CODE OF THE FEDERATED STATES OF MICRONESIA

[1999 FSM Code Annotated]

Title 19 - ADMIRALTY AND MARITIME

CHAPTER 13

Administrative and Legal Procedures

Sections:

§ 1301. Administrative disposition.
§ 1302. Mediation and arbitration.
§ 1303. Jurisdiction of Supreme Court in rem.
§ 1304. Jurisdiction of Supreme Court in personam.
§ 1305. Nautical assessors.
§ 1306. Investigation of violations.
§ 1307. Procedure for prosecution of national offenses.
§ 1308. Detention of a vessel.
§ 1309. Forfeiture of a vessel.
§ 1310. Foreign vessels.
§ 1311. Obstruction of persons.
§ 1312. Civil offenses.
§ 1313. Recovery of fines.
§ 1314. Time limits on commencement of proceedings.
§ 1315. Access to and inspection of adopted regulations.
§ 1316. Continuity of documents.

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§ 1301. Administrative disposition.

(1) Notwithstanding the provisions of sections 1303 and 1304, where the Secretary believes there has been a violation of any provision of this title which is not punishable by imprisonment, the Secretary may:

(a) order the accused to take mitigating or remedial actions; and

(b) sanction the accused, including levying fines.

(2) The order or the sanction shall constitute notice to the accused of the offense for purposes of administrative disposition under this section.

(3) Compliance with the order and payment of the fine shall constitute complete satisfaction of the charges. Payment of fines must be made within 7 days of the notice.

(4) Where those affected by the actions of the Secretary under subsection (1) wish to contest those actions, they may:

(a) seek a hearing in accordance with the procedures of title 17 of the Code of the Federated States of Micronesia; or

(b) seek a judicial hearing in the appropriate court without having to exhaust administrative remedies.

(5) All fines collected shall be deposited into the General Fund of the Federated States of Micronesia.

Source: PL 10-76 § 224.

§ 1302. Mediation and arbitration.

(1) Where two or more parties seek resolution of a dispute arising under the provisions of this title, they may agree to mediation or arbitration conducted by the Secretary, or a mediator or arbitrator appointed by the Secretary.

(2) Any decision made in arbitration shall be binding upon the parties and final.

Source: PL 10-76 § 225.

§ 1303. Jurisdiction of Supreme Court in rem.

The Supreme Court shall have jurisdiction in rem over all vessels irrespective of their flag and all maritime claims wherever arising with respect to:

(1) disputes relating to the ownership of, possession of or title to a vessel or a share in a vessel;

(2) mortgages, including foreign mortgages and other charges in the nature of a mortgage;

(3) claims for towage;

(4) claims relating to salvage;

(5) claims for pilotage;

(6) claims for general average;

(7) claims for wages of masters and crew;

(8) claims for disbursements made by masters, shippers, charterers or agents on behalf of a vessel;

(9) claims for damage done by a vessel;

(10) personal injury claims arising from the operation of a vessel for which the vessel's owner, operator or charterer is liable;

(11) claims for loss of or damage to goods carried by a vessel;

(12) claims arising from contracts for the carriage of goods by a vessel;

(13) claims arising from agreements for the use or hire of a vessel;

(14) claims for the construction, repair, alteration or equipping of a vessel;

(15) claims for goods, materials or services supplied to a vessel;

(16) claims for unpaid insurance premiums or calls from protection and indemnity associations;

(17) port, harbor, navigational aids dues and similar charges;

(18) claims for marine pollution damage;

(19) claims for damages arising from the operation of a vessel for which the owner, operator or charterer is liable;

(20) claims for the enforcement of arbitral awards in respect of maritime claims; and

(21) claims for the enforcement of local and foreign admiralty judgments in rem.

Source: PL 10-76 § 226.

Annotations

In an admiralty and maritime case for the in rem forfeiture of a vessel, jurisdiction and venue are so interrelated that the government, or its agents, may not move a defendant vessel from the state in which it was arrested where the FSM admiralty venue statute does not anticipate transfer even though the civil rules allow improper venue to be raised as a defense or to be waived. It is unclear what the result of such a move would be. FSM v M.T. HL Achiever (I), 7 FSM Intrm 221, 222-23 (Chk 1995).

The FSM Constitution, by its plain language, grants exclusive and original jurisdiction to the FSM Supreme Court trial division for admiralty and maritime cases. It makes no exceptions. Therefore all in rem actions against marine vessels, even those by a state seeking forfeiture for violation of its fishing laws, must proceed in the trial division of the FSM Supreme Court. M/V Hai Hsiane #36 v Pohnpei, 7 FSM Intrm 456, 463 (App 1996).

