Sonntag, 6.
März 2005 17:05
TVG - US
Claim
Dear Ladies and
Gentlemen!
On Friday
4.3.2005 in New York
our claim was filed. The press received immediately information after filing
the lawsuit. If anyone from the press contacts you direct and you do not want
to be contacted, than just give me information about this and inform the press,
that they shall call us (Dr Gerhard Podovsovnik 0043 664 110 34 04 and Dr
Herwig Hasslacher 0043 664 243 04 05). If you have any question to the case the
filing or the further procedure please do not hesitate and contact us via
e-mail: rechtsanwalt@podovsovnik.com or kanzlei@hh-law.at
Kind regards
Dr Gerhard
Podovsovnik, eh
Dr Herwig Hasslacher, cc
UNITED STATES DISTRICT COURT
FOR
THE
SOUTHERN
DISTRICT OF NEW YORK
------------------------------
TSUNAMI VICTIMS
GROUP;
Anna
Bajek;
Bartholomäus
Bajek;
Johann
Bay;
Kern
Bibiane;
Manuela
Brandenstein;
Christophe
Burtin;
Jerzy
Chojnowski;
Konrad
Chojnowski;
Bernd
Eduard
Drechsel;
DR. PETER
FERGER;
HANS PETER FERGER;
CHRISTEL
FERGER;
Monika
Feuerstein;
Magdalena
Franek;
Elfriede
Gaulhofer;
Franz
Gaulhofer;
Laurent
Guillaume;
Ursula
karlik;
Anita
Kirisits;
Walter Kirisits;
hertwig
klaus;
DR.
CHRISTIAN
KOBAU;
DR. IRENE
KOBAU;
LOTTE
KOBAU;
NAMOANI
KOBAU;
PETER
KOBAU;
Alexander
Krammer;
Lidia Kruffczyk;
Silvia
Kulb-Hohner;
Heike
Lange;
Larry
Lazar;
Andrea
Leger;
FREIDA
MATHIS;
KERSTIN
MATHIS;
MARKUS
MATHIS;
MICHAEL R.
MATHIS;
THOMAS
MATHIS;
Gurdrun
Matthies;
Waltraud
Mittermaier;
Judit
Mohola;
Leopold
Mracsna
Mario
Ninaus;
Luigi
Promenzio;
Olivia
Promenzio;
Susanne
Promenzio;
Vico
Promenzio;
Dr.
ALFRED
RIESSER;
dr.
waltraud
riesser;
Mag.
Kirists
Roman;
Sami
Romani;
Anny
Sadovnik;
Angelika
Schuhbeck-Alves;
Helmut
Schweiker;
Scott Theresia;
Cscilla
Torrico;
Mag. Sabine
Totter;
Frank
Wetzig;
Christa
Zrenner;
PETITIONE
vs.
ACCOR NORTH
AMERICA;
THE ACCOR
GROUP;
SOFITEL MAGIC LAGOON RESORT & SPA;
NATIONAL OCEANIC & ATMOSPHERIC
ASSOCIATION (# 1) a/k/a
NOAA;
the kingdom of thailand;
and
METEOROLOGICAL AGENCY of THAILAND (# 2)
------------------------------
PETITIONERS,
TSUNAMI VICTIMS GROUP [1] and some of its
members, including Anna Bajek,
Bartholomäus Bajek, Johann Bay, Kern Bibiane, Manuela Brandenstein, Christophe
Burtin, Jerzy Chojnowski, Konrad
Chojnowski, Bernd Eduard Drechsel, DR. PETER FERGER, hANS PETER FERGER,
CHRISTEL FERGER, Monika Feuerstein,
Magdalena Franek, Elfriede Gaulhofer, Franz Gaulhofer, Laurent Guillaume, Ursula
karlik, Anita Kirisits, Walter Kirisits, DR. CHRISTIAN KOBAU, DR. IRENE
KOBAU, LOTTE KOBAU, NAMOANI KOBAU, PETER KOBAU, Alexander Krammer, Lidia Kruffczyk, Silvia
Kulb-Hohner, Heike Lange Larry Lazar, Andrea Leger, FREIDA MATHIS,
KERSTIN MATHIS, mARKUS MATHIS, MICHAEL R. MATHIS, THOMAS MATHIS, Gurdrun Matthies, Waltraud Mittermaier, Judit
Mohola, Leopold Mracsna, Mario Ninaus, Luigi Promenzio, Olivia Promenzio,
Susanne Promenzio, Vico Promenzio, Dr. ALFRED RIESSER, dr.
waltraud riesser, Mag. Kirists Roman, Sami Romani Anny Sadovnik, Angelika
Schuhbeck-Alves, Helmut Schweiker, Scott Theresia, Mag. Sabine Totter, Cscilla
Torrico Frank Wetzig, Christa Zrenner; individually and
on behalf of other members of the TSUNAMI VICTIMS GROUP, as and for their
petition and complaint against the RESPONDENTS herein, upon information and
belief, state the following:
DESCRIPTION OF THE PARTIES
PETITIONERS
1. PETITIONERS Anna Bajek, Bartholomäus Bajek, Johann Bay, Kern Bibiane, Manuela Brandenstein, Christophe Burtin, Jerzy Chojnowski, Konrad Chojnowski, Bernd Eduard Drechsel, DR. PETER FERGER, hANS PETER FERGER, CHRISTEL FERGER, Monika Feuerstein, Magdalena Franek, Elfriede Gaulhofer, Franz Gaulhofer, Laurent Guillaume, Ursula karlik , Anita Kirisits, Walter Kirisits, DR. CHRISTIAN KOBAU, DR. IRENE KOBAU, LOTTE KOBAU, NAMOANI KOBAU, PETER KOBAU, Alexander Krammer, Lidia Kruffczyk, Silvia Kulb-Hohner, Heike Lange, Larry Lazar, Andrea Leger, FREIDA MATHIS, KERSTIN MATHIS, mARKUS MATHIS, MICHAEL R. MATHIS, THOMAS MATHIS, Gurdrun Matthies, Waltraud Mittermaier, Judit Mohola, Leopold Mracsna, Mario Ninaus, Luigi Promenzio, Olivia Promenzio, Susanne Promenzio, Vico Promenzio, DR. ALFRED RIESSER, dr. waltraud riesser, Mag. Kirists Roman, Sami Romani, Anny Sadovnik, Angelika Schuhbeck-Alves, Helmut Schweiker, Scott Theresia, Mag. Sabine Totter, Cscilla Torrico, Frank Wetzig, Christa Zrenner are victims of the December 2004 Tsunami in Southeast Asia who are residents of Austria and Germany.
