Social€Security€benefits€and€another,€unmarried€son's€earnings.€Clearly,€she€contributes€financially€and€inÐ 22 Ðother€immeasurable€ways€to€her€grandchildren's€upbringing.€Ð ,, Ѐ€€€€The€parents'€desire€to€relinquish€their€parental€rights€appears€to€be€voluntarily€motivated€in€recognition€of€the€grandmother's€kindnessÐ  Ðtowards€their€children€and€their€impecunious€situation.€The€father€apparently€suffers€from€an€emotional€disorder€and€does€not€maintainÐ üü Ðsteady€employment.€The€mother€is€unemployed.€Ð öö Ѐ€€€€The€grandmother€appears€to€still€be€in€good€health.€However€,€she€foresees€the€day€in€due€course€when€her€grandchildren€will€return€toÐ ÌÌ Ðtheir€loving€parents'€total€care.€She€also€knows€that€the€family€members€presently€living€together€are€close-knit€in€the€Samoan€way€of€life.Ð Æ Æ  ÐShe€admits€that€the€real€purpose€for€the€adoption€is€enhancement€of€Social€Security€benefits.€Ð À!À! Ѐ€€€€Relinquishment€of€parental€rights€must€be€predicated€on€the€best€interests€of€all€concerned.€Ô_ÔA.S.C.A.Ô_Ô€ðð€45.0402(e).€The€circumstancesÐ –#–# Ðhere€are€factored€on€the€grandmother's€and€parents'€immediate€best€interests.€Higher€Social€Security€benefits€are€not,€as€such,€detrimentalÐ $$ Ðthe€children's€interests.€However,€disruption€of€the€natural€relationships€existing€in€this€situation€is€not€in€the€children's€more€important,Ð Š%Š% Ðlong-term€best€interests.€Ð „&„& Ѐ€€€€The€petitions€should€be€and€are€denied.€Ð Z(Z( ÐÓ  Ó*********€

Huff v. Brown,


ADELINE PRITCHARD HUFF, Plaintiff

v.

TAUMAOE BROWN and DOES I-X, Defendants.

High Court of American Samoa
Land and Titles Division

LT No. 23-85

___________

In determining the correct boundaries of a parcel of land, the court may compare and overlay different surveys of the land, as well as consider physical landmarks, in order to identify boundaries on which agreement exists and then proceed to resolve the boundary discrepancies among the surveys.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and MATA`UTIA, Associate Judge.

Counsel: For Plaintiff, John L. Ward II
For Defendants, Gata E. Gurr

The first trial of this boundary dispute, on January 13, 1987, ended with the court's ruling that plaintiff Adeline Pritchard Huff ("Huff") had failed to prove her case, at least against named defendant Taumaoe Brown ("Brown"). In the court's view, most of the fence erected by Brown appeared to reflect the common boundary between Huff's and the Gurr estate's real properties more accurately than the resurvey submitted by Huff at this trial.(1) Brown, who is related to the Gurr family, was an occupant but not the owner of a portion of the Gurr estate's land immediately adjacent to Huff's land. As such, the court further pointed out that this common boundary could not be finally [23ASR2d116] adjudicated without joinder of the Gurr estate as the owner of the real property defended by Brown. Brown died after the first trial.

On May 22, 1987, the court granted Huff's motion for a new trial and vacated the judgment. The court again suggested the joinder of necessary parties for final adjudication of the common boundary dispute. When further efforts to reconcile the common boundary did not fully succeed, court-ordered resurveys were authorized and the Gurr estate was joined as a defendant. The parties also stipulated that at the new trial (1) the common boundary between the parties' real properties would be the only issue requiring adjudication and (2) testimony would be limited to the parties' surveyors. The new trial proceeded in accordance with this stipulation on November 24, 1992, with a site visit on January 22, 1993.

FINDINGS OF FACT

The parties' real properties at issue are located in an area called "Malaloa," in Pago Pago, American Samoa. A short history of these lands is documented in the file. Both parcels are "freehold lands," as defined in A.S.C.A. § 37.0201(b). Huff's land was transferred in 1896 by Jane S. Foster to Harry Jay Moors, who conveyed it pursuant to a court grant issued in 1897 to one Alafaio. By 1932 the Jewett family had acquired this land, and in 1964, Mary Jewett Pritchard and her husband, Ronald E. Pritchard, transferred it to Huff. Edwin W. Gurr purchased his land between 1900 and 1904, and except for lots conveyed to others at various times, this land descended to the Gurr estate, which presently holds the title.

The Gurr estate's land borders the entire south side and substantially the inland portions of the east and west sides of Huff's land. The land along the remainder of the east side was conveyed sometime in or prior to 1922 by the Gurr family to the Kneubuhl family, who in turn eventually transferred the title to the immediate portion of this tract to Margaret K. Landrigan, the present owner and a Kneubuhl family member. The land along the remainder of the west side was acquired by SSP Co., Inc., during or prior to 1922, and then, no later than 1934, by Burns Philp (SS) Co., Ltd.

Originally, the north side of Huff's land was bounded by the high water mark of Pago Pago Bay. The then existing main road crossed her land, for the most part if not entirely, within the legal description in the 1897 court grant ("1897 survey"). In the 1960s, filling moved the [23ASR2d117] shoreline considerably northward, and the road was widened, straightened and essentially relocated outside the northern boundary. During this time, the northern boundary was adjusted to a straight line along the south side of the relocated road. This adjustment did result in some diminution of Huff's land but, as discussed below, does not impact the present common boundary dispute. The history of the northern boundaries of Landrigan's and Burns Philp's lands appears to be similar.

Huff's land was described by metes and bounds (showing distances in links, one link being 7.92 inches) in the 1897 survey, and in the 1964 deed (probably a mere copy of the 1897 survey). A 1934 resurvey of the Gurr estate's land, which necessarily included the metes and bounds of Huff's land, was apparently done, at least in part, to convert the distances in an earlier survey from links to feet and contained a legal description substantially the same as the description in the first two documents. A fourth document, undated and otherwise unidentified, attempted to retrace Huff's land, using distances in feet, and reached similar results, but it showed an "error of closure." Omission of one boundary leg is the apparent cause of this error.

According to the 1897 survey and 1964 deed, the point of beginning ("POB") of the metes and bounds in these four documents, whether depicted in survey form or legal description, is "the northwest corner of the high water mark near the mati tree standing on the main road;" and the concluding two boundary legs proceeded "along the high water mark . . . back to the starting point." It actually appears from the survey drawing in the 1897 survey that the mati tree was on the inland side of the old road, the northwest corner was within the road, and the high water mark was a short distance north of the sea side of the road. In any event, the mati tree no longer exists, perhaps the victim of the road work in the 1960s. Moreover, none of the other natural boundary markers, all trees, indicated in the 1897 survey and the 1964 deed, still exist in clearly identifiable form. On the other hand, the metes and bounds do refer to the boundary "passing five links (3.3 feet) distant from a concrete wall near the road to the high water mark" at the northeast corner. This reference will be discussed below.

The parties have sought to resolve the common boundary dispute through the use of resurveys of the legal description in the 1897 survey. These resurveys were done by recognized surveyors, Meko A. Tua`olo in 1985 (the "Meko resurvey"), Mulivanu Tua`olo in 1987 (the "Mulivanu resurvey"), and William A. Sword in 1991 (the "Sword resurvey"). The Meko and Sword resurveys were prepared at Huff's [23ASR2d118] request, while the Mulivanu resurvey was done at the Gurr estate's call.

All three surveyors used virtually identical POBs at the northwest corner of Huff's land, which is also the northeast corner of the immediately adjacent Burns Philp's land. No gap has ever existed between the Huff and Burn Philp properties. Although we do not know when a pin was originally set, a pin was reset there during the last survey of Burns Philp's land in 1977 (the "Burns Philp survey") and a survey pin is located there. Thus, this is a logical POB. However, the positioning of this POB cannot be determined with complete confidence without knowing the precise location of the missing mati tree. Moreover, the POB coordinates on the three surveys are also slightly different from the POB coordinates of the (presumably) same point in the Burns Philp survey. Hence, we cannot be absolutely certain of the POB's accuracy in the three resurveys with respect to the POB in the 1897 survey. Nonetheless, this location is sufficiently accurate as a basis for resolving the present common boundary dispute and has been mutually accepted by the parties.

The major question in dealing with the three recent resurveys arises with the boundary leg immediately after the initial boundary legs to the south of the POB. The Mulivanu resurvey plots two such legs at slightly different angles immediately south, as the 1897 survey shows, while the Meko and Sword resurveys use a single leg (although the Sword resurvey shows the distances of both legs), coinciding with the same leg in the Burns Philp survey and terminating at an existing pin. This pin was found during the Burns Philp survey, but we do not know when it was first placed there. The discrepancy comes where the 1897 survey next takes a westerly dogleg. The Mulivanu resurvey displays the distance of this leg at a reasonably accurate 75.17 feet, as shown in the 1897 survey. The Meko resurvey shortens the distance to 44.67 feet, while the Sword resurvey shows it at 49.79 feet. There are also fairly substantial directional variations for this leg in the three resurveys. The Sword resurvey is closest to the 1897 survey, but again it exactly follows the boundary shown in the Burns Philp survey, rather than precisely with this leg in the 1897 survey.

Our evaluation of the three recent resurveys indicates that overall the Mulivanu resurvey most closely approximates the 1897 survey. However, the problem is not resolved by this finding. Too many "calls" (the surveyors' term for field evidence) demonstrate that the 1897 survey is not precisely correct and, hence, limit the usefulness of the Mulivanu resurvey to resolve the dispute. [23ASR2d119]

A survey pin is located at the northwest corner of Landrigan's land to the east of Huff's land. This pin appears to have been there a substantial period. In any event, no gap between Huff's and Landrigan's properties has ever existed, just as no gap has ever separated Huff's and Burns Philp's properties at the western end. In fact, the driveway leading to a former residential building on Huff's land intersects the main road immediately adjacent to the northeast corner.

The Meko and Sword resurveys do straighten the northern boundary of Huff's property, along the south side of the present main public road. This is contrary to the two legs shown in the 1897 survey and the Mulivanu resurvey. However, the 1897 survey drawing clearly locates the northeast corner on the sea side of the original road. Thus, we are persuaded that the fill and road work in the 1960s resulted in relocating the present road substantially, if not entirely, outside of both the northwest and northeast corners set out in the 1897 survey. Furthermore, although it appears that the concrete wall near the northeast corner, as noted in the 1897 survey, may have disintegrated to some extent, we believe that it was rebuilt at the same location. Hence, we are satisfied that the northeast corner is accurately depicted in the Meko and Sword resurveys, as is, for present purposes, the northwest corner in all three resurveys.

There is additional supporting field information. A pin is located at the southwest corner of Landrigan's land, indicating another point on the eastern boundary of Huff's land. Further south a rock wall with kapok tree fenceposts exists for some distance, again suggesting the boundary line between Huff's land and, at this point, the Gurr estate's land. Along the southern boundary area, near the southwest corner, several 30-foot kapok trees are imbedded with rusty barbed wire, a further sign of the disputed common boundary. Finally, there is a line of mango trees further west of Huff's land, which appears to mark the western end of the Gurr estate's land and to be notably further from the western common boundary, 65 feet according to the 1934 resurvey, than is indicated by the Mulivanu resurvey when the three resurveys are overlaid. The Sword resurvey takes all of this information, and the Meko resurvey some of it, into account in reconstructing the actual boundaries intended in the 1897 survey.

Overlay of the three recent resurveys is also particularly informative in other respects. Using the same POB, in essence, they are closely aligned. The southern boundaries are very close. The only truly significant differences are that the Mulivanu resurvey locates the eastern [23ASR2d120] and western boundaries further west and creates a gap between Huff's and Landrigan's lands, which has never existed historically and is contradicted by the driveway entering Huff's land. If the Mulivanu resurvey is moved eastward so that its northeast corner coincides with the existing pin, the eastern, southern and western common boundaries in all three recent resurveys become even more closely aligned. The only vital discrepancy is a gap then created between Huff's and Burn Philp's lands at the west end, due to the length of the westerly dogleg in the 1897 survey and Mulivanu resurvey. However, this gap, which has also never existed historically, would only be an issue between Huff and Burns Philp. This issue is not before us now and has no real impact on the present common boundary dispute.

Based on the evidence, we find that the Sword resurvey accurately describes the boundaries of Huff's land, in accordance with the understanding and recognition of the original owners of Huff's and the Gurr estate's lands, and that the differences between the 1897 survey and Sword resurvey are technical errors in the 1897 survey. Thus, we find that the Sword resurvey correctly depicts the common boundary between Huff's and the Gurr estate's lands.

CONCLUSIONS OF LAW

1. Huff is entitled to have the 1991 Sword resurvey of the freehold land transferred to Alafaio, her antecedent in title by the court grant in 1897, filed with the Territorial Registrar as part of the registration of her title to this land.

2. Huff is entitled to a permanent injunction against the Gurr estate, and all persons having ownership or possessory interests in the Gurr estate's land immediately adjacent to Huff's land, derived from or by the authority of the Gurr estate, their officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them, from trespassing on or interfering with Huff's land, and requiring removal of Brown's encroaching fence and practicable restoration of this area to its state at the time the fence was erected.

Judgment shall be entered accordingly. It is so ordered.

**********

1This resurvey, done in 1985 by Meko A. Tua`olo, is one of three recent resurveys in evidence and used by the parties to assist in resolving this common boundary dispute. All three recent resurveys are discussed below.

Gotoloai; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

REX ENOKA GOTOLOAI, Defendant

High Court of American Samoa 
Trial Division

CR No. 26-92

December 11,1992

__________

Reflecting the "ancient common-law rule" that an officer may make a warrantless arrest if reasonable grounds of a felony's commission exist, even if it occurred outside of his presence, a warrantless arrest is not invalid merely because a warrant could have been obtained but was not. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5.

Arrests and searches are treated differently because "unreasonable search and arrest" provisions are concerned with restricting the use of general search warrants, not with prohibiting warrantless felony arrests; as such, warrantless arrests are permissible if supported by probable cause. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq.

Reflecting the common-law rules, the exceptions to American Samoa's arrest-warrant requirement include arrests of felony suspects near a crime scene shortly after a crime's commission, arrests for misdemeanors and felonies committed in an officer's presence, and arrests based on "reasonable grounds" that a felony or breach of the peace has been committed. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq.

The meaning of statutory provisions generally requiring an arrest warrant must be ascertained in light of the purpose of promoting efficient law enforcement, while protecting individual rights, and of the traditional and almost universal practice of warrantless arrests. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq.

If a suspect "voluntarily, knowingly and intelligently" waives his rights to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible; this applies to both volunteered statements and statements made after the suspect expressly states that [23ASR2d66] he wants to make a statement and does not want a lawyer are admissible as evidence. U .S. Const. Amend. V.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General 
For Defendant, Aitofele T. Sunia

On Motion to Suppress:

The defendant is charged with first degree murder (A.S.C.A. § 46.3502(A)(1)) and tampering with physical evidence (A.S.C.A. § 46.4611). He seeks to suppress certain incriminating statements he made to the police; he claims that the statements were made not only in violation of his rights against self-incrimination but also at a time when he was unlawfully in custody.

DISCUSSION

Article I, Section 5 of the Revised Constitution of American Samoa provides for safeguards against "unreasonable searches and seizures." This provision, parallel to the Fourth Amendment to the United States Constitution, is implemented by A.S.C.A. §§ 46.0801 et seq. Although arrest warrants are generally required, the statute describes a number of situations in which a warrant is unnecessary .One of these situations concerns felony suspects found near a crime scene shortly after a crime was committed. A.S.C.A. § 46.0805(3). Defendant argues, and the American Samoa Government disputes, that his warrantless arrest was unlawful because it did not fall into the aforementioned exception. In addition, the government also contests defendant's claim that his waiver of rights and subsequent confession were not made knowingly and voluntarily.

A. Warrantless Arrest

Under the Fourth Amendment to the United States Constitution, a warrantless arrest is not invalid merely because a warrant could have been obtained but was not. "The necessary inquiry ...[is] not whether there was a warrant or whether there was time to get one, but whether [23ASR2d67]

there was probable cause for the arrest." United States v. Watson, 423 U.S. 411, 417 (1976). Even though a magistrate's review provides the maximum protection of individual rights, requiring such review "would constitute an intolerable handicap for legitimate law enforcement." Id. (The Supreme Court "has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant." Id. at 417-18 (quoting Gerstein v. Pugh, 420 U.S. 103, 113 (1975)). The Fourth Amendment reflects the "ancient common-law rule" that an officer may make a warrantless arrest if reasonable grounds that a felony has been committed exist, even if it occurred outside his presence. This is the prevailing rule under state constitutions and statutes. Id. at 418-19. Arrests and searches are treated differently because drafters of "unreasonable search and arrest" provisions were concerned with restricting the use of general search warrants, not with prohibiting warrantless felony arrests. Id. at 419-20 (quoting Rohan v. Swain, 59 Mass. 281, 284-85 (1850)); see id. at 429-30 (Powell, J., concurring). Almost all of the states have enacted statutes which explicitly authorize warrantless arrests in felony cases if probable cause is present. This "traditional and almost universal standard for arrest without a warrant" is reflected in American Law Institute Model Code of Pre-arraignment Procedure § 120.1 (1975). Id. at 421-22. Both the federal and state governments have long permitted "warrantless public arrests on probable cause rather than [] encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like." Id. at 423-24.

Although American Samoa requires an arrest warrant in most cases, the exceptions described in A.S.C.A. § 46.0805 reflect the common-law rules which lay the foundation for states' warrantless-arrest statutes. These exceptions include arrests for misdemeanors and felonies committed in an officer's presence and those based on "reasonable grounds" that a felony or breach of the peace has been committed. (1)

The purpose of these statutory provisions is to promote efficient law enforcement, while at the same time protecting individual rights. The Fono has decided to provide an additional protection for these rights, beyond the protections required by the United States Constitution and the [23ASR2d68] Revised Constitution of American Samoa. However, the meaning of the statute must be ascertained in light of its purpose. That purpose is to insure the arrest of the person who actually committed the crime, not to create loopholes through which a criminal can escape. The statute must be interpreted so as to further this purpose. If the Fono had wanted to impose additional requirements for warrantless arrests, it could have done so. See, e.g., Dejarnette v. State, 732 S.W.2d 346,349 (Tex. Crim. App. 1987) (Tex. Code Crim. Proc. Ann. Art. 14.04 imposes an additional "offender is about to escape" requirement). However, it chose not to do so. Given the crucial need for effective law enforcement and the "traditional and almost universal standard for arrest without a warrant, " we are disinclined to impose any requirements beyond those in the statute.

The purpose of American Samoa's arrest-warrant requirement is to protect individuals' civil liberties, not to permit criminals to escape justice through legal technicalities. Defendant's arguments that the police failed to comply with the exception set forth in A.S.C.A. § 46.0805 fall into the latter category .His first contention is that the police did not "find" him since he had, in effect, turned himself in. This is nothing more than an exercise in semantics. Second, defendant's claim that he was not "near" the crime scene is without merit. Analogous to the idea of "hot pursuit, " "near" under the statute is a relative term, used to help insure that the suspect arrested is the perpetrator of the crime. The purpose of the statute is primarily to insure that police do not avoid normal arrest procedures merely for the sake of convenience, not to establish a particular geographical "sphere" around a crime scene. In any event, defendant's house, located in the village of Vaitogi, was only about a mile inland from the cliffs--the scene of the tampering charge-- where the defendant had invited the police to meet with him. Third, defendant's contention that he was not arrested a "short time" after the crime was committed is erroneous. Four hours between defendant's phone call and his arrest is short enough. Also, the time lapse did not occur because of any police attempt to violate the defendant's rights. In contrast with routine criminal investigations, the police were in active pursuit of a suspect and sought to apprehend him while the evidence connecting him to the crime was still fresh and in existence. The validity of this concern is borne out by defendant's charge of tampering with physical evidence.

In summary, the police complied with the statutory mandates of the arrest-warrant exception under A.S.C.A. § 46.0805(3). Even defendant concedes that the police had sufficient evidence to constitute [23ASR2d69]"probable cause." Thus, the failure to get an arrest warrant beforehand did not violate the statute's purpose or prejudice the defendant. Therefore, defendant's arrest without a warrant was, in our view, lawful.

B. Voluntariness of Confession

Any confession must comply with the requirements set forth in Miranda v. Arizona, 384 U.S. 436 (1966). Although certain elements have been clarified or modified over the years, Miranda remains the hallmark case governing custodial interrogations by the police. In essence, if a suspect "voluntarily, knowingly and intelligently " waives his rights to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible. Id. at 444. This is especially true if the suspect expressly states that he wants to make a statement and does not want a lawyer, and shortly thereafter he makes a statement. Id. at 475. Volunteered statements are also admissible as evidence. Id. at 478.

Defendant indeed "voluntarily, knowingly and intelligently" waived his constitutional rights, and so his confession is admissible. After informing the defendant that he was a suspect in the shooting, Officer Meuta Mageo, Jr. , utilizing a standard warning form used by the police, led the defendant through the warning process by advising him of his constitutional rights and inquiring whether he understood those rights. After the defendant had acknowledged that he understood his rights and indicated that he wished to make a statement, Officer Mageo similarly explained to him the consequences of waiver. Throughout this procedure Officer Mageo repeatedly emphasized the serious nature of the criminal charge and cautioned the defendant that any statements he made could be used against him at trial. After further informing him that he was waiving his rights by making a statement and that he did not have to make a statement unless he wanted to, the defendant nonetheless responded that he wanted to talk to the officer. Contrary to defendant's statements, the only "plain" fact is that defendant knowingly and voluntarily waived his rights, including his right to counsel and right to remain silent. His claims that he cooperated because he was scared of being beaten by the police appear very much to be nothing more than excuses in hindsight, especially when the defendant himself sought out the police in the first place. We find that the defendant was competent to knowingly and voluntarily waive his constitutional rights. He clearly waived those rights and made a written statement, which was similarly a voluntary decision of his own free will. The defendant was thus not denied his constitutional rights. [23ASR2d70]

CONCLUSION

Defendant's arrest was lawful under the warrantless-arrest exception contained in A.S.C.A. § 46.0805. Furthermore, defendant made a knowing and voluntary decision to waive his constitutional rights to make a statement. Therefore, defendant's motion to suppress is hereby DENIED.

It is so ordered.

*********

1. Cf. A.S.C.A. § 46.0805 and A.L.I. Model Code of Pre-arraignment Procedure § 120.1(1) (cited in Watson, 423 U .S. at 422 n.11).

Fuimaono v. Fuia,


PETER FUIMAONO, Plaintiff

v.

UILI FUIA, LOSA FUIA, TAMAPELE TEVASEU 
and SOFIMA TEVASEU, Defendants.

MERETIANA PALEMIA, LAVASI`I TAUOA, 
CRADDICK DEVELOPMENT, INC., and 
MAGADALENE VAIVAO, Necessary Third-Party Defendants

MERETIANA PALEMIA, Cross-Claimant,

v.

LAVASI`I TAUOA, Cross-Defendant.

High Court of American Samoa
Land and Titles Division

LT No. 9-90

January 29, 1983

__________

An implied easement by necessity is inappropriate as long as some means of access exists.

A civil action may be dismissed if, upon the facts and the law, a plaintiff has shown no right to relief. T.C.R.C.P. Rule 41(b).

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and MATA`UTIA, Associate Judge.

Counsel: For Plaintiff, Charles v. Ala`ilima
For Defendants Uili Fuia and Losa Fuia, Robert A. Dennison III
For Necessary Third-Party Defendant and 
Cross-Claimant Meretiana Palemia, Togiola T.A. Tulafono
For Necessary Third-Party Defendant and 
Cross-Defendant Lavasi`i Tauoa, Afoa L. Su`esu`e Lutu

The trial of this action on December 3 through 8, 1992, including inspection of the land area involved on December 4, 1992, [23ASR2d122] portrayed yet another vivid example of the ongoing slum development in American Samoa. In recent years, badly conceived land subdivisions have unfurled within the relatively expansive plains in American Samoa between Pala Lagoon and the Villages of Ili`ili and Vaitogi. These disordered subdivisions are born of landowners' monetary greed, with little, if any, discernible planning for sensible rights of way for access roads and power, water, sewer and telephone lines. Unregulated land development of this nature is not in the public interest.

In the absence of land subdivision laws, courts are ill-equipped to constructively deal with problems arising out of privately dominated land subdivisions and, at best, can only forge piecemeal solutions in some specific situations. Lands subject to traditional values and properly governed by traditional leaders may fare well enough, even though technical deficiencies for suitable utility installations may occur. However, much of the plains area lacks any effective local governmental authority. The need is evident for legislative enactment and meaningful executive enforcement of a land subdivision law requiring prior approval and continuing oversight of land development plans by an appropriate public agency. The American Samoa Government's three branches in concert could step in and reasonably control this sorry state of affairs.

In this particular case, we are unable to fashion any legally acceptable remedy to correct the right of way problem about which plaintiff Peter Fuimaono ("Fuimaono") understandably complains.

FINDINGS OF FACT

The attached drawing of the land area involved in this action is provided to assist in following the numerous, interrelated transactions described below.

At one time, necessary third-party defendant Lavasi`i Tauoa ("Lavasi`i") owned approximately 26.8 contiguous acres of land, known as "Ogevai," in the plains generally recognized as Tafuna, American Samoa, as individually owned land. In December 1981, he sold 1.05 acres at the southern end of this land ("Lot 12") to necessary third-party defendant Magdalene Vaivao ("Vaivao"), who, under the name Magdalene V. Craddick, also owned a large tract of land below this lot. Contemporaneously, if not in connection with this transaction, Lavasi`i and necessary third-party defendant Craddick Development, Inc. ("CDI") reached an oral agreement that authorized access to both their properties by an undedicated dirt road extending from the road (now paved) at the [23ASR2d123] northeast corner along the eastern boundary of Lavasi`i's land and turning westward into these properties ("ROW 1").(1)

In May 1984, Lavasi`i first conveyed another acre of this land ("Lot 10") to his sister, necessary third-party defendant Meritiana Palemia ("Meritiana"), another sister Vaililo Werner, who is not a party, and a brother Aniga Su`a, Jr. ("Aniga"), who is also not a party, as joint owners. In September 1984, he transferred 9.02 acres of this land ("Tract B") to the same three siblings. Tract B lies immediately to the north of Lot 12 and encompasses Lot 10. Lot 10 is at the eastern end of Tract B. The Tract B transaction was a part of the resolution of legal disputes between Lavasi`i and these siblings. At this point, Lavasi`i retained ownership only of the northern 8.73 acres of his original land ("Tract A").(2)

The three siblings agreed in turn to divide Tract B equally among themselves.(3) Meritiana apparently obtained the eastern one-third section and retained approximately one-half acre ("Lot 3") within it for her residence. Lot 3 is located southwest of Lot 10 along the southern boundary of Tract B. She also began (actually before Lavasi`i's conveyances of Lot 10 and Tract B to and the division of Tract B among the three siblings were formalized) the subdivision onslaught of Tract B. In April 1984, she sold Lot 10 to the Seventh-Day Adventist Church of American Samoa, Inc.

Nineteen eighty-five saw three more transactions. In February, Meritiana sold 0.06 of an acre ("Lot 6") to Palako and Valasi Lualemaga, who in April 1987 sold it to Rev. Olivia and Maria Safotu (collectively the "Safotus"). Rev. Safotu is a minister of the Seventh-Day Adventist Church. Lot 6 lies north of Lot 10 adjacent to Tract B. In May 1985, she sold 0.4352 of an acre ("Lot 4") to defendants Uili [23ASR2d124] Fuia ("Uili") and Losa Fuia (collectively the "Fuias"). Lot 4 is located immediately west of Lot 10 and north of Lot 3. In December 1985, she sold one-half of an acre ("Lot 1") to Tonisi and Matapua Matatia. Lot 1 is situated west of Lot 4.

Moving on to 1987, three more transactions occurred. In February, Meritiana sold another 0.06 of an acre ("Lot 7") to the Safotus. Lot 7 lies between Lots 10 and 6. In June, she sold one-quarter of an acre ("Lot 9") to Sausaulele and Beverly Tagaloa, and 0.29 of an acre ("Lot 5") to defendants Tamapele Tevaseu ("Tamapele") and Sofima Tevaseu (collectively the "Tevaseus").(4) Lot 9 is located northwest of Lot 1 and immediately to the south of Tract B. Lot 5 is situated north of Lot 4 and is also adjacent to Tract B. There is another lot, as yet unnumbered, north of Lot 1, between Lots 5 and 9 and also next to Tract B. This lot is occupied by prospective buyers, who so far, apparently, have been unable to consummate purchase.

