Marisco says ASG signed waiver for judgement
Honolulu-based shipyard operator Marisco Ltd. contends that the governor and the attorney general of American Samoa have already signed a waiver allowing the company to file claim to fulfill the judgment of more than $800,000 in favor of Marisco.
This was Marisco’s reply filed Tuesday at the federal court in Honolulu in response to the American Samoa Government’s opposition last week to the company’s request seeking an order for direct disbursement of funds at Bank of Hawai’i to the plaintiff.
ASG argued that local laws dealing with the garnishment of ASG funds require prior approval of the governor by pointing out:
1 American Samoa courts have held that seizing ASG’s money or other property held by a third party is essentially garnishment and is not permitted without the Governor’s approval;
2 Provisions of local law, which state that appropriation of ASG funds must be approved by the Fono and the Fono shall have full authority and control of the request, approval, and disbursement of funds in its budget;
3 The Bank of Hawai’i accounts (being garnished) include federal grants from the U.S. Department of Interior and these funds come with restrictions on how they are spent. (ASG Comptroller Matthew Grady, in a declaration memorandum, reiterated that the USDOI funds come with restrictions.); and,
4 The service of the Writ of Execution on the Bank of Hawai’i’s main office in Honolulu is ineffective because the site of the account is the branch in American Samoa.
A status conference hearing initially scheduled this week Tuesday before U.S. District Court Leslie E. Kobayashi on this matter has since being moved to tomorrow (July 6).
MARISCO REPLY MOTION
In its 17-page reply, Marisco says ASG claims that plaintiff’s request for a court order directing Bank of Hawai’i to pay from ASG funds “is somehow misapplied, because ASG is a ‘government entity’ and that ASG cannot be garnished without prior approve of the [ASG] governor.”
Marisco said that “what the ASG opposition memo inadvertently omits is the very clear ‘WAIVER’ regarding the enforcement of the Arbitration Award provided by the governor through his attorney general contained in the parties ‘Agreement to Arbitrate Dispute’.”
The reply motion provided for the court the plaintiff’s motion to confirm arbitration award filed with the federal court March this year. (Marisco’s lawsuit against ASG for failure to pay more than $800,000 in services and repairs was resolved through federal arbitration)
Marisco also outlined in its motion what it calls “pertinent terms” of the “Agreement to Arbitrate” which states in part that the “Parties voluntarily agree that any award by the Arbitrator shall be considered valid, irrevocable and enforceable in each respective jurisdiction or any other necessary jurisdiction...”
Additionally, “...each party signing this Agreement and that the Agreement constitutes a legally binding and enforceable obligation of each party.”
In reliance on the Arbitration Agreement, the plaintiff argued in its reply motion, that “the parties agreed to arbitrate their respective claims in Hawai’i and both parties agreed the Arbitration Award/Judgment would be enforceable in either jurisdiction.”
“Consequently, ASG with the prior approval of the governor/attorney general of American Samoa waived any immunity to or restrictions concerning the enforcement of this judgment,” said Marisco.
Plaintiff also cited provisions of federal law, which state in part that a foreign state shall not be immune from the jurisdictions of Courts of the United States or of the states in any case: “in which the foreign state has waived its immunity either explicitly or by implication; and in which the action is based upon a commercial activity carried on in the United States by a foreign state.”
“There is no question that ASG availed itself to the jurisdiction of the court and waived any sovereign immunity issue,” Marisco argued. “There is also no question that ASG availed itself to binding arbitration in Hawai’i and agreed that any award/judgment would be fully enforceable in American Samoa or Hawai’i.”
“It is a bit disingenuous for ASG to now say that there was no ‘prior approval of the governor’ or that the ASG general account funds being held by the Bank of Hawai’i are somehow not available for enforcement,” said Marisco.
In regards to the co-mingled funds issue, Marisco argued that Grady’s declaration “is vague, conclusory and insufficient”, adding that the Comptroller declares that an “unspecified” amount of money in the general fund is co-mingled with DOI funds and subject to various restrictions and limited purposes.
“However, once co-mingled, the funds lose their identify,” said Marisco, adding that Bank of Hawaii has branches in many locations both in Hawai’i and around the Pacific and that ASG can go to any branch anywhere to withdraw its money.
“Similarly, money held in its general account should be available to ASG creditors. The key here is that the governor, through his attorney general, consented to the enforcement of the Marisco judgment in American Samoa,” said plaintiff.
“The ASG’s agreement to sue and be sued in Hawai’i, its Agreement to Arbitrate the dispute in Hawai’i, its waiver of immunity in its Arbitration Agreement and its consent to the enforcement of the Arbitration Award in American Samoa demonstrates its intent to allow the full consequences of the litigation to which it agreed,” Marisco argued.
The company also pointed out that the Arbitration Agreement drafted by both parties “provided no caveat that the award or judgment could only be enforced against certain accounts and not others.”
“To conclude otherwise would void the contractual rights of Marisco and/or rewrite the agreement between the parties,” the plaintiff noted.
As to ASG’s argument that service of the Writ of Execution on the Bank of Hawai’i’s main office in Honolulu is ineffective because the site of the account is the branch in American Samoa, the plaintiff argued that “courts have recognized that bank branches are no longer considered separate entities since they are connected to the main office by high sped computers and are under managerial control of the main office.”
In closing, Marisco asked the court to direct the Bank of Hawai’i to disburse the ASG funds to satisfy the judgment award of $824,166.