FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2017-3004

THE PEOPLE OF THE MUNICIPALITY OF SOROL,
YAP, by and through MOSES MARPA and
MARIO SUKULBECH,
Plaintiffs,

vs.

M/Y TRUK MASTER, its engines, masts,
bowsprits, boats, anchors, chains, cables,
rigging, apparel, furniture, and all necessaries
thereunto pertaining,
In Rem Defendant,

VISION WEALTH FSM, INC., CAPTAIN MARTIN
CRIDGE, RICHARD SHAUL, QBF INSURANCE
(EUROPE) LTD., QBF UNDERWRITING LTD., and
QBF INSURANCE GROUP d/b/a BRITISH
MARINE,
In Personam Defendants.
_____________________________________________

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Larry Wentworth
Associate Justice

Hearing:  April 25, 2018
Decided:  August 15, 2018

APPEARANCES:

For the Plaintiff:	Daniel J. Berman, Esq.
Berman O’Connor & Mann
111 Chalan Santo Papa, Suite 503
Hagatna, Guam 96910

For the Defendants:	David C. Angyal, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Admiralty - Maritime Torts; Torts - Negligence
A maritime negligence cause of action’s elements are:  1) existence of a duty requiring persons to conform to a certain standard of conduct in order to protect others against unreasonable risks; 2) conduct that falls below that standard thus breaching that duty (usually called "negligence"); 3) a reasonably close causal connection between the unreasonable conduct and the resulting injury, (often called "proximate cause"); and 4) an actual loss, injury, or damage to another party.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 19 (Yap 2018).

Admiralty - Maritime Torts
A vessel, and the mariner commanding it, have a duty to navigate safely.  They also have a duty not to cause any damage to the reef and marine resources in Yap waters.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 19 (Yap 2018).

Admiralty - Maritime Torts
General maritime law has long recognized causes of action in maritime tort for damages resulting from groundings.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 19 (Yap 2018).

Admiralty - Maritime Torts
Liability for collisions, allisions - a collision between a moving vessel and a stationary object, and other types of marine casualties is based upon a finding of fault that caused or contributed to the damage incurred.  The standard of care against which fault is determined is derived from 1) general concepts of prudent seamanship and reasonable care; 2) statutory and regulatory rules governing the movement and management of vessels and other maritime structures; and 3) recognized customs and usages.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 19-20 & n.1 (Yap 2018).

Admiralty - Maritime Torts
A fundamental rule of collision law, long applied, is that to impose liability for a collision, the fault committed by the vessel must be a contributory cause of the collision.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 20 (Yap 2018).

Admiralty - Maritime Torts; Evidence - Burden of Proof - Presumptions
There are a number of presumptions in collision law that are directed to the issue of fault.  When a vessel under its own power collides with an anchored vessel or a navigational structure, the burden of proving absence of fault or inevitable accident rests with the moving vessel.  The presumption also applies when an unmoored, drifting vessel hits an anchored vessel or structure.  The presumption does not apply, however, in the case of an allision with a submerged hidden object.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 20 (Yap 2018).

Admiralty - Maritime Torts; Evidence - Burden of Proof - Presumptions
Since the presumption of fault does not apply to allisions with sunken or hidden objects, the party who is invoking the presumption has the burden of proving either that the object was visible or that the vessel otherwise possessed knowledge of the object’s location.  While this presumption generally does not apply to allisions with sunken or hidden objects, knowledge of an otherwise nonvisible object warrants imposition of presumed negligence against those operating the vessel who possessed this knowledge because, if the submerged object’s presence is known, then the accident was neither fortuitous nor unavoidable.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 20 (Yap 2018).

Admiralty - Maritime Torts; Evidence - Burden of Proof - Presumptions
The res ipsa loquitur doctrine creates a rebuttable presumption of negligence on the part of a party who is in exclusive control of an instrumentality with regard to a mishap that ordinarily does not occur in the absence of negligence.  It is primarily applicable in allision cases.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 20 (Yap 2018).

Admiralty - Maritime Torts; Evidence - Burden of Proof - Presumptions
When the vessel, while moving under its own power, struck a stationary object - the outer edge of a reef - and ran hard aground on it, causing damage; when the vessel’s captain knew that the reef’s outer edge was located off the vessel’s port side, although he was unsure of its exact location; when the vessel deliberately ran parallel to the reef while the captain looked for its outer edge with his own eyes; when the reef was submerged, but it was not hidden; and when the reef was visible when not staring directly into the sunlight’s glare, the allision presumption applies and none of the exceptions to that principle applies.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 20 (Yap 2018).

