FSM SUPREME COURT
APPELLATE DIVISION
Cite as M/V Hai Hsiang #36 v. Pohnpei,
7 FSM Intrm. 456 (App. 1996)

[7 FSM Intrm. 456]

M/V HAI HSIANG #36, CAPTAIN LIN SAN
CHI, HWANG HAE SHYUAN and TING
HONG OCEANIC ENTERPRISES, INC.,
Appellants,

vs.

STATE OF POHNPEI,
Appellee.

APPEAL CASE NO. P9-1994

OPINION

Argued:  July 13, 1995
Further Argued:  October 19, 1995
Decided:  April 8, 1996

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

*Chief Justice, Kosrae State Court, Lelu, Kosrae

[7 FSM Intrm. 457]

APPEARANCES:
For the Appellants:     Douglas Parkinson, Esq. (brief)
                                      R. Barrie Michelsen, Esq. (argued)
                                      Law Offices of R. Barrie Michelsen
                                      P.O. Box 1450
                                      Kolonia, Pohnpei FM 96941

For the Appellee:        Richard L. Counts, Esq. (brief)
                                      Arthur R. Wiedinger, Jr., Esq. (argued)
                                      Assistant Attorneys General
                                      Office of Pohnpei Attorney General
                                      P.O. Box 1555
                                      Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Constitutional Law) Legislative Powers; Federalism
     Congress has the sole power to legislate the regulation of natural resources in the marine space of the Federated States of Micronesia beyond 12 miles from island baselines, and the states have the constitutional power to legislate the regulation of natural resources within that twelve miles of sea.  Congress may also legislate concerning navigation and shipping within the twelve-mile limit except within lagoons, lakes, and rivers.  M/V Hai Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 459 (App. 1996).

Admiralty; Federalism) Abstention and Certification; Jurisdiction
     The FSM Supreme Court has original and exclusive jurisdiction over admiralty and maritime cases.  This grant of exclusive jurisdiction is not made dependent upon constitutional grants of powers to other branches of the national government.  When the Supreme Court's jurisdiction is exclusive it cannot abstain from deciding a case in favor of another court in the FSM because no other court in the country has jurisdiction.  M/V Hai Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 459 (App. 1996).

Constitutional Law) Interpretation
     FSM courts may look for guidance to decisions of United States courts construing words of the United States Constitution which are similar to those in the Constitution of the Federated States of Micronesia, but FSM courts need not follow them in areas where United States constitutional law has been particularly unsettled or where the decision relies on specific and unique historical factors that do not exist here.  M/V Hai Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 459-60 (App. 1996).

Admiralty; Jurisdiction
     Only the FSM Supreme Court has original and exclusive jurisdiction over admiralty and maritime and certain other cases under the Constitution.  The other national courts authorized by the Constitution, but which Congress has never created, are only authorized to entertain cases of concurrent jurisdiction, and thus could never exercise jurisdiction over admiralty and maritime cases.  Maritime jurisdiction can reside only in one national court ) the Supreme Court.  M/V Hai Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 460 n.2 (App. 1996).

Admiralty
     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

[7 FSM Intrm. 458]

against a vessel can only be had in the context of an admiralty or maritime case. M/V Hai Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 461-62 (App. 1996).

Admiralty; Jurisdiction
     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 Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 463 (App. 1996).

Constitutional Law) Interpretation
     When the language of the Constitution is not conclusive as to the issue presented, it is proper to refer to the constitutional convention journal for the history of the provision.  If the journal does not address the point, a court may next consult cases from the United States if the phrase in the U.S. Constitution suggests that the FSM borrowed the term, and the court can infer that the framers intended that the meaning here be given the same meaning as it was given in U.S. courts.  M/V Hai Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 463-64 (App. 1996).
 
