Giusseppe Bottiglieri Shipping Company S.P.A. et al v. United States Of America et al
Filing
10
Order re: 1 Petition to Perpetuate Testimony filed by Giusseppe Bottiglieri Shipping Company S.P.A.. Petitioner's Motion to Perpetuate Testimony Pursuant to Rule 27 is DENIED. Signed by Magistrate Judge Sonja F. Bivins on 3/9/2012. (sdb)
IN THE UNITED STATE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
IN RE: GIUSEPPE BOTTIGLIERI
SHIPPING COMPANY S.P.A.
)
)
MISC. NO. 12-00003-WS-B
ORDER
This action is before the Court on Petitioner Giuseppe
Bottiglieri
for
an
Shipping
Order
Company
Authorizing
S.P.A.’s
Depositions
Emergency
to
Petition
Perpetuate
the
Testimony of the Crew of the M/V Bottiglieri Challenger
(Doc. 1), supporting briefs and the Government’s responses
in opposition.
A conference was conducted by telephone on
March 6, 2012, with counsel for the parties attending by
telephone. Based upon a review of the parties’ briefs, and
the
representations
of
counsel
at
the
conference,
the
undersigned finds that the motion is due to be DENIED.
I. Background Facts
The M/V Bottiglieri Challenger (hereinafter “Vessel”)
is
a
Vessel
Bottiglieri
Italy1.
owned
Shipping
and
operated
Company
by
S.P.A.,
Petitioner
and
Giuseppe
registered
in
On January 24, 2012, the Vessel was in the Port of
1 The
complete background facts are set forth in Chief
Judge Steele’s Order dated February 17, 2012 in Giuseppe
Bottiglieri Shipping Company S.P.A., et al. v United
States, et al., Civil Action No. 12-00059-WS-B, (Doc. 32).
Mobile to unload a cargo of steel plates. The following
day, the U.S. Coast Guard boarded the Vessel for eight
hours, during which time they interviewed the ship’s master
and crewmembers concerning possible violations of the Act
to Prevent Pollution from Ships, 33 U.S.C. Sections 1901 et
seq. (“APPS”). (Docs. 1, 7).
On January 26, 2012, the Coast Guard delivered to the
Vessel a letter setting forth its determination that “there
is
reasonable
cause
to
believe
that
the
[Vessel],
its
owner, operator, person in charge, or crew member(s) may be
subject to a fine for civil penalty.” The Coast Guard also
notified the Vessel that it had requested that the United
States Customs and Border Protection (“CBP”) withhold the
Vessel’s departure clearance to leave the Port of Mobile,
and CBP had done so. Petitioner engaged in negotiations
with the Coast Guard for a Surety Agreement so that the
Vessel
could
obtain
departure
clearance.
When
these
negotiations stalled, Petitioner initiated a legal action
in
this
Court.
See
Giuseppe
Bottiglieri
Shipping
Co.
S.P.A., Civil Action No. 12-00059-WS-B. In an Order dated
February 17, 2012, Chief Judge Steele dismissed the action
In the Order, Chief Judge Steele dismissed the action for
lack of jurisdiction and/or a private right of action.
(Id. at Doc. 32)
2
for lack of jurisdiction and/or a private right of action.
(Id. at Doc. 32).
On February 9, 2012, a Criminal Complaint and Arrest
Warrant
were
issued
for
Vito
La
Forgia,
(the
Vessel’s
chief engineer). See United States v. Vito La Forgia, Mag.
No.
12-00014-B.
provided
false
The
Complaint
statements
to
alleged
the
that
U.S.
La
Coast
Forgia
Guard
on
January 25, 2012, in violation of 18 U.S.C. Section 1519 2 .
La
Forgia
was
arrested
and
had
an
before the Court on February 9, 2012.
initial
appearance
He was allowed to
remain free on conditions, including the surrender of his
passport,
and
travel
was
restricted
to
this
judicial
district. (Id.) Material witness warrants were also issued
for seven other crewmembers (Master Mario Salierno, Fourth
Engineer Papy Paalisbo Bucol, Electrician Stephen Carrillo
Mondigo,
Fitter
Donald
Dinulma
Tidang,
Third
Engineer
Geoffrey Rasay Bagcal, Second Engineer Mauro Serra, and
Oiler Rey Dato-On Arebejo). 3
appeared
in
Court
on
They too were arrested and
February
10,
2012.
They
were
to the Compliant, La Forgia obstructed justice by
failing to accurately record in the Vessel’s Oil Record
Book as required for discharges of oil-contaminated
machinery space waste, in violation of 18 U.S.C. § 1519.
