In the matter of the Death of Dannis(1986)

POHNPEI SUPREME COURT REPORTS

VOL.2

[2P.S.Ct.R.92]

IN THE MATTER OF THE DEATH OF CARL DANNIS

Pohnpei Civil Action No. 42-86

Trial Division of the Pohnpei Supreme Court

May 30, 1986

Petition by wife of person lost at sea praying for a judicial declaration that her husband was legally dead. The Trial Division of the Pohnpei Supreme Court, EDWEL H.SANTOS, Chief Justice, granted the petition, holding that with the termination of the futile search for the lost person and the making of the traditional and customary funeral feast the absent person was declared dead.

1. Presumption of Death - Pohnpelan Law - Custom

While Pohnpei State lacks statutory provision establishing presumption of death of a person after his disappearance or if never heard from for a specified period of time, there is a traditional belief in Pohnpei that when a person who has disappeared , whether in our forests, rivers or ocean, is neither seen nor heard from for a reasonable period of time after which an extensive search is conducted, all but futile, the family of that person may declare the search terminated, and the 'umwun mwurilik (funeral feast) follows, and when all these are done, traditionally and customarily that absent person is declared dead.

2. Courts - Custom

The Pohnpei Constitution directs the Court to uphold and respell Pohnpeian customs ( Art. 5 Secs. 1 and 2)

3. Presumption of Death - Customary Practice

Where lost person was last seen and heard from on January 10,1986, at 4 0' clods in the afternoon at sea, and extensive search was launched, but futile, and the family declares all searches be terminated as fruitless and umwun mwurllik followed on January 18, 1986, customary practice and belief as relating to absent person who may be considered dead is satisfied.

[2P.S.Ct.R.93]

Counsel for Petitioner Ander Norman of Micronesian Legal Services Corporation.

EDWEL H. SANTOS, Chief Justice,

Petitioner Rika Dannis, the spouse of Carl Dannis, prays that this court find that Carl Dannis was lost at sea in Pohnpei on January 10,1986 and that the said Carl Dannis is now deceased. Carl Dannis, born on Mokil Atoll, Pohnpei, on October 17, 1933, was a citizen (pwildak) of Pohnpei, and was an employee of the Trust Territory Government, the Pohnpei State Government, and the Federated States of Micronesia Government for a substan-tial number of years, serving in the area of environmental health services. He was married to Rika (Joel) Dannis, the petitioner here on September 9, 1955. This marriage bore 9 children, the oldest being 30 years and the youngest 5 years at the time of the hearing of this cause.

The testimony produced at the hearing indicates that in the morning of January 10,1986, Carl Dannis and a son-in-law Wheat Poll went on a troll-fishing trip outside the territorial seas of Pohnpei

[2P.S.Ct.R.94]

on a wooden boat, powered by an outboard engine. The two went through the Parem Island Passage out to the open sea for their fishing ground. At about 2 o'clock in the afternoon of that day, the two began to experience turbulent weather, the waves becoming higher and the wind stronger. The two then suspended their fishing operation and started heading back to shore. While approaching the reef facing Parem Island, approximately less than a mile from the reef, the two met strongerwinds and higherwave that it became so difficult to maneuver their wooden boat through the rough waves, and as a result the boat capsized. Carl Dannis gave instruction to his son-in-law to unscrew the engine and drop it off, as well as to drain their gas tanks empty, a measure necessary to help lighten their wooden boat to make it easier to float. Wheat Poll immediately carried out the instruction. They then hung on to their wooden boat and attempted to swim toward the reef at Parem Island. Upon arrival at the fringe of the reef, at about 4 o'clock in the afternoon Carl Dannis uttered these words to his son-in-law:

I solahr kak, I mwopw lahrl ; (translated-I am exhausted, I am drowning !)

Immediately thereafter Wheat Poll lost sight of Carl Dannis,

[2P.S.Ct.R.95]

and in his testimony, Wheat Poll believed that Carl Dannis had drowned and was not able to come back to the surface.

Wheat Poll struggled and made his way to the barrier reef, hence to a big rock on the reef facing Parem, with all expectations that Carl Dannis would somehow appear on the surface for him to lend an aid to. He was not able to see Carl Dannis again. The night came and Wheat Poll crawled over the Big Rock and slept there until morning when fortunately otherfisherman passing nearbythe big rock, to whom Wheat Poll waved his hands, and who stopped by, gave Wheat Poll a ride back to Kolonia, on January 11, 1986.

Wheat Poll brought the tragic news to Carl Dannis's family, and the Government authorities were alerted for assistance. Extensive search was launched by the family and relatives, including the Government authorities utilizing the aid of small boats, vessels, and air crafts from January 11 through 15, 1986, but all efforts were fruitless. Carl Dannis's body could not be found, except the wooden boat that they were on. One loanis Peter found the boat on the surface of the water during the search and was not able to salvage the boat, but instead, he brought back a piece of a board used as seat on the boat, which the family identified as one

[2P.S.Ct.R.96]

of the seats of Carl Dannis's wooden boat.

In this case the petitioner seeks judicial declaration that Carl Dannis is legally dead because he had disappeared on January 10, 1986, at sea without having been seen again nor heard from since.