Admiralty; Jurisdiction
     Actions to enforce in personam civil penalties for violations of state fishing laws are within the exclusive admiralty and maritime jurisdiction of the FSM Supreme Court.  M/V Hai Hsiang #36 v. Pohnpei, 7 FSM Intrm. 456, 464-65 (App. 1996).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This is an appeal of a trial division order abstaining from hearing the case and remanding it to the Pohnpei Supreme Court.  The principal issue is whether an in rem civil action for forfeiture of a commercial fishing vessel for violation of a state fishing law within state waters falls within the original and exclusive jurisdiction of the FSM Supreme Court over admiralty and maritime cases so that no state court may entertain such a matter.  We also consider whether proceedings against in personam defendants joined to such an in rem action also fell within our admiralty and maritime jurisdiction.  We conclude that they do.

I.  Background
     The State of Pohnpei seeks the in rem civil forfeiture of a fishing vessel, M/V Hai Hsiang #36, for allegedly fishing in Pohnpei state waters in violation of Pohnpei state law.  The State of Pohnpei also seeks a penalty of $75,000.00 each from the vessel's captain [Lin San Chi] who was also its fishing master, from its owner [Hwang Hae Shyuan], and from Ting Hong Oceanic Enterprises, Inc., the signatory to the Foreign Fishing Agreement under which the vessel operated in the FSM Exclusive Economic Zone.1  The proceedings against these three defendants are in personam, not in rem.  This civil action, and a companion criminal case, were commenced in Pohnpei Supreme Court.  The defendants in the criminal case, who are also the three in personam defendants in this civil case, were

[7 FSM Intrm. 459]

convicted.  They have appealed these convictions to the Pohnpei Supreme Court appellate division.

     The defendants removed the civil action from the state court to the FSM Supreme Court on the ground that an in rem civil forfeiture of a commercial fishing vessel fell within the original and exclusive jurisdiction over admiralty and maritime cases conferred on the Supreme Court by article XI, section 6(a) of the Constitution.  The trial division held that such a civil forfeiture did fall within the admiralty and maritime jurisdiction of the Supreme Court, Pohnpei v. Hai Hsiang # 36 (I), 6 FSM Intrm. 594, 599 (Pon. 1994), but that within twelve-mile limit this maritime jurisdiction was shared with the state courts, id. at 602.  The court then abstained from the matter and remanded the case to Pohnpei Supreme Court.  Id. at 603.  The defendants appealed.  The trial division stayed the order of abstention and remand pending appeal.  Pohnpei v. Hai Hsiang # 36 (II), 6 FSM Intrm. 604 (Pon. 1994).

     Oral argument was heard on July 13, 1995.  Upon careful consideration of the written briefs and oral arguments of the parties, and of the record, we concluded that the matter was within the FSM Supreme Court's original and exclusive jurisdiction over admiralty and maritime cases.  We therefore ordered the trial court's decisions reversed and remanded the case to the trial division of the FSM Supreme Court to exercise its jurisdiction.  We stayed that order on August 1, 1995, and requested further briefing on whether the in personam cases were within the admiralty and maritime jurisdiction of the FSM Supreme Court, and if not, whether the court should retain jurisdiction.

     Oral argument was heard on those points on October 19, 1995.  We now conclude that an action by the state to impose a penalty in personam for foreign fishing is also within our exclusive admiralty and maritime jurisdiction.  Our stay is hereby vacated.

II.  FSM Constitutional Background
     It is unquestioned that Congress has the sole power to legislate the regulation "of natural resources in the marine space of the Federated States of Micronesia beyond 12 miles from island baselines."  FSM Const. art. IX, 2(m).  The states thus have the constitutional power to legislate the regulation of natural resources within that twelve miles of sea.  Id. art. VIII, 2 ("power not expressly delegated to the national government or prohibited to the states is a state power").  Congress may legislate concerning navigation and shipping within the twelve-mile limit.  Id. art. IX, 2(h) (FSM can "regulate navigation and shipping except within lagoons, lakes, and rivers").

