Epa vaapuu, Appellant, V. American samoa government, Appellee

AMERICAN SAMOA GOVERNMENT, Plaintiff
v.
TAULAUNIU HUNKIN, Defendant
High Court of American Samoa

Trial Division

CR No. 46-99
November 18, 1999

[1] When a witness testifies for the government in the expectation of immunity from prosecution, such a person has an equitable claim to immunity from prosecution.

[2] The court’s approval is not needed in order for a prosecutor’s grant of immunity to be binding.
[3] The prosecutor should give notice to the court of any immunity it grants.
Before KRUSE, Chief Justice TUA`OLO, Chief Associate Judge, and ATIULAGI, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General

For Defendant, Jennifer L. Joneson

OPINION AND ORDER
In order to further its case against defendant Taulauniu Hunkin, American Samoan Government (“ASG”) has agreed to grant use and derivative use immunity to two potential witnesses, Ioane Afamasaga and Ivona Afamasaga. ASG requests that the court grant immunity to these witnesses and order them to testify in the criminal trial against Taulauniu Hunkin. The defendant opposes the order, arguing that it is the prosecuting attorney, not the court, that should give immunity.
Unlike most states and the federal government, American Samoa has no statute delineating how a prosecuting attorney may procure testimonial immunity. Under many statutes, the prosecutor may procure an immunity agreement only with the court’s knowledge and consent. Under 18 U.S.C.A. § 6003, for example, a United States attorney, with approval from certain members of the Attorney General’s office, may request that a court compel testimony of a witness when a party has been or may be called to testify or provide information at a proceeding. Such a request is permitted when the witness has or is likely to refuse to testify or provide information on the basis of the privilege against self-incrimination.
When there is no controlling statute, as is the case here, there is a split of authority as to whether a prosecutor, without court approval, may grant immunity. Some cases indicate that a prosecutor cannot, in the absence of statute, grant immunity that is sufficient to protect a witness’s Fifth Amendment right against self-incrimination. See, e.g., Apodaca v. Viramontes, 212 P.2d 425 (1949); Commonwealth v. Brown 619 S.W.2d 699 (Ky. 1981). The underlying logic of these cases is that the prosecutor does not have the power to enforce such an agreement, since the prosecutor, without a court order, cannot guarantee that immunity will be respected.
[1] Other courts, however, have been willing to enforce a prosecutor’s promise of immunity, even without approval from a court. Some courts have stated that the prosecutor’s promise is considered a contract with the witness, and the prosecutor cannot renege on the promise without allowing the witness to do so, as well. United States v. Anderson, 778 F.2d 603 (10th Cir. 1985) (immunity enforced even though made without statutorily required court approval); United States v. Kurzer, 534 F.2d 511 (2d Cir. 1976) (same). Others have stated that courts will enforce promises made by the government to preserve the integrity of the government. When a witness testifies for the government in the expectation of immunity from prosecution, such a person has an equitable claim to immunity from prosecution. 21 Am Jur 2d, Criminal Law § 269; State v. Hingle, 139 So.2d 205 (La. 1961) (no statute; prosecutor’s grant of immunity enforced).
The Alaska Supreme Court considered the issue of prosecutorial immunity in the absence of statute in Surina v. Buckalew, 629 P.2d 969 (Alaska 1981). The Surina court upheld a prosecutor’s grant of immunity, stating that prosecutor’s promise of immunity must be binding to conform with due process. It found that due process would be offended if a prosecutor offered immunity and the witness testified in reliance, but was later prosecuted for the crime.
[2] After considering the merits and analyzing the case law in other jurisdictions, we find that the court’s approval is not needed in order for a prosecutor’s grant of immunity to be binding. It is the prosecutor, not the court, that decides whether or not to grant immunity to a witness.
[3] The court, however, will hold the prosecution to its word, and will give effect to a prosecutor’s grant of immunity. While the court does not make decisions as to whether or not to grant immunity, it helps the court to be informed as to the immunity status of any potential witness. The prosecutor therefore should file with the court a copy of any immunity it grants.
It is so ordered.
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GEORGE BERLEME, Plaintiff,
v.
TANIELU MATAGIESE, OLOSEPU TUILETOA,

PETER MILLER, individually, and NATIONAL PACIFIC INSURANCE LIMITED, jointly and severally, Defendants.
High Court of American Samoa

Trial Division

CA No. 38-98
January 14, 1999

[1] Although pre-trial discovery is broad, deposition testimony is limited to a factual examination, and may not be used to examine as to argumentative matters, or to elicit conclusions, opinions, or opinion evidence and must not require an expert opinion, or require inferences which may be drawn from facts.