Except for the unnumbered lot, this series of Meritiana's sale transactions was completed in May 1989 when she sold 0.53 of an acre ("Lot 2") to Sagaga Lafaele. Lot 2 is located west of Lot 3 between Lots 1 and 12. Fuimaono purchased Lot 5 from the Taveseus in August 1989 and completed a then partially constructed house on the property, in which he now resides. Lot 5 is surrounded by Tract B on the north, Lots 6 and 7 on the east, Lot 4 on the south, and the unnumbered lot on the west.

Fuimaono seeks a suitable right of way for access to Lot 5. The present access ("ROW 2") is a dirt road off of ROW 1, apparently beginning in Craddick property, that heads north along the west sides of Lots 2 and 1, and then makes a 90 degree, right turn and heads east between Lot 1 and the unnumbered lot to Lot 5. ROW 2 via ROW 1 provides not only circuitous access, but more important ROW 2 is also narrow, sufficient for only one vehicle to travel and very rough. Recently, the occupants of the land immediately west of ROW 2 and a short distance from its beginning have erected or enlarged a house on their land which has almost encroached upon ROW 2 and has created a safe passage hazard. ROW 1's undedicated status, at least the portion on Vaivao's land, has placed some uncertainty on its permanent and [23ASR2d125] continuous existence. ROW 2's suitability for utility lines, particularly sewer lines, can be seriously questioned.

These circumstances clearly demonstrated Meritiana's lack of concern and foresight for suitable land development when she began subdividing Tract B. This action was commenced on March 22, 1990. On May 11, 1990, she then dedicated land for an access road ("Lot 11"). This dedication set aside a right of way that generally coincided with ROW 2, except in two particulars. First, at 20 feet, it is substantially wider. Second, it circled behind the house causing the safety hazard. It is by no means clear from the evidence that the owner of this house was her or her sibling's grantee. Thus, doubt about the permanency of the new access road in this area, if it is ever constructed, is present. In any event, this hindsight action amply fortified Meritiana's earlier established attitudes.

Access to Lot 5 could be physically accomplished from three other directions. The shortest and most direct route would be a connecting road from Lot 5 to a dirt road close by in Tract A that then continues a short distance to the paved road north of Tract A. However, Lavasi`i at least orally arranged for access to Tract B when it was created, which access is not presently threatened. Under existing circumstances, neither Lavasi`i nor any of his grantees of lots in Tract A has any legal obligation to permit access to Lot 5 across Tract A.

A right of way could be established from the east across Lot 10 and then a small portion of either Lot 7 or Lot 4 to Lot 5.(5) However, as pitifully inadequate as ROW 2 is, this solution would require a finding of necessity, as enunciated in Sese v. Leota, 9 A.S.R.2d 35 (1988), new trial denied, 9 A.S.R. 136 (1988). An implied easement by necessity would be inappropriate, so long as access over ROW 2 is available.

Lastly, a right of way to Lot 5 from the south could be recognized in Lots 3 and 4. Justification by necessity for this solution is no more proper than it would be across Lots 10, 7 or 4 from the east. However, the conveyance of Lot 4 to the Fuias does show a 12-foot right of way extending along the entire east boundaries of Lot 4 and, apparently, Lot 3 retained by Meritiana. There is in fact an access road [23ASR2d126] across Meritiana's Lot 3 into the Fuias' Lot 4, meandering some distance from the right of way shown in the Lot 4 conveyance.(6) Meritiana and Uili have denied any intention to create a right of way to Lot 5 in the Lot 4 conveyance.

Indeed the conveyances of Lot 5, first by Meritiana to the Tevaseus and later by them to Fuimaono, contained no indications of any such intent. Moreover, the Tevaseus constructed a stone wall along the south boundary of Lot 5, which is generally parallel to the original north boundary of Lot 4. They understood that ROW 2 was their access way to Lot 5, and Tamapele passed on that information to Fuimaono when he bought Lot 5. Also of some note is the relatively steep incline between Lots 4 and 5.

Meritiana's sale to the Fuias on July 11, 1990, again after commencement of this action, of a 0.035 strip of land between Lots 4 and 5, raised some doubt about the denial by Meritiana and the Uili of any intent to create in the Lot 4 conveyance a right of way to Lot 5. Apparently, this strip resulted from earlier survey mistakes, and the belated sale may have been motivated by an opportunity to establish an additional buffer between the end of the surveyed right of way in the Lot 4 conveyance and Lot 5. However, we find from the entire circumstances that the right of way across Lots 3 and 4 was not created to provide access to Lot 5.

CONCLUSIONS OF LAW

1. The Fuias, Meritiana and Lavasi`i are entitled to dismissal of this action pursuant to their respective motions under T.C.R.C.P. Rule 41(b) on the ground that upon the facts and the law Fuimaono has shown no right to relief.(7)

2. Lavasi`i is entitled to dismissal of the third-party claim by Meritiana against him pursuant to T.C.R.C.P. Rule 41(b) and (c). [23ASR2d127]

3. Fuimaono is not entitled to default judgments against the Tevaseus, CDI or Vaivao pursuant to his motion for default judgments against them under T.C.R.C.P. Rule 55(b), and that motion will be denied.

Judgment shall enter accordingly. It is so ordered.

***********





1CDI and Vaivao have been served with process but have not appeared in this action. Fuimaono's motion for default judgments against them are simultaneously under advisement with the trial decision.

2Tract B, minus two later adjustments to the southeast and southwest corner areas, was registered as Lavasi`i's individually owned land in January 1982.

3In 1985, Aniga and his wife sold their three-acre plus portion to Vaivao as trustee for Douglas O. Craddick.

4The Tevaseus also failed to appear and are the subject of Fuimaono's motion for a default judgment under advisement.

5Although Lots 6 and 7 are presently landlocked, their ownership by a minister of the Seventh-Day Adventist Church, which owns Lot 10, forestalls any immediate access problem to these two small lots.

6Despite available access to Lot across ROW 2, a dirt road across Lot 3 to Lot 2 also exists. Meritiana testified that this means of access to Lot 2 is only temporary.

7These motions were made after Fuimaono had completed the presentation of his evidence. In accordance with Rule 41(b), the court declined to render any judgment until the close of all the evidence.

Farapo v . American Samoa Gov’t,


OLIVE FARAPO, TEKURA ALU, LILLY PAUMBARI, 
Appellants

v.

AMERICAN SAMOA GOVERNMENT, CHIEF 
IMMIGRATION OFFICER, IMMIGRATION BOARD, 
and ATTORNEY GENERAL, Appellees

High Court of American Samoa 
Appellate Division

AP No. 21-92

February 24, 1993

__________

The ten-day statutory period for reporting an address change to the Immigration Board can only sensibly be given effect if the prescribed period is computed to exclude the last day when it happens to fall on a Saturday, Sunday, or legal holiday. A.S.C.A. § 41.0308(b).

Although the Immigration Board may revoke a sponsorship without a sponsor's permission, no statutory provision requires it to approve a sponsorship's termination or gives it the power to impose conditions on a sponsorship's termination. A.S.C.A. § 41.0408(f), (g).

The Immigration Board may deport an alien only after he has been accorded an opportunity for a public hearing. A.S.C.A. § 41.0205(2).

Although deportation hearings may be closed under certain circumstances, the Immigration Board may only close the hearings in a specific case to protect witnesses, the respondent, or the public interest and only if the interest in a closed hearing outweighs the "value of openness." A.S.A.C. § 41.0807(a). [23ASR2d137]

Aliens facing deportation hearings are to be given notice which is "reasonable under the circumstances." A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1).

The Immigration Board's merely announcing a sponsorship's termination fails to meet the notice requirements for a deportation hearing, as the notice must include the time and place of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1).

Though the Immigration Board's documents are confidential by statute, this statute may not be used to deny constitutionally guaranteed due-process rights, nor does it prohibit the Court from ordering the Attorney General to produce these records when needed. U.S. Constitution Amend. V; Rev. Const. Am. Samoa Art. I, § 2; A.S.C.A. § 41.0307.

Because a sponsor need not give the reasons for revoking a sponsorship, aliens facing deportation are not entitled to access to the Immigration Board's confidential documents in order to determine if the sponsorship was revoked for the "wrong reasons." A.S.C.A. § 41.0408(g).

An alien in a deportation proceeding is entitled to cross-examine the government's witnesses, and an improper curtailment of this right constitutes a violation of procedural due process. U.S. Constitution Amend. V; Rev. Const. Am. Samoa Art. I, § 2; A.S.C.A. § 41.0205(7)(c); A.S.A.C. § 41.0807(a).

If made upon unlawful procedure, a decision of the Immigration Board may be reversed, modified, or remanded for further proceedings by the Appellate Division of the High Court. A.S.C.A. § 41.0212(3).

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, BETHAM, Associate Judge.

Counsel: For Appellants, Charles V. Ala'ilima 
For Appellees, Elvis R. P. Patea, Assistant Attorney General

Appellants, nationals of Papua New Guinea, have filed a petition pursuant to A.S.C.A. § 41.0209, seeking judicial review of the decision and order of deportation entered by the Immigration Board (hereinafter the "Board") on October 23, 1992. The Board concluded that appellants were deportable under both A.S.C.A. § 41.0312, finding that appellants had failed to report their change of address to the Attorney General as required by the provisions of A.S.C.A. § 41.0308, and A.S.C.A. § 41.0408, finding that appellants' sponsors, Starr and Su'a Schuster, had revoked their sponsorship of appellants. [23ASR2d138]

A. Failure to report address change

The Board's findings include the following:

3. On September 24, 1992, the Respondents ran away from 
the Schuster residence.

....

6. On October 5, 1992, Charles V. Ala'ilima wrote a letter to 
Chief Immigration Officer So'oso'o Tuiolemotu, informing 
Mr. Tuiolemotu of his representation of the Respondents and 
of the whereabouts of the Respondents. There is no evidence 
as to when Mr. Tuiolemotu received Mr. Ala'ilima's letter.

(Emphasis in original.) On the basis of the foregoing findings, the Board made the following conclusions of law:

1. All aliens are required to notify the Attorney General in writing 
of each change of address and new address within ten (10) 
days from the date of such change. § 41.0308, ASCA. The 
burden is on the alien to provide such notification.

2. The Respondents left their address on September 24, 1992 
and had until October 4, 1992 to report their new address. This 
was not done. October 4, 1992 fell on a Sunday. Allowing the 
tenth day to fall on the next business day (Monday, October 5, 
1992) defeats the intent of the requirement that notification be 
made, and that it be made within ten (10) calendar days. 
Furthermore, no evidence was presented providing any compelling 
reason why the notification couldn't be done before Sunday, 
October 4,1992.

We hold that the Board's computation of the ten-day statutory period for reporting an address change was premised on an erroneous construction of the statute. A.S.C.A. § 41.0308(b) specifies a ten-day time period; it does not, as the Board's, "ten calendar days" interpretation suggests, specify a nine-day limit, when the tenth day falls on a Saturday or public holiday; or an eight-day limitation, when the [23ASR2d139] tenth day falls on a Sunday; or a seven-day limitation period, when the tenth day falls on the last day of a three-day weekend, etc. (1) Since the Attorney General's Office is not open to the public on weekends and public holidays, the statute can only sensibly be given effect if the prescribed period is computed to exclude the last day when it happens to fall on a Saturday, Sunday, or legal holiday. Cf. Fed. R. Civ. P. 6(a); A.C.R. Rule 26(a); T.C.R.C.P. Rule 6(a). As such, the statutory ten- day period may not be cut short, nor maya person be required to show, as the Board also suggests, why he needs the full ten days.

The letter from appellants' counsel is dated October 5, 1992, and the Immigration Office's response to counsel is dated October 6, 1992. See Finding of Fact No.6. Although the Board finds that no proof exists that the Immigration Office received counsel's letter, the Immigration Office's prompt response to counsel is persuasive evidence of its receipt of that letter. Furthermore, because evidence as to the date of receipt is under the control of the Immigration Office, it is not reasonable for the Immigration Office to demand that appellants provide this proof. Cf. , T .C.R.Ev .Rule 1004(3) (if an opposing party will not produce a document under its control, the other party need not produce the original document). We accordingly hold that the Board's conclusions are also "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." A.S.C.A. § 41.0212(5).

B. Revocation of sponsorship

The other substantive issue was the sponsorship's termination, purportedly accomplished by Mrs. Schuster's letter to the Board dated September 30, 1992. At the deportation hearing, the appellants agreed that the Schusters were their sponsors. Also, the appellants had signed "Alien Registration Forms" listing Mrs. Schuster as their sponsor.

Appellants argued that because Mrs. Schuster sent the notice only to the Board, the sponsorship was never terminated. However, their counsel was served with written notice by Immigration Officer Herota Satele on October 6, 1992. Even if notifying aliens is not a function of either the Immigration Office or the Board, the statute's purpose of [23ASR2d140] giving both aliens and the Board notice was fulfilled; the appellants did actually receive notice of their sponsorship's revocation.

Appellants also argue that the Board has the discretion to stop Mrs. Schuster from terminating the sponsorship or to condition termination on paying wages and taxes. However, no provision requires the Board to approve a sponsorship's termination or gives it the power to impose conditions on a sponsorship's termination, although it may revoke a sponsorship without a sponsor's permission. See A.S.C.A. § 41.0408(f), (g). Whether the sponsorship was terminated to attempt to avoid paying wages and, if so, how much money is due to appellants are both issues to be decided in a civil suit. Those issues are separate from the factual questions as to whether the sponsorship was terminated or whether the change-of-address notice was given within ten days.

C. Procedural Challenge

Additionally, appellants seek review on a number of procedural due process grounds. Among other things, they claim failure on the Board's part to afford them a public hearing, in violation of A.S.C.A. § 41.0205 , as well a reasonable opportunity to examine the evidence against them and cross-examine witnesses, in violation of A.S.C.A. § 41.0607(3); they also allege illegal arrest and detention.

The Immigration Board may deport an alien only" after the alien has been accorded an opportunity for a public hearing. " A.S.C.A. § 41.0205(2). The language is clear; the Fono decided to give aliens about to be deported the right to have a public hearing. Although hearings may be closed under certain circumstances, the Board's discretion is not unbridled. Under its rules, the Board may only close deportation hearings "for the purpose of protecting witnesses, [the] respondent, or [the] public interest" in a "specific case." A.S.A.C. § 41.0807(a). Although closed hearings might occasionally be needed, the Board has not demonstrated extraordinary circumstances that might justify a closed hearing. See Masaniai v. American Samoa Government, 6 A.S.R.2d 114, 116 (App. Div. 1987) (criminal trial court may exclude the public when an overriding interest or special or exceptional circumstances exist) .A normally open proceeding may be closed only if the interest in doing so is shown to outweigh the "value of openness. " See Press- Enterprise Co. v. Superior Court, 464 U.S. 501, 509-10 (1984) (First Amendment guarantees open proceedings in criminal trials, including the voir dire process) (citing Globe Newspaper Co. v. Superior Court, 457 [23ASR2d141] U.S. 596 (1982)). The limited circumstances in which open proceedings may be closed are as follows:

The presumption of openness may be overcome only by an 
overriding interest based on findings that closure is essential 
to preserve higher values and is narrowly tailored to serve 
that interest. The interest is to be articulated along with findings 
specific enough that a reviewing court can determine whether 
the closure order was properly entered.

Id. at 510 (citing Globe Newspaper).

Here the Board simply found that the matter "involved private differences between the Respondents and the Schusters," and thence concluded "that the protection of those private matters outweighed any need to open the hearing to the public. " (Emphasis added. ) While the Board articulated "private differences" as being the overriding interest, it failed to enumerate findings specific enough to allow a reviewing court the opportunity to determine whether the closure order was properly entered. While a lack of seating may sometimes limit the number of people able to attend an open hearing, it does not justify closing the hearing entirely. All that can be said from the extent of the record before us is that private differences, which the Board saw fit to protect, are the very antithesis of the aim of the statute itself --public proceedings.

Also, the appellants did not have as much time to prepare for the deportation hearing as the Board suggests. Aliens facing deportation hearings are to be given notice which is "reasonable under the circumstances." A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1). Notice of the hearing originally scheduled for October 20 was given October 19; after a continuance, the hearing was held on October 22, notwithstanding counsel's objection and request for more time. Appellants thus had only three days' notice of the deportation hearing, contrary to the Board's calculations, which erroneously included the time from which appellants were notified of their sponsorships' termination. Merely announcing the termination of the sponsorship also fails to meet the requirements of the notice, which is to include the "time and place" of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1).

Conversely, appellants have not shown their need for the Immigration Board's documents, which are confidential by statute. A.S.C.A. § 41.0307. Obviously, this statute may not be used to deny [23ASR2d142]constitutionally guaranteed due-process rights, nor does it prohibit the Court from ordering the Attorney General to produce these records when needed. See U.S. Constitution Amend. 5; Rev. Const. Am. Samoa Art. I, § 2 ("No person shall be deprived of life, liberty, or property, without due process of law"). In fact, these documents were turned over to the Court for an in camera examination.

The political branches are solely responsible for formulating immigration policies, as long as deportees are accorded a minimal level of due process. However, a merely erroneous deportation decision does not violate due process. Likewise, discovery may not be used as a " fishing expedition " to look for possible claims and defenses .

Appellants have not adequately shown why they should have access to the confidential records. They argue that the records are necessary to determine if the sponsorship was revoked for the wrong reasons. However, an alien's sponsorship or employment may be terminated simply by giving written notice to the Board and the alien. Because nothing in A.S.C.A. § 41.0408(g) requires a sponsor to give the reasons for revoking a sponsorship or restricts the grounds for doing so, we see no basis for the claim that these statutorily protected documents should have been produced.

With regard to appellants' claim regarding their rights to cross- examination, it is clear that an alien in a deportation proceeding is entitled "to cross-examine witnesses presented by the government." A.S.C.A. § 41.0205(7)(c); A.S.A.C. § 41.0807(a); see also A.S.C.A. § 4.1026 (parties in a contested administrative hearing are entitled to " such cross-examination as is necessary for a full and true disclosure of the facts ") .An improper curtailment of this right constitutes a violation of procedural due process. On the other hand, this is not to say that the right to cross-examination is without limits. It goes without saying that the right is subject to the familiar rules of evidence regarding probative worth and relevance.

Our review of the record reveals that the Board's Chairman had sustained a number of objections by the government on relevancy grounds when counsel sought to use cross-examination to assert the arguments that the Board should not allow the sponsorship's revocation and that one of the appellants moved at the direction of her sponsor . These claims had no bearing on the deportation decision, though. The Board does not have the power to bar a sponsorship's revocation, and a change of address must be reported no matter who initiated the alien's [23ASR2d143] move. See discussion, supra. At one point, however, the Board's Chairman did summarily cut off further cross-examination without inquiry as to the subject matter sought to be pursued by counsel. In this regard we are unable to see any basis for a ruling as to relevancy and therefore conclude that appellants' right to cross-examination was improperly curtailed.

As to the manner of appellants' arrest and detention, this issue is moot for purposes of the deportation appeal, as appellants are presently in Papua New Guinea and not in detention. Furthermore, A.S.C.A. § 41.0510( c) seems to answer appellants' concerns about the legality of an arrest warrant executed by a board member .

D. Conclusion

Appellants' sponsorship has been revoked, and they are subject to deportation. A.S.C.A. § 41.0408. However, prior to any attempts at deportation, they are entitled to a public hearing. A.S.C.A. § 41.0205. Additionally, appellants were entitled to notice "which is reasonable under all the circumstances." A.S.C.A. §§ 41.205(7)(a), 41.0607(a)(1). They were not afforded either procedural guarantee. Moreover, appellants' rights to cross-examination were curtailed in violation of A.S.C.A. § 41.0205 and A.S.A.C. § 41.0807.

Under A.S.C.A. § 41.0212(3), a decision of the Immigration Board may be reversed, modified, or remanded for further proceedings if made upon unlawful procedure. For reasons given, we REVERSE.

*********

1. We take judicial notice of the recent five-day weekend which arose as the result of New Year's Day's falling on a Friday and the new governor's inaugural declaration of a two-day government holiday for the following Monday and Tuesday.

Farapo v. American Samoa Gov’t,


OLIVE FARAPO, TEKURA ALU, LILLY PAUMBARI, Appellants

v.

AMERICAN SAMOA GOVERNMENT , CHlEF IMMIGRATION 
OFFICER, IMMIGRATION BOARD, and ATTORNEY GENERAL, Appellees

High Court of American Samoa 
Appellate Division

AP No. 21-92

November 30, 1992

__________

A petition for review of an Immigration Board's decision need not be dismissed or be refiled to correct the names of the appellees in the caption when the petition incorrectly included the American Samoa Government, the Attorney General, and the Chief Immigration Officer as appellees. A.S.C.A. §§ 41.0209, 43.0201(b); H.C.R. 3.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, BETHAM, Associate Judge.

Counsel: For Appellants, Charles V. Ala'ilima 
For Appellees, Elvis R.P. Patea, Assistant Attorney General

On Motion to Dismiss:

Appellees have filed a motion seeking an order to either dismiss the above-entitled matter or, in the alternative, "[to] direct[] the appellants to refile their cause of action and conform to the requirements for filing a Petition for Review." The appellees' principal concern is that the matter has been styled an "appeal," although in actuality, it is a "petition for review" under A.S.C.A. § 41.0209. (1) It is argued that the immigration board alone is, therefore, the only proper respondent. We agree. The board is the only proper respondent; the American Samoa Government, the Attorney General, and the Chief Immigration Officer [23ASR2d52] are improperly named herein as appellees. See A.S.C.A. § 41.0209. However, as to whether the matter should be dismissed or that the appellants be required to refile their petition to correct the names of the appellees in the caption, we answer in the negative. A.S.C.A. § 43.0201(b) provides that "[n]o objection may be made to formal deficiencies in pleading." Further, H.C.R. 3 provides that "the [High Court] Rules are to be construed so as to be consistent with the [American Samoa] Code [Annotated] and to promote the just, efficient and economical administration and determination of every action and proceeding." Motion denied.

It is so ordered.

*********

1. A.S.C.A. § 41.0209 reads: A petition for review may be filed with the appellate division of the High Court not later than 15 days from the date of the final decision of the [immigration] board; the action shall be brought against the board as respondent. (Emphasis added).

In re Complaint of Voyager, Inc.,


In the Matter of the Complaint of VOYAGER, INC.,
as Registered Owner of the Fishing Vessel VOYAGER,
Engines, Tackle, Apparel, etc., in a Cause of Exoneration
from or Limitation of Liability

High Court of American Samoa
Trial Division

CA No. 76-92

November 16, 1992

__________

The High Court cannot enjoin proceedings in other jurisdictions in a limitation-of-liability proceeding, because the federal statute restricts jurisdiction to federal district courts and because neither the territorial legislature nor the court's rules can extend the court's jurisdiction to encompass proceedings in other jurisdictions. 46 U .S.C. § 145, 181 et seq.; T.C.R.C.P. Rule F(I).

Before KRUSE, Chief Justice.

Counsel: For Plaintiff Voyager, Inc., William H. Reardon

Voyager, Inc., as owners of the fishing vessel VOYAGER, has filed a "Complaint for Exoneration from or Limitation of Liability," invoking the High Court's admiralty jurisdiction "pursuant to ASCA 3.0208(a), TCRCP Supplemental Rules for Certain Admirably and Maritime Claims, Rule F, TCRCP 9(H) and 46 U.S.C. § 181 et seq." The complaint alludes to a suit filed in the Superior Court of California, County of San Diego, by a Byron J. Blocker and Catherine A. Blocker of San Diego, California, against Voyager , Inc. , wherein Byron Blocker seeks damages for personal injuries sustained as the result of an explosion on board the VOYAGER, while his wife Catherine Blocker seeks damages for loss of consortium. Total damages prayed for by the Blockers is $17.5 million.

The complaint before us alleges that the vessel's value does not exceed $3 million and that the vessel's owner accordingly seeks to limit liability to the extent of the vessel's value, under 46 U.S.C. § 181 et seq. and under "all other rules and statutes limiting a vessel owner's liability." The vessel owner seeks from the court a "Notice to Claimants" pursuant to T.C.R.C.P., Supplemental Rules for Certain Admirably and Maritime Claims, Rule F(4). This application was previously made and denied. [23ASR2d48]

Rule F(l) presupposes a limitation-of-liability action "pursuant to statute." (emphasis added). The rule also presupposes that the High Court can enjoin proceedings in other jurisdictions in order to consolidate any and all claims against a vessel in a limitation proceeding before the High Court of American Samoa. See Rule F(3). However, no territorial statutory remedy for limitation of liability exists, and the High Court of American Samoa has no jurisdiction to grant relief under the provisions of 46 U.S.C. §§ 181 et seq., because Congress restricted jurisdiction to the federal district courts. See 46 U.S.C. § 145; In re Complaint of Interocean Ships, 2 A.S.R.2d 76 (App. Div. 1985). As noted by the Appellate Division:

The Fono [through the enactment of A.S.C.A. § 3.0208(a)(3)
-conferring admiralty jurisdiction on the High Court] cannot
extend the jurisdiction of this court to encompass proceedings
in other jurisdictions. Neither can this court accomplish
that result through its procedural rules.

Interocean Ships, 2 A.S.R.2d at 80 (emphasis added).

Application for notice to claimants is denied.

It is so ordered.

**********

In re a Minor Child (Juv. No. 67-92),


In the Matter of a MlNOR CHILD

High Court of American Samoa
Trial Division

JUV No. 67-92

February 16, 1993

__________

Relinquishment of parental rights must be based in very substantial part on the best interests of all persons concerned; as such, the court refused to legally sever a minor's relationships with his natural family to have him raised by an older, single parent who is in poor health. A.S.C.A. § 45.0402(e).

Before RICHMOND, Associate Justice, MA T A 'UTIA, Associate Judge, LOGOAI, Associate Judge.

Counsel: For Petitioners, Afoa L. Su'esu'e Lutu

The petitioners in this proceeding seek to relinquish their parental rights to pave the way for their son's adoption by his paternal grandfather.

The petitioners are married, in their twenties, and have two young children, a two-year-old son who is the subject of this proceeding and a recently born infant. Both husband and wife are healthy and employed with promising futures in the educational field. The paternal grandfather is a recent widower. He is 50 years of age and medically retired, relying on Social Security benefits for his income.

The child has lived much of the time since he was two months old with his paternal grandparents and apparently developed a strong relationship with them. It is also true, however, that while his parents do have a separate household, they, their children and the now-widowed, paternal grandfather essentially live together in the same home.

Relinquishment of parental rights must be based in very substantial part on the best interests of all persons concerned. A.S.C.A. § 45.0402(e). The adoption proposed in this situation may enhance the paternal grandfather's Social Security benefits and, thus, the entire family's overall income. However, the longer-term best interests of this child of tender years are not served through legal severance of his natural [23ASR2d130] relationships with his parents and younger sibling to be raised by an older, single parent who is in poor health.

The love and affection between grandson and grandparent can be maintained. In fact, this child may reside more or less permanently with his grandfather, if all concerned so desire. Eventually, however , full and intimate familial contacts with his immediate family, even if disrupted to some extent in the nearer term, will and should resume of necessity.

The petition should be and is denied. It is so ordered.

*********

Asifoa; Lualemaga v.


LUALEMAGA E. FAOA, Plaintiff

v.

SOSENE ASIFOA and LEFOTU TUILESU, Defendants

LUALEMAGA E. FAOA for the LUALEMAGA FAMILY
and the VILLAGE OF A'ASU, and TUITELE K.A. LE'OSO
for the VILLAGE OF LEONE, Plaintiffs/Objectors

v.

A'OLOAU VILLAGE COUNCIL, Defendant/Claimant

A.U. FUIMAONO and the VILLAGE OF A'OLOAU, Plaintiffs

v.

TOLUAO FETALAIGA, Defendant

TUANAITAU TUIA, AVA VILI, and TOLUAO FETALAIGA for
THEMSELVES and the VILLAGE OF PAVA'IA'I, Intervenors

LEPUAPUA STANLEY MASSEY UTU, for HIMSELF and
on Behalf of the UTU FAMILY , Intervenors

TUILEFANO VAELAA, TUIAGAMOA TUIOLEMOTU,
and TUITASI for "AlGA AITULAGI," Intervenors

High Court of American Samoa
Land and Titles Division

LT No. 29-86
LT No. 41-86
LT No. 12-87

October 7, 1992

__________

Persons continuing to occupy and cultivate land adjudicated as belonging to another family are subject to sanctions for contempt. [23ASR2d18]

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge.