     The FSM Supreme Court's jurisdictional grant is found in the Constitution.  The Constitution grants the FSM Supreme Court original and exclusive jurisdiction over admiralty and maritime cases (and three other types of cases).  FSM Const. art. XI, 6(a).  This grant of exclusive jurisdiction is not made dependent upon constitutional grants of powers to other branches of the national government.  In re Nahnsen, 1 FSM Intrm. 97, 108 (Pon. 1983).  Exclusive jurisdiction means just that ) no other court within the Federated States of Micronesia can have jurisdiction over such cases.  See, e.g., Weilbacher v. Kosrae, 3 FSM Intrm. 320 (Kos. S. Ct. Tr. 1988) (personal injury of fare-paying passenger aboard state-owned vessel was either maritime tort or breach of maritime contract within exclusive admiralty jurisdiction of FSM Supreme Court).  When the Supreme Court's jurisdiction is exclusive it cannot abstain from deciding a case in favor of another court in the Federated States of Micronesia because no other court in the country has jurisdiction.  Faw v. FSM, 6 FSM Intrm. 33, 36 (Yap 1993).  Therefore, only if the present case is not an admiralty or a maritime case was the abstention order by the FSM Supreme Court trial division proper.

     Our previous excursion into maritime and admiralty law was Federal Business Development Bank v. S.S. Thorfinn, 4 FSM Intrm. 367 (App. 1990).  That case acknowledged that FSM courts may look "for guidance to decisions of United States courts construing words of the United States Constitution

[7 FSM Intrm. 460]

which are similar to those in the Constitution of the Federated States of Micronesia," but that the court need not follow them in areas where United States constitutional law has been particularly unsettled or where the decision relies on specific and unique historical factors that do not exist here.  Id. at 371-72.  We noted that when the FSM Constitution was adopted an earlier rule that certain ship mortgages were not enforceable in admiralty no longer existed.  Id. at 372.  This, coupled with our conclusion that this was consistent with general maritime law and international practice today, id. at 373-76, caused us to determine that the enforcement of a ship mortgage fell within the FSM Supreme Court trial division's original and exclusive jurisdiction.

III.  Parties' Positions
A.  Appellants' Arguments
     The appellants contend that the national court2 has exclusive jurisdiction over all in rem civil forfeitures of commercial fishing vessels because all such cases are admiralty and maritime cases, and that this is so even if the in rem action is brought pursuant to a state statute.  They point out that the national court's authority is allocated on the basis of jurisdiction without regard to whether national or state powers are at issue.  Appellants also note other types of cases, in both the U.S. and FSM, in which state law actions are litigated in the national courts.  They note that the Constitution grants "original and exclusive" jurisdiction over all admiralty cases to the FSM Supreme Court.  They assert that an in rem forfeiture of a foreign commercial fishing boat for violation of a state fishing statute within state waters must be considered an admiralty or maritime case, and therefore must be heard only in this court ) exclusive means exclusive.

     Appellants note that the FSM Supreme Court has held that it will define admiralty and maritime at least as broadly as has been done in other jurisdictions. For this proposition appellants rely on Federal Business Development Bank v. S.S. Thorfinn, 4 FSM Intrm. 367 (App. 1990).  They also point out that maritime law is a kind of international law and somewhat uniform among all maritime nations, and that therefore it should be enforced in a national, not a state, court.  Appellants also contend that the constitutional grant to the states to regulate natural resources within twelve miles of island baselines was primarily intended to reserve to the states, in keeping with Micronesian custom and tradition, all questions of ownership of marine resources within those twelve miles, and that admiralty and maritime cases do not affect such ownership interests.  Appellants conclude that the constitutional mandate of exclusive jurisdiction of admiralty and maritime cases in the national court does not inhibit the states' legislative or regulatory power within twelve miles from island baselines.

B.  Appellee's Arguments
     The appellee, State of Pohnpei, contends that, although the legal reasoning of the trial court may be incorrect, it did reach the correct result and ought to be affirmed.  The state points to United States cases that affirm the rights of the states to regulate fisheries within their waters and to punish persons

[7 FSM Intrm. 461]

who violate such regulations, and contends that the FSM Constitution gives it and the other states these same rights within twelve miles of island baselines.  The state asserts that its fishing laws are not maritime in nature and that an in rem forfeiture under them does not turn it into an admiralty and maritime case.