[2] An evasive or incomplete answer is treated as a failure to answer, and a motion to compel will be granted in such instance.
[3] A defendant is entitled to have the plaintiff’s attorney deposed to answer any question relating to anything contained in the complaint which the defendant does not understand and wants amplified, and is entitled to be told what proof the plaintiff has to support such charges.
[4] A motion to compel will not be granted as to a question which is argumentative and serves no purpose in providing additional discovery information.
[5] Opposing counsel may be deposed when no other means exists to obtain the desired information, and the information sought is relevant and nonprivileged, and the information is crucial to case preparation.

[6] Objections to the form of the question are proper objections for deposition, especially if it presumes a predicate.

[7] Where an objection to a question is based on attorney-client privilege, the basic rationale for asserting the privilege must be elicited for the court to make a meaningful evaluation of the privilege claim.
[8] A party is not required to answer questions which are not within his knowledge, and limits exist as to what a witness should be required to do in order to prepare to answer oral questions.
Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Roy J.D. Hall, Jr.

For Defendants, Jennifer L. Joneson

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS MOTION TO COMPEL
On September 11, 1998, Defendants filed a motion to compel discovery. Defendants claimed that questions propounded during oral examination were repeatedly met with plaintiff George Berleme’s (“Berleme”) failure to respond, evasive or incomplete responses, and objections and instructions not to answer from the his attorney. Berleme, on the other hand, contends that the questions asked were argumentative, meant to harass, annoy and or embarrass the deponent. Berleme further contends that many of the questions asked are more appropriately directed towards defendant Peter Miller. Counsel for both parties were present for oral argument.
The purpose of pre-trial discovery is to (1) narrow and clarify the basic issues between the parties and (2) to ascertain facts or information relating to those issues in advance of trial. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). As such, the scope of pre-trial discovery is broad, allowing any matter, not privileged, which is relevant to the subject matter involved in the pending action whether it relates to the claim or defense of the party seeking discovery or the claims of any other party. T.C.R.C.P. 26(b)(l).
[1] Although discovery is broad, deposition testimony is “usually limited to a factual examination, and may not be used to examine as to argumentative matters, or to elicit conclusions, opinions, or opinion evidence and must not require an expert opinion, or require inferences which may be drawn from facts.” 27 C.J.S. Discovery § 32(1) (1959 & Supp. 1985). Objections are also proper as to the form of a question, especially if it assumes a predicate. See T.C.R.C.P. 32(d)(3)(B) (objections to the form of the question which “might be obviated, removed, or cured if promptly presented” are waived if not seasonably made before or during the deposition).
[2] The motion to compel is granted as to questions 3, 4, 7, 8, 9, and 10. Under T.C.R.C.P. 37(a)(3), an evasive or incomplete answer is treated as a failure to answer. For question 3, Berleme failed to provide what factual basis he has, if any, to support his allegation that defendant Peter Miller, the Branch Manager of defendant National Pacific Insurance Limited (“NPI”), was unfit to perform his job and should be removed. Berleme claimed that the facts are “legal facts that I have no knowledge of.” (Berleme Depo. 38:3-4). Berleme is compelled to answer the facts underlying the legal basis of his claim.
Similarly, Berleme was evasive as to question 4. Defendants provided a clear question in asking, “Are there any other false statements that you believe are the basis for [your] complaint for fraud.” The response in this instance was “You have to be more specific” and “You’ll have to see my lawyer because if I say no, you’d go with—if I say yes, you’d say what are they so see my lawyer, please. Jennifer, you must remember –.” As the purpose of the discovery is to ascertain the underlying facts relating to the claims alleged, Berleme was clearly being evasive, and reluctant to provide the facts of his claim. Berleme is compelled to answer this question and any follow-up questions related to the answers given in response.
