# Petition for Writ of Certiorari — Benetic ex rel. Benetic Family Trust v. M/Y ATHENA ALEXANDER

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1115

## Text

AND |
BRIE

===

No. CG AGAE1 pan 1° 20049

mn a tenner or

3n The
Supreme Court of the United States

,
a

NICHOLAS J. BENETIC, and SANDRA L. BENETIC,
as Trustees of the Revocable BENETIC FAMILY TRUST -—
dated: September 22, 1993,

Petitioners,
v.

M/Y ATHENA ALEXANDER, Official No. 1083627
and her Engines, appurtenances, etc., In Rem,
AND

DIMITRI BIZOUMIS, ALEX KATS, VALERIE KATS
& BAYPORT YACHTS, INC., a California Corporation,
and DOES 1 through 10,

Respondents.

,
4

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

2
vv

PETITION FOR WRIT OF CERTIORARI

=.
bf

NICHOLAS J. BENETIC & SANDRA L. BENETIC
Trustees of the Revocable

Benetic Family Trust dtd.: 09/22/1993
2708 Foothill Bl. #402

La Crescenta, California 91214-3516

Tel. (213) 268-8420

Msg. & Facsimile (213) 387-5778

QUESTIONS PRESENTED

1. Does the United States Court of Appeals for the Ninth
Circuit in San Francisco, California have the right to
deny our petition in a “general” denial without clearly
evident substantial review of our case?

2. Does the Federal Ninth Circuit Court of Appeals in
San Francisco, California have the right to deny our
petition to Publish, (by not answering our motion),
its decision as the case law for all citizens in the U.S. or is
its decision only the special private individual law for
petitioner. Is this, the law of the land or, is it law: for
petitioner’s only?

3. Do the three Ninth (9th.) Circuit Judges make the
decision that the case will not be heard “en banc” and
deny petitioners right of appeal?

4. Does District Court Judge Audrey B. Collins have the
right to formulate a money judgment based on hearsay by
defense?

5. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein plaintiffs
were denied the right to cross examine witnesses?

6. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein the vessel
named in REM was not allowed to be arrested by the
U.S. Marshal in order to be legally and properly served as
a named defendant, due to the conspiracy of defense in
personam counsel?

7. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein the Judge

ii

QUESTIONS PRESENTED - Continued

allowed the attorneys for the in personam defendants
acting in stead and without permission of the current
vessel owner to place a verified fraudulent bond in lieu
of arrest for the vessel named in rem (the vessel having
being sold twice thereafter to third parties, the current
owner was left out by the court in its right to defend its
own vessel)?

8. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein Judge
Collins working in tandem with defense counsel refused to
arrest the vessel named in rem and ordered that plaintiff's
numerously serve the new owner(s) with 15-day-advance
notice of intent to arrest causing owner to evade
arrest, in fact the owner then sold the vessel named in
rem to another third party without notification that the
vessel was named in rem in a federal action (the vessel
was never arrested even though plaintiff’s complied with
the courts’ exact orders numerously). Judge Collins did not
want another lawsuit initiated by the vessels’ owners
causing defense in personam counsel to separately be
sued: a violation of Federal Admiralty Rule “C”?

9. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein she ordered
plaintiffs to numerously delay trial (days before the first
trial date and many other trial dates thereafter) and
forcing plaintiff’s pay for first class travel, lodging and
meals for the Court “appointed” “neutral” expert to come
out to California from Rhode Island in order to determine
the repair costs of damages, this “special” court expert
was in fact hired by defense counsel in May 2000
(before the case was even filed)! This was a

ili

QUESTIONS PRESENTED - Continued

calculated and criminally conspired act between the
defense counsel and Judge Audrey B. Collins, the
record reflects this. Once confronted by this at trial,
Judge Collins was silent. Does Judge Audrey Collins
have the right to hire a defense employee as the courts’
neutral expert?

10. Does Judge Collins have the right to work for defense
counsel and third-party insurance company while working
as a Federal Judge?

11. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein Judge
Collins allowed, at the “last minutes,” defense counsel at
first trial date to personally investigate with “hearsay”
claimed doctors via telephone only to state that in per-
sonam named defendant Alex Kats would become “too ill,
due to trial stress” to witness at trial. Plaintiff’s had no
right to talk to or, verify the validity, nor cross examine
this “telephoned doctor” that defense counsel provided
telephone number for (plaintiff’s did not have the right to
determine the validity of this “doctor”!). Does Judge
Collins have the right to exclude plaintiff from this biased
process by defense and the Court?

12. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein she was in
pre-disposition with cumis counsel John Petrullo and
determinant that in personam defendant Dimitri Bizoumis
would not be liable for punitive damages at the
federal district civil trial as the result of his People of the
State of California convicted criminal actions due to
hit and run, failure to report, and subsequent gross

iv
QUESTIONS PRESENTED - Continued

intentional negligence, causing a threat to the lives and
property of others as the result of his selfish actions on
June 27, 1999 and thereafter?

13. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein she totally
excludes the testimony of plaintiff’s expert wit-
nesses at trial (Mr. Hugo Carver — officer and founder of
Knight and Carver Shipyard in San Diego, California — an
internationally accredited vessel repair and manufactur-
ing facility, which also performs work for the U.S. Navy
and other governmental agencies) as to actual costs of
damages to plaintiff’s vessel?

14. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein she issues
a money judgment on hearsay by the defense “expert”
Todd Schwede based on,a “friendly” bid by Shelter Island
Boatyard in San Diego, CA., a friend and landlord of Todd
Schwede who never physically inspected plaintiffs’ vessel
and issued a fraudulent document for less than pennies of
the real cost of repairs. Once Judge Collins issued a money
judgment for this criminally fraudulent amount: plaintiffs
wrote to Shelter Island Boatyard to come and get the
vessel and repair it. Based on this fraud bid, the Boatyard
wrote back refusing to now honor their written documents.
Judge Collins was then advised via plaintiffs’ motion and
then ignored by Judge Collins via denial. Does Judge
Collins have this right with hearsay?

15. Does District Court Judge Audrey B. Collins have the
right to intentionally formulate a case in Admiralty
wherein the plaintiffs/petitioners (the victims of criminal

Vv

QUESTIONS PRESENTED - Continued

activities by defense and its agent counsel from June 1999
to date) owe money damages to the defendants (the crimi-
nals) in further criminal conspiracy since November 2000?

16. Does District Court Judge Audrey B. Collins have the
right to formulate a case in Admiralty wherein a ridiculous
offer of judgment was made years after the incident by
defense counsel knowing well in advance that the defense
would have the trial manipulated to a final judgment for
less than the offer made in order to recover defense costs
as a final “stab in the back” of plaintiffs with the conspir-
acy of defense counsel and this rogue federal judge?

17. Does the District Court have the right to allow
defense in personam to obtain a full satisfaction of judg-
ment without their Markel Insurance Co. check for
$17,736.37 being cashed by plaintiffs, on the courts’ own
volition?

18. Does the District Court have the right to not hear
plaintiff's February 18, 2005 motion to order full satisfac-
tion of judgment as to defendant’s costs awarded post-
judgment by the district court, having full payment being
made by plaintiffs to defendants on January 12, 2005 in
the amount of $14,152.39 with interest to January 15,
2005. Defendants refused to cash this check since it was
made to defendants Kats and Bizoumis and not made out
to Markel Insurance Co. (a non-party to this case): as the
defense attorneys demanded without any basis of author-
ity, another extortion and fraud by defense counsel —
leaving a unresolved void in this case by the district court,
thus causing further financial harm to plaintiffs each and

vi
QUESTIONS PRESENTED - Continued

every day: with no option but to ask the Supreme Court for
its opinion?

19. Does the lower court have the right to violate the
Constitutional Rights of Plaintiffs/Petitioners under the
color of law?

20. Does District Court Judge Audrey B. Collins have the
right to hear this case wherein her husband is the Director
of Los Angeles County Pediatric Dentistry and defendant
Dimitri Bizoumis is a Pediatric Dentist, who also works at
Rancho Los Amigos Hospital in Norwalk, California, a
public entity of Los Angeles County. Mr. Bizoumis and Mr.
Collins are both Pediatric Dentists, are both members of
the same dental associations; they attend functions mutu-
ally, they know each other. Judge Collins was asked for
numerously, to voluntarily-involuntarily recuse herself,
yet refused, and no other judge wanted her cases?

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vii

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED 0000. ooo ooo cccccccccccceecceeeee i
TABLE OF AUTHORITIES ..0.0..o... o.oo coccccccccceccceeeee. ix
i TITAS AIT ER 1
TEE aS eRe LN: PRES RD 1

CONSTITUTIONAL AND STATUTORY PROVISIONS
RO RN OMe NTA 2
STATEMENT OF THE CASE ..000000.. ooo occccccccceceeeeeee.. 2
NC ee ES Li a ae: 6

INTERNATIONAL CONVENTION (LISBON
PT hnciadianliiceihancitilaliaienicaiiias atetn taal ia te 8
RULE II - DAMAGES TO VESSEL...................... 8
SURVEY AND RECLASSIFICATION EXPENSES 9
OVERHEAD EXPENSES 0000... .ccccccccccceoeseesss... 10
UNREPAIRED DAMAGE 0000. ooo ecccccccccccccceceeeees. 10
SURININED PUIIIIOIOY sciccccskcronsssciscscsnsmsaasantecneessuie, 10
PROVING THE VALUE OF VESSEL................... 11
HEARSAY OF DEFENSE EXPERT...................... 12
RR a a 13
THE LAW OF LEGAL TITLE................................. 13
U.S. SUPREME COURT QUOTES..................... 16
POINTS MADE AND IGNORED ON APPEAL...... 17
DEFENSE AND JUDGE CONSPIRACY .............. 17
RIGHT OF CROSS EXAMINATION .................... 17

Vili

TABLE OF CONTENTS - Continued

Page

BOND IN LIEU OF IN REM ARREST IS A
PPRRA UD. ......cccccsccccccccsccccssccssscscccccccssssssccsccsccoosssoooes 19
NOT ARRESTING THE VESSEL IN REM ............. 20
THE BAYPORT ISSUE ...........::ccseeeeeeeeeeeeeeeeeenenees 22
UNNECESSARY APPOINTMENTS ...........:22-:+000+4 23
UNFAIR ADVANTAGES TO THE DEFENSE........ 27

REASONS FOR GRANTING PETITION ON WRIT
OF CERTIORARI ............ccccseeeeseeeeeeeeeeeeeeeeeeeneeeeenes 29
CONCLUSION. .........cccsssececeeeeeceeseeeeeneeeseeeeensaneeeserens 30
APPENDIX INDEX TO EXHIBITS............02::00:eee000 App. i

ix
TABLE OF AUTHORITIES

CASES:

Atkins v. Alabama Drydock & Shipbuilding Co.,
195 F.Supp. 944, 1961 AMC 909 (S.D. Ala. 1960).....9, 24

A&S Transportation Co. v. Tug Farjaro, 668 F.2d 1,
BE FS BCE CE, BI ccsndesscnticcsncsseccoserssccssecnce 7, 24

BP Exploration & Oil Inc. v. Moran Mid-Atlantic
Corp., 2001 U.S. Dist. LEXIS 8624 (D. N.J. 2001)... 7, 24

Bouchard Transportation Co. v. Tug Ocean Prince,
691 F.2d 609, 1982 AMC 2944, 68 ALR Fed. 761

(2nd Cir. 1962)...........00000: SsieuihicasincsAiacaaanedeainiabickxohe 11
Bunge Corp. v. Freeport Marine Repair Inc., 240

F.3d 919, 2001 AMC 1367 (11th Cir. 1994) .......00000... 9, 24
Dillingham Shipyard v. Associated Insulation Co.,

649 F.2d 1327 (Sth Cir. 1961)....................cccccccccccees 10, 24
Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300,

RO77 ABB GOS (56s Cie, 1676)......ccccccsoscorcssscsocssscaseses 7, 24
Gaines Towing & Transportation Co. v. Atlantia

Tanker Corp., 191 F.3d 633 (5th Cir. 2000)............... 7, 24

Hewlett v. Barge Bertie, 418 F.2d 654 (4th Cir. 1969)....... 10

Hozie v. Vessel Highland Light, 1998 AMC 2829
OAS a 22, 23

Independent Bulk Transport Co. v. Morania Abalo,
676 F.2d 23, 1982 AMC 1535 (2nd Cir. 1982)................ 10

In re Nichole Trahan, 10 F.3d 1190, 1994 AMC 1253
I 9, 24

Oliver J. Olsen & Co. v. Marine Leopard, 356 F.2d
728, 1966 AMC 1064 (9th Cir. 1966)................c cee eeeee 11

TABLE OF AUTHORITIES -— Continued

Ryan Walsh Stevedoring Co. v. James Marine
Services, Inc., 792 F.2d 489, 1987 AMC 1611 (5th
Clee SIG ecccnssicccscsiiscnssutnaridaidhidsisinsanmiciianiideiniadbais 7, 24

Shappert Engineering Co. v. Steel City Marine
Transport, Inc., 620 F Supp. 1377 (D. Mo. 1985).... 10, 24

South Central Bell Telephone Co. v. Merritt Dredg-
ing Co., 726 F. Supp. 1061 (S.D. Miss. 1989).......... 10, 24

Southern Pacific Co. v. Jensen, 244 U.S. 205, 37
S. Ct. 524 (61 L. Ed. 1086, Ann. Cas. 1917E, 900)

CRIT Ds cccincussssbichuinssibdehansestivuadecaudadacinacniiivniuamiediaiaiiuenatdiain 16
Standard Oil Co. v. Southern wabesteis ic Co., 268 U.S.

SAE TET iccisentiiniticihnididatsanadininisitealbicdaabnianiabpnasiomssalielibliaas 7, 24
The Baltimore, 75 U.S. 377 (1868) ..........ccccscsseccssscccesses 7, 24
The B.F. Guinan, 40 F.2d 277, 1930 AMC 219 (E.D.

