Tobar et al v. United States of America
Filing
244
FINDINGS OF FACT AND CONCLUSIONS OF LAW: Plaintiffs' Emergency Rule 37 and Rule 26(b) Motion or in the Alternative Plaintiffs' Motion for a Continuance is denied. The Clerk of Court shall enter judgment in favor of Defendant and against Plaintiffs as to all claims in the Complaint. Signed by Judge William Q. Hayes on 4/5/2016. (mdc)
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FILED
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APR 0 5 2016
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CLERK, U.S.
SOUTHERN DIS
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BY
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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OSWALDO ENRIQUE TOBAR, et
aI.,
Plaintiff,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
v.
UNITED STATES OF AMERICA,
Defendant.
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CASE NO. 07 cv817 -WQH-JLB
HAYES, Judge:
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The matter before the Court is the Findings of Fact and Conclusions of Law
17 pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, and Plaintiffs'
18 Emergency Rule 37 and Rule 26(b) Motion or in the Alternative Plaintiffs' Motion for
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a Continuance (ECF No. 207).
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I.
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Background
On May 4, 2007, Plaintiffs 1 initiated this action by filing a Complaint against
22 Defendant, the United States. (ECF No.1). On February 5, 2008, Plaintiffs filed a
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1 The named Plaintiffs are: Oswaldo Enricu.!e Tobar, Rosa Carmelina Zambrano
Lucas, Junior Ivan Pico Alava, Segundo Matias Zambrano Alonzo, Francisco Gabriel
25 Yole Arteago, Fausto Lupercio Arias Castaneda, Frabricio B~ron Cedeno, Joffre
Johnny Ceueno Cedeno, Lmdon Cleofe Cedeno Cedeno, Ramon Eliades Ramon Velez
26 Cedeno, Daniel David Quimi Chalen, Pablo Eduardo Lucas Conforme, Ramon Eduardo
Pilligua Conforme, Clro Mariano Lopez Mero, Pedro Manuel Lopez Mero Jose
27 Eduardo Lucas Mero Luis Antonio Penafiel Mero, Pedro Jose Reyes Mero, elmo
Arcadio Chica Obando, Luis Miguel Cedeno Pico, Jaime Gustavo Palma Pinargote,
28 Yardy Klever Flores S_egovi~ Pacho Hernandez Solorzano, Carlos Wilfrido Veliz
Velez, Carlos Orlando Velez Lambrano, and Jose Luis Zambrano.
t
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1 First Amended Complaint. (ECF No. 28). The Complaint alleged that on October 5,
2 2005, in international waters off the coast of Ecuador, the United States Coast Guard
3 "unlawfully and negligently stopped, searched, arrested, detained and imprisoned the
4 Plaintiffs, seized the boat [and] destroyed the cargo and fish owned by [Plaintiffs]."
5 Id. at 3. The Complaint alleged that this incident arose out of suspicion that Plaintiffs
6 were "smuggling and possessing illegal drugs." Id. The Complaint alleged that "[n]o
7 charges were ever subsequently brought against any Plaintiff." Id. The First Amended
8 Complaint asserted that subject matter jurisdiction exists pursuant to: (1) the Public
9 Vessels Act ("PVA"), 46 U.S.C. §§ 31101-31113; (2) the Suits in Admiralty Act, 46
10 U.S.C. §§ 30901-30918 ("SAA"); (3) the Alien Tort Statute, 28 U.S.C. § 1350; (4) the
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Convention on the Law of the Sea; (5) the International Covenant on Civil and Political
12 Rights ("ICCPR"); and (6) a bilateral treaty between Ecuador and the United States
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concerning the use of an Air Force base at Manta, Ecuador.
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On June 5, 2008, the United States filed a Motion to Dismiss for lack of subject
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matter jurisdiction on the ground that the United States had not waived sovereign
16 immunity. (ECF No. 31). Defendant asserted that the PVA is the sole waiver of
17 sovereign immunity with respect to Plaintiffs' action; that the PYA is subject to the
18 same discretionary function exception to the limited waiver of sovereign immunity
19 included in the SSA; and that the law of the case established that discretionary function
20 exception is a bar to the waiver of sovereign immunity in this case.
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On September 19,2008, this Court dismissed the First Amended Complaint for
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lack of subject matter jurisdiction. (ECF No. 57). The Court concluded that the Alien
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Tort Act, the Convention on the Law ofthe Sea, the ICCPR, and the Manta Agreement
24 were not valid bases for subject matter jurisdiction. !d. at 9-12. The Court concluded
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"that the SAA is not a valid basis for subject matter jurisdiction because the
26 discretionary function exception to the United States' waiver of sovereign immunity
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under the SAA applies, retaining the sovereign immunity ofthe United States under the
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SAA." (ECF No. 57 at 7). The Court concluded "that the PVA is not a valid basis for
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1 subject matter jurisdiction because Plaintiffs have not demonstrated reciprocity, which
2 is a jurisdictional prerequisite to the wavier of sovereign immunity under the PVA."
3 !d. at 9.
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On October 22,2008, Plaintiffs filed a notice of appeal from the order dismissing
5 the First Amended Complaint for lack of subject matter jurisdiction. (ECF No. 59). On
6 April 21 , 2011, the Court of Appeals for the Ninth Circuit issued an order affirming in
7 part, vacating in part, and remanding. The Court of Appeals affirmed this Court's
8 Order that the Alien Tort Statute, the Convention on the Law of the Sea, the ICCPR,
9 and the bilateral treaty concerning the use of an Air Force base at Manta, Ecuador did
10 not waive sovereign immunity. Tobarv.
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u.s., 639 F.3d 1191 (2011)("Tobar f').