As to questions 7, 8, 9, and 10, the objection was that the question called for a legal conclusion. However, Defendants’ attorney specifically requested the facts supporting the legal claim. Facts upon which the general allegations of a complaint are found and the claimed relationship between such facts are not properly objectionable on the ground that they call for legal conclusions. See B-H Transp. Co. v. Atlantic & Pacific Tea Co., 44 F.R.D. 436, 438-9 (N.D.N.Y. 1968). In addition, a defendant is generally entitled to discover information that clarifies allegations of a complaint and to determine what proof supports those allegations. Brown v. Waco Fire & Casualty Co., 73 F.R.D. 297 (S.D. Miss. 1976). These questions, therefore, must be answered.
[3] In certain situations, Berleme requested that Defendants’ attorney ask or see his attorney. The court in Brown v. Waco Fire & Cas. Corn., 73 F.R.D. 297 (S.D. Miss. 1976) held that Defendants were “entitled to have [plaintiffs] attorney answer any question propounded to him relating to anything contained in the complaint which they do not understand and want amplified and are entitled to have him tell them what proof he has, if any, to support such charges.” 73 F.R.D. at 298-99. If Defendants so desire,~ they may request that Berleme’s attorney be deposed if Berleme is unable to provide the relevant facts of his allegations. See Shelton v. American Motors, 805 F.2d 1323 (8th Cir. 1986).
[4-5] The motion to compel is denied as to the following questions: 1, 2, 5, 6, 11, 12, 13. In question 1, Defendants request the court compel Berleme to answer the question, “Because you don’t trust anybody to make a kind gesture, you’re calling him a liar?” This question is clearly an argumentative question which serves no purpose in providing additional discovery information.²⁸
The motion to compel is also denied as to question 2. Despite Defendants’ assertion that Berleme failed to answer the question as to what led him to believe that he had a right to challenge defendant NPI’s decisions about hiring and firing employees, Berleme did in fact provide information regarding the basis for these claims. Rather than saying “see my lawyer” or refusing to answer the question as asserted by Defendants, Berleme responded forthrightly by stating:
He showed me, in his second meeting, that he was doing something which wasn’t quite legal by offering me to pay me, which he didn’t have to do, and out of what he called a dummy account which I don’t know the law. But I do know—I have a feeling when something is right or wrong. And that was the reason why I took—I did not accept his two thousand, but I took it to my solicitor.
(Berleme Depo. 34:14-15). In addition to the above, Berleme also based his belief, that he could challenge NPI’s decision, on the advice of his attorney. (Berleme Depo. 36:7).
[6] As to question 5, Defendants asked, “With that information, you didn’t give up anything, you didn’t settle the case, you didn’t go out and commit to a certain court of action at the hospital or incur expenses as a result of your conversations with them; isn’t that true?” (Berleme Depo. 41:7-10). Berleme’s counsel objected to the form of the question. Objections to the form of the question are proper objections for deposition, especially if it presumes a predicate. See T.C.R.C.P. 32(d)(3)(B). Rather than filing a motion to compel, counsel could have easily rephrased the question to elicit the information desired.
[7] For question 11, Berleme’s attorney objected to the question based on the attorney-client privilege. Defendants’ attorney, however, failed to elicit information from Berleme’s attorney articulating the basic rationale for asserting the privilege. The court, therefore, is without a record to permit a meaningful evaluation of the privilege claim. The motion to compel for this question, therefore, is denied.
[8] In regards to question 12 on Exhibit 2, Berleme is not required to answer questions which are not within his knowledge. See Besly-Welles Corp. v. Balax, Inc., 43 F.R.D. 368, 371 (E.D. Wis. 1968) (limits exist as to what a witness should be required to do in order to prepare to answer oral questions). Berleme admitted forthrightly that he had not seen Exhibit 2 before. Berleme, therefore, rightfully refused to answer any questions on Exhibit 2 posed by Defendants’ persistent attorney.
Lastly, the court notes that resolving discovery disputes is viewed as an unfortunate use of the court’s resources. In future, this court expects a good faith effort by both parties in resolving discovery disputes before court action.
The parties will bear the burden of their own costs.
It is so ordered.
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THE HOUSE OF REPRESENTATIVES OF AMERICAN SAMOA and MAILO SAOLUAGA T. NUA, in his capacity as a member of and the Speaker of the House of Representatives, Petitioners,
v.
TAUESE P.F. SUNIA, in his capacity as the Governor of American Samoa, and SOTOA MUASAU SAVALI, in his capacity as Secretary of Samoan Affairs, Respondents.
High Court of American Samoa

