Court hears petition to declare M/V Mariana captain presumed dead, opening path for probate

The Superior Court heard a petition last July 16 seeking to have M/V Mariana captain Frederick L. Nosek Jr. declared presumed dead, a move that would allow his widow to begin probate proceedings and administer his estate following the cargo vessel's disappearance during Super Typhoon Sinlaku.

Following the hearing, attorney Robert Torres said the court is expected to issue an order finding Nosek presumed dead under the CNMI Probate Code after reviewing the evidence presented.

"We just completed the hearing on the determination of death under the CNMI Probate Code for the husband of Ms. Kyung Nosek, Frederick L. Nosek, Jr.," Torres said. "The court will issue its determination finding that he is presumed dead, having been lost at sea, based on the Coast Guard's letter of presumption of death and that he has not returned, that he suffered from a specific peril of death with [Super] Typhoon Sinlaku."

Torres said the court's ruling would allow Nosek's estate to move forward through probate.

"This allows the admission of the estate into probate proceedings because Mr. Nosek left behind his loving wife and daughter, Naomi, in Seattle," he said.

Calling the loss a tragedy for the entire community, Torres said, "This has been a terrible tragedy and like prior mariners who have been lost, it's important that as an island community, we have the resources and the responsibility to ensure our best efforts, to be able to ensure the safety of our loved ones when they go out to sea to fish, marine sports."

He said the probate proceedings could also allow the estate to pursue any claims it decides to bring.

"What is important though is we now begin the effort to proceed to bring any claims, should the estate wish to do so in the District Court of Guam regarding the notice by the ship owners," Torres said. "We will leave that to that process over there."

Asked about Black Micro Corp.'s petition in federal court seeking to limit liability, Torres said such filings are common in admiralty law.

"As a lawyer, it's not surprising. Unfortunately, in the legal process in admiralty, that is actually what happens routinely," he said.

He added, "Perhaps what may be disappointing would be the speed and the diligence which they have initiated proceedings in Guam."

During the hearing, Torres presented documentary evidence and testimony supporting the petition for a judicial declaration of presumed death. Homeland Security and Emergency Management special assistant Clement Bermudes testified about the emergency response to the disappearance of the Mariana, the multinational search effort led by the U.S. Coast Guard, and the conditions confronting the vessel after it lost communication while attempting to evade Super Typhoon Sinlaku.

Bermudes testified that the vessel later was found overturned and that only one deceased crew member was recovered. Despite an extensive search involving the U.S. Coast Guard, U.S. military assets and international partners, the remaining five crew members, including Nosek, were never found. The hearing also detailed the discovery of a partially submerged life raft and life preservers that yielded no survivors.

A substantial portion of the hearing focused on whether Nosek had been exposed to a "specific peril of death," one of the legal standards required under the probate code. Bermudes described the extreme sea conditions generated by Sinlaku, the Mariana's disabled engine, and the exhaustive but ultimately unsuccessful search effort. He also explained that commercial vessels typically leave port ahead of major typhoons because remaining in harbor can pose greater risks to vessels and port facilities.

Kyung Nosek appeared in court and became emotional while testifying about her husband's final communications, the Coast Guard's suspension of the search, and the absence of any contact since the vessel disappeared. She also testified that opening the estate is necessary to administer her husband's affairs and preserve any claims available to the estate. Their daughter, Naomi Nosek, and the decedent's niece observed the proceedings remotely.

Before concluding the hearing, Superior Court Presiding Judge Joseph N. Camacho expressed sympathy to Kyung Nosek, recounting his own family's experience with relatives lost at sea whose bodies were never recovered.

He acknowledged the unique grief and uncertainty faced by families in such circumstances and said he understood what the widow was going through. Camacho then directed Torres to refine the proposed order before submitting it for the court's consideration.