The
Court of Appeals concluded that the Military Claims Act did not waive sovereign
12 immunity. Id. at 1196. With regards to the PYA, the Court of Appeals stated, "if a
13 claim falls within the scope of the PYA, the plaintiff must meet the reciprocity
14 requirement of the PVA, regardless of the type of claim the plaintiff asserts-PVA,
15 SAA, or FTCA." Id. at 1197. The Court of Appeals stated that the PYA contains the
16 following reciprocity requirement: "A national of a foreign country may sue under the
17 PVA only if the government of that foreign country would permit a United States
18 national to bring the same suit in its courts." Id. at 1196. The Court of Appeals stated,
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Here, the district court held that, because Plaintiffs' documents did not
establish reciprocity, Plaintiffs failed to meet their burden of
demonstrating reciprocity. We are uncertain whether a plaintiffbears the
burden of establishing the content of foreign law for purposes of the
PVA's reciprocity requirement. . . .. But even assuming that Plaintiffs
bear the burden here, the district court apparently did not recognize that,
in its discretion, it could inquire further into the content of Ecuadorian
law. We therefore vacate and remand.
Whether reciprocity exists under Ecuadorian law remains undetermined
. . .. On remand, the court may instruct the parties to provide additional
evidence, through testimony or other means; the court may conduct its
own research; and the court may undertake any other inquiry consistent
with [Federal Rule of Civil Procedure] 44.1 to determine whether
reciprocity exists under Ecuadorian law.
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lId. at 1200. The Court of Appeals remanded the case.
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On March 13,2012, this Court issued an order requiring" the parties to fully
3 brief the issue of whether the discretionary function exception applies to the Public
4 Vessels Act and would require dismissal of this action independent of any ruling as to
5 reciprocity." !d. at 5. On June 13,2012, this Court issued an order holding,
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Plaintiffs failed to establish subject matter jurisdiction under the Public
Vessels Act because the discretionary function exception applies retaining
sovereign immunity for the United States. The Public Vessels Act is not
a valid basis for subject matter jurisdiction because reciprocity does not
exist with Ecuador which is a jurisdictional prerequisite to the waiver of
sovereign immunity under the Public Vesse1s Act.
(ECF No. 100 at 11).
On July 12, 2012, Plaintiffs filed a notice of appeal from that Order. On
September 25, 2013, the Court of Appeals for the Ninth Circuit issued an order
affirming in part, vacating in part, and remanding. Tobar v. Us., 731 F.3d 938 (2013)
("Tobar IF'). As to the issue of reciprocity, the Court of Appeals held,
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On the evidence submitted in this case, reciprocity with Ecuador exists
because, in similar circumstances, nationals of the United States are able
to sue Ecuador in Ecuadorian courts. Accordingly, the govenunent's
waiver of sovereign immunity is not barred by the reciprocity
requirement.
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Id. at 949. With regards to the discretionary function exception of the PVA, the Court
of Appeals stated,
The statute authorizing the actions taken here speaks in pertinent part only
in general terms and does not direct mandatory and specific action:
The Coast Guard may make inquiries, examinations,
inspections, searches, seizures, and arrests upon the high
seas and waters over which the United States has
jurisdiction, for the prevention, detection, and suppression of
violations oflaws of the United States. For such purposes,
commissioned, warrant, and petty officers may at any time
go on board of any vessel subject to the jurisdiction, or to the
operation of any law, of the United States, address inquiries
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to those on board, examine the ship's documents and papers,
and examine, inspect, and search the vessel and use all
necessary force to compel compliance.
14 U.S.C. § 89(a) (emphases added).
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Indeed, Plaintiffs do not assert that § 89(a) prescribes a specific
course of action. Instead, they assert that the government violated its own
regulations and policies. In particular, the u.s. Coast Guard Maritime
Law Enforcement Manual provides: "When acting pursuant to flag State
authorization, the boarding State may not exceed the terms of the
authorization. Such authorization may be contained in a pre-existing
written agreement or may be provided on an ad hoc basis." That policy
does not afford any discretion: "the boarding State may not exceed the
terms of the authorization." (Emphasis added.) Here, the specific
authorization to board and inspect Plaintiffs' boat contained the following
condition: "Ifthere are no drugs on board, and there are damages or losses
sustained by the vessel, in accordance to the U.S. laws and in a manner
complying with international laws, the owner of the vessel will be
compensated, as long as neither the vessel nor the crew have been
involved in illicit actions." That directive, too, is specific and mandatory:
The owner "will be compensated," so long as the specified conditions are
met. (Emphasis added.) By carrying out its activities with respect to
Plaintiffs' boat, the government accepted that mandatory obligation.
Accordingly, to the extent that Plaintiffs demonstrate that all ofthe
specified conditions have been met, their claims are not barred by the
discretionary function exception. In their complaint, Plaintiffs allege that
there were no drugs on board, that there were damages and losses
sustained by the vessel, that some Plaintiffs owned the boat, and that
neither the vessel nor the crew had been involved in illicit actions.
Because the district court dismissed this action on the pleadings, we take
as true the allegations in the complaint. Cell Therapeutics Inc. v. Lash
Grp. Inc., 586 F.3d 1204, 1206 n. 2 (9th Cir. 2010). In this procedural
posture, then, those elements have been satisfied.
It is less clear that Plaintiffs have exhausted their administrative
remedies, as required by the policy: "in accordance to the U.S. laws and
in a manner complying with international laws, the owner of the vessel
will be compensated." The complaint alleges that Plaintiffs "filed a claim
for injuries with the United States Navy and Coast Guard" and that the
government took no action on that claim within six months, "tantamount
to denial of the claim." At oral argument, the government's lawyer
suggested that the administrative denial of Plaintiffs ' claim resulted from
Plaintiffs' failure to provide documentation of damages. In order to prove
that the government violated its nondiscretionary duty to pay damages to
the owner, Plaintiffs must demonstrate that it met the administrative
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requirements imposed by federal law. But these issues cannot be decided
on the pleadings.
