By Femi Harris-Smith
The Demerara Harbour Bridge Corporation (DHB) has filed a more than $1b lawsuit against the Panama-registered ship which it said caused extensive damage to its four spans in the collision earlier this month which resulted in the bridge being out of operation for just over 48 hours.
The bridge company in its statement of claim against the ship—the Tradewind Passion—which is listed as the Defendant is seeking special damages in the sum of one billion dollars and general damages it says for “negligence” in excess of $50,000,000.
Panamanian company Canama Trading which owns the vessel is, however, disputing the damage which the bridge is alleging its ship caused, arguing that if it is indeed liable at all for any damages, it would be for just over two hundred million dollars.
Canama Trading in its counter-claim against the DHB Company, is arguing among other things that its vessel is unlawfully being detained by either the Maritime Administration Department or Harbour Master Glasford Archer who are also listed as Defendants.
In its claim stemming from the October 8th incident where it said the ship collided with the bridge during a scheduled retraction, the DHB company makes it clear