Pago Pago, AMERICAN SAMOA — A third wrongful death lawsuit has been filed by the surviving family members of a fisherman who died when he fell overboard a US fishing vessel docked in Pago Pago and drowned.

This time, the lawsuit is filed with the Washington State county Superior Court, against only one defendant, Cape Ferrat Fishing LP, which is the Washington state-based company that owns the US fishing vessel Cape Ferrat, where the deceased Michael Castaneda was the captain.

The deceased fell overboard and died while the vessel was docked two years ago at the Samoa Tuna Processors Inc., wharf in Atu’u.

The latest legal battle in the case is revealed in filings at the federal court in Santa Ana, California, where the plaintiffs — Maren Miller, the personal representative of the estate of Michael Castaneda (deceased), and Tracey Castaneda, the deceased’s wife — sued not only Cape Ferrat Fishing LP, but also others — Tri Marine International and its entities.

The plaintiffs had filed a parallel case with the High Court of American Samoa. However, the plaintiffs argue in federal court filings that, “American Samoa would be an inadequate forum” to hear claims under the federal Jones Act because the “High Court of American Samoa does not conduct jury trials in civil actions.”

In January this year, the Santa Ana federal court ruled that the High Court of American Samoa has jurisdiction to hear a wrongful death lawsuit. US District Court, Philip S. Gutierrez dismissed the federal case “without prejudice for ‘forum non conveniens’... conditioned upon Defendants’ compliance with their representations that they will submit to jurisdiction in the High Court of American Samoa.”

The following month, plaintiffs moved to reopen their case with a motion asking the court for reconsideration of its order to dismiss the case from the federal level for ‘forum non conveniens’. The plaintiffs around the same time filed a notice, appealing the lower court’s decision to the Ninth Circuit Court of Appeal. (See Samoa News edition Feb. 27 for details).

However, the appeal is being “held abeyance” at the appeal’s court and will not become effective until the final resolution of the plaintiffs’ motion for reconsideration at the lower court.

In response to the plaintiffs’ motion, the defendants inform the Santa Ana federal court that plaintiffs “disingenuously omit” from its motion, that “another parallel suit” was filed Mar. 13th by plaintiff Maren Miller at the King County Superior Court in Washington State against Cape Ferrat Fishing LP.

The defendants argue that “there are no new facts or law and there is no manifest error” by the court in its decision, to dismiss the federal case “without prejudice for ‘forum non conveniens’...” and give jurisdiction to American Samoa.

“The High Court of American Samoa has explicitly recognized its ability and willingness to exercise jurisdiction over a plaintiff’s Jones Act claims,” the defendants further argued.

They also cited a portion of a 1995 ruling by the Trial Division of the High Court of American Samoa that, “In addition to the power to exercise jurisdiction over the general maritime claims of unseaworthiness and maintenance and cure, the High Court of American Samoa can exercise jurisdiction over a plaintiff’s Jones Act claim.”

According to the defendants, the plaintiffs’ attorney, William L. Banning, “knows this point well because he has litigated Jones Act cases in American Samoa in the past.”

“Accordingly, Plaintiffs can still pursue their Jones Act claims in American Samoa even though there are no jury trials there,” the defendants argue. “Almost all of these witnesses are in American Samoa, outside the subpoena power of this Court.”

Furthermore, the High Court of American Samoa regularly applies U.S. law “and would surely be better equipped than a U.S. Court to try the two causes of action that Plaintiffs specifically brought under American Samoa law.”

In conclusion, the defendant said, “This Court got it right the first time and should deny plaintiffs” motion for reconsideration.

According to the latest court records, a hearing on the motion for is set for next month and this will the parties to “resume mediation and settlement discussions” — as there are now three lawsuits pertaining to this particular case.