Two additional, related restrictions warrant mention. First, the
non-discretionary duty requires the government to pay damages to "the
owner" of the boat. (Emphasis added.) Because the government's
non-discretionary duty applies only to the owner of the boat, the only
Plaintiffs who can benefit from the policy are the owners. Second, the
nondiscretionary duty pertains to "damages or losses sustained by the
vessel." Plaintiffs have alleged a wide range of injuries, including
physical damages to the boat itself and reputational damages to crew
members resulting from "public ridicule." Because the parties have not
briefed the issue, we express no view on the extent of "damages or losses"
encompassed by the non-discretionary duty to pay.
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We therefore hold that, to the extent that Plaintiffs' claims fall
outside the non-discretionary duty to pay damages, their claims are barred
by the discretionary function exception.
!d. at 946-48 (footnotes omitted). The Court ofAppeals remanded the case concluding,
[T]he government's waiver of sovereign immunity is not barred by the
reciprocity requirement. The government's waiver of sovereign immunity
also is not barred by the discretionary function exception to the extent that
Plaintiffs' claims result from the failure of the government to meet its
non-discretionary duty to pay damages, contained in Ecuador's
authorization to board Plaintiffs' vessel and incorporated by reference in
the Coast Guard Maritime Law Enforcement Manual. Otherwise, the
discretionary function exception bars Plaintiffs' claims.
20 Id. at 949.
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The Court set a bench trial in this matter for October 14, 2015. On September
22 24, 2015, Plaintiffs filed an Emergency Rule 37 and Rule 26(b) Motion or in the
23 Alternative Plaintiffs' Motion for a Continuance. (ECF No. 207). Plaintiffs explained
24 that on September 16,2015 Plaintiffs "obtained a written agreement ... between the
25 governments ofthe United States and Ecuador which heretofore has not been produced
26 by Defendant."
(ECF No. 212 at 3).
Plaintiffs attached a document titled
27 "OPERATIONAL PROCEDURES FOR BOARDING AND INSPECTING VESSELS
28 SUSPECTED
OF
ILLICIT
TRAFFIC
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IN
NARCOTIC
DRUGS
AND
07cv817-WQH-JLB
1 PSYCHOTROPIC SUBSTANCES AND OF SMUGGLING MIGRANTS BY SEA"
2 signed by Admiral Eduardo Navas Najera and Rear Admiral Wayne Justice on August
3 20, 2006 ("the 2006 Agreement")'
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On October 8, 2015, the Court granted Plaintiffs' motion in part and denied it in
5 part_ (ECF No_ 216)_ The Court ordered that the trial go forward as scheduled, on
6 October 14,2015, "as to all issues of liability as to all Plaintiffs_" ld_ at 2_ The Court
7 stated that, in the event that the Court found liability, "the Court will consider whether
8 additional discovery and further hearing will be required in order to determine the
9 proper award of damages_" Id_
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On October 14-16,2015, the Court held the bench triaL (ECF No_ 219, 220,
11 221)_ On October 30, 2015, the Court ordered the parties to appear on December 11,
12 2015 for an evidentiary hearing "with all necessary witnesses and exhibits" "to
13 determine whether Defendant failed to comply with discovery obligations under Rule
14 26 and whether any additional undisclosed agreements existed prior to the 2006
15 Agreyment" (ECF No_ 228)_ On December 11,2015, the Court held an evidentiary
16 hearing_ (ECF No_ 232)_
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On January 8, 2016, Plaintiffs filed supplemental briefing in support of their
18 emergency motion (ECF No_ 236) and briefing regarding liability (ECF No_ 237)_ On
19 February 18,2016, Defendant filed responses_ (ECF Nos_ 238, 239)_ On February 26,
20 2016, Plaintiffs filed replies_ (ECF Nos_ 240, 241)_
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On March 18,2016, the Court held closing arguments on the liability_ (ECF No_
22 243)_
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07cv817-WQH-JLB
1 II.
Findings of Fact and Conclusions of Law
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A. Factual Background
3
An Unclassified For Official Use Only document ("FOUO"), admitted at trial as
4 Plaintiffs' Exhibit 92 , states that on or about October 4,2005, the USS McCLUSKY,
5 a U.S. Navy frigate, located two Ecuadorian flagged fishing vessels, the FN JOSTIN
6 and the FN JOSE ANTONIO in international waters approximately 300 miles off the
7 Galapagos Islands. According to the Coast Guard Command Center Case Log ("Case
8 Log"), admitted as Plaintiffs' Exhibit 15, and the Coast Guard's Situational Report
9 ("Situational Report") created by Lieutenant Commander Torrey Bertheau, admitted
10 as Plaintiffs' Exhibit 4A and 4B 3, the vessels were located outside Ecuador's Exclusive
11 Economic Zone in an area not known for fishing. The Case Log states that the Marine
12 Patrol Aircraft sighted the JOSTIN "along JOSE ANTONIO." (Ex. 15 at 3).
13
A Department of Homeland Security information report, admitted as Plaintiffs'
14 Exhibit 10, states that on October 4, 2005, a United States Coast Guard Law
15 Enforcement Detachment ("LEDET") embarked on the McCLUSKY boarded the JOSE
16 ANTONIO. The report states that the LEDET "located and tested white powdery
17 substance secreted in net floats, using narcotics identification kit, which tested positive
18 for a controlled substance." Id. The report states that the LEDET "discovered two half
19 kilo-sized bricks of contraband hidden/secreted inside the net floats, which tested
20 positive twice using the Becton Narcotics Identification Test Kit, for a controlled
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2 Plaintiffs offered documents into evidence without objection by the United
States. These documents were Exhibits b 3,4,7,8,9,10; 15, 16, 17h22,l and 32. (ECF
No. 229 at 12:14 -13:1-6.) All ofthese bxhibits were aamitted at t e mst day of trial
by stipulation and without restriction. Id. at 13:5-6. "Unobjected to hearsay is
aillnissible and of probative value in the district courts." NL.R.B. v. Int'l Union of
Qperating E1'lgineers, Local Union No. 12,413 F.2d 70\ 707 (9th Cir. 1969); see also
KEOC v. Harris Farms Inc., 274 F. ARP'X 511, 514 (~th Cir. 2008)(a party waives
"its right to object by: stating before trial tliat it did not contest the admissibilIty of the
... eVidence, and by failing to make specific objections at trial to the [other] evidence."