BU; MITE cinincsbadccasardondibiahsdteapaiuetehidsangianiladniesanintoalaen 10
The Lottawanna, 21 Wall. 558, 575 (22 L. Ed. 654) ......... 17
United States v. Peavey Barge Line, 748 F.2d 395

I IE, - NP cceciehsicdtnscshtisciaahaigsiieiaciteiisntestioslekieanenioningncoamn 10, 24

United States v. Ship Owners and Merchants
Tugboat Co., 205 F.2d 352, 1953 AMC 1259 (9th

EE FIIID ccictns csnticcntnsocsicinnsodecsdnichdekebicioubateciasihbiatasinlcenenssiadiiees 10
Yarmouth Sea Products Limited v. Scully, 131 F.3d
389, 1998 AMC 825 (4th Cir. 1997)......... eee eeeeeeeeweee 10

U.S. CODES AND OTHER STATUTES:
Simpberalbas TOURS << Cl, Dy Bos ccniascsensnsnisnenssaeininnciiscsnencsune 20, 27
California State Uniform Commercial Code..................... 14

International Convention — Lisbon Rules........................62- 8

xi

TABLE OF AUTHORITIES - Continued

Page

Federal Rules of Civil Procedure 34, L.R. 6.2.4 (26-
cig ION IU COR att OIR; STUN Ea Op 20
Federal Rules of Evidence code 706............................ 26, 29
Federal Rules of Evidence code 802.............cccece0000........ 17
U.S. Admiralty Law — Restitution in Integrum........ 6, 7, 28
U.S. Constitution — 14 Amendment ...0........cccccecececccecscs., 2
WAM MONOID MIN oo oisssssnasernsinassnurdenacveccecesieccess.. passim
I einai niacasnicnanihbiinnceiiusshiseacesdiaaesiteanaichnasiannsccecsc3 passim
I I i isicthncicnnciendaridaadscatstinausatisacaceksseceluitean co 1
46 USC § 2131.................. iapaieidehddina cide nthdtldaapatassibinatissanstaons 13
PT IF ME anccetiichiakeinetsnaueictnh iedhediadeis andsatcasccxcacs 3, 14, 22
A OP I inches cite i ee 13, 14, 15, 22

1

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of
certiorari issue to review the judgment below.

OPINIONS BELOW

For cases from federal courts: The opinion of the
United States Court of Appeals appears at Appendix —
Exhibit A to the petition and is unpublished.

The opinion of the United States District Court
appears at Appendix — Exhibit B to the petition and is
reported at American Maritime Cases as: Benetic v. M/Y
Athena Alexander, 2002 AMC 297 (C.D. Calif. 2001).

JURISDICTION

For cases from federal Courts: The date on which the
United States Court of Appeals decided my case was
October 22, 2004.

A timely petition for rehearing was denied by the
United States Court of Appeals on the following date:
December 20, 2004, and a copy of the order denying
rehearing appears at Appendix — Exhibit C. ;

The jurisdiction of this court is invoked under 28
U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

Constitutional Protected Rights:
U.S. Fourteenth Amendment

The Requirements of Due Process. - Procedural due
process rules are meant to protect.persons not from the
deprivation, but from the mistaken or unjustified depriva-
tion of life, liberty, or property.”

STATEMENT OF THE CASE

This case is the direct result of the violation of 33 CFR
173.57 (hit and run) on June 27, 1999 and the resultant
conspired intentional and conspired malicious gross bad
faith mutually conspired conduct of the defendants and
each of them and their “agents” attorney’s (et al.). Through-
out this case and since June 27, 1999 the date of the crimi-
nal hit and run and failure to report, once defendants were
found: Defendant Dimitri Bizoumis stated: “Oh Shit! How
did you find me?” - a clear indication of his intent and
actions, yet: the plaintiffs have initially requested that the
defense simply “fix and repair” the damages caused by
them to the plaintiff’s vessel. It is fact: that the defendants
always refused to simply “fix the vessel”, therein forcing
this litigation to commence on June 26, 2000 and continue
through date. This case is the direct result of an intentional
allission (defined as the collision of a moving (respondent’s)
vessel with a stationary (petitioner’s) vessel) perpetrated by
defendant Dimitri Bizoumis. Dimitri is an admitted incapa-
ble pilot of any vessel other than a “dinghy”, that boarded
his father-in-laws’ (Kats who is, also unqualified to operate,
without a professional captain) newly acquired vessel with
gross negligence. Dimitri Bizoumis knew weeks beforehand

3

that the vessel he had control of, and had: “sent to sea” was
in an unseaworthy state, as he states “the vessel had
involuntary gas engine shut down problems”. Dimitri also
knew that he had no vessel piloting experience ever ...
Dimitri’s father-in-law: Defendant Alex Kats, the purported
vessel owner also knew at the time of the allission, that the
vessel that he allowed to be operated by Dimitri, and his
family (including their two minor children: the Kats’ grand-
children!) had at that time been unseaworthy, as the vessel
in fact had engine problems and the fact that Defendant
Dimitri was in fact an incapable pilot. Regardless to the
vessel being “unseaworthy” and knowing that Dimitri was
in fact a incapable pilot, the Kats, allowed Dimitri to
operate it, thereby endangering the lives of everyone in the
marina and in the general area (plaintiffs believe that this
was done so that the Kats can commit insurance fraud and
obtain a bigger and better diesel powered vessel as they
have done. As verified by their own initial attorney, Mr.
Phillip Chronis (who has since died due to undue stress
from his clients) via consented voice taped conversation
with Petitioners). Alex Kats then committed an act of gross
negligence in sending an unseaworthy vessel to sea. 46
USC § 10908, (a crime). On June 27, 1999 the U.S. vessel
M.Y. “Athena Alexander” in rem: operated by Dimitri struck
the plaintiff's moored and stationary U.S. vessel the S.Y.
“Buenos Aires” at an excessive rate of speed, “speeding”
through the close confines of the marina the defendant’s
vessel locked up with Plaintiff’s vessel. Dimitri rather than
“shutting down” the Athena Alexander, continued to ram
forward and reverse causing further damages with intent to
flee the scene as witnessed by many in the area. A crime of
“Hit and Run”. After the “allission” Dimitri then proceeded
to flee to the open water of the marina, all the while his
wife and children screaming for help, after other witnesses

4

called the L.A. Port Police and the U.S. Coast Guard, L.A.
County Lifeguards and L.A. City Fire Dpt. vessels re-
sponded, forced to matching his circling high speed course,
shifting from forward to reverse at high speed, officers
demanding in vain — ordering Dimitri to stop and shut off
his engines, answering: “I don’t know how!” wherein
officers heroically boarded the vessel, forcefully shut the
vessel down. His voyage was then terminated by the Los
Angeles County lifeguards, and being unable to return to
his mooring, was towed back, moored and the Bizoumis
family quickly left the area without advising anyone of the
incident. Local tenants stopped Bizoumis and told Bizoumis
that he had hit the vessel “Buenos Aires”, Bizoumis,
shrugged them off and left. At this time plaintiff’s vessel
was taking on sea water from the allission damage to the
below water keel to hull joint of their vessel. Bizoumis
failed to advise the local authorities, simply left the scene of
his crimes. It is fact: that the plaintiffs were not advised by
defendants of the allission but rather by the concerns of the
marina tenants. It is fact: that plaintiffs in the form of
letter(s) asked for an amicable resolution of the issue
of the damages to the plaintiffs vessel. It is also fact:
that plaintiffs asked to “meet and confer” with Bizoumis
and Kats to try to resolve amicably: the damages caused by
Bizoumis at the Los Angeles Port Police Station in San
Pedro. Defendants never responded to any of the total of five
(5) letters over the time of one (1) year that Plaintiffs had
sent, requesting an amicable resolution to the damages
caused by Bizoumis. Bizoumis then retaliated maliciously
and sued in civil court: his victim of his crimes: Mr. Nick
Benetic “personally” falsely claiming harassment, as a
tactical ploy to get out the pending state prosecuted crimi-
nal charges, instead of offering to fix and repair the dam-
ages he had caused. Dimitri rather than making restitution

ete ce.

5

for the damage he himself had caused, sued plaintiffs with
malice for harassment. In that case Bizoumis acted with
GROSS conspired intentional and malicious Bad Faith,
with intent to mislead the court by committing several acts
of perjury in his moving papers. The harassment case after
six months and more than $35,000.00 spent in Benetic’s
defense and attorney costs was eventually resolved in the
Benetic’s favor and the Judge went further to state that
Nick Benetic acted within his “constitutional protected
rights” to try to resolve the allision damages caused by
Bizoumis. The plaintiffs were now left with the only option,
to sue Bizoumis and the vessel owners in the form of this
Admiralty Action in the Federal Courts. The plaintiffs,
SIX (6) years later, are now filing this petition for a writ
of certiorari with the U.S. Supreme court as established
codified U.S. Admiralty Law and U.S. Constitutional and
other U.S. Law was not followed by the lower courts. It is
fact: that the defense never performed any “competent
survey” of the allission damage and the fraudulently
conspired, San Diego area Shelter Island Boatyard, repair
facility defense and district judge relied upon, never
inspected the vessel. The defense and district judge then
proceeded and “drag out” plaintiffs for six years in this
litigation with intent and in their hopes that the plaintiffs
will simply “go away”. It has been since June 27, 1999
the allission, (the hit and run and failure to report
crimes by defendant Bizoumis) and still without
adequate dollars being given to plaintiffs for full
restitution or any repair. The defense never offered to
repair and fix the damage they had caused and never
worked with plaintiffs to mitigate the damages in fact they
did the opposite. They hindered and obstructed. These
conspired intentional gross bad faith acts caused additional
financial harm and undue stress to Plaintiffs; all violating

6

the plaintiffs’ civil and constitutionally protected rights. . .
the same rights that plaintiffs fight for and that drove
plaintiff Nick Benetic to voluntarily join and later be
honorably discharged from the U.S. Army. From June 27,
1999 to date NO JUSTICE has been obtained in fact it has
cost Benetic over $250,000.00 to get to this date, plus a loss
of normal income (over $1.2 million) from July 1999 to date
(March 2005) approximately six (6) years of undue and
malicious stress due to gross bad faith by defendants, and
additional other losses. Our attorney Richard Caillouette,
Sr. died. In fact: Benetic (the victims-plaintiffs-petitioners)
owe money to the criminals for their acts, thanks to un-
scrupulous rogue lawyers and rogue lower court judge(s). In
Admiralty Law: The general rule “restitutio in inte-
grum” To make the victim whole as if the incident had
never occurred! Hugo Carver was deposed and testi-
fied at trial as to the costs to repair our vessel. This is
a rule that is currently not disputed among the parties.

ARGUMENT

The rules “minimize substantively unfair or mistaken
deprivations” by enabling persons to contest the basis
upon which a State proposes to deprive them of protected
interests. Thus, after the determination of the existence of
a protected interest at issue, it must still be determined
what procedure is adequate. Plaintiffs lost their right to
due process, to the right of the protection of their property.
Fact vs. law vs. opinion of lower courts re: general
rule - Damages to the plaintiff's vessel, The general
rule “restitutio in integrum” This is a rule that is
currently not disputed among the parties. Brief history of
“Restitutio in Integrum” this doctrine started in the
Roman Empire, where Ticius did wreng to Caius. The

7

former had to compensate the latter by “Restitutio in
Integrum”. That meant and still means to this day, placing
the victim of a breach of contract or a tortious act in the
same position they were before the event. The Romans
clearly understood the principal that the claimant must be
put back to where they were before the damage was done
to them, and this would never be achieved unless the
victim was fully compensated, hence (in Integrum).
Roman law, then, conceived “Restitutio in Integrum” be
accomplished where the Claimant received the principal
sum due, interests at a certain rate, compensation for
their economic losses and the costs incurred by them in
“seeking Justice”. The general rule in admiralty for the
recovery of damages due to the negligence of others is
“Restitutio in Integrum”, the damaged party is entitled to
be put in as good a position pecuniarily as he was prior to
the damage to his property occurring. The Baltimore, 75
U.S. 377 (1868); Standard Oil Co. v. Southern Pacific Co.,
268 U.S. 146 (1925); BP Exploration and Oil Inc. v. Moran
Mid-Atlantic Corp., 2001 U.S. Dist. LEXIS 8624 (D. NJ.
2001). The first principal in assessing damage in a mari-
time tort “is to place the injured person as nearly as
possible in the condition he would have occupied if the
injury had not occurred.” Gaines Towing and Transporta-
tion Co. v. Atlantia Tanker Corp., 191 F.3d 633 (5th Cir.
2000); Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300,
1977 AMC 508 (5th Cir. 1976). The fundamental rule is
“where property is destroyed by a wrongful act, the owner
is entitled to its money equivalent, and thereby to be put
in as good a position pecuniarily as if his property had not
been destroyed” Standard Oil Co. v. Southern Pacific Co.,
268 U.S. 146 (1925); Ryan Walsh Stevedoring Co. v. James
Marine Services, Inc., 792 F.2d 489, 1987 AMC 1611 (5th
Cir. 1986). A&S Transportation Co. v. Tug Farjaro, 668

8

F.2d 1, 1983 AMC 10 (1st Cir. 1982) held that the damages
of a vessel were: the damages, consequential damages
including incidental damages such as sue and labor costs
reasonably incurred. Plaintiffs were not made whole
in this case, the lower courts made it possible for
the defense to receive satisfaction of judgment
without and before any funds being legally trans-
ferred to plaintiffs ... the lower court also granted a
fraudu!ent cost bill in favor of the defense. (It is fact
that at the cost hearing plaintiffs exposed nearly
half of the defenses’ “so called costs” as fraud,
Shortly after that, the court had the plaintiff Nick
Benetic escorted out by the marshal, out of the
hearing and continued Ex-parte with defense only,
granting the rest of the fraud costs, out of plaintiff’s
rights to cross and defend.

The International Convention (Lisbon rules) Rule A:
these rules are available for adoption in cases where
damages are claimed following a collision. Rule B: When a
vessel is involved in a collision, these Rules shall apply to
the assessment of the damages. Rule C: Subject to the
application of the numbered rules the Claimant shall be
entitled to recover such damages as may be reasonably
considered to be the direct and immediate consequence of
the collision. Rule D: Subject to the application of Rule C
and of the numbered rules, damages shall place the
Claimant in the same financial position as he would have
occupied if the collision had not occurred. Rule II - Dam-
ages to vessels: In the event of the vessel being damaged
but not being a total loss as defined in these rules, the
claimant shall be entitled to recover as damages:

9

(a) the cost of temporary repairs reasonably ef-
fected, and the reasonable cost of permanent re-
pairs. The cost of those repairs shall include but
not be limited to the cost of any necessary dry
docking, gas freeing or tank cleaning, port
charges, supervision, and classification surveys,
together with dry dock dues and or mooring, for
the time occupied in carrying out such repairs.