Trial Division

CA No. 03-98
January 22, 1999
[1] Under the provisions of the Revised Constitution of American Samoa, art. IV, § 4, the Secretary of Samoan Affairs is appointed by the Governor, serves at his pleasure, and there is no confirmation role for the Legislature which would limit these powers.
[2] The federal Constitution and the constitutions of various states limit executive appointments by vesting the power of confirmation in the legislature, but A.S.C.A. § 4.0112 is a statutory attempt to vest such power in the legislature.
[3] The Revised Constitution of American Samoa contemplates a government patterned after the federal tripartite system and, accordingly, the well-established principle of separation of powers applies.
[4] Confirmation of appointments made by the Governor is not an inherent legislative power; it is a specific attribute of the executive power of appointment which, in most cases, is constitutionally delegated to the legislative branch.
[5] The Legislature may not usurp the power of confirmation, and as the Revised Constitution of American Samoa makes no provision for legislative confirmation of gubernatorial appointments to the office of Secretary of Samoan Affairs, that power is attached to the executive power of appointment and is vested solely in the Governor.
[6] Because A.S.C.A. § 4.0112, on its face and without constitutional authorization, offers the Legislature, by its confirmation provisions, a critical means of severely limiting the executive power of appointment, it is unconstitutional to the extent that it applies to the Secretary of Samoan Affairs.
Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.
Counsel: For Plaintiffs, Arthur Ripley, Jr., and Aumoeualogo S. Salanoa

For Respondents, Henry W. Kappel, Assist. Attorney General

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
On January 6, 1998, the House of Representatives of American Samoa and House Speaker Mailo Saoluaga T. Nua (“the House”) filed a complaint alleging that respondent Tauese P.F. Sunia, Governor of American Samoa (“the Governor”) had failed to comply with the statutory requirement that he submit to the Legislature for confirmation his executive appointment for the position of Secretary of Samoan Affairs, respondent Sotoa Muasau Savali (“the Secretary”). Cross motions for summary judgment were filed by the respondents and the petitioners on July 22 and July 23, 1998, respectively, and a hearing was held before this court on September 14, 1998, with counsel present for both parties.²⁹