Admiralty - Maritime Torts; Evidence - Burden of Proof - Presumptions
When the vessel was running at 5 knots in an easterly direction toward the early morning sun; when the atoll and its reef were off the vessel’s port side; when if the vessel had wanted to avoid the reef, a turn to starboard, where there was plenty of sea room, no shipping, and no reef, would have sufficed; when even the use of the vessel’s sonar depth finders or the posting of lookouts should have prevented the allision, the court must discount the presence of inaccurate navigational charts on the vessel because, even if the vessel had been using the inaccurate charts to navigate when it grounded on the reef, that grounding would still have to be considered the result of maritime negligence because of the captain’s other failures.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 20-21 (Yap 2018).

Admiralty - Maritime Torts
When the defendants are unable to overcome the allision presumption or show that an exception to it applies, the court will hold the vessel, its captain, and its owner liable for maritime negligence.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 21 (Yap 2018).

Admiralty - Maritime Torts; Torts - Trespass
Since the Yap Constitution recognizes traditional rights and ownership of marine resources, a vessel’s unconsented grounding on Sorol reef constitutes a trespass, and since proof of damages is not necessary to prove trespass, both the grounding and the running of lines from the vessel to the reef are trespasses.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 21 (Yap 2018).

Admiralty - Maritime Torts; Civil Procedure - Summary Judgment - Grounds - Particular Cases; Torts - Nuisance
While negligent conduct can give rise to a nuisance claim when the conduct has caused substantial interference with the use and enjoyment of another’s property that causes substantial harm, when the amount of damage and whether there was substantial harm are genuine issues of material fact, summary judgment will be denied.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 21 (Yap 2018).

Admiralty - Maritime Torts; Torts - Damages
While it may be uncontested that the value of a reef on the main island of Yap is $600 per square meter, the court cannot presume, without evidence, that $600 a square meter is an accurate value for any particular Yap outer island reef, especially where on the outer island there may be more reef and fewer people who have the right to rely on or depend on the reef’s resources.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 22 (Yap 2018).

Admiralty - Maritime Torts; Marine Resources; Torts - Damages
An appropriate measure of damages for a damaged coral reef may be the cost of restoration without grossly disproportionate expense.  Or if the cost of restoration would not be an appropriate measure because it would entail a grossly disproportionate expense, damages could be measured by the economic value of the marine resources lost or diminished by the reef damage.  People of Sorol ex rel. Marpa v. M/Y Truk Master, 22 FSM R. 14, 22 (Yap 2018).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

By order entered June 18, 2018, the court certified the plaintiff class as:

those residents of Sorol who by tradition or custom own in common with other residents, the rights to use or exploit the natural resources affected by the reef damage [on June 11-12, 2017], including but not limited to the reef, the water column, the fish and other sea life, and any other affected natural resources.

Order Certifying Class at 4 (June 18, 2018).  The court therefore now turns to consideration of the class Plaintiffs’ Motion for Partial Summary Judgment Re: Liability, filed December 1, 2017, with supporting affidavits and exhibits; Defendants M/Y Truk Master, Vision Wealth FSM, Inc. and Captain Martin Cridge’s Opposition to Plaintiffs’ Motion for Partial Summary Judgment Re: Liability, filed March 5, 2018, with supporting affidavits; and Plaintiffs’ Reply Memorandum to Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment Re: Liability, filed March 27, 2018.  Also before the court are Plaintiffs’ Request for Hearing on Damages, filed February 6, 2018, and Plaintiffs’ Motion to Set Briefing Rules on Motions and Modification of Order Setting Schedule, filed March 6, 2018.  These were all heard on April 25, 2018.  The motions are all granted, in part.

I.  Background

The Motor Yacht Truk Master is an FSM-flagged vessel.  It is a commercial live-aboard dive and tour boat, which usually operates in Truk (Chuuk) Lagoon.  The M/Y Truk Master has a gross tonnage of 196 tons and a steel hull with a draft of 3.2 meters, a length of 33.58 meters, and a breadth of 7 meters.  It is owned, managed, and operated by Vision Wealth FSM, Inc.  Captain Martin Cridge, a British citizen, is the M/Y Truk Master’s captain, master, and manager.

