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Appellate Court nixes Samoa Shipping Corp refund

fili@samoanews.com

Citing lack of jurisdiction, the Appellate Division of the High Court two weeks ago reversed the trial court’s ruling, which last year ordered the American Samoa Government to refund a $20,000 fine paid by the Samoa Shipping Corporation three years ago.

The fine imposed by the government followed an incident in October 2006 where members of the National University of Samoa’s rugby team arrived in the territory on board the MV Lady Naomi without entry permits.

While the team didn’t actually come off the vessel, the Attorney General’s Office cited  Samoa Shipping for “transporting unauthorized aliens” to the territory in alleged violation of local immigration law and ordered the shipping company to pay the $20,000 fine, which they did.

The company later contested the fine, arguing that the team was still on the vessel and never stepped foot on Tutuila soil. The Trial court agreed and ordered the government to refund the fee with interest.

In January last year the Trial court  “ordered the release of garnished ASG funds” in the total amount of $24,002 — which is the $20,000 fine plus interest and post judgment. The government then appealed the trial court’s ruling.

Last week the Appellate Division issued a 9-page decision saying that three issues were presented on this appeal, which included whether the Trial Division had jurisdiction to hear the controversy and whether sovereign immunity is a waiverable, affirmative defense that ASG failed to timely plead.

“At the outset, we hold that the Trial Division did not have jurisdiction to hear this action”, according to the appellate judges, who added that it is without jurisdiction to address the sovereign immunity issue.

A MATTER OF JURISDICTION

“The Fono enacted the Declaratory Relief Act to provide another remedy to the public; [and] the Fono did not... augment the Trial Division’s jurisdiction to afford it review of administrative decisions,” the judges said and pointed out that the fine imposed by the Attorney General at the time was an administrative decision.

“...the Trial Division must assert jurisdiction before entertaining a declaratory relief action, for without such jurisdiction the Trial Division would invade the statutorily-mandated bailiwick of other administrative and judicial tribunals,” the judges point out.

The Appellate judges explain that the administrative review process states in part that an agency’s final decision must be appealed to the Office of the Administrative Law Judge, who then renders a judgment — and any party affected by the ALJ’s decision can then challenge the matter with the Appellate Division, which renders a final judgment.

(This process is subject to exception when the Fono has authorized intermediary appeals to the Trial Division in lieu of the ALJ, the judges wrote.)

For the current matter, the judges say,  the Attorney General “is an agency and his final decision to levy a fine against Samoa Shipping... requires due deference” and this administrative matter should have been heard by the ALJ.

The judges also noted that if Samoa Shipping disregarded the fine, the Attorney General can enforce the unpaid fine by filing a lien on the vessel with the Trial Division, whereupon the court can then determine the legality of the assessed fine.

Conversely, where the ‘violator’ and not the Attorney General files a case contesting an already-paid fine, as Samoa Shipping did here, the matter falls outside the Trial Division’s jurisdiction, the judges note.

According to the judges, the Trial Division improperly asserted jurisdiction over this matter and reversed the lower court’s ruling for lack of jurisdiction.

The decision, dated Nov. 10,  was signed by Chief Justice Michael Kruse, acting associate judges John Ward II and Elvis Patea and associate judges Fa’asua P. Pomele and Satele A. Lili’o.



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