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In re Application of Apostolos Mangouras to Conduct Discovery

United States District Court, S.D. New York

October 30, 2017




         Petitioner Apostolos Mangouras seeks an Order permitting him to conduct discovery for use in foreign proceedings pursuant to 28 U.S.C. § 1782. Mangouras was the captain of a Bahamian-flagged tanker, the Prestige, which spilled up to 76, 972 metric tons of fuel oil when it sank near the coast of Spain in November 2002. (See, e.g., 7/8/13 Soroa Dec. ¶¶ 12-13.)

         Numerous legal proceedings followed the sinking of the Prestige, including a civil action in this District, Reino de Espana v. Am. Bureau of Shipping, Inc., et al., 03 Civ. 3573 (LTS) (the “ABS Action”), and criminal proceedings against Mangouras in Spain. A trial court in Spain found Mangouras not guilty of environmental crimes, which the Spanish Supreme Court reversed, and issued a finding of guilt.

         Mangouras now seeks discovery for use in two categories of post-trial proceedings. In Spain, he anticipates filing one or more “Querella Criminal, ” which is an application that a private citizen may bring to commence criminal proceedings. The anticipated Querella Criminal would assert that three trial witnesses gave false testimony, and that their testimony in Spain was in direct conflict with statements that they made in the ABS Action in this District. Separately, Mangouras has filed a sealed application with the European Court of Human Rights (the “Court of Human Rights”), in which he contends that the Spanish criminal proceedings breached his right to a fair trial, as guaranteed by the European Convention on Human Rights.

         While the Spanish criminal proceedings were pending, this Court denied a section 1782 application brought by Mangouras and his employer, Mare Shipping Inc. (“Mare”). In re Mare Shipping Co., 2013 WL 5761104 (S.D.N.Y. Oct. 23, 2013). The Second Circuit affirmed, but emphasized that Mangouras and Mare could bring a future section 1782 application if circumstances changed. Mare Shipping Inc. v. Squire Sanders (US) LLP, 574 Fed.App'x 6, 8-9 (2d Cir. 2014) (summary order).

         For reasons that will be explained, Mangouras's application is granted. BACKGROUND.

         A. Procedural History.

         As noted, Mangouras was the captain of the Prestige, an oil tanker that sank near the coast of Spain on November 13, 2002. (6/6/17 Docampo Dec. ¶ 3.) The vessel sank in severe weather approximately 27 miles off the coast of Spain, while heading toward Gibraltar. (7/8/13 Soroa Dec. ¶ 12.) Mangouras sought and was denied a port of refuge in Spain prior to the Prestige's sinking. (Id. ¶ 13.) The Prestige released approximately 76, 972 metric tons of oil into Spain's coastal waters. (Id.)

         Numerous legal proceedings followed. In this District, the Kingdom of Spain commenced a civil action against ABS, which acted as the sailing vessel's “Classification Society.” (Id. ¶¶ 9, 17.) Respondents Brian Starer, Esq., and his respective law firms, Holland & Knight LLP and Squire Sanders, LLP, were counsel to Spain in the ABS Action. (Id. ¶ 17.) Spain alleged that ABS and its subsidiaries recklessly certified the Prestige as seaworthy, and sought $1 billion in damages. See Reino de Espana v. Am. Bureau of Shipping, Inc., 03 Civ. 3573 (LTS). Applying United States maritime law, Judge Swain concluded that ABS owed no legal duty to Spain, and granted ABS's motion for summary judgment. 729 F.Supp.2d 635 (S.D.N.Y. 2010). The Second Circuit affirmed. 691 F.3d 461 (2d Cir. 2012).

         In Spain, civil claims were brought against Mare, and Mangouras was charged with criminal environmental offenses. (7/8/13 Soroa Dec. ¶¶ 18-19.) Spain's criminal investigation of Mangouras lasted approximately ten years, and his 2013 criminal trial lasted approximately nine months. (6/6/17 Docampo Dec. ¶ 4.) Mangouras was tried in La Coruna, Spain before a tribunal, the Court of First Instance, which issued a written opinion in November 2013 finding him not guilty of all but one charge, and making factual findings that Mangouras was unaware of the vessel's structural defects. (Id.) Subsequently, in a judgment published on January 26, 2016, the Spanish Supreme Court reversed, and found Mangouras guilty of gross negligence. (Id. ¶ 7.) The Spanish Supreme Court denied Mangouras's application to vacate the judgment, and the Spanish Constitutional Court denied his appeal in March 2017. (Id.)

         According to Mangouras's legal counsel in Spain, the structural soundness of the Prestige was “a central issue in the trial.” (7/8/13 Soroa Dec. ¶ 18.) As his counsel explained in 2013, while the trial was underway:

For Mangouras to be convicted of a crime against the environment, the Court will need to be satisfied beyond a reasonable doubt that the vessel was in poor condition, that Mangouras knew of the vessel's poor condition, and that the vessel's poor condition caused the damage. It is therefore crucial to ascertain whether the vessel was, in fact, in poor condition.

(Id. ¶ 22.)