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3 Plaintiffs' Exhibit 4 included two situational reports. At trial, the Court
modified Exhibit 4 to make it 4A and 4B. (ECF No. 230 at 300:14-21). The Court
28 admitted Exhibits 4A and 4B, and denied Defendant's motion to introduce Defendant's
Exhibit B which was identical to Plaintiffs' Exhibit 4A Id. at 301 :3-6.
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1 substance." Id. The FOUO states that after conducting an extensive pier-side search
2 of the JOSE ANTONIO, the officers and crew of the McCLUSKY discovered
3 approximately 5,300 pounds of cocaine valued at $169 million dollars on the JOSE
4 ANTONIO. (Ex. 9).
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On October 5, 2005, the McCLUSKY approached the JOSTIN, which was no
6 longer located near the JOSE ANTONIO. The Case Log states that the JOSTIN was
7 "sighted 3X with no fishing" and had multiple fuel containers onboard. (Ex. 15). The
8 Case Log states that the JOSTIN was towing five "pangas" (smaller boats), each with
9 "whip antennas." Id. When the McCLUSKY contacted the JOSTIN by radio, the
10 JOSTIN stated that the master of the ship's name was "Washington LucaFranco." (Ex.
11 I, Tr. 294: 3-5 (Bertheau)). The Situational Report states that the JOSTIN told the
12 McCLUSKY that it was carrying approximately 5,000 pounds of dorado fish and shark
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onboard, which was "not consistent with [the] stated length of voyage." (Ex. 4A).
14 Lieutenant Commander Torrey Bertheau, the deployable team leader for the LEDET,
15 testified that based on the pangas in tow, "the amount offish on board, and how long
16 they had been underway . . . and the location and the flag of the vessel," he
17 recommended that the Coast Guard "attempt to conduct a boarding on" the JOSTIN.
18 (Tr. 295: 14-25).
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Based on Bertheau's recommendation to conduct a boarding of the JOSTIN,
20 Lieutenant Commander Lawrence K. Ellis, U.S. Coast Guard Attache, wrote to Rear
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Admiral Eduardo Navas Najera asking for permission to board the JOSTIN. This
22 letter, dated October 5, 2005, admitted as Plaintiffs' Exhibit 2, contained the following
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language ("the 2005 Agreement"):
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[W]e would like for the Ecuadorian government to confirm or deny that
the vessel "JOSTYN" is Ecuadorian.... If the vessel is Ecuadorian we
would request your permission to stop, board, and inspect the vessel for
the presence of illegal drugs. If we find illegal drugs, we will ask the
government what it is you want to do with the vessel, the crew and the
cargo. If there are no drugs on board, and there are damages or losses
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sustained by the vessel, in accordance to the U.S. laws and in a manner
complying with international laws, the owner of the vessel will be
compensated, as long as neither the vessel nor the crew have been
involved in illicit actions.
4 (Ex. 2).
The Case Log indicates that the Ecuadorian government granted the
5 McCLUSKY permission to board and search the JOSTIN. (Ex. 15 at 2). In her
6 deposition, admitted as Plaintiffs' Exhibit 28, Plaintiff Rosa Zambrano Lucas, one of
7 the boat owners, testified that she gave permission for the boarding of the JOSTIN
8 prior to the Coast Guard barding the ship. (Ex. 28, 28: 16-30: 12).
9
On October 6, 2005, the LEDET from the McCLUSKY, lead by Lieutenant
10 Commander Bertheau, boarded the JOSTIN. Once onboard, Plaintiff Joffre Cedeno
11 told the LEDET that he was the captain of the vesseV and that he had been the captain
12 for approximately a year. 5 The Situational Report states that when LEDET asked
13 Cedeno and the vessel engineer about the location and number of fuel tanks onboard,
14 both "appeared unfamiliar with the [vessel] configuration, even though claimed to have
15 worked on [vessel] for one year." (Ex. 4A at 1). Cedeno and the vessel engineer
16 claimed that there were four fuel tanks aboard the JOSTIN, which was the number
17 listed on the vessel's schematics. !d. The Situational Report states that, upon
18 inspection, the LEDET identified six tanks, two of which were not on the ship's
19 drawings. !d. Confronted with that information, Cedeno then "changed his story" and
20 stated that there were six tanks onboard. Id. The Situational Report states that the
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amount of fish on the boat was inconsistent with the stated length of the voyage and
22 that the JOSTIN was well outside of the Ecuadorian Exclusive Economic Zone. !d.
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A Drug Enforcement Administration ("DEA") report ("DEA Report") created
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Washington Luca Franco is not a plaintiff in this action.
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5 Plaintiff Cedeno testified that at the time of the 2005 boarding he had only
worked on board the JOSTIN for six months and only worked one trip after the
27 boarding. (Ex. 26, 66:6-19). However, Plaintiff Rosa Zambrano Lucas, one of the
ship's owners, testified that she had hired Plaintiff Cedeno in 2000 and that he still
28 worked for her full time as of July, 2014. (Ex. 28, 23:20-24:23).