3 During the hearing, counsel for the government advised that
Petitioner had notified six of the crew members that the
company would no longer be providing wages and lodging for
them and had made arrangements to have them returned to
their home country of the Philippines.
2 According
3
released on conditions, including the surrender of their
passports,
and
travel
departure clearance.
On
February
Verified
was
restricted
until
receipt
of
(Id.)
10,
2012,
Emergency
Petitioner
Motion
for
filed
an
the
Order
instant
Authorizing
Depositions to Perpetuate the Testimony of the Crew of the
M/V Bottiglieri Challenger Pursuant to Fed. R. Civ. P. 27.
(Doc. 1).
Petitioner sought an order authorizing the
depositions of twenty-eight (28) current or former foreign
crew members of the Vessel.
As grounds for the motion,
Petitioner alleged that the witnesses’ testimony needed to
be
preserved
for
use
in
future
civil
or
criminal
proceedings the United States government has stated it will
commence against the Petitioner.
According to Petitioner, each of the crewmembers is a
foreign national and is free to leave the United States at
any
time.
Petitioner
further
alleges
that
each
of
the
crewmembers worked and lived aboard the Vessel in the weeks
and months leading up to the Coast Guard’s January 2012
inspection
and
knowledge
concerning
programs,
would
required
be
the
expected
to
provide
Petitioner’s
practices
and
first
rules,
procedures,
as
hand
training
well
as
first hand, eye witness account of shipboard practices and
crewmember actions, and information regarding the operation
4
of
the
deck
pollution
department,
control
engine
equipment,
10,
supplemental
2012,
the Vessel’s
its
oily
water
In a hearing conducted on
Petitioner
motion
and
including
separator and incinerator.
February
room
directed
to
provides
which
was
file
a
detailed
information
regarding the facts that the Petitioner seeks to establish
through the proposed testimony and the expected testimony
of each deponent.
In
response,
Memorandum
(Doc.
Petitioner
5)
on
filed
February
13,
a
Supplemental
2012.
In
the
Supplemental Memorandum, Petitioner identifies twenty (20)
crewmembers
whose
testimony
it
is
seeking
to
preserve.
According to Petitioner, twelve (12) of the crewmembers,
namely Michele D’ Ambrosio, Anthony Barredo Gaston, Massimo
Olivari,
Filippo
D’Amico,
Bobby
Spampinato,
Bangcava
Federico
Pido,
Raffaele
Iozia,
Giuseppe
Landolfi,
Edwin
Malingin Inoc, Romeo Jr. Achas Salcedo, Arne Babor Ansino
and Micheal Cabrito Santiago, joined the Vessel after it
docked
in
Mobile
and
inspection of the Vessel.
Chaika,
Judy
Edep
the
Coast
Guard
conducted
the
The remaining crewmembers, Yuriy
Gugma,
Rex
Galisim
Rubino,
Leoner
Natividad Maghinang, Armando Mosquito Payosing, Joel Aquino
Gempero, James Sipliciano Galzote and Conrado Jr. Digal,
were
all
on
the
Vessel
when
5
it
docked
in
Mobile
under
contracts commencing November 2011 or earlier. (Doc. 5).
Petitioner asserts that each of these individuals will be
able
to
provide
first
hand
knowledge
about
Petitioner’s
strict adherence to MARPOL, Petitioner’s policies regarding
pollution and safety, Petitioner’s procedures for reporting
pollution
events
and
company’s
pollution
for
reporting
policies,
violations
the
training
Petitioner’s
of
and
meetings regarding pollution and safety, and the lack of
any
knowledge
regarding
violations
of
the
company’s
environmental policies or regulations or any international
law.
In its response in opposition to Petitioner’s motion,
the Government argues that Petitioner’s attempt to use Rule
27 is improper because this is a criminal investigation,
and
Petitioner
should
not
be
allowed
to
circumvent
the
rules and statutes that govern civil cases. (Doc. 7). The
Government further contends that to the extent Petitioner
seeks to preserve the testimony of a witness who may be
beyond
the
jurisdiction
of
the
Court
when
his
or
her
testimony is needed, 18 U.S.C. § 3144 provides a procedure
for
the
arrest
of
a
material
witness
in
a
criminal
proceeding, and Fed. Crim. R. 15 authorizes depositions in
exceptional
circumstances
to
preserve
testimony.