Facts
The relevant facts in this case are straightforward and uncontested. By stipulation of June 30, 1998, the parties agree that the Governor appointed Sotoa to the position of Secretary of Samoan Affairs early in 1997, but refused to submit his appointment to the Legislature for confirmation. Despite the explicit request of the Speaker of the House that he do so, the Governor has continued to resist confirmation for this post and the Secretary has retained his position throughout the duration of this dispute. Stipulated Statements of Facts, June 30, 1998.
Summary Judgment
Summary judgment is appropriate when there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56(c). As noted above, the facts in this case are undisputed, leaving only the legal issue of whether the Governor was required by law to submit to the Legislature for confirmation his appointment for the position of Secretary of Samoan Affairs. Summary judgment is appropriate in this matter.
Discussion
We agree with the House’s contention that a plain reading of the relevant statutes purports to require legislative confirmation for appointments to the position of Secretary of Samoan Affairs. The Revised Constitution of American Samoa provides that the Secretary “shall be the head of the Department of Local Government.” Rev. Const. Am. Sam., art. IV, § 4. Further, the Department of Local Government is included in that statutory category of executive departments whose directors are “subject to confirmation by the Legislature . . . by a majority vote of the entire membership of each house of the Legislature.” A.S.C.A. §§ 4.0301, 4.0112(a).
[1] The larger issue, however, is whether the statutory confirmation requirements of A.S.C.A. § 4.0112(a) impinge upon the Governor’s constitutional appointment powers, thereby rendering those provisions unconstitutional. The Revised Constitution of American Samoa sets forth the Governor’s appointment power with respect to the Secretary of Samoan Affairs in very simple terms: “The Secretary of Samoan Affairs shall be appointed by the Governor from among the leading registered matais. He shall hold office during the pleasure of the Governor....” Rev. Const. Am. Sam., art. IV, § 4. Nowhere in the document is there any mention of a confirmation role for the Legislature which would limit these otherwise unrestricted powers.
[2] The power of legislative confirmation is a familiar one in the American system of government. The federal Constitution, of course, vests this power in the Senate pursuant to the “advise and consent” clause of Article II. U.S. Const. art. II, § 2, cl. 2. Various states have also followed this model and chosen to limit gubernatorial appointments to state offices in this manner. See Hawaii Const., art. V, § 6, cl. 2 (providing for confirmation of all department heads “by and with the advice and consent of the senate”); Wash. Const., art. XIII, § 1 (establishing procedure for legislative confirmation of all regents, trustees and commissioners of educational, reformatory and penal institutions); Cal. Const., art. 20, § 22 (Director of Alcoholic Beverage Control, serving “at the pleasure of the Governor,” nevertheless subject to confirmation by the Senate). In all of the foregoing examples, the power of confirmation is constitutionally vested in the legislature; in American Samoa, however, the Legislature has attempted to achieve this same result statutorily through the passage of A.S.C.A. § 4.0112.
[3] As a general matter, the Revised Constitution of American Samoa clearly contemplates a government patterned after the federal tripartite system and, accordingly, the well-established principle of separation of powers applies.³⁰ BHP Petroleum South Pacific, Inc., v. American Samoa Government, 2 A.S.R.3d 10 (App. Div. 1998). Under that doctrine, each branch of government has the “affirmative duty of exercising its own peculiar powers for itself, and prohibits the delegation of any of those powers except in cases expressly permitted.” 16 Am Jur 2d—Constitutional Law, § 294 (emphasis added); Reelfoot Lake Levee Dist. v. Dawson, 36 S.W. 1041, 1047 (Tenn. 1896).
In practice, of course, a constitution cannot possibly define and allocate all of the innumerable individual duties and powers that appertain to each branch of government. When a conflict arises between them, the judiciary is are called upon to determine whether a given power has been explicitly delegated by the constitution to one branch and, if not, whether that power is nevertheless inherently the function of either the executive, the legislature or the judiciary. As noted above, the power of appointment to the position of Secretary of Samoan Affairs is constitutionally vested in the Governor. Rev. Const. Am. Sam., art. IV, § 4. Because the power to confirm that appointment is not addressed, however, this court is now left to resolve the ultimate question of whether the process of confirmation is, by its nature, a legislative function which may be exercised even in the absence of an authorizing constitutional provision.
[4] We agree with those courts which have explored the issue in finding that confirmation is not an inherent legislative power. Rather, confirmation should properly be seen as a specific attribute of the executive power of appointment which, in most cases, has been constitutionally delegated to the legislative branch:
The appointive power here involved is executive or administrative in character. The power of the Legislature to consent or confirm executive appointments is also executive or administrative rather than a legislative function. But the Constitution itself transgresses the division of powers provision contained in it and, so far as it does, the separate departments have the power constitutionally granted.
Wittler v. Baumgartner, 144 N.W.2d 62, 71 (Neb. 1966). See Myers v. United States, 272 U.S. 56, 169 (1926) (U.S. Constitution’s delegation of confirmation powers to the Senate is an “express and special grant of such extraordinary powers, not in any way related to or growing out of general Senatorial duties, and in itself a departure from the general plan of our Government”); Luis v. Dennis, 576 F.Supp. 733 (D. V.I. 1983) (confirmation procedures in territorial organic act found to be an expressly delegated executive function resulting in a “permitted invasion by one branch of the government into another”); Walker v. Baker, 196 S.W.2d 324, 328 (Tex. 1946) (although expressly delegated to the Senate by the Constitution, confirmation is a power “ordinarily and intrinsically belonging to [the Executive]”).
[5-6] Similarly, the court in Bradner v. Hammond found confirmation to be an “express grant to the legislative branch of checks on the governor’s power to appoint subordinate executive officers.” 553 P.2d 1, 7 (Alaska 1976). Upon finding that confirmation was directly connected with the executive power of appointment, the Bradner court went on to note that “the separation of powers doctrine requires that the blending of governmental powers will not be inferred in the absence of an express constitutional provision.” Id. at 7. This presents the very situation with which we are faced today, and we concur with the weight of authority in holding that the Legislature may not usurp the power of confirmation. As the Revised Constitution of American Samoa makes no provision for legislative confirmation of gubernatorial appointments to the office of Secretary of Samoan Affairs, that power continues to be attached to the executive power of appointment and remains vested solely in the Governor. On its face and without constitutional authorization, A.S.C.A. § 4.0112 offers the Legislature a critical means of severely limiting the executive power of appointment and, to the extent that it applies to the Secretary of Samoan Affairs,³¹ that statute is hereby declared to be unconstitutional.³²
Conclusion
We note in closing that this court is not the first entity to determine that provisions for legislative confirmation of the Secretary of Samoan Affairs appointment should properly be included in the Constitution rather than added subsequently by statute. As respondents point out in their brief, then-Legislative Counsel Gata E. Gurr reached the same conclusion in 1993 (see memorandum of September 10, 1993, attached as Exhibit B to Respondents’ Motion and Memorandum in Support).
Even more interestingly, however, an attempt was made to include a constitutional confirmation requirement for this position as early as twenty-five years ago. On September 6, 1973, a final draft of the proposed Revised Constitution of American Samoa was submitted to Salanoa S.P. Aumoeualogo, Chairman of the Constitutional Convention. That draft included a seemingly minor amendment to Article IV, Section 4 which, if passed, would have reversed the outcome of this controversy: “In addition to his other powers, the governor is authorized to appoint a Secretary of Samoan Affairs, subject to approval by the Legislature, who shall serve for a four-year term....” Proposed Revised Constitution of American Samoa, submitted by Tuiteleleapaga Napoleone II, Chairman of the Convention Final and Form Committee (emphasis added). For whatever reason, this critical amendment has never been made; until it is, however, the Legislature is not at liberty to infringe upon those powers which remain constitutionally vested in the Governor.
Order
For the foregoing reasons, petitioners’ motion for summary judgment is denied, and respondents’ motion for summary judgment is granted. The Secretary shall retain his position with or without the approval of the Legislature, and we hold that A.S.C.A. § 4.0112 is unconstitutional as applied to the position of Secretary of Samoan Affairs.
It is so ordered.
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PAUL SALOFA, Plaintiff,
v.
SOUTH SEAS STEAMSHIP, INC. and