(b) Reimbursements of sums, for which the
Claimant has become legally liable and has paid
to third parties in respect of such liability, aris-
ing out of the collision by reason of contractual,
statutory or other legal obligations. The SOLE
expert at trial to testify as to costs of repairs is
plaintiff's expert, Mr. Hugo Carver — his deposi-
tion and testimony are of record. No one else
could do so for the defense, except as hearsay.
Defense had no defense.

The plaintiffs were further damaged by the Cal-
lous Disregard for the plaintiffs civil and constitu-
tional rights, when the plaintiffs had no choice but to
pursue this litigation. The plaintiffs were damaged by
having to hire attorneys to defend themselves against
frivolous harassment lawsuits that the defense initi-
ated and attorneys for prosecution in the case in
admiralty, Marina fees, surveyors, yard fees, haul-out
fees, overhead expenses, losses to their normal busi-
ness and personal lives, losses to Pursue Justice” etc.
Plaintiffs were not made whole in this case: they were
put in onel.... Survey and reclassification expenses.
An owner’s reasonable surveyor’s fees incurred to surveying
damage and to obtaining repair estimates are recoverable.
Bunge Corp. v. Freeport Marine Repair Inc., 240 F.3d 919,
2001 AMC 1367 (11th Cir. 1994); in re Nichole Trahan, 10
F.3d 1190, 1994 AMC 1253 (5th Cir. 1994); Atkins v. Alabama

10

Drydock and Shipbuilding Co., 195 F.Supp. 944, 1961 AMC
909 (S.D. Ala. 1960) The plaintiffs have incurred sur-
veyor’s fees and contend that they are recoverable as
to the “general rule”. The trial court judge Audrey B.
Collins did not award any compensation for survey-
ors, but did allow the defense their costs.

Overhead expenses. Reasonable overhead expenses
can be included in the cost of repairs and can be recovered,
even if the injured party makes the repairs itself. United
States v. Peavey Barge Line, 748 F.2d 395 (7th Cir. 1984);
Dillingham Shipyard v. Associated Insulation Co., 649
F.2d 1327 (9th Cir. 1981); South Central Bell Telephone Co.
v. Merritt Dredging Co., 726 F.Supp. 1061 (S.D. Miss.
1989); Shappert Engineering Co. v. Steel City Marine
Transport, Inc., 620 F. Supp. 1377 (D. Mo. 1985)

Unrepaired Damage. The claimant can obtain an
award for the reasonable cost of repairs even if the dam-
age is not repaired. The B.F. Guinan, 40 F.2d 277, 1930
AMC 219 (E.D. N.Y. 1930); United States v. Ship Owners
and Merchants Tugboat Co., 205 F.2d 352, 1953 AMC 1259
(9th Cir. 1953); Independent Bulk Transport Co. v. Mora-
nia Abalo, 676 F.2d 23, 1982 AMC 1535 (2nd Cir. 1982); if
the plaintiff chooses to or is unable to make repairs, ..
damages are therefore to be measured by the estimated
cost of repairs following the accident.

Yarmouth Sea Products Limited v. Scully, 131 F.3d 389,
1998 AMC 825 (4th Cir. 1997), held that the estimated costs
of repairs for a vessel involved in a collision may be
awarded despite the fact that she sank from unrelated
causes before the repairs were made.

Value Diminution. The rule in admiralty is that the
cost of repairs is the equivalent of value diminution Hewlett

11

v. Barge Bertie, 418 F.2d 654 (4th Cir. 1969) Proving the
value of vessel Oliver J. Olsen and Co. v. Marine Leopard,
356 F.2d 728, 1966 AMC 1064 (9th Cir. 1966). If there is no
recent and comparable sales or if the vessel is of
unique features useable only in a restricted trade, a
vessel may prove value by other evidence such as the
opinions of marine surveyors, costs of reproduction
less depreciation, and consideration of condition of
repair, etc., to prove value, as above. The plaintiffs did
in fact prove that the vessel was diminished in value
yet the trial court did not allow the plaintiffs to
recover anything in value that was in fact diminished.
Plaintiffs were not “made whole” according to law... .
Also, the “general rule” is that the vessel owner can recover
the actual reasonable cost of repairs, including overtime.
Bouchard Transportation Co. v. Tug Ocean Prince, 691 F2d
609, 1982 AMC 2944, 68 ALR Fed. 761 (2nd Cir. 1982). In
this case it is true that the defendants have failed to provide
any assistance in the repair process and have acted in total
“gross bad faith” in that they failed to provide plaintiffs with
any assistance in the repair process, rather they sued
Plaintiffs for harassment when the plaintiffs tried to obtain
their assistance and cooperation in the repair process. This
conduct led plaintiffs to believe in the only option, to “Seek
Justice” in the federal courts. The trial courts admit that the
defense sued the victims of their crime of hit and run. This
act was in fact done with malice and intent to injure the
plaintiffs financially and before the plaintiffs could file their
admiralty case. Yet the trial court did not allow the plaintiffs
to introduce as evidence the entire case of harassment
thereby shielding it from the record to the detriment of the
plaintiffs and the advantage of the defense. . . . The plaintiffs
have incurred overhead expenses and contend that these
expenses are recoverable in the “general rule.” The trial

12

court judge Audrey B. Collins did not award any compensa-
tion for overhead expenses although this same judge and the
appellate court did allow the defense to recover its costs....
when the plaintiff was the one that was supposed to be made
whole. ... The trial court did not make the plaintiffs whole
according to law, the plaintiffs still to this day cannot make
the full and necessary legal repairs to bring their vessel back
to its prior condition before the hit and run allision. ...

Expert testimony hearsay rule competence of
witnesses, Todd’s Schwede (defense witness)
disclaimer vs. Mr. Hugo Carver’s (plaintiff’s witness)

Plaintiffs found and contracted the Knight and Carver
shipyard as their expert. It is also fact that the Knight and
Carver shipyard maintains contracts with the U.S. Govern-
ment and repairs vessels for the U.S. Navy, the U.S. Coast
Guard and the U.S. Marines according to law and shipping
standards. The courts order states defenses’ Todd Schwede
was the sole determination of the trial courts judgment,
based on Todd Schwedes’ testimony. The only problem with
that is Schwede does not own, or work for, a actual repair
yard, he works directly for the Markel Insurance Company.
He obtained a verified false repair estimate from a yard
known as the Shelter Island Boatyard, (his landlord and
friend). The plaintiffs were never able to cross examine the
Shelter Island Boatyard and the true drafter/writer of the
defenses’ criminally conspired fraudulent repair estimate
representatives as they DID NOT EVER TESTIFY via
deposition, nor come to trial to be cross examined under oath
__. Plaintiffs are entitled and required cross examination of
Shelter Island Boatyard officers at trial but were not allowed
by the district court to call them as witness since they would
not come voluntarily and could not be forced via summons as

13

they were over 100 miles away. Plaintiffs moved that the
court find that the Schwede reports and Shelter Island Bid
be stricken as to the federal rules of evidence as hearsay
and as incompetent and fraudulent. Plaintiffs were
Ignored ... It is fact: the boat yard of the courts’ and
defenses’ choosing does not meet standards to finish the
repair of the Plaintiff’s vessel. It is fact: that shortly after the
judgment was issued the Shelter Island Boatyard was asked
by plaintiffs if they would make good on their bid. The
Shelter Island Boatyard refused stating their bid was void,
in fact they did not want to even work on our vessel ever for

upon by the courts.... Facts of case summary (define
Gross Bad Faith): The definition of bad faith is the failure
to meet an obligation or duty ... Bayport Yachts, Inc., U.S.

)
(the defenses bid was and is a fraud) and cannot be relied
Coast Guard issued title dispute 46 USC § 2131

Facts of the case for the court with
reference to the Bayport issue

Judicial Canon, Under Canon 3a(1) Adjudicative
Responsibilities.

A judge should be faithful to and maintain
professional competence in the law, and should not
be swayed by patrician interests, public clamor or
fear of criticism.

The law of legal title (46 USC § 31321) Plaintiffs
believe that when the court issued Summary Judgment
against the plaintiffs and for Bayport was an act of incom-
petence in the law with intent to violate the plaintiff’s
civil and constitutional rights. The court ignored and still
ignores the true facts in this case that: Plaintiffs were

14

the victims of a “hit and run” (crime) and not a
party to and not aware of, the “so called” sale of the
defendants vessel. (46USC § 31321).

a. The fact that the court never mentioned for the record
that the “so called” sale transaction was a “nullified and
rejected” sale by the Kats and Bayport defendants by
returning the vessel and obtaining a full refund from
Bayport by Kats. California UCC does not apply in Admi-
ralty, * if it does the voluntary return and acceptance of
the vessel in rem for a full refund applies as nullification
and rejection of sale under California UCC. Therefore NO
SALE took place, Bayport is liable as owner at the time of
the incident of 06/27/99, Kats/Bizoumis merely borrowed
the vessel from Bayport Yachts, Inc. — All share in liability
for the 06/27/99 incident.

b. The fact that the “so called” sale was not legally com-
pleted until 07/08/99 well after the intentional allission, hit
and run crime, and failure to report crime of June 27,
1999.

c. That the first application for legal title was fraud on

~ the part of the defendants and was returned by the U.S

Coast Guard.

e. That the defendant Bayport yachts committed an act
of gross negligence in sending an unseaworthy vessel to
sea 46 USC § 10908 (a crime).

f. That NO sales taxes were ever paid to the State of
California evidencing any “so called” sale of the vessel
named in rem.

g. The funds used to acquire the vessel came from checks
issued from J and A Shoe Co. payable to Alex Kats - NOT

15

to Bayport Yachts, Inc.: a I.R.S. question to be answered by
Mr. Kats to the U.S. Government.

h. The court used California state law when state law
may not be applied by a federal court if it would defeat or
narrow any substantial admiralty rights of recovery. State
law may not be applied prejudice the characteristic fea-
tures of maritime law or to disrupt the harmony it strives
to bring to international and interstate relations.

t. It is fact that in a letter dated June 17, 1999 (well
before the allission of June 27, 1999) from defendant
Bayport Yachts and written by the President of the Bay-
port Yacht company Jack Means to defendant Alex Kats
states in relevant part: “I assure you we will give you
the best service you are entitled to. Iam sorry you are
having port engine problems. We should have in-
sisted the yacht remain with Bayport until a Mercury
Co. engine mechanic could adjust the engine and
resolve this problem”. When the court granted an
“excessive” cost bill judgment against the plaintiffs and in
favor of Bayport Yachts, Inc., is a violation of the plain-
tiff’s civil rights and evidencing bias and prejudice a
violation of (Judicial Canon 3(C)1(A)) and grounds
for disqualification? Under (U.S.C Title 28) in admi-
ralty and maritime claims taxation of costs cannot
be allowed in this case unless promulgated by the
Supreme Court. It is fact that at this point Judge Audrey
B. Collins did not deny the Plaintiff’s accusations and
allowed the Bayport defendants to obtain an illegal cost
bill. Bayport ewned the vessel at the time of the allission
via the U.S.C.G. the U.S. government, sent the plaintiffs
the title report and NC transfer of title took place, yet
district court Judge Céllins violated The law of legal
title (46 USC § 31321) (plaintiffs were victims of a hit and

16

run. Plaintiffs note that the defense still to this day never
reported the allission to the USCG violating (33 CFR
§ 173.57) Bayport withheld pertinent evidence from the
record that the “so called” sale transaction was a “nulli-
fied and rejected” sale by the Kats and Bayport defen-
dants. Bayport withheld pertinent evidence and the
Bayport attorneys lied to the court at the hearing on the
Motion for summary Judgment. It is fact that no taxes
were ever paid to the state of California evidencing the “so
called” sale of the vessel in REM. Supreme Court Quotes

After reference to article 1, 8, and article 3, 2, of the
Constitution, we declared in (Southern Pacific Co. v.
Jensen, 244 U.S. 205, 215, 216, 37 S. Ct. 524, 528 (61
L. Ed. 1086, Ann. Cas. 1917E, 900) (1917)): “Considering
our former opinions, it must now be accepted as settled
doctrine that, in consequence of these provisions, Congress
has paramount power to fix and determine the maritime
law which shall prevail throughout the country.... And
further, that in the absence of some controlling statute,
the general maritime law, as accepted by the federal
courts, constitutes part of our national law, applicable to
matters within the admiralty and maritime jurisdiction.
Concerning extent to which the general maritime
law may be changed, modified or affected by state
legislation, this was said: ‘No such legislation is
valid if it contravenes the essential purpose ex-
pressed by an act of Congress, or works material
prejudice to the characteristic features of the gen-
eral maritime law, or interferes with the proper
harmony and uniformity of that law in its interna-
tional and interstate relations. This limitation, at
the least, is essential to the effective operation of

17

the fundamental purposes for which such [247 U.S.
372, 382] law was incorporated into our national
laws by the Constitution itself. These purposes are
forcefully indicated in the foregoing quotations
from (The Lottawanna,’ 21 Wall. 558, 575 (22 L. Ed.
654).” Points made and ignored on appeal

Plaintiffs filed their appeal with the Ninth Circuit
Court of Appeals and it seemed to the plaintiffs that Ninth
Circuit did not even bother to read the case. Also the
plaintiffs moved to the Ninth Circuit Court to publish
their decision so that their law can be case law for all, and
they ignored the plaintiff’s motion, no response to plain-
tiffs addressing the motion for publication of the case... .
apparently the law in plaintiff’s case is only made up and
invented to violate the plaintiffs individually, what hap-
pened to the plaintiff’s constitutionally protected rights.