2.
PETITIONERS TSUNAMI VICTIMS GROUP is a membership association open to
all persons who are/were or whose family members are/were victims and/or
suffered injuries during the December 26, 2004 Tsunami and its aftermath.DESCRIPTION OF THE PARTIES
PETITIONERS
1. PETITIONERS Anna Bajek, Bartholomäus Bajek, Johann Bay, Kern Bibiane, Manuela Brandenstein, Christophe Burtin, Jerzy Chojnowski, Konrad Chojnowski, Bernd Eduard Drechsel, DR. PETER FERGER, hANS PETER FERGER, CHRISTEL FERGER, Monika Feuerstein, Magdalena Franek, Elfriede Gaulhofer, Franz Gaulhofer, Laurent Guillaume, Ursula karlik , Anita Kirisits, Walter Kirisits, DR. CHRISTIAN KOBAU, DR. IRENE KOBAU, LOTTE KOBAU, NAMOANI KOBAU, PETER KOBAU, Alexander Krammer, Lidia Kruffczyk, Silvia Kulb-Hohner, Heike Lange, Larry Lazar, Andrea Leger, FREIDA MATHIS, KERSTIN MATHIS, mARKUS MATHIS, MICHAEL R. MATHIS, THOMAS MATHIS, Gurdrun Matthies, Waltraud Mittermaier, Judit Mohola, Leopold Mracsna, Mario Ninaus, Luigi Promenzio, Olivia Promenzio, Susanne Promenzio, Vico Promenzio, DR. ALFRED RIESSER, dr. waltraud riesser, Mag. Kirists Roman, Sami Romani, Anny Sadovnik, Angelika Schuhbeck-Alves, Helmut Schweiker, Scott Theresia, Mag. Sabine Totter, Cscilla Torrico, Frank Wetzig, Christa Zrenner are victims of the December 2004 Tsunami in Southeast Asia who are residents of Austria and Germany.
RESPONDENTS
3.
RESPONDENTS ACCOR NORTH AMERICA and THE ACCOR GROUP (hereinafter “ACCOR”
and/or “SOFITEL”) are an international hotel chain that owned, operated,
managed and/or was responsible for and/or involved with a hotel located at Khao
Lak Beach in Phuket, in the Kingdom of Thailand.
4. RESPONDENT
SOFITEL MAGIC LAGOON RESORT & SPA is and was the resort which RESPONDENTS
ACCOR and/or owned, operated, managed and/or for which they were responsible
for and/or involved with and located at Khao Lak Beach in Phuket, in the
Kingdom of Thailand.
5. RESPONDENT
NATIONAL OCEANIC & ATMOSPHERIC ASSOCIATION (# 1) a/k/a NOAA was and is an organ
of the United States Government responsible for, among other things, issuance
of seismological, earthquake, Tsunami and/or other atmospheric warnings.
6. RESPONDENT
the kingdom of thailand (hereinafter “Thailand”) had responsibility and/or
involvement with, among other things, (i) issuance, decisions to issue and
language of seismological, earthquake, Tsunami and/or other atmospheric
warnings and steps to be taken to protect their citizens, residents and others
in cases of earthquake and Tsunami, (ii) communications and actions related to
other RESPONDENTS related with the December 2004 Tsunami and (iii) events which
transpired after the December 2004 Tsunami and which relate to PETITIONERS
request for assistance, documents and other information.
7. RESPONDENT METEOROLOGICAL AGENCY OF THAILAND
(hereinafter “MAT”) (# 2) was an agency of RESPONDENT THAILAND which was charged with
the primary responsibility and/or decision making authority related to, among
other things, (i) issuance, decisions to issue and language of seismological,
earthquake, Tsunami and/or other atmospheric warnings and steps to be taken to
protect their citizens, residents and others in cases of earthquake and Tsunami
and (ii) communications and actions related to other RESPONDENTS related with
the December 2004 Tsunami.
FACTS RELEVANT TO
PETITION AND COMLAINT FOR DOCUMENTS
8. On
December 26, 2004, one of the worst natural disasters in history (# 3) struck
Southeast Asia.
9. An
earthquake which first measured in excess of 8.0 and then measured up to 9.2 on
the Richter Scale occurred in the Indian Ocean off the West Coast of Northern
Sumatera. (# 4)
10. In the days
before December 26, 2004, there was a steady instance and increase in
seismological activity and earthquake eruptions which were detected by the
monitoring stations.
11. The earthquake caused a phenomenon known as a
Tsunami to form and to start on a path toward certain of the counties in
Southeastern Asia, including but not limited to RESPONDENT The Kingdom of
Thailand (hereinafter “Thailand”), RESPONDENT The Democratic Socialist Republic
of Sri Lanka (hereinafter “Sri Lanka”) and other countries.