     Appellee further contends that even if this case were maritime in nature under United States law it is not so under the FSM Constitution because the national government cannot regulate fishing within twelve miles.  The state also contends that international conventions cannot confer powers on branches of the national government that they are not given by the Constitution.  The state also points out that since civil forfeiture actions are often filed along with criminal charges that if both cases were before the same court it would promote judicial efficiency and avoid piecemeal litigation and inconsistent results in a given case.3

IV.  In Rem Analysis
A.  In Rem Admiralty Jurisdiction Generally
     Both parties' briefs and oral arguments focused on whether an in rem civil action for the forfeiture of a commercial fishing vessel for violation of state fishing law in state waters is an admiralty or maritime case under U.S. law.  The United States Constitution extends the judicial power of the United States to all cases of "admiralty and maritime Jurisdiction."  U.S. Const. art. III, 2.  The U.S. district courts, by statute, are granted "original jurisdiction, exclusive of the courts of the States, of:  (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled."  28 U.S.C. 1333.  This version, enacted in 1948, replaced earlier versions.  The original version, found in section 9 of the Judiciary Act of 1789, granted the federal courts "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction . . . saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it."  Judiciary Act, 9, 1 Stat. 76-77 (1789) (quoted in New Jersey Steam Navigation Co. v. Merchants' Bank, 47 U.S. (6 How.) 344, 386, 12 L. Ed. 465, 484 (1848); Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 19 (2d ed. 1975)).  The U.S. Supreme Court has indicated that the new language means essentially the same as the old.  Madruga v. Superior Court, 346 U.S. 556, 560 n.12, 74 S. Ct. 298, 300 n.12, 98 L. Ed. 290, 296 n.12 (1954).  See also Gilmore & Black, supra, at 39-40.  Thus under United States practice suitors seeking a common law remedy in a maritime case could, if they so desired, proceed in a state court.

     A number of U.S. cases cited to the court display the reach of admiralty and maritime jurisdiction.  Rights created by state law or contracts created in a state may be enforceable only through an admiralty action in federal court.  Rodd v. Heartt (The Lottowanna), 88 U.S. (21 Wall.) 558, 579-80, 22 L. Ed. 654, 663 (1875) (materialmen's liens created by state law for furnishing necessaries to vessel in vessel's homeport creates valid lien, but is maritime contract enforceable only through in rem proceedings in U.S. district court because of its exclusive maritime jurisdiction); New Jersey Steam Navigation Co., 47 U.S. (6 How.) at 392, 12 L. Ed. at 486 (contract of affreightment for carriage on vessel within exclusive admiralty and maritime jurisdiction no matter where contract made).  This is because "[a] proceeding in rem, as used in the admiralty court is not a remedy afforded by the common law."  The Moses Taylor v. Hammons, 71 U.S. (4 Wall.) 411, 431, 18 L. Ed. 397, 402 (1867) (Calif. statute allowing in rem procedure in state court violates exclusive federal admiralty jurisdiction).  The hallmark of an in rem proceeding in admiralty is that it is an adjudication of all rights in the vessel, good

[7 FSM Intrm. 462]

against the world, not just of the rights of the parties to the action.  Rounds v. Cloverport Foundry & Mach. Co., 237 U.S. 303, 306, 35 S. Ct. 596, 597, 59 L. Ed. 966, 968 (1915); Gilmore & Black, supra, at 35-37; F.L. Wiswall, Jr., The Development of Admiralty Jurisdiction and Practice since 1800, An English Study with American Comparisons 155, 177 (1970).  No such adjudication was ever available at common law.