In June 2017, the M/Y Truk Master was on a voyage charter by the One People One Reef Core Science team to conduct scientific marine survey in Sorol Atoll, an outer island in the State of Yap.  Just before 8:00 a.m., on June 11, 2017, the M/Y Truk Master launched its first group of divers in its dinghy.  "It was a bright morning with strong sunshine and light winds from the North East."  Capt. Cridge Report (June 13, 2017) (Ex. C to Pls.’ Mot. for Partial Summ. J. Re: Liability (Dec. 1, 2017)).  The group leader asked Captain Cridge if it were possible to move the vessel nearer to the group’s dive site for logistical reasons.  Captain Cridge, by his own account, then began to run the M/Y Truk Master parallel to the reef at 5 knots while he looked for the divers’ dinghy which "was directly in the direction of the early morning sun and there was a great deal of glare."  Id.  Captain Cridge described the event:

I became aware that the ship had started to turn towards the reef whilst I was looking for the dinghy and I immediately started to look for the reef edge which was hard to spot due to the lack of breaking waves, sun and glare.  I spotted what I thought was the outer reef edge and started to apply more helm to complete the turn to port as I believed I had room to complete the turn.  At that time as my eyes adjusted to the conditions I realized I had made a mistake and [had] located the inner reef edge and not the outer reef edge and we were headed straight for the reef.  I immediately put the engines astern but it was too late and we grounded on the reef in position 8 06 993N 140 23 837E.

Id.  The M/Y Truk Master was hard aground and listing to port.  The ship’s guests were evacuated to land in a dinghy.  To correct the list as much as possible, the crew transferred weight to starboard by pumping fuel from the port fuel tank to the starboard fuel tank.

The M/Y Truk Master managed to raise a nearby fishing vessel, the F/V Mathawalyap, but it was unable to tow the M/Y Truk Master off the reef as the tide was dropping.  The M/Y Truk Master crew then ran lines from its starboard side out to the reef to secure the ship.  At low water, the M/Y Truk Master came to rest on its keel and its port bilge keel.  At 10:00 p.m., the M/Y Truk Master tried to get off the reef under its own power, but to no avail.  At 8:00 a.m., June 12, 2017, the F/V Mathawalyap tried again to get the M/Y Truk Master off the reef, and was successful on the first try.  After checking for damage and leaks, the M/Y Truk Master crew re-boarded the guests and sailed to Yap.

On August 4, 2017, the chiefs of Sorol atoll filed this class action lawsuit, seeking a damage award for the people of Sorol from the defendants.  They allege that Sorol reef was damaged due to the defendants’ maritime negligence, negligent entrustment to or supervision of the captain, unseaworthiness, trespass, and nuisance.  An amended complaint was filed October 9, 2018.

II.  The Partial Summary Judgment Motion

The class plaintiffs move for summary judgment against defendants, the M/Y Truk Master, Captain Martin Cridge (the vessel’s skipper), and Vision Wealth FSM, Inc. (the vessel’s owner), on the issue of those defendants’ liability, on their maritime negligence, nuisance, and trespass claims, for damage to Sorol reef arising from the M/Y Truk Master’s June 11-12, 2017 grounding on Sorol reef.  They assert that the grounding would have been avoided if Captain Cridge had followed the standard of good and prudent seamanship, but instead he breached that duty and ran the M/Y Truk Master hard aground on Sorol reef, thereby damaging the reef.  The class plaintiffs contend that this injury to Sorol coral reef was proximately caused by Captain Cridge negligently running the M/Y Truk Master hard aground on the coral reef.  To prove this negligence, the class plaintiffs rely on the legal presumption, found in The Louisiana, 70 U.S. (3 Wall.) 164, 173, 18 L. Ed. 85, 88 (1866), that a drifting ship is liable for the resulting collision "unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented."  The class plaintiffs, citing Wardell v. Department of Transp., 884 F.2d 510, 512 (9th Cir. 1989), further rely on the presumption that "[w]hen a moving vessel collides with a stationary object, it is presumed that the moving vessel is at fault."

The plaintiffs assert that Vision Wealth FSM Inc., as the M/Y Truk Master’s owner, is responsible for the navigation errors of the M/Y Truk Master and its captain.  The plaintiffs, relying on requests for admissions that they state were not answered by the defendants, contend that the defendants have admitted that they negligently damaged 936 square meters of Sorol reef (not including secondary damage) and that Yapese coral reefs are valued at $600 a square meter, thus requiring a damages hearing to confirm a minimum of $561,600 in damages to be awarded the plaintiffs.