12. The earthquake and the Tsunami were also detected
by meteorological stations in the Indian Ocean, especially the seismological
station in the Kingdom of Thailand. (# 5)
13. Under normal circumstances, RESPONDENT National
Oceanographic and Atmospheric Association (# 1) (hereinafter “NOAA”) meteorological
stations which cover the area in which the earthquake and/or Tsunami occurred
would compile data and forward it, together with such warning as may be merited
given the state of scientific evidence, on to any and all countries which were
or could be in the path of the deadly Tsunami wave.
14. Within minutes after the earthquake occurred, it
was detected and it was possible for RESPONDENT NOAA to determine that the risk
of a Tsunami existed, the direction in which the Tsunami wave would head, the
countries and/or locations which lay in its course and the threat level. See Exhibit 1.
15. From available public information, RESPONDENT NOAA
did not notify all involved countries which lay in the Tsunami’s path.
16. From public information it appears that RESPONDENT
NOAA failed to issue an alert that would notify the countries where the Tsunami
hit that the deadly wave was coming.
See Exhibit 2.
17. In addition to the apparent NOAA alert failure,
RESPONDENT Thailand did not issue a timely warning to persons in its
country. In this regard, published
reports emerged that upon receipt of the NOAA alert and other data, the
seismological and oceanographic experts of Thailand spent more than one hour
talking about what the risk may or may not have been, instead of immediately
issuing a warning to their population and when they finally got around to
making a decision about what to do, that decision was based upon the potential
adverse economic impact on Thailand’s tourist industry if they issued a Tsunami
warning instead of the potential loss of life and other human costs. See Exhibit 3.
18. This delay caused the unnecessary loss of thousands
of persons who could have been saved.
19. Based on discoveries PETITIONERS has made to date,
various officials and/or agents of RESPONDENT Thailand received adequate basic
information upon which to conclude that the deadly wave was headed for its
country and that persons, including PETITIONERS, were in danger.
20. However, despite having such information, such
agents and/or officials of RESPONDENT Thailand failed to issue warnings, via
radio, television, electronic notices, emergency broadcasts, air raids, to its
emergency personnel, hotels, resorts and others so that persons could attempt
to take precautions such as to notify persons in and around the beach area,
that they should evacuate the beach area, low grounds and move to higher
ground.
21. In addition, RESPONDENT Thailand had a duty to notify
RESPONDENT Sri Lanka that the deadly Tsunami was headed for RESPONDENT Sri
Lanka and that precautions should be taken there such as to alert the
populations, via radio, television, electronic notices, emergency broadcasts,
air raids, to take precautions such as persons in and around the beach area,
that they should evacuate the beach area, low grounds and move to higher
ground.
22. RESPONDENTS ACCOR and/or SOFITEL knew or should
have known that their luxury resort and spa in Khao Lak was located precisely
in the midst of the Interface between the India and Burma tectonic plates and
that it was well known that in this area there were common, regular and serious
risks of earthquakes and Tsunamis.
23. As a result, RESPONDENT ACCOR and/or SOFITEL had a
duty to its guests, including some of the PETITIONERS herein, to operate and
have at its luxury resort & spa – built in an earthquake and Tsunami fault
zone – to be equipped with state of the art seismological and oceanographic
detection equipment, warning and/or alert systems so that when an earthquake
and Tsunami hit, the guests could be given notice of the impending dangers and
they could then take proper and necessary precautions such as evacuating the
beach, moving to higher ground and/or higher floors.
24. Based on information which PETITIONERS have
obtained to date, there appears to have been a failure in one or more of the
warning, evacuation and/or emergency alert systems, equipment or installations,
such that guests did not receive timely notice of the approaching deadly wave.
25. The Tsunami wave brought with it death and
destruction to everything that lay in its path.
26. In most instances, the difference between life and
death was measured by a matter of how far off the beach people were when the wave
hit.
27. In the days and weeks after the Tsunami struck, the
PETITIONERS along with hundreds of thousands of other victims often found
themselves in a desperate search (i) for family members lost in the Tsunami,
(ii) for information about family members lost in the Tsunami, (iii) for
assistance in recovering for burial in their countries the remains of family
members lost in the Tsunami and (iv) for information about how and why the
Tsunami seemed to have struck without warning.
28. Often times, the PETITIONERS were caught in
bureaucratic red-tape with no information forthcoming or with no information
about where to direct questions for information and assistance.
29. In addition to the bureaucratic red-tape, PETITIONERS
have started to discover that various of the officials and/or agents of one or
more of the RESPONDENTS has been fired and/or terminated and may not be
available to testify because he or she moves to a location, with his/her
records, which is beyond the PETITIONERS, the US Court’s and RESPONDENTS
ability to compel such persons to provide evidence related to the disaster and
PETITIONERS potential claims.
30. Also, PETITIONERS have started to
discover that documents and evidence:
a. Are
being discarded and/or moved to locations which may make them unavailable
and/or inaccessible;
b. Are allowed to
deteriorate or damaged due to poor storage conditions;
c. Are
being destroyed in the normal course of business as certain tapes, photographs,
computer stored data and other information is regularly purged from RESPONDENTS
systems;
d. Are being
moved from its/their normal storage locations to unknown and/or inaccessible
locations and/or facilities; and
e. Are being
classified, marked as confidential and/or otherwise designated as secret and/or
not to be disclosed to PETITIONERS and the public.
31. PETITIONERS have discovered
instances where persons and witnesses who have information relevant to
PETITIONERS potential claims are suffering from physical and/or emotional
conditions which make it probable that their testimony may not be available
when PETITIONERS may seek to prosecute whatever potential claims as they may
have.