Counsel: For Intervenors Lepuapua Stanley Massey Utu
and the Utu Family, Togiola T .A. Tulafono
For Defendant/Intervenor Toluao Fetalaiga, Asaua Fuimaono

On Imposition of Sanctions for Contempt:

The motion in these consolidated actions by intervenor Lepuapua Stanley Massey Utu, for himself and on behalf of the Utu family ("Utu" or "Utu family"), to impose sanctions against defendant/intervenor Toluao Fetalaiga ("Toluao" or "Toluao family") and Pepe Lam Yeun ("Lam Yeun") for contempt came regularly for hearing on October 2, 1992. Lam Yeun is married to a member of the Toluao family.

The judgment in these consolidated actions was issued and entered on August 6,1990. As applied to Toluao and the Toluao family, this judgment: (1) enjoined Toluao from further occupation and cultivation of land within the Village-of-A'oloau survey in evidence (with the exception of an area which is not involved in the present contempt proceedings) and (2) declared that a small parcel of land, approximately 2.076 acres, which is depicted in survey Drawing No, 32"15"89, within a larger tract of land known as "Lago," and within the Village of A'oloau survey, was the communal land of the Utu family. On August 9, 1990, the judgment was amended to allow certain parties, including Toluao, until September 10, 1990, at 4:00 p.m., to harvest crops belonging to them on land on which they were enjoined from further activities.

After September 10, 1990, Toluao and the Toluao family, principally through Lam Yeun's acts, continued to occupy and cultivate the declared Utu family land. On April 24, 1991, this Court found Toluao and Lam Yeun in contempt of the Court's orders in the judgment, as amended. The imposition of sanctions was suspended for 30 days to allow them time for compliance with the Court's orders. Both Toluao and Lam Yeun were present when they were found in contempt. The proceedings at that hearing were translated into Samoan.

It appears from the testimony at the hearing on the present motion that Toluao and Lam Yeun may have been influenced before, on [23ASR2d19] and after April 24, 1991, by faulty legal advice from their counselor unlawful legal advice from their counsel's associate, or both, during the period of various post-judgment proceedings, until their present attorney was retained. Nonetheless, they have continued their contemptuous occupation and cultivation of the declared Utu-family land up to and including the day of the hearing on the present motion. In addition, Lam Yeun and his workers on this land have acted in an aggressive manner towards members of the Utu family and on August 23, 1991, threatened physical violence against some of them.

Both Toluao and Lam Yeun have the present ability to comply with Court's orders with respect to the declared Utu family land as set forth in the Court's judgment, as amended.

IT IS THEREFORE ORDERED as follows:

1. Toluao is imprisoned for a period of 30 days and is fined in the sum of $5,000.

2. Lam Yeun is imprisoned until the orders with respect to the declared Utu-family land in the Court's judgment of August 6, 1990, as amended on August 9, 1990, are performed.

IT IS FURTHER ORDERED that execution of the foregoing sentences is stayed on condition that Toluao and Lam Yeun fully comply with the orders with respect to the declared Utu family land in the Court's judgment of August 6, 1990, as amended on August 9, 1990. Toluao, Lam Yeun and all other members of the Toluao family, and their agents, servants and employees, must immediately remove themselves and hereafter stay off of the declared Utu-family land.

IT IS FURTHER ORDERED that any trees and crops on the declared Utu-family land belonging to Toluao, Lam Yeun or other members of the Toluao family are forfeited to and are now the property of the Utu family.

IT IS FURTHER ORDERED that Toluao and Lam Yeun shall pay, not later than November 5, 1992, directly to Togiola T.A. Tulafono, attorney for Utu and the Utu family, the sum of $500 for attorney' s fees and costs incurred in these contempt proceedings .

IT IS FURTHER ORDERED that this matter is continued to November 6, 1992, at 9:00 a.m., for the purpose of reviewing Toluao's [23ASR2d20] and Lam Yeun's compliance with the orders of this Court in the judgment of August 6, 1990, as amended on August 9, 1990, and this order on the imposition of sanctions for contempt. Toluao and Lam Yeun are ordered to return to this Court on November 6, 1992, at 9:00 a.m. , without further order, notice or subpoena.

 

*********

Amisone v. Talaeai,


ESEROMA AMISONE, Individually and as Administrator for
the Estate of FILIPO AMISONE, Deceased,
and FETAOMI AMISONE, Plaintiffs

v.

KERISIANO TALAEAI, HERBERT BOAT,
INSURANCE COMPANY OF THE PACIFIC,
and DOES I-X, Defendants

High Court of American Samoa
Trial Division

CA No. 84-91

December 1 , 1992

__________
[23ASR2d53]

A plea of guilty in a previous criminal prosecution is ordinarily admissible as evidence in a subsequent civil action under the hearsay exception for a party's admissions.

Because a guilty plea in a prior criminal action necessarily eliminates a full and contested presentation of evidence on the issues and may only indicate a compromise or an expectation of a more advantageous disposition of a criminal accusation, the policy underlying collateral estoppel would not be truly served by making a guilty plea conclusive in a civil action.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, LOGOAI, Associate Judge.

Counsel: For Plaintiffs, John L. Ward II
For Defendant Kerisiano Talaeai, Gata E. Gurr

On Motion for Partial Summary Judgment:

Plaintiffs have filed a second motion for partial summary judgment against defendant Talaeai ("Talaeai") on the issue of liability in this wrongful-death action.

Plaintiffs' first motion for a partial summary judgment on the issue of liability was denied on July 15, 1992, on the procedural ground that the action was subject to default-judgment proceedings rather than summary-judgment proceedings. On August 26, 1992, plaintiffs' motion for reconsideration, new trial or hearing, or an amended judgment with respect to the court's order of July 15, 1992, was denied. An amended order denying the motion for summary judgment was also issued to correct portions of the original order, without any substantive change in the result. Furthermore, the clerk's entry of default was set aside, based on Talaeai's appearance on July 31, 1992, and he was allowed to and did file an answer within two weeks. Thus, it has become appropriate to consider the substance of plaintiffs' motion for partial summary judgment.

The motion is grounded on the legal consequence of Talaeai's conviction by his plea of guilty to the felony of homicide by vehicle (A.S.C.A. § 22.0706). This criminal prosecution arose out of the same incident forming the factual basis of this civil action for damages. Talaeai's plea of guilty is evidence that he was recklessly driving a motor vehicle and thereby proximately caused Filipo Amisone's death. [23ASR2d54] Plaintiffs argue that, as a result, no genuine issues as to material facts remain with regard to Taleai's liability in this litigation.

In essence, plaintiffs' argument seeks to apply the doctrine of res judicata or, more precisely, collateral estoppel. The peculiar circumstances of some related criminal and civil actions may occasionally justify employment of this doctrine. See, e.g., Teitelbaum Furs, Inc. v. Dominion Insurance Co., 375 P.2d 439 (Cal. 1962). However, it is not appropriate to utilize Talaeai's plea of guilty as the sole means of determining his civil liability in this action.

Ordinarily, a plea of guilty in a previous criminal prosecution is admissible as evidence in a subsequent civil action under the hearsay exception for a party's admissions. Teitelbaum Furs, 375 P.2d at 441; Remmenga v. Selk, 34 N.W.2d 757, 766 (Neb. 1948); Koch v. Elkins, 225 P.2d 457, 460 (Idaho 1950); Dimmick v. Follis, Ill N.E.2d 486, 488 (Ind. App. 1953); Fleming v. City of Seattle, 275 P.2d 904, 910 (Wash. 1954); Ryan v. Westgard, 530 P.2d 687, 695 (Wash. App. 1975).

The policy underlying collateral estoppel would not be truly served by making a plea of guilty conclusive in a civil action. Collateral estoppel seeks to limit litigation by preventing a party who has had a fair trial on an issue from raising it again in a later controversy. Teitelbaum Furs, 375 P.2d at 441. However, this policy must also take into account the policy that a party shall not be deprived of a fair adversarial proceeding and full opportunity to present his cause in a subsequent action. Id. A plea of guilty in a prior criminal action necessarily eliminates a full and contested presentation of evidence on the issues, and it may only indicate a compromise or an expectation of a more advantageous disposition of a criminal accusation. Id. Considerations of fairness in a later civil proceeding and due regard for expeditious administration of criminal justice prevent the application of collateral estoppel against a civil litigant, when founded solely on his plea of guilty to a criminal charge arising from the same set of facts. Id.

Plaintiffs' motion is denied. It is so ordered.

*********

Zuguin v. M/V Captain M.J. Souza,


JAIME ALVARDO ZUGUIN, Plaintiff

v.

M/V CAPT AIN M.J. SOUZA, her Cargo, Freight,
Equipment, Engines, Boats, Anchors, Helicopter,
Rigging, Tackle, Furniture and All Other Necessaries
Appertaining to the Vessel, Defendant in Rem

and

RALPH FELICIANO and FRANK SOUZA,
Defendants in Personam

High Court of American Samoa
Trial Division

CA No. 80-90

October 7, 1992

__________

The terms of a seaman's contract were adjudicated as being those contained in his payroll form when the contract reflected the parties' negotiations by telephone and when the claimed parol variation would be essentially gratuitous on the captain's part.

When a seaman had worked to prepare a vessel for an upcoming voyage before leaving the vessel, he was entitled to compensation on a quantum meruit basis.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, MAILO, Associate Judge.[23ASR2d8]

Counsel: For Plaintiff, Robert A. Dennison III
For Defendants, John L. Ward II

This is a dispute relating to seaman's wages. Defendants Ralph Feliciano and Frank Souza are, respectively, the captain and a part-owner of the tuna vessel M/V Captain Souza, the defendant in rem. Plaintiff, a certified and licensed helicopter mechanic, worked two fishing voyages for the defendants and was compensated to his apparent satisfaction. However, after his third trip, plaintiff was not happy with the compensation figure paid to him for that voyage; he thought he was entitled to much more than that tendered. He walked off the vessel before what would have been his fourth trip (hereinafter "voyage 45"), after failing to persuade Feliciano to reconsider his third-voyage payor, alternatively, change his wage structure. He subsequently filed suit, alleging breach of contract.

The evidence here includes the respective depositions of plaintiff and Feliciano, offered pursuant to stipulation, as well as the testimony of a Mr. Ray Fowler given on the day of trial. The evidence shows that prior to embarking on his first fishing voyage with the M/V Souza, plaintiff and defendants entered into a compensation agreement as evidenced by a writing styled "Payroll Authorization Form" (hereinafter "the form"). The form is clearly devised to set out the "rate of pay" payable by the vessel to a particular crew member signing on. In plaintiff's case, the form was filled in to stipulate a rate of compensation payable at "U .S. $3000 per month. ..two dollars per ton. " The form also provides that compensation is neither payable on the first 100 tons of the catch nor on certain under-sized fish, and it further reflects, by way of a check mark in the space designated, that "airfare" is the responsibility of the vessel. (1)

In his deposition, plaintiff identified the form as his "contract," which he also acknowledged as correctly reflecting his original negotiations over the telephone with Feliciano; he understood Feliciano's telephonic offer to be three thousand dollars per month, two dollars per [23ASR2d9] ton, plus his return airfare home to Panama. However, plaintiff also claims that when he reported to the vessel and was presented the form for signature, Feliciano had verbally guaranteed him two month's "minimum" pay. As he understood it, he was effectively entitled to a minimum of $6000 per voyage (in addition to tonnage and airfare), even if the fishing trip took less than two months to complete.

Feliciano's position on the wage agreement is that the form also correctly reflected the discussions he had with plaintiff over the telephone. However, he not only denies plaintiff's claimed parol contract, two month's "minimum" salary, but also the discussion of anything "minimum. " His understanding of the wage agreement is that plaintiff is entitled to $3000 per month while the vessel is actually at sea fishing (together with tonnage and airfare). Feliciano also testified that he was only approached by plaintiff shortly before the vessel was due to sail on voyage 45, to change his contract because the fishing trips were proving "too fast. " Plaintiff had asked him for $9 per ton plus airfare, but he had responded with a counter-offer of $7 plus airfare. They could not agree on a tonnage-based figure, and plaintiff thereafter left the vessel without notice.

We find that the terms of the agreement concluded between the parties is that which is contained in the form. We reject the parol variation claimed by plaintiff, the two-month minimum, as being less believable. Among other things, the terms as set out in the form are more consistent with each party's avowed understanding of the compensation agreement arrived at over the telephone. The parol variation would, therefore, be essentially a gratuitous offer on Feliciano's part. We find this to be improbable. (Plaintiff suggests in his deposition that he was perhaps mistaken, because of his limited English, about the extent of Feliciano's telephonic offer; but this is an admission that cuts both ways.) Furthermore, we note that actual performance in the first two voyages seems to bear out the agreement reflected in the form rather than the suggested parol variance. We conclude that the form more accurately reflects the parties' agreement on compensation.

The next point of contention is whether or not the $3000 monthly rate is limited to time "at sea." We hold that the agreement is so limited. The form also provides, albeit stated somewhat awkwardly, that the stipulated rate of compensation, "$3000 per month. ..$2 per ton, " is "to be paid an amount of [sic] per month while the boat is at sea." (Emphasis added). Thus, the bargain which plaintiff had struck with Feliciano carried the attendant risk of short voyages and slow [23ASR2d10] turnarounds. The first two fishing voyages involved more extended periods of time, each taking roughly two months to complete, while the third took only 25 days. As such, the bargain was necessarily more favorable to the plaintiff during the first two voyages. (2) We conclude no breach of contract on the part of the defendants.

Plaintiff also claims that he is entitled to a return ticket home as provided in his contract and complains that the defendants "had failed and refused to provide [him] with a return air ticket to his country of residence. " The difficulty with this claim is that it is premised on either one of two possibilities, neither of which favors plaintiff: 1) a wage agreement which plaintiff himself had reneged on or 2) a non-existent wage agreement because the parties could not agree on the terms of a tonnage-based compensation agreement. The form itself does not contain anything indicating term or duration. In practice, however, the resulting service contract for each particular voyage had recurrently incorporated the compensation agreement evidenced by the form until voyage 45. At that point, plaintiff made it quite clear that he no "longer wished to further work on the terms set out in the form. Either way, it would seem to us that plaintiff must necessarily bear the brunt of his own action or inaction after walking off the vessel.

Notwithstanding, the evidence shows that plaintiff, prior to leaving the ship and quite clearly in anticipation of working a fourth trip with the defendants--on terms more to his liking--had worked in port to prepare the vessel's newly-arrived helicopter for the pending voyage 45 and to dismantle the old one for shipment off-island. In the circumstances, we hold that plaintiff is entitled to compensation on a quantum meruit basis. We find that plaintiff had worked for about 40 hours on the helicopters. The testimony of Mr. Fowler reveals that the going rate for helicopter-repair services on-island is about $50 an hour, [23ASR2d11] and we so find. Accordingly, plaintiff shall have judgment against the defendant vessel M/V Souza in the amount of $2000.

It is so ordered.

*********

1. According to Feliciano, the layover time involved with the unloading of the catch after each trip would vary from one week to a month, and sometimes up to two months, depending on the cannery . Between voyages, the non-Samoan crew members would usually return home until the vessel was ready to fish again.

2. Obviously, a compensation rate tied solely to tonnage, as subsequently sought by plaintiff, would be more favorable to the seaman in circumstances where fishing voyages are of short duration. Such a rate, however, would be unfavorable to him when a fishing trip takes an extended period of time. Illustrative is plaintiff's last voyage with his former employer prior to signing on with the M/V Souza; this trip only netted plaintiff the paltry sum of $555.47, representing four-and-a-half months of fishing and compensation based solely on tonnage at $7.25 per ton. Thus, there is a certain risk-factor attendant with either index.

American Samoa Power Auth. v. National Pacific Ins. Co.,


AMERICAN SAMOA POWER AUTHORITY, Plaintiff

v.

NATIONAL PACIFIC INSURANCE CO., Defendant

High Court of American Samoa
Trial Division

CA No. 39-92

January 20, 1993

__________

Regarding a summary-judgment motion. a court assumes the truth of the evidence presented by the non-moving party and draws inferences most favorable to the non-moving party.

When a party disputed an assertion that a written insurance contract was the product of mutual mistake and so did not reflect the actual terms of the policy, a factual dispute precluding summary judgment existed.

Before KRUSE, Chief Justice, T AUANU'U , Chief Associate Judge, LOGOAI, Associate Judge.

Counsel: For Plaintiff, Robert A. Dennison III
For Defendant, John L. Ward II

Order Denying Summary Judgment:

This matter came before the court on defendant's motion for summary judgment. After hearing oral argument on this motion, the court ordered counsel for the parties to submit further memoranda of points and authorities for their respective positions. Having duly considered same, and upon reflection of the entire record (but not the [23ASR2d101] documents and affidavit appended to the plaintiff's Supplemental Memorandum in Opposition to Motion for Summary Judgment, per the court's prior Order Denying the Admission of Supplementary Documents), the court hereby denies the defendant's motion.

In these matters, we must assume the truth of the evidence presented by the non-moving party and draw therefrom inferences most favorable to the non-moving party. Lokan v. Lokan, 6 A.S.R.2d 44 ( 1987) .It appears that the plaintiff is asserting that the actual agreement between itself and the defendant is not truly represented by the insurance policy and interlineated language contained therein, and that the actual terms of the policy were established orally and by exchange of informal writings between the parties. In other words, the contention appears to be that the contract, as written, is the product of mutual mistake. See Defendant's Answers to Interrogatories at 4, lines 24-25 (filed Sept. 3, 1992). The defendant naturally disputes this assertion. The existence of mutual mistake is difficult to establish absent additional parol evidence (indeed, the fact that the plaintiff attempted to provide such evidence along with its Supplemental Memorandum in Opposition to Summary Judgment is telling). See Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 1 (1987). The core of this dispute, then, is factual, and thus summary judgment is inappropriate and will not issue.

It is so ordered.

*********

American Samoa Gov’t v. Wilson,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

PENIAMINA WILSON, Defendant

High Court of American Samoa
Trial Division

CR No. 8-93

March 31, 1993

__________

As officers of the court, members of the bar may be appointed, without compensation if necessary , as counsel to insure that indigent criminal defendants receive legal representation. Rev. Const. Am. Samoa Art. I, § 6; A.S.C.A. § 46.0502(2), 46.1001.

Requiring criminal counsel to serve without compensation is generally not an unconstitutional taking of property without just compensation. U.S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 2.

Severe economic hardship is a factor which the court may appropriately consider in deciding whether to permit an attorney to withdraw as counsel.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
Jill W. Crew, Pro Se [23ASR2d160]

On Motion to Withdraw:

On March 16, 1993, District Court Judge Pro Tempore Roy J.D. Hall, Jr. appointed Jill W. Crew, a newly admitted member of the American Samoa Bar Association, as the court-appointed counsel for defendant Peniamina Wilson. Counsel Crew filed a motion to withdraw from her appointment as defense counsel on March 23, 1993, and a hearing on her motion was held on March 30, 1993. She claims financial hardship and argues, among other things, a constitutional "taking" without just compensation.

The established tradition and practice in this jurisdiction has been such that members of the bar may be appointed, without compensation if necessary, to represent indigent defendants in criminal cases. This practice follows the majority rule, which permits a court to appoint counsel based on an attorney's status as an officer of the court. As one court noted, "[t]he vast majority of federal and state courts which have addressed the due process issue have decided that requiring counsel to serve without compensation is not an unconstitutional taking of property without just compensation." Williamson v. Vardeman, 674 F.2d 1211,1214-15 (8th Cir. 1982); see Powell v. Alabama, 287 U.S. 45,73 (1932); United S'tates v. Dillon, 346 F.2d 633,635-36 (9th Cir. 1965), cert. denied 382 U .S. 978 (1966); Family Division Trial Lawyers of the Superior Court--D.C., Inc. v. Moultrie, 725 F.2d 695,705 (D.C. Cir. 1984). Thus, there is no "taking" of a lawyer's "services without just compensation when he performs an obligation imposed upon him by the ancient traditions of his profession and as an officer assisting the courts in the administration of justice." Dillon, 346 F .2d at 636; see Moultrie, 725 F.2d at 705 (quotingDillon); Williamson, 674 F.2d at 1215 (quoting Dillon). (1)

In reaping the benefits as a legal professional, an attorney accepts his office cum onere. One of his duties includes the gratuitous representation of indigent defendants. Williamson, 674 F.2d at 1214-15; [23ASR2d161] Moultrie, 725 F .2d at 705; Warner v. Commonwealth, 400 S. W .2d 209, 211 (Ky. App. 1966), cert. denied 385 U .S. 858 (1966); People v. Randolph, 219 N .E.2d 337, 340 (111. 1966). As such, service as court- appointed counsel does not, in itself, constitute a constitutional "taking" without compensation. Williamson, 674 F.2d at 1214-15; Moultrie, 725 F.2d at 705; Warner, 400 S.W.2d at 211. This rationale is all the more compelling when the funds appropriated for appointed counsel have been exhausted. E.g., Wolf! v. Ruddy, 617 S.W.2d 64 (Mo. 1981) (per curiam), cert. denied 454 U.S. 1142 (1982).

However, severe economic hardship is a factor which the court may appropriately consider in deciding whether to permit an attorney to withdraw as counsel. See, e.g., Wolff, 617 S.W.2d at 67 (court to consider right to earn a livelihood and to be free from involuntary servitude); Okeechobee County v. Jennings, 473 So. 2d 1314, 1315 (Fla. Dist. Ct. App. 1985) (granting motion to withdraw by attorneys claiming that further representation would cause "financial ruination "); see also Moultrie, 725 F .2d at 705-06 ("unreasonable amount of required uncompensated service might" constitute a "taking").

Counsel Crew testified that in her nine or ten weeks of practice, she has had to devote about two weeks of that time to this case. She further testified that she receives a salary and hourly rate as an "independent contractor" for Ala'ilima & Associates, and her income is accordingly tied to billable hours she generates for the office. She has asserted monthly expenses exceeding $1300 a month and has claimed that these expenses, combined with a lack of current income and her prospective termination in May, would cause her severe financial hardship. Counsel further claims that her loss of income due to time spent on the defendant's case is exacerbated by the complexities of the case and her inexperience with criminal proceedings. Attorney Charles Ala'ilima testified and confirmed that Ms. Crew has indeed spent 30 to 35 percent of her time "getting up to speed" on criminal-trial procedure. He testified that this has, in turn, created a financial strain on his office; at the same time he is phasing-out much of his practice in American Samoa. In fact, Jill Crew was apparently hired to help clear-out the backlog in Ala'ilima's office, in preparation for its closing.

On the other hand, defendant Wilson still needs counsel for his criminal trial. This court also recognizes the work being done by other members of the bar in representing other indigent defendants during this period of judicial budgetary constraints. A number of attorneys have had to make sacrifices in terms of time and finances. In short, this court [23ASR2d162] must insure that indigent criminal defendants receive legal representation. Rev. Const. Am. Samoa Art. I, § 6; A.S.C.A. §§ 46.0502(2), 46.1001. At the same time, this court is attempting to mitigate the financial hardships imposed by serving as court-appointed counsel. Nevertheless, each member of the bar, as an officer of the court, must be willing to serve as court-appointed counsel when the need arises.

Given counsel Crew's present and special circumstances, this court grants counsel her motion to withdraw as Wilson's defense counsel and instead appoints Charles Ala'ilima, who is a senior member of the bar, an experienced criminal-law attorney and former district-court judge. This arrangement is subject to the defendant's approval. However, counsel Crew must nonetheless assist counsel Ala'ilima, as he may require, in regards to her previous research and consultations with the defendant. In terms of the more effective employment of time within the office, this arrangement should mitigate the financial hardships to both counsel Crew and Ala'ilima. Of paramount importance, though, is defendant Wilson's constitutional right to counsel, which will be protected by this order of the court.

Upon the written approval of Mr. Wilson, filed with the clerk, the order entered by Judge Hall, aforementioned, shall be amended accordingly.

It is so ordered.

*********

1. Counsel's citation of Mallard v. United States District Court for the Southern District of Iowa, 490 U .S. 296 (1989), is inapplicable. The U.S. Supreme Court specifically stated that its decision was limited to interpreting 28 U.S.C § 1915(d), which permits a federal court to "request" an attorney to represent a person claiming forma pauperis status. Id. at 310. Indeed, the Court noted the ethical obligation of lawyers "to volunteer their time and skills." Id.

American Samoa Gov’t v. Gotoloai,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

REX ENOKA GOTOLOAI, Defendant

High Court of American Samoa
Trial Division

CR No. 26-92

December 11,1992

__________

Reflecting the "ancient common-law rule" that an officer may make a warrantless arrest if reasonable grounds of a felony's commission exist, even if it occurred outside of his presence, a warrantless arrest is not invalid merely because a warrant could have been obtained but was not. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5.

Arrests and searches are treated differently because "unreasonable search and arrest" provisions are concerned with restricting the use of general search warrants, not with prohibiting warrantless felony arrests; as such, warrantless arrests are permissible if supported by probable cause. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq.

Reflecting the common-law rules, the exceptions to American Samoa's arrest-warrant requirement include arrests of felony suspects near a crime scene shortly after a crime's commission, arrests for misdemeanors and felonies committed in an officer's presence, and arrests based on "reasonable grounds" that a felony or breach of the peace has been committed. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq.

The meaning of statutory provisions generally requiring an arrest warrant must be ascertained in light of the purpose of promoting efficient law enforcement, while protecting individual rights, and of the traditional and almost universal practice of warrantless arrests. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq.

If a suspect "voluntarily, knowingly and intelligently" waives his rights to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible; this applies to both volunteered statements and statements made after the suspect expressly states that [23ASR2d66] he wants to make a statement and does not want a lawyer are admissible as evidence. U .S. Const. Amend. V.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant, Aitofele T. Sunia

On Motion to Suppress:

The defendant is charged with first degree murder (A.S.C.A. § 46.3502(A)(1)) and tampering with physical evidence (A.S.C.A. § 46.4611). He seeks to suppress certain incriminating statements he made to the police; he claims that the statements were made not only in violation of his rights against self-incrimination but also at a time when he was unlawfully in custody.

DISCUSSION

Article I, Section 5 of the Revised Constitution of American Samoa provides for safeguards against "unreasonable searches and seizures." This provision, parallel to the Fourth Amendment to the United States Constitution, is implemented by A.S.C.A. §§ 46.0801 et seq. Although arrest warrants are generally required, the statute describes a number of situations in which a warrant is unnecessary .One of these situations concerns felony suspects found near a crime scene shortly after a crime was committed. A.S.C.A. § 46.0805(3). Defendant argues, and the American Samoa Government disputes, that his warrantless arrest was unlawful because it did not fall into the aforementioned exception. In addition, the government also contests defendant's claim that his waiver of rights and subsequent confession were not made knowingly and voluntarily.

A. Warrantless Arrest

Under the Fourth Amendment to the United States Constitution, a warrantless arrest is not invalid merely because a warrant could have been obtained but was not. "The necessary inquiry ...[is] not whether there was a warrant or whether there was time to get one, but whether [23ASR2d67]

there was probable cause for the arrest." United States v. Watson, 423 U.S. 411, 417 (1976). Even though a magistrate's review provides the maximum protection of individual rights, requiring such review "would constitute an intolerable handicap for legitimate law enforcement." Id. (The Supreme Court "has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant." Id. at 417-18 (quoting Gerstein v. Pugh, 420 U.S. 103, 113 (1975)). The Fourth Amendment reflects the "ancient common-law rule" that an officer may make a warrantless arrest if reasonable grounds that a felony has been committed exist, even if it occurred outside his presence. This is the prevailing rule under state constitutions and statutes. Id. at 418-19. Arrests and searches are treated differently because drafters of "unreasonable search and arrest" provisions were concerned with restricting the use of general search warrants, not with prohibiting warrantless felony arrests. Id. at 419-20 (quoting Rohan v. Swain, 59 Mass. 281, 284-85 (1850)); see id. at 429-30 (Powell, J., concurring). Almost all of the states have enacted statutes which explicitly authorize warrantless arrests in felony cases if probable cause is present. This "traditional and almost universal standard for arrest without a warrant" is reflected in American Law Institute Model Code of Pre-arraignment Procedure § 120.1 (1975). Id. at 421-22. Both the federal and state governments have long permitted "warrantless public arrests on probable cause rather than [] encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like." Id. at 423-24.

Although American Samoa requires an arrest warrant in most cases, the exceptions described in A.S.C.A. § 46.0805 reflect the common-law rules which lay the foundation for states' warrantless-arrest statutes. These exceptions include arrests for misdemeanors and felonies committed in an officer's presence and those based on "reasonable grounds" that a felony or breach of the peace has been committed. (1)

The purpose of these statutory provisions is to promote efficient law enforcement, while at the same time protecting individual rights. The Fono has decided to provide an additional protection for these rights, beyond the protections required by the United States Constitution and the [23ASR2d68] Revised Constitution of American Samoa. However, the meaning of the statute must be ascertained in light of its purpose. That purpose is to insure the arrest of the person who actually committed the crime, not to create loopholes through which a criminal can escape. The statute must be interpreted so as to further this purpose. If the Fono had wanted to impose additional requirements for warrantless arrests, it could have done so. See, e.g., Dejarnette v. State, 732 S.W.2d 346,349 (Tex. Crim. App. 1987) (Tex. Code Crim. Proc. Ann. Art. 14.04 imposes an additional "offender is about to escape" requirement). However, it chose not to do so. Given the crucial need for effective law enforcement and the "traditional and almost universal standard for arrest without a warrant, " we are disinclined to impose any requirements beyond those in the statute.