Judge and defense and counsel conspired
against plaintiff’s constitutional rights

Objection to the court’s order dated April 29,
2003 and entered on May 1, 2003

The plaintiffs were never able to cross examine the
Shelter Island Boatyard and the true drafter/writer of the
defenses’ fraud repair estimate representatives as they did
not testify under oath.... Plaintiffs were not allowed
examination at trial. Evidence code (hearsay) right of
cross examination Hearsay by (Federal rules of evi-
dence code 802) is illegal, the lower courts used absolute
hearsay for the sole basis of their judgment ... plaintiffs
did not have the right to cross examine. Plaintiffs moved
the court find that the Todd Schwede reports and Shelter
Island Bid be stricken as to the federal rules of evidence

18

as hearsay and as incompetent and criminally
fraudulent. Plaintiffs were Ignored. - Judicial
Canon -

Judicial Canon 2 states: (A) A judge should respect
and comply with the law and should act at all times in
a manner that promotes public confidence in the integrity
and impartiality of the judiciary. Actual improprieties
under this standard include violations of law, court
rules or other specific provisions of this code. The
judges ability to carry out judicial responsibilities
with integrity, impartially, and competence is im-
paired. The Plaintiffs believe in the correction of the
impropriety as to Canon 3b(3). A Judge should initiate
appropriate action when the judge becomes aware of
reliable evidence indicating: likelihood of unprofessional
conduct by a judge or lawyer. Initiating the appropriate
action would be the proper way to handle the Plaintiff’s
Motion to Disqualify., AND reporting the violation to
the proper authorities. Plaintiffs believe that the obvi-
ous conspiracy against rights a crime under (title 18) of
the US code constitutes a personal bias or prejudice
concerning a party and is grounds for an official investi-
gation of the Judge to a Senate Judiciary Oversight
Committee. Without even an answer or response for the
record to each and every allegation contained in the
Plaintiff’s Motion to Disqualify Judge Audrey B. Collins
the Motion was denied, covered up, with the assistance of
other friendly district Judges. (a political response)
Judicial Canon 3 states: A Judge Should Perform
the Duties of the Office Impartially and Diligently.
The Judicial duties of a Judge take precedence over all
other activities. In performing the duties prescribed by
law, the judge should adhere to the following standards:

19

(A) Adjudicative Responsibilities.

(1) A judge should be faithful to and maintain
professional competence in the law, and should not
be swayed by patrician interests, public clamor or
fear of criticism.

JUSTICE DELAYED IS JUSTICE DENIED!!!

Plaintiffs were ready for the trial on the first trial
date of September 2001 and objected to the delay of the
case by the defense and the court. Plaintiffs understand
how and why the case has been delayed so many times
and state for the record that if the trial had commenced in
September of 2001, then there would have been no other
issues to this court to decide. Since this case has been
unnecessarily delayed, the plaintiffs could not afford any
more attorneys fees beyond the September 2001 date that
constitutes a unfair advantage to the defense, and the true
reasons for the judges continuous delay. This delay was to
force plaintiffs to accept Mr. Bruce Pfund as the courts’
expert, later found to have been hired by defense counsel
before Plaintiffs even filed the litigation - A CRIME! This
“so called admitted liability case has been going on for over
five years since the intentional allission incident. It is fact
that the case file consists of over 13 volumes and the trial
has been postponed about six times to favor the defense
attorneys and their income. It should also be noted as fact,
that the district judge stayed the case, and under threat of
dismissal, all with intent to extort monies from plaintiffs.
Canon 3a(5). Judge Audry B. Collins did not demon-
strate due regard for the rights of the Plaintiffs.
Plaintiff’s note for the record: The bond in lieu of arrest
that the court relies on is fraud. The bond that the
court accepted and condones from the defense is fraud on

20

the part of the defense. The bond authorization is dated in
the year of 1997 by officers that do not work for the Hart-
ford Insurance Company and in fact does not apply for the
date of May, 2002. Plaintiffs believe that the defense
issued for the record a bond that is fraud and the court
allowed and condoned this act of fraud by accepting the
bond in lieu of arrest. It is fact that the plaintiffs never
accepted the fraudulent bond according to the Federal
Admiralty Rule C. The fact that the defense filed a
illegal bond with this court constitutes another crime by
the defense with assistance of Judge Audrey B. Collins...
Under FR.C.P 34 local rule 6.2.4 (26-6.2.4) any insurance
agreement under which any insurance carrier may be
liable to satisfy part or all of a judgment shall be made
available for inspection and copying. The court accepted a
bond from monies from an insurance fraud under objection
of the plaintiffs. The defense policy is not endorsed by an
authorized officer and is not valid by the documents own
omission. It is fact that the plaintiffs were not allowed by
the defense or the court to inspect the defense insurance
policy documents and the court ordered that the plaintiffs
not contact the defense insurance company even though
the Markel Insurance Company is not a party. Plaintiffs
believe that this is an act of a criminal conspiracy to cover
up the defenses’ fraud, and a violation of the plaintiff’s
right to investigate, and cross examine the insurance policy.
Not arresting the vessel named in REM.

It is fact that the court refuses to arrest the vessel
named in REM even though it is a prerequisite to this
maritime claim. The defenses’ Bond is conditioned to an
answer on behalf of the vessel otherwise it becomes void.
It is fact that for the record there is no answer on behalf of
the vessel and the plaintiffs have filed for the court to

21

issue default judgment. Shortly thereafter the court stated
that default judgment is moot. Plaintiffs have objected to
the courts labeling of moot and the court has yet to re-
spond. Plaintiffs also believe that the court should have
immediately ordered the vessel arrest and then had Mr.
Kluko, the vessel owner at that time, issue a bond in lieu
of arrest as required by law and at a post-arrest hearing in
front of the court. Plaintiffs believe that the court has
created an unfair advantage for the defense and gave Mr.
Kluko a 15-day opportunity to disappear and evade arrest.
Mr. Kluko has done so, SOLD the vessel to another, and
Judge Collins helped him get away...

Under Cannon 3a(1) Adjudicative Responsibilities.
A judge should be faithful to and maintain pro-

fessional competence in the law, and should not

be swayed by patrician interests, public clamor or
fear of criticism.

This court cannot make law only interpret the law.
Judge Collins invented her own Admiralty Law and
therefore does not maintain competence in the law. Any
rules a Judge makes shall be consistent with the law and
not contradict the law. Any rules a Judge makes shall not
abridge any substantive right (Title 28 U.S. Code).

Any rule prescribed by a court other than the Su-
preme Court shall be prescribed only after giving appro-
priate public notice and an opportunity for comment.

It is fact that at this point Judge Audrey B. Collins
did not deny the Plaintiffs’ accusations.

22

The Bayport issue Under Canon 3a(1) Adjudica-
tive Responsibilities.

A judge should be faithful to and maintain
professional competence in the law. The law of legal
title (46 USC § 31321) Plaintiffs believe that when the
court issued summary judgment against the plaintiffs and
for Bayport was an act of incompetence in the law with
intent to violate the plaintiff’s civil and constitutional
rights. The court ignored and still ignores the true
facts in this case that: Plaintiffs were the victims of a
“hit and run” (crime) and not a party to and not aware of,
the “so called” sale of the defendants vessel. (46 USC
§ 31321).

The fact that the court never mentioned for the record
that the “so called” sale transaction was a “nullified and
rejected” sale by the Kats and Bayport defendants.The
fact that the “so called” sale was not completed until 7/8/99
well after the allission of June 27, 1999. That the first
application for legal title was fraud on the part of the
defendants and was returned by the U.S. Coast Guard.
That the defendant Bayport yachts committed an act of
negligence in sending an unseaworthy vessel to sea 46
USC § 10908, (a crime ignored by Judge Audrey B. Collins.
That no taxes were ever paid to the state of California
evidencing the “so called” sale and no legal sale took place
_.. The court used state law when state law may not be
applied by a federal court if it would defeat or narrow any
substantial admiralty rights of recovery. State law may
not be applied prejudice the characteristic features of
maritime law or to disrupt the harmony it strives to bring
to international and interstate relations. Judge Collins’
Hozie case does no apply to this case as Plaintiffs had NO
knowledge of any sale prior to 07/08/99, especially since

23

the sale was nullified and rescinded by the parties in
August 1999. (See: Hozie v. Vessel Highland Light, 1998
AMC 2829 (C.D. Ca. 1997) a case in which Judge Audrey
Collins was the judge.

When the court granted an “excessive” cost bill judg-
ment against the plaintiffs and in favor of Bayport yachts
is a violation of the plaintiff’s civil rights and evidencing
bias and prejudice. A violation of (Canon 3(C)1(A))
and grounds for disqualification Under (U.S.C. Title
28) in admiralty and maritime claims taxation of
costs cannot be allowed in this case unless promul-
gated by the Supreme Court. Unecessary appoint-
ments. Mr. Bruce Pfund was an unecessary appointment,
the plaintiffs have the sole burden to prove their damages,
and were ready to do so since September 2001 when the
trial was to commence. Plaintiffs believe that the court
only ordered the appointment of Mr. Pfund because the
defense had no defense and needed the vessel to be in-
spected again since they failed to perform a proper survey
in July of 1999. In July of 1999 the plaintiffs burdened
themselves with yard fees, haul out fees, transportation
fees, supervision fees, and their time all to allow the
defense to inspect the damage caused by the defense. Yet
the court made the plaintiffs burden themselves again and
unecessarily with Pfund and failed to burden the defense
with these same costs, evidencing the courts bias and
prejudice. A violation of (Canon 3(C)1(A)) and
grounds for disqualification. Mr. Bruce Pfund was
hired by defense in the summer of 2000. Judge
Collins erred in this conspired appointment in
fraud! Survey and _ reclassification expenses. An
owner's reasonable surveyor’s fees incurred to surveying
damage and to obtaining repair estimates are recoverable.

24

Bunge Corp. v. Freeport Marine Repair Inc., 240 F.3d 919,
2001 AMC 1367 (11th Cir. 1994); In re Nichole Trahan, 10
F.3d 1190, 1994 AMC 1253 (5th Cir. 1994); Atkins v.
Alabama Drydock and Shipbuilding Co., 195 F.Supp. 944,
1961 AMC 909 (S.D. Ala. 1960); United States v. Peavey
Barge Line, 748 F.2d 395 (7th Cir. 1984); Dillingham
Shipyard v. Associated Insulation Co., 649 F.2d 1327 (9th
Cir. 1981); South Central Bell Telephone Co. v. Merritt
Dredging Co., 726 F. Supp. 1061 (S.D. Miss. 1989); Shap-
pert Engineering Co. v. Steel City Marine Transport, Inc.,
620 F Supp. 1377 (D. Mo. 1985). The plaintiffs have
incurred many expenses and contend that these expenses
are recoverable in the “general rule” plaintiff was the one
that was supposed to be made whole. ... The Baltimore,
75 U.S. 3777; Standard Oil Co. v. Southern Pacific Co.,
268 U.S. 146 (1925); BP Exploration and Oil Inc. v. Moran
Mid-Atlantic Corp., 2001 U.S. Dist. LEXIS 8624 (D. NJ.
2001). The first principal in assessing damage in a mari-
time tort “is to place the injured person as nearly as possi-
ble in the condition he would have occupied if the injury
had not occurred.” Gains Towing and Transportation Co. v.
Atlantia Tanker Corp., 191 F.3d 633 (5th Cir. 2000);
Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 1977
AMC 508 (5th Cir. 1976). The fundamental rule is “where
property is destroyed by a wrongful act, the owner is
entitled to its money equivalent, and thereby to be put in
as good a position pecuniarily as if his property had not
—been destroyed”, Standard Oil Co. v. Southern Pacific Co.,
268 U.S. 146 (1925); Ryan Walsh Stevedoring Co. v. James
Marine Services, Inc., 792 F.2d 489, 1987 AMC 1611 (5th
Cir. 1986); A&S Transportation Co. v. Tug Farjaro, 668
F.2d 1, 1983 AMC 10 (1st Cir. 1982). It is fact that the
court would not charge the defense with the fees and costs
associated to a so called court appointed survey of the

25

vessel and the court yelled at the plaintiffs when the
plaintiffs made the court aware of the costs. Plaintiffs are
tired of paying for the incompetent conspiring acts of the
defense and the court especially since this is a “so called”
“defense admitted liability case”. Cannon 3(B) Adminis-

trative Responsibilities. Canon 3B(3) reporting the
violation to the proper authorities. Canon 3B(4) A

judge should not make unnecessary appointments
and should exercise that power only on the basis of
merit, avoiding nepotism and favoritism. The Pfund
issue: Plaintiffs note, fact, during cross examination
at trial of Pfund the courts appointed expert the
plaintiffs found that the defense and the court and
Pfund were in ex parte communications without the
plaintiffs knowledge and during this time it became
apparent they were conspiring against the plain-
tiff’s rights (a U.S. Title 18 crime). The fact is, that
there is and at that time was, well over fifty well qualified
surveyors in the court district.Pfund constitutes a unfair
advantage to the defense. For the court to appoint an expert
well over 3,000 miles away constitutes a unreasonable cost
that the court later tried to extort from the plaintiffs,
under threat of the entire case being dismissed in favor of
the defense. This act on the courts part caused the plain-
tiffs to file an appeal. The defense was the only party that
demanded an expert and in the last days before the
September, 2001 trial date. The court allowed the defense
ex-parte communications with courts expert, who was at
all times pre-hired by defense. The court allowed, and,
condoned the courts’-defense expert to include
charges such as alcohol and first class airfare in his
bill for his services to plaintiffs. It is fact, that the
plaintiffs video taped the Pfund survey and that Mr. Pfund
is a “so called self-appointed expert with no composites

26

work experience and a degree in liberal arts” limited to
composite structures, NOT a surveyor, NOT a person
qualified to determine the costs of damages, does not own
nor work for any ship repair facility, and NOT a sail
rigging expert, yet the court still choose Pfund in con-
spiracy with defense counsel to drag out the case and force
Benetic to take a ridiculous less than pennies vs: dollars
settlement and GO AWAY! Pfund was chosen because
defense had NO defense and only to delay the case from
being tried in 09/2001, so that defense could think further
on how to detriment Benetic. It is fact that the plaintiff’s
_son was ordered by Mr. Pfund to perform certain duties
that Pfund could have done himself and plaintiffs believe
that Pfund was not capable to handle all of his duties
himself at the time of the survey because the court never
advised Pfund of his duties according to law. (Under
federal rules of Evidence Code 706 et al.). It is fact
that the plaintiffs never requested this expert and paid
more than their share for his services, yet the court
threatened the plaintiffs to dismiss their complaint to the
advantage of the defense. The plaintiffs were then forced
to appeal and the court later stated that it was the plain-
tiff’s fault for the delay when it is true fact that this court
refused to manage the case to avoid the delay and there-
fore is the courts fault for that delay. The court stated that
the purpose of Pfund was to determine a dollar amount.
Mr. Piund never did so and cannot due to the fact “HE IS
NOT CAPABLE” and does not own a repair yard thus
cannot figure a dollar amount. Pfund ordered the plain-
tiff’s vessel hauled out via marine railway, blocked on
stands, hydro washed, and scaffolding erected all around,
and was ready to drill 3" holes into various areas of the
hull further damaging our vessel as part of his inspection
all costs associated and as part of the Pfund survey.