32. PETITIONERS have discovered
instances where personal belonging are reported to have been stolen and human
remains are reported to have simply disappeared despite PETITIONERS requests
that the remains of their family members be returned to them for burial in
their home countries.
33. The December 2004 Tsunami was one
of the greatest natural disasters in history. (# 6)
34. The losses, damages and sufferings
of the hundreds of thousands of citizens of the affected countries are beyond
measure.
35. It is the responsibility of each
affected country to take care of their own citizens and other persons for whom
it/they assumed a responsibility to provide certain safety and other conditions
and/or services.
36. PETITIONERS and other members of
the TVG found themselves in the position of tourists, guests or in some
instances business people who were totally dependent upon and reasonably
expected to be protected by the systems, equipment, warnings, technology,
alerts, procedures and protocols which RESPONDENTS ACCOR and/or SOFITEL, NOAA,
THAILAND and MAT (# 2) were to follow.
37. PETITIONERS and other TVG members
have tried to get access to and preserve the evidence and information which is
the subject of this petition without having to file same but to no avail.
38. PETITIONERS and other TVG members
need this information, documents and/or other assistance to help them (i) to
preserve evidence and witness testimony, (ii) to gather the information to determine
what if any claim they may have and against whom/which entity the claims should
be made and (iii) to assist them move forward trying to recover for the horrors
of the December 2004 Tsunami and to help the world learn a lesson so that such
a disaster never happens again to such innocent people.
PETITIONERS’ VERIFICATION OF ELEMENTS OF RULE 27 (a) (1)
Requirement # 1 – Petitioners Expect to be Parties to Action Cognizable in a Court of the US but is Presently Unable to Bring It or Cause It to be Brought
Requirement # 4 – Names and Addresses of the Individuals Whom Petitioners Expect to be Adverse Parties
57. PETITIONERS repeat, re-allege and incorporate each and everyone one of the above allegations as if the same were set forth fully and at length herein.
PETITIONERS’ VERIFICATION OF ELEMENTS OF RULE 27 (a) (1)
Requirement # 1 – Petitioners Expect to be Parties to Action Cognizable in a Court of the US but is Presently Unable to Bring It or Cause It to be Brought
39. PETITIONERS
repeat, re-allege and incorporate each and everyone one of the above
allegations as if the same were set forth fully and at length herein.
40. PETITIONERS
expect to be parties to an action which can be heard in either this or another
Court of the United States.
41. PETITIONERS are
presently unable to bring the cause of action because they do not yet know
against who/which entities the claims should be brought.
42. As set forth in
greater detail below, the PETITIONERS require RESPONDENTS to produce the
requested information before some of the time for some of the claims expires or
before the PETITIONERS suffer further unnecessary and irreparable harm and/or
before the evidence is no longer available because witnesses become sick,
incapacitated, incapable of testifying, and because other evidence disappears
or is otherwise not available or accessible to PETITIONERS.
Requirement # 2 – Subject Matter of Action & Petitioners’ Interests Therein
Requirement # 2 – Subject Matter of Action & Petitioners’ Interests Therein
43. PETITIONERS
repeat, re-allege and incorporate each and everyone one of the above
allegations as if the same were set forth fully and at length herein.
44. As indicated
above, PETITIONERS believe they may have a cause of action against one, more or
all of the RESPONDENTS and possibly other persons, predicated upon an alleged
or perceived failure in one or more of the warning, evacuation and/or emergency
alert systems, equipment or installations, such that PETITIONERS and others did
not receive timely notice of the approaching deadly wave, and other potentially
careless, reckless, negligent and/or wrongful acts and/or omissions which
occurred in the post Tsunami period and which cause PETITIONERS further
unnecessary damages and injuries.
45. PETITIONERS’
interests in such a potential future claim are, among other things, for
potential equitable, injunctive, compensatory and punitive damages.
Requirement # 3 – Facts which Petitioners Wish to Establish by Proposed Testimony and Evidence and Reasons for Desiring to Perpetuate Testimony
46. PETITIONERS repeat, re-allege and incorporate each and everyone one of the above allegations as if the same were set forth fully and at length herein.
Requirement # 3 – Facts which Petitioners Wish to Establish by Proposed Testimony and Evidence and Reasons for Desiring to Perpetuate Testimony
46. PETITIONERS repeat, re-allege and incorporate each and everyone one of the above allegations as if the same were set forth fully and at length herein.
47. PETITIONERS have a
reasonable belief that RESPONDENTS are in possession of documents related to
PETITIONERS’ potential claims predicated upon an alleged or perceived failure
in one or more of the warning, evacuation and/or emergency alert systems,
equipment or installations, such that PETITIONERS and others did not receive
timely notice of the approaching deadly wave, and other potentially careless,
reckless, negligent and/or wrongful acts and/or omissions which occurred in the
post Tsunami period and which cause PETITIONERS further unnecessary damages and
injuries.
48. PETITIONERS
believe that EACH of the RESPONDENTS in the normal course of business should
maintain documents related to PETITIONERS’ potential claims predicated upon an
alleged or perceived failure in one or more of the warning, evacuation and/or
emergency alert systems, equipment or installations, such that PETITIONERS and
others did not receive timely notice of the approaching deadly wave, and other
potentially careless, reckless, negligent and/or wrongful acts and/or omissions
which occurred in the post Tsunami period and which cause PETITIONERS further
unnecessary damages and injuries.