SAMOA PACIFIC SHIPPING, INC., Defendants.
High Court of American Samoa

Trial Division

CA No. 7-98
April 6, 1999

[1] Under the Carriage of Goods by Sea Act, a carrier has an affirmative duty to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

[2] The plaintiff bears the initial burden of establishing a prima facie case for breach, and does so by establishing that the goods were damaged while in the carrier’s custody or by establishing that the goods were delivered to the carrier in good condition but were found to be damaged upon receipt.
[3] Under the Carriage of Goods by Sea Act, a carrier’s liability is limited to $500 per item, unless the shipper chooses to declare a higher value.
[4] The carrier bears the initial burden of offering prima facie evidence of adequate notice of the limit of liability, which is satisfied by showing that the bill of lading advised the shipper of the liability limitation and of the options for increasing that amount, and including such language in the bill of lading puts the shipper on constructive notice of the liability limitation; actual notice is not required.
[5] Although a shipper is unaware of the bill of lading and so does not have even constructive notice of his options for coverage, he is nevertheless bound by its terms where he has instructed a car dealership to deliver a car on his behalf. That authorization creates a legal agency relationship between the shipper and the dealership, and the latter, authorized to deliver goods of another to a common carrier for transportation, may be treated as having authority to stipulate for and accept the terms of the contract of carriage, and the owner will be presumed to have full knowledge of the contract and will accordingly be bound by its terms.

[6] In the ordinary course of events it is not necessary for the shipper to sign a bill of lading, and he may be bound by its terms and conditions even though he has not signed it.

[7] Where the plaintiff offers evidence giving some credence to his claim of damages, the claim is not frivolous, and an award of attorney’s fees to the defendant would not be appropriate.