27

Plaintiffs refused any hole drilling and damages to the
vessel. It is fact that plaintiffs paid in excess of what it
was ordered and the court failed to mention these facts for
the record. It is fact that at this point Judge Audrey B.
Collins did not deny the Plaintif{’s accusations. Canon

3(C) Disqualification. (1) A_judge shall disqualify

himself or herself in a rroceeding in which the
judges impartiality might reasonably be questioned,
including but not limited to instances in which: (a)
the Judge has a personal bias or prejudice concern-
ing a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding. Unfair
advantages to the defense. The court has allowed
several unfair advantages to the defense including but not
limited to: The court delayed this case as to cause the
plaintiffs undue financial harm. The court has caused the
plaintiffs to not be able to afford any legal representation.
The court has let defendant Bayport off of their crimes of
titling negligence and sending an unseaworthy vessel to
sea. (See Bayport Issue)The court refuses to arrest the
vessel named in REM even though the defense bond is
fraud and Plaintiffs did not accept. (pursuant to Admi-
ralty Rule C) Plaintiffs were ordered to give notice of
intent to arrest the vessel in REM when plaintiffs believe
there is no such requirement. The court allowed the de-
fense to file ex-parte relief from the notice to arrest when
the defense was not a legal owner of the vessel in REM at
that time. The vessel was never represented by its true
owner. (the court allowed misrepresentation of the vessel
in REM). The court limits the plaintiff’s case to a time
limit using a stopwatch, yet the plaintiffs have a greater
burden and as such need more time to litigate than the
defense. For the court to impose a time limit on the plain-
tiffs creates an unfair advantage for the defense and their

28

18 attorneys. It is fact that the court stated that the
plaintiffs will not have the time to call all of its experts
and witnesses. It is fact that the plaintiffs have over one
hundred witnesses to call and the defense does not. Eight
hours for a trial of this size is not enough time and is
unfair to the plaintiffs to whom have the burden of proof.
The court has stated several times that this case is limited
to the dollar amount of the damages to the vessel and that
the defense has admitted liability to the complaint. The
court has assisted the defense in the manipulation of the
discovery process and did not allow the plaintiffs a fair
opportunity to fair discovery. It is fact that the plaintiff
believes that they are the victims of ex-parte communica-
tion and conspiracy between the court and the defense. It
is fact that the plaintiffs were denied the proper discovery
by the defense and this court and it is fact that the court
will not allow the plaintiffs the proper time for the plain-
tiffs to call all its witnesses to satisfy their burden of proof
and have a fair trial. It is fact that the court led the
plaintiffs to believe that the defense admitted liability and
therefore the court limited the case to the dollar amount of
damages when in fact the plaintiffs require to be made
whole. Plaintiffs believe that the court is not allowing the
plaintiffs their legal right to a fair trial. Admiralty law states
that restitutio in integrum is the first rule in admiralty law,
yet this law was in fact ignored . . . The court allows the Kats
defense to represent the vessel in REM when they do not
own it ... nor have permission from the owners ... Only
allowing one expert to plaintiffs and allowing defense
two. The court in the proceeding of April 2002 states that
the case should only have three expert testimony — one per
side — and Pfund shortly thereafter the court allows the
defense to utilize the “so called” courts expert. Pfund was a
defense expert even before he became a courts expert, and

RL eS Nie tn mae -

29

now is the defense expert. The court also allowed the defense
to advise the courts expert of his duties when the law states
that the court should advise the courts experts of their duties
and file them for the record. The court violated evidence rule
706, and conspired with the defense against the plaintiffs on
the Pfund issues. Plaintiffs believe that the obvious con-
spiracy against rights a crime under (title 18) of the US
code constitutes a persenal bias or prejudice concerning
a party. It is fact that at this point Judge Audry B. Collins
did not deny the Plaintiff’s accusations. How can a Judge
that is biased against your rights hear and solel y
decide your case with no Jury? ... It is fact that at this
point Judge Audrey B. Collins did NOT deny or challenge
the Plaintiffs accusations. Plaintiffs State that Under
(U.S. Code Title 28) rules made by courts cannot be
inconsistent with Acts of Congress and the Supreme
Court and such rules shall not abridge any substan-
tive right, in Maritime Cases court rules have to abide
by international relations and should not defeat or
narrow any substantial admiralty rights of recovery
and may not be applied prejudice the characteristic
features of maritime law or to disrupt the harmony it
strives to bring to international and interstate
relations. In this case Judge Collins invented new law for
the unfair advantage of the defense. John F. Kennedy
once said an error is not a mistake until its refusal
to be corrected.

REASONS FOR GRANTING THE PETITION

To ensure that the constitutional rights in this coun-
try extend to each and every citizen. Uniformity of the
courts and law, equal rights for all, in accordance with
established law of the land. The Rule of Law must be

30

upheld in equality to all citizens. There is much more to
say. Petitioners pray for justice.

CONCLUSION

The petition for a writ of certiorari should be granted.
Petitioners pray for justice in equality as U.S. Citizens
under rights reserved under the Constitution of the
United States of America, and that the Supreme Court
clean up, resolve, and correct the lower court’s sins and
errors. Justice delayed is justice denied, clearly evident by
the lower courts herein. That petitioners be granted a new
trial, preferably in another district (such as the Fifth
District) or any other district wherein U.S. Admiralty cases
can be judicially and be politically unbiased, heard in fair
justice for all, away from the Central District of California
and the Ninth Circuit. There is much more to be said, we
are ending this due to page limitations. Petitioner’s submit
to this honorable court and await respectfully: justice.

Respectfully submitted,

NICHOLAS J. BENETIC — trustee

SANDRA L. BENETIC — trustee

The Revocable Benetic Family Trust dated 09/22/1993
NICHOLAS J. BENETIC — trustee

SANDRA L. BENETIC — trustee Petitioners

Date: March 15, 2005

App. i

APPENDIX
i Page

United States Court of Appeals for the Ninth Circuit
Order on case # 03-56441 dated filed October 22,
2004 and received by Plaintiffs/Appellants on
January 3, 2005 AFFIRMING the District Court
Judgment of August 6, 2003 ooo... cceccccccsceceeceecseees. App. 1

U.S. District Court — Central District of California
ORDER - Findings of Fact and Conclusions of
Law after Court Trial by Judge Audrey B.
Collins for case # CV 00-06845 ABC (EX) In ad-
miralty dated August 6, 2003 filed by Clerk
Docketed as # 300 on 08/07/03 Received by Plain-
“ceed cy pes App. 5

United States Court of Appeals for the Ninth
Circuit Order on case # 03-56441 dated filed De-
cember 20, 2004 and received by Plain-
tiffs/Appellants on December 24, 2004 DENYING
petition for re-hearing en banc and no order to
date as to Appellants motion for publication of
the Affirmed Judgment of October 22, 2004......... App. 55

App. 1

EXHIBIT A
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NICHOLAS J. BENETIC and | No, 03-56441
SANDRA L. BENETIC, as Trus-

tees of the Benetic Family Trust D.C. No.
dated September 22, 1993, CV-00-06845-ABC
Plaintiffs-Appellants MEMORANDUM*
v.
M/Y ATHENA ALEXANDER,

Official No. 1083 627 and her
engines appurtenances etc, in
rem; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding

Submitted October 14, 2004**
(Filed Oct. 22, 2004)

Before: KLEINFELD, TASHIMA, and GOULD, Circuit
Judges.

* This disposition is not appropriate for publication and may not
be cited to or by the courts of this circuit except as provided by Ninth
Circuit Rule 36-3.

** The panel unanimously finds this case suitable for decision
without oral argument. See Fed. R. App. P. 34(aX2).

App. 2

Nicholas and Sandra Benetic, on behalf of their family
trust, appeal pro se the district court’s judgment and post-
judgment orders in their maritime action seeking damages
caused when M/Y Athena Alexander allied with S/V
Buenos Aires on June 27, 1999. We have jurisdiction under
28 U.S.C. § 1291. We review de novo summary judgment,
United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.
2003), questions of law in admiralty, Howard v. Crystal
Cruises, Inc., 41 F.3d 527, 529 (9th Cir. 1994), and selec-
tion of the legal standard for computation of damages, id.
at 530. We review for clear error the factual findings of a
district court sitting in admiralty, Chan v. Society Expedi-
tions, Inc., 123 F.3d 1287, 1290 (9th Cir. 1997), and the
computation of damages following a bench trial, Howard,
41 F.3d at 530. We affirm.

The district court correctly determined that Bayport
Yachts, Inc., did not have an ownership interest in, or title
to, M/Y Athena Alexander at the time of the allision and
therefore properly granted summary judgment dismissing
Bayport Yachts, Inc. See Nissan Fire & Marine Ins. Co.,
Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

The district court correctly assessed the cost of repair
to the Benetics’ vessel, see Stevens v. F/V Bonnie Doon, 731
F.2d 1433, 1436 (9th Cir. 1984), correctly denied damages
for lost profits, see Fireman’s Fund Ins. Cos. v. Big Blue
Fisheries, Inc., 143 F.3d 1172, 1177 (9th Cir. 1998), cor-
rectly denied damages for loss of use, see Oppen v. Aetna
Ins. Co., 485 F.2d 252, 257 (9th Cir. 1973), correctly denied
attorneys fees, see B.P. North America Trading, Inc. v.
Vessel Panamax Nova, 784 F.2d 975, 977 (9th Cir. 1986),
correctly awarded prejudgment interest reduced by the
period of undue delay caused by the Benetics’ appeals to this
Court, see Dillingham Shipyard v. Associated Insulation Co.,

Q
a

App. 3

Ltd., 649 F.2d 1322, 1328-29 (9th Cir. 1981), and correctly
denied punitive damages, see In re Marine Sulphur Queen,
460 F.2d 89, 105 (9th Cir. 1972).

a ee tid

The district court did not err when it ordered defen-
dants to post a security bond in lieu of issuing a warrant
for the arrest of M/Y Athena Alexander. See Fed. R. Civ. P.
C(3)(a)(ii)(A), E(2)(b), E(5); U.S. Dist. Ct., Central Cal.,
Local Rule II(C)(1); Alyeska Pipeline Serv. Co. v. Vessel Bay
Ridge, 703 F.2d 381, 384 (9th Cir. 1983).

The district court did not abuse its discretion when it
made its evidentiary rulings. See McEuin v. Crown Equip.
Corp., 328 F.3d 1028, 1032 (9th Cir. 2003).

Appellants’ remaining contentions, including those of
judicial bias, are without merit.

AFFIRMED.

App. 4

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

- eee STS rE

'
'
NICHOLAS J. BENETIC, as No. 03-56441 |
i

Trustee of the Benetic Family
Trust dated September 22, 1993; D.C. No.
et al., CV-00-06845-ABC
Plaintiffs-Appellants, JUDGMENT
v.
M/Y ATHENA ALEXANDER, |

Official No. 1083 627 and her
engines appurtenances etc, in
rem; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the
Central District of California, Los Angeles.

This cause came on to be heard on the Transcript of
the Record from the United States District Court for the
Central District of California, Los Angeles and was duly
submitted.

On consideration whereof, it is now here ordered and
adjudged by this Court, that the judgment of the said
District Court in this cause be, and hereby is AFFIRMED.

Filed and entered Friday, October 22, 2004

ee

App. 5

EXHIBIT B
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

NICHOLAS J. BENETIC and)
SANDRA L. BENETIC, as _)

Case No.
Par Rome ncn
an ) FINDINGS OF FACT
Plaintiffs, ) AND CONCLUSIONS OF
é ) LAW AFTER COURT
M/Y ATHENA ALEXANDER, TRIAL
oor’ (Filed Aug. 6, 2003)

Defendants. )

This admiralty case arises from the allision of the M/Y
Athena Alexander (the “Athena Alexander”) with the S/V
Buenos Aires (the “Buenos Aires”) on June 27, 1999 in the
Cabrillo Marina in San Pedro, California. Plaintiffs
Nicholas J. Benetic and Sandra L. Benetic, as Trustees of
the Benetic Family Trust dated September 22, 1993
(“Plaintiffs”), sued the Athena Alexander in rem; Dimitri
Bizoumis, who piloted the Athena Alexander on the day of
the allision; Alex Kats, Mr. Bizoumis’s father-in-law;
Valerie Kats, Mr. Bizoumis’s mother-in-law, and together
with Mr. Kats, owner of the Athena Alexander (collectively,
“Defendants”) and Bayport Yachts, which sold the Athena
Alexander to the Kats. Bayport Yachts was dismissed
before trial. The remaining Defendants admitted liability
for the allision before trial.

The court trial was therefore limited to the issues of
Plaintiffs’ recovery for damages, namely the amount of
recovery due for repairs and any other possible categories

App. 6

of loss, and Plaintiffs’ claim for punitive damages against
Defendant Dimitri Bizoumis. The court trial was held
before the Honorable Audrey B. Collins, District Judge
presiding, over three days from June 10, 2003 through
June 12, 2003.

Plaintiff Nicholas Benetic, acting as pro se counsel for
the Plaintiff Benetic Family Trust, called the following
witnesses: Patrick Dixon; Ishkhan “Ara” Gordian; Mary
Bacon; Thomas W. Bell; William Engstrom, whose deposi-
tion was offered as his direct testimony; Hugo Carver;
Leah Bizoumis; Dimitri Bizoumis, whose deposition was
also offered as direct testimony; Werner Kindor; Joseph
Benetic, Nicholas Benetic’s son and Nicholas Benetic. The
Court also admitted the deposition of Angelo B. Krakoff,
who was unavailable for trial, and allowed Plaintiffs to
recall Mr. Bizoumis, as will be explained below.’