49. PETITIONERS
believe that EACH of the RESPONDENTS in the normal course of business should
maintain documents during related to the relevant warning, evacuation and/or
emergency alert systems, equipment or installations, related to notice or lack
of notice of the approaching deadly wave, and other acts and/or omissions which
occurred in the post Tsunami period and which cause PETITIONERS further
unnecessary damages and injuries, including but not limited to
a.
Correspondence
exchanged between RESPONDENTS;
b.
Notice sent to or received by RESPONDENTS ACCOR, SOFITEL (and particularly the
Magic Lagoon & Spa Facility, from RESPONDENT NOAA;
c.
RESPONDENT computer files and all backups related to the events of December 26,
2004 from the first instance of detecting the earthquake through the time when
the Tsunami wave hit Sri Lanka;
d.
RESPONDENT documents and records of all warnings generated and distributed on
December 26, 2004 from the first instance of detecting the earthquake through
the time when the Tsunami wave hit Sri Lanka;
e.
RESPONDENT documents and records of all notices and/or information related to
the approaching Tsunami received via TV, radio, email and/or satellite on
December 26, 2004 from the first instance of detecting the earthquake through
the time when the Tsunami wave hit Sri Lanka;
f.
Satellite and/or computer generated and/or video phone photographs and/or
imagery and any videos or cameras showing Khao Lak beach, RESPONDENT THAILAND’s
coast, SRI LANKA’s coast and RESPONDENTS ACCOR & SOFITEL hotel on December
26, 2004 from the first instance of detecting the earthquake through the time
when the Tsunami wave hit Sri Lanka;
g.
All electronic, phone messages, emails, computer generated and/or other
correspondence between RESPONDENT NOAA and THAILAND and/or non-RESPONDENT Sri
Lankan scientists, environmental, weather, seismological and other experts on
December 26, 2004 from the first instance of detecting the earthquake through
the time when the Tsunami wave hit Sri Lanka;
h.
All voice recordings, videos, tapes and/or other recording devices showing how
RESPONDENT NOAA determined to include and/or exclude certain language in the
warnings issue;
i.
Copies of RESPONDENT NOAA investigations related to the events from the first
instance of detecting the earthquake through the time when the Tsunami wave hit
Sri Lanka;
j.
Computer and/or electronically stored records of RESPONDENT NOAA reports,
memoranda and other information provided to the US Congress, Senate and
President on December 26, 2004 from the first instance of detecting the
earthquake through the time when the Tsunami wave hit Sri Lanka;
k.
Computer and/or electronically stored records of RESPONDENT NOAA reports,
memoranda and other information provided by to the Joint Chiefs of Staff and/or
US military bases in the Pacific and/or Indian and/or other oceans and
particular to the base at Diego Garcia, on December 26, 2004 from first
instance of detecting the earthquake through the time when the Tsunami wave hit
Sri Lanka
l.
Computer and/or electronically stored records and/or information or reports
exchanged by and between RESPONDENT NOAA and RESPONDENT THAILAND on December
26, 2004 from first instance of detecting the earthquake through the time when
the Tsunami wave hit Sri Lanka;
m. Computer
and/or electronically stored records and/or information or reports exchanged by
and between RESPONDENTS NOAA, THAILAND and non-RESPONDENT Sri Lanka on December
26, 2004 from first instance of detecting the earthquake through the time when
the Tsunami wave hit Sri Lanka;
n.
Computer and/or electronically stored records and/or information maintained by
RESPONDENT ACCOR and/or its facility in Thailand about instances of earthquake,
Tsunami, environmental impact, catastrophic event risks, and insurance policies
and related to the events of December 26, 2004 from first instance of detecting
the earthquake through the time when the Tsunami wave hit Sri Lanka;
o.
Computer and/or electronically stored records and/or information maintained by
RESPONDENT ACCOR and/or its facility in Thailand related to insurance,
earthquake, atmospheric, seismological experts consulted before building of the
facility in Thailand on Khao Lak beach and related to the events of December
26, 2004 from first instance of detecting the earthquake through the time when
the Tsunami wave hit Sri Lanka;
p.
Computer and/or electronically stored records and/or information maintained by
RESPONDENT ACCOR and/or its facility in Thailand related to known risks of
earthquake and Tsunami to the facility in Thailand on Khao Lak beach and
related to the events of December 26, 2004 from first instance of detecting the
earthquake through the time when the Tsunami wave hit Sri Lanka;
q.
Computer and/or electronically stored records and/or information exchanged
between DEFENDANTS ACCOR and/or its facility in Thailand, and RESPONDENT
THAILAND related to known risks of earthquake and Tsunami to the facility
in Thailand on Khao Lak beach and related to the events of December 26, 2004
from first instance of detecting the earthquake through the time when the
Tsunami wave hit Sri Lanka; and
r.
Computer and/or electronically stored records and/or information maintained
locally in RESPONDENT THAILAND related to permits granted to build,
representations about safety and warning systems, emergency facilities and
systems, seismological data, safety training, ACCOR registration to be /or its
facility in Thailand, and RESPONDENT THAILAND’S known risks of earthquake and
Tsunami to the facility in Thailand on Khao Lak beach and related to the events
of December 26, 2004 from first instance of detecting the earthquake through
the time when the Tsunami wave hit Sri Lanka;
50. PETITIONERS
representatives have inquired about preserving and obtaining the evidence and
have been told that many of the things they request are not in their
possession, or have been destroyed either in the normal course of business or
during the Tsunami disaster or have been classified as confidential for variety
governmental or military or other reasons.
51. PETITIONERS need
to have the documents from RESPONDENTS and the testimony of RESPONDENTS
custodian of records and/or employees before they disappear and/or are no
longer under the RESPONDENTS control.
