United States District Court, S.D. New York
IN RE APPLICATION OF APOSTOLOS MANGOURAS TO CONDUCT DISCOVERY FOR USE IN A FOREIGN PROCEEDING PURSUANT TO 28 U.S.C. 1782
MEMORANDUM AND ORDER
KEVIN CASTEL UNITED STATES DISTRICT JUDGE.
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.)
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.
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
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).
reasons that will be explained, Mangouras's application
is granted. BACKGROUND.
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.)
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).
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.
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.)
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.
respondents have made extensive submissions in opposition to
Mangouras's application. This Court heard oral argument
from the parties on October 18, 2017.
Mangouras's Intention to Submit a Querella
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.)
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.
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. ¶
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.)
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. ¶ 45.) These materials