' Plaintiffs also listed Defendant Alex Kats on their witness list.
On the morning of trial, the Defendants filed the Declaration of defense
counsel Joseph Cho re: Unavailability of Alex Kats. Exhibit A to the
declaration consisted of three letters from doctors who were of the
opinion that the stress of trial would exacerbate Mr. Kats’s coronary
disease. The letters attested that Mr. Kats had undergone multiple
coronary procedures including angioplasty, stents and brachytherapy.
(Decl. of Joseph Cho, Ex. A.) The strongest letter was from Dr. Wyman,
who stated “[Kats] should not be allowed to testify in court due to his
heart related health issues.” Jd. The Court spoke with Dr. Wyman by
telephone in court in the presence of all counsel. (Whenever used, the
term “counsel” includes Mr. Benetic.) Although the Court told Dr.
Wyman she would limit the time and intensity of Mr. Kats’s testimony
if he were to be called, Dr. Wyman did not change his view. Therefore,
the Court declared Mr. Kats to be unavailable pursuant to Federal Rule
of Evidence 804(a)(4). After proffers from Mr. Benetic and a brief review
of Mr. Kats’s deposition, the Court indicated that it doubted Mr. Kats’s
testimony would be relevant; however, the Court offered repeatedly, as
late as just prior to closing argument, to consider the parties’ requests

(Continued on following page)

Ce A eee rem
ee a RS ee a

aed a

App. 7

Defendants called the following witnesses: Bruce
Pfund and Todd Schwede.

Closing arguments were made on June 12, 2003, and
the case was submitted at that time.

At the close of Plaintiffs’ case, Defendants moved for
judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50 on the issue of punitive damages.
Because the Court did not prepare a separate order, this
order will encompass the Court’s reasons for granting
Defendants’ motion dismissing the punitive damages
claim.

Having considered all the evidence submitted and the
arguments of counsel, the Court enters the following
Findings of Fact and Conclusions of Law pursuant to Fed.
R. Civ. Pro. 52(a).

I. PROCEDURAL HISTORY

Bs On June 26, 2000, Plaintiffs filed a complaint in this
Court alleging the following claims in admiralty
against the Athena Alexander, Dimitri Bizoumis,
Alex Kats, Valerie Kats and Bayport Yachts: negli-
gent navigation, unseaworthiness, negligence after
allision’ and trespass to chattels.

that the Court admit pertinent portions of his testimony and to rule on»
any objections. Neither party availed itself of this option.

* Allision means “[t]he running of one vessel into or against
another, as distinguished from a collision, i.e, the running of two
vessels against each other. But this distinction is not very carefully
observed.” Black’s Law Dictionary, 5th ed. at 69 (1979).

App. 8

Defendants Bizoumis and Alex and Valerie Kats
filed a motion to dismiss and to strike pursuant to
Federal Rule of Civil Procedure 12(b)(6) and 12(f) on
August 1, 2000, which this Court denied on Novem-
ber 1, 2000.

On December 18, 2000, the Court set the matter for
final pre-trial conference on September 10, 2001
with the trial set to begin on September 25, 2001.

Defendants made an Offer of Judgment in the
amount of $30,000 on June 20, 2001.

On July 5, 2001, Defendant Bayport Yachts filed a
motion for paitial summary judgment, which this
Court granted on August 13, 2001, dismissing Plain-
tiffs’ claims against Bayport Yachts for negligent
navigation, unseaworthiness and negligence after
allision.

On August 13, 2001, the Court ordered counsel to
meet and confer regarding the issue of choosing an
independent and neutral expert and to file a joint
report describing the results of their meeting. Un-
able to agree on an expert, on September 5, 2001 the
parties submitted a joint report which included the
résumés of three surveyors and requested that the
Court choose one to act as the Court’s expert and de-
cide how the expert would be paid, as the parties
were also unable to agree on that issue.

After carefully reviewing the qualifications of each
candidate, on September 7, 2001, the Court ap-
pointed Mr. Bruce Pfund as the Court’s expert
(“Pfund” or “Court’s Expert”). The Court also or-
dered that 30% of Mr. Pfund’s fees be paid by Plain-
tiffs and 70% by Defendants. In addition, at that
time the Court continued the pre-trial and trial
dates for the case to March 11, 2002 and April 9,
2002, respectively.

Se AO 8 ane

10.

BA

12.

App. 9

On January 28, 2002, the Court granted Defendants’
ex parte application and ordered that “the Notice of
Intent to Arrest the Vessel Formerly Known as the
‘Athena Alexander’ ... be served on all parties at
least 15 days prior to Plaintiffs’ taking any action
toward arrest, and that the Notice state in detail
Plaintiffs’ demands in lieu of arrest.” (Order Requir-
ing Notice of Intent to Arrest at 2:9-13.)

Also on January 28, 2002, Plaintiffs and Plaintiffs’
counsel Richard A. Caillouette, filed a Notice of Dis-
association of Counsel with respect to Plaintiffs’
counsel Russell, Mirkovich & Morrow.

On February 7, 2002, Plaintiffs filed a “Notice of
Release/Substitution of Attorneys and Notice to all
Parties that A Plaintiff will Continue as Pro Se.” Af-
ter conducting independent research on the issue of
whether Plaintiffs, which include a trust, could ap-
pear pro se in this matter, the Court issued an order
relieving the office of Mr. Caillouette as attorneys
for Plaintiffs and indicating that Plaintiffs could ap-
pear pro se.

On February 11, 2002, Defendants filed an ex parte
application requesting that the Court reconsider its
order relieving Plaintiffs’ counsel on the ground that
non-attorneys may not appear in federal court as rep-
resentatives of a trust. The Court permitted the par-
ties to further brief this issue. While the Court was
waiting for the briefing on the issue of whether
Plaintiffs could represent the trust pro se, Plaintiffs
filed numerous additional motions.

On February 12, 2002, the Magistrate Judge as-
signed to this case denied Plaintiffs’ ex parte applica-
tion for order to issue warrant of Maritime Arrest of
Vessel on the ground that Plaintiffs had not com-
plied with this Court’s January 28, 2002 Order re-
quiring that notice be served at least 15 days prior

13.

14.

15.

16.

17.

~ App. 10

(

to taking any action toward arrest of the vessel at
issue.

On February 14, 2002, this Court struck the second
ex parte application filed by Plaintiffs for order to is-
sue warrant of Maritime Arrest of Vessel for failure
to comply with ex parte procedures. The Court also
advised Plaintiffs regarding resources which they
should consult to familiarize themselves with this
Court’s ex parte procedures.

On February 15, 2002, Plaintiff Nicholas J. Benetic
sent a letter to the Court via fax. The Court admon-
ished Plaintiffs for sending correspondence to the
Court in violation of Local Rule 83-2.11. The Court
again directed Plaintiffs to resources which are
available to assist pro se parties in their litigation
before federal district courts.

On February 22, 2002, Plaintiffs filed a motion for
reconsideration of the Court’s February 14, 2002 or-
der striking Plaintiffs’ ex parte application for order to
issue warrant of Maritime Arrest of Vessel. On March
15, 2002, Plaintiffs filed yet another ex parte applica-
tion for an order to issue warrant of Maritime Arrest
of Vessel. These ex parte applications could not be
addressed while the Court was receiving briefing and
determining whether Plaintiffs could appear pro se
in this matter.

On March 18, 2002, after reviewing briefing submit-
ted by the parties on whether Plaintiffs could appear
pro se, and conducting extensive independent re-
search, the Court determined that the Benetics
could represent the trust pro se because they were
the sole beneficial owners of the Benetic Family
Trust. The Court also set a briefing schedule on
Plaintiffs’ two outstanding ex parte applications.

On March 25, 2002, the Court denied Plaintiffs’ ex
parte applications for failure to comply with the

Rs Na te

App. 11

Court’s January 28, 2002 Order, which required
Plaintiffs to serve all parties with notice of intent to
arrest 15 days prior to taking action toward arrest.

18. On April 3, 2002, Plaintiffs filed yet another ex parte
application requesting that the Court reconsider its
March 25, 2002 denials of Plaintiffs’ prior ex parte
applications. The Court struck this application as
Plaintiffs failed, yet again, to comply with the
Court’s rules, of which Plaintiffs had been advised
numerous times.

19. On April 24, 2002, Plaintiffs filed (1) a Notice to the
Court of Plaintiff’s Communication with the Courts’
Expert, (sic) (2) a Designation of Experts at Trial, (3)
a Motion & Application for Order to Appoint Substi-
tute Custodian, (4) a Motion to the Court & Applica-
tion for Order to Issue Warrant of Maritime Arrest
of Vessel Named In Rem and (5) a Request for Re-
view in Accordance with Supplemental Rule C. Also,
on April 24, 2002, Defendants filed a Request for
Status Conference re: Case Administration.

20. On April 26, 2002, the Court issued a minute order
addressing these April 24, 2002 filings. In this min-
ute order, due to the disturbing inability of the par-
ties to professionally manage their case, the Court
ordered that the parties could only communicate
with each other via certified mail and forbade each
party from communicating with the Court’s Expert.
The Court also informed the parties that it would
not micro-manage the case to the extent that it was
requested to enter into the dispute over payment
owed to the Court’s expert.

21. On May 3, 2002 Defendants lodged a copy of a letter
from Mr. Pfund’s counsel indicating that Mr. Pfund
had not been paid 30% of his outstanding statement
for services rendered, which amount was to be paid
by the Plaintiffs. Noting that the failure to pay the

22.

23.

24.

25.

26.

App. 12

Court’s Expert would affect the ability of this case to
proceed, the Court issued a minute order on May 6,
2002, ordering the parties to submit documentation
showing that they had paid the percentage of Mr.
Pfund’s fees ordered by the Court in its September 7,
2001 Order and warning the parties that failure to
pay the Court’s Expert as ordered could result in a
stay of the case.

On May 10, 2002, Defendants submitted evidence of
payment to Mr. Pfund. The Court found that the
documents submitted by Defendants showed that
Defendants properly complied with the Court’s Sep-
tember 7, 2001 Order by paying Mr. Pfund 70% of
his fee. Plaintiffs, however, failed to comply with the
Court’s Order.

As a result of Plaintiffs’ failure to comply with the
Court’s September 7, 2001 Order, on May 20, 2002
the Court stayed the case until June 17, 2002 and
ordered Plaintiffs to file proof of payment by no later
than June 20, 2002. In the Court’s Order staying the
case, the Court set a pre-trial date of July 8, 2002
and a trial date of July 23, 2002. Also on May 20,
2002, the Court issued an order denying Plaintiffs’
Motion to the Court & Application for Order to Issue
Warrant of Maritime Arrest of Vessel Named In
Rem.

On May 31, 2002, Plaintiffs filed a Notice of Appeal
to the Ninth Circuit of the Court’s May 20, 2002 or-
ders. Plaintiffs filed a second Notice of Appeal of the
orders on June 19, 2002.

Due to Plaintiffs’ appeals, on June 26, 2002, the
Court vacated the scheduled trial and pre-trial dates
pending resolution of the appeals.

Despite the stay effected by Plaintiffs’ appeals, on
June 28, 2002, Plaintiffs lodged “Evidence Withheld
from the Court by the Defense as Evidence of Fraud

App. 13

by the Defense.” Having no jurisdiction over the case
during Plaintiffs’ appeals, on July 1, 2002 the Court
issued a minute order rejecting the filing pending
the resolution of those appeals. Also on July 1, 2002,
Defendants filed a motion for dismissal, which the
Court struck on July 2, 2002 as improper.

27. On July 29, 2002. the Ninth Circuit issued an order
indicating that it lacked jurisdiction over the Plain-
tiffs’ interlocutory appeals.

28. On October 1, 2002, the Court reset the final pre-
trial conference for November 18, 2002.

29. Learning that Plaintiffs had not complied with the
Court’s May 20; 2002 Order relating to the Court’s
expert, on October 3, 2002 the Court issued an order
to show cause why the case should not be dismissed
for Plaintiffs’ failure to comply with that order, to
which Plaintiffs responded on October 15, 2002.

30. The Court construed Plaintiffs’ response as a motion
for recusal. The motion was referred to Judge Terry
J. Hatter for determination on October 21, 2002. On
October 23, 2002, Judge Hatter denied Plaintiffs’
motion to recuse.

31. On October 25, 2002, the Court discharged its order
to show cause why the case should not be dismissed
for Plaintiffs’ failure to comply with the May 20,
2002 Order.

32. On November 4, 2002, the Court again reset the pre-
trial and trial dates in this case for March 3, 2003
and March 18, 2003, respectively.

33. On February 3, 2003, Plaintiffs filed a Notice of
Association of Co-Trustee Joseph Benetic as Named
Plaintiff In Pro Se. Defendants lodged objections to
Plaintiffs’ notice on February 7, 2003. On February
12, 2003, the Court ordered Plaintiffs to file a copy
of the amended trust agreement by no later than

34.

35.

36.

37.

38.

39.

40.

App. 14

February 19, 2003. In compliance with the Court’s
order, Plaintiffs filed an amendment to the Benetic
Family Trust, dated as of January 24, 2003, together
with a response to the Court’s order.

The Court being unable to determine from the
amendment to the trust document whether Plain-
tiffs were entitled to continue to appear pro se, on
February 20, 2003, the Court ordered Plaintiffs to
produce documentary evidence by no later than
March 7, 2003 demonstrating that they were the
sole beneficial owners of the Trust. The Court was
therefore required to vacate the scheduled pre-trial
conference and conference dates.

On March 20, 2003, the Court issued an order
indicating that Joseph Benetic could not represent
the Trust pro se.

On March 26, 2003, the Court issued an order
striking Plaintiffs’ demand that the Court answer
Plaintiffs’ questions to the Court and motion for
sanctions, finding that the former was manifestly
improper and the latter entirely meritless.

On April 2, 2003, the Court denied Plaintiffs’ motion
for reconsideration of the Court’s order denying
Plaintiffs’ motion for reconsideration of maritime ar-
rest.

On May 14, 2003, Plaintiffs filed a second motion to
disqualify or recuse, which Judge Hatter denied on
May 19, 2003. Based on the recusal motion, the
Court vacated the May 19, 2002 pre-trial conference
date.

On May 20, 2003, the Court reset the pre-trial
conference for June 2, 2003.

On May 22, 2003, Plaintiffs filed a motion to dis-
qualify this Court and Judge Hatter, which was de-
nied by Judge Florence-Marie Cooper on May 29,

41.

42.

43.