The defendants against whom the plaintiffs move for partial summary judgment (the M/Y Truk Master, Vision Wealth FSM, Inc., and Captain Martin Cridge) contend that the court, drawing, as it must, all reasonable inferences in the light most favorable to the non-moving defendants, cannot grant summary judgment because there are genuine issues of material fact that preclude it.  The defendants, stating that the plaintiffs appear to be moving for summary judgment only on the maritime negligence claim, agree that all mariners are held to a duty of reasonable care standard, but contend that under the circumstances, "a reasonable mariner would be justified in relying on multiple navigational tools that indicate that the closest point of the reef was a safe distance from the vessel."  Defs. M/Y Truk Master, Vision Wealth FSM, Inc. & Capt. Martin Cridge’s Opp’n to Pls.’ Mot. for Partial Summ. J. Re: Liability at 10 (Mar. 27, 2018).  The defendants provide copies of a navigational chart that was on the M/Y Truk Master and which shows that where the M/Y Truk Master ran hard aground on the reef was about a half mile from the nearest point of the Sorol reef’s charted position.  The defendants contend that they were reasonable in their reliance on commercially available navigational tools that turned out to be grossly inaccurate.  Id. at 12.  The defendants assert that therefore the plaintiffs’ reliance on the presumption is unwarranted.

The defendants further oppose the plaintiffs’ contention that the plaintiffs’ requests for admissions should be deemed admitted because, in the defendants’ view, those requests were not properly served on their counsel, and once they were served, the defendants denied many of the requests the plaintiffs’ motion relies on.

The plaintiffs’ reply, based in part on the defendants’ later discovery responses, asserts that the defendants’ fault may also be found in that the M/Y Truk Master had sonar depth finders aboard.  The plaintiffs also point out that if there were inaccurate charts aboard the M/Y Truk Master, it was the defendants who brought those charts aboard.  They emphasize that they seek summary judgment on liability, not only for maritime negligence, but also for trespass and nuisance, and that the running of lines from the M/Y Truk Master out to the reef after it had grounded constituted another trespass, for which they also seek summary judgment.  The plaintiffs reiterate that the M/Y Truk Master did not have the Sorol chiefs’ consent or permission to come into contact with Sorol reef.

III.  Liability for Allision with Sorol Reef

A maritime negligence cause of action’s elements are:  (1) existence of a duty requiring persons to conform to a certain standard of conduct in order to protect others against unreasonable risks; (2) conduct that falls below that standard thus breaching that duty (usually called "negligence"); (3) a reasonably close causal connection between the unreasonable conduct and the resulting injury, (often called "proximate cause"); and (4) an actual loss, injury, or damage to another party.  People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM R. 403, 416 (Yap 2006) (citing 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-2, at 157 (2d ed. 1994)).  A vessel, and the mariner commanding it, have a duty to navigate safely.  Id.  They also have "a duty not to cause any damage to the reef and marine resources in Yap waters."  People of Gilman ex rel. Tamagken v. Woodman Easternline Sdn. Bhd., 18 FSM R. 165, 174 (Yap 2012).  "General maritime law has long recognized causes of action in maritime tort for damages resulting from groundings . . . ."  M/V Kyowa Violet, 14 FSM R. at 415.

"Liability for collisions, allisions,1 and other types of marine casualties is based upon a finding of fault that caused or contributed to the damage incurred."  2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 14-2, at 254 & n.1 (2d ed. 1994) (footnote in original).  "The standard of care against which fault is determined is derived from (1) general concepts of prudent seamanship and reasonable care; (2) statutory and regulatory rules governing the movement and management of vessels and other maritime structures; and (3) recognized customs and usages."  Id. at 255.  "A fundamental rule of collision law, long applied, is that to impose liability for a collision, the fault committed by the vessel must be a contributory cause of the collision."  Id. at 261.

There are a number of presumptions in collision law that are directed to the issue of fault.  When a vessel under its own power collides with an anchored vessel or a navigational structure, the burden of proving absence of fault or inevitable accident rests with the moving vessel.  The presumption also applies when an unmoored, drifting vessel hits an anchored vessel or structure.

