Despite Dr M’s insistence, DOJ maintains non-involvement in Equanimity handover

The DOJ’s statement appears to contradict statements issued by various Malaysian government officials including Prime Minister Dr Mahathir Mohamad, Attorney-General Tommy Thomas, and de facto law minister Liew Vui Keong, the latter of whom told the Dewan Rakyat that the US had agreed to the transfer of custody.

(Mkini) – The United States’ Department of Justice (DOJ) has reiterated that it had no role in the transferring of custody of the superyacht Equanimity to Malaysian authorities.

It notified the California Central District Court of this, this morning (Malaysian time), to update the court regarding developments on the yacht’s transfer.

“In recent correspondence with the government, claimants (Equanimity (Cayman) Ltd) have alleged that the US government co-orchestrated or assisted in the handover of the yacht from Indonesia to Malaysia.

“However, other than the actions outlined in Paragraph 7 above – both of which were necessary and appropriate to maintain the safety and security of the yacht – the US government took no part in Indonesia’s transferring the yacht to Malaysia,” it said in its filing.

Malaysiakini had sighted a copy of the court filing.

In Paragraph 7, the DOJ said it told the US government-appointed crew aboard the Equanimity to follow the instructions of Indonesian authorities when their management company asked the US government whether it should do so, as the yacht was being sailed to Batam Island to facilitate the transfer.

This is in accordance to its June 15 advice to the management that it should obey the Indonesian government’s directives.

In Paragraph 7, the DOJ also said it made sure to maintain the contract with Wilson Yacht Management (WYM) until August 7 when it learned that Malaysian authorities are taking over the yacht’s upkeep, so that it would never be left uncrewed and unattended.

Plans were for US sale

The DOJ’s statement appears to contradict statements issued by various Malaysian government officials including Prime Minister Dr Mahathir Mohamad, Attorney-General Tommy Thomas, and de facto law minister Liew Vui Keong, the latter of whom told the Dewan Rakyat that the US had agreed to the transfer of custody.

It also appears to back the claim by Equanimity Ltd lawyers that Malaysia and Indonesia had usurped the authority of various courts, including the California Central District Court.

In today’s court filing, the DOJ also listed steps that it had taken to comply with the court’s May 15 order granting protective custody over the yacht for purposes of bringing it back to US waters to facilitate an interlocutory sale.

Although Equanimity Ltd had previously opposed a US sale in favour of a Mediterranean sale, the DOJ said Equanimity Ltd is now amenable to having the yacht sold in the US at the Fort Lauderdale International Boat Show following mediation at the US Court of Appeals of the Ninth Circuit.

However, Indonesian authorities never transferred custody over the yacht to either Equanimity Ltd – despite an order from the South Jakarta District Court on April 17 to do so – or the US government.

The DOJ claimed that Equanimity Ltd’s lawyers had authorised the US government to take custody of the yacht directly from Indonesia on June 15, but refused to provide written confirmation of its consent when Indonesian authorities asked DOJ for it.

In the meantime, the US government had been making preparations to bring the yacht to the US since June while retaining the management company hired by Equanimity Ltd, namely WYM.

It said WYM began assembling a crew in Bali on or about July 6 to take custody of the yacht, and began to draft a plans to sail the yacht on July 11, upon the US government’s instruction.

The plan was implemented on the same day on July 11 in coordination with the US government, including refuelling the yacht in preparation for the journey, obtaining the necessary visas and other paperwork, and obtaining approval on July 16 to pay outstanding wages owed to the previous crew.

With US government approval, WYM also paid a US marine services company to allow the Equanimity to dock temporarily in Guam, and obtained a certificate from the company on July 27 confirming that the yacht is cleared to dock in Guam on or after August 8.

The DOJ said the US government had learned that Indonesia had directed the yacht to sail to a location near the Indonesia-Malaysia maritime border on August 1, and then informed Equanimity Ltd lawyers of this.

It was only later that they both learned that the Equanimity was being handed over to Malaysian authorities and subsequently brought to Pulau Indah, near Port Klang, on August 7.

Custody of KL court

The Equanimity is currently under the custody of the Kuala Lumpur High Court. 1MDB has filed a suit claiming ownership over the vessel.
Its lawyers said the suit is expected to take six to nine months to resolve, while the attorney-general said it could be sold by the end of the year if no one challenges 1MDB’s suit.

The case was mentioned in KL court yesterday, and is slated for its next case management on Aug 29. As of Thursday, no one has filed a challenge against 1MDB’s claim.

The Malaysian government intends to sell the vessel once 1MDB obtains the court’s declaration that it is the yacht’s owner.

The DOJ had claimed that the financier Low Taek Jho had syphoned over US$250 million from 1MDB to purchase the yacht, and 1MDB had cited those allegations in the Kuala Lumpur High Court.

Meanwhile, at the US Court of Appeals of the Ninth Circuit where Equanimity Ltd’s lawyers had been challenging the California Court’s May 15protective custody order, the DOJ had applied today for the proceedings to be suspended.

“So long as the Malaysian authorities maintain custody and control of the Equanimity, it is impossible to carry out the district court’s order appointing the government as custodian and ordering claimants to surrender control of the yacht to the government.

“It follows that any appeal over the district court’s order – such as the present appeal – is unripe for adjudication,” it said according to separate court documents sighted by Malaysiakini.

The DOJ promised the appellate court quarterly status reports about the Equanimity’s legal status and location, and alert the court within three days of any significant developments on these issues.

The application came just as the appellate court granted Equanimity Ltd’s request to extend several deadlines to file various documents to Aug 24.

The request had been made due to the transfer of the yacht’s custody to Malaysian authorities, to allow time for Equanimity Ltd lawyers a weeks’ time to study DOJ’s update to the California court.

The DOJ had also sought to suspend proceedings at the California court on Aug 7. To date, there is no decision on DOJ’s application.