B.  State Law Forfeiture
     Thus, as a general proposition, an in rem proceeding against a vessel can only be had in the context of an admiralty or maritime case.  The appellee contends this does not apply to a state government seeking an in rem forfeiture of a vessel used in violation of its own fishing laws and regulations.  The U.S. Supreme Court in Smith v. Maryland, 59 U.S. (18 How.) 71, 15 L. Ed. 269 (1855) was asked to determine if the seizure by, and forfeiture to the State of Maryland of a Pennsylvania schooner in a Maryland state court for the violation of Maryland's shellfish laws regulating oystering was repugnant to the U.S. Constitution as impeding interstate commerce.  The court held that it was not, and recognized the state's right to regulate fisheries within its navigable waters.  It also stated in passing:  "As this law conflicts neither with the admiralty jurisdiction of any court of the United States conferred by Congress, nor with any law of Congress whatever, we are of opinion it is not repugnant to [the admiralty and maritime jurisdiction] clause of the Constitution."  Id. at 76, 15 L. Ed. at 271.

     The issue of whether an in rem forfeiture action for violation of state fishing laws could be maintained in a state court did not come again before the U.S. Supreme Court for almost a century.  The question before the court in C.J. Hendry Co. v. Moore, 318 U.S. 133, 63 S. Ct. 499, 87 L. Ed. 663 (1943) was whether the exclusive admiralty jurisdiction statutorily conferred upon the federal courts precluded a state court from entering an in rem judgment for the forfeiture of a purse net being used to violate California state fishing laws in that state's navigable waters.  The court's analysis ascertained that forfeiture to a sovereign state was an historic common law remedy although other in rem proceedings were not.  It concluded that the "saving to suitors . . . the right of a common law remedy" clause in the Judiciary Act of 1789 allowed a state court forfeiture remedy for violation of state fisheries law in the state's navigable waters.  Id. at 152-53, 63 S. Ct. at 509-10, 87 L. Ed. at 675.  In his dissent Justice Black noted the full implication of the court's holding.  He concluded that the principle that a state court could order forfeiture of a fishnet for violation of a state law in an in rem proceeding did not differ from the forfeiture of a fishing vessel.  Id. at 154, 63 S. Ct. at 510, 87 L. Ed. at 675 (Black, J., dissenting).  Other cases followed this observation.  See, e.g., Bard v. The Silver Wave, 98 F. Supp. 271 (D. Md. 1951) (authority of state court to order forfeiture of a vessel for illegal fishing not questioned); Shipman v. Dupre, 88 F. Supp. 482, 487 (E.D.S.C.) (South Carolina state fishing laws regulating state waters that provided for forfeiture of vessels challenged; such fishing boat forfeitures in state court did not impinge upon the U.S. district courts' exclusive admiralty jurisdiction and was permissible if due process and opportunity for judicial review provided) (relying on C.J. Hendry), vacated on other grounds, 339 U.S. 321, 70 S. Ct. 640, 94 L. Ed. 877 (1950); F/V American Eagle v. State, 620 P.2d 651 (Alaska 1980) (lower state court forfeiture of a vessel for the violation of Alaska state crab fishing laws upheld even when uncertain whether illegal fishing was conducted in state or national waters because vessel registered and homeported in Alaska, and owned and operated by a Alaska citizen4), appeal dismissed, 454 U.S. 1130 (1982).

[7 FSM Intrm. 463]

C.  Summary
     Thus an action by a state for the forfeiture of a sea-going fishing vessel, in rem, used for the commission of a wrongful act in violation of its police regulations within its own territorial jurisdiction, although a maritime case, is not within the U.S. federal court's exclusive admiralty or maritime jurisdiction, even if the object to be forfeited is a maritime vessel, and may therefore proceed in state court.  This exception exists because it is the only in rem proceeding that is known to the common law.  It thus falls within the saving to suitors their common law remedy exception in the statute granting exclusive jurisdiction.  All other in rem actions fall within the exclusive admiralty and maritime jurisdiction of the federal courts. American Dredging Co. v. Miller, 114 S. Ct. 981, 985, 127 L. Ed. 2d 285, 293 (1994) ("[S]tate courts `may not provide a remedy in rem for any cause of action within the admiralty jurisdiction.'  An in rem suit against a vessel is . . . distinctively an admiralty proceeding, and is hence within the exclusive province of the federal courts." (citations omitted)).  In the United States a vessel forfeiture for violation of a state fishing regulation is the only in rem maritime case that is included in the statutory exceptions to the exclusive admiralty and maritime jurisdiction of their federal courts.  In the United States "[f]ederal-court jurisdiction over [admiralty and maritime] cases has never been entirely exclusive."  Id. at 984, 127 L. Ed. 2d at 292.