The hallmark of an in rem proceeding in admiralty is that it is an adjudication of all rights in the vessel, good against the world, not just of the rights of the parties to the action. An in rem proceeding against a vessel can only be had in the context of an admiralty or maritime case. M/V Hai Hsiane #36 v Pohnpei., 7 FSM Intrm 456, 461-62 (App 1996).

§ 1304. Jurisdiction of Supreme Court in personam.

The Supreme Court shall have jurisdiction in personam with respect to:

(1) claims for damage done to a vessel;

(2) claims to limit liability under any international maritime convention to which the Federated States of Micronesia is a party allowing for limitation of liability in relation to vessels; and

(3) ancillary matters of admiralty and maritime jurisdiction associated with matters in respect of which the Court's jurisdiction is invoked.

Source: PL 10-76 § 227.

§ 1305. Nautical assessors.

(1) The Court may appoint nautical assessors to advise it on all maritime matters.

(2) Nautical assessors shall be appointed on the basis of their expert knowledge and experience and may be engaged prior to or during trial for as long as their expertise is required.

(3) Nautical assessors shall not be called by the parties to give evidence, shall not be sworn and shall not be cross-examined.

(4) Nautical assessors may be paid compensation for their services.

(5) The advice of nautical assessors shall be treated as highly persuasive, but it is for the Court to assess its worth and decide on all matters of fact and law.

Source: PL 10-76 § 228.

§ 1306. Investigation of violations.

(1) Upon receipt of evidence that a violation has occurred, the Secretary shall cause an investigation to be conducted.

(2) The Secretary may issue subpoenas requiring the attendance of witnesses and the production of documents.

(3) The Secretary may inspect any vessel in any port under the jurisdiction of the Federated States of Micronesia.

(4) If a foreign vessel is involved, the Secretary shall, through diplomatic channels, notify the maritime authority of the vessel's flag state.

(5) Upon completion of the investigation, the Secretary shall take appropriate action.

Source: PL 10-76 § 229.

§ 1307. Procedure for prosecution of national offenses.

(1)	(a) All proceedings brought against a person for an offense under this title shall be commenced by filing an information, in writing, in the name of the Secretary with the Supreme Court.

(2)	(a) Subject to subsection (b) every information in respect of an offense shall be filed within 12 months from the date on which the offense is alleged to have been committed or when the alleged offense may reasonably have been discovered.

(b) Where any vessel or any person has committed an offense under this title and departed from the jurisdiction before an information could be filed, the time period referred to in subsection (a) shall commence running on the date on which the vessel or person returns to the jurisdiction.

(3) Every information shall contain such particulars as will fairly inform the defendant of the substance of the offense with which he is charged.

(4) As soon as practicable after an information is sworn, it shall be filed with the Court.

(5) Where an information has been filed, the Clerk of the Court may issue a summons to the defendant.

(6)	(a) Every summons to a defendant and any other document which is required to be served on a defendant shall be served on him by being delivered to him or her personally or by being brought to his notice if he or she refuses to accept it.

(b) Where a summons is to be served on the master of a vessel it may be served on the officer apparently in charge if the master is not on board the vessel.

(c) Where the summons is to be served on the owner of a vessel it may be served on the vessel's agent.

(d) Service on the persons referred to in subsections (b) or (c) shall be deemed to be service on the defendant master and owner of the vessel.

(7) Every summons to a defendant and every other document which is required to be served on a defendant may be served by an authorized officer or by the Principal Officer who shall be the Principal Surveyor, Principal Shipping Officer, or any other person so designated by the Secretary.

(8)	(a) The service of any document may be proved by affidavit made by the person who served the document showing the fact, as well as the time, place and mode of service.

(b) The affidavit of service made by the person who served the document shall be deemed to be correct unless or until the contrary is proved.

(9) When an information has been filed and a summons has been issued and served, a Principal Officer who has reasonable grounds to believe that the defendant will not appear before the Court on the date set out in the summons, may apply to the Court for a warrant to arrest the defendant if:

(a) a warrant is necessary to compel the attendance of the defendant; or

(b) a warrant is desirable because of the gravity of the alleged offense and the circumstances of the case.