2 Schoenbaum, supra, § 14-3, at 268 (footnotes omitted).  "The presumption does not apply, however, in the case of an allision with a submerged hidden object."  Id. n.21 (emphasis in original).  Since "the presumption does not apply to allisions with sunken or hidden objects . . . the party who is invoking the presumption has the burden of proving either that the object was visible or that the vessel otherwise possessed knowledge of the object’s location."  Pelican Marine Carriers, Inc. v. City of Tampa, 791 F. Supp. 845, 852 (M.D. Fla. 1992) (citation omitted).  Thus, "[w]hile this presumption generally does not apply to allisions with sunken or hidden objects ‘knowledge of an otherwise nonvisible object warrants imposition of presumed negligence against those operating the vessel who possessed this knowledge.’" Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1471 (5th Cir. 1991) (quoting Delta Transload, Inc. v. M/V Navios Commander, 818 F.2d 445, 450 (5th Cir. 1987)).  If the submerged object’s presence is known, then "the accident was neither fortuitous nor unavoidable."  Delta Transload, Inc., 818 F.2d at 450.  Furthermore,

The closely related doctrine of res ipsa loquitur is also applicable in collision cases.  This creates a rebuttable presumption of negligence on the part of a party who is in exclusive control of an instrumentality with regard to a mishap that ordinarily does not occur in the absence of negligence.  These doctrines are primarily applicable in allision cases.

2 Schoenbaum, supra, § 14-3, at 268-69 (footnotes omitted).

This is an allision case.  Therefore, the burden of persuading the court that the M/Y Truk Master, or its master, Captain Cridge, was not at fault shifts to the defense, unless the stationary object struck was sunken or submerged and hidden.  The M/Y Truk Master, while moving under its own power, struck a stationary object - the outer edge of Sorol reef - and ran hard aground on it, causing damage.  Captain Cridge knew that the reef’s outer edge was located off the M/Y Truk Master’s port side, although he was unsure of its exact location.  The M/Y Truk Master deliberately ran parallel to the reef and Captain Cridge looked for its outer edge with his own eyes.  The reef was submerged, but it was not hidden.  It was visible when not staring directly into the sunlight’s glare.

Accordingly, the court concludes that the allision presumption applies and none of the exceptions to that principle applies in this case.

The M/Y Truk Master was south of Sorol Atoll.  It was running at 5 knots in an easterly direction - toward the early morning sun.  Sorol, and its reef, were off the M/Y Truk Master’s port side.  If the M/Y Truk Master had wanted to avoid the reef, a turn to starboard, where there was plenty of sea room, no shipping, and no reef, would have sufficed.  Even the use of the M/Y Truk Master’s sonar depth finders or the posting of lookouts should have prevented the allision.  The court must discount the inaccurate navigational charts’ presence on the M/Y Truk Master.  By the captain’s own account in his report, he was navigating visually, relying only on his own eyesight, while looking for the divers’ dinghy and for the reef’s outer edge.  Furthermore, even if the M/Y Truk Master had been using inaccurate charts to navigate when it grounded on Sorol reef, that grounding would still have to be considered the result of maritime negligence because of the captain’s other failures.  See In re Compagnie Generale Transatlantique, 392 F. Supp. 973, 980-82 (D.P.R. 1975) (even though the vessel was using charts of suspect reliability, grounding on uncharted and unknown reef in channel was negligent navigation since there were several navigation measures the captain could have used to become aware of and to avoid the unknown reef).

The defendants are therefore unable to overcome the allision presumption or show that an exception to it applies.  Accordingly, the court holds the M/Y Truk Master and Captain Cridge liable for maritime negligence.  Vision Wealth FSM Inc., as the M/Y Truk Master’s owner, is therefore also liable.  See Woodman Easternline Sdn. Bhd., 18 FSM R. at 176.  The plaintiffs also seek a finding of liability for trespass and nuisance.

Since the Yap Constitution recognizes traditional rights and ownership of marine resources, Yap Const. art. XIII, § 5, the unconsented grounding on Sorol reef also constitutes a trespass.  See Pohnpei v. M/V Ping Da 7, 20 FSM R. 75, 78 (Pon. 2015) (grounding on a reef is a trespass).  Since proof of damages is not necessary to prove trespass, Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 427, 437 (App. 2011), the court concludes that both the grounding and the running of lines from the vessel to the reef are trespasses.

Partial summary judgment for nuisance liability is, however, denied.  Negligent conduct can give rise to a nuisance claim when the conduct has caused substantial interference with the use and enjoyment of another’s property that causes substantial harm.  M/V Kyowa Violet, 14 FSM R. at 416-17.  And, as will be seen below, the amount of damage and whether there was substantial harm are genuine issues of material fact.  The defendants concede that some damage occurred.

IV.  Damages

The plaintiffs, presuming that the court will hold the defendants liable, also move for a damages hearing.  The plaintiffs contend, relying on their requests for admission being deemed admitted for the defendants’ non-response, that it is undisputed that at least 936 square meters of the Sorol coral reef were damaged and that $600 per square meter has repeatedly been found applicable in Yap state, and request that a damages hearing be held at the earliest possible date and that a minimum of $561,600 (936 square meters x $600 per square meter) in damages be awarded.  The plaintiffs’ damage assessment is based on the August 31, 2017 report of Mike J. Hasrumai of the Yap Marine Conservation Project.