I find nothing in our State Laws which prescribes the length of time and conditions upon which a person who has disappeared or never heard from can be considered or presumed dead. Some common law jurisdictions provide seven years, after which period a person who has disappeared or never heard from may be presumed dead. (This is an area where the Pohnpei Legislature may wish to consider legislation.)

The situation as represented in this case had occurred previously under the Trust Territory High Court. See In the Matter oftheDeath of Bruno James, H.C. Civil Action No. 50-76 (Pohnpei, 1976) and In the Matter of the Death of Andrew Leben, H.C. Civil Action No. 51-76 (Pohnpei, 1976); and once before the State Court, In the Matter of Elwin Welle, Pohnpei Civil Action No. 12784 (1984). In all these cases the Court entered order establishing the death of the persons named.

While Pohnpei State lacks statutory provision establishing

[2P.S.Ct.R.97]

presumption of death of a person after disappearance or never heard from for a specified period of time, there is a traditional belief in Pohnpei that when a person who has disappeared whether in our forests, rivers, or ocean and is not seen nor heard from for a reasonable period of tune after which an extensive search was conducted, all but futile, the family of that person may declare the search terminated, and the umwun-mwurilik (funeral feast) follows. When all these are done, traditionally and customarily that absent person is declared dead. Article 5, Sections 1 and 2 of the Constitution of Pohnpei directs the Court to uphold and respect our customs.

In the case before us, Carl Dannis was fast seen and heard from on January 10, 1986, at about 4 0' clock in the afternoon at sea. Extensive search was launched but futile. The family declared all searches be terminated as fruitless, and umwun mwurilik followed on January 18, 1986. Customary practice and belief as relating to an absent person who may be considered dead is satisfied.

The Court notes that public notice was given with respect to the petition herein considered and no individual or government

[2P.S.Ct.R.98]

authority appeared to object to the petition. Accordingly, good cause shown, it is hereby ORDERED, ADJUDGED and DECREED that:

(1) This Court has jurisdiction over this matter pursuant to Section 4 of the Constitution of Pohnpei, and Section 20 of the Pohnpei Judiciary Act (S.L. No. 1 L-160-82) ;

(2) Said Carl Dannis was born on October 17,1933, and was lost at sea in Pohnpei on January 10,1986, at approximately 4 o'clock p.m. and died on said date time and place; and

(3) The Director of Health Services, Pohnpei State, is authorized and directed to issue a death certificate forthwith, the same to reflect that said Dannis is deceased, and that the date of death was January 10, 1986, and the place of death was State of Pohnpei, Federated States of Micronesia.