Before RICHMOND, Associate Justice, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Katopau T. Ainu’u

For Defendants, Brian M. Thompson

OPINION AND ORDER
On January 12, 1998, plaintiff Paul Salofa (“Salofa”) filed a complaint seeking damages allegedly incurred during the shipment of his truck from Honolulu to American Samoa. Defendants South Seas Steamship, Inc. and Samoa Pacific Shipping, Inc. (collectively “SSS/SPS”) filed a motion for partial summary judgment on February 13, 1998, which was withdrawn at a subsequent hearing. Trial was held on March 1, 1999, with counsel for both parties present.
Facts
The facts of this case are largely uncontested. In December 1996, Salofa purchased a new Dodge Ram Truck in Honolulu, Hawaii, which he desired to be shipped to American Samoa. Salofa made local inquiries regarding shipping options and subsequently instructed the Honolulu dealership, Cutter Dodge, to deliver the truck and make arrangements for shipping.
When the Cutter Dodge representative delivered the truck, a bill of lading was prepared for shipment. That form, Bill of Lading No. A013S2905, was admitted at trial as Exhibit No. 12. The section marked “Shippers Declared Value $”, which on its face includes a reference to the liability limitation clause on the reverse of the form, was left blank. SSS/SPS proceeded to ship the truck, and when it arrived in American Samoa, it was slightly dented on the right side of the truck box, and scratched on the right side step.
A. Liability
[1-2] The court recently analyzed the issue of liability in shipping cases in Tuimavave v. Harbor Maritime, CA No. 30-97, slip op. at 4-6 (Trial Div. November 6, 1998), and we begin with a brief review of that analysis. Under the Carriage of Goods by Sea Act (“COGSA”), applicable by its own terms to American Samoa, the carrier has an affirmative duty to “properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.” 46 U.S.C.S. App. § 1303(2), 1312 (1987 & Supp. 1994). The plaintiff bears the initial burden of establishing a prima facie case for breach, and does so by establishing that the goods were damaged while in the carrier’s custody. Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 351 (2d Cir. 1981) (citation omitted).
The plaintiff meets this burden merely by establishing that the goods were delivered to the carrier in good condition but were nevertheless found to be damaged upon receipt. Vane Trading Co., Inc. v. S.S. “Mette Skou”, 556 F.2d 100, 104 (2d Cir. 1977); United States v. Lykes Bros. Steamship Co., Inc., 511 F.2d 218, 223 (5th Cir. 1975).
In the instant case, the truck presented to SSS/SPS for shipping was brand new, and was delivered directly by the vehicle dealership’s representative. The bill of lading specifically lists the cargo to be shipped as “NEW MOTOR VEHICLE.” Further, that document includes standard verbiage acknowledging the cargo to be in “good order and condition, unless otherwise indicated in this Bill of Lading.” We note that a bill of lading functions as both a contract and a receipt as to the quantity and description of the goods to be shipped. 70 Am. Jur. 2d Shipping § 732 (1987 & Supp. 1993). Moreover, a “clean bill of lading,” one which does not specifically identify any prior damage to the goods to be shipped, will generally suffice as prima facie evidence of delivery in good condition. David R. Webb Co., Inc. v. M/V Henrique Leal, 773 F. Supp. 702, 705 (S.D.N.Y. 1990), citing Madow Co. v. S.S. Liberty Exporter, 569 F.2d 1183, 1185 (2d Cir. 1978). Because the truck was new and the bill of lading failed to indicate any defects prior to shipping, we find by a preponderance of the evidence that the damage occurred during the voyage as a result of negligence by SSS/SPS’s agents.
As Salofa has therefore established a prima facie case for recovery, SSS/SPS now assume the burden of proving that they acted with “due diligence.” Tuimavave, CA No. 30-97, slip op. at 4-6; Roman Crest Foods Inc. v. S.S. Delta Columbia ex S.S. Santa Clara, 574 F. Supp. 440, 441-42 (S.D.N.Y. 1983); Quaker Oats Co. v. H/V Torvanger, 734 F.2d 238, 240-241 (5th Cir. 1984); Puerto Rican­ American Ins. Co. v. Sea-Land Service, 653 F. Supp. 396, 400 (D. P.R. 1986). However, SSS/SPS failed to prove that they acted with due diligence. As in Tuimavave, SSS/SPS instead relied on the statutory limitation of liability established under COGSA and discussed below.
B. Limitations to Damage Award
[3] COGSA provides in relevant part:

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit . . . unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.