     In the Federated States of Micronesia, however, the Constitutional grant of exclusive admiralty and maritime jurisdiction to the FSM Supreme Court makes no exceptions.  The FSM Constitution, by its plain language, grants exclusive and original jurisdiction to the FSM Supreme Court trial division.  It makes no exceptions.  It reserves all admiralty and maritime cases to the exclusive and original jurisdiction of the FSM Supreme Court trial division, not just those for which no common law remedy has been historically available.

V.
     We therefore concluded that 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.  Although we did not decide this matter on this point we note the salutary effect of the resulting uniformity of practice and procedure.

VI.  In Personam Penalties
     The in personam proceedings seek to impose a monetary penalty upon three persons.  Prior to rehearing we directed the parties' attention to authorities asserting that enforcement of a civil penalty cannot fall within admiralty or maritime jurisdiction.  Counsel gave us their views on these authorities.  Appellants' counsel contended that the authorities were few and overly formalistic, an approach no longer favored.  He further contended that even if the in personam proceedings are not within the FSM Supreme Court's maritime jurisdiction it ought to retain jurisdiction over them on the basis of its diversity jurisdiction.  That latter procedure was followed in United States ex rel. Pressprich & Son Co. v. James W. Elwell & Co., 250 F. 939, 941 (2d Cir.) (qui tam action to enforce penalty not an admiralty case, but court could retain jurisdiction on other basis), cert. denied, 248 U.S. 564 (1918) and United States v. White's Ferry Inc., 382 F. Supp. 162, 164 (D. Md. 1974) (court had jurisdiction over penalty on other basis), aff'd mem., 529 F.2d 518 (4th Cir. 1975).

     The issue whether the FSM Supreme Court has admiralty or maritime jurisdiction in in personam actions to recover civil penalties for violations of state fishing laws is one of first impression.  The Constitution provides that "[t]he trial division of the Supreme Court has original and exclusive jurisdiction in . . . admiralty or maritime cases."  FSM Const. art. XI, 6(a).  This is not conclusive as to the issue presented, and it is proper to refer to the constitutional convention journal for the history

[7 FSM Intrm. 464]

of the provision.  See Robert v. Mori, 6 FSM Intrm. 394, 397 (App. 1994). Unfortunately, the journal does not address the point.  We next consult cases from the United States since the phrase "admiralty or maritime" in the U.S. Constitution suggests that the FSM borrowed the term, and we can infer that the framers intended that the meaning here be given the same meaning as it was given in U.S. courts.  Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990).

     The courts in Pressprich and White's Ferry relied on three earlier cases for their holdings that actions to collect civil penalties in personam cannot be maintained in admiralty.  Those cases are Virginia & Md. Steam Navigation Co. v. United States, 28 F. Cas. 1229 (C.C.D. Md. 1840) (No. 16,973) (admiralty court penalty against owners for not having vessel's boilers and machinery inspected overturned because statute required "suit or indictment . . . according to the forms of common law"; forfeiture of vessel upheld); United States v. The Queen, 27 F. Cas. 669 (S.D.N.Y. 1870) (No. 16,107) (in admiralty action to enforce penalty for smuggling against vessel and master, master dismissed because penalty cannot be assessed against him without jury trial guaranteed by U.S. Const. amend. VII); McAfee v. The Creole, 15 F. Cas. 1201 (E.D. Pa. 1854) (No. 8,655) (admiralty action to collect penalty for violation of statute requiring provisions be given passengers dismissed because statute required trial by jury on the common law side of the court; statute also placed original jurisdiction in two courts, one without admiralty jurisdiction).  In the United States, "[h]istorically there was no right to a jury trial in admiralty," Steven F. Friedell & Nicholas J. Healy, An Introduction to In Rem Jurisdiction and Procedure in the United States, 20 J. Mar. L. & Com. 55, 61 (1989), but in criminal cases and suits at common law the right to a jury trial was constitutionally guaranteed, U.S. Const. amends. VI, VII.  These three cases turn on that point.