App. 15

2003. Also on May 29, 2003, the Court denied Plain-
tiffs’ motion for default judgment against Vessel
FKA “Athena Alexander” now known as the “Dioria
Ling” and Plaintiffs’ motion for reconsideration,
granted Defendants’ request for sanctions and De-
fendant Bayport Yachts’ motion to quash and or-
dered Plaintiffs to pay sanctions of $390.00 within
30 days of the Court’s order.

On June 2, 2003, the parties’ pre-trial conference
took place, at which the Court issued an order
granting Defendants’ motion in limine to exclude
videotape pending Plaintiffs’ compliance with Mag-
istrate Judge Eick’s 5/14/02 order; denying Defen-
dants’ motions in limine (1) to exclude charge and
plea to speeding, (2) to deny Plaintiffs’ claim for con-
sequential damages, (3) to deny Plaintiffs’ claim for
punitive damages, (4) to deny Plaintiffs’ claim for at-
torneys’ fees; and granting and part and denying in
part Defendants’ motions in limine (1) to exclude all
recordings of telephone calls and meetings of counsel
and (2) to exclude opinions of Mr. Hugo W. Carver II.
In addition, the Court found that Defendants’ mo-
tion in limine to exclude evidence of marine surveys
not previously produced was moot.

On June 9, 2003, finding that it was unnecessary to
hold the scheduled final pre-trial conference, the
Court vacated the parties’ final pre-trial conference
date.

On June 10, 2003, before trial commenced, the Court
issued an order denying Plaintiffs’ motions in limine
(1) to exclude the bond issued by the Kats defen-
dants and (2) to exclude Defendants’ counsel.

App. 16

II. STIPULATED FACTS’

1. The Athena Alexander, a pleasure motor yacht, was
owned by Defendants Alex Kats and Valerie Kats.

2. The Buenos Aires, a pleasure sailing yacht, was the
property of the Benetic Family Trust.

3. Mr. Bizoumis piloted the Athena Alexander, with his
wife and two (2) minor children on board.

4. Just after maneuvering out of the slip, Mr. Bizoumis
lost control of the Athena Alexander when one of its
twin engines malfunctioned.

5. The Athena Alexander contacted the Buenos Aires,
which was moored — approximately seven (7) slips
from where the Athena Alexander was moored.

6. In addition, Defendants admitted liability for the
allision on the record on many occasions.“

* The-following are facts that Nefendants admitted and Plaintiffs
did not dispute. Unless otherwise indicated, the events recited herein
occurred on June 27, 1999.

* The testimony of Patrick Dixon and Werner Kindor corroborated
the admissions of liability. Mr. Dixon testified that while he was getting
out of his car in the parking lot, he heard an engine roar and saw
Defendants’ boat pull out of its slip. Mr. Dixon identified Defendants’
boat by its brand name, “Carver.” Mr. Dixon then heard a “bang” or
“clang” and thought Defendants’ boat must have hit something, but
could not see what it hit. Mr. Dixon did see Defendants’ boat leave and
then return later, accompanied by the Baywatch Cabrillo, a Los
Angeles County lifeguard boat. He described the damage by noting that
the pulpit of Defendants’ boat was “bent and mangled.”

Mr. Kindor also testified that he heard a bang while he was taking
a brief pause from varnishing his own boat. Mr. Kindor saw Defendants’
boat bounce off Plaintiffs’ boat and continue on its way. Mr. Kindor
described the damage by noting that the rail on Defendants’ boat was
bent out of shape.

me ease a anenenenen

App. 17

III. PLAINTIFFS ARE NOT ENTITLED TO PUNI-
TIVE DAMAGES AS A MATTER OF LAW

A. Background

A At the close of Plaintiffs’ case,” Defendant Dimitri
Bizoumis moved for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(a) as
to the issue of whether punitive damages could be
assessed against Mr. Bizoumis.

8. The Court did not rule on the motion when it was
brought because it wished to complete testimony of
Mr. Bizoumis’s two witnesses, who were not local,
and because Mr. Benetic indicated he had not seen
Mr. Bizoumis’s Rule 50 motion.

9. Mr. Bizoumis’s brief indicated he had unsuccessfully
tried to fax the brief to Mr. Benetic several times.
Both the Court and defense counsel had continuing
difficulties reaching Mr. Benetic by fax in the
months leading up to trial. Nevertheless, the Court
provided Mr. Benetic an opportunity to read the
brief overnight.

10. After hearing oral argument on the motion from
both sides, the Court granted Defendant Dimitri

* After the Court ruled that Mr. Kats was unavailable, Plaintiff
Nicholas Benetic asked to recall Mr. Bizoumis on the issue of his state
of mind because Mr. Benetic could no longer call Mr. Kats. The Court
denied the motion at first, noting that Mr. Kats’s testimony could in no .
way have substituted for Mr. Bizoumis’s own testimony as to his own
state of mind, and that Plaintiffs had already called Mr. Bizoumis and
elected to rest upon his deposition testimony as direct testimony.
However, after reconsidering Plaintiffs’ pro se status, the Court ruled
on June 11, 2003 that Plaintiffs could recall Mr. Bizoumis. The
testimony was to be limited to Mr. Bizoumis’s state of mind. However,
over the objections of Defendants, the Court allowed Plaintiffs to
conduct wide-ranging testimony concerning the allision.

11.

12.

13.

14.

15.

App. 18

Bizoumis’s motion on June 12, 2003 before closing
arguments and dismissed Plaintiffs’ claim for puni-
tive damages.

B. Findings of Fact Relevant to Mr. Bizoumis’s
State of Mind at the Time of the Allison

The Court had an opportunity to judge Mr. Bizou-
mis’s credibility on both days he was called, particu-
larly when he was recalled on June 11, 2003. The
Court found his testimony credible and undisputed
on key points.°

Although Mr. Bizoumis did not own the Athena
Alexander, he clearly had permission from Mr. Kats
to take the boat out with his wife and children on
June 27, 1999, the date of the allision.

Mr. Bizoumis had his own keys to the boat and his
own parking spot at the marina.

Mr. Bizoumis had the benefit of three to seven
training sessions at both the Newport and Cabrillo
marinas before he took the boat out.

The training sessions were with a salesperson from
Bayport Yachts, and one or two other people from
Bayport Yachts, the company that sold Mr. Kats the
Athena Alexander. (Bizoumis Dep. at 28:23-29:11,
30:17-21.)

* Plaintiffs also called Leah Kats Bizoumis, Mr. Bizoumis’s wife.

Her testimony was consistent with that of her husband.

App. 19

16. One training session took place in Newport Beach,
lasted several hours and involved reviewing the
boat’s instruments, navigation, maneuvering, start-
ing the boat, getting it out of the slip, cruising, turn-
ing, bringing the boat back and docking it in the
slip. (Bizoumis Dep. 30:13-15, 30:23-25, 31:12-15,
32:7-13.)

17. Mr. Bizoumis’s training also included extensive
instruction lasting a full day, from morning well into
the afternoon on June 26, 1999, the day before the
accident. During the session, the trainers repeatedly
reviewed with Mr. Bizoumis how to start the en-
gines, prepare the boat to take out and back it out.
(Bizoumis Dep. at 48:2-5, 48:15-17, 49:6-14.) At trial
Mr. Bizoumis testified they had practiced taking the
boat out a dozen times.

18. On June 27, 1999, due to his training, Mr. Bizoumis
believed that he was capable of safely operating the
Athena Alexander‘

19. Mr. Bizoumis was aware that the Athena Alexander
had experienced prior engine failures. However, Mr.
Kats told him the day of the allision that Bayport
Yachts had assured him the engine problems had
been resolved and the boat was safe to take out.®

* The Court discounts the testimony of Mr. Gordian that Mr.
Bizoumis had no idea of the boat’s Systems, operating procedures or
emergency procedures. Mr. Gordian admitted he did not know whether
Mr. Bizoumis was receiving training from anyone else. In particular,
Mr. Gordian admitted he was unaware of the significant training and
practice Mr. Bizoumis had received the day before the accident.

* The Court admitted this statement because of its relevance to Mr.
Bizoumis’s state of mind.

20.

21.

22.

23.

24.

25.

26.

App. 20

Accordingly, on June 27, 1999, Mr. Bizoumis be-
lieved that the Athena Alexander was in proper
working order.

After Mr. Bizoumis backed the boat out, turned,
straightened and headed down the channel, the
starboard engine failed. The boat then moved to the
right, at which time Mr. Bizoumis felt the boat bump
against something and bounce back slightly.

At the time, Mr. Bizoumis thought he had struck a
piling.” In fact, he had struck Plaintiffs’ boat.

Mr. Bizoumis testified that he did not see Plaintiffs’
boat at the time of the allision, and that he did not
intend to allide with the Buenos Aires. His testi-
mony is undisputed.

Mr. Bizoumis testified that had he known he had
struck Plaintiffs’ boat, he would have stopped, if he
could have. However, he was not aware he had
struck the boat or caused any damage.

Due to the engine failure, the boat began to move to
the left. Mr. Bizoumis turned his attention to getting
the boat out into the open, eventually reached the
channel, told his wife to call vessel assist and was
rescued.

Mr. Bizoumis was not under the influence of alcohol
or drugs that day.

When the Athena Alexander was brought back into
the marina, no one told Mr. Bizoumis that he had
struck another vessel. In fact, one of the individuals
from Bay Watch checked around the marina and

*” Mr. Bizoumis’s testimony was consistent throughout on this

point. (Bizoumis Dep. 79:8-14, 80:4-5, 83:10-11, 89:19-20.)

27.

28.

29.

App. 21

told him he was lucky he had not hit anything. Mr.
Bizoumis trusted this information until he heard
from Mr. Kats that the Athena Alexander had struck
another vessel. (Bizoumis Dep. at 106:10-107:24.)

Plaintiffs did not present any evidence that would
suggest that Mr. Bizoumis acted with an intent to
harm when he took out the Athena Alexander.

C. Legal Standard
Rule 50(a) provides, in pertinent part, that if:

there is no legally sufficient evidentiary ba-
sis for a reasonable jury to find for [a] party
on [an] issue, the court may determine the
issue against the party and may grant a mo-
tion for judgment as a matter of law against
that party with respect to a claim or defense
that cannot under the controlling law be
maintained or defeated without a favorable
finding on that issue.

Fed. R. Civ. P. 50(a) (1).

A motion for judgment as a matter of law “may be
made at any time before submission of the case to
the jury.” Fed. R. Civ. P. 50(a) (2). “Nothing in Rule
50 ... requires that a motion for a directed verdict
come at a specific time in the case.” American &
Foreign Ins. Co. v. General Elec. Co., 45 F.3d 135,
139 (6th Cir. 1995) (rejecting position that “a motion
for directed verdict can only be properly raised and
granted (1) after the opening statement of an ad-
verse counsel, if by such statement it is clear that no
question for the jury exists; (2) at the close of the
evidence offered by an opponent; (3) or at the close of
all evidence.”).

30.

31.

32.

33.

App. 22

In ruling on a Rule 50 motion, a court must review
the evidence “ ‘in the light most favorable to the non-
moving party and draw all possible inferences in fa-
vor of that party.’” Ellison v. Shell Oil Co., 882 F.2d
349, 352 (9th Cir. 1989) (citing Donoghue v. County
of Orange, 848 F.2d 926, 932 (9th Cir. 1987). “A di-
rected verdict may be upheld only when the evi-
dence permits but one reasonable conclusion as to
the verdict.” Jd. In other words, the Court must de-
termine “whether or not, viewing the evidence as a
whole, ‘there is substantial evidence present that
could support a finding, by reasonable jurors, for the
nonmoving party.’” Quichocho v. Kelvinator Corp.,
546 F.2d 812, 813 (9th Cir. 1976) (quoting Chisholm
Bros. Farm Equipment Co. v. Int'l Harvester Co., 498
F.2d 1137, 1140 (9th Cir.), cert. denied, 419 US.
1023 (1974)). See also Berry v. Bunnell, 39 F.3d
1056, 1057 (9th Cir. 1994) (“A directed verdict is
proper when the evidence permits only one reason-
able conclusion.”); McGonigle v. Combs, 968 F.2d
810, 816 (9th Cir.), cert. dismissed, 506 U.S. 948
(1992) (citing same principle).

D. Discussion

Plaintiffs request that punitive damages be awarded
on the grounds that Mr. Bizoumis acted with reck-
lessness and callous disregard for others when he
took the boat out on June 27, 1999.

The Court agrees with Defendants that there is no
basis for an award of punitive damages.

Generally, punitive damages may be awarded in
maritime tort actions where a defendant’s actions
are intentional, deliberate or so wanton and reckless
as to demonstrate a conscious disregard of the rights
of others. See Protectus Alpha Navigation Co. v.

ee ee

34,

35.

36.

37.

38.

App. 23

North Pacific Grain Growers, Inc., 767 F.2d 1379,
1385 (9th Cir. 1985) (citations omitted); In re Marine
Sulphur Queen, 460 F.2d 89, 105 (2d Cir. 1972), cert.
denied, 409 U.S. 982 (1972). “A condition precedent
to awarding [punitive damages] is a showing by the
plaintiffs that the defendant was guilty of gross neg-
ligence, or actual malice or criminal indifference
which is the equivalent of reckless and wanton mis-
conduct.” See Marine Sulphur Queen, 460 F2d at
105.

The purpose served for awarding exemplary dam-
ages is to punish the defendant and to deter others
from acting in like manner. Lake Shore & M.S.R. Co.
v. Prentice, 147 U.S. 101, 104 (1893). Punitive dam-
ages are solely intended to serve the purposes of
punishment and deterrence, and should not provide
plaintiff with a windfall. Aldrich v. Thomson
McKinnon Sec., Inc., 756 F2d 243, 249 (2d Cir.
1985).

As Defendants admit liability, the Court assumes
that Defendant Bizoumis admits negligence.

Although Mr. Bizoumis admits liability for the
accident, his actions do not reflect a state of mind
that calls for an award of punitive damages. His ac-
tions do not reflect anything like recklessness, cal-
lous disregard for the rights of others, gross
negligence, actual malice or criminal indifference.

Even if the Court were to credit the testimony of
Plaintiffs’ witnesses Mr. Dixon and Mr. Gordian,
Plaintiffs would not establish that Mr Bizoumis
acted with the state of mind required for punitive
damages.