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1 by DEA Agent Gerard Dauphinais, admitted as Plaintiffs' Exhibit 8, states that Cedeno
2 did not know the type of engine nor the horsepower used to power the JOSTIN. (Ex.
3 8 at 2). The DEA Report states that Cedeno told the LEDET that the JOSTIN was a
4 fishing vessel and that it had been out at sea for approximately 20 days. Id. The DEA
5 Report states that Cedeno stated that his crew used a machete to behead its catch prior
6 to taking it to the cooler below deck. /d. Upon inspection of the fish hold, the LEDET
7 observed that there were approximately halfthe amount offish that Cedeno had stated,
8 all ofthe fish were intact, the machete was dulled and rusted, and there was not enough
9 ice to keep the fish cold. (Exs. 4A, 8, 15).
10
During a limited search ofthe JOSTIN at sea, the LEDET conducted a non-
11 intrusive inspection of a fuel tank using a boroscope. The Situational Report states that
12 after inserting the scope approximately six to eight inches into the fuel, the scope's
13 view and movement were blocked by a bright blue obstruction. (Ex. 4A at 2). The
14 DEA Report states that based on the prior intelligence and the discovery ofthe extra
15 fuel tanks, the LEDET determined that the JOSTIN warranted a thorough anti-narcotics
16 inspection. (Ex. 8). The DEA Report states that the LEDET concluded that for safety
17 reasons, a 100% space accountability inspection ofthe JOSTIN could not be done at
18 sea and could only be done at a pier-side location. Id.
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A letter dated October 6, 2005, admitted as Plaintiffs' Exhibit 3, states that
20 Lieutenant Commander Lawrence K. Ellis requested permission from Rear Admiral
21 Eduardo Navas Najera to escort the JOSTIN together with the JOSE ANTONIO to
22 Puerto Bolivar. (Ex. 3). Plaintiffs' witness, Ecuadorian Naval Captain Carlos Rivera
23 testified that the procedure "was that the US vessel would escort the suspicious vessel
24 to a certain point where an Ecuadorian Coast Guard would be in charge and escort it
25 to the dock." (Tr. 109: 8-11). An Ecuadorian Chain of Custody Transfer document
26 signed by Rear Admiral Eduardo Navas Najera and Captain Bolivar Sanchez Sofiudo,
27 admitted as Defendant's Exhibit 0, suggests that the Coast Guard deliver the JOS TIN
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1 and the JOSE ANTONIO to a rendezvous location about 20 nautical miles off Puerto
2 Bolivar. (Ex. 0 at 2).
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Lieutenant Bertheau testified at trial that on October 13 , 2005 the JOSTIN and
4 its crew members were transferred to Captain Erik Benitez, of the Ecuadorian police,
5 and that he saw Captain Benitez sign the transfer document, DD Form 1149. (Tr 306).
6 The transfer document, DD Form 1149, admitted as Defendant's Exhibit A, signed by
7 Captain Benitez indicates that the JOSTIN and the crew of the JOSTIN were
8 transferred to the Ecuadorian police on October 13, 2005. (Ex. A). The Case Log also
9 states,
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On 130CT05 MCC rendezvoused with two EC Navy Patrol Boats, DEA,
11 EC Police and additional LEDET personnel .... EC police took custody of FN
12 JOSTIN and all crew members. Additional LEDET members and DEA embarked FN
JOSTIN for face to face passdown with LEDET 102 Boarding Officer. LEDET 102
13 BT returned to MCC after pass down complete. LEDET and DEA remained onboard
for escort and to conduct dockside boarding. EC navy patrol boat escorted F N
14 JOSTIN into port for joint agency dockside boarding.
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(Ex. 15 at 5). At trial, Plaintiffs' witness, DEA Agent Dauphinais, testified that he
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boarded the JOSTIN on October 13, 2005 and that he was the only DEA agent onboard.
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(Tr 263). DEA Agent Dauphinais testified that he did not conduct a search of the
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JOSTIN or the crew on behalf of the DEA. (Tr. 262: 14-20; 264: 8-13). DEA Agent
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Dauphinais testified that there was no point in time that the DEA took custody of the
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vessel. (Tr 263: 18-22). DEA Agent Dauphinais testified that if anyone had custody
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of the vessel or the crew, it would have been some agency of the Ecuadorian
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government. Id. at 263: 23-25.
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The DEA report states,
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Once in Machala, the Ecuadorian National Police began to conduct a
search of the JOSTIN. All six of the tanks aboard the JOSTIN were
drained and checked with negative results. Although a thorough
inspection of the entire vessel was negative, the search team found
approximately 25 empty 10-gallon plastic gas cans inside the forward Ptank compartment of the vessel. In addition, there were four 55-gallon
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plastic drums filled with gasoline on the rear deck just in front ofthe fish
cooler.
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3 (Ex. 8 at 3). The DEA Report states that during the search, the Ecuadorian National
4 Police inspected Cedeno's cellular telephone. Id. at 4. Although outgoing messages
5 could not be read, there were two incoming messages that "were particularly
6 interesting." Id. In one of them, the sender wrote, "Please tell him that they do not
7 have anything to worry about." Id. A second incoming message received shortly
8 thereafter stated, "Good, you worked fast." Id. The Situational Report states,
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shortly after completing the search, the [Source ofInformation] reported
that he/she received information that the JOSTIN had successfully
delivered approximately 1.5 tons of cocaine at sea prior to the [Coast
Guard's] interdiction ofthe vessel. The [Source ofInformation] stated
that the JOSTIN delivered the cocaine to an unknown location in the
Pacific Ocean utilizing three buoys (believed to be radio direction buoy
devices). The [Source ofInformation] did not have any information as to
exactly when the cocaine was delivered nor who or what vessel may have
retrieved the cocaine.