The purpose of American Samoa's arrest-warrant requirement is to protect individuals' civil liberties, not to permit criminals to escape justice through legal technicalities. Defendant's arguments that the police failed to comply with the exception set forth in A.S.C.A. § 46.0805 fall into the latter category .His first contention is that the police did not "find" him since he had, in effect, turned himself in. This is nothing more than an exercise in semantics. Second, defendant's claim that he was not "near" the crime scene is without merit. Analogous to the idea of "hot pursuit, " "near" under the statute is a relative term, used to help insure that the suspect arrested is the perpetrator of the crime. The purpose of the statute is primarily to insure that police do not avoid normal arrest procedures merely for the sake of convenience, not to establish a particular geographical "sphere" around a crime scene. In any event, defendant's house, located in the village of Vaitogi, was only about a mile inland from the cliffs--the scene of the tampering charge-- where the defendant had invited the police to meet with him. Third, defendant's contention that he was not arrested a "short time" after the crime was committed is erroneous. Four hours between defendant's phone call and his arrest is short enough. Also, the time lapse did not occur because of any police attempt to violate the defendant's rights. In contrast with routine criminal investigations, the police were in active pursuit of a suspect and sought to apprehend him while the evidence connecting him to the crime was still fresh and in existence. The validity of this concern is borne out by defendant's charge of tampering with physical evidence.

In summary, the police complied with the statutory mandates of the arrest-warrant exception under A.S.C.A. § 46.0805(3). Even defendant concedes that the police had sufficient evidence to constitute [23ASR2d69] "probable cause." Thus, the failure to get an arrest warrant beforehand did not violate the statute's purpose or prejudice the defendant. Therefore, defendant's arrest without a warrant was, in our view, lawful.

B. Voluntariness of Confession

Any confession must comply with the requirements set forth in Miranda v. Arizona, 384 U.S. 436 (1966). Although certain elements have been clarified or modified over the years, Miranda remains the hallmark case governing custodial interrogations by the police. In essence, if a suspect "voluntarily, knowingly and intelligently " waives his rights to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible. Id. at 444. This is especially true if the suspect expressly states that he wants to make a statement and does not want a lawyer, and shortly thereafter he makes a statement. Id. at 475. Volunteered statements are also admissible as evidence. Id. at 478.

Defendant indeed "voluntarily, knowingly and intelligently" waived his constitutional rights, and so his confession is admissible. After informing the defendant that he was a suspect in the shooting, Officer Meuta Mageo, Jr. , utilizing a standard warning form used by the police, led the defendant through the warning process by advising him of his constitutional rights and inquiring whether he understood those rights. After the defendant had acknowledged that he understood his rights and indicated that he wished to make a statement, Officer Mageo similarly explained to him the consequences of waiver. Throughout this procedure Officer Mageo repeatedly emphasized the serious nature of the criminal charge and cautioned the defendant that any statements he made could be used against him at trial. After further informing him that he was waiving his rights by making a statement and that he did not have to make a statement unless he wanted to, the defendant nonetheless responded that he wanted to talk to the officer. Contrary to defendant's statements, the only "plain" fact is that defendant knowingly and voluntarily waived his rights, including his right to counsel and right to remain silent. His claims that he cooperated because he was scared of being beaten by the police appear very much to be nothing more than excuses in hindsight, especially when the defendant himself sought out the police in the first place. We find that the defendant was competent to knowingly and voluntarily waive his constitutional rights. He clearly waived those rights and made a written statement, which was similarly a voluntary decision of his own free will. The defendant was thus not denied his constitutional rights. [23ASR2d70]

CONCLUSION

Defendant's arrest was lawful under the warrantless-arrest exception contained in A.S.C.A. § 46.0805. Furthermore, defendant made a knowing and voluntary decision to waive his constitutional rights to make a statement. Therefore, defendant's motion to suppress is hereby DENIED.

It is so ordered.

*********

1. Cf. A.S.C.A. § 46.0805 and A.L.I. Model Code of Pre-arraignment Procedure § 120.1(1) (cited in Watson, 423 U .S. at 422 n.11).

Fuia v. Tua,


UILI FUIA, Plaintiff

v.

TUMANU TUA, SAWYER SIFOA CO., and
INSURANCE COMPANY OF THE PACIFIC, Defendants

High Court of American Samoa
Trial Division

CA No. 17-91

December 18, 1992

__________

The measure of damages to personal property injured but not wholly destroyed is: (a) either: (1) the difference between the value of the property immediately before and after the injury , or (2) at the owner's option when the property is economically repairable, the reasonable cost of repair, with due allowance for any difference between the original value and the value after repairs; and (b) loss of use.

Loss of use is based on the use's value or the amount paid for a substitute during the period when the owner is prevented from using his personal property .

A plaintiff whose personal property was injured has a duty to mitigate damages by undertaking repairs with due diligence; however, this duty may be moderated, and the period may be extended, if delays are encountered because necessary acts are unreasonable or impracticable.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge.

Counsel: For Plaintiff, Robert A. Dennison III
For Defendants, Roy J.D. Hall, Jr.

This is an action in tort for property damage resulting from a motor vehicle accident. Trial took place on September 30, 1992.

FINDINGS OF FACT

This accident involved the collision of a commercial aiga, or "family," bus and a flatbed truck at about 10:30 a.m. on January 8, 1991. This accident occurred in the westbound lane of the main public road immediately adjacent to the JGL Lumber and Hardware (JGL) store in Nu`uuli, American Samoa.

At the time of the accident, the bus was being driven by Uili Collins (Collins) without the knowledge of the bus' owner, Uili Fuia (Fuia). Fa`aea Tapu (Tapu), the regular driver of this bus, had gone fishing the night before and allowed Collins to operate the bus in his place. The truck was owned by defendant Sawyer Sifoa Co. (Sawyer Sifoa) and was operated by defendant Tumanu Tua (Tua), Sawyer Sifoa's employee.

At the time of the accident, Sawyer Sifoa carried the truck's liability insurance with defendant Insurance Company of the Pacific (INSPAC). The policy provided a property damage limit of $5,000 for each accident, with an excess liability endorsement up to an additional $100,000. This endorsement is subject, however, to all conditions of the underlying policy, which does not appear to have been submitted as a complete document at the trial.

1. The Accident.

Seeking items to purchase for Sawyer Sifoa, Tua was operating the truck within the course and scope of his employment. In order to buy some lumber, he had parked the unloaded truck on the concrete parking area in front of and facing the JGL store. The concrete parking area slopes downward from the store to the road. Tua testified that he put the truck's standard transmission into second gear and engaged the parking brake.

As Tua entered the store, the bus started to move backwards, slowly gaining speed, towards the main road. Trying to regain control and stop the truck before it reached the main road, Tua rushed to the truck cab and tried to both start the engine and apply the brake. Nevertheless, the end of the flatbed struck the bus near the right side door. The collision occurred approximately in the middle of the westbound lane of the road.

Clearly, Tua had failed to fully engage the truck's transmission gear when he parked on the inclined parking area, and the transmission slipped into neutral as he entered the JGL store. Because the hand brake was not engaged or was overcome by the truck's weight, the truck rolled backwards and into the oncoming bus. Since traffic on the main road was foreseeable, ordinary or reasonable care towards persons in or owning those vehicles required that the truck be properly parked. Thus, the collision was a natural and uninterrupted consequence of his failure to exercise proper care. Since Tua was acting in the course and scope of his employment, his negligence is imputed to Sawyer Sifoa.

As for the bus, Tua's observations were fleeting at best. Apparently, he saw the bus traveling westbound, when it was still some distance away, but thought it was moving fast enough to get out of the truck's way. Although several bus passengers and others probably observed the collision, we heard from only two other purported percipient witnesses.

Tapu, the regular driver, stated that he was seated in the left rear corner of the bus. He testified that the bus was moving at about 20 miles per hour as it approached the JGL store area and that the driver continued straight into the truck's path without looking at the truck or taking any evasive action. Since he turned over the bus to Collins several miles away at Fagatogo and after a night of fishing, we harbor doubts about his actual presence on the bus. However, his testimony was at least consistent with Tua's observation on the lack of any attempts to elude the truck.

Duke Vienna was also just inside one of the front doors of the JGL store when the truck began to roll backwards. He saw the bus moving slowly into the area and thought that the bus could have been stopped in time. Instead, the driver accelerated in an unsuccessful attempt to avoid the accident.

Collins either was inattentive, if not oblivious, to the predicament of the truck or possessed poor judgment in accelerating to attempt to avoid the collision. A combination of both factors was probably involved in his failure to use ordinary or reasonable care. Because he was neither aware of nor properly reacted to the surrounding circumstances, the collision was also a natural and uninterrupted result of his careless driving.

Considering all the surrounding circumstances, the proportionate shares of the negligence attributable to Tua and Collins are determined to be 60% and 40%, respectively.

2. Damages.

The measure of damages to personal property injured but not wholly destroyed is: (a) either (1) the difference between the value of the property immediately before and after the injury, or (2) at the owner's option when the property is economically repairable, the reasonable cost of repair, with due allowance for any difference between the original value and the value after repairs; and (b) loss of use. Restatement (Second) of Torts § 928 (1979). Fuia has elected to recover the reasonable cost of repair, without any claim of residual depreciation after repair, and defendants have not contended that this measure be adjusted because the cost of repair exceeded the decline in value caused by the accident.

The back of the flatbed truck struck the right side of the bus at or next to the rear side of the door, piercing the bus just above the passengers' floor. Several witnesses, including Tapu (who may not have seen the damaged bus until later), INSPAC's inspector, and Fuia and his principal repairman, testified in some detail to the extent of the bus' damage. While the testimony differed, we are persuaded that in addition to the right siding and door, several side posts and passenger seats, the floor, and the roof sustained damage. Most importantly, one main beam was fractured. The repair estimate for materials, parts and labor, excluding painting, was $5,839.85. The actual cost, including painting, was $6,178.24. When considered in the light of the descriptions by Fuia and his repairman of the work done, it is apparent that the bus was substantially reconstructed. We are not satisfied that all of this work was necessary. Hence, although no evidence precisely identified nonessential repairs, we find that $4,633.68, the actual cost reduced by 25%, was the reasonable cost of repairing the damage to the bus resulting from the accident.

Loss of use is based on the value of that use or the amount paid for a substitute during the period when the owner is prevented from using the injured personal property. Restatement (Second) of Torts § 931 (1979). This time period is generally defined as the time reasonably required for repairing the property. Valencia v. Shell Oil Co., 147 P.2d 558, 560 (Cal. 1944). However, the owner's duty to mitigate damages by undertaking repairs with due diligence may be moderated, and the period may be extended, if delays are encountered because necessary acts are unreasonable or impracticable. Id. at 561. In Valencia, the plaintiff owner lacked the financial ability to pay, and the defendant tortfeasor refused to pay, a repair bill for a truck used in the plaintiff's business.

Repair of the bus actually began in early April 1992, and the bus was back in operation on June 18, 1992. The repairman testified that a reasonable time frame for the work done was approximately two months. Fuia contended that the delay in starting the repair resulted from his lack of sufficient funds to purchase all the materials and parts needed. He cited contemporaneous construction of an addition to his house, which competed with the repair work for funds and required piecemeal purchase of repair items for the bus.

Although we have found that more work was done on the bus than was necessary to repair the accident damage, we are satisfied that 60 days was a reasonable period for the repairs actually required. We do not, however, find that the delay from January to April 1991 in commencing the repair was due to Fuia's inability to pay for the repair materials, parts and labor. Fuia was, and still is, employed as an accountant. He should and could have found the means to more promptly begin and complete the repair.

Both Fuia and Tapu testified that the daily, average gross income from the commercial operation of the bus, Monday through Saturday of each week, was $100. Clearly, the gross earnings varied almost every day, and Tapu also testified to variable averages for each weekly operational day. This testimony showed a lesser daily average closer to $87 per day. However, for purposes of assigning a value to Fuia's loss of use of the bus, we find that $100 per operational day is a reasonable average. Gross bus earnings were divided between the owner and driver, the owner receiving 65 cents of every $1. The driver paid for gas out of his 35-cent share. Beginning on January 10, 1991, the day the repair estimate was given, and ending on March 10, 1991, there were 51 actual bus operation days during this 60-day period. Thus, the reasonable value of Fuia's loss of use was 65% of estimated gross revenues of $5,100, or $3,315.

Adding the reasonable cost of repair, $4,633.68, and the reasonable value of the loss of use, $3,315.00, we find that Fuia's total damages were $7,948.68. Apportioning this sum according to the degree of fault found to be attributable to Tua (60%) and Collins (40%), we find that Fuia's recoverable damages are $4,769.21.

CONCLUSIONS OF LAW

1. Tua negligently parked the truck on the occasion of this accident, and his negligence was a proximate cause of the damage to Fuia's bus.

2. At the time of the accident, Tua was acting in the course and scope of his employment by Sawyer Sifoa, the owner of the truck. Tua's negligence is properly imputed to Sawyer Sifoa to the full extent of his liability to Fuia, as the owner of the bus.

3. Collins negligently operated the bus, and his negligence was the other proximate cause of the damage.

4. Comparing the negligent conduct by Tua and Collins, assessment of responsibility at 60% for Tua and 40% for Collins is reasonable.

5. Fuia, as the owner of the bus, suffered damages in the amounts of $4,633.68 for the reasonable cost of repairing of the bus and $3,315.00 for the reasonable value of the lost use of the bus, for a total of $7,948.68.

6. Apportioning the damages on a 60%-40% basis between Tua and Collins, respectively, Tua and Sawyer Sifoa are jointly and severally liable to Fuia in the sum of $4,769.21.

7. Under the terms of the motor vehicle liability insurance policy issued to Sawyer Sifoa, INSPAC has the ultimate contractual responsibility for payment of Fuia's property damages in the sum of $4,769.21.

Judgment shall enter accordingly. It is so ordered.

**********

Fuia; Fuimaono v.


PETER FUIMAONO, Plaintiff

v.

UILI FUIA, LOSA FUIA, TAMAPELE TEVASEU
and SOFIMA TEVASEU, Defendants.

MERETIANA PALEMIA, LAVASI`I TAUOA,
CRADDICK DEVELOPMENT, INC., and
MAGADALENE VAIVAO, Necessary Third-Party Defendants

MERETIANA PALEMIA, Cross-Claimant,

v.

LAVASI`I TAUOA, Cross-Defendant.

High Court of American Samoa
Land and Titles Division

LT No. 9-90

January 29, 1983

__________

An implied easement by necessity is inappropriate as long as some means of access exists.

A civil action may be dismissed if, upon the facts and the law, a plaintiff has shown no right to relief. T.C.R.C.P. Rule 41(b).

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and MATA`UTIA, Associate Judge.

Counsel: For Plaintiff, Charles v. Ala`ilima
For Defendants Uili Fuia and Losa Fuia, Robert A. Dennison III
For Necessary Third-Party Defendant and
Cross-Claimant Meretiana Palemia, Togiola T.A. Tulafono
For Necessary Third-Party Defendant and
Cross-Defendant Lavasi`i Tauoa, Afoa L. Su`esu`e Lutu

The trial of this action on December 3 through 8, 1992, including inspection of the land area involved on December 4, 1992, [23ASR2d122] portrayed yet another vivid example of the ongoing slum development in American Samoa. In recent years, badly conceived land subdivisions have unfurled within the relatively expansive plains in American Samoa between Pala Lagoon and the Villages of Ili`ili and Vaitogi. These disordered subdivisions are born of landowners' monetary greed, with little, if any, discernible planning for sensible rights of way for access roads and power, water, sewer and telephone lines. Unregulated land development of this nature is not in the public interest.

In the absence of land subdivision laws, courts are ill-equipped to constructively deal with problems arising out of privately dominated land subdivisions and, at best, can only forge piecemeal solutions in some specific situations. Lands subject to traditional values and properly governed by traditional leaders may fare well enough, even though technical deficiencies for suitable utility installations may occur. However, much of the plains area lacks any effective local governmental authority. The need is evident for legislative enactment and meaningful executive enforcement of a land subdivision law requiring prior approval and continuing oversight of land development plans by an appropriate public agency. The American Samoa Government's three branches in concert could step in and reasonably control this sorry state of affairs.

In this particular case, we are unable to fashion any legally acceptable remedy to correct the right of way problem about which plaintiff Peter Fuimaono ("Fuimaono") understandably complains.

FINDINGS OF FACT

The attached drawing of the land area involved in this action is provided to assist in following the numerous, interrelated transactions described below.

At one time, necessary third-party defendant Lavasi`i Tauoa ("Lavasi`i") owned approximately 26.8 contiguous acres of land, known as "Ogevai," in the plains generally recognized as Tafuna, American Samoa, as individually owned land. In December 1981, he sold 1.05 acres at the southern end of this land ("Lot 12") to necessary third-party defendant Magdalene Vaivao ("Vaivao"), who, under the name Magdalene V. Craddick, also owned a large tract of land below this lot. Contemporaneously, if not in connection with this transaction, Lavasi`i and necessary third-party defendant Craddick Development, Inc. ("CDI") reached an oral agreement that authorized access to both their properties by an undedicated dirt road extending from the road (now paved) at the [23ASR2d123] northeast corner along the eastern boundary of Lavasi`i's land and turning westward into these properties ("ROW 1").(1)

In May 1984, Lavasi`i first conveyed another acre of this land ("Lot 10") to his sister, necessary third-party defendant Meritiana Palemia ("Meritiana"), another sister Vaililo Werner, who is not a party, and a brother Aniga Su`a, Jr. ("Aniga"), who is also not a party, as joint owners. In September 1984, he transferred 9.02 acres of this land ("Tract B") to the same three siblings. Tract B lies immediately to the north of Lot 12 and encompasses Lot 10. Lot 10 is at the eastern end of Tract B. The Tract B transaction was a part of the resolution of legal disputes between Lavasi`i and these siblings. At this point, Lavasi`i retained ownership only of the northern 8.73 acres of his original land ("Tract A").(2)

The three siblings agreed in turn to divide Tract B equally among themselves.(3) Meritiana apparently obtained the eastern one-third section and retained approximately one-half acre ("Lot 3") within it for her residence. Lot 3 is located southwest of Lot 10 along the southern boundary of Tract B. She also began (actually before Lavasi`i's conveyances of Lot 10 and Tract B to and the division of Tract B among the three siblings were formalized) the subdivision onslaught of Tract B. In April 1984, she sold Lot 10 to the Seventh-Day Adventist Church of American Samoa, Inc.

Nineteen eighty-five saw three more transactions. In February, Meritiana sold 0.06 of an acre ("Lot 6") to Palako and Valasi Lualemaga, who in April 1987 sold it to Rev. Olivia and Maria Safotu (collectively the "Safotus"). Rev. Safotu is a minister of the Seventh-Day Adventist Church. Lot 6 lies north of Lot 10 adjacent to Tract B. In May 1985, she sold 0.4352 of an acre ("Lot 4") to defendants Uili [23ASR2d124] Fuia ("Uili") and Losa Fuia (collectively the "Fuias"). Lot 4 is located immediately west of Lot 10 and north of Lot 3. In December 1985, she sold one-half of an acre ("Lot 1") to Tonisi and Matapua Matatia. Lot 1 is situated west of Lot 4.

Moving on to 1987, three more transactions occurred. In February, Meritiana sold another 0.06 of an acre ("Lot 7") to the Safotus. Lot 7 lies between Lots 10 and 6. In June, she sold one-quarter of an acre ("Lot 9") to Sausaulele and Beverly Tagaloa, and 0.29 of an acre ("Lot 5") to defendants Tamapele Tevaseu ("Tamapele") and Sofima Tevaseu (collectively the "Tevaseus").(4) Lot 9 is located northwest of Lot 1 and immediately to the south of Tract B. Lot 5 is situated north of Lot 4 and is also adjacent to Tract B. There is another lot, as yet unnumbered, north of Lot 1, between Lots 5 and 9 and also next to Tract B. This lot is occupied by prospective buyers, who so far, apparently, have been unable to consummate purchase.

Except for the unnumbered lot, this series of Meritiana's sale transactions was completed in May 1989 when she sold 0.53 of an acre ("Lot 2") to Sagaga Lafaele. Lot 2 is located west of Lot 3 between Lots 1 and 12. Fuimaono purchased Lot 5 from the Taveseus in August 1989 and completed a then partially constructed house on the property, in which he now resides. Lot 5 is surrounded by Tract B on the north, Lots 6 and 7 on the east, Lot 4 on the south, and the unnumbered lot on the west.

Fuimaono seeks a suitable right of way for access to Lot 5. The present access ("ROW 2") is a dirt road off of ROW 1, apparently beginning in Craddick property, that heads north along the west sides of Lots 2 and 1, and then makes a 90 degree, right turn and heads east between Lot 1 and the unnumbered lot to Lot 5. ROW 2 via ROW 1 provides not only circuitous access, but more important ROW 2 is also narrow, sufficient for only one vehicle to travel and very rough. Recently, the occupants of the land immediately west of ROW 2 and a short distance from its beginning have erected or enlarged a house on their land which has almost encroached upon ROW 2 and has created a safe passage hazard. ROW 1's undedicated status, at least the portion on Vaivao's land, has placed some uncertainty on its permanent and [23ASR2d125] continuous existence. ROW 2's suitability for utility lines, particularly sewer lines, can be seriously questioned.

These circumstances clearly demonstrated Meritiana's lack of concern and foresight for suitable land development when she began subdividing Tract B. This action was commenced on March 22, 1990. On May 11, 1990, she then dedicated land for an access road ("Lot 11"). This dedication set aside a right of way that generally coincided with ROW 2, except in two particulars. First, at 20 feet, it is substantially wider. Second, it circled behind the house causing the safety hazard. It is by no means clear from the evidence that the owner of this house was her or her sibling's grantee. Thus, doubt about the permanency of the new access road in this area, if it is ever constructed, is present. In any event, this hindsight action amply fortified Meritiana's earlier established attitudes.

Access to Lot 5 could be physically accomplished from three other directions. The shortest and most direct route would be a connecting road from Lot 5 to a dirt road close by in Tract A that then continues a short distance to the paved road north of Tract A. However, Lavasi`i at least orally arranged for access to Tract B when it was created, which access is not presently threatened. Under existing circumstances, neither Lavasi`i nor any of his grantees of lots in Tract A has any legal obligation to permit access to Lot 5 across Tract A.

A right of way could be established from the east across Lot 10 and then a small portion of either Lot 7 or Lot 4 to Lot 5.(5) However, as pitifully inadequate as ROW 2 is, this solution would require a finding of necessity, as enunciated in Sese v. Leota, 9 A.S.R.2d 35 (1988), new trial denied, 9 A.S.R. 136 (1988). An implied easement by necessity would be inappropriate, so long as access over ROW 2 is available.

Lastly, a right of way to Lot 5 from the south could be recognized in Lots 3 and 4. Justification by necessity for this solution is no more proper than it would be across Lots 10, 7 or 4 from the east. However, the conveyance of Lot 4 to the Fuias does show a 12-foot right of way extending along the entire east boundaries of Lot 4 and, apparently, Lot 3 retained by Meritiana. There is in fact an access road [23ASR2d126] across Meritiana's Lot 3 into the Fuias' Lot 4, meandering some distance from the right of way shown in the Lot 4 conveyance.(6) Meritiana and Uili have denied any intention to create a right of way to Lot 5 in the Lot 4 conveyance.

Indeed the conveyances of Lot 5, first by Meritiana to the Tevaseus and later by them to Fuimaono, contained no indications of any such intent. Moreover, the Tevaseus constructed a stone wall along the south boundary of Lot 5, which is generally parallel to the original north boundary of Lot 4. They understood that ROW 2 was their access way to Lot 5, and Tamapele passed on that information to Fuimaono when he bought Lot 5. Also of some note is the relatively steep incline between Lots 4 and 5.

Meritiana's sale to the Fuias on July 11, 1990, again after commencement of this action, of a 0.035 strip of land between Lots 4 and 5, raised some doubt about the denial by Meritiana and the Uili of any intent to create in the Lot 4 conveyance a right of way to Lot 5. Apparently, this strip resulted from earlier survey mistakes, and the belated sale may have been motivated by an opportunity to establish an additional buffer between the end of the surveyed right of way in the Lot 4 conveyance and Lot 5. However, we find from the entire circumstances that the right of way across Lots 3 and 4 was not created to provide access to Lot 5.

CONCLUSIONS OF LAW

1. The Fuias, Meritiana and Lavasi`i are entitled to dismissal of this action pursuant to their respective motions under T.C.R.C.P. Rule 41(b) on the ground that upon the facts and the law Fuimaono has shown no right to relief.(7)

2. Lavasi`i is entitled to dismissal of the third-party claim by Meritiana against him pursuant to T.C.R.C.P. Rule 41(b) and (c). [23ASR2d127]

3. Fuimaono is not entitled to default judgments against the Tevaseus, CDI or Vaivao pursuant to his motion for default judgments against them under T.C.R.C.P. Rule 55(b), and that motion will be denied.

Judgment shall enter accordingly. It is so ordered.

***********





1. CDI and Vaivao have been served with process but have not appeared in this action. Fuimaono's motion for default judgments against them are simultaneously under advisement with the trial decision.

2. Tract B, minus two later adjustments to the southeast and southwest corner areas, was registered as Lavasi`i's individually owned land in January 1982.

3. In 1985, Aniga and his wife sold their three-acre plus portion to Vaivao as trustee for Douglas O. Craddick.

4. The Tevaseus also failed to appear and are the subject of Fuimaono's motion for a default judgment under advisement.

5. Although Lots 6 and 7 are presently landlocked, their ownership by a minister of the Seventh-Day Adventist Church, which owns Lot 10, forestalls any immediate access problem to these two small lots.

6. Despite available access to Lot across ROW 2, a dirt road across Lot 3 to Lot 2 also exists. Meritiana testified that this means of access to Lot 2 is only temporary.

7. These motions were made after Fuimaono had completed the presentation of his evidence. In accordance with Rule 41(b), the court declined to render any judgment until the close of all the evidence.

Fiame; Reine v .


WILBUR J. REINE, Plaintiff/Counter-Defendant

v.

MAGAUI AFO FIAME, SIIGAVAA FALEALI'I,
TINA ATOFAU, LOGOLEO FALEALI'I, the AFO FAMILY,
and SOUTH PACIFIC EQUIPMENT AND REPAIR,
Defendants/Counter-Claimants

High Court of American Samoa
Land and Titles Division

LT No. 50-92

November 12, 1992

__________

Judicial notice may be taken of facts generally known within the territorial jurisdiction of the court. T.C.R.Ev. Rule 201(b)(1).

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, MATA'UTIA, Associate Judge.

Counsel: For Plaintiff and Counter-Defendant Wilbur J. Reine,
Gata E. Gurr
For Defendants and Counter-Claimants Magaui Afo
Fiame, Siigavaa Faleali 'i, Tina Atofau, Logoleo Faleali'i,
and the Afo Family, Charles v. Ala'ilima
For Defendant and Counter-Claimant South Pacific
Equipment and Repair, Roy J.D. Hall, Jr.

Amendment to Opinion and Order:

The court, on its own motion, has reconsidered the evidence and amends the Opinion and Order, issued and entered in this action on November 9, 1992, as follows:

1. The names of counsel Charles v. Ala'ilima's clients are amended to include Magaui Afo Fiame's full name.

2. The last three lines of the present last paragraph of the Findings of Fact are amended to read:[23ASR2d37] "any such damages, other than (1) $5,108.41 expended by SPEAR on repairs for property damage to the premises caused by Hurricane Ofa in 1990, (2) lost sub-sublessee income after April 18, 1992, and (3) travel expenses as a result of Reine's letter of August 29, 1991."