If true, the testimony of Messrs. Dixon and Gordian
merely suggests that Mr. Bizoumis acted negli-

gently, not that he acted recklessly, with malice or

39.

41.

IV.

42.

43.

App. 24

with callous disregard for the rights of anyone. Al-
though it may be unwise to gun the engines or travel
fast enough to create a wake in a marina, such be-
havior alone does not constitute recklessness.

Indeed, there is no credible or substantial evidence
to support a finding that Mr. Bizoumis had any “evil
motive” or other such punishable state of mind at or
near the time of the allision.

Plaintiffs thus failed to establish a prima facie case
on the issue of punitive damages.

Accordingly, the Court granted Defendants’ motion
and denied an award of punitive damages as a mat-
ter of law.

FINDINGS OF FACT
A. Damage to Buenos Aires

All the experts who testified on the extent of dam-
ages, whether called by Plaintiffs (Thomas W. Bell
and William Engstrom) or by Defendants (Bruce
Pfund an? Todd Schwede), were fairly consistent as
to the areas in which the Buenos Aires suffered
damage and, equally importantly, as to the areas of
the Buenos Aires that were not damaged.

Some experts examined the Buenos Aires closer in
time to the allision; others examined it years later:

a. Plaintiffs’ expert Mr. Bell examined the Buenos
Aires in July of 1999. (Bell Testimony, Ex. 209.)

b. However, Plaintiffs’ expert Mr. Engstrom did
not perform his survey until May 29, 2001. (Ex.
212.)

ER EE RE RAN ene Aen

App. 25

~

c. Defendants’ expert Mr. Schwede surveyed the
Buenos Aires on July 7, 1999. (Schwede Testi-

mony, Ex. 215.)

d. Defendants’ expert Mr. Pfund surveyed the ves-
sel on January 7-8, 2002. (Pfund Testimony, Ex.
214.)

44. The allision between the Athena Alexander and the
Buenos Aires resulted in the Buenos Aires suffering
a bent bow pulpit," bent lifeline stanchions, bent
dolphin striker rod, damage to the roller furling
headstay and halyard and minor damage to attach-
ment points.

45. The allision damage to the Buenos Aires did not
render the vessel a total loss.

46. The Buenos Aires suffered ‘no allision damage to its
structure or major components, including the ves-
sel’s hull (Schwede and Engstrom Testimony), keel
(Pfund Testimony), interior (Pfund and Engstrom
Testimony), engines (Engstrom Testimony), machin-
ery (Engstrom Testimony) and rigging (Engstrom
Testimony, Engstrom Dep. at 35:2-12).

47. With regard to the individual surveyors who testi-
fied, the Court gave the greatest weight to expert
Mr. Schwede of Todd and Associates.

48. Mr. Schwede is a qualified expert on the subject of
marine surveys, forensic damage evaluation, vessel
repair and cost of vessel repair.

" The pulpit is a stainless steel framework around the bow of the
boat. The pulpit acts as a safety device. It provides a structure to hang
onto, sit on, etc. when tending the sails. It attaches to the bow plank of
the boat, which is a flat piece of wood mounted on an aluminum frame
structure that is bolted to the framework. (Schwede Testimony.)

49.

50.

51.

52.

53.

App. 26

Mr. Schwede has been an accredited marine sur-
veyor since 1984, holding a membership in the Soci-
ety of Accredited Marine Surveyors. He currently
serves on the Board of Directors of the International
Association of Marine Investigators. He has been a
boat builder since the 1980’s and has also worked for
the Lloyd’s of London surveyor A.N. Tillett & Associ-
ates in San Diego, California. Mr. Schwede was in-
vited to become a partner at Eichenlaub Marine and
helped convert that boatyard’s business from new
construction to repair and modification of boats.

Mr. Schwede has published articles on stolen boat
investigations in Boating Magazine and Hot Boat
Magazine; and has had two technical articles pub-
lished in Technical Exchange for Marine Profession-
als.

Mr. Schwede is also a certified instructor with the
International Association of Marine Investigators,
and has taught classes in marine forensic photogra-
phy, accident damage investigation, accident recon-
struction and insurance fraud. He is currently an
instructor with the American Boat and Yacht Coun-
cil, teaching a course in marine accident investiga-
tion and accident reconstruction.

Mr. Schwede performs 350 inspections a year, 70% of
which are for insurance company clients. The rest
are for banks, the Internal Revenue Service, the
Coast Guard, the Navy and the public.

Although Mr. Schwede was hired by Markel Ameri-
can Insurance Company, Defendants’ insurance
company, to determine the damage to the Buenos
Aires from the allision and therefore could have
been biased in favor of the insured, the Court

54.

55.

56.

57.

58.

59.

App. 27

weighed this factor and found his testimony to be
entirely credible.”

With Mr. Benetic present, Mr. Schwede surveyed the
Buenos Aires while it was dry-docked and visually
inspected the bow pulpit, lifelines, deck, chain
locker, bulwarks and all deck areas in the forward
area. He also searched for stress in the laminated
and bolted structures.

In addition, Mr. Schwede climbed on a ladder up to
the deck levels, performed a visual inspection and
felt the surface of the hull for stress fractures.

In Mr. Schwede’s opinion, the only impact was pulpit
to pulpit, evidenced by metal to metal scratches on
the pulpits and the direction of the bends of the pul-
pit.

Mr. Schwede did not believe there had been any
physical impact on the fiberglass hull portion of the
boat and observed only minor damage to the re-
cessed pockets in the bulwarks, and some minor
movement (i.e., 3/16ths of an inch) in the bow plank.

In Mr. Schwede’s opinion, there was no significant
damage to the huii.

Mr. Schwede saw no scratches, dents, deflections or
disruptions to the fiberglass, gelcoat or bottom paint
that would suggest the bow had suffered a blow. Mr.
Schwede did not notice any other physical indicators
that showed trauma to the bow.

“ Mr. Schwede’s credibility was enhanced by his undisputed

testimony that he asked Mr. Benetic to point out any damages that he
might have overlooked. When Mr. Benetic indicated he believed there
were stress fractures to the lifeline stanchions, Mr. Schwede added that
item to his recommendations for repair. Mr. Schwede stated “If I
couldn’t rule [a repair request] out, I’d include it.”

60.

61.

App. 28

At every location Mr. Schwede inspected, Mr.
Schwede asked Mr. Benetic what damages he knew
about.

In his survey, Mr. Schwede listed the following
recommendations for repair:

a.

“Remove and replace double course stainless-
steel bow and stern pulpits as per original.”
(Ex. 215 at 1.)

“Replace vinyl covered stainless steel lifelines
and associated hardware, and replace four bent
lifeline stanchions. Provide gel coat and fairing
to all lifeline stanchion plugs at bases, where
disrupted, located in bulwarks, and blend gel
coat to match. Provide compound and wax to
the hull of the vessel as per original.” (Ex. 215
at 1.)

“Remove and replace bow plank frame and bow
plank, remove teak plank, repaint frame, re-
move corrosion located at mounting hardware
and treat with epoxy. Re-coat with linear poly-
urethane, replace teak plank and reinstall, as
per original.” (Ex. 215 at 1.)

“Provide gel coat repairs to inside bulwark area
where bow plank attaches to bulwark. Blend to
match existing gel coat, re-bed and secure cov-
ers over bolts.” (Ex. 215 at 1.)

“Provide gel coat touch-up to bulwark area lo-
cated beneath bow plank. Remove and re-bed
stem fitting, blend gel coat to match as per
original.” (Ex. 215 at 1.)

“Provide aloft rigging inspection by [a] qualified
rigging co[mpany], to mast, standing and run-
ning rigging, and provide written report of find-
ings.” (Ex. 215 at 2.)

App. 29

g. “Remove and replace with new, bow plank dol-
phin a [sic] striker rod as per original.” (Ex. 215
at 2.)

62. The Court found Mr. Schwede’s inspection to be
thorough and unbiased, especially as his unrefuted
testimony indicates he gave the Plaintiffs every op-
portunity to bring additional dainage to his atten-
tion.

63. Accordingly, the Court adopts Mr. Schwede’s finding
that the point of impact was pulpit to pulpit; i.e., the
stainless steel pulpit of the Athena Alexander col-
lided with the pulpit of the Buenos Aires.

64. The Court found Mr. Pfund” to be highly qualified
and credible, but limited in his area of expertise to

* Mr. Pfund was originally selected as the Court’s own expert in
this matter. However, the Plaintiffs repeatedly accused Mr. Pfund of
being prejudiced in favor of the defense. There also were serious
disagreements concerning payments due Mr. Pfund. Accordingly, the
Court found it necessary to relieve Mr. Pfund as its expert to avoid
further unpleasantness for him and alleviate a contentious issue which
threatened to derail the Progress of the case. Thereafter, the defense
designated him as one of its experts.

“ Mr. Pfund is an expert in the manufacture and construction of
composites for the marine industry. He has had hands-on experience
with marine composites since he worked in a small boatyard as a
teenager. Throughout his career, he has had wide exposure to many
materials and processes used in connection with civilian, commercial,
recreational and military boats, ships and yachts. He has consulted for
boat manufacturers, material vendors, material distributors, naval
architects, marine engineers, individual owners, insurance companies,
the United States Navy and the Royal Australian Navy. He has been
involved with both the construction and repair of boats. In the 1990’s,
Mr. Pfund manufactured process machinery used in the manufacture of
boats and provided application consulting on that kind of equipment to
boat manufacturers. He has developed and patented non-destructive
inspection equipment for composites.

(Continued on following page)

App. 30

the inspection of the vessel’s composite construction
and mechanical attachments thereto.

65. Mr. Pfund did not inspect the Buenos Aires until
January of 2002.”

Mr. Pfund has also served as technical editor of Professional Boat
Builder Magazine since its inception in 1989 and has published over
one hundred articles in the consumer and trade marine press. He has
taught classes on the manufacturing and inspection of composites in
the marine industry for the United States Navy, the American Bureau
of Shipping, the Wooden Boat School and a variety of trade schools. The
inspection of damages and damage repair forms a significant part of his
vessel inspection work.

* Plaintiffs attempted to introduce a videotape of the survey
conducted by Mr. Pfund on January 7-8, 2002. The Defendants filed a
Motion in Limine to Exclude Videotape on February 7, 2003. The Court
found in favor of Defendants and excluded the videotape until Plaintiffs
complied with Magistrate Judge Eick’s May 14, 2002 order that
“(w]ithin ten (10) days of the date of this order, Plaintiffs shall make
available to Defendants for inspection and copying the videotape
recording of the survey.” (6/2/03 Order at 5.) The Court reinforced
Magistrate Judge Eick’s order in its own order dated June 2, 2003,
stating “[t]he onus is therefore on Plaintiffs to arrange for inspection
and copying of the videotape,” although the Court indicated that
Defendants were to pay the cost of copying. Jd. It is undisputed that the
Plaintiffs did not allow Defendants to inspect and copy the original
videotape. In fact, Mr. Benetic stated that the original 8mm tape was in
Florida.

In an unusually contentious exchange, even within the parameters
of this contentious case, Plaintiffs at first refused to supply the Defen-
dants with the videotape. See Decl. of Non-Compliance § 4, Ex. A (in
which Joseph Benetic, Mr. Benetic’s son, states in a fax to Donald
Sands of Sands and Lerner, “I will need sufficient funds in advance and
at least 1 week advance notice to make a copy,” and also states, “I
refuse to provide to you criminals, my address as you have physically
harmed and threatened me for no reason, in the past.” In the same fax,
Joseph Benetic also refused to make a copy of the tape without a copy of
the Court’s order.) Despite Plaintiffs’ refusal to provide Defendants
with the original tape, Plaintiffs did provide defense counsel with a
VHS format copy labeled “Defense Copy.” However, defense counsel
noticed immediately that the videotape was not in the original 8mm

(Continued on following page)

App. 31

66. Mr. Pfund conducted a visual inspection and “ham-
mer sounding” of the boat. Disassembly was not
permitted, but this did not inhibit the inspection, ac-
cording to Mr. Pfund.

67. Upon inspecting the exterior, Mr. Pfund saw no
evidence of impact in the form of gouges, scrape
marks, rubber or paint transfer.

68. Mr. Pfund inspected each lifeline stanchion and its
attachment to the rail of the bow spirit. He noted
that the stanchion assemblies were bent to star-
board and concluded that the impact occurred there.

69. Mr. Pfund agreed with Mr. Schwede that the point of
impact was the tubular metal and wire structure
(i.e. the bow pulpit attachments), not the hull itself.

format. (Id. | 9.) Defense counsel viewed the videotape and found it
“shockingly worthless.” (Id. q 1.)

On the first afternoon of trial, the Court and all counsel attempted
to watch Plaintiffs’ copy and the copy provided to defense counsel.
Neither copy was viewable. The Court retained both copies overnight.
All parties convened again at 8:30 a.m. the next morning to view the
videotapes with the assistance of the Court’s technical personnel. At
that time, the Plaintiffs’ copy was more than adequate for viewing.
However, the defense’s copy of the tape, as the record will show, was
unwatchable in terms of picture and sound quality. Plaintiffs claimed
that Defendants tampered with the video sent to them. The defense
counsel denied any tampering, and referred to their previously filed
Declaration of Non-Compliance.

Pending Plaintiffs’ compliance with Magistrate Judge Eick’s order,
the Court excluded the videotape in its June 2, 2003 order. (6/2/03
Order at 14.) Plaintiffs failed to comply with the Order. Therefore, the
Court excluded the videotape.

Although exhibits are typically returned to counsel at the conclu-
sion of Central District civil trials, the Court has ordered that both
copies of this videotape be retained by the clerk’s office pending
appellate review.

70.

71.

72.

73.

74.

75.

76.

77.

App. 32

Mr. Pfund found, and the Court adopts as its find-
ing, that there was minor composite damage in bow
pulpit attachment locations consistent with allision
impact. (Pfund Testimony, ex. 214 at 12.)

Mr. Pfund also inspected the cleats, chocks and hose
pipes. He observed no damage except to the lifeline
stanchion and tubing system.

Mr. Pfund inspected the interior and found no
indication of damage consistent with a significant
impact to the bow of the boat.

While inspecting the interior, Mr. Pfund looked into
as many compartments as possible where the hull
attached to the liner and saw no cracking or other
indications of any signi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0803%3A1. Public record. Not legal advice.