(10) A Principal Officer or his delegate for the purposes of enforcing this title may, without warrant:

(a) stop, board and search any vessel, or the owner, master or any crew member of any vessel that he or she reasonably suspects to have committed any offense under this title;

(b) require the master or any crew member to inform him or her about any incident occurring aboard or involving the vessel;

(c) make any inspection or examination of anything aboard the vessel;

(d) require to be produced, any certificate, document, logbook or other record required to be kept by this title or regulations, or that concern the operation of the vessel or employment of the crew and examine and take copies thereof;

(e) seize any logbooks, charts, documents, equipment, material, and take or require to be taken any samples which he or she has reasonable grounds to believe show or tend to show, with or without other evidence, the commission of an offense against this title;

(f) seize anything which he or she has reasonable grounds to believe might be used as evidence in any proceedings under this title; or

(g) arrest any person whom he or she has reasonable grounds to believe has committed an offense against this title.

(11)	(a) Pending the date of the hearing set forth in the summons, upon application, the Court may by order detain the vessel until the final adjudication of the matter contained in the information.

(b) Notwithstanding subsection (a), the Court may by order release the vessel from such detention upon the posting of a bond with the Court in an amount not exceeding the value of the vessel or the maximum fine prescribed in relation to the offense or the total of all the offenses if more than one are contained in the information.

(12)	(a) Where the defendant does not speak or understand the English language, a crew member or other qualified person may be used as an interpreter.

(b) Where an interpreter was used when the information was filed and the summons served, and the evidence collected from the vessel or persons on board the vessel, that same interpreter may be summoned to appear in Court at the trial of the named defendant.

(c) Where certificates required to be carried on board the vessel are not in the English language, the defendant shall obtain English translations of those certificates from the authority or organization which issued them.

(13)	(a) Any number of information for any offenses against a defendant may be tried together.

(b) If the Court believes that it is desirable or expedient in the interest of justice to do so, it may order that the defendant be tried on one or more of such informations separately.

(c) The informations which are not then tried shall be proceeded upon in all respect as if they had been presented separately.

(14) Any number of defendants may be tried together, provided that the Court may, at any time, order separate trials if satisfied that the interests of justice so require.

Source: PL 10-76 § 230.

§ 1308. Detention of a vessel.

(1) Where the Secretary finds that reasonable grounds exist under this title for the detention of a vessel, the Secretary shall issue a detention order and may detain the vessel without warrant, PROVIDED HOWEVER:

(a) written notice shall be served to the person on board in charge of the vessel, together with a copy of the detention order; and

(b) such written notice shall state with particularity the grounds for detention and the provision of the law under which the detention order has been issued, and that the vessel owner or master has the right to a prompt hearing before the Secretary regarding probable cause for the detention.

(2) An owner or master whose vessel has been detained may petition the Secretary under title 17 of the Code of the Federated States of Micronesia for a hearing to review the detention order.

(3) Where a foreign vessel is detained, the Secretary, through diplomatic channels, shall notify the maritime authority of the vessel's flag state, including the reason for detention.

Source: PL 10-76 § 231.

§ 1309. Forfeiture of a vessel.

(1) Where a vessel is subject to forfeiture under this title, upon the issuance of a warrant by the Supreme Court, an authorized officer may seize and detain the vessel.

(2) Upon seizure or detention under this section, civil proceedings for forfeiture shall be initiated forthwith by the Office of the Attorney General, and written notice shall be served on the owner or master, PROVIDED HOWEVER, in the case of a foreign vessel or foreign small craft, notice of the forfeiture proceedings and the grounds therefor shall be given to the maritime authority of the flag state through diplomatic channels.

(3) After trial, if the Supreme Court finds by a preponderance of the evidence that proof has been made of a violation of this title for which forfeiture of a vessel or small craft is allowed, the Court may issue an order that the owner has forfeited all rights of ownership of the vessel or small craft, and all property rights in the vessel or small craft have vested in the Government together with all equipment, cargo and stores.

(4) Upon forfeiture of a vessel or small craft under subsection (3), the Government may register the vessel under this title by filing the order with the Registrar, and the Registrar shall enter in the Register the name and particulars of the vessel or small craft, listing the Government as the registered owner.

(5) An order issued by the Supreme Court under subsection (3) shall be deemed evidence of good title to the vessel or small craft free of all encumbrances and the Government shall have the right to sell the vessel or small craft with clear title.

Source: PL 10-76 § 232.

§ 1310. Foreign Vessels.

Notwithstanding any other provision of law in this title, if a violation is committed by a foreign vessel or foreign small craft, or its owner or master, the Secretary, after consultation with the Attorney General and the Department of External Affairs, may refer the matter through diplomatic channels to the nation of registry for appropriate action.

Source: PL 10-76 §233.

§ 1311. Obstruction of persons.

