FSM 6 Intrm. 159-165

fishing of one of the vessels inside the twelve mile territorial sea is not reached when there is insufficient evidence to prove by a preponderance of the evidence that one vessel was searching for fish inside the twelve mile limit. FSM v. Kotobuki Maru No. 23 (II), 6 FSM Intrm. 159, 165 (Pon. 1993).

On the morning of March 19, 1993, a group purse seiner was conducting fishing operations in the FSM's Exclusive Economic Zone (EEZ), near the Territorial Sea, or 12 mile zone of Nukuoro Atoll in the State of Pohnpei. The group, which consisted of the Kotobuki Maru Nos. 8, 23, 25, and 28 was duly licensed by the Micronesian Maritime Authority (MMA) to fish in the EEZ. The group is not licensed to fish in the Territorial Sea, or 12 mile zone, of Pohnpei State.

At 0900 local time, one of the vessels, the Kotobuki Maru No. 25, was observed by FSM Marine Surveillance officers aboard the F.S.S. Palikir to be searching for fish inside the 12 mile zone of Nukuoro Atoll. The Palikir pursued the vessel, which had been seaming past Nukuoro in a northwesterly direction. Shortly after 1100, the Kotobuki No. 25 made a left turn and stopped somewhere west of Nukuoro. The Palikir then closed in and at about 1115 also came to a full stop about 100 feet away from the Kotobuki No. 25.

Sometime after 1115, crewmen from the Kotobuki No. 25 took a small boat to the Palikir and showed Marine Surveillance officers their MMA permit. Once they had returned to the Kotobuki No. 25, a boarding party from the Palikir then took a dingy to the Kotobuki No. 25 and boarded it. While on board, Marine Surveillance Officer Dexter Benjamin observed the radar and sonar of the Kotobuki No. 25 and determined that it was fishing with the 12 mile zone of Nukuoro Atoll. The vessel and crew were then placed under arrest and taken back to Pohnpei. En route to Pohnpei, the Kotobuki No. 23 joined the vessels and was also arrested by Marine Surveillance. The Kotobuki Nos. 8 and 28 remain at large.

The Government charged all four vessels with violating a condition of their MMA permit which requires them to have a state permit in order to fish in that state's waters.1 A motion to dismiss for lack of jurisdiction was denied by the Court, which upheld the condition on the MMA

Only two questions were presented to Court at trial. The first is factual: Was the Kotobuki No. 25 fishing inside the 12 mile zone of Nukuoro, within the meaning of 24 F.S.M.C. 102(19)? The second is legal: If the Kotobuki No. 25 is found to have been fishing, can the other vessels which were not in the 12 mile zone be nonetheless held liable as a group? This second question is reached only if a factual finding is made that the Kotobuki No. 25 was fishing inside the 12 mile zone of Nukuoro.

Under 24 F.S.M.C. 102(19), fishing is "the actual or attempted searching for, catching, taking, or harvesting of fish." Therefore, the Government must show by a preponderance of the evidence that the Kotobuki No. 25 was searching or attempting to search for fish while inside the 12 mile zone of Nukuoro.

The Government alleges that, on the morning of March 19, 1993, the Palikir was patrolling the EEZ in the vicinity of Nukuoro Atoll when it obtained radar contact with a vessel at about 0900. Officer David Marar, the coxswain, went up to the bridge and first observed the radar contact at 0920. At about 1000, the vessel came into view. According to Officer Marar, the vessel was on a "zigzag" course off the starboard bow side of the Palikir, changing directions five times in 90 minutes. When both vessels came to a full stop at 1115, somewhere west of Nukuoro, Officer Marar alleges that he then looked at the Palikir's radar and saw a reading of 7.2 miles from the island of Nukuoro. He also saw a flashing yellow light from the top of the Kotobuki No. 25, which he alleges is a signal that the vessel is conducting fishing operations.

Following the showing of the MMA permit by the Kotobuki crewmen, Officer Benjamin and two other officers boarded the Kotobuki No. 25. Once on board, he encountered the captain, Yoshinaga Abe, who does not speak English and who could not answer his questions regarding the activities and location of the Kotobuki No. 25. While on the bridge, Officer Benjamin observed the Kotobuki No. 25's radar and saw a reading of 7.2 miles. Officer Benjamin also observed the ship's sonar and noticed that it was on. From these observations, Officer Benjamin concluded that the Kotobuki No. 25 was fishing inside the 12 mile zone of Nukuoro.

The Government claims that the Kotobuki No. 25 was searching for fish inside the 12 mile zone of Nukuoro, due to its zigzag course, its flashing yellow light, its activated sonar, and its location at 7.2 mile west of Nukuoro. According to the Government, the location of the Kotobuki No. 25 is confirmed by both Officer Marar's reading of the Kotobuki No. 25's radar sometime later.