52. The
documents and information from above are they necessary for PETITIONERS to be
able to establish, among other things (i) who/which parties should be named in
a complaint; (ii) what causes of action should be set forth in the complaint,
(iii) what are the relevant Federal Statutes, if any, upon which a complaint
should be based, (iv) what is applicable statute of limitations for PETITIONERS
claims and (v) what damages, including potential exemplary, treble and/or
punitive damages, and (vi) what injunctive relief, if any, may be requested.
53. At all times
relevant hereto, RESPONDENTS are, should be, were and/or should have been in
possession of the information and documents, which are necessary for the claims
which PETITIONERS believe should be made and which may involve one or more of
the instant RESPONDENTS and other parties whose identities are not presently
known to PETITIONERS and can only be discovered through access to the requested
documents.
54. At all times
relevant hereto, PETITIONERS has reason to believe that RESPONDENTS have the
requested and necessary documents in their possession, custody and/or control.
55. At all times
relevant hereto, PETITIONERS and/or PETITIONERS’S Predecessors in Interest
has/have been unable to secure the production of documents from the
RESPONDENTS.
56. WHEREFORE,
PETITIONERS demands and prays that judgment be entered compelling RESPONDENTS
to produce the documents and evidence, which are in their custody, possession
and/or control. Requirement # 4 – Names and Addresses of the Individuals Whom Petitioners Expect to be Adverse Parties
57. PETITIONERS repeat, re-allege and incorporate each and everyone one of the above allegations as if the same were set forth fully and at length herein.
58. PEITIONERS expect
that one or more to the RESPONDENTS may be adverse parties.
59. The addresses for
the RESPONDENTS who are expected to be adverse parties are:
a.
ACCOR NORTH AMERICA at its US corporate headquarters in Texas or one of its
corporate facilities within this judicial district;
b.
THE ACCOR GROUP at its US corporate headquarters in Texas or one of its
facilities within this judicial district;
c.
SOFITEL MAGIC LAGOON RESORT & SPA c/o their US corporate headquarters in
Texas or one of its corporate facilities within this judicial district;
d.
NATIONAL OCEANIC & ATMOSPHERIC ASSOCIATION (# 1) a/k/a NOAA, at their offices in
Washington DC and/or one of their facilities within this judicial district;
e.
THE KINGDON OF THAILAND, at their embassy in Washington DC and their consulate
offices in New York City; and
f.
METEOROLOGICAL AGENCY of THAILAND (“MAT”) (# 2) c/o of RESPONDENT THAILAND at their
embassy in Washington DC and their consulate offices in New York City.
Requirement # 5 – Names of
the Persons to be Examined
60. PETITIONERS repeat, re-allege and incorporate each and everyone one of the above allegations as if the same were set forth fully and at length herein.
60. PETITIONERS repeat, re-allege and incorporate each and everyone one of the above allegations as if the same were set forth fully and at length herein.
61. PETITIONERS
intend to examine the following persons:
a.
RESPONDENTS’ custodian of records with primary custody and responsibilities for
maintaining the above records related to, among other things, issuance,
decisions to issue and language of seismological, earthquake, Tsunami and/or
other atmospheric warnings and steps to be taken to protect their citizens,
residents and others in cases of earthquake and Tsunami and communications and
actions related to other RESPONDENTS related to the events of December 26, 2004
from the first instance of detecting the earthquake through the time when the
Tsunami wave hit Sri Lanka;
b.
Suparek Thantiratanawong, director general of MAT (# 2) what has been removed from
his position and may soon be outside the employ of the RESPONDENT
THAILAND;
c.
Smith Thammasaroj – RESPONDENT THAILAND’s representative – with knowledge of
whatever records may exist related to, among other things, issuance, decisions
to issue and language of seismological, earthquake, Tsunami and/or other
atmospheric warnings and steps to be taken to protect their citizens, residents
and others in cases of earthquake and Tsunami and communications and actions
related to other RESPONDENTS related with the to the events of December 26,
2004 from the first instance of detecting the earthquake through the time when
the Tsunami wave hit Sri Lanka; and
d.
PETITIONERS
62. In addition
to the depositions, PETITIONERS request that the Court direct RESPONDENTS to
produce the documents specifically identified herein so that they can be
preserved and so that PETITIONERS can evaluate same and determine which if any
claims they have against which of the RESPONDENTS and others and for what
damages.
63. Each of the
proposed deponents will provide testimony related to the existence of documents
and/or evidence which was/were and/or are in RESPONDENTS possession and related
to, among other things, issuance, decisions to issue and language of
seismological, earthquake, Tsunami and/or other atmospheric warnings and steps
to be taken to protect their citizens, residents and others in cases of
earthquake and Tsunami and communications and actions related to other
RESPONDENTS related to the events of December 26, 2004 from the first instance
of detecting the earthquake through the time when the Tsunami wave hit Sri
Lanka.
COURT’S JURISDICTION OVER PETITION AND
ONE OR MORE OF POTENTIAL RESPONDENTS
64.
PETITIONERS believe that in the event a claim may ultimately be made against
RESPONDENTS ACCOR and/or SOFITEL this Court will ultimately have jurisdiction
over said RESPONDENTS ACCOR and/or SOFITEL insofar as they are US companies
which conduct systematic and continuous business in the US and/or are resident
within this judicial district.
65. PETITIONERS
believe that in the event a claim may ultimately be made against RESPONDENT
National Oceanographic and Atmospheric Association (# 1) a/k/a NOAA, this Court has
jurisdiction over NOAA insofar as it is an organ and/or agency of the US
government and had involvement with the events described herein and can be
considered resident within this judicial district.