The plaintiffs originally sent their requests for admission to the defendants’ counsel by e-mail, and when there was no response within 30 days, assumed that the court would deem their requests admitted, as provided for in Rule 36.  The defendants are correct that, under the FSM Rules of Civil Procedure, e-mail does not constitute good service of filings and papers.  The court therefore cannot deem those requests admitted based on that service.  Since then, the issue appears to have been resolved - the defendants’ counsel has been served the discovery requests by mail, and the plaintiffs have received these defendants’ discovery responses.

The amount and value of the reef damage is genuinely disputed.  The defendants submit reports from their investigators, who visited the site, disputing both the size and the severity of the claimed reef damage.  The defendants contend that the primary injury area is only 38 square meters, with a secondary injury area of only 6 square meters. They submit the October 31, 2017 report of Sea Byte Inc. of Bradenton, Florida.

Furthermore, when it comes to Yapese outer island reefs, the court has previously noted that:

While it may be uncontested that the value of the reef on the main island of Yap is $600 per square meter, the court cannot presume, without evidence, that $600 a square meter is an accurate value for any particular Yap outer island reef, especially where on the outer island there may be more reef and fewer people who have the right to rely on or depend on the reef’s resources.

People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 532, 541 (Yap 2013) (citations omitted).  The court also notes that an appropriate measure of damages for a damaged coral reef may be "the cost of restoration . . . without grossly disproportionate expense."  United States v. The Schooner Windspirit, 1997 A.M.C. 278, 280 (D.V.I. 1995) (damages for dragging anchor that gouged scar on coral reef).  Or it may be that, in this case, the cost of restoration would not be an appropriate measure because it would entail a grossly disproportionate expense.  Damages could also be measured by the economic value of the marine resources lost or diminished by the reef damage.  See M/V Kyowa Violet, 14 FSM R. at 418.

The court is thus open to persuasion on the proper way to measure damages in this case.  The parties will be expected to address this in future submissions.

V.  Briefing and Motion Schedule

The plaintiffs also ask the court to issue a procedural order that every motion filed with the court be opposed within 21 days after filing and service, with the failure to file an opposition constituting a waiver of grounds to oppose the motion, and with the movant, if an opposition is filed, having 14 days after service to file a reply to the opposition.  The plaintiffs also ask to be allowed to serve their filings by e-mail; that the court not enter a ruling on the motion until after the time for a reply has passed; and that the court shorten the discovery deadline and schedule a damages hearing expeditiously.

The defendants, during the hearing, opposed such an order as unnecessary.  They saw no reason to alter procedures established in the Civil Procedure Rules.

The court, having considered the matter, will permit the procedure in the Rules to be modified as follows:

1) once a motion is filed and served, the other parties will have 21 days to file and serve a response to the motion; and

2) if a response is filed, the original movant will have 14 days after service of the response to file and serve a reply.  If, after receiving the reply, the opposing party feels that a further response is necessary, that party may (promptly) ask the court for permission to file a surreply.

The failure to file and serve a response to a motion will be deemed a consent to the motion.  FSM Civ. R. 6(d).  The above time frames and procedure will not apply to Rule 6(b)(1) motions.  Service by e-mail will be allowed only if the opposing party to be served consents to service by e-mail for that document.

The plaintiffs’ request to shorten the discovery cut-off deadline is not granted.  But, if the parties, at some point earlier than the October 10, 2018 date currently set, agree that no further discovery is needed, the court will willingly revise the schedule.

The plaintiffs offered, but with an April 7, 2018 expiration date (but renewed the offer afterwards at the April 25, 2018 telephonic hearing), to cooperate on a joint survey of the Sorol reef marine resources and reef damage with the participation of both the plaintiffs’ and defendants’ respective experts.  The court would like to afford the parties an opportunity for such a joint survey.  Even if no joint cooperative survey is conducted, the court feels that the parties should be afforded adequate time to prepare and develop evidence to address the relevant issues in any future damages hearing.  The court will therefore await the parties’ suggestions about the appropriate time to set a damages hearing.

VI.  Conclusion

Accordingly, the class plaintiffs are granted summary judgment on the issue of liability for maritime negligence and trespass.  Damages will be determined at a later date.

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