The Government charges that the Kotobuki No. 25 was searching for fish due to its zigzag course, as observed visually by both Officers Marar and Benjamin. Officer Marar testified that he observed five course changes by the Kotobuki No. 25 in the span of about 90 minutes, including the final turn to port side before the vessel came to a full stop. Officer Benjamin testified that he also observed course changes from the flying bridge.

While the defendants deny that a zigzag course is indicative of searching for fish, the Government must first show that the Kotobuki No. 25 was in fact on a zigzag course. Officer Marar testified as to fairly precise course changes made by the Kotobuki No. 25 over a 90 minute period, which he sketched for the Court.2 However, Officer Marar neither took notes nor made any log entries during the Palikir's pursuit of the Kotobuki No. 25. All log entries, the charted course of the Palikir, and the readings of the Global Positioning System (GPS) were made by another officer, Robert Maluweiram, who was officer of the day until 1300.3 Officer Marar also admits to his uncertainty as to what point the Kotobuki No. 25 may have been in the 12 mile zone. He has no knowledge of the range that the Palikir's radar was adjusted to during the pursuit and therefore cannot say where the Kotobuki No. 25 was when he saw it on the radar. Finally, Officer Marar admitted to the imprecision of his estimates since the Palikir was also changing course during the pursuit, making an accurate plotting of the Kotobuki No. 25's course very difficult.4 Testimony by a navigational expert, Noel Slapp, indicated that it would be impossible to make accurate determinations as to the Kotobuki No. 25's course by sight alone; rather, both ships' courses would have to be consistently plotted on radar.

Officer Benjamin testified as to having observed the Kotobuki No. 25's zigzag course while on the flying bridge. However, such testimony is inconsistent with earlier testimony that Officer Benjamin first saw the Kotobuki No. 25 when the Palikir had already closed the distance between them.5 It is unclear at what point Officer Benjamin could have observed a zigzag motion if his first sighting was after all the course changes were allegedly made and the vessel was already coming to

Because of the lack of accurate notations made by the officers at the time of the incident, and the admitted difficulty in estimating the Kotobuki No. 25's course from mere visual observation, I do not find sufficient evidence to conclude that the Kotobuki No. 25 was on a zigzag course inside the 12 mile zone on the morning of March 19, 1993. Due to this finding, I do not reach the question of whether or not a zigzag course by the Kotobuki No. 25 would have constituted searching for fish.

Officer Marar testified to having seen a blinking yellow light on the Kotobuki No. 25, which he interpreted as a warning signal that the vessel was searching for fish. However, Officer Marar also testified that the light was not visible at a distance and that there were no other vessels within visual range. Officer Benjamin, who boarded the Kotobuki No. 25 does not recall seeing a blinking light. Both the captain of the Kotobuki No. 25 and the defense expert testified that a yellow light such as the one on the Kotobuki No. 25 is generally used only in Russian waters at night time and only for safety and for identification purposes. Captain Abe testified that the light was not on, on the morning of March 19, 1993.

It seems unlikely that a light which could not be seen at a distance in daylight would be used as a warning signal for other vessels at a time when no vessels other than the Palikir were in the vicinity. The Government could neither explain what sort of warning signal the yellow light is supposed to send nor contradict the defense expert's testimony that it is not a warning signal. Consequently, I find insufficient evidence to conclude that a blinking yellow light constitutes searching for fish.

Officer Benjamin testified that he observed the sonar of the Kotobuki No. 25 to be activated while on board and that sonar is used to locate fish.6 The defendants testified that sonar is not used to locate fish; rather it is used to determine the size of a school and can only be used if the school is within 700 meters.7 This testimony was not contradicted by the Government. Also, the Court heard testimony from Yoshinaga Abe that while the sonar was activated, its "legs" switch was off and its "legs" were up because it was not used at that time.

stop, Officer Marar looked at the radar of the Palikir and saw a reading of 7.2 miles from Nukuoro. According to Officer Marar, the time was 1115. Sometime later, a boarding party, let by Officer Benjamin, was en route to the Kotobuki No. 25. When Officer Benjamin arrived on the bridge of the Kotobuki No. 25, he inspected its radar and also read 7.2 miles from Nukuoro.8 Based on this evidence, the Government argues that the Kotobuki No. 25 was within the 12 mike zone of Nukuoro when it was searching for fish.

As stated above, Officer Marar could not testify as to the range of the Palikir radar at the time he read it, since it had been modified during the pursuit of the Kotobuki No. 25. This is significant because a point that appears at 7.2 miles on a radar believed to be set on a 12 mile range will actually be 14.4 miles away if the radar range is actually set at 24 miles. Therefore, the distance of a point on radar can be misread if an incorrect range is assumed.

