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