         This Court previously denied a section 1782 application brought by Mangouras. In October 2013, Mangouras and Mare sought discovery for use in the La Coruna trial proceedings. In re Application of Mare Shipping Inc., 13-mc-238 (PKC). The undersigned concluded that this Court had the authority to grant the application pursuant to section 1782(a), but that the applicants did not satisfy the discretionary factors set forth in Intel Corp. v. Advanced Micro Devices, 542 U.S. 241 (2004). See 2013 WL 5761104. Specifically, this Court concluded that because proceedings in Spain were ongoing, the applicants could seek discovery directly from their adversaries through the Spanish tribunal. Id. at *4-5. The United States Court of Appeals for the Second Circuit affirmed, but “note[d] that the various foreign actions cited by plaintiffs as potential avenues for using the sought discovery are continually in flux. The District Court's judgment should in no way be interpreted to bar plaintiffs from renewing the motion if appropriate circumstances arise in the future.” Mare Shipping Inc., 574 Fed.App'x at 8.

         The respondents have made extensive submissions in opposition to Mangouras's application. This Court heard oral argument from the parties on October 18, 2017.

         B. Mangouras's Intention to Submit a Querella Criminal.

         Mangouras states that his section 1782 application seeks materials for use in drafting a Querella Criminal for submission in Spain. (8/8/17 Docampo Dec. ¶ 1.) As described by one of Mangouras's Spanish attorneys, a private individual may submit a Querella Criminal to a public prosecutor, setting forth accusations of criminal conduct and making the complainant a party to the proceedings. (Id. ¶ 8.) The Querella Criminal must contain a description of the facts constituting the alleged crime. (Id. ¶ 9.) An instructing judge presides over any ensuing investigation. (Id.) At the investigation's conclusion, if the prosecutor or private accuser concludes that there is evidence to support a crime, trial will commence. (Id. ¶ 14.)

         In explaining the basis of his anticipated Querella Criminal, Mangouras asserts that three witnesses at his trial gave false testimony, and that their statements in Spain were in direct contradiction to statements that they made in the ABS Action. According to Mangouras's counsel in Spain, trial witnesses George Alezivos, Jens Jorgen Thuesen and Captain Efstratios Kostazos gave testimony concerning the condition of the Prestige “that makes it blatant that they were lying in the U.S. action and/or in the Spanish proceedings.” (Id. ¶ 5.) Mangouras's section 1782 application seeks discovery from Spain's counsel in the ABS Action: Starer, and his respective law firms, Squire Patton Boggs LLP (“Squire Patton”) and Holland & Knight LLP (“Holland & Knight”), and asserts that they may have information concerning the allegedly false testimony of the three witnesses.

         Kostazos, who acted as “Master” of the Prestige from June 7, 2002 to September 13, 2002, submitted a declaration in the ABS Action dated October 7, 2009, concerning a one-page fax that he sent on August 15, 2002, approximately three months before the Prestige sank. (8/8/13 Soroa Dec. ¶ 26.) In the ABS Action, Kostazos described an inspection of the vessel's interior, steel structure, and engine room, and stated that the inspection prompted him to send a fax to the ABS explaining that an immediate inspection should commence. (Id. ¶ 27.) He specifically stated that he “sent a copy” of a fax describing the Prestige's condition to the ABS and a Greek entity. (Id.) When Kostazos testified in the Spanish criminal action, however, he repeatedly stated that he never sent a fax to ABS, that the documents annexed to his declaration were from his own files, and stated that his testimony in Spain was accurate and that the declaration in the ABS Action had not been prepared according to his instructions. (Id. ¶ 29.) In addition, Kostazos testified in Spain that the fax was two pages in length, as opposed to one page, and signed not by Kostazos but by the vessel's Second Engineer. (Id. ¶ 30.)

         Alevizos was retained as an expert witness about vessel classification for Spain in the ABS Action, in which he filed an expert report. (Id. ¶ 38.) Alevizos has stated that he feared criminal prosecution in Spain unless he agreed to testify as an expert in the ABS Action. (Id. ¶ 39.) His expert report in the ABS Action annexed numerous files from Universe Maritime, his former employer, which Alevizos stated he had removed from company files. (Id. ¶ 38.) Universe Maritime apparently had some type of unspecified supervision over the Prestige, and Alevizos testified in Mangouras's criminal trial in Spain. (Id. ¶¶ 37-38.) In the Spanish criminal trial, Alevizos testified that he dictated his expert report and did not see all of the attached exhibits. (Id. ¶ 38.) Mangouras also asserts that the documents annexed to Alevizos's report were provided to counsel in the ABS Action, but that they were not delivered to Spanish prosecutors. (Id. ¶ 41.)

         Thuesen was a pilot who sailed the Prestige at the end of October 2002, shortly before its sinking. (Id. ¶ 42.) In response to Letters Rogatory issued in Spanish proceedings, he stated in May 2004 that he observed no signs of corrosion in the vessel or irregularities in its engine performance. (Id. ¶ 43.) By contrast, in July 2005, Thuesen submitted a declaration for use in the ABS Action, describing the Prestige as in “a state of apparent decay, ” and “in very bad physical condition.” (Id. ¶ 44.) In his Spain testimony of January 2013, Thuesen testified that his July 2005 declaration “was almost entirely based on documents shown to him by Spain's New York counsel, Mr. Starer.” (Id. ΒΆ 45.) These materials ...

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