	POHNPEI SUPREME COURT REPORTS VOL.2 [2P.S.Ct.R.92] IN THE MATTER OF THE DEATH OF CARL DANNIS Pohnpei Civil Action No. 42-86 Trial Division of the Pohnpei Supreme Court May 30, 1986 Petition by wife of person lost at sea praying for a judicial declaration that her husband was legally dead. The Trial Division of the Pohnpei Supreme Court, EDWEL H.SANTOS, Chief Justice, granted the petition, holding that with the termination of the futile search for the lost person and the making of the traditional and customary funeral feast the absent person was declared dead. 1. Presumption of Death - Pohnpelan Law - Custom While Pohnpei State lacks statutory provision establishing presumption of death of a person after his disappearance or if never heard from for a specified period of time, there is a traditional belief in Pohnpei that when a person who has disappeared , whether in our forests, rivers or ocean, is neither seen nor heard from for a reasonable period of time after which an extensive search is conducted, all but futile, the family of that person may declare the search terminated, and the 'umwun mwurilik (funeral feast) follows, and when all these are done, traditionally and customarily that absent person is declared dead. 2. Courts - Custom The Pohnpei Constitution directs the Court to uphold and respell Pohnpeian customs ( Art. 5 Secs. 1 and 2) 3. Presumption of Death - Customary Practice Where lost person was last seen and heard from on January 10,1986, at 4 0' clods in the afternoon at sea, and extensive search was launched, but futile, and the family declares all searches be terminated as fruitless and umwun mwurllik followed on January 18, 1986, customary practice and belief as relating to absent person who may be considered dead is satisfied. [2P.S.Ct.R.93] Counsel for Petitioner Ander Norman of Micronesian Legal Services Corporation. EDWEL H. SANTOS, Chief Justice, Petitioner Rika Dannis, the spouse of Carl Dannis, prays that this court find that Carl Dannis was lost at sea in Pohnpei on January 10,1986 and that the said Carl Dannis is now deceased. Carl Dannis, born on Mokil Atoll, Pohnpei, on October 17, 1933, was a citizen (pwildak) of Pohnpei, and was an employee of the Trust Territory Government, the Pohnpei State Government, and the Federated States of Micronesia Government for a substan-tial number of years, serving in the area of environmental health services. He was married to Rika (Joel) Dannis, the petitioner here on September 9, 1955. This marriage bore 9 children, the oldest being 30 years and the youngest 5 years at the time of the hearing of this cause. The testimony produced at the hearing indicates that in the morning of January 10,1986, Carl Dannis and a son-in-law Wheat Poll went on a troll-fishing trip outside the territorial seas of Pohnpei [2P.S.Ct.R.94] on a wooden boat, powered by an outboard engine. The two went through the Parem Island Passage out to the open sea for their fishing ground. At about 2 o'clock in the afternoon of that day, the two began to experience turbulent weather, the waves becoming higher and the wind stronger. The two then suspended their fishing operation and started heading back to shore. While approaching the reef facing Parem Island, approximately less than a mile from the reef, the two met strongerwinds and higherwave that it became so difficult to maneuver their wooden boat through the rough waves, and as a result the boat capsized. Carl Dannis gave instruction to his son-in-law to unscrew the engine and drop it off, as well as to drain their gas tanks empty, a measure necessary to help lighten their wooden boat to make it easier to float. Wheat Poll immediately carried out the instruction. They then hung on to their wooden boat and attempted to swim toward the reef at Parem Island. Upon arrival at the fringe of the reef, at about 4 o'clock in the afternoon Carl Dannis uttered these words to his son-in-law: I solahr kak, I mwopw lahrl ; (translated-I am exhausted, I am drowning !) Immediately thereafter Wheat Poll lost sight of Carl Dannis, [2P.S.Ct.R.95] and in his testimony, Wheat Poll believed that Carl Dannis had drowned and was not able to come back to the surface. Wheat Poll struggled and made his way to the barrier reef, hence to a big rock on the reef facing Parem, with all expectations that Carl Dannis would somehow appear on the surface for him to lend an aid to. He was not able to see Carl Dannis again. The night came and Wheat Poll crawled over the Big Rock and slept there until morning when fortunately otherfisherman passing nearbythe big rock, to whom Wheat Poll waved his hands, and who stopped by, gave Wheat Poll a ride back to Kolonia, on January 11, 1986. Wheat Poll brought the tragic news to Carl Dannis's family, and the Government authorities were alerted for assistance. Extensive search was launched by the family and relatives, including the Government authorities utilizing the aid of small boats, vessels, and air crafts from January 11 through 15, 1986, but all efforts were fruitless. Carl Dannis's body could not be found, except the wooden boat that they were on. One loanis Peter found the boat on the surface of the water during the search and was not able to salvage the boat, but instead, he brought back a piece of a board used as seat on the boat, which the family identified as one [2P.S.Ct.R.96] of the seats of Carl Dannis's wooden boat. In this case the petitioner seeks judicial declaration that Carl Dannis is legally dead because he had disappeared on January 10, 1986, at sea without having been seen again nor heard from since. I find nothing in our State Laws which prescribes the length of time and conditions upon which a person who has disappeared or never heard from can be considered or presumed dead. Some common law jurisdictions provide seven years, after which period a person who has disappeared or never heard from may be presumed dead. (This is an area where the Pohnpei Legislature may wish to consider legislation.) The situation as represented in this case had occurred previously under the Trust Territory High Court. See In the Matter oftheDeath of Bruno James, H.C. Civil Action No. 50-76 (Pohnpei, 1976) and In the Matter of the Death of Andrew Leben, H.C. Civil Action No. 51-76 (Pohnpei, 1976); and once before the State Court, In the Matter of Elwin Welle, Pohnpei Civil Action No. 12784 (1984). In all these cases the Court entered order establishing the death of the persons named. While Pohnpei State lacks statutory provision establishing [2P.S.Ct.R.97] presumption of death of a person after disappearance or never heard from for a specified period of time, there is a traditional belief in Pohnpei that when a person who has disappeared whether in our forests, rivers, or ocean and is not seen nor heard from for a reasonable period of tune after which an extensive search was conducted, all but futile, the family of that person may declare the search terminated, and the umwun-mwurilik (funeral feast) follows. When all these are done, traditionally and customarily that absent person is declared dead. Article 5, Sections 1 and 2 of the Constitution of Pohnpei directs the Court to uphold and respect our customs. In the case before us, Carl Dannis was fast seen and heard from on January 10, 1986, at about 4 0' clock in the afternoon at sea. Extensive search was launched but futile. The family declared all searches be terminated as fruitless, and umwun mwurilik followed on January 18, 1986. Customary practice and belief as relating to an absent person who may be considered dead is satisfied. The Court notes that public notice was given with respect to the petition herein considered and no individual or government [2P.S.Ct.R.98] authority appeared to object to the petition. Accordingly, good cause shown, it is hereby ORDERED, ADJUDGED and DECREED that: (1) This Court has jurisdiction over this matter pursuant to Section 4 of the Constitution of Pohnpei, and Section 20 of the Pohnpei Judiciary Act (S.L. No. 1 L-160-82) ; (2) Said Carl Dannis was born on October 17,1933, and was lost at sea in Pohnpei on January 10,1986, at approximately 4 o'clock p.m. and died on said date time and place; and (3) The Director of Health Services, Pohnpei State, is authorized and directed to issue a death certificate forthwith, the same to reflect that said Dannis is deceased, and that the date of death was January 10, 1986, and the place of death was State of Pohnpei, Federated States of Micronesia.