3 .The following new paragraph is added to the end of the present Findings of Fact to read:

"With respect to the last item, Reine sent a letter, dated August 29, 1992, to the NAPA Distribution Center in Honolulu, Hawaii, in which he incorrectly stated that SPEAR was two years behind in payments of monies due to Reine in connection with the sublease. This letter necessitated a trip to Honolulu by SPEAR's owner, Robert Coulter ("Coulter"), to set the record straight with the Distribution Center . Although no evidence was presented on the exact costs of this trip, we have taken judicial notice of the reasonable costs of such a trip as facts generally known within the territorial jurisdiction of the court, under T.C.R.Ev. Rule 201(b)(I). In September, 1991, round-trip economy airfare between Pago Pago, American Samoa and Honolulu, when purchased seven or more days in advance, was $595. Since Coulter could have readily completed his business with the Distribution Center on this occasion in one day and returned to Pago Pago after a single overnight stay, his reasonable trip costs in Honolulu, including ground transportation, hotel accommodations, and food, would have been approximately $300. Thus, the total trip costs of approximately $895 were, as a result of Reine's letter, a legitimate business expense against SPEAR's 1991 revenues."

4. The following new paragraph 7. is added to the Conclusions of Law to read:

"7. Due to Reine ' s letter of August 29, 1991, SPEAR suffered damages in lost profits in 1991 in the reasonable amount of $895."

5. Present paragraph 7. of the Conclusions of Law is renumbered as paragraph 8. and is amended to read:

"8. Reine recovers judgment in the sum of $948.36 on his complaint for rent against SPEAR. In all other respects, his two complaints against SPEAR are dismissed. Reine's complaint against the Afo Family is also dismissed. SPEAR recovers judgment in the sum of $895 on its counterclaim against Reine. In all other respects, its [23ASR2d38] counterclaim against Reine is dismissed. The Afo Family's counterclaim against Reine is also dismissed."

It is so ordered.

*********

Fiame; Reine v.


WILBUR J. REINE, Plaintiff/Counter-Defendant

v.

MAGAUI AFO FIAME, SIIGAVAA FALEALI'I,
TINA ATOFAU, LOGOLEO FALEALPI, the AFO FAMILY,
and SOUTH PACIFIC EQUIPMENT AND REPAIR,
Defendants/Counter-Claimants

High Court of American Samoa
Land and Titles Division

LT No. 50-92

November 9, 1992

__________

For a motion to dismiss at the conclusion of a plaintiff's evidence in a court-tried civil action, restyled by the Federal Rules of Civil Procedure as a judgment on partial findings, a plaintiff must prevail by a preponderance of the evidence. Fed. R. Civ. P. 52(c); T.C.R.C.P. Rule 41(b).

An untimely attempt to exercise an option to renew or extend a lease is ineffective. As a tenancy for a fixed term expires without any notice or other act at the end of the term, when a lessor clearly showed its intent to terminate a lease, a lessee does not hold over as a consensual tenant at sufferance, tenant at will, or periodic tenant.

Except by statute or agreement, a commercial lessor is not obligated to repair or renovate leased premises.

While a contemporaneous oral agreement may establish a lessor's duty to repair, a subsequent oral undertaking cannot vary a written lease complete in itself.

Civil damages cannot be awarded in the absence of evidence of some reasonable basis of the monetary amount of those damages which can be determined.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and MATA`UTIA, Associate Judge.

Counsel: For Plaintiff and Counter-Defendant Wilbur J. Reine, Gata E. Gurr [23ASR2d26]
For Defendants and Counter-Claimants Fiame, Siigavaa Faleali`i,
Tina Atofau, Logoleo Faleali`i, and the Afo Family, Charles V. Ala`ilima
For Defendant and Counter-Claimant South Pacific Equipment and Repair,
Roy J.D. Hall, Jr.

This action was initiated on November 4, 1991 as CA 125-91 and first framed issues pertaining to rights and obligations under a sublease of land and improvements by Wilbur J. Reine ("Reine") to South Pacific Equipment and Repair ("SPEAR"). This action was followed by a second action, filed as CA No. 87-92 on September 2, 1992, in which Reine sought injunctive relief against the Afo family and individually named family members (collectively, the "Afo family") and SPEAR. This second action raised issues with respect to the lease of the same land and a dwelling by the Afo family to Reine, as well as the sublease.

On September 30, 1992, disposition of the Afo family's motion to dismiss on the grounds of (1) lack of jurisdiction and (2) failure to state a claim, under T.C.R.C.P. Rule 12, was postponed until the trial on the merits, and Reine's application for a preliminary injunction was denied. CA No. 125-91 and CA No. 87-92 were also consolidated and transferred to the Land and Titles Division, pursuant to A.S.C.A. § 3.0208(b)(2), and later renumbered as LT No. 50-92. The Afo family then moved to refer these actions to the Secretary of Samoan Affairs for dispute resolution proceedings under A.S.C.A. § 43.0302, which was denied on the grounds that the controversy did not involve any underlying title issues to communal land.(1) In addition, the trial of both actions was [23ASR2d27] scheduled for October 15, 1992 (the date on which former CA No. 125-91 had been previously set for trial), and the time to file answers to the complaint in former CA No. 87-92 was shortened to require filing no later than October 6, 1992.(2)

The trial took place on October 15 and 16, 1992. After Reine completed the presentation of his evidence, SPEAR and the Afo family, pursuant to T.C.R.C.P. Rule 41(b), moved for dismissal of Reine's complaints on the ground that upon the facts and the law, Reine had not shown any right to relief. However, as permitted by T.C.R.C.P. Rule 41(b), the court declined to render judgment until the close of all the evidence.(3) Having heard and considered all of the evidence, the court [23ASR2d28] has made the following findings of fact and conclusions of law, as required by T.C.R.C.P. Rule 52(a).

FINDINGS OF FACT

The two leasehold agreements are at the foundation of this controversy.

On April 19, 1972, Tema Afo leased certain land in Faganeanea, American Samoa, and a dwelling on the land to Reine. The evidence clearly indicated that this land is the communal land of the Afo family; that Tema Afo was then the senior chief, or "sa`o," of the Afo family; and that he entered into the lease as the sa`o. The initial term of the lease was 20 years, beginning on April 19, 1972, and ending on April 18, 1992. Reine was given the option to renew or extend the lease for another 10 years upon written notice given at least 90 days before the end of the original term.

On June 28, 1989, Reine subleased the land and all improvements then existing on it to SPEAR. The initial term of the sublease was from August 1, 1989 to April 18, 1992. If Reine elected to extend the lease with the Afo family, SPEAR was given the option to renew the sublease for an additional 10 years by so informing Reine at least 30 days prior to expiration of the original sublease term. [23ASR2d29]

1. Underlying Lease Issues.

Factual findings are necessary on three issues in connection with the underlying lease. First, the continued existence of the underlying lease is at issue, and depends on the effectiveness of Reine's notice to renew or extend the lease. Evidence was presented of extensive written and verbal communications between Reine and SPEAR and between Reine and his legal practitioner, beginning at least as early as August 8, 1990, on the importance of the renewal or extension to SPEAR, Reine's willingness to renew or extend the underlying lease, and the legal practitioner's assurances that the option to renew or extend would be exercised.

Despite these communications, the legal practitioner's letter of March 16, 1992, addressed to Tina Atofau and Logoleo Faleali`i at Matuu, American Samoa, was the first and only notice of the exercise in the record evidence. The evidence, however, did not show actual transmittal of the legal practitioner's letter by mail, personal delivery, or other means, and the Afo family disclaimed receipt of it by the addressees or any other family member.

Since Tema Afo's death in 1983, the Afo family has been without a sa`o. Shortly after his death, the role of family leader in handling decisions requiring a family consensus was taken on principally by defendants Magaui Afo Fiame and Siigavaa Faleali`i, who were elder lesser chiefs, or "matais," of the family. However, by the time of the legal practitioner's letter, Magaui had become the main leader, as Siigavaa's age and health reduced her capacity to participate in these matters. Reine's rental payment checks were regularly drawn payable to Magaui and Siigavaa at least as far back as July 9, 1987. At the time when the lease required exercise of the renewal or extension option, Reine was well aware of their function in Afo family matters, and that his renewal or extension notice could have been given to them. In any event, the notice was not given until well after the 90-day limitation.

The second issue revolves around Reine's use of the premises in light of the lease provision which states that the primary use of the leased premises will be for "storage and sale of construction material and related purposes and supplies." Basically, SPEAR, which also had a NAPA automotive parts and equipment distributorship, has operated a business of storing, selling and repairing equipment and parts. Further, the sublease authorized additional subleasing, which was done by SPEAR [23ASR2d30] to two sub-sublessees, one for automotive repair activities, the other for machine shop facilities.

Third, the amount of rent actually paid by Reine has been put at issue. Reine claimed that the rent had been fully paid through November, 1992, and, for that reason, he stopped making further rental payments after July, 1991. However, his evidence, other than canceled checks issued between July 9, 1987 and December 3, 1989, amounted to an abstract reconstruction of payments, based on the lease requirements rather than records of actual payments. The Afo family, on the other hand, has contended that Reine is behind in the rental payments. However, their evidence has also fallen short of concrete proof of any amount owed. Thus, we are unable to find from the record evidence either an overage or underage in the rental payments by Reine to the Afo family.

2. Sublease Issues.

The sublease also brings to the foreground three issues requiring factual determinations. First, entitlement to the sublease rental payments after April 18, 1992 has been questioned. The Afo family's attorney, by letter dated March 23, 1992, informed SPEAR that when the underlying lease expired in April, 1992, the family was willing to offer a month-to-month tenancy to SPEAR, at the same rental rate paid by SPEAR to Reine under the sublease, for the portion of the premises in actual use by SPEAR. The letter also indicated that similar tenancies would be offered to SPEAR's two sub-sublessees. Since April 18, 1992, SPEAR has paid the rent at this rate directly to the Afo family.

Second, Reine has contested the accuracy of the rental payments by SPEAR to Reine under the sublease. The make-up of the sublease rental has involved three elements: (1) $2,000 per month, (2) 50% of revenue earned from third party use of the premises, and (3) 2.5% of SPEAR's sales volume in excess of $1 million a year (calculated monthly on a cumulative carry forward basis and paid 30 days in arrears). The sublease also authorized SPEAR to enter the premises as of June 28, 1989 and make necessary repairs and renovations to bring the premises to "merchantable" condition, and to credit these costs up to $10,000 against the rent prorated over 24 months. The sublease did not contain any other provision on the duty to repair or renovate. There was, however, evidence that Reine later made oral commitments to SPEAR to extend the repair credit to the full amount of the initial repairs and renovations in the total sum of $17,190.81, as well as to allow credits for [23ASR2d31] the cost to SPEAR of repairs it made for damage caused by two hurricanes. The evidence showed that during the period from August 1, 1989 to April 18, 1992, SPEAR accurately accounted for the three elements of the sublease rental, including a 2.5% sales volume override rental for 1991, the only calendar year in which sales exceeded $1 million, and the $10,000 repair credit. Although the repair credit was not taken strictly by the terms of the sublease, SPEAR made actual payments in accordance with this accounting. It also took additional credits for the cost of repairs which it made as a result of damage to the premises caused by Hurricane Val in 1991, in the sum of $948.36, unused pre-paid rent advanced at Reine's request in the net sum of $516.28, and miscellaneous unpaid services provided by SPEAR to Reine in the sum of $255.61.

Third, SPEAR has sought damages against Reine for alleged lost profits, lost capital investment, relocation expenses, if required to move, and other consequential and foreseeable damages. While SPEAR introduced evidence indicating that it may have suffered certain losses, including in particular the consequences of any breach of Reine's purported promises to renew or extend the underlying lease, this evidence has failed to provide a sufficient basis for enumerating the dollar amount of any such damages, other than (1) $5,108.41 expended by SPEAR on repairs for property damage to the premises caused by Hurricane Ofa in 1990, and (2) lost sub-sublessee income after April 18, 1992.

CONCLUSIONS OF LAW

1. Reine could have exercised his option to renew or extend the underlying lease with the Afo family by delivering his written notice for this purpose to defendants Magaui Afo Fiame, Siigavaa Faleali`i, or other authorized representative of the family, including the family's attorney, no later than 90 days before April 18, 1992. Reine failed to exercise his option to renew or extend the lease in a timely manner, and his effort to exercise the option on March 16, 1992, even assuming his legal practitioner's letter of that date was delivered to an appropriate person, was ineffective. Bekins Moving & Storage v. Prudential Ins. Co., 176 Cal. App. 3d 245, 221 Cal. Rptr. 738 (1985). As a tenancy for a fixed term, the lease expired, without any notice or other act, at the end of the term on April 18, 1992. 49 Am. Jur. 2d, Landlord and Tenant, § 69 (1970). Since the Afo family clearly evidenced their intent to terminate the underlying lease, Reine did not hold over as a consensual tenant at sufferance, tenant at will, or periodic tenant. The City v. Hart, 175 Cal. App. 3d 92, 220 Cal. Rptr. 349 (1985). [23ASR2d32]

2. The expressly authorized use of the premises under the underlying lease, for the "storage and sale of construction material and related purposes and supplies," is modified by the word "primary." Arguably, the express use is sufficiently broad to encompass the activities of SPEAR and its sub-sublessees. However, the word "primary" clearly permits other uses of the premises, and the activities since the sublease commenced in 1989, have not, in any event, been incompatible with the primary use contemplated in the underlying lease. Moreover, all three current uses appear to be acceptable to the Afo family by their express grants of month-to-month tenancies to the present occupants. No breach of the terms of the underlying lease resulted from the sublease and sub-sublease uses of the premises.

3. Since we have not found from the evidence any convincing basis to determine whether Reine's rent under the underlying lease was overpaid, underpaid, or exactly paid as of April 18, 1992, we do not reach any conclusion with respect to rental amounts which may be owed by Reine to the Afo family, or by the Afo family to Reine.

4. Since the underlying lease expired on April 18, 1992, SPEAR has properly paid rent accruing after that date to the Afo family, under the month-to-month tenancy it now has with the family. The Afo family is entitled to those rental payments.

5. SPEAR has correctly accounted for the rental calculations under the terms of the sublease with Reine. The credits taken outside of the terms of the sublease for unused pre-paid rent and unpaid services in making actual rental payments were properly included. However, credit should not have been taken for SPEAR's repairs of Hurricane Val damage. Except by statute or agreement, a commercial lessor is not obligated to repair or renovate leased premises. 49 Am. Jur. 2d, Landlord and Tenant, § 774. While a contemporaneous oral agreement may establish a lessor's duty to repair, a subsequent oral undertaking cannot vary a written lease complete in itself. 49 Am. Jr. 2d, Landlord and Tenant, § 829. In this sublease, the inclusion of the limited repair credit shows that the parties did not intend to hold Reine generally responsible for repairs. Even if the sublease is read to permit oral amendments, we did not find sufficient evidence of genuine agreement by Reine to any such agreements, of his intent to waive the limited repair credit clause. Thus, SPEAR has an additional rental obligation to Reine in the sum of $948.36. [23ASR2d32]

6. Damages cannot be awarded in the absence of evidence of some reasonable basis on the monetary amount of those damages can be determined. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 266 (1946). In addition, as indicated above, SPEAR is not entitled to recover amounts it expended on repairs or renovations to the premises following Hurricane Ofa. Likewise, Reine's oral representations to SPEAR that he would exercise the option to renew or extend the underlying lease were not sufficient to amend the sublease, or to create a separate agreement, and are unenforceable. Reine was not legally obligated to exercise the option. Thus, SPEAR is also not entitled to recover damages for lost sub-sublease rental income after April 18, 1992.

7. Reine recovers $948.36 on his complaint for rent against SPEAR. In all other respects, his complaints against SPEAR are dismissed. Reine's complaint against the Afo family is dismissed. The counterclaims by the Afo family and SPEAR against Reine are also dismissed.

It is so ordered.

**********

1. At the time of the hearing on September 30, 1992, the court relied significantly on Tuilefano v. Beaver, LT No. 31-78 (1978). In an order denying a motion to dissolve a temporary restraining order,Tuilefano dealt specifically with whether or not a controversy relating only to leasehold issues must be heard in the Land and Titles Division. The court, in holding that A.S.C.A. § 3.0208(b)(2) [5 A.S.C. § 402(d)(3) in 1978] required proceedings of all land controversies to be handled in the Land and Titles Division, even though title to communal land was not at issue, cited A.S.C.A. § 43.0302 [11 A.S.C. § 1002 in 1978] in further support of the conclusion that all land controversies belong within the jurisdiction of the Land and Titles Division. Since there was no referral to the Secretary of Samoan Affairs, Tuilefano at least inferentially stands for the proposition that leasehold controversies not involving communal land title disputes need not go through dispute resolution proceedings in front of the Secretary or his deputy before the Court can act substantively. The court did offer to reconsider that issue if any counsel cited any case that might require a different result. No citations have been forthcoming.

2. On April 29, 1992, trial in former CA No. 125-91 was set for October 15, 1992. As of September 30, 1992, former CA No. 87-92 essentially added to the issues whether or not the underlying lease existed after April 18, 1992, and entitlement to injunctive relief resulting from the determination of the lease existence issue. The interrelationships between the two actions were significant. Further, it was apparent to the court that the parties were prepared, or could readily prepare, to proceed with the trial on October 15, 1992. Hearings on applications for preliminary injunctions take precedence over most other matters, as provided by A.S.C.A. § 43.1305(d), and denial of a preliminary injunction in this action was predicated in part on the early trial setting, which would enable a prompt decision on the merits of all issues and avoid the stamp of possible permanent effect of a preliminary injunction decision, particularly with respect to payment of SPEAR's sublease rental payments after April 18, 1992. Reine was in the courtroom on September 30, 1992, and his physical appearance indicated that early substantive resolution of this action was appropriate, so long as the other parties could fairly proceed with the trial.

3. The standard of proof applicable to a motion to dismiss at the conclusion of a plaintiff's evidence in a civil action tried by the court is that a plaintiff must prevail by a preponderance of the evidence. The court is not concerned with whether or not a plaintiff has established a prima facie case, but rather it must weigh the evidence, resolve any conflicts in the evidence, and decide where the preponderance lies. Willis v. Fai`ivae, 10 A.S.R.2d 121, 141 (1989). It is noted that the proposed 1991 amendments to the Federal Rules of Civil Procedure moved this procedure from F.R.C.P. Rule 41(b) to F.R.C.P. Rule 52(c), restyling it as a judgment on partial findings. In this particular action, the documentary evidence presented by Reine was sufficiently voluminous and complex to preclude a hurried decision. Thus, the court chose to defer judgment until it had ample opportunity to review and reflect upon both the witnesses' testimony and documentary evidence.

Fanene v. Taaseu,


FANENE AIPOPO LAULU for Himself and on Behalf
of the FANENE FAMILY, Plaintiffs

v.

MOSE TAASEU and All Members of His Family,
Defendants

High Court of American Samoa
Land and Titles Division

LT No. 25-90

October 5, 1992

__________

The custom of "igagato," a special reward for extraordinary service performed for a Samoan family, may be given to a person who is not related by blood to the family; but a reward of a parcel of communal land for such service is proper only with the entire family's concurrence.

An interest in land is a license and not an "igagato" assignment when permission to use a parcel of land may be terminated by a permanent departure from American Samoa or at will by the sa'o.

A good-faith improver of land is entitled to compensation for the lesser amount of either the present value of the actual construction cost of the improvements or the present, enhanced value of the property resulting from the improvements.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and MAILO, Associate Judge.

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendants, Charles V. Ala`ilima

Plaintiffs filed this action to evict defendants from certain communal land, which is under the control, or "pule," of the senior chief, or "sa`o," of the Fanene family; and to have removed, at defendants' expense, the improvements which defendants have had constructed on the land. Defendants claimed a right to remain on the land under the Samoan custom of "igagato." Pursuant to A.S.C.A. § 43.0302, a certificate of irreconcilable dispute was issued by the Secretary of [23ASR2d2] Samoan Affairs on November 8, 1990, and filed with the Court on May 15, 1991. Trial was held on August 13, 1992.

FINDINGS OF FACT

The land at issue consists of approximately two acres within the communal land of the Fanene family, known as "Malaeimi," in American Samoa. A portion of this land was adjudicated as Fanene communal land by this Court in Aupiu v. Fanene, Case No. 1-1931 (1932). A substantially larger portion of "Malaeimi," which included the portion adjudicated in 1932, was adjudged to be Fanene communal land by the Court in Fanene v. Magalei, LT Nos. 64-77 and 74-77 (1977), aff'd sub nom., Te`o v. Fanene, 1 A.S.R.2d 3 (1980). The two acres are located within the Fanene portion of "Malaeimi." Defendants did not participate in either of these actions in opposition to the Fanene claims.

In addition to these judicial decisions, Fanene Aipopo Laulu (Fanene), the present sa`o of the Fanene family, (1) and another Fanene family member testified at the trial that the two acres are Fanene communal land. Defendants countered that Tinei Su`apaia (Tinei) and his family own or at least control the two acres in that the Fanene titleholder no longer has pule over these two acres. Defendants claimed that Fanene Tuiloli made a customary "igagato" assignment of this land to Tinei and his family, giving them the right to use the two acres so long as they render traditional service, or "tautua," to the sa`o. One Fanene family member, Lagafa`atasi Fanene, who is also defendants' nearby neighbor, testified to his recognition of the Tinei family's right to remain on this land while they continue to provide tautua to the Fanene titleholder. [23ASR2d3]

Fanene acknowledged that the custom of "igagato" exists as a special reward for extraordinary service performed for a Samoan family. The reward may be given to a person who is not related by blood to the family, but that a reward of a parcel of communal land for such service is proper only with the entire family's concurrence. This concurrence is required because a reward of communal land under this custom necessarily deprives the family of use of the land so long as the rewarded person lives as a member of the family and renders tautua to the sa`o.

The status of Tinei and his family on the two acres was a major issue in Su`a v. Pasene, No. 4-1958 (1958), before this Court. The plaintiffs in Su`a were Tinei's two eldest children, who brought the suit during Tinei's extended absence in Hawaii and alleged that Tinei and his offspring were blood members of the Fanene family as the basis for a claim to the land as a sa`o's traditional assignment of communal land to a blood family member. The Court found that Tinei and his children were not blood members of the Fanene family. Tinei came to Tutuila in American Samoa from Upolu in Western Samoa, perhaps as early as 1916. At Tinei's request, Fanene Tuiloli assigned the two acres to Tinei as a plantation area for his and his family's use on the condition that Tinei would not plant any coconut or breadfruit trees. About a year later he authorized Tinei to plant such trees, provided that when Tinei permanently returned to Upolu, any coconut and breadfruit trees planted by Tinei and his family would become the property of the Fanene family.(2)

At the trial Fanene confirmed, and defendants agreed, that Tinei and his family were not blood members of the Fanene family. Fanene and defendant Faimanifo Taaseu (Faimanifo), who is Tinei's youngest child and the wife of defendant Mose Taaseu (Mose), also agreed that (1) Tinei came to Tutuila, during the administration of American Samoa by the United States Navy, (2) he was a student at the Mormon mission school in Mapusaga, which is near the two acres at issue, (3) he later became a church missionary, and (4) any traditional rights or privileges in the two acres belonging to Tinei and his family were granted by [23ASR2d4] Fanene Tuiloli. The parties, however, disagreed on the extent of those rights or privileges.

Defendants interpreted Fanene Tuiloli's grant of the two acres to Tinei and his family as an "igagato" transaction which established their right to live on the land, free of the sa`o's pule, so long as they provide tautua to the sa`o. However, this interpretation disregards the initial plantation usage restriction in the permission given to Tinei and his family. It also overlooks the condition subsequent of termination upon permanent return to Upolu, which event may or may not coincide with their cessation of tautua to the Fanene titleholder. It further ignores the lack of any evidentiary basis showing the nature of any extraordinary service by Tinei to the Fanene family or family support as a prerequisite to a bona fide "igagato" award of communal land at the time Fanene Tuiloli gave permission to Tinei and his family to use the two acres. In contrast, Fanene viewed this transaction as Fanene Tuiloli's singular authorization of a privilege granted to persons without Fanene blood to use the land, subject to termination by their permanent departure to Upolu or at the sa`o's will.

In fact, the evidence also did not clearly show whether or not Tinei and his family were ever given express permission to reside, in addition to planting, on the two acres. However, it appears that by 1958, when Su`a v. Pasene, No. 4-1958 (1958), was decided, that their residency presence was not in question and had been previously established by either express or implied permission.

We find that the permission given to Tinei and his family to use the two acres included both plantation and residency purposes, but except for the conditional plantation privilege, is without any incidental traditional rights or privileges in communal land. We further find that the permission is terminable (1) by the condition subsequent of permanent departure to Upolu or, as this is at most an interest in land in the nature of a license, (2) at the sao`s will, whichever occurs sooner.(3)

Considerable conflicting testimony was introduced on the extent of the tautua provided by defendants, particularly Mose and Faimanifo, [23ASR2d5] to Fanene. Fanene succeeded to the title in or about 1977. Mose and Faimanifo moved from Western Samoa to the two acres in 1982 and have lived there since. Plaintiffs presented testimony about several incidents during these years which they sought to portray, and defendants sought to refute, as signifying Mose's disrespect towards, if not defiance of, the sa`o and his pule. However, we are persuaded that defendants, having no blood relationship to the Fanene family and no "igagato" entitlement to the two acres, do not have any traditional interest in the land which is not terminable at the Fanene titleholder's will. Thus, it is unnecessary to make any findings of fact with respect to defendants' exercise or lack of exercise of tautua to the sa`o or to characterize the other incidents in evidence. We do point out that Fanene testified that the Fanene family is in the process of "inventorying" its communal lands and wants the Court to determine the defendants' rights or privileges, if any, in the two acres at issue; and that if any such interest is now terminable, acceptance of defendants' continued presence on Fanene communal land, should they manifest their will to provide tautua to the sa`o, depends upon the wishes of the entire Fanene family.

It is necessary to make findings of fact with respect to buildings which Tinei and his family have constructed on the two acres for purposes of their entitlement to any compensation for these improvements. Three structures have been erected and presently remain on the land. Although there is no precise evidence of the year of construction, two of them are pre-1990 hurricane "Ofa" buildings. One is a western style house, measuring approximately 40 feet by 18 feet, which was damaged during hurricane "Ofa" and was restored with emergency relief funds. The other is a utility building, approximately 12 feet by 8 feet in size. The third structure is a new, 60 foot by 34 foot, western-style house that was built after hurricane "Val" in 1991.

The improvements were constructed under building permits signed by one or another of the defendants and not by any Fanene titleholder. However, the recorded evidence shows that defendants have enjoyed long-term permitted use and at least tolerated occupancy of the two acres during the time of five Fanene titleholders (a period of at least 59 years and perhaps as long as 74 years), without actual or constructive knowledge of any desire on the part of any of those titleholders to vitiate Fanene Tuiloli's permission to Tinei and his family. This desire was not clearly expressed until 1990, when this action was commenced. Under these circumstances, we find that the improvements constructed by defendants on the two acres on or before June 2, 1990, when defendants received the summons and complaint in this action, were made in the [23ASR2d6] good-faith belief that their use and occupancy of the land was under color or claim of a legitimate interest in the land. The improvements made after June 2, 1990 were distinctly not made in such good faith.

Finally, although not addressed directly by the parties, it is reasonably inferred from the evidence that on June 2, 1990, defendants possessed growing crops and trees which they planted on the two acres pursuant to their plantation-usage privilege.

CONCLUSIONS OF LAW

1. Defendants do not have any rights or privileges in the two acres which are not terminable at the Fanene titleholder's will. The complaint for eviction is granted. Defendants shall remove themselves from the two acres within 60 days.

2. At their option, defendants are entitled to compensation for their improvements made on the two acres before June 2, 1990, when the summons and complaint in this action were served on them, or they may remove these improvements. The measure of this compensation is the lesser amount, as of June 2, 1990, of the present value of the actual construction cost of these improvements, including additions and restorations before the cutoff date, or the present enhanced value of the property resulting from the improvements. See Roberts v. Sesepasara, 8 A.S.R.2d 124 (1990); Leapagatele v. Nyel, LT No. 35-90 (1990) (citing Roberts). Within the next 30 days, the parties shall submit to the Court documentary evidence, consisting of affidavits, receipts, etc., of the cost of these improvements and the enhanced value of the land, or defendants shall notify the Court of their intent to remove them. The documentary evidence may prompt a further hearing on this issue.

3. Defendants are not entitled to compensation for the house constructed after June 2, 1990, or for any additions or restorations made to the two then-existing structures after that date. Defendants may also remove this house at their option.

4. Removal of the improvements will certainly destroy their beneficial use and is likely to be wholly uneconomical and wasteful. Thus, it would appear to be in both parties' best interests if plaintiffs would purchase the three buildings from defendants at a negotiated, fair price. In any event, defendants shall have 60 days in which to remove the improvements. If they are not removed, the improvements shall become the plaintiffs' property.

5. Defendants are entitled to harvest crops and fruits of trees that they planted on the two acres on or before June 2, 1990, and to remove this harvest from the land. Any such harvesting shall be completed within 60 days. Except for harvesting the coconuts and breadfruits, the coconut and breadfruit trees shall not be removed or otherwise disturbed, and those trees shall become the plaintiffs' property.