     Thus in the United States in personam actions to collect civil penalties did not proceed in admiralty because of their constitutional provisions guaranteeing the right to a trial by jury.5  Because this unique circumstance determined the result in the United States there is no reason to follow U.S. cases here where the same circumstance does not exist.

     We conclude that the better rule is that actions to enforce civil penalties for violations of fishing laws are within the admiralty and maritime jurisdiction of the FSM Supreme Court.  Our reasons:

     1.  The only authority before us on this point comes from the United States, and is based upon circumstances (the constitutional right to a jury trial) that do not exist here.  We are therefore reluctant to conform to that authority when the legal reasoning supporting it does not apply here.

     2.  Such a rule would insure uniform development and application of maritime law.  Thorfinn, 4 FSM Intrm. at 375.  Uniform application of the maritime law is a significant goal in itself.

     3.  When analyzing the meaning of the word "maritime" in the phrase "admiralty or maritime," we earlier determined that "`[t]he language of the constitution . . . warrant[s] the most liberal interpretation.'"  Id. at 374 (quoting with approval DeLovio v. Boit, 7 F. Cas. 418, 443 (C.C.D. Mass. 1815) (No. 3,776)).  It seems to us that a liberal interpretation of "admiralty or maritime" would necessarily include the enforcement of in personam civil penalties for violations of the law governing that "maritime" activity.  The present case alleges commercial fishing in FSM navigable waters, surely a maritime activity.  Exclusion of in personam enforcement would lead to a restrictive, rather than a liberal, application of the admiralty or maritime jurisdiction of the court.  We have also noted that the scope of admiralty or maritime jurisdiction is determined from the broad, almost uniform meaning given

[7 FSM Intrm. 465]

to the term by many courts.  Id. at 373-74.

     4.  Public policy discourages both forum shopping and the splitting of causes of action that are based on the same nexus of facts.

     We thus conclude that an in personam action to enforce a civil penalty for a violation of a fishing law in the navigable waters of the FSM is within the original and exclusive jurisdiction of the FSM Supreme Court.

VII.  Conclusion
     We therefore hold that the trial division of the FSM Supreme Court has exclusive jurisdiction over both the in rem proceeding against the defendant vessel and the in personam proceedings to collect penalties from the other defendants. The trial division's order of abstention and remand is hereby vacated, and this matter is remanded to the FSM Supreme Court trial division for further proceedings consistent with this opinion.

*    *    *    *
 
Footnotes:
 
1.  These three defendants are all foreign citizens.  Foreign citizenship is a necessary element under the statute by which these penalties are sought.  Pon. D.L. 4L-190-79, 5, 9(2), 10.

2.  Although appellants' opening argument follows the language of the trial court opinion and discusses the exclusive jurisdiction of the "national court(s)," this language is misleading.  Only the FSM Supreme Court has original and exclusive jurisdiction over admiralty and maritime and certain other cases under the Constitution.  FSM Const. art. XI, 6(a).  The other national courts authorized by the Constitution, id. art. XI, 1, (but which Congress has never created) are only authorized to entertain cases of concurrent jurisdiction, id. art. XI, 6(b), and thus could never exercise jurisdiction over admiralty and maritime cases.  It is thus inaccurate to speak of the maritime jurisdiction of the national courts.  Maritime jurisdiction can reside only in one national court ) the Supreme Court.

3.  The point about the same res being involved, however, is misplaced because the res, the vessel, can only be a defendant in the civil case since it is not a person.

4.  States may regulate the fishing activities of their own citizens within or outside of their state waters by basing their jurisdiction on the citizenship of the persons so regulated.  Skiriotes v. Florida, 313 U.S. 69, 77, 61 S. Ct. 924, 929, 85 L. Ed. 1193, 1200 (1941).

5.  The non-self-executing nature of the grant of judicial power in the U.S. Constitution and the savings to suitors clause in the U.S. Judiciary Act may play a part here.