66. PETITIONERS
believe that a Court in the US will have jurisdiction over whatever claims as
PETITIONERS may ultimately have and/or make against RESPONDENT THAILAND
pursuant to 28 USC §§ 1330, 1605 and 1608 et seq. (providing exceptions to the Foreign
Sovereign Immunities Act).
67. PETITIONERS
believe that a Court in the US will have jurisdiction over whatever claims as
PETITIONERS may have and/or make against RESPONDENT MAT (# 2) insofar as it is an
agency of the government of THAILAND and pursuant to 28 USC §§ 1330, 1605 and
1608 et seq. (providing exceptions to the Foreign Sovereign Immunities Act)it
is subject to the PETITIONERS demands herein.
68. PETITIONERS
believe that a Court in the US will have jurisdiction over whatever claims as
PETITIONERS may have and/or make against any of the RESPONDENTS and others
through diversity of citizenship, pursuant to 28 USC § 1332, and because said
RESPONDENTS and others individually (i) maintain or maintained agents,
representatives, personnel, officials and/or assets within and/or (ii) conducts
or conducted regular, continuous and systematic business and/or communications
related to PETITIONERS claims herein within this judicial district, (iii)
documents related PETITIONERS claims were sent into and/or are present or
maintained in this judicial district, (iv) engage or engaged in commerce in the
US, and (vi) sent, directed, caused to be sent/directed mail, wires,
facsimiles, telephonic or other electronic communications and/or solicitations
into and/or from the US.
69.
PETITIONERS believe that venue in this Court would be proper over whatever
claims as PETITIONERS may have and/or make against any of the RESPONDENTS and
others since the RESPONDENTS do business and may be found in the District
within the meaning of 28 U.S.C. ¶¶ 1391(a), and 28 U.S.C. ¶¶ 1350.
70.
PETITIONERS believe that venue in this Court would be proper over whatever
claims as PETITIONERS may have and/or make against any of the RESPONDENTS and
others and that in the event, the Court should determine that venue may be
lacking in this Court, then pursuant to 28 USC ¶¶ 1400 and 1401, the Court may
transfer the action to another district where the case could have originally
been filed.
PETITIONERS’ REQUEST FOR
ORDER AUTHORIZING THE TAKING OF DEPOSITIONS OF THE AFOREMENTIONED PERSONS FOR
THE PURPOSE OF PERPETUATING TESTIMONY AND PRESERVING DOCUMENTS.
71.
PETITIONERS repeat, re-allege and incorporate each and everyone one of the
above allegations as if the same were set forth fully and at length herein.
72. Some
of the RESPONDENTS named herein and other third parties witnesses, are (i)
persons who are of advanced age, beyond 80 years old, with series medical or
other conditions or (ii) other persons who are being relocated, removed from
positions and transferred so that it makes it probable that they may not be
available to testify or capable of or accessible to PETITIONERS for testimony
in the future.
73. Such
testimony needs to be preserved for the parties and the Court in the future.
74.
WHEREFORE, PETITIONERS respectfully request this Court grant an Order
authorizing PETITIONERS to take depositions and directing RESPONDENTS to
preserve, identify and produce certain documents related to the claims which
PETITIONERS believe they may have and/or which they believe they may make.
Dated: _______________ _________________________
Edward D. Fagan, Esq.
140 Broadway, 46th Floor
New York, NY 10005
Tel. (212)
858-7605
Plaintiff Pro-Se and Plaintiffs’ Co-Counsel
NOTE: ALL COUNSEL INCLUDING EUROPEAN CO-COUNSEL ARE WORKING
IN THIS PETITION ON A STRICTLY PRO-BONO BASIS TO
ASSIST PETITIONERS PRESERVE TESTIMONY, GAIN ACCESS TO THE DOCUMENTS AND
PRESERVE EVIDENCE.
EUROPEAN CO-COUNSEL
DR. HERWIG HASSLACHER
A-9500
Villach, Hauptplatz 25
Austria
Tel. +43-4242-219-399
Fax +43-4242-219-366
DR. GERHARD
PODOVSOVNIK
1010 Wien,
Habsburgergasse 6-8
Austria
Tel. +43-1-536-37-850
Fax +43-1-536-37-888
VERIFICATION
Dr. Alfred Riesser, declares and says, in support of this petition, the
following:
My family and I went on holiday to The Sofitel Magic Lagoon & Spa at Khao
Lak, Thailand. We were not warned at any time of the Tsunami wave
coming directly at us. I was not in my room when the Tsunami wave
hit but my son was in the room sitting at the desk and my wife Waltraud was on
the terrace of her room. After the Tsunami hit, I searched for my
son and the first place I went was back to the room, I found my son’s dead body
lodged between wood in the room. I identity him but was unable to
pull the body out without assistance. There had been only German couple waiting
for me in front of the hotel. No officials of the Hotel had been in the hotel
anymore. The Hotel looked devastated but stable. Finally because of the danger
of a new wave I did not go to the hotel anymore. Family Brauner tried to go to
the hotel on the 27. But the entry had been refused to them by the officials of
the hotel because of “danger of instability” of the bungalows. Two days later
family Brauner tried again to go to the hotel. At that time was no “danger”
anymore! They wanted to get out the money of their safe but the save was empty.
They only got back their passports. They also inspected the room of my son
Gregor, the dead body was not there anymore. On the 26th and 27 of
Dec 2004, I told two representatives of the Takua Pa hospital that my son was lying
in the room 5135. On the 28th we flew back home with the air
ambulance because of the very serious injuries of my wife. At home I found out
that the body of my beloved son was lost. I have tried in vain to get the information
we are requesting and I have tried in vain to get information about what
happened to my son’s body. I have other claims but for purposes of this
Petition, we pray the US Court will help us get this information from SOFITEL,
NOAA and THAILAND.