Every person who, without lawful excuse (proof of which is on him or her), hinders or obstructs a person in the performance, execution or carrying out of any duty conferred or imposed on that person by this title commits a national offense, and where no other penalty is provided for in this title, shall be punishable by a fine not exceeding $200,000 or by imprisonment not exceeding 2 years, or both; PROVIDED that if in the commission of any such offense the person uses a dangerous weapon, engages in conduct that causes bodily injury to any officer authorized to enforce the provisions of this title, or threatens any such officer with bodily injury, the offense is punishable by a fine of not less than $500,000 or imprisonment for not more than ten years, or both.

Source: PL 10-76 § 234.

§ 1312. Civil offenses.

(1) Every person who does any act, or makes any omission, in contravention of any provision of this title or regulations hereunder commits a civil offense.

(2) When any provision of this title is contravened and no specific violation is prescribed and no pecuniary penalty provided for, any person contravening any provision commits a civil offense and shall be liable to a fine not exceeding $1,000.

Source: PL 10-76 § 235.

§ 1313. Recovery of fines.

(1) If an owner or master of a vessel has been convicted of any offense under this title and where the Court orders payment of a fine or if a vessel has been found liable in proceedings in rem, the vessel may be detained until the fine has been paid.

(2) If a fine is not paid within the period of time stipulated by the Court, the Court may order that the vessel be sold and the proceeds of the sale be used to pay the fine.

Source: PL 10-76 § 236.

§ 1314. Time limits on commencement of proceedings.

(1) An action must be commenced within the time period specified or the right to bring such action is extinguished.

(2) An action is commenced by the filing of a complaint or information with the Supreme Court.

(3) The time limit within which claims shall be brought shall commence from the time when the right of action accrues or when it reasonably may have been discovered.

(4) The time limits set forth in this section shall not run during any time when:

(a) the seaman is incapacitated, or is involuntarily outside the jurisdiction of the Federated States of Micronesia; or

(b) the defendant vessel or vessel owner is outside the jurisdiction of the Federated States of Micronesia.

(5) Claims arising out of the Shipping Articles must be commenced within 12 months from the date of the termination of the Shipping Articles or the date on which the seaman is discharged, whichever is earlier.

(6)	(a) Claims arising out of the death or permanent disability of a seaman caused by wrongful act, neglect, or default on the high seas must be commenced within two years from the date the vessel returns to the seaman's proper return port or to the vessel's port of registry, whichever is later;

(b) Claims of owners against the master for acts committed during the performance of the master's duties must be commenced within 2 years from the date on which the last act giving rise to the claim occurred;

(c) Claims for the recovery of damages as a result of a collision between two or more vessels must be commenced within 2 years from the date of the collision;

(d) All other tort claims must be commenced within 2 years of the date on which the act giving rise to the claim occurred.

(7) All other claims must be commenced within 3 years of the date on which the incident giving rise to the claim occurred.

Source: PL 10-76 § 237.

§ 1315. Access to and inspection of adopted regulations.

(1) Where a convention or rule or regulation, or a provision thereof, has been adopted and incorporated by reference in regulations made under this title, the adopted convention, rule or regulation, or provision thereof, as the case may be, shall be available for inspection and copying at the Office of the Attorney General by any person likely to be affected by it.

(2) Subject to subsection (1), no person shall be prosecuted or convicted for contravening an adopted regulation if that regulation is not available for inspection or copying as required by subsection (1), and it is a defense to such a prosecution to show that the contravened regulation was not so available as required.

(3) The defense available under subsection (2) is not available to a person who has sufficient knowledge of the requirements of the contravened provision for which he or she is being prosecuted, or who possessed or who had reasonable access in any event, to the requirements of the contravened provision independently of the procedure required under subsection (1).

(4) When a person requests copies of an adopted regulation under subsection (1) the Attorney General may charge a reasonable fee for any copying services provided, commensurate to that charged generally in the public service.

(5) For the purposes of this section, and for greater certainty, "adopted regulation" means any code, treaty, convention, statute, rule, by-law, resolution, form, ordinance, order or regulation adopted and incorporated by reference under this title.

Source: PL 10-76 § 238.

§ 1316. Continuity of documents.

(1) The regulations promulgated under the National Maritime Act of 1993 shall continue in force as if made under this title until repealed by the Secretary.

(2) Any certificate, license, instrument or document which was valid and current immediately prior to the effective date of the National Maritime Act, 1996, shall remain in force for a period of 12 months or until it expires, whichever is earlier.

Source: PL 10-76 § 239.

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