Judgment shall be entered accordingly. It is so ordered.

**********

1. Recent Fanenes and their periods of service as the titleholder are identified in documentary evidence admitted in Fanene v. Magalei as follows:

Fanene Tuiloli 1906-1931
Fanene Tuutau 1932-1950
Fanene Penerosa 1952-1960
Fanene Touli 1961-1974
Fanene A. Laulu 19__-Present

 

Fanene testified that he became the sa`o in or about 1977.

2. The Court in Su`a compared the permission given to "the situation of a Samoan pastor when he comes to take charge of a church." We agree with this characterization in so far as the plantation purpose and departure condition subsequent are concerned. However, since Tinei was not the pastor of a church in the village, the comparison is not exact.

3. Since the evidence failed to show two commonly understood elements of an "igagato" award of communal land, extraordinary service and family concurrence, it is unnecessary to define this custom for purposes of precedent.

Faga v. Malepeai,


FAGA S. FUALA'AU, Petitioner

v.

MALEPEAI V. SETU, Chief Election Officer,
and SAOFAIGA MAULUPE, Respondents

High Court of American Samoa
Appellate Division

AP No. 22-92

November 17, 1992

__________
[23ASR2d49]

An election is to be invalidated only if it cannot be determined that a candidate polled a majority or plurality of the valid votes cast on election day. A.S.C.A. § 6.0903.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, MALAETASI, * Acting Associate Justice, VAIVAO, Associate Judge, MATA'UTIA, Associate Judge.

Counsel: For Petitioner, Aitofele T. Sunia
For Respondents, Elvis R.P. Patea, Assistant Attorney General

Per Curiam:

Petitioner Faga S. Fuala'au, a candidate for the House of Representatives from District No.11 , has filed a petition, pursuant to A.S.C.A. §§ 6.0902-6.0903, contesting the results of the general election recently held on November 3, 1992. The respondents are Malepeai V. Setu, the chief election officer, and Saofaiga Maulupe, the candidate who topped the vote count from District No.11 by a margin of one (1) vote over his closest rival, petitioner Fuala'au. Petitioner alleges, inter alia, that a certain elector (Vagi Vasai) had voted twice in the general election and that, therefore, it cannot be determined that Saofaiga Maulupe had polled a majority or plurality of the votes cast.

We find on the evidence that one Vagi Vasai, a qualified elector from District No.11, did indeed vote twice. He first cast a ballot as an absentee voter but then presented himself at the polls and requested to vote in person. Mr. Vasai's request was referred to the chief election officer, who decided to allow Mr. Vasai to vote in person but to have his absentee ballot removed from the absentee ballot box and not be counted. Although Mr. Vasai was allowed to vote in person, the removal of his returned absentee ballot was overlooked by the election office; this resulted in the counting of both of his ballots.

Since elector Vasai had, in effect, voted twice, one of his ballots cast is accordingly void. A.S.C.A. § 6.0903 provides that:[23ASR2d50]

[t]he judgment [of this court] may invalidate. ..[an] election on
the grounds that a correct result cannot be ascertained because
of a mistake. ..on the part of the district or election officials or
because it cannot be determined that a certain candidate....
received a majority or plurality of votes cast and were elected.

This provision has been interpreted to mean "that the election is to be invalidated only if the number of ineligible ballots cast is equal to or greater than the number of votes by which the leading candidate defeated his closest adversary." See Dole v. Attorney General, AP No. 24-78 (App. Div. 1978), slip op. at 8. Here, respondent Maulupe's winning margin of one (1) ballot over his closest adversary, petitioner Fuala'au, is equal to the invalid second vote cast by elector Vagi Vasai. Therefore, it cannot be determined that respondent Saofaiga Maulupe had either polled a majority or plurality of the valid votes cast on election day.

Accordingly, it is Ordered, Adjudged and Decreed that the general election for the representative to the House of Representatives from District No.11, held on November 3, 1992, is invalid and that another election be held in accordance with the requirements of A.S.C.A. § 6.0903(c).

It is further Ordered that the Clerk of Courts shall forthwith cause a certified copy hereof to be served upon the Governor in accordance with the requirements of A.S.C.A. § 6.0903(c).

*********

* Honorable Malaetasi M. Togafau, District Judge, High Court of American Samoa, serving by designation of the Secretary of the Interior

Estate of Fuimaono,


Estate of TUINANAU FUIMAONO, Deceased

High Court of American Samoa
Trial Division

PR No. 13-86
PR No. 23-86

November 10, 1992

__________

An "equitable," "virtual," or "de facto" adoption for inheritance purposes exists when a decedent performs parental duties towards a child in his household and that child performs filial obligations in rerum, exactly equivalent to a formally-adopted child.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, BETHAM; Associate Judge. [23ASR2d34]

Counsel: For Co-Administrator Sapati Fuimaono, Charles V. Ala'ilima
For Co-Administrator Ato Fuimaono, Gata E. Gurr

Amendment to Order Determining Heirship and for Further Proceedings:

On August 17, 1992, following the hearing on July 23, 1992, on the respective motions for reconsideration or new trial by co- administrators Sapati Fuimaono ("Sapati") and Ato Fuimaono ("Ato"), the court ordered a further evidentiary hearing on two fact issues: (1) Ato's biological parentage and (2) the existence of any ceremonial marriage between Fa'alua Fuimaono ("Fa'alua") and the decedent, Tuinanau Fuimaono ("Tuinanau"). This hearing took place on September 10, 1992. The court, having considered the evidence presented at this hearing, amends the Order Determining Heirship and for Further Proceedings, entered on June 25, 1992, by deleting paragraphs B.5 and B.6 of the Findings of Fact and paragraph 5 of the Conclusions of Law and Orders in their entirety and substituting the following.

AMENDMENTS TO FINDINGS OF FACT

"5. Ato is Fa'alua's natural son, but he is not Tuinanau's natural son. He is almost 46 years old. From his infancy until Tuinanau' s death, Ato was nurtured and reared by, and lived with, Tuinanau and his mother as their genuine son. Both Tuinanau and Fa'alua publicly acknowledged Ato as their child. This recognition extended to legal documents, expressly in Tuinanau's power of attorney to Ato in 1983, and implicitly in deeds of land executed in 1976 and 1978 and witnessed by Sapati and Ato. The Fuimaono family essentially accepted the practical, day-to-day, father-son relationship between Tuinanau and Ato.

When a decedent performs parental duties towards a child in his or her household and that child performs filial obligations in return, as has occurred in this de facto family, the child's right to inherit from the decedent should be recognized. This just result is commonly referred to as "equitable," "virtual," or "defacto" adoption for inheritance purposes. See Annotation, Adoption by Estoppel, 97 A.L.R.3d 347,353-55,359-65 (1991). While the principle usually is couched in contract terms requiring a finding of an express or implied agreement to adopt supported by consideration to sustain enforcement by specific performance or estoppel, this fiction is by no means universally applied to reach a proper [23ASR2d35] result. An equitable adoption may be found when a child "has stood from an age of tender years in a position exactly equivalent to a formally adopted child." Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369, 373- 74 (W. Va. 1979) (emphasis in original); see H. Clark, Law of Domestic Relations § 18.8 (1968). We will follow the Wheeling principle, when necessary and appropriate, to recognize de facto adoptive relationships for inheritance purposes.

The evidence in this proceeding is, in our view, more than sufficient to infer that Tuinanau intended Ato to become and be his adopted son. In any event, the circumstances of the relationship between Tuinanau and Ato justify finding an equitable adoption, with or without any express or implied contract to adopt.

6. We find that Ato is Tuinanau's equitably adopted son for inheritance purposes."

AMENDMENT TO CONCLUSIONS OF LAW AND ORDERS

"5. In order to facilitate and assist in the preparation of these documents, the court is willing to schedule a hearing, at the request of either co-administrator's counsel, at which the co-administrators will be required to produce, and be ready to testify about, copies of the following records in the possession or either or both of them, or known to be in the possession of third persons and accessible to either co- administrator:

a. All records pertaining to all estate property at the date of Tuinanau's death and, in the case of land, before death.

b. All records pertaining to all transactions concerning estate property after the date of Tuinanau's death, including but not limited to all cash receipts and disbursements, and the validity and disposition of creditors' claims."

Except as amended herein, the original Order Determining Heirship and for Further Orders is reaffirmed and remains in full force and effect.

It is so ordered.

*********

Bryant v. Southwest Marine of Samoa, Inc .,


CURTIS BRYANT , BARBARA BRYANT , WARD BROWNE,
DAVID IRVINE, KEITH BURBRIDGE, RITA BURBRIDGE,
JOHN ROSE, and GREG LEWIS, Plaintiffs

v.

SOUTHWEST MARINE OF SAMOA, INC.,
VESSEL SOUTHWEST MARINE CRANE BARGE,
its Engines, Tackle and Gear, McCONNELL DOWELL CO.,
McCONNELL DOWELL CO. PONTOON RAFT,
its Engines, Tackle, and Gear, and DOES I-XX, Defendants

SOUTHWEST MARINE OF SAMOA, INC., Third-Party Plaintiff

v.

KOREA WONYANG FISHERIES CO., LTD.,
KOREAN TUNA VENTURES S.A., STARKIST SAMOA, INC.,
STARKIST FOODS, INC., and
AMERICAN SAMOA GOVERNMENT, Third-Party Defendants

High Court of American Samoa
Trial Division

CA No. 41-92

March 8, 1993

__________

The statutory right of direct action against an insurer on a liability-insurance policy does not apply to an insurance broker, which is typically an agent of the insured and is not an insurance company.

Before RICHMOND, Associate Justice, MAILO, Associate Judge, MATA'UTIA, Associate Judge.

Counsel: For Plaintiffs, Charles v. Ala'ilima
For Defendant and Third-Party Plaintiff Southwest Marine of
Samoa, Inc. and Defendant Southwest Marine Crane Barge,
Robert A. Dennison III
For Third-Party Defendants StarKist Samoa, Inc. and StarKist
Foods, Inc., John A. Ward II [23ASR2d149]
For Third-Party Defendant American Samoa Government,
Cheryl A. Quadlander, Assistant Attorney General

Order Denying in Part and Approving in Part Motion for Leave to File Amended Complaint:

This motion by plaintiffs for leave to file an amended complaint came on regularly for hearing on February 12, 1993. Plaintiffs'motion seeks to amend its earlier complaint through the addition of two in personam defendants, Leslie & Godwin Insurance Brokers Limited ("Leslie & Godwin"), and McConnel1 Dowell Company ("McConnell Dowell "), and the in rem defendant McConnell Dowell Company Pontoon Raft ("Pontoon Raft"). Plaintiffs also seek the incorporation of language of "gross negligence and reckless disregard" used to characterize the actions of the defendant SouthWest Marine of Samoa, Inc. ("SWM Samoa"). While defendant SWM Samoa does not object to the addition of McConnel1 Dowell or the Pontoon Raft, it does challenge the other requested amendments.

Plaintiffs seek to add Leslie & Godwin under the authority of A.S.C.A. § 29.1537, which provides for the right of direct action against an insurer on any policy of liability insurance. Plaintiffs urge the court to rule that Leslie & Godwin are not, as their stationery and title maintain, insurance brokers, but rather actual insurers. They offer no case law in support of this position and, indeed, we are unable to find any. Such a ruling would be at odds with every jurisdiction of which we are aware, would reclassify an entire profession, and would muddy an entire area of jurisprudence within American Samoa. An insurance broker is typically held to be an agent of the insured and serves as a conduit for funds flowing between insurer and insured. Brokers, quite simply, are not insurance companies. We must, therefore, deny the plaintiffs' motion with respect to the addition of Leslie & Godwin as a defendant. (1)

[23ASR2d150] Plaintiffs further request that they be allowed to amend their complaint to include language asserting gross negligence and reckless disregard on the part of SWM Samoa. SWM Samoa asserts that there has been no showing of recently discovered evidence that would give rise to the amendment. However, after reviewing the excerpts from Silia Patane's deposition, we find that there is sufficient support therein for the requested amendment.

In summary:

1) Permission to amend the plaintiffs' complaint by the addition of McConnell Dowell and the Pontoon Raft as defendants is granted;

2) Permission to amend the plaintiffs' complaint to include language of gross negligence and reckless disregard on the part of defendant SWM Samoa is granted;

3) Permission to amend the plaintiffs' complaint to include Leslie & Godwin as a defendant is denied.

It is so ordered.

*********

1. Plaintiffs' additional arguments asserting that Leslie & Godwin is subject to service of process and is a necessary-party defendant rely wholly on the characterization of this brokerage firm as an insurer. Having held that it is not, we do not find it necessary to address these additional issues.

Bryant v. Southwest Marine of Samoa, Inc.,


CURTIS BRYANT, BARBARA BRYANT, WARD BROWNE,
DAVID IRVINE, KEITH BURBRIDGE, RITA BURBRIDGE,
JOHN ROSE, and GREG LEWIS, Plaintiffs

v.

SOUTHWEST MARINE OF SAMOA, INC.,
VESSEL SOUTHWEST MARINE CRANE BARGE,
its Engines, Tackle and Gear, and DOES I-XX, Defendants

SOUTHWEST MARINE OF SAMOA, INC., Third-Party Plaintiff

v.

KOREA WONYANG FISHERIES CO., LTD.,
KOREAN TUNA VENTURES S.A., STARKIST SAMOA, INC.,
STARKIST FOODS, INC., and
AMERICAN SAMOA GOVERNMENT, Third-Party Defendants

High Court of American Samoa
Trial Division

CA No. 41-92

December 7, 1992

__________

An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010.

Although the Attorney General's decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud, his action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue at any stage of future litigation. A.S.C.A. § 43.1206.

The sum-certain requirement for administrative claims filed against ASG is both statutorily and administratively an integral part of the jurisdictional administrative-claim process. A.S.C.A. § 43. 1203(c); A.S.A.C. § 43.0103(a).

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

Counsel: For Plaintiffs, Charles V. Ala'ilima [23ASR2d56]
For Defendant and Third-Party Plaintiff Southwest Marine of Samoa, Inc.
and Defendant Southwest Marine Crane Barge, Robert A. Dennison III
For Third-Party Defendants StarKist Samoa, Inc. and StarKist Foods, Inc.,
John A. Ward II
For Third-Party Defendant American Samoa Government, Cheryl A.
Quadlander, Assistant Attorney General

Order Denying Motion to Dismiss for Failure to State a Sum Certain:

The motion by third-party defendant American Samoa Government (" ASG") to dismiss the third-party complaint against it for lack of jurisdiction, due to the failure to state a sum certain in the administrative claim filed with ASG by third-party plaintiff Southwest Marine of Samoa, Inc. ("SWM Samoa"), came regularly for hearing on November 24, 1992. The underlying cause of action in this litigation is in tort for property and related damages.

Earlier and associated steps in this proceeding have included: (1) the court's order entered on August 6, 1992, granting ASG's motion to dismiss for lack of jurisdiction on the grounds of SWM Samoa's failure to file an administrative claim with ASG as a jurisdictional prerequisite to filing suit; (2) the court's order, entered on September 8, 1992, denying SWM Samoa's motion to reconsider the court's order of August 6, 1992; and (3) the court's bench order on October 9, 1992, granting SWM Samoa's motion for leave to file its second amended third-party complaint. The last order followed the requisite filing of an administrative claim with ASG by SWM Samoa on August 25, 1992, and ASG's denial of the claim on September 15, 1992.

In support of the present motion, ASG has advocated a strict and literal reading of A.S.C.A. § 43. 1203(c), as requiring in every instance a stated, specific sum certain in administrative claims filed against it. Actually, A.S.C.A. § 43.1203(c) only indirectly sets forth a sum-certain requirement by limiting, with exceptions not presently relevant, a subsequent lawsuit to the amount presented in the administrative claim. As SWM Samoa has pointed out, the actual sum-certain requirement is found in A.S.A.C. § 43.0103(a). This is an administrative rule, which was adopted under the general authority of A.S.C.A. § 4.1002 and pursuant to the rule making process in the Administrative Procedures [23ASR2d57] Act, A.S.C.A. §§ 4.1001-4.1010, and thus has the force and effect of law. A.S.C.A. § 1.0201(3).

The sum-certain requirement is both statutorily and administratively an integral part of the jurisdictional administrative-claim process. SWM Samoa has correctly stated that the Attorney General's decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud. A.S.C.A. § 43.1206. However, the Attorney General's action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue related to an administrative claim at any stage of future litigation. Fallon v. United States, 405 F. Supp. 1320, 1322 (D. Mont. 1976) (citing Powers v. United States, 390 F.2d 602 (9th Cir. 1968)); cf. Randall v. ASG, 19 A.S.R.2d 111, 120-21 n.l (Trial Div. 1991) (jurisdictional requirements, unlike a statute of limitations, are not subject to waiver and estoppel).

Nonetheless, we have concluded that SWM Samoa has complied with the sum-certain requirement under the circumstances involved in this action. SWM Samoa is seeking to draw ASG into this action by a third-party complaint on the theory that if it is liable for the plaintiffs, damages; ASG, in turn, has some measure of responsibility for the damages as well. Plaintiffs have not seen fit, whether for strategic or other reasons, to bring suit directly against ASG, which is their decision to make. Plaintiffs have essentially left the amount of their damages to proof at trial and cannot be required by ASG to state those damages in a sum certain. SWM Samoa cannot presently access sufficient information to evaluate plaintiffs' damages and accordingly is seeking reimbursement or contribution by ASG, in the event of its liability, in an amount not to exceed the damages ultimately proven by plaintiffs.

We hold that SWM Samoa has asserted a sum sufficiently certain in amount to inform ASG of the claim it must defend. While this concept of the sum-certain requirement is broad, we hasten to add that this decision is limited to the special circumstances found in this action, specifically involving third-party practice against ASG when the third- party plaintiff cannot ascertain in a timely manner a precise dollar amount of a plaintiff's damages for purposes of filing an administrative claim against ASG but restricts itself to the amount of the plaintiff's damages proven at trial.

Motion denied. So ordered. [23ASR2d58]

*********

Brown; Huff v.


ADELINE PRITCHARD HUFF, Plaintiff

v.

TAUMAOE BROWN and DOES I-X, Defendants.

High Court of American Samoa
Land and Titles Division

LT No. 23-85

___________

In determining the correct boundaries of a parcel of land, the court may compare and overlay different surveys of the land, as well as consider physical landmarks, in order to identify boundaries on which agreement exists and then proceed to resolve the boundary discrepancies among the surveys.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and MATA`UTIA, Associate Judge.

Counsel: For Plaintiff, John L. Ward II
For Defendants, Gata E. Gurr

The first trial of this boundary dispute, on January 13, 1987, ended with the court's ruling that plaintiff Adeline Pritchard Huff ("Huff") had failed to prove her case, at least against named defendant Taumaoe Brown ("Brown"). In the court's view, most of the fence erected by Brown appeared to reflect the common boundary between Huff's and the Gurr estate's real properties more accurately than the resurvey submitted by Huff at this trial.(1) Brown, who is related to the Gurr family, was an occupant but not the owner of a portion of the Gurr estate's land immediately adjacent to Huff's land. As such, the court further pointed out that this common boundary could not be finally [23ASR2d116] adjudicated without joinder of the Gurr estate as the owner of the real property defended by Brown. Brown died after the first trial.

On May 22, 1987, the court granted Huff's motion for a new trial and vacated the judgment. The court again suggested the joinder of necessary parties for final adjudication of the common boundary dispute. When further efforts to reconcile the common boundary did not fully succeed, court-ordered resurveys were authorized and the Gurr estate was joined as a defendant. The parties also stipulated that at the new trial (1) the common boundary between the parties' real properties would be the only issue requiring adjudication and (2) testimony would be limited to the parties' surveyors. The new trial proceeded in accordance with this stipulation on November 24, 1992, with a site visit on January 22, 1993.

FINDINGS OF FACT

The parties' real properties at issue are located in an area called "Malaloa," in Pago Pago, American Samoa. A short history of these lands is documented in the file. Both parcels are "freehold lands," as defined in A.S.C.A. § 37.0201(b). Huff's land was transferred in 1896 by Jane S. Foster to Harry Jay Moors, who conveyed it pursuant to a court grant issued in 1897 to one Alafaio. By 1932 the Jewett family had acquired this land, and in 1964, Mary Jewett Pritchard and her husband, Ronald E. Pritchard, transferred it to Huff. Edwin W. Gurr purchased his land between 1900 and 1904, and except for lots conveyed to others at various times, this land descended to the Gurr estate, which presently holds the title.

The Gurr estate's land borders the entire south side and substantially the inland portions of the east and west sides of Huff's land. The land along the remainder of the east side was conveyed sometime in or prior to 1922 by the Gurr family to the Kneubuhl family, who in turn eventually transferred the title to the immediate portion of this tract to Margaret K. Landrigan, the present owner and a Kneubuhl family member. The land along the remainder of the west side was acquired by SSP Co., Inc., during or prior to 1922, and then, no later than 1934, by Burns Philp (SS) Co., Ltd.

Originally, the north side of Huff's land was bounded by the high water mark of Pago Pago Bay. The then existing main road crossed her land, for the most part if not entirely, within the legal description in the 1897 court grant ("1897 survey"). In the 1960s, filling moved the [23ASR2d117] shoreline considerably northward, and the road was widened, straightened and essentially relocated outside the northern boundary. During this time, the northern boundary was adjusted to a straight line along the south side of the relocated road. This adjustment did result in some diminution of Huff's land but, as discussed below, does not impact the present common boundary dispute. The history of the northern boundaries of Landrigan's and Burns Philp's lands appears to be similar.

Huff's land was described by metes and bounds (showing distances in links, one link being 7.92 inches) in the 1897 survey, and in the 1964 deed (probably a mere copy of the 1897 survey). A 1934 resurvey of the Gurr estate's land, which necessarily included the metes and bounds of Huff's land, was apparently done, at least in part, to convert the distances in an earlier survey from links to feet and contained a legal description substantially the same as the description in the first two documents. A fourth document, undated and otherwise unidentified, attempted to retrace Huff's land, using distances in feet, and reached similar results, but it showed an "error of closure." Omission of one boundary leg is the apparent cause of this error.

According to the 1897 survey and 1964 deed, the point of beginning ("POB") of the metes and bounds in these four documents, whether depicted in survey form or legal description, is "the northwest corner of the high water mark near the mati tree standing on the main road;" and the concluding two boundary legs proceeded "along the high water mark . . . back to the starting point." It actually appears from the survey drawing in the 1897 survey that the mati tree was on the inland side of the old road, the northwest corner was within the road, and the high water mark was a short distance north of the sea side of the road. In any event, the mati tree no longer exists, perhaps the victim of the road work in the 1960s. Moreover, none of the other natural boundary markers, all trees, indicated in the 1897 survey and the 1964 deed, still exist in clearly identifiable form. On the other hand, the metes and bounds do refer to the boundary "passing five links (3.3 feet) distant from a concrete wall near the road to the high water mark" at the northeast corner. This reference will be discussed below.

The parties have sought to resolve the common boundary dispute through the use of resurveys of the legal description in the 1897 survey. These resurveys were done by recognized surveyors, Meko A. Tua`olo in 1985 (the "Meko resurvey"), Mulivanu Tua`olo in 1987 (the "Mulivanu resurvey"), and William A. Sword in 1991 (the "Sword resurvey"). The Meko and Sword resurveys were prepared at Huff's [23ASR2d118] request, while the Mulivanu resurvey was done at the Gurr estate's call.

All three surveyors used virtually identical POBs at the northwest corner of Huff's land, which is also the northeast corner of the immediately adjacent Burns Philp's land. No gap has ever existed between the Huff and Burn Philp properties. Although we do not know when a pin was originally set, a pin was reset there during the last survey of Burns Philp's land in 1977 (the "Burns Philp survey") and a survey pin is located there. Thus, this is a logical POB. However, the positioning of this POB cannot be determined with complete confidence without knowing the precise location of the missing mati tree. Moreover, the POB coordinates on the three surveys are also slightly different from the POB coordinates of the (presumably) same point in the Burns Philp survey. Hence, we cannot be absolutely certain of the POB's accuracy in the three resurveys with respect to the POB in the 1897 survey. Nonetheless, this location is sufficiently accurate as a basis for resolving the present common boundary dispute and has been mutually accepted by the parties.

The major question in dealing with the three recent resurveys arises with the boundary leg immediately after the initial boundary legs to the south of the POB. The Mulivanu resurvey plots two such legs at slightly different angles immediately south, as the 1897 survey shows, while the Meko and Sword resurveys use a single leg (although the Sword resurvey shows the distances of both legs), coinciding with the same leg in the Burns Philp survey and terminating at an existing pin. This pin was found during the Burns Philp survey, but we do not know when it was first placed there. The discrepancy comes where the 1897 survey next takes a westerly dogleg. The Mulivanu resurvey displays the distance of this leg at a reasonably accurate 75.17 feet, as shown in the 1897 survey. The Meko resurvey shortens the distance to 44.67 feet, while the Sword resurvey shows it at 49.79 feet. There are also fairly substantial directional variations for this leg in the three resurveys. The Sword resurvey is closest to the 1897 survey, but again it exactly follows the boundary shown in the Burns Philp survey, rather than precisely with this leg in the 1897 survey.

Our evaluation of the three recent resurveys indicates that overall the Mulivanu resurvey most closely approximates the 1897 survey. However, the problem is not resolved by this finding. Too many "calls" (the surveyors' term for field evidence) demonstrate that the 1897 survey is not precisely correct and, hence, limit the usefulness of the Mulivanu resurvey to resolve the dispute. [23ASR2d119]

A survey pin is located at the northwest corner of Landrigan's land to the east of Huff's land. This pin appears to have been there a substantial period. In any event, no gap between Huff's and Landrigan's properties has ever existed, just as no gap has ever separated Huff's and Burns Philp's properties at the western end. In fact, the driveway leading to a former residential building on Huff's land intersects the main road immediately adjacent to the northeast corner.

The Meko and Sword resurveys do straighten the northern boundary of Huff's property, along the south side of the present main public road. This is contrary to the two legs shown in the 1897 survey and the Mulivanu resurvey. However, the 1897 survey drawing clearly locates the northeast corner on the sea side of the original road. Thus, we are persuaded that the fill and road work in the 1960s resulted in relocating the present road substantially, if not entirely, outside of both the northwest and northeast corners set out in the 1897 survey. Furthermore, although it appears that the concrete wall near the northeast corner, as noted in the 1897 survey, may have disintegrated to some extent, we believe that it was rebuilt at the same location. Hence, we are satisfied that the northeast corner is accurately depicted in the Meko and Sword resurveys, as is, for present purposes, the northwest corner in all three resurveys.

There is additional supporting field information. A pin is located at the southwest corner of Landrigan's land, indicating another point on the eastern boundary of Huff's land. Further south a rock wall with kapok tree fenceposts exists for some distance, again suggesting the boundary line between Huff's land and, at this point, the Gurr estate's land. Along the southern boundary area, near the southwest corner, several 30-foot kapok trees are imbedded with rusty barbed wire, a further sign of the disputed common boundary. Finally, there is a line of mango trees further west of Huff's land, which appears to mark the western end of the Gurr estate's land and to be notably further from the western common boundary, 65 feet according to the 1934 resurvey, than is indicated by the Mulivanu resurvey when the three resurveys are overlaid. The Sword resurvey takes all of this information, and the Meko resurvey some of it, into account in reconstructing the actual boundaries intended in the 1897 survey.

Overlay of the three recent resurveys is also particularly informative in other respects. Using the same POB, in essence, they are closely aligned. The southern boundaries are very close. The only truly significant differences are that the Mulivanu resurvey locates the eastern [23ASR2d120] and western boundaries further west and creates a gap between Huff's and Landrigan's lands, which has never existed historically and is contradicted by the driveway entering Huff's land. If the Mulivanu resurvey is moved eastward so that its northeast corner coincides with the existing pin, the eastern, southern and western common boundaries in all three recent resurveys become even more closely aligned. The only vital discrepancy is a gap then created between Huff's and Burn Philp's lands at the west end, due to the length of the westerly dogleg in the 1897 survey and Mulivanu resurvey. However, this gap, which has also never existed historically, would only be an issue between Huff and Burns Philp. This issue is not before us now and has no real impact on the present common boundary dispute.

Based on the evidence, we find that the Sword resurvey accurately describes the boundaries of Huff's land, in accordance with the understanding and recognition of the original owners of Huff's and the Gurr estate's lands, and that the differences between the 1897 survey and Sword resurvey are technical errors in the 1897 survey. Thus, we find that the Sword resurvey correctly depicts the common boundary between Huff's and the Gurr estate's lands.