I am a member of the Tsunami Victims Group and fully support the petition for
evidence, documents and information.
I hereby certify the foregoing to be true to the best of my knowledge
information and belief. I make this statement under penalty of perjury.
Date:
______________
______________________________
[1]
The Tsunami Victims Group (“TVG”) is a not for profit organization which is
being formed under the civil laws of Austria and Germany to assist persons who
suffered physical, emotional, economic injuries in the December 2004 Tsunami.
TVG was founded primarily to assist families to, among other things, (i) help
secure the return of human remains, (ii) help in locate and/or identify persons
who remain listed as missing, (iii) secure personal belongings, (iv) secure
complete disclosure of documents explaining how the events of December 26, 2004
unfolded and to help the families determine what, if any, mistakes, wrongful
acts and/or omissions to act occurred, (v) to push for the formal creation of
humanitarian funds to assist the TVG families and (vi) to lobby for improved
safety procedures, systems and/or equipment. Although originally
established by victim families from Austrian and Germany who were caught in the
Tsunami, TVG continues to expand and from time to time may include families from
other countries who may wish to join TVG.
******************
Correction # 1: ADMINISTRATION
Correction # 2: Thai meteorological department (tmd)
Correction # 3: one of the worst natural
event in history and the worst man-made tsunami massacre in living memory
Correction # 4: A tremendous earthquake which first measured on the moment
magnitude scale (abbreviated as MW) in excess of 8.0 and then
measured up to 9.1 (finaly upgrated to 9.3) occurred in the Indian Ocean (Java Trench) with its
epicenter off the West Coast of Northern Sumatera.
CORRECTION # 5: The mega earthquake was detected within minutes by seismic stations and networks worldwide and was especially detected by the seismological Thai authority (TMD) and it's seismic stations in the Kingdom of Thailand. The Tsunami wave hit the Coasts of Northern Sumatera, of the Nikobars and the Andamans, destreoyed them and killed probably more then 200.000 people long before the Tsunami struck the West Cost of Thailand and the Costs of Sri Lanka. The Tsunami wave in the Indian Ocean was not only detected by authorities of the Indian Ocena Rim Countries but was also detected by the U.S. reconnaissance satellites and satellites of the respondent NOAA.
CORRECTION # 5: The mega earthquake was detected within minutes by seismic stations and networks worldwide and was especially detected by the seismological Thai authority (TMD) and it's seismic stations in the Kingdom of Thailand. The Tsunami wave hit the Coasts of Northern Sumatera, of the Nikobars and the Andamans, destreoyed them and killed probably more then 200.000 people long before the Tsunami struck the West Cost of Thailand and the Costs of Sri Lanka. The Tsunami wave in the Indian Ocean was not only detected by authorities of the Indian Ocena Rim Countries but was also detected by the U.S. reconnaissance satellites and satellites of the respondent NOAA.
Correction # 6: was one ot the greatest man-made calamity in history
Remarks:
Please note: All foregoing corrections and remarks has been made by
Jerzy Chojnowski
Chairman-GTVRG e.V.
www.gtvrg.de
Remarks:
1) The LIST
of RESPONDENTS is in neither case conclusively regulated nor final but
still open and preliminary only.
2) The LIST
of RESPONDENTS shall comprise the most of 26 participating Member States of the
International Coordination Group for the Tsunami Warning System (TWS), i.e.:
Australia, Canada, Chile, China (People's Republic of China (PRC)/Republic of
China (ROC/Hong Kong), France, Indonesia, Japan, Mexico, New
Zealand, Peru, Philippines, Russia, Singapore, South Korea, Thailand,
United Kingdom and the United States of America.
3) The LIST
of RESPONDENTS shall contain the following Indian Ocean Rim Countries:
Australia, Bahrain, Egypt, France (Réunion, Mayotte, Djibouti), Indonesia, India, Iran, Israel, Kuwait, Malaysia, Maldives, Mauritius, Oman, Pakistan, Qatar, Saudi Arabia, Seychelles, South Africa, Sri Lanka, Tanzania/Zanzibar, Thailand, United Arab Emirates, United
Kingdom (BIOT/Chagos Archipelago) and the USA (Diego Garcia).
4) The LIST of Thai CO-RESPONDENTS shall
contain: The Thai Government a) Thaksin Shinawatra as the Prime Minister, b)
The Office of the Prime Minister (OPM): The Internal Security Operations
Command (ISOC), The National Intelligence Agency and The Office of the National
Security Council (NSC); c) The Ministry of Interior (MOI): Department of
Disaster Prevention and Mitigation; d) The Thai Meteorological Department
(TMD); e) The Royal Thai Survey Department (The Royal Thai Armed Forces); f) The Ministry of Transport (Marine Department); g) The Tourism
Authority of Thailand (TAT); h) The Royal Thai Armed Forces: the military police
watching the hotel areas and The Royal Thai Navy (RTN): the Commander-in-Chief
and the Andaman Sea Fleet Command; i) the provincial’s governments (governors,
coastal district chiefs and clerks) of the provinces Phang Nga, Phuket and
Krabi; j) the Thai tourism industry right there managing the hotels in the
tsunami prone coastal zones destroyed or devastated by the tsunami 2004 (see Exhibit ...).
(...) Please note: All foregoing corrections and remarks has been made by
Jerzy Chojnowski
Chairman-GTVRG e.V.
www.gtvrg.de
PS. Eines möchte ich gleich klarstellen: Wir stehen zu unseren Anwälten, so
wie sie zu uns Opfern gestanden haben. One thing I would like to clarify: We
stand by our lawyers, as they stood by us victims.
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