10
11
12
13
14
15 Id.
16
Lieutenant Commander Torrey Bertheau testified that his boarding team did not
17 cause any physical damage to the JOSTIN prior to transferring the JOSTIN to Captain
18 Eric Benitez of the Ecuadorian police. Id. at 307: 4-11. DEA Agent Dauphinais
19 testified that he did not see any damage done to the JOSTIN, and that he did not cause
20 any damage to the JOSTIN. (Tr. 256, 262-63). A naval message dated October 24,
21
2005, Plaintiffs' Exhibit 7 which was admitted at trial, states that on or about October
22
15, 2005, the JOSTIN was released and sailed out under her own power.
23
B. Plaintiffs' Emergency Rule 37 and Rule 26(b) Motion
24
On December 11, 2015, the Court held an evidentiary hearing "to determine
25
whether Defendant failed to comply with discovery obligations under Rule 26 and
26 whether any additional undisclosed agreements existed prior to the 2006 Agreement."
27 (ECF No. 228). The Court had ordered the parties to appear "with all necessary
28 witnesses and exhibits." Id.
- 13 -
07cvS17-WQH-JLB
1
At the hearing, the 2006 Agreement, a document titled "OPERATIONAL
2 PROCEDURES FOR BOARDING AND INSPECTING VESSELS SUSPECTED OF
3 ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES
4 AND OF SMUGGLING MIGRANTS BY SEA" signed by Admiral Eduardo Navas
5 Najera and Rear Admiral Wayne Justice, previously admitted at trial as Plaintiffs'
6 Exhibit 33, was admitted into evidence. (Ex. 33; ECF No. 230--Tr. 379:1-21). The
7 2006 Agreement was signed by both parties on August 30, 2006, more than ten months
8 after the boarding of the JOSTIN on October 5, 2005. (Ex. 33). Plaintiff did not
9 produce any other witnesses or documents.
10
Defendant called Brad Kieserman who testified that he had worked in the Coast
11 Guard Office of Maritime and International Law from 2000-2001. (ECF No. 242 at
12 7: 17-21). Kieserman then worked as the legal advisor to the chief oflaw enforcement
13
from 2001 until "probably 2004 or 5." !d. Kieserman testified that after that he
14 "became the person in charge of the office." Id. Kieserman testified that the office
15 where he worked beginning in 2001 "ran the nationa11eve1 program for maritime law
16 enforcement interdiction operations generally and drug interdiction specifically." Id.
17 at 8:5-7. Kieserman testified that he became "chief of operationa11aw" in 2005 or
18 2006. Id. at 8:9-16. Kieserman testified that while he worked at that office, he had
19 three basic roles,
20
21
22
23
24
One was providing real-time legal advice for ongoing Coast Guard
operational missions, specifically law enforcement. I was also responsible
for international and domestic engagement for legal matters related to the
mission set, and then I also negotiated international agreements and
arrangement pertinent to all maritime interdiction activities in which the
Coast Guard was involved in.
25 Id. at 9: 2-9. Kieserman testified that he was "personally aware of the arrangements
26 and agreements between the United States and Ecuador on maritime interdiction
27 matters, and there were no agreements in place bilaterally or arrangements bilaterally
28 during August of 2005 or any time previous to that." !d. at 13:10-18. Kieserman
- 14 -
07cvS17-WQH-lLB
1 testified that he drafted the 2005 Agreement, admitted at trial as Plaintiffs' Exhibit 2,
2
as an ad hoc agreement for use in multiple boardings that the United States requested
3 the Ecuadorian authorities to authorize. Id. at 18 :2-22. Kieserman testified that he was
4 "not aware of any other forms or documents that were used to-to negotiate any
5 portion of the Jostin boarding other than this [2005] letter, and there were no forms in
6
effect at that time that were being used between the Ecuadorian Navy and the Coast
7
Guard." Id. at 19:13-17.
8
When asked about the revision date, "REv: 07109/2006," at the top right comer
9
of the 2006 Agreement, Kieserman testified that the United States "began the use of
10
forms with Columbia in the early 2000s, as a way of expediting this process." !d. at 23:
11
20-28. Kieserman further testified that the 2006 Agreement used with Ecuador was an
12 "evolution" ofthe same forms used in other countries. Id. at 23: 14-24: 16. Kieserman
13
testified that until the 2006 Agreement was signed by Admiral Navas, "those forms
14
could not be used." Id. at 26: 19-27:4. Kieserman testified that the 2006 Agreement
15 "was the first opportunity I had to inform my team and the US interagency that the
16
operational procedures with Ecuador and all of its form processes were in effect, and
17
in fact, we used them about 15 minutes after the document was signed because we
18
found a vessel at sea and began using them immediately on August 30th." Id. at 26:3-
19 8.
20
Based on the evidence presented at the evidentiary hearing, the Court finds that
21
the 2006 Agreement went into effect after it was signed by Admiral Eduardo Navas
22 Najera and Rear Admiral Wayne Justice on August 30,2006. The Court finds that
23
there were no prior versions of the 2006 Agreements in effect with Ecuador prior to
24
August 30,2006. The Court finds that the only agreement in effect when the JOSTIN
25
was boarded on October 5, 2005 was the 2005 Agreement, which was the letter signed
26
by Lieutenant Commander Ellis that was addressed to Rear Admiral Navas. (Ex. 2).
27 Plaintiffs' emergency motion for additional discovery is denied.
28
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07cv817-WQH-JLB
1 C. Public Vessels Act
2
The United States, as a sovereign, is immune from suit.
United States v.