CONCLUSIONS OF LAW

1. Huff is entitled to have the 1991 Sword resurvey of the freehold land transferred to Alafaio, her antecedent in title by the court grant in 1897, filed with the Territorial Registrar as part of the registration of her title to this land.

2. Huff is entitled to a permanent injunction against the Gurr estate, and all persons having ownership or possessory interests in the Gurr estate's land immediately adjacent to Huff's land, derived from or by the authority of the Gurr estate, their officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them, from trespassing on or interfering with Huff's land, and requiring removal of Brown's encroaching fence and practicable restoration of this area to its state at the time the fence was erected.

Judgment shall be entered accordingly. It is so ordered.

**********

1. This resurvey, done in 1985 by Meko A. Tua`olo, is one of three recent resurveys in evidence and used by the parties to assist in resolving this common boundary dispute. All three recent resurveys are discussed below.

Blue Pacific Mgmt. Corp. v. Paisano's Corp.,


BLUE PACIFIC MANAGEMENT CORP.,
Agent for PAGO PLAZA, Plaintiff

v.

PAISANO'S CORP. and JAMES STEPHENS,
Defendants

High Court of American Samoa
Trial Division

CA No. 62-91

December 9, 1992

__________

At common law, an oral lease is valid.

Noncompliance with the statute of frauds does not abridge a court's power to compel the specific performance of an agreement in the case of part performance. A.S.C.A. § 37.0211.

Before KRUSE, Chief Justice, MAT A 'UTIA, Associate Judge, BETHAM, Associate Judge.

Counsel: For Plaintiff, William H. Reardon
For Defendants, John L. Ward II

Plaintiff, Blue Pacific Management, manages and operates the Pago Plaza (hereinafter the "Plaza"), a commercial complex of office and retail rental space. Defendant James Stephens operates within the Plaza a popular deli/pizzeria known as "Paisano's." (1) Although Paisano's has been in business at the Plaza since mid-1989, the parties have never [23ASR2d59] managed to finalize a written lease agreement satisfactory to the other . Unfortunately, they did not bother to resolve all the details of their relationship prior to their headlong rush into costly improvements to the premises--plaintiff's manager, Mr. James McGuire, ventured a figure of $86,000 in "build out" costs, while Stephens' capital outlay estimates varied from $180,000 on the stand to $150,000 in an earlier affidavit. Evidently, the mutual priority seemed to be the speedy establishment of a fast-food restaurant; consequently, McGuire and Stephens, both obdurate in their respective positions, have quarreled ever since about their perceived commitments. Plaintiff, who is now well and truly fed-up with the deadlock in discussions, wants the defendant out altogether from the Plaza. On the other hand, defendant, who is now well- and truly- established in the Plaza and has also generated a certain amount of goodwill at the location, wants specific performance of a solemn handshake.

FACTS

The genesis of the dispute before us is the monthly electric bill. The evidence reveals the following facts: The parties initially met in mid-1988 after McGuire had heard that Stephens was planning to set up a pizzeria across the street. At the time, the Plaza was a relatively newly-completed project, and its management was earnestly seeking tenants. Its planners had apparently set aside 2700 sq. ft. of ground-floor area for the very sort of business activity which Stephens was proposing; that is, activity that would generate traffic into the Plaza and thereby enhance business opportunities within the complex. McGuire had been unsuccessful in his previous attempts to lease the space. According to Mr. Don Fuimaono, one of the Plaza's earlier tenants, the area had been "dead space" for about three years until Paisano's began construction, in anticipation of occupancy, in 1988. Mr. Fuimaono further testified that as then-president of the Plaza's Merchants Association, he welcomed the Stephens' proposal as something good for business, since there was hardly anyone in the complex at the time. Accordingly, McGuire had approached Stephens to attract him to the Plaza.

As it turned out, plaintiff had more space than Stephens' immediate budget and pizzeria plans called for; nonetheless, McGuire was just as anxious to secure a fast-food tenant as Stephens was keen to set up business. Although their numerous discussions alluded to Stephens' potential development of the total 2700 sq. ft. area, the parties only reached agreement with respect to half of this available floor space. It was verbally agreed that plaintiff would lease, and that defendant [23ASR2d60] would take on lease, 1200 sq. ft. (hereinafter "suite 107") for the fast- food business. It was further agreed that the lease would be for a term of five years with an escalating monthly rental of $800 for the first year , $1320 for the second, $1440 for the third, $1560 for the fourth, and $1920 for the fifth. Although generally contemplated, future development plans of the total area (indeterminately referred to by Stephens as "phase 2") was, it seems, put on the back burner for further discussion while the parties focused their immediate effort on setting up the restaurant (and, hopefully, traffic). As events subsequently unfolded, the dialogue on phase 2 was eventually displaced entirely by an intensifying argument over the monthly electric bill.

On the concluded tenancy, plaintiff conceded at trial that defendant was current on rent. On the question of utilities, the understanding was that plaintiff would be responsible for his own supply needs and that some sort of meter would be later fitted to the premises for determining the restaurant's electrical usage. However, as an incentive to Stephens, McGuire also offered to absorb the cost of electricity, or in the parties' terminology a "credit," attributable to air- conditioning during Plaza' s normal business day. Before the installation of a meter, the parties operated on estimates, with McGuire's billing Stephens a monthly charge of $1,200, a figure which was apparently satisfactory to the latter. In late September 1988, a meter was finally installed; however, plaintiff not only hooked up all of the restaurant's electrical outlets to the meter, but also the air-conditioning unit for the entire 2700 sq. ft area as well. The monthly billings increased steadily thereafter, and it was not too long before Stephens began to complain. Eventually, he developed his own schedule of payments quite unrelated to the utility billings presented by plaintiff. By the end of March 1991, the parties' differences on the utility bill was, according to plaintiff's reckoning, about $14,000. Plaintiff filed suit, seeking summary eviction pursuant to A.S.C.A. §§ 43.1401 et seq. Under pressure of suit, which was subsequently dismissed, Stephens responded, on April 4, 1992, by sending plaintiff a check in the amount of $10,222.54, with the notation that he was withholding the sum of $3,900, or $300 per month, as offset for the cooling costs of CDI Travel, another tenant that plaintiff had in the meantime set up in a part of the adjoining undeveloped area (hereinafter suite "106"). The evidence shows that Stephens was given access to 106 to accommodate his need for a rear entrance to the restaurant. To this end, McGuire had a door installed between 107 and 106 as a "courtesy" to the defendant, with each party keeping a key. Over the months, as various offers and counter-offers dragged on without fruition, Stephens started using 106 for an office, a storage area, and [23ASR2d61] even, at one point in time, a bakery .At the same time, the evidence also revealed that plaintiff had in the interim built out 450 sq. ft. of 106 (hereinafter suite "106B") which it leased out to CDI Travel. This tenancy lasted for the period March 1990 to March 1991, during which time McGuire had suffered CDI's cooling needs to be on Paisano's meter and account.

Shortly before the filing of this suit, plaintiff's attorney, by letter dated April 8, 1991, notified the defendant that its "license or permissive use" of 106 was terminated and that defendant had seven (7) days to quit the area it was then using or be subject to a monthly rental assessment of $1.50 per square foot "on a strictly hold over basis." On May 17, 1991, plaintiff's attorney further followed up on this demand for rent if defendant continued to hold over .

After dismissal of the first suit, the quarrel over the electric bill continued without resolution. As this issue dominated their attention, McGuire and Stephens became further and further estranged on the idea of phase 2 and expanded development by defendant. On May 24, 1991, plaintiff filed this action seeking repossession as well as damages for defendant's non-payment of the utility charges (the offset) and his continuing use of 106 after notice to quit and yield-up the premises. Defendant also filed a counterclaim, arguing the conclusion of a five-year verbal lease with an option to renew. Claiming substantial performance of the lease on its part, defendant seeks specific performance, plus damages for breach by plaintiff in its failure to allow the correct "credit" according to the lease agreement.

DISCUSSION

1. Lease

At common law, an oral lease is valid. 49 Am. Jur. 2d Landlord and Tenant § 30. It seems clear on the evidence that the parties had entered into an oral lease on 1200 sq. ft. of floor space for a period of five (5) years at the escalating rental schedule of $800 for the first year, $1320 for the second, $1440 for the third, $1560 for the fourth, and $1920 for the fifth. On the other hand, we find that the evidence did not substantiate defendant's claim to an option for a further term of five years. [23ASR2d62]

Plaintiff submits that the oral lease agreement is invalid for want of compliance with the statute of frauds, A.S.C.A. § 37.0211. (2) Plaintiff goes on to argue that the resulting lease was, therefore, either a tenancy at will or a tenancy on a month-to-month basis because an anticipated written agreement was never concluded by the parties. We disagree. Assuming arguendo that A.S.C.A. § 37.0211 applies to lease agreements, the enactment "does not abridge the power of [the] court to compel the specific performance of any agreement. ..in the case of part performance." Id.; see also Manoa v. Jennings, 21 A.S.R.2d 23, 24-25 (Land & Titles Div. 1992). Here the salient terms of the lease (rent, duration, and purpose) are not only clearly evident, but performance on the part of the defendant is also equally clear .The defendant has, to his detriment, set up a fast-food restaurant in the Plaza following a sizeable outlay of capital; over the succeeding years defendant has not only been billed for but has also paid the stipulated graduated rent. Further, the evidence discloses an agreement on the part of plaintiff to absorb daytime electricity costs for air-conditioning. The promised "credit" was fixed by McGuire at $200 per month and was subsequently applied to Paisano's monthly billings. We thus conclude that defendant's substantial performance created an enforceable oral lease.

II. Holdover Tenancy

We next consider plaintiff's damages claim relating to defendant's continued use of 106, notwithstanding notice to quit. At best, defendant had a mere personal license to 106 pending negotiations of a lease agreement on the total 2700 sq. ft. area. This license was given in contemplation of a lease that would have eventually resulted in defendant's taking over the entire area, suites 107 and 106. Those negotiations, however, have been totally ineffectual, and the subject matter thereof has become, at least as far as plaintiff is concerned, closed. The above-noted letters of April 8, 1991, and May 17, 1991, from plaintiff's attorney unequivocally noticed revocation of that license. Accordingly, defendant's continued use thereafter of a part of 106 was, in our view, an acceptance of plaintiff's limited offer of a tenancy "on a hold over basis" at a rental of $1.50 a sq. ft. We hold that defendant is liable accordingly for rent or damages at the rate of $1.50 per square [23ASR2d63] foot on 1050 sq. ft. of suite 106 (2700 total sq. ft. -1200 sq. ft. on lease to defendant -450 sq. ft. leased to CDI = 1050 sq. ft.), accruing from April 15, 1991 (seven days' notice from April 8, 1991) to the date of judgment herein or date of actual surrender of 106, whichever is/was sooner.

III. Monthly Electric Bill

We next consider the parties' respective claim and counterclaim for damages relating to the electric bill. Stephens' complaints about the electricity are not without merit. First, the $200 monthly credit ($8.40 per day x 24 days) was a figure which McGuire attributed to a Mr. Elmer Gabbard, an electrical contractor. Mr. Gabbard was said to have arrived at this figure from calculations incorporating nameplate data found on the air-conditioning unit. Mr. Gabbard, however, was not called to testify and explain the calculation attributed to him. On the other hand, a Mr. Alex Janeiro, another electrical contractor, did take the stand, but he gave a significantly higher daily figure of $35.63. Mr. Janeiro testified that from amperage readings taken from both the air- conditioning unit's evaporator and condenser, he first calculated kilowatt hours; that he then applied the American Samoa Power Authority's (ASP A) schedule of rates and arrived at a dollar figure for electrical consumption over an eight-hour period. In these circumstances, we conclude that the direct testimony of Mr. Janeiro, as opposed to the hearsay figure attributable to Mr. Gabbard, is the more reliable evidence. The testimony of yet another electrician, a Mr. Peter Kupu, further lends support to this conclusion. From amperage readings and calculations which Mr. Kupu had undertaken on November 20, 1991, he found that the air-conditioning unit, condenser and evaporator, was effectively consuming 75% of the electricity going through Paisano's meter. Considering this consumption capacity against the average monthly billings to Paisano's, the $200 monthly figure employed by McGuire does not, in our view, correctly reflect day time cooling costs. We conclude that the figure of $35.00 per day more accurately reflects the agreed "credit". Second, we find that even the $200 "credit" was not consistently allowed by plaintiff in its monthly billings to the defendant. A perusal of plaintiff's billing file (exhibit "18") shows that for the period from the commencement of the lease to the date of the filing of this action, plaintiff had omitted to give defendant this credit on at least six (6) billing occasions. Third, we note, after comparing the billing file with ASPA's Fuel and Pumping Charges Schedule (see also exhibit "18"), that plaintiff's employee responsible for calculating Paisano's monthly billings had used the wrong surcharge indexes in the latter [23ASR2d64] months. Fourth, the effective charging of CDI's air-conditioning costs to the unwitting defendant's account for a one-year period is, to say the very least, at odds with plaintiff's covenant to be responsible for daytime charges. We also note in passing that plaintiff's accounting system leaves something to be desired. Certain errors, including some of those noted above, were picked up by plaintiff in its pretrial audit and resulted in some last-minute adjustments to its accounts at the eve of trial. Indeed, Stephens complained on the stand that he was only just then finding out about certain adjustments to the electricity account as presented to the court.

From the foregoing, we conclude as follows: for the duration of his occupation of 106 (the duration of the license plus holdover), defendant is liable for the total air-conditioning costs to 107 and 106 (the entire 2700 sq. ft. area) less a monthly credit in the amount of $850 ($35 x 24 days). This monthly credit is due defendant from the time of the first meter-based billing; however, for each month of the lease where plaintiff had allowed a $200 credit to defendant's meter-based billing, the monthly credit figure as heretofore found shall be discounted accordingly. We further conclude that defendant is not liable for the cooling costs of CDI Travel. However, considering that the air-conditioner was drawing about 75% of the load measured at Paisano's meter, and after taking into account an average of the monthly billings where the $200 credit was omitted, as well as the extent of the area occupied by CDI (450 sq. ft.), we conclude that a more accurate figure representing CDl's monthly cooling costs is $200 and not $300 as defendant claimed by way of offset. Accordingly, defendant shall have as offset, $200 per month for the duration of CDI's tenancy.

ORDER

On the foregoing, plaintiff shall, within 20 days of date hereof, file with the Clerk a verified accounting on damages accruing, consistent with our findings and conclusions herein, by reason of defendant's holdover of suite 106, with a copy of that accounting to be served upon defendant. The defendant shall, within 20 days of date hereof, file with the Clerk a verified accounting of the electricity credit under the lease agreement, consistent with our findings and conclusions herein, with a copy of that accounting to be served upon plaintiff. Each party shall have ten days to file any opposition to the accounting filed by the other , and if there be none, judgment will be entered accordingly. Otherwise, the Clerk shall thereupon set this matter for further hearing on the accounting opposed. [23ASR2d65]

It is so ordered.

(As corrected April 30, 1993)

*********

1. We were not clear on the evidence whether Paisano's was a separate corporate entity. While Stephens testified that he had gone through the incorporation process, he also talked about being in "partnership." Hereinafter, unless the context otherwise suggests, we refer to defendant(s) as "Stephens" and vice-versa.

2. A.S.C.A. § 37.0211 provides that "[n]o agreement for the sale of real property or of any interest therein is valid unless the same, or some note or memorandum thereof be in writing and subscribed by the party to be charged or his agent thereunto authorized in writing."

American Samoa Gov’ t; Farapo v.


OLIVE FARAPO, TEKURA ALU, LILLY PAUMBARI,
Appellants

v.

AMERICAN SAMOA GOVERNMENT, CHIEF
IMMIGRATION OFFICER, IMMIGRATION BOARD,
and ATTORNEY GENERAL, Appellees

High Court of American Samoa
Appellate Division

AP No. 21-92

February 24, 1993

__________

The ten-day statutory period for reporting an address change to the Immigration Board can only sensibly be given effect if the prescribed period is computed to exclude the last day when it happens to fall on a Saturday, Sunday, or legal holiday. A.S.C.A. § 41.0308(b).

Although the Immigration Board may revoke a sponsorship without a sponsor's permission, no statutory provision requires it to approve a sponsorship's termination or gives it the power to impose conditions on a sponsorship's termination. A.S.C.A. § 41.0408(f), (g).

The Immigration Board may deport an alien only after he has been accorded an opportunity for a public hearing. A.S.C.A. § 41.0205(2).

Although deportation hearings may be closed under certain circumstances, the Immigration Board may only close the hearings in a specific case to protect witnesses, the respondent, or the public interest and only if the interest in a closed hearing outweighs the "value of openness." A.S.A.C. § 41.0807(a). [23ASR2d137]

Aliens facing deportation hearings are to be given notice which is "reasonable under the circumstances." A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1).

The Immigration Board's merely announcing a sponsorship's termination fails to meet the notice requirements for a deportation hearing, as the notice must include the time and place of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1).

Though the Immigration Board's documents are confidential by statute, this statute may not be used to deny constitutionally guaranteed due-process rights, nor does it prohibit the Court from ordering the Attorney General to produce these records when needed. U.S. Constitution Amend. V; Rev. Const. Am. Samoa Art. I, § 2; A.S.C.A. § 41.0307.

Because a sponsor need not give the reasons for revoking a sponsorship, aliens facing deportation are not entitled to access to the Immigration Board's confidential documents in order to determine if the sponsorship was revoked for the "wrong reasons." A.S.C.A. § 41.0408(g).

An alien in a deportation proceeding is entitled to cross-examine the government's witnesses, and an improper curtailment of this right constitutes a violation of procedural due process. U.S. Constitution Amend. V; Rev. Const. Am. Samoa Art. I, § 2; A.S.C.A. § 41.0205(7)(c); A.S.A.C. § 41.0807(a).

If made upon unlawful procedure, a decision of the Immigration Board may be reversed, modified, or remanded for further proceedings by the Appellate Division of the High Court. A.S.C.A. § 41.0212(3).

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, BETHAM, Associate Judge.

Counsel: For Appellants, Charles V. Ala'ilima
For Appellees, Elvis R. P. Patea, Assistant Attorney General

Appellants, nationals of Papua New Guinea, have filed a petition pursuant to A.S.C.A. § 41.0209, seeking judicial review of the decision and order of deportation entered by the Immigration Board (hereinafter the "Board") on October 23, 1992. The Board concluded that appellants were deportable under both A.S.C.A. § 41.0312, finding that appellants had failed to report their change of address to the Attorney General as required by the provisions of A.S.C.A. § 41.0308, and A.S.C.A. § 41.0408, finding that appellants' sponsors, Starr and Su'a Schuster, had revoked their sponsorship of appellants. [23ASR2d138]

A. Failure to report address change

The Board's findings include the following:

3. On September 24, 1992, the Respondents ran away from
the Schuster residence.

....

6. On October 5, 1992, Charles V. Ala'ilima wrote a letter to
Chief Immigration Officer So'oso'o Tuiolemotu, informing
Mr. Tuiolemotu of his representation of the Respondents and
of the whereabouts of the Respondents. There is no evidence
as to when Mr. Tuiolemotu received Mr. Ala'ilima's letter.

(Emphasis in original.) On the basis of the foregoing findings, the Board made the following conclusions of law:

1. All aliens are required to notify the Attorney General in writing
of each change of address and new address within ten (10)
days from the date of such change. § 41.0308, ASCA. The
burden is on the alien to provide such notification.

2. The Respondents left their address on September 24, 1992
and had until October 4, 1992 to report their new address. This
was not done. October 4, 1992 fell on a Sunday. Allowing the
tenth day to fall on the next business day (Monday, October 5,
1992) defeats the intent of the requirement that notification be
made, and that it be made within ten (10) calendar days.
Furthermore, no evidence was presented providing any compelling
reason why the notification couldn't be done before Sunday,
October 4,1992.

We hold that the Board's computation of the ten-day statutory period for reporting an address change was premised on an erroneous construction of the statute. A.S.C.A. § 41.0308(b) specifies a ten-day time period; it does not, as the Board's, "ten calendar days" interpretation suggests, specify a nine-day limit, when the tenth day falls on a Saturday or public holiday; or an eight-day limitation, when the [23ASR2d139] tenth day falls on a Sunday; or a seven-day limitation period, when the tenth day falls on the last day of a three-day weekend, etc. (1) Since the Attorney General's Office is not open to the public on weekends and public holidays, the statute can only sensibly be given effect if the prescribed period is computed to exclude the last day when it happens to fall on a Saturday, Sunday, or legal holiday. Cf. Fed. R. Civ. P. 6(a); A.C.R. Rule 26(a); T.C.R.C.P. Rule 6(a). As such, the statutory ten- day period may not be cut short, nor maya person be required to show, as the Board also suggests, why he needs the full ten days.

The letter from appellants' counsel is dated October 5, 1992, and the Immigration Office's response to counsel is dated October 6, 1992. See Finding of Fact No.6. Although the Board finds that no proof exists that the Immigration Office received counsel's letter, the Immigration Office's prompt response to counsel is persuasive evidence of its receipt of that letter. Furthermore, because evidence as to the date of receipt is under the control of the Immigration Office, it is not reasonable for the Immigration Office to demand that appellants provide this proof. Cf. , T .C.R.Ev .Rule 1004(3) (if an opposing party will not produce a document under its control, the other party need not produce the original document). We accordingly hold that the Board's conclusions are also "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." A.S.C.A. § 41.0212(5).

B. Revocation of sponsorship

The other substantive issue was the sponsorship's termination, purportedly accomplished by Mrs. Schuster's letter to the Board dated September 30, 1992. At the deportation hearing, the appellants agreed that the Schusters were their sponsors. Also, the appellants had signed "Alien Registration Forms" listing Mrs. Schuster as their sponsor.

Appellants argued that because Mrs. Schuster sent the notice only to the Board, the sponsorship was never terminated. However, their counsel was served with written notice by Immigration Officer Herota Satele on October 6, 1992. Even if notifying aliens is not a function of either the Immigration Office or the Board, the statute's purpose of [23ASR2d140] giving both aliens and the Board notice was fulfilled; the appellants did actually receive notice of their sponsorship's revocation.

Appellants also argue that the Board has the discretion to stop Mrs. Schuster from terminating the sponsorship or to condition termination on paying wages and taxes. However, no provision requires the Board to approve a sponsorship's termination or gives it the power to impose conditions on a sponsorship's termination, although it may revoke a sponsorship without a sponsor's permission. See A.S.C.A. § 41.0408(f), (g). Whether the sponsorship was terminated to attempt to avoid paying wages and, if so, how much money is due to appellants are both issues to be decided in a civil suit. Those issues are separate from the factual questions as to whether the sponsorship was terminated or whether the change-of-address notice was given within ten days.

C. Procedural Challenge

Additionally, appellants seek review on a number of procedural due process grounds. Among other things, they claim failure on the Board's part to afford them a public hearing, in violation of A.S.C.A. § 41.0205 , as well a reasonable opportunity to examine the evidence against them and cross-examine witnesses, in violation of A.S.C.A. § 41.0607(3); they also allege illegal arrest and detention.

The Immigration Board may deport an alien only" after the alien has been accorded an opportunity for a public hearing. " A.S.C.A. § 41.0205(2). The language is clear; the Fono decided to give aliens about to be deported the right to have a public hearing. Although hearings may be closed under certain circumstances, the Board's discretion is not unbridled. Under its rules, the Board may only close deportation hearings "for the purpose of protecting witnesses, [the] respondent, or [the] public interest" in a "specific case." A.S.A.C. § 41.0807(a). Although closed hearings might occasionally be needed, the Board has not demonstrated extraordinary circumstances that might justify a closed hearing. See Masaniai v. American Samoa Government, 6 A.S.R.2d 114, 116 (App. Div. 1987) (criminal trial court may exclude the public when an overriding interest or special or exceptional circumstances exist) .A normally open proceeding may be closed only if the interest in doing so is shown to outweigh the "value of openness. " See Press- Enterprise Co. v. Superior Court, 464 U.S. 501, 509-10 (1984) (First Amendment guarantees open proceedings in criminal trials, including the voir dire process) (citing Globe Newspaper Co. v. Superior Court, 457 [23ASR2d141] U.S. 596 (1982)). The limited circumstances in which open proceedings may be closed are as follows:

The presumption of openness may be overcome only by an
overriding interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve
that interest. The interest is to be articulated along with findings
specific enough that a reviewing court can determine whether
the closure order was properly entered.

Id. at 510 (citing Globe Newspaper).

Here the Board simply found that the matter "involved private differences between the Respondents and the Schusters," and thence concluded "that the protection of those private matters outweighed any need to open the hearing to the public. " (Emphasis added. ) While the Board articulated "private differences" as being the overriding interest, it failed to enumerate findings specific enough to allow a reviewing court the opportunity to determine whether the closure order was properly entered. While a lack of seating may sometimes limit the number of people able to attend an open hearing, it does not justify closing the hearing entirely. All that can be said from the extent of the record before us is that private differences, which the Board saw fit to protect, are the very antithesis of the aim of the statute itself --public proceedings.

Also, the appellants did not have as much time to prepare for the deportation hearing as the Board suggests. Aliens facing deportation hearings are to be given notice which is "reasonable under the circumstances." A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1). Notice of the hearing originally scheduled for October 20 was given October 19; after a continuance, the hearing was held on October 22, notwithstanding counsel's objection and request for more time. Appellants thus had only three days' notice of the deportation hearing, contrary to the Board's calculations, which erroneously included the time from which appellants were notified of their sponsorships' termination. Merely announcing the termination of the sponsorship also fails to meet the requirements of the notice, which is to include the "time and place" of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1).

Conversely, appellants have not shown their need for the Immigration Board's documents, which are confidential by statute. A.S.C.A. § 41.0307. Obviously, this statute may not be used to deny [23ASR2d142] constitutionally guaranteed due-process rights, nor does it prohibit the Court from ordering the Attorney General to produce these records when needed. See U.S. Constitution Amend. 5; Rev. Const. Am. Samoa Art. I, § 2 ("No person shall be deprived of life, liberty, or property, without due process of law"). In fact, these documents were turned over to the Court for an in camera examination.

The political branches are solely responsible for formulating immigration policies, as long as deportees are accorded a minimal level of due process. However, a merely erroneous deportation decision does not violate due process. Likewise, discovery may not be used as a " fishing expedition " to look for possible claims and defenses .

Appellants have not adequately shown why they should have access to the confidential records. They argue that the records are necessary to determine if the sponsorship was revoked for the wrong reasons. However, an alien's sponsorship or employment may be terminated simply by giving written notice to the Board and the alien. Because nothing in A.S.C.A. § 41.0408(g) requires a sponsor to give the reasons for revoking a sponsorship or restricts the grounds for doing so, we see no basis for the claim that these statutorily protected documents should have been produced.

With regard to appellants' claim regarding their rights to cross- examination, it is clear that an alien in a deportation proceeding is entitled "to cross-examine witnesses presented by the government." A.S.C.A. § 41.0205(7)(c); A.S.A.C. § 41.0807(a); see also A.S.C.A. § 4.1026 (parties in a contested administrative hearing are entitled to " such cross-examination as is necessary for a full and true disclosure of the facts ") .An improper curtailment of this right constitutes a violation of procedural due process. On the other hand, this is not to say that the right to cross-examination is without limits. It goes without saying that the right is subject to the familiar rules of evidence regarding probative worth and relevance.

Our review of the record reveals that the Board's Chairman had sustained a number of objections by the government on relevancy grounds when counsel sought to use cross-examination to assert the arguments that the Board should not allow the sponsorship's revocation and that one of the appellants moved at the direction of her sponsor . These claims had no bearing on the deportation decision, though. The Board does not have the power to bar a sponsorship's revocation, and a change of address must be reported no matter who initiated the alien's [23ASR2d143] move. See discussion, supra. At one point, however, the Board's Chairman did summarily cut off further cross-examination without inquiry as to the subject matter sought to be pursued by counsel. In this regard we are unable to see any basis for a ruling as to relevancy and therefore conclude that appellants' right to cross-examination was improperly curtailed.

As to the manner of appellants' arrest and detention, this issue is moot for purposes of the deportation appeal, as appellants are presently in Papua New Guinea and not in detention. Furthermore, A.S.C.A. § 41.0510( c) seems to answer appellants' concerns about the legality of an arrest warrant executed by a board member .

D. Conclusion

Appellants' sponsorship has been revoked, and they are subject to deportation. A.S.C.A. § 41.0408. However, prior to any attempts at deportation, they are entitled to a public hearing. A.S.C.A. § 41.0205. Additionally, appellants were entitled to notice "which is reasonable under all the circumstances." A.S.C.A. §§ 41.205(7)(a), 41.0607(a)(1). They were not afforded either procedural guarantee. Moreover, appellants' rights to cross-examination were curtailed in violation of A.S.C.A. § 41.0205 and A.S.A.C. § 41.0807.