46 U.S.C.S. App. § 1304(5). This provision, which limits a carrier’s liability to $500 per item, unless the shipper chooses to declare a higher value, was plainly incorporated into the bill of lading in this case. The section on the front of the form entitled “Shippers Declared Value” offered Salofa the opportunity to declare the full value of his truck (or some lesser amount above $500), and he would therefore have been subject to a correspondingly higher freight charge. That section specifically alerts the shipper to “Carriers Liability Limits,” and it further cross-references Clause 13, the smaller print on the reverse which explains the COGSA liability limitations in detail. Whether unwittingly or not, Salofa left this part of the bill of lading blank and declined the additional coverage, thereby limiting his recovery to the statutory minimum.
This case does, however, present a potential issue of notice. Basic fairness requires that before a carrier can rely on the $500 liability limitation, it must at least afford the shipper the opportunity to choose between accepting the COGSA minimum or paying a higher freight charge to receive a correspondingly higher level of protection. General Electric Co. v. Nediloyd, 817 F.2d 1022, 1028 (2nd Cir. 1987). One element of that fair opportunity is that the carrier give the shipper adequate notice of the limitation of liability. Id. at 1027-28.
[4] The carrier bears the initial burden of offering prima facie evidence of adequate notice, and he may do so simply by showing that the bill of lading advised the shipper of the $500 liability limitation and of his options for increasing that amount. Tuimavave, CA No. 30-97, slip op. at 4-6; Nedi1oyd, 817 F.2d at 1028; Brown & Root, Inc. v. H/V Peisander, 648 F.2d 415, 424 (5th Cir. 1981). Including such language in the bill of lading puts the shipper on constructive notice of the liability limitation; actual notice is not required. Carmen Tool, 871 F.2d at 900-901.
[5] The bill of lading in this case did indeed include the necessary warnings, and SSS/SPS have therefore successfully met their initial burden in this regard. The matter is further complicated, however, by the fact that Salofa himself was completely unaware of the existence of the bill of lading, and therefore was not personally given even constructive notice of his options for coverage. Nevertheless, Salofa did instruct the Cutter Dodge dealership to deliver the car on his behalf, and that authorization created a legal agency relationship between Salofa and Cutter Dodge for these purposes. In most circumstances, “a person authorized to deliver goods of another to a common carrier for transportation may be treated by the latter as having authority to stipulate for and accept the terms of the contract of carriage.” 14 Am. Jur. 2d Carriers § 551 (1964 & Supp. 1998). The owner will be presumed to have full knowledge of the contract and will accordingly be bound by its terms. Id.
[6] There is nothing atypical about the arrangement here which would cause us to believe that Cutter Dodge was not qualified to assume the role of agent in this case. Presumably, a vehicle dealership would have considerable experience with the shipping of vehicles, and would therefore be expected have some understanding of the rules and procedures involved with this process. Salofa spoke with the Cutter Dodge representative who delivered his vehicle, and that the representative told him that he had never signed any documents in the course of making the arrangements for shipping. Even if this hearsay evidence is true, however, we note that “in the ordinary course of events it is not necessary for the shipper to sign a bill of lading, and he may be bound by its terms and conditions even though he has not signed it.” 13 Am. Jur. 2d Carriers §276 (1964 & Supp. 1998). Having failed to refute SSS/SPS’s evidence of fair notice as provided to his agent, Salofa’s damages will be limited to $500 as provided by COGSA and the bill of lading.
C. Damages
Because Salofa’s damages are limited to $500, we need not precisely review the measure of actual damages in this case. Those damages by all estimates exceeded the $500 ceiling, and Salofa is therefore entitled to recovery of the full $500 but no more.
D. Attorney’s Fees
[7] SSS/SPS have requested that the court award them attorney’s fees in this matter, arguing that Salofa’s case—and particularly his request for exorbitant damages—was frivolous. Although we are skeptical of Salofa’s need to replace the entire truck bed, he did manage to offer evidence to this effect. Given this showing, which lends at least some credence to the viability of his claims, an award of attorney’s fees would not be appropriate.
Order
For the foregoing reasons, Salofa shall recover from SSS/SPS in the amount of $500.
It is so ordered.

**********

VIRGINIA L. GIBBONS, Plaintiff,
v.
AMERICAN SAMOA GOVERNMENT,

and ROES 1 through 10, inclusive, Defendants.
High Court of American Samoa

Trial Division

CA No. 128-93
April 26, 1999

[1] The doctrine of governmental immunity, which at common law shielded the king from imputation of wrongdoing, has been supplanted in American Samoa by the Government Tort Liability Act, A.S.C.A.

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