Regarding Officer Benjamin's testimony, his reading of the Kotobuki No. 25's radar came sometime after Officer Marar's reading of the Palikir radar. Specifically, it occurred after the Kotobuki No. 25 had sent crew over to the Palikir, had shown their MMA permit, had returned to their vessel, and then the Palikir had sent a boarding party in a dingy over to the Kotobuki No. 25. During all this, it is undisputed that both vessels were drifting east toward Nukuoro at an undetermined rate. Yet, Officer Benjamin's reading of the Kotobuki No. 25 radar was essentially the same as Officer Marar's reading of the Palikir radar. It is more likely that Officer Benjamin would have read the vessel as being slightly closer than 7.2 miles, if the drift is to be taken into consideration. To that extent, the two officers' testimonies are inconsistent with each other.

Furthermore, both testimonies are directly contradicted by the GPS printout of the Palikir which at 1301 indicates that the Palikir was 10 miles away from Nukuoro. Given the fact that both vessels had been drifting east toward Nukuoro for over 1½ hours by then, it is impossible for the vessels to be 7.2 miles from Nukuoro at 1115 and be 10 miles from Nukuoro at 1311.

The Government attempts to reconcile this contradiction by asserting that the GPS of the Palikir was on "dead reckoning" from 0700 to 1600)i.e. it had lost its satellite link which fixes its position and was operating on its last known position. Essentially, the Government argues that the Palikir's GPS printout indicates an inaccurate course for the morning of March 19, 1993 and should therefore be discarded. The Government refers to the Palikir's navigational chart which shows some positions of the Palikir with the initials "DR" as evidence that the GPS was operating on dead reckoning.

According to uncontroverted expert testimony, GPS positions are updated continuously for accuracy. When a GPS goes on dead reckoning, it will use the speed and the compass course of the vessel to estimate its position. A GPS on dead reckoning will indicate that it is operating on dead reckoning by flashing the symbols "DR," "IMP" (impossible), or "INT" (interrupt) on its screen and printout. When the GPS is linked to a satellite and is receiving current data, the screen and printout will indicate "GPS," "2D," or "3D."

The Palikir GPS printout for March 19, 1993 shows the symbol "GPS" for the period before, during, and following the arrest of the Kotobuki No. 25. Also, the GPS position of the Palikir for 1122 indicates a speed and course input of 0, indicating that the vessel was at a full stop.

However, the next GPS position, at 1301, also indicates a speed and course input of 0 but at a different position than at 1122. If the Palikir GPS were on dead reckoning, it would have no new information from 1122 to 1301 and would thus have to show the same position, since the vessel was at a full stop. Yet, the position is updated which a fortiori means that the GPS was receiving data from a satellite and thus was functional. The Government did not allege, nor will the Court assume, any printer malfunction. The argument that the Palikir's GPS was on dead reckoning is unsupported by the facts presented to the Court.

It is plausible that the Kotobuki No. 25 was inside the 12 mile zone of Nukuoro at some point on the morning of March 19, 1993. However, the Government must prove by a preponderance of the evidence that the Kotobuki No. 25 was searching or attempting to search for fish while inside the 12 mile zone. It has not done so. The evidence that the Kotobuki No. 25 was on a zigzag course and that such a course is proof of searching for fish is insufficient. The evidence regarding the yellow light and the sonar is inconclusive. The evidence that the Kotobuki No. 25 was ever at 7.2 miles off Nukuoro is conflicting at best. Furthermore, even if the Kotobuki No. 25 were inside the 12 mile zone of Nukuoro when it came to a full stop, it would have, at that point, been waiting for the Palikir to approach it and would not have been searching for fish in full view of the Palikir.

2. These course changes are identified as turns #1 through #5 on Government Exhibit 5. According to Officer Marar, the Kotobuki No. 25 made turns #1 through #4 while outside the 12 mile zone. He testified that the Kotobuki No. 25 was inside the 12 mile zone at turn #5 and when it came to a complete stop at the area marked "X." He further testified that the Palikir took 20 minutes to get from turn #4 to #5 and took 5 minutes to get from turn #5 to the "X." Therefore, the period during which the Kotobuki No. 25 was allegedly searching for fish inside the 12 mile zone was only 25 minutes, which is insufficient time for such an observation absent overt fishing activity.

5. Officer Benjamin testified that his first visual contact was two hours after the initial radar contact of 0900. When deposed, he testified that the Kotobuki No. 25 was already "too close" when he first sighted it and that it was slowing down. Dep. Dexter Benjamin at 101-03.