Canama Trading S De RL, the Panamanian company that owns MT Tradewind Passion, the fuel tanker that crashed into the Demerara Harbour Bridge in October, causing severe damage to the 44-year-old floating structure, has said it is not to be blamed for the incident, which “arose as a result of irresistible and unpredictable natural forces, or force majeure.”
In defence of the lawsuit filed by the Demerara Harbour Bridge Corporation (DHBC) for more than $1.5B in damages, Canama Trading S De RL is, among other things, arguing limitation of liability, pursuant to an order of court in that regard by High Court Judge Fidela Corbin-Lincoln.
The DHBC, in its claim against the fuel ship, has argued that the master of the vessel was negligent by not exercising the relevant international safety conventions for safety at sea, and by not applying the applicable speed necessary in the prevailing circumstances.
Due to this negligence, the DHBC, through its Attorney-at-Law, PPP/C Member of Parliament Sanjeev Datadin, has deposed, it has suffered, and will continue to suffer, extensive losses.
In its deposition, it has added that the cost to repair the bridge stands at more than Gy$1B — a sum Canama Trading S De RL has refused to pay, despite several oral requests for same.
Reports indicate that at around 02:00h on October 8, the vessel, which transports fuel for the Guyana Oil Company (Guyoil), while heading south, crashed into the Demerara Harbour Bridge, despite desperate calls to “Drop anchor!” from DHBC Shift Supervisor Andy Duke.
Duke, who was in one of the lookout towers, had tried desperately to communicate with the pilot, without success. He eventually had to jump from the tower to save his own life, and in the process, he fractured his leg and was hospitalised. The other men who were working at the bottom of the bridge, including Mechanical Maintenance Engineer Ahmad Khan, had to run for their lives.
At the time, the vessel was under the control and command of Captain Freddy Mendoza, who was being advised by Pilot Kenneth Cort, who has some two decades of experience. A Board of Inquiry (BoI) into the collision has recommended that Cort be suspended for not less than 24 months.
According to Canama Trading S De RL’s lawyer Kamal Ramkarran, as the vessel approached the bridge, it was caught in an extraordinary combination of circumstances.
The company has submitted that Captain Mendonza has experience in transiting the Demerara Harbour Bridge, while Cort is an experienced pilot on the Demerara River, having been trained and licensed in accordance with Section 34 of the Transport and Harbours Act, and having been assigned to the vessel by the Maritime Administration Department (MARAD).
The company has said that during the period October 7 to 13, there were abnormally high tides, and on October 8, the tide was at a height of 3.08m, which was above the monthly average of 2.71m.
It said the high tide was at 02:43h on October 8, and that at about 01:00h, the flood tide at the Retractable Span of the Demerara Harbour Bridge was unusually strong and was not predictable to either the “highly experienced” captain or pilot serving on board the vessel.
“No warning was given by the bridge [staff] to the vessel during its approach of the unusual effect of the current at the time, and on the night in question. Lights displayed on the bridge at the material time were misleading and/or not in compliance with requirements, regulations, or international standards for bridge navigation lights,” the company contends.
Canama Trading S De RL further contends that having realised that it was a mistake to invite the vessel to transit the Demerara Harbour Bridge under the particular prevailing conditions, the DHBC [staff] directed the vessel to “turn around”, “demonstrating a striking lack of familiarity for an experienced bridge operator accustomed to inviting and directing vessels to transit the bridge.
The DHBC staff warning the vessel to not “come through” but to “turn around” demonstrates a striking lack of familiarity with the manoeuverability of vessels, the company has argued, and it is demanding that the DHBC submits proof of negligence and loss and damages claimed.
The Panama-registered company is also refusing to acknowledge that the incident resulted in substantial damage to the Demerara Harbour Bridge, as is being alleged by the DHBC. It has therefore submitted that it would aver “that the incident occurred without fault on the part of the [captain, pilot, crew or the vessel], and arose as a result of irresistible and unpredictable natural forces, or force majeure.”
Canama Trading S De RL has countersued the Maritime Administration Department (MARAD), Harbour Master Glasford Archer, and the DHBC for more than Gy$100M in damages for the unlawful detention of the vessel and its crew from October 8 to November 20.
While Section 439 of the Shipping Act stipulates the power to detain a foreign ship, Ramkarran submitted, the DHBC did not seek, apply for, or obtain an order of court, whether pursuant to the said Section or otherwise, at any time prior to October 11.
Pursuant to a court order dated November 11 by Justice Corbin-Lincoln, MT Tradewind Passion was allowed to leave the jurisdiction after its owner set up a limitation fund of Gy$245.5 million through a Letter of Undertaking by Steamship Mutual — a leading provider of Protection & Indemnity (P&I) Insurance, headquartered in London, United Kingdom (UK). The Letter of Undertaking has been lodged with the Registrar of the Supreme Court of Judicature.
Ramkarran is averring that the detention of the vessel without an application pursuant to Section 439 (1) of the Shipping Act being made constitutes a wrongful and unlawful deprivation, detention, interference with, trespass upon, restraint, or imprisonment of its property and the crew of the vessel. The company is claiming loss of use of the fuel tanker at a daily rate of US$12,250.
Consequent to the court order, the vessel sailed on November 21 without notifying the General Manager and Management of the DHBC, prompting an investigation by the Public Works Ministry. According to Public Works Minister Juan Edghill, any ocean-going vessel set to depart Guyana’s waters cannot just sail into the sunset at will, but instead has to initiate the required processes which are done by a shipping agency.
At least three of the DHBC’s workers — the Traffic Manager and two other staff — have been sent on leave pending the probe. As it relates to the Letter of Undertaking, Minister Edghill explained that “there was no actual payment of monies into the court.”
The collision had caused extensive damage to critical components of the Demerara Harbour Bridge, which had not only left it inoperable for approximately 48 hours, but had resulted in thousands of passengers and tons of agricultural produce being stranded on both sides of the Demerara River. While repairs were being carried out on the bridge, which was reopened on October 10, water taxis which normally operate for 12 hours were allowed to work for 24 hours.
