NEW YORK FEDERAL COURT GRANTS LEAVE TO GREEK CAPTAIN TO CONDUCT DISCOVERY FOR USE IN POST-TRIAL COLLATERAL PROCEEDINGS IN SPAIN

New York Federal Court Grants Leave to Greek Captain to Conduct Discovery for Use in Post-Trial Collateral Proceedings in Spain

By: William L. Pardue and Jasmyn M. Soldatos

In re Apostolos Mangouras to Conduct Discovery for Use In A Foreign Proceeding Pursuant to 28 U.S.C. § 1782, 2017 U.S. Dist. LEXIS 179534 * (S.D.N.Y. Oct. 30, 2017); In re Apostolos Mangouras to Conduct Discovery for Use In A Foreign Proceeding Pursuant to 28 U.S.C. § 1782, 2017 U.S. Dist. WL 4990655 (S.D.N.Y. Oct. 30, 2017).When M/T PRESTIGE oil tanker (the “Vessel”) sank off the coast of Spain in 2002, Spanish authorities commenced criminal proceedings for environmental crimes against its Greek captain, Apostolos Mangouras (“Mangouras”).  After years of investigations, protracted litigation and other legal proceedings in Spain (the “Spanish litigation”), as well as a concurrent civil action in the Southern District of New York (the “U.S. litigation”), a Spanish trial court found Mangouras not guilty of environmental crimes. Three years later, in 2016, the Spanish Supreme Court reversed the trial court’s decision and convicted Mangouras of gross negligence. Following the Spanish Supreme Court’s conviction, Mangouras filed an application to vacate the judgment against him; it was denied.  His appeal to the Spanish Constitutional Court in March 2017 was also denied.With the Spanish criminal investigation of Mangouras still underway, in 2009 the Spanish government (“Spain”) commenced the U.S. litigation against the American Bureau of Shipping (“ABS”), the Vessel’s classification society. Spain alleged that ABS recklessly certified the Vessel as seaworthy and sought a billion dollars in damages.  The New York district court granted ABS’s motion for summary judgment on grounds that it owed no legal duty to Spain; and in 2012, the Second Circuit affirmed. Thereafter, in 2013, Mangouras and his employer, Mare Shipping, filed an application with this court seeking to conduct discovery for use in Mangouras’ ongoing criminal trial in Spain (the “2013 Discovery Request”) (In re Application of Mare Shipping Inc., 13-mc-238 (PKC)); however, the court denied the application without prejudice, holding that due to the ongoing Spanish litigation, any discovery would need to be propounded through the Spanish courts. Earlier this year, Mangouras again requested authorization from this court to allow him to conduct discovery of certain witnesses and documents from his previous trials for use in two post-trial collateral proceedings in Europe (the “2017 Discovery Request”). This time, the court granted Mangouras’ application (In re Apostolos Mangouras to Conduct Discovery for Use In A Foreign Proceeding Pursuant to 28 U.S.C. § 1782, 2017 U.S. Dist. LEXIS 179534 * (S.D.N.Y. Oct. 30, 2017); In re Apostolos Mangouras to Conduct Discovery for Use In A Foreign Proceeding Pursuant to 28 U.S.C. § 1782, 2017 U.S. Dist. WL 4990655 (S.D.N.Y. Oct. 30, 2017)).This case follows more than a decade-long series of investigations and criminal and civil maneuverings in both Spain and the United States, all centered around the Vessel and, in particular, its structural soundness. In 2002, while the Vessel was approaching Gibraltar, it encountered a violent storm.  The captain sought refuge in a port in Spain, but was denied by Spanish authorities, who turned the Vessel away and sent it back out to sea during the storm. As a result, the distressed Vessel broke in two and sank 27 miles off the Spanish coast, releasing approximately 77,000 metric tons of heavy crude bunker oil into Spanish coastal waters.In 2013, the Spanish Court of First Instance (trial court) found Mangouras not guilty of criminal environmental offenses, citing factual findings that he was unaware of the Vessel’s structural defects. Three years later, the Spanish Supreme Court reversed the trial court’s ruling, and instead convicted Mangouras of gross negligence. With the Spanish and U.S. litigations concluded, Mangouras now sought discovery due to alleged conflicting testimony by three witnesses in his Spanish criminal proceedings, which testimony was in direct conflict with statements the same three witnesses made in the U.S. litigation. All three witnesses had a direct or indirect connection to the Vessel prior to its demise.The issue of the testimony of the first witness, a former master of the Vessel, concerned his statements on whether he sent notice to ABS for immediate inspection of the Vessel three months prior to its sinking. In the U.S. litigation, he declared under oath that he gave notice via