Mylonakis v. Georgios M., CIVIL ACTION NO. H-10-3031

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: SIM LAKE
• Parties: IOANNIS MYLONAKIS, Plaintiff, v. THE M/T GEORGIOS M., her engines, tackle, etc., in rem; STYGA COMPANIA NAVIERA S.A.; HELFORD MARINE INC.; KYRIAKOS MAMIDAKIS; NIKOLAOS A. MAMIDAKIS; ALEXANDROS N. MAMIDAKIS; and ALEXANDROS G. PROKOPAKIS, Defendants.
• Docket Number: CIVIL ACTION NO. H-10-3031
• Decision Date: 03 December 2012

IOANNIS MYLONAKIS, Plaintiff,
v.
THE M/T GEORGIOS M., her engines, tackle, etc., in rem;
STYGA COMPANIA NAVIERA S.A.; HELFORD MARINE INC.;
KYRIAKOS MAMIDAKIS; NIKOLAOS A. MAMIDAKIS;
ALEXANDROS N. MAMIDAKIS; and ALEXANDROS G. PROKOPAKIS, Defendants.

CIVIL ACTION NO. H-10-3031

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DATED: December 3, 2012

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action against defendants, M/T Georgios M., her engines, tackle, etc., in rem ("the Vessel"); STYGA Compania Naviera S.A. ("STYGA"), Helford Marine Inc. ("Helford"), Kyriakos Mamidakis, Emmanuel A. Mamidakis, Nikolaos A. Mamidakis, Alexandros N. Mamidakis (collectively, "the Mamidakis Defendants"), and Alexandros G. Prokopakis, for violation of the Act to Prevent Pollution from Ships ("APPS"), 33 U.S.C. § 1910, general maritime claims for unseaworthiness, negligence, intentional misrepresentation, breach of the duty to defend, maintenance and cure, double wages under 46 U.S.C. § 10313, and pendent state law claims for malicious prosecution, breach of fiduciary duty, and gross negligence. Plaintiff seeks statutory

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civil penalties and attorney's fees for his APPS claims and seeks compensatory and exemplary damages for his other claims. Pending before the court are plaintiff's Emergency Motion to Sanction Certain Defendants for Perjured Deposition Testimony (Docket Entry No. 79); Defendant Nikolaos A. Mamidakis' Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 88); STYGA Compania Naviera S.A. and Helford Marine Inc.'s Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 89); Defendant Kyriakos Mamidakis' Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 90); Alexandros G. Prokopakis's Amended Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 91); Defendant Emmanouil A. Mamidakis' Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 92); and Defendant Alexandros N. Mamidakis' Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 93); Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claims Under 33 U.S.C. § 1910 a/k/a Act to Prevent Pollution from Ships (Docket Entry No. 94); Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claims for Maintenance & Cure and Penalty Wages Under 46 U.S.C. § 10313 (Docket Entry No. 95); Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claim of Malicious Prosecution Under Texas Law (Docket Entry No. 96); Defendants'

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Amended Motion for Partial Summary Judgment on Plaintiff's Claim for Breach of the Duty to Defend (Docket Entry No. 97); and Defendants' Objections to Evidence Offered by Plaintiff (Docket Entry No. 115).

For the reasons explained below, Plaintiff's Emergency Motion to Sanction Certain Defendants for Perjured Deposition Testimony (Docket Entry No. 79) will be denied as to the individuasl defendants and granted in part and denied in part as to the corporate defendants; STYGA and Helford's Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 89) will be granted in part and denied in part; and the Mamidakis Defendants' Amended Motions to Dismiss will be granted for lack of personal jurisdiction and moot as to improper venue (Docket Entry Nos. 88, 90-93). Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claims Under 33 U.S.C. § 1910 a/k/a Act to Prevent Pollution from Ships (Docket Entry No. 94) will be granted; Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claims for Maintenance & Cure and Penalty Wages Under 46 U.S.C. § 10313 (Docket Entry No. 95) will be denied; Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claim of Malicious Prosecution Under Texas Law (Docket Entry No. 96) will be granted; Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claim for Breach of the Duty to Defend (Docket Entry No. 97) will be granted; and Defendants' Objections to Evidence Offered by Plaintiff (Docket Entry No. 115) will be declared moot.

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I. Factual Background

Plaintiff is a citizen and resident of Greece.¹ On or about November 24, 2008, in Athens, Greece, plaintiff entered into a Seaman's Contract of Employment with STYGA.² From November 29, 2008, to March 1, 2009, plaintiff served as Chief Engineer onboard the M/T GEORGIOS M.,³ a merchant vessel registered in Malta.⁴ At all times material to this action the M/T GEORGIOS M. was owned by Helford, a business entity organized under the laws of Liberia that did not have a regular place of business in Texas.⁵ At all times material to this action STYGA was a business entity organized under the laws of Panama that managed and operated the M/T GEORGIOS M.