3 Mitchell, 445 U.S. 535, 538 (1980). A federal district court only has subject matter
4 jurisdiction over a suit against the United States when sovereign immunity has been
5 waived. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 435
6 (1989). The Public Vessels Act ("PVA") waives sovereign immunity for suits for
7 "damages caused by a public vessel of the United States," 46 U.S.C. § 31102(a)(1),
8 with the following reciprocity requirement,
9
10
11
A national of a foreign country may not maintain a civil action under this
chapter unless it appears to the satisfaction of the court in which the
action is brought that the government of that country, in similar
circumstances, allows nationals ofthe United States to sue in its courts.
12
13
46 U.S.C. § 31111. In Tobar II, the Court of Appeals found that "[t]he government's
waiver of sovereign immunity is not barred by the reciprocity requirement" in the PVA.
14
15 731 F.3d at 949. The Court of Appeals also found that "[t]he government's wavier of
16
17
18
19
20
21
22
sovereign immunity also is not barred by the discretionary function 6 exception to the
extent that Plaintiffs' claims result from the failure of the government to meet its nondiscretionary duty to pay damages, contained in Ecuador's authorization to board
Plaintiffs' vessel [the 2005 Agreement] and incorporated by reference in the Coast
Guard Maritime Law Enforcement Manual." Id. The Court of Appeals emphasized
that the "non-discretionary duty requires the government to pay damages to 'the owner'
ofthe boat" for any "damages orlosses sustained by the vessel." Id. at 947. The Court
23
24
25
26
27
28
6 The Public Vessels Act ("PVA") does not contain a discretionary function
exception. However, the Court of Appeals for the Ninth Circuit found that the
discretionary function exception applies to the PV A. Tobar II, 731 F.3d at 945; see
also Thames Shipyard & RqJair Co. v. United States, 350 F.3d 247) 254 (1 st Cir. 2003)
(concluding thaf the discretIOn!¥), function exception applies to claIms under the PVA};
B & F Trawlers Inc. v. United States, 841 F.2d 626,630 (5th Cir. 1988) (same); Us.
Fire Ins. Co. v. United States, 806 F.2d 1529, 1534-35 (lith Cir. 1986), abrogated in
12art by United States v. Gaubert, 499 U.S. 315 (991), as recognized in Cranford v.
-Unitea States, 466 F.3d 955, 959 (1Ith Cir. 2006) (same).
- 16 -
07cv817-WQH-JLB
1 of Appeals held that "[t]he challenged actions-the boarding, searching and towing of
2 the ship ___ are entitled to the protection ofthe discretionary function exception_" Id_
3 at 948_
4
The 2005 Agreement is a letter between a United States Coast Guard officer,
5 Lieutenant Commander Lawrence K. Ellis, US_ Coast Guard Attache, and the
6 Ecuadorian Government official, Rear Admiral Eduardo Navas Najera_ The 2005
7 Agreement is not an agreement between the United States and Plaintiffs_ Assuming
8 that the US_ Coast Guard or an individual member of the US_ Coast Guard had the
9 requisite authority necessary to formally bind the United States, creating a judicially
10 enforceable private right of action cognizable in federal courts 7, the Court considers
11
whether Plaintiffs "exhausted their administrative remedies, as required by the policy_"S
12 See Tobar 11,731 F.3d at 947_
13
The Complaint alleges that Plaintiffs "filed a claim for injuries with the United
14 States Navy and Coast Guard" and that the government took no action on that claim
15 within six months, "tantamount to denial ofthe claim_" (ECF No_ 28 at 5)_ A letter
16 from G_D. Owen, Chief, Claims and Litigation Branch ofthe United States Department
17 of Homeland Security, dated September 1, 2006, admitted at trial as Defendant's
18
19
7 At the evidentiary hearing on December 11,2015, Brad Kieserman, former
chief of the office that ran the national level program for maritime law enforcement
20 interdiction operations in 2005 or 2006, stated,
21
22
23
24
25
The position of the US Government at that time and until the time I left the Coast
Guard was that claims would - claims would be cognizable under the
Military Claims Act. There was no litigation anticipation with this, and
we had a very clear strategy of trying to get anything like that dism1ssed
because we didn't view 1t as a cause of action, so this was about
Rroviding what I will call an equitable remedy or a political remedy
through the Military Claims Act should there have been damage to
vessels_
(ECF No_ 242 at 30:24-31 :7)_
26
8 Plaintiffs may have had recourse to recover damages through the Military
27 Claims Act, 10 US.Co §13 2731-2738,which provides an administrative remedy from
damages claimed by inhabitants of foreign countries, caused by non-combat activities
28 of the-United States J?ilitary.
- 17 -
07cvSI7-WQH-JLB
1 Exhibit Q., states,
2
Dear Mr. Boyaki:
3
Regarding your letter of August 21,2006, the 26 individual claims you
submitted for alleged damages that occurred on October 5, 2005, have
been received by this office.
4
5
6
7
8
9
10
11
At this time I am unable to evaluate these claims because no evidence was
presented to support the amounts claimed for property damages/loss or
personal injury. I direct your attention to 33 C.F.R. § 25.115 - § 25.119
if you are unsure of the nature of evidence that must be submitted for
these claims to be considered.
This is not a denial. Should this information be received, we shall
proceed with consideration of these claims. Finally, this letter should in
no way be interpreted as waiving any rights ofthe United States or other
legal requirements including any applicable statute of limitations.
12 A letter from Plaintiffs' counsel to G.D. Owen, dated October 5, 2006, admitted as
13
14
Defendant's Exhibit states,
Dear Mr. Owen:
15
16
17
18
19
20
21
22
23
24
25
26
It appears from your last letter that you have no information in this
case.
As such, I will file it in Galveston, Texas next month. It might be
helpful if we knew; 1) why the personnel ofthe U.S.S. McClusky boarded
and seized our ship; and 2) is it more convenient to file this case in
California or Texas?
For your information, attached is a letter from the Coast Guard
through the U.S. Embassy offering to pay damages.