The
Government also asserts that to the extent Petitioner is
6
subjected
to
proceeding
a
civil
heard
by
penalty,
Coast
it
Guard
is
an
hearing
administrative
officers
rather
than an action cognizable in a United States court. (Id.)
The Government filed a supplemental response on March
5, 2012. (Doc. 9).
In the response, the Government advised
that on last week, the Grand Jury returned an indictment
against
Petitioner
and
Vito
La
Forgia
for
conspiracy,
obstruction of justice, and violation of the Act to Prevent
Pollution from Ships.
A status conference was conducted on
March 6, 2012, with counsel for the parties participating
by
telephone.
Counsel
notwithstanding
pending
the
against
fact
for
Petitioner
that
criminal
Petitioner
and
La
advised
charges
Forgia,
that
are
Petitioner
now
is
entitled to utilize Rule 27 to preserve testimony in this
case.
I. Discussion
Rule
provides
27
a
of
the
mechanism
Federal
for
Rules
of
perpetuating
Civil
Procedure
testimony
before
trial. In re Compania Chilena de Navegacion Interoceanica
S.A., 2004 U.S. Dist. LEXIS 6408 (E.D.N.Y. Jan. 29, 2004).
The rule state in relevant part: “A person who wants to
perpetuate
testimony
about
any
matter
cognizable
in
a
United States court may file a verified petition in the
district court for the district where any expected adverse
7
party resides.” Fed. R. Civ. P. 27.
In order to obtain
discovery under this rule, the movant must show that (1) it
expects to be a party to an action that may be cognizable
in any court of the United States but is unable to be
brought presently, (2) it must set forth the subject matter
of the expected action and the petitioner’s interest in
such
an
action,
petitioner
seeks
(3)
it
to
must
present
establish
facts
through
which
the
the
proposed
testimony and the reasons for desiring to perpetuate that
testimony at this time; (4) it must provide the names or
descriptions of the expected adverse parties; and (5) the
names and addresses of the witnesses to be examined and the
substance
of
the
testimony
petitioner
expects
to
obtain
from those witnesses. Fed. R. Civ. P. 27(a)(1).
The undersigned finds that in light of the indictment
recently returned by the Grand Jury against Petitioner and
Vito
La
Forgia,
prelitigation
this
stage;
matter
thus,
Instead, both rule 15
5
Rule
is
27
no
is
longer
not
in
the
applicable.
4
of the Federal Rules of Criminal
4 Petitioner’s reliance on In re Blow Wind Shipping Ltd, 267
F.R.D. 32 (D. Maine 2010) is misplaced because no criminal
proceedings had been commenced in that case.
5 Federal
Rule of Criminal Procedure 15 provides, in relevant
part,
8
Procedure
and
18
U.S.C.
criminal
defendants,
material
evidence
§
3144
such
that
as
may
not
6
provide
mechanisms
Petitioner,
be
to
available
for
preserve
at
trial.
Although fully cognizant of the fact that this matter is no
longer
pending
in
the
prelitigation
indictment,
stage
Petitioner
has
as
a
made
result
no
of
attempt
the
to
utilize either rule 15 7 or 18 U.S.C. § 3144 in order to
preserve the testimony of the crewmembers identified in its
A party may move that a prospective witness be deposed
in order to preserve testimony for trial. The court may
grant the motion because of exceptional circumstances and
in the interest of justice. Fed. Crim. P. 15.
6 18 U.S.C. section 3144 provides that “If it appears from an
affidavit filed by a party that the testimony of a person
is material in a criminal proceeding, and if it is shown
that it may become impracticable to secure the presence of
the person by subpoena, a judicial officer may order the
arrest of the person and treat the person in accordance
with the provisions of [Title 18].
7 The
Eleventh Circuit has set forth the following three
factors in assessing whether exceptional circumstances
justify a deposition pursuant to Rule 15, namely:
(1)whether the witness was unavailable to
testify at trial; (2) whether injustice would
result because testimony material to the
movant’s request would be absent; and (3)
whether countervailing factors rendered
taking the deposition unjust to the
nonmoving party.
United States v. Ramos, 45 F.3d 1519, 1522-23 (llth Cir.
1995)(citing United States v. Drogoul, 1 F.3d 1546, 1554
(llth Cir. 1993))
9
petition.
Accordingly,
Petitioner’s
Motion
to
Perpetuate
Testimony Pursuant to Rule 27 is DENIED.
DONE this 9th day of March, 2012.
/s/SONJA F. BIVINS_______
UNITED STATES MAGISTRATE JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?