fax. In the Spanish criminal proceedings, he testified that he gave no such notice to ABS. He also gave further conflicting testimony in the Spanish criminal proceedings whether he or his second engineer signed the notice to ABS.The second witness, an expert hired by Spain to opine on vessel classification, filed an expert report in the U.S. litigation using exhibits he had removed from his former employer’s company files. He testified under oath that he feared criminal prosecution in Spain unless he agreed to testify for the Spanish government in the U.S. litigation. More importantly, however, was the fact that his expert opinion and attached exhibits were provided to counsel in the U.S. litigation, but were never disclosed to Spanish prosecutors in the ongoing Spanish criminal proceedings.Finally, the third witness, the former pilot of the Vessel shortly before it sank, testified in Mangouras’ Spanish criminal proceedings that the Vessel showed no signs of corrosion or engine irregularities.  In the U.S. litigation, he testified that the Vessel was in decay and in deplorable physical condition. He also stated that his comments about the Vessel’s condition were drawn from statements of his crewmembers, and that he personally had not inspected the Vessel.Mangouras filed his application for the 2017 Discovery Request seeking leave of this court to conduct discovery of all three witnesses and other involved parties, all of whom reside within the jurisdiction of the court in New York. Specifically, Mangouras seeks discovery of the foregoing parties to be used in a post-trial collateral criminal complaint (Querella Criminal) he has filed in Spain. Additionally, Mangouras filed a sealed application with the European Court of Human Rights appealing his conviction in the Spanish courts for violating his right to a fair trial, as guaranteed by the European Convention on Human Rights. To support his application, he seeks materials from a fourth witness called by Spain in the U.S. litigation—a marine engineer and expert who testified as to the structural conditions of the Vessel, including underwater inspection of the wreckage and thickness measurements of the sideshell plating.  His testimony as to the thickness measurements goes directly to the central issue in the Spanish criminal proceedings: the structural conditions of the Vessel, and ultimately Mangouras’ conviction. Mangouras asserted that the expert’s report was never disclosed to him or his counsel despite numerous requests and judicial orders to do so. Rather, during the Spanish criminal proceedings, Spain’s counsel disclosed for the first time to the court several DVDs of the underwater inspection and only a handful of other documents.  Because the Spanish government never disclosed to Mangouras or his counsel the relevant evidence concerning the Vessel’s condition and thickness measurements, such withholding of evidence violated Mangouras’ right to a fair trial, for which he now seeks redress.Section 1782 of the United States Code allows parties involved in foreign or international litigation assistance to gather proof in the U.S. through federal courts, while at the same time encouraging foreign countries to provide reciprocal assistance to U.S. courts. Under Section 1782, a district court may order a person in its jurisdiction to give testimony or produce documents for use in a proceeding in a foreign tribunal.An application filed with a district court for that purpose will succeed if it meets three mandatory requirements: (1) the person from whom discovery is sought resides in the district, (2) the discovery is for use in a foreign proceeding, and (3) application is made by a foreign tribunal or any interested person. In addition, four “discretionary” factors are also weighed by the court, including (i) whether the person seeking discovery is a participant in the foreign proceeding, (ii) the receptivity of the foreign tribunal to the U.S. district court’s judicial assistance, (iii) whether a party is using a U.S. court to circumvent a foreign tribunal’s proof-gathering restrictions, and (iv) whether the request is burdensome.In his 2013 Discovery Request, Mangouras sought discovery during his criminal proceedings in Spain. The U.S. federal court denied the 2013 Discovery without prejudice at that time for failure to meet all requirements of Section 1782.  Now, in his second request and after extensive analysis of his 2017 Discovery Request, particularly in regard to the two collateral proceedings now pending in Europe, the court concluded that the “mandatory” and “discretionary” factors set forth in Section 1782 have been met, and that Mangouras may proceed with discovery in the U.S.