It would seem to me that the way to handle this claim is to provide
the claimants with some necessary information and let us respond. But
then again, what do I know about claims?
Send your empty file and your nonexistent litigation report to
Houston. The U.S. Attorney will be like me and have to start from
scratch.
27
(Def's Ex. R). Assuming that Plaintiffs "exhausted their administrative remedies, as
28
required by the policy," this Court held a trial to determine whether the government
- 18 -
07cv817-WQH-JLB
1 had a non-discretionary "duty to pay damages" to "the owner" ofthe JOSTIN for any
2 "damages or losses sustained by the vessel" under the 2005 Agreement See Tobar II,
3 731 F.3d at 947.
4
The 2005 Agreement contained the following conditions: "If there are no drugs
5 on board, and there are damages or losses sustained by the vessel, in accordance to the
6 U.S. laws and in a manner complying with intemationallaws, the owner of the vessel
7 will be compensated, as long as neither the vessel nor the crew have been involved in
8 illicit actions." (Ex. 2). Plaintiffs must establish by a preponderance ofthe evidence
9 that "there are damages or losses sustained by the vessel" and that "neither the vessel
10 nor the crew have been involved in illicit actions." "[T]o the extent that Plaintiffs
11 demonstrate that all of the specified conditions have been met, their claims are not
12 barred by the discretionary function exception." Tobar II, 731 F.3d at 947.
13
I. Damages or Losses Sustained by the Vessel
14
At trial, Defendant's witness Lieutenant Commander Torrey Bertheau credibly
15 testified that he helped execute the custodial transfer of the JOSTIN from the Coast
16 Guard to the Ecuadorian authorities on October 13,2005. Bertheau credibly testified
17 that in preparation for the transfer of custody he completed the Transfer Form, met in
18 person with Captain Eric Benitez of the Ecuadorian police, and witnessed Captain
19 Benitez sign the Transfer Form. Plaintiffs' witness DEA Agent Gerard Dauphinais
20 credibly testified that there was no point in time that the DEA took custody of the
21 JOSTIN and that he never conducted a search of the JOSTIN. Both Bertheau and
22 Dauphinais credibly testified that they did not cause or see any damage to the boat
23 Dauphinais also testified that he did not see the Ecuadorian National Police do any
24 physical damage to the vessel while she was at sea or at the pier in Puerto Bolivar. A
25 naval message dated October 24, 2005, Plaintiffs' Exhibit 7, stated that on or about
26 October 15, 2005, the JOSTIN was released and sailed out under her own power. The
27 Court concludes that on October 13, 2005, the custody ofthe JOSTIN was transferred
28
- 19 -
07cv817-WQH-lLB
1 from the Coast Guard to the Ecuadorian National Police. The Court concludes that
2 Plaintiffs did not establish by a preponderance of the evidence that the JOSTIN
3 sustained any damages or losses while it was in the custody of the Coast Guard.
4
5
ii. Illicit Actions
The United Nations Convention Against Illicit Traffic in Narcotic Drugs and
6 Psychotropic Substances (1988) defines "illicit traffic" as committing any of the
7 offenses listed in Article 3 of the Convention. 28 LL.M. 493,499 (1989). Article 3
8 offenses include any action engaging in the possession, manufacture, distribution,
9 transit, import, export or trade in prohibited substances, as well as any activity "aiding,
10 abetting, facilitating and counseling the commission of any ofthe offences established
11
12
in accordance with this article." Id. at 501.
At trial, sufficient evidence was presented, primarily through the admission of
13 Plaintiffs' exhibits, regarding the JOSTIN' s involvement in illicit actions. The JOSTIN
14 was seen located along the JOSE ANTONIO in waters not known for finishing and
15 outside of Ecuador' s Exclusive Economic Zone. The Coast Guard discovered cocaine
16 on the JOSE ANTONIO before the Coast Guard boarded the JOSTIN, and after a pier17 side search, the JOSE ANTONIO was found to have 5,300 pounds of cocaine onboard.
18 The JOSTIN wrongly reporting to the McCLUSKY that Washington Luca Franco was
19 the captain of the vessel. The JOSTIN had an amount of fish on the boat that was
20 inconsistent with the stated length of the voyage and the amount initially reported by
21 the JOSTIN to the McCLUSKY. There was insufficient ice in the cooler on the
22 JOSTIN to keep the fish cold. The fish were intact and the machete, which was
23
supposed to behead the fish, was rusted and dulled. The ship captain, Cedeno, and the
24 vessel engineer were unfamiliar with how many fuel tanks were located onboard the
25 JOSTIN. There were two fuel tanks present on the ship that were not on the ships
26 schematics and,-initially, not reported by Cedeno or the vessel engineer. There were
27 five pangas with long range radio antennas attached to the JOSTIN. Upon a pier-side
28
- 20-
07cv817-WQH-JLB
1 search, suspicious text message correspondence was located on Cedeno's cellular
2 phone. There was subsequent information alleging that the JOSTIN had successfully
3 delivered approximately 1.5 tons of cocaine at sea prior to being boarded by the Coast
4 Guard. The Court concludes that Plaintiffs did not establish by a preponderance ofthe
5 evidence that the JOSTIN and its crew were not involved in illicit actions. In addition,
6 the evidence strongly infers that the JOSTIN and its crew were involved in illicit
7 actions.
8 III. Conclusion
9
IT IS HEREBY ORDERED that Plaintiffs' Emergency Rule 37 and Rule 26(b)
10 Motion or in the Alternative Plaintiffs' Motion for a Continuance is denied.
11
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in
12 favor of Defendant and against Plaintiffs as to all claims in the Complaint.
13
14
WILLIAM O. HA S
United StateslJistr' t Judge
- 21 -
07cv817-WQH-JLB
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