Under A.S.C.A. § 41.0212(3), a decision of the Immigration Board may be reversed, modified, or remanded for further proceedings if made upon unlawful procedure. For reasons given, we REVERSE.

*********

1. We take judicial notice of the recent five-day weekend which arose as the result of New Year's Day's falling on a Friday and the new governor's inaugural declaration of a two-day government holiday for the following Monday and Tuesday.

American Samoa Gov’t; Le Vaomatua v.


LE VAOMATUA, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT,
RAYMOND McMOORE, SESE McMOORE,
and SAMOANA FELLOWSHIP, INC., Defendants

High Court of American Samoa
Land and Titles Division

LT No. 43-92

October 8, 1992

__________

Gambling and the keeping of gaming facilities is a criminal offense, though an exception exists for occasional bingo games whose profits are used for charitable, religious, or educational purposes. A.S.C.A. §§ 46.4301-46.4302.

To establish standing to enforce environmental laws, (1) a party must show that he has suffered an injury-in-fact, and (2) the alleged injury must arguably be within the statute's zone of interests.

For purposes of standing, aesthetic and environmental harm can constitute injury-in-fact.

Although an organization may represent members who are injured, a mere "interest in a problem" is insufficient to establish standing.

Being an extraordinary remedy, a preliminary injunction is granted only when clearly warranted and may be denied when administrative remedies have not been exhausted. A.S.C.A. § 4.1040.

A preliminary injunction is unwarranted when an environmental organization fails to plead specific harm to itself or its members and when it did not seek a stop order from the territorial Development Planning Office. A.S.C.A. §§ 4.1040, 24.0505(c).

Existing coastal management rules and regulations were not nullified by the Development Planning Office's failure to formally promulgate new, statutorily-required rules for [23ASR2d12] administering the American Samoa Coastal Management Program. A.S.C.A. §§ 24.0506(a)-(b); A.S.A.C. §§ 26.0201 et seq.

A preliminary injunction may be issued only when (1) a substantial likelihood exists that the applicant will prevail at trial on the merits and that a permanent injunction will be issued; and (2) great or irreparable injury will result to the applicant before a full and final trial on a permanent injunction.

A party seeking a preliminary injunction must post security to cover the costs and damages of a party wrongfully enjoined or restrained prior to a trial on the merits. A.S.C.A. § 41.1309.

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

Counsel: For Plaintiff, Charles V. Ala'ilima
For Defendant American Samoa Government,
Elvis R.P. Patea, Assistant Attorney General
For Defendants Raymond McMoore, Sese McMoore,
and Samoana Fellowship, Togiola T.A. Tulafono

On Motion for Preliminary Injunction:

Plaintiff is an eleemosynary corporation whose corporate objects embrace the preservation and protection of the environment. Defendant American Samoa Government has leased a certain parcel of land next to the Pala Lagoon to the defendants Ray and Sese McMoore, dba Samoana Fellowship Incorporated, for the stipulated purpose of developing "a community center for community related activities for the youth and senior citizens." The latter defendants are well-known bingo operators in the territory. (1) Plaintiff, claiming non-compliance with the territory's environmental laws, seeks a preliminary injunction to enjoin the McMoores from proceeding with their proposed construction next to the Pala Lagoon. For reasons given, the application must be denied. [23ASR2d13]

I. Standing

In order for a party to establish standing to enforce provisions of environmental laws, two criteria must be met. One, the party must show that he has suffered an "injury-in-fact" ; two, the alleged injury must arguably be within the statute's "zone of interests. " United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669,686 (1973); Sierra Club v. Morton, 405 U.S. 727,733 (1972); California by Brown v. Watt, 683 F.2d 1253, 1270 (9th Cir. 1982) (citing Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151-53 (1970); Barlow v. Collins, 397 U.S. 159, (1970); Glacier Park Foundation v. Watt, 663 F.2d 882,885 (9th Cir. 1981)). Aesthetic and environmental harm can constitute "injury-in-fact. " SCRAP, 412 U.S. at 686; Sierra Club, 405 U.S., at 734; Brown, 683 F.2d at 1270-71; see Japan Whaling Association v. American Cetacean Society, 478 U.S. 221,230 n.4 (1986).

A plaintiff is required to allege" specific and perceptible harm, " and these "allegations must be true and capable of proof at trial. " SCRAP 412 U.S. at 689. Demonstrating personal harm of some sort is crucial because this "gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. " SCRAP, 412 U .S. at 687, (citing Sierra Club at 740). As such, "a mere 'interest in a problem, , no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient to establish standing. " Sierra Club, 405 U .S. at 739; Foundation on Economic Trends v. Lyng, 943 F.2d 79, 83, 85 (D.C. Cir. 1991) (quoting Sierra Club) (an interest in disseminating environmental information, by itself, is insufficient). A party must show injury , although an organization may represent members who are injured. Sierra Club, 405 U.S. at 739; Brown, 683 F.2d at 1270; Lyng, 943 F.2d at 83, 85 (an organization can derive standing from its members).

Plaintiff Le Vaomatua has failed to plead, let alone demonstrate, specific harm to itself or its members. Rather, it has been content to assert standing in a conclusionary fashion, citing its corporate objectives. The fact that it is an organization concerned with the environment or the public interest fails to meet the test set forth in the cases. Therefore, we conclude that Le Vaomatua lacks standing to pursue this action. [23ASR2d14]

II. Exhaustion of Administrative Remedies

A preliminary injunction is an extraordinary remedy and is granted only when clearly warranted. Sierra Club v. Hickel, 33 F .2d 24, 33 (9th Cir. 1970), aff'd sub nom. Sierra Club v. Morton, 405 U.S. 727 (1972); United States v. School District of Omaha, State of Nebraska, 367 F. Supp. 179 (D. Neb. 1973) (citing Yakus v. United States, 321 U.S. 414 (1944)); Crimmins v. American Stock Exchange, Inc., 346 F. Supp. 1256 (S.D.N.Y. 1972). Indeed, courts have gone so far as to deny standing when an organization failed to exhaust its administrative remedies. See, e.g. , National Audubon Society v. Johnson, 317 F. Supp. 1330 (D.C. Tex. 1970) (denying standing when an organization had many administrative remedies but did not complain to any agency, even though the agencies were better able to research the problem and could grant the same relief).

Plaintiff Le Vaomatua has not demonstrated that a preliminary injunction is necessary .The territory's governing statute, the American Samoa Coastal Management Act of 1990 (A.S.C.A. §§ 24.0501 et seq.), charges the director of the Development Planning Office ("DPO") with enforcement of the Act's provisions; he may issue a stop order if the American Samoa Coastal Management Program, or a rule adopted pursuant to it, is being violated. If the stop order is violated, the director can seek an injunction from the High Court. A.S.C.A. § 24.0505(c); see also A.S.C.A. § 4.1040. Thus, an administrative enforcement remedy is available, and the DPO is the appropriate enforcement agency. However, the evidence fails to show that the plaintiff has attempted to pursue any administrative remedies. Plaintiff's counsel submits, again in conclusionary fashion, that the administrative route would only prove fruitless and that plaintiff has therefore petitioned the court directly. We conclude that plaintiff has not shown a need for the extraordinary relief which a preliminary injunction provides. Thus, even if plaintiff had standing, a preliminary injunction is unwarranted.

III. Coastal Zone Administrative Rules

Although its pleadings acknowledge the existence of rules and regulations for administering the American Samoa Coastal Management Program (see Complaint, para. 7), plaintiff has nonetheless argued that valid rules to govern the administrative process are lacking (presumably, the argument is arbitrariness within the administrative process). Plaintiff cites the DPO director's failure to formally establish rules within one year after the enactment of the American Samoa Coastal Management [23ASR2d15] Act, as mandated by A.S.C.A. § 24.0506(a). However, the Act also provides that the rules promulgated as A.S.A.C. §§ 26.0201 et seq. are to remain in effect until the new rules are in place, "notwithstanding any other law or rule." A.S.C.A. § 24.0506(b). These are two separate, distinct provisions, and any violation of the former does not nullify the latter. Thus, the procedures codified in A.S.A.C. §§ 26.0201 et seq. govern, and plaintiffs challenge to their validity fails.

IV. Sufficient Grounds

A preliminary injunction may only issue after a hearing in which "sufficient grounds. ..has been established by a preponderance of the evidence adduced." A.S.C.A. § 43.1301(g). A.S.C.A. § 43.1401(j) provides that "sufficient grounds" for the issuance of a preliminary injunction means:

(1) there is a substantial likelihood that the applicant will prevail
at trial on the merits and that a permanent injunction will be
issued against the opposing party; and

(2) great or irreparable injury will result to the applicant before
a full and final trial can be fairly held on whether a permanent
injunction should issue.

Plaintiff Le Vaomatua has not sustained the required statutory showing. On the basis of the evidence received, the defendants would probably prevail on the merits at trial. While plaintiff claims non-compliance by the government with existing land-use permit procedures, and non-compliance by the McMoores with the conditions of the permit issued to them, the evidence adduced tends to the support the opposite conclusion. On the question of irreparable injury, plaintiff made no attempt to show any particular harm to itself (as discussed above), irreparable or otherwise.

Finally, A.S.C.A. § 41.1309 essentially requires a party seeking a preliminary injunction to post security to cover the costs and damages suffered by a party wrongfully enjoined or restrained prior to the opportunity for a trial on the merits. The plaintiff has shown neither the willingness nor the ability to post the required security. [23ASR2d16]

V. Conclusion

Plaintiff Le Vaomatua's application for a preliminary injunction is denied.

It is so ordered.

*********

1. Cf. A.S.C.A. § 46.4301, which proscribes gambling and the keeping of gaming facilities as a criminal offense, and A.S.C.A. § 46.4302, which exempts from this general proscription the "occasional playing of bingo. ..when the profits [therefrom] are used for religious, educational or charitable purposes." (Emphasis added).

American Samoa Gov’t; Farapo v.


OLIVE FARAPO, TEKURA ALU, LILLY PAUMBARI, Appellants

v.

AMERICAN SAMOA GOVERNMENT , CHlEF IMMIGRATION
OFFICER, IMMIGRATION BOARD, and ATTORNEY GENERAL, Appellees

High Court of American Samoa
Appellate Division

AP No. 21-92

November 30, 1992

__________

A petition for review of an Immigration Board's decision need not be dismissed or be refiled to correct the names of the appellees in the caption when the petition incorrectly included the American Samoa Government, the Attorney General, and the Chief Immigration Officer as appellees. A.S.C.A. §§ 41.0209, 43.0201(b); H.C.R. 3.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, BETHAM, Associate Judge.

Counsel: For Appellants, Charles V. Ala'ilima
For Appellees, Elvis R.P. Patea, Assistant Attorney General

On Motion to Dismiss:

Appellees have filed a motion seeking an order to either dismiss the above-entitled matter or, in the alternative, "[to] direct[] the appellants to refile their cause of action and conform to the requirements for filing a Petition for Review." The appellees' principal concern is that the matter has been styled an "appeal," although in actuality, it is a "petition for review" under A.S.C.A. § 41.0209. (1) It is argued that the immigration board alone is, therefore, the only proper respondent. We agree. The board is the only proper respondent; the American Samoa Government, the Attorney General, and the Chief Immigration Officer [23ASR2d52] are improperly named herein as appellees. See A.S.C.A. § 41.0209. However, as to whether the matter should be dismissed or that the appellants be required to refile their petition to correct the names of the appellees in the caption, we answer in the negative. A.S.C.A. § 43.0201(b) provides that "[n]o objection may be made to formal deficiencies in pleading." Further, H.C.R. 3 provides that "the [High Court] Rules are to be construed so as to be consistent with the [American Samoa] Code [Annotated] and to promote the just, efficient and economical administration and determination of every action and proceeding." Motion denied.

It is so ordered.

*********

1. A.S.C.A. § 41.0209 reads: A petition for review may be filed with the appellate division of the High Court not later than 15 days from the date of the final decision of the [immigration] board; the action shall be brought against the board as respondent. (Emphasis added).

Ali'itaeao; Leilua v.


UA TIME LEILUA, Plaintiff

v.

TAVITA ALI'ITAEAO, LYDIA AMISONE, and
NATIONAL PACIFIC INSURANCE CO., Defendants

LAUMATA FAIFAIESE, Plaintiff

v.

LYDIA AMISONE, TAVITA ALI'ITAEAO, and
NATIONAL PACIFIC INSURANCE CO., Defendants

High Court of American Samoa
Trial Division

CA No. 127-91
CA No. 57-92

January 12, 1993

__________

Compulsory vehicle insurance covers the named insured, as well as any other person who uses the insured's vehicle with his express or implied permission. A.S.C.A. § 22.2003(2).

Inferential in nature, implied permission for a vehicle's use is usually shown by usage and practice of the parties over a sufficient period of time.

Although weaker evidence will support a finding of implied permission to use a vehicle if the drivers are blood relatives than if they were strangers or mere acquaintances, the mere existence of a close family relationship does not of itself establish permissive use.

Before KRUSE, Chief Justice, MATA'UTIA, BETHAM, Associate Judge.

Associate Judge,

Counsel : For Plaintiff Uatime Leilua, Charles V. Ala-ilima
For Plaintiff Laumata Faifaiese, Asaua Fuimaono
For Defendants, Roy J.D. Hall, Jr.

These separate actions arose out of the same incident and were thus consolidated for trial. Plaintiffs, Uatime Leilua and Laumata Faifaiese, were injured after their vehicle was involved in a front-end collision with another vehicle, driven by defendant Tavita Ali'itaeo. The [23ASR2d98] accident occurred because the latter, an unlicensed driver, had rounded a blind curve on the wrong side of the road. The vehicle driven by Ali'itaeao belonged to his sister, defendant Rita Amisone. Amisone is here joined together with her insurer for compulsory third-party liability insurance, defendant National Pacific Insurance, pursuant to A.S.C.A. § 22.2018. (1) Unfortunately, Ali'itaea has since departed the territory, and nothing indicates that process has been served upon him. Thus, we presently lack in personam jurisdiction over this defendant.

The evidence shows that Ali 'itaeao, a student from Manu'a, was at all relevant times living here on Tutuila with Amisone and her family while he attended high school. The Amisones are a two-car family; however, on the day in question, Mrs. Amisone and her husband had taken one car to work while leaving the other parked next to the house. Shortly after they had left that morning, Ali'itaeao somehow obtained the keys to this other car and drove away. He later ran into plaintiffs' vehicle.

Mrs. Amisone testified that she had neither authorized Ali'itaiao's taking of the vehicle that morning nor had she ever allowed him to drive the vehicle before. She emphasized her awareness of the fact that her brother did not have a driver's license. She further testified that she kept the vehicle's keys in her desk in the bedroom; however, she also stated that she had left the bedroom door unlocked so that her children would have access to a refrigerator located there.

The insurer contests liability on the ground that the Ali'itaeao was not a permittee of its insured, Amisone, and hence was not an additional insured under the provisions of the compulsory insurance statute, A.S.C.A. § 22.2001 et seq.

DISCUSSION

Compulsory insurance covers the named insured as well as" any other person who uses the [insured's] vehicle. ..with the express or implied permission of the named insured..." A.S.C.A. § 22.2003(2). The issue here is whether there was "implied" permission within the [23ASR2d99] meaning of A.S.C.A. § 22.2003(2)--nothing in the evidence suggests express permission. (2)

Implied permission is inferential in nature and is usually shown by usage and practice of the parties over a sufficient period of time. 12 M. Rhodes, Couch on Insurance 2d, Automobile Insurance, § 45.353 (Rev. ed. 1981 & Supp. 1992); 7 Am. Jur. 2d, Automobile Insurance, § 252, at 826-27 (1980 & Supp. 1992) (citing a number of state cases). "It is permission which may be inferred from circumstances whereby the owner may be seen as having tacitly consented to the vehicle's use." Maulupe v. American International Underwriters, 12 A.S.R.2d 1, 4 (Trial Div. 1989). While the relationship between the vehicle's driver and owner is very important in determining the existence of implied permission, (3) the mere existence of a close family relationship does not of itself establish permissive use. 12 Couch on Insurance 2d, Automobile Insurance, § 45.357, at 709.

On the evidence, all that is before us is a family relationship between the owner of the vehicle and its operator. The evidence falls short in the way of attendant circumstances from which a conclusion of permissive use can be reasonably inferred. "Permission" is the statutory criterion for coverage, "and that fact must appear on the evidence in order to bring the wrongful acts of the driver within the coverage of compulsory insurance policies. " Sataua v. Himphill, 5 A.S.R.2d 61, 68 (Trial Div. 1987). Therefore, we conclude that the complaint against [23ASR2d100] defendants Amisone and National Pacific Insurance must be DISMISSED.

It is so ordered.

*********

1. A.S.C.A. § 22.2018 gives an injured automobile victim a right of direct action against the insurer, within the limits of the policy, and "[s]uch action may be brought against the insurer alone, or against the both the insured and insurer."

2. Although plaintiff Laumata Faifaiese's complaint also alleges that his injuries were the proximate result of the vehicle owner's "gross negligence and reckless conduct," he tendered no proof to this effect or evidence to substantiate actionable conduct on the part of the vehicle's owner.

3. If they are blood relatives, weaker evidence will support a finding of permission than if they were strangers or mere acquaintances. 7 Am. Jur. 2d, Automobile Insurance, § 252, at 828 (citing Hardware Mutual Casualty Co. v. Home Indemnity Co., 50 Cal. Rptr. 508, 514 (App. Ct. 1966) (implied permission found in situation in which the car's owner was the driver's cousin)). Thus, "a family relationship, with its attendant familiarity, lends itself to an inquiry into past conduct and circumstances likely to show acquiescence, or lack of objection, tantamount to consent." Toleafoa v. Sioka, 5 A.S.R.2d 18, 21-22 (Trial Div. 1987).

Aga v. American Samoa Gov’t,


TOILOLO SIU, Plaintiff/Objector and Counter-Claimant

v.

POTI AMOSA, Defendant/Claimant and Counter-Defendant

High Court of American Samoa
Land and Titles Division

LT No. 48-91

February 23, 1993

__________

A citizen of Western Samoa, born in that country of parents who were not inhabitants of American Samoa, is ineligible to hold a matai title in American Samoa. A.S.C.A. § 1.0403(a).

A matai title bestowed contrary to statute cannot be registered or otherwise recognized; and use of an unregistered matai title is a criminal act. A.S.C.A. §§ 1.0401-1.0414.

Although largely hearsay, oral family history and tradition of occupancy and cultivation is necessary in a communal land-tenure system commonly lacking title documentation and so is admissible in evidence for establishing title to a parcel of land.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, AFUOLA, Associate Judge. [23ASR2d131]

Counsel: For Plaintiff/Objector and Counter-Claimant, Afoa L. Su'esu'e Lutu
For Defendant/Claimant and Counter-Defendant, Tauese P.F. Sunia

This action was generated out of competing claims by the Toilolo and Poti families to ownership of certain land as their communal land. Testimony at the trial was taken on November 20 and 23, 1992. Both parties were present with counsel. Without the counsel's presence, by stipulation, the court made a rain-abbreviated inspection of the land on November 27, 1992, and two members (the third then being off- island) viewed it again on December 4, 1992.

FINDINGS OF FACT

The land at issue, consisting of approximately 0.7529 of an acre, is a portion of a larger tract known as "Niualuga" and is situated in the Village of Failolo, American Samoa.

The land was surveyed on September 6, 1990, at the request of defendant Poti Amosa ("Poti"), the senior chief ("sa'o") heading the Poti family. The survey is set forth in Drawing No.100-15-90 of the Land and Survey Branch of the American Samoa Government. On September 13, 1990, a surveyor and pulenu'u certificate (1) was issued, as required under A.S.C.A. § 37.0102(c). On January 18, 1991, Poti offered the land for registration by the Territorial Registrar. (2) In accordance with [23ASR2d132] A.S.C.A. § 37.0103, the notice for proposed registration of land was posted for 60 days, beginning January 18, 1991, in Failolo and at the court house.

On January 30, 1991, plaintiff Toilolo Siu ("Siu"), as the purported sa'o of the Toilolo family, (3) objected to the registration. The Territorial Registrar referred the registration controversy to the Secretary of Samoan Affairs for dispute-resolution proceedings under A.S.C.A. § 43.0302. The Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute on August 7, 1991; and on August 8, 1991, in accordance with A.S.C.A. § 37.0104, the Territorial Registrar submitted the matter to the High Court for adjudication.

On August 20, 1991, notice, captioned "Toilolo Siu, Plaintiff, v. Poti Amosa, Defendant, " was issued by the clerk of courts, instructing objectors to move forward with their objections within 20 days after receipt of the notice or face dismissal of the case. The notice prompted Poti to file his quiet-title complaint first, which was followed by Siu's answer and counterclaim to quiet title.

This is one of those cases in which the contestants have offered oral family history and tradition of occupancy and cultivation as a basis for establishing title to the same parcel of land. Although largely hearsay, such evidence is necessary in a communal land-tenure system which commonly lacks title documentation and is, therefore, admissible. Tupuola v. Tu'ufuli, 1 A.S.R.2d 80 (1983). However, without more substantial evidence, the result can readily be a standoff in which neither the claimant nor the objectors meet their respective burdens of proving title.Toilolo v. Galoia, 4 A.S.R. 719 (1966). More substantial evidence is before us in this case. [23ASR2d133]

The physical configuration of the land at issue indicates that it is the Toilolo family's communal land. The east and west sides have straight, virtually exact north-south boundaries. The creek along the west side is a natural boundary .The boundary on the east is akin to a systematic subdivision lot. Moreover, the eastern surveyed boundary bisects a Toilolo family's house. The size of the plot is relatively small. Taken together, these circumstances support the logical inclusion of the land with the contiguous Toilolo family's communal land immediately to the east. However, other circumstances are persuasively to the contrary.

This litigation is the second recent action involving the land at issue. In 1988, registration as Toilolo communal land was sought for a surveyed parcel called "Niualuga and Lalomilo." The survey had been obtained by Toilolo Laufau, then the sa'o of the Toilolo family, before he passed away in the same year. Misa Taliloa ("Misa"), sa'o of the Misa family, objected to the registration, claiming that portions of the surveyed land encroached upon the Misa family's communal land. Poti objected with respect to the land at issue, which was also encompassed within this survey. Suit followed in 1990. In 1991, the three contestants agreed to its dismissal with prejudice, and Misa obtained registration of the land surveyed as the Misa family's communal land without any objections. Poti's claim that the land at issue is the Poti family's communal land is discernible in these events.

At the time of Poti's survey of the land at issue, Siu was, and still is, the pulenu'u of Failolo. Although he was not present when Poti showed the boundaries of the land to the surveyor, Siu was there at the beginning of the survey. Later he signed the surveyor and pulenu 'u certificate. Even though he testified that Misa brought the certificate to him for his signature and he thought it pertained to the Misa family's communal land, his denial of knowing the purpose of Poti's survey is incredulous.

Most important, however, is the actual use of the land at issue. The Toilolo family's oral history and tradition placed the family guest- house in the southeast corner of the land. Other witnesses claimed that the site of this guest-house was located on higher ground, according to custom, to the east. Both families presented contradictory evidence of current cultivation. Coconut trees are lined along most, perhaps all, of the shoreline in the village; but they are mature, and the planters' identity is obscured. [23ASR2d134]

Long-term occupancy by Poti family members is clearly established. According to the evidence, they may have first resided on the land as far back as 1942, but no later than 1948. This residency was undertaken without any permission by the Toilolo family's sa'o then or later in office. Although occasional departures by some sa'os of the Poti family have occurred for relatively protracted periods, they were apparently prompted by village or other issues unrelated, except in instances involving Siu, to ownership of the land at issue, and the Poti family's possession of the land has been continuous to the present time.

Two houses, both constructed by Poti family members, are wholly within the surveyed site. Poti, who was born on the land, has lived most of his life in one of those houses, which is actually erected on the Toilolo family's claimed guest-house site. His father and grandfather also lived in this house. Poti moved to a relative's house in another village after Hurricane "Ofa" rendered this house uninhabitable in 1989, but he had no intention of vacating the land.

The other house was built in 1972-1973 for Poti's cousin, the granddaughter of a former sa'o of the Poti family, who authorized the construction. We are not persuaded by Siu's claim that he selected this site by direction of the sa'o then heading the Toilolo family. After she relocated outside of American Samoa, the Poti family's sa'o first permitted a sister of a former sa'o of the Toilolo family and later her brother, who is still there, to live in this house. The Toilolo family has never voiced any claim to own or objection to the presence of either of these houses.

Two graves are located on the land. One is the burial site of Poti's grandmother and is covered with concrete. The other is less substantial, marked only by stones. Apparently, Toilolo family members are buried there. Although the testimony differed, they may include the parents of one witness, who is now 69 years old and lived on the land with them at one time, and a grandson of his sister, who wanted her grandson buried with his great -grandfather. However, the traditional Toilolo family's burial grounds are located elsewhere in Failolo.

A dispute over the land involving Siu and a former Poti family sa'o occurred on or about December 20, 1968, when Siu moved back, after an extended absence, from Western Samoa to American Samoa. Initially, this quarrel concerned the plantations on the land. Siu claimed that, in 1969, this sa'o of the Poti family agreed to remove his plantations and moved to Hawaii. Siu also testified to continued strife [23ASR2d135] with the next Poti family's sa'o the following year, when Siu began to build the house now bisected by the surveyed boundary on the east side of the land. On both occasions, the Secretary of Samoan Affairs and the Western District Governor apparently became involved in settling matters.

Siu's asserted role of prominence in Toilolo family affairs so quickly after arriving from Western Samoa seems improbable. However , even if these events occurred more or less as he described them, at most they only disrupted relationships between the Toilolo and Poti families. They did not interrupt the Poti family's continuous possession of the land at issue. By 1968, the Poti family had been in open, notorious, hostile, exclusive and continuous possession of the land for at least 20 years, and possibly as long as 26 years. In fact, the Poti family continued in possession adverse to any claim that the Toilolo family may have had to owning the land until this action was commenced. Thus, this period extended over 43 years to 49 years, well in excess of the 30-year period presently required under A.S.C.A. § 37.0120(a).

It is true that there are interrelationships through marriages between the Toilolo and Poti families. Poti is a high-talking-chief matai title, while Toilolo is one of two high-chief titles, along with Misa, in Failolo. In this capacity, the Poti titleholder customarily performs service or "tautua " to and speaks on behalf of the Toilolo titleholder . However, in spite of these connections, we are satisfied that the two families are independent of each other for purposes of owning communal land and acquiring title from one another by adverse possession. Therefore, except as noted below, we find as the ultimate fact in this action that the land at issue is the Poti family's communal land.

The Toilolo family claims, and the Poti family acknowledges, that both the house bisected by the eastern surveyed-boundary line and the house which is apparently touched at one corner by that boundary line are owned by the Toilolo family. Thus, we further find that the Poti family have relinquished the portions of the land occupied by these houses to the Toilolo family. Fairness dictates that the eastern boundary line be relocated at least ten feet away from all points along the outside roof-1ines of those two houses and be resurveyed, at the Poti family's expense, for that purpose. [23ASR2d136]

CONCLUSION OF LAW

Upon completion of the resurvey, with the eastern boundary modified in accordance with the findings of fact above, Poti is entitled to registration of the title to the land at issue, and the Territorial Registrar shall register that title as the communal land of the Poti family.

Judgment shall enter accordingly. It is so ordered.

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1. A pulenu'u serves in a position authorized by A.S.C.A. § 5.0301 and, having duties set forth in A.S.C.A. § 5.0302 and other statutes, is roughly the equivalent of a mayor of a municipality.

2. The offer proposed registration as land "individually owned" by the Poti family. The potential confusion engendered by this terminology with the recognized category of land known in American Samoa as "individually owned land" belonging to a person having at least one-half Samoan blood, as distinguished from "communal land" owned by an extended Samoan family without any title rights in individuals, was adequately dispelled by three factors: Poti's testimony that he intended registration as communal land, the reference to the "Poti family" in the offer itself, and the entire circumstances pertaining to the registration effort.

3. Although not affecting our decision on which family owns the land at issue, we take special note that Siu is a citizen of Western Samoa, born in that country of parents who were not inhabitants of American Samoa. As such, he is ineligible, under A.S.C.A. § 1.0403(a), to hold this matai ("chief") title. Thus, the Toilolo title was bestowed on him contrary to the provisions of A.S.C.A. §§ 1.0401-1.0414 and cannot be registered or otherwise recognized as Siu's title under A.S.C.A. § 1.0413. His use of the Toilolo matai title is also a criminal act under A.S.C.A. § 1.0414.