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High Court dismisses negligence lawsuit filed against ASG

fili@samoanews.com

The High Court on Wednesday dismissed a negligence lawsuit filed against the American Samoa Government due to lack of subject matter jurisdiction.

It was early September of 2009 that Rufina Perewperew Flores, on behalf of the estate of Hermogenes Flores, filed a Verified Complaint against ASG and other defendants, Harbor Maritime and New Zealand based Sanford Limited — owner of the San Nikunau — for damages resulting from the death of seaman Hermogenes Flores while he was on board the Nikunau.

Flores alleges negligence against ASG for failing to compel San Nikunau to pay the costs for repatriating Flores’ remains to the Philippines, his country of birth. Last October ASG filed a motion for judgement against the plaintiff for failing to state a claim upon which relief can be granted and for lack of subject matter jurisdiction.

After hearing the motion last November, “we now grant ASG’s motion and dismiss this action for lack of subject matter jurisdiction,” according to the 8-page decision signed by Associate Justice Lyle Richmond and Associate Judge Mamea Sala Jr.

According to the judges, ASG would only be held liable to Flores “if there is an analogous situation in which a private person could be held liable to the plaintiff for negligently failing to enforce a statute that would compel a third party to perform a service for plaintiff.”

Plaintiff, however, has not adequately addressed the issue of whether there exists an analogous situation in which a private person would be held liable, the judges note.

“In failing to do so, plaintiff has not met her burden of establishing that this court has jurisdiction” over her Government Tort Liability Act (GTLA) claim against ASG, the decision points out.

Moreover, there is “another hole in plaintiff’s argument that is just as, if not more, damaging to plaintiff’s position,” the judges said. “Specially, plaintiff has failed to establish sufficient legal foundation to persuade us that [San] Nikunau may very well be legally obligated to repatriate the remains of Hermogenes Flores to the Philippines.”

According to the decision, the plaintiff had asked the court to look at ASCA 41.0506 — which states: “No person, including the owner, agent, charterer, master or commanding officer of any vessel or aircraft, may pay off or discharge any non-American Samoan crewman employed on board a vessel or aircraft arriving in American Samoa without first having obtained consent of the Attorney General in writing.”

The judges say the plaintiff’s interpretation of this statute “is off the mark” but agrees that the statute imposes some sort of legal obligation on a foreign vessel to not abandon a non-American Samoan crew-member on American Samoa soil.

“To construe... 41.0506 as imposing a repatriation requirement on [San] Nikunau would require us to travel down a path we clearly do not see,” the judges point out.

Based on the Verified Complaint, the deceased was a legal immigrant residing in American Samoa and Harbor Maritime — a local business — sponsored Flores with regard to his immigrant status and in accordance with the immigration laws while he was alive, the judge says.

Additionally, plaintiff does not present anything that would cause the court to suspect or believe that Hermogenes Flores was here illegally.

Even if Hermogenes Flores was illegal and ASG prohibited San Nikunau from leaving his remains in the territory, ASCA 41.0506 “speaks nothing about placing upon [San] Nikunau the financial burden of returning Hermogenes Flores’ remains to the Philippines,” the judges said, adding that the plaintiff “grossly misinterprets” 41.0506.

In conclusion, the judges said, the plaintiff “has not met her burden to show that we have subject matter jurisdiction over her claim against ASG” and therefore dismissed the case.



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