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for Helford and did not have a regular place of business in Texas.⁶ Plaintiff alleges that the "MAMIDAKIS DEFENDANTS were the beneficial owners and persons who controlled HELFORD, STYGA, and the M/T GEORGIOS M."⁷ Defendants acknowledge that

[d]efendant Kyriakos Mamidakis, a resident citizen of Greece, was the President and a member of the Board of Directors of both STYGA and Helford. (See Decl. of Kyriakos Mamidakis, attached hereto as Ex. 3, at ¶¶ 2 and 11.) Defendant Emmanouil A. Mamidakis, a resident citizen of Greece, was the Treasurer and a member of the Board of STYGA and Helford. (See Decl. of Emmanouil A. Mamidakis, attached hereto as Ex. 4, at ¶¶ 2 and 12.) Defendant Nikolaos A. Mamidakis, a resident citizen of Greece was the Vice President of STYGA and a member of the board of directors of STYGA. (See Decl. of Nikolaos A. Mamidakis, attached hereto as Ex. 5, at ¶¶ 2 and 11.) Defendant Alexandros N. Mamidakis, a resident citizen of Greece, was a member of the board of directors of STYGA. (See Decl. of Alexandros N. Mamidakis, attached hereto as Ex. 6, at ¶¶ 2 and 11.) Defendant Alexandros G. Prokopakis, a resident of Greece and a citizen of the United States, was the Secretary of Helford and a member of the board of directors of both STYGA and Helford. (See Decl. of Alexandros G. Prokopakis, attached hereto as Ex. 7, at ¶¶ 2 and 7.)⁸

On or about November 29, 2008, plaintiff arrived at Puerto Limon, Costa Rica, to board the M/T GEORGIOS M. and replace Argyrios Argyropoulos ("Argyropoulos") as Chief Engineer.⁹

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On February 19, 2009, at the port of Texas City, Texas, the United States Coast Guard (USCG) initiated an investigation into alleged unlawful discharges of oily waste from the M/T GEORGIOS M. This investigation caused the United States to file criminal charges against STYGA as manager and plaintiff as Chief Engineer of the M/T GEORGIOS M.¹⁰ The criminal charges arose from discovery of a bypass pipe also known as a "magic pipe" onboard the vessel used to discharge overboard engine room oily waste in violation of the International Convention for the Prevention of Pollution from Ships, known as MARPOL, and its United States codification known as the Act to Prevent Pollution from Ships (APPS), 33 U.S.C. §§ 1901, et seq.¹¹

On February 25, 2009, STYGA and Helford entered into an Agreement on Security with the USCG pursuant to which the United States agreed to release the M/T GEORGIOS M. in exchange for STYGA and Helford's agreement to post a surety bond and to provide for the care, salaries, lodging, per diem and needed transportation for crew members from the M/T GEORGIOS M. — including plaintiff — who the USCG required to stay in the Southern District of Texas until the criminal investigation concluded.¹²

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On August 20, 2009, a federal grand jury indicted plaintiff on two counts of violating the APPS, 33 U.S.C. § 1908(a), for failing "to maintain an Oil Record Book for the M/T Georgios M in which all disposals of oil residue, overboard discharges, and disposals of oily bilge waste water were required to be fully recorded."¹³ The Indictment also charged the plaintiff with two counts of False Statements in violation of 18 U.S.C. § 1001(a)(2),¹⁴ and one count of Obstruction in violation of 18 U.S.C. § 1519.¹⁵

On September 2, 2009, STYGA's Board of Directors resolved "[t]hat STYGA . . . is authorized to waive its right to indictment with regards to the investigation by the United States Attorney for the Southern District of Texas."¹⁶ An Information dated October 8, 2009, charged STYGA with violating the APPS by failing "to maintain an Oil Record Book for the M/T Georgios M in which all disposals of oil residue, overboard discharges, and disposals of bilge water were required to be fully recorded."¹⁷ The Information alleged that STYGA

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maintained an Oil Record Book that: (1) falsely and affirmatively claimed discharges of bilge waste had been made through the use of an Oil Water Separator and that sludges had been incinerated; (2) failed to disclose overboard discharges of oily sludge and bilge waste made through bypass equipment and without the use of a properly functioning Oil Water Separator and oil monitoring equipment and incinerator; (3) failed to record all tank to tank transfers, including transfers from the bilge tank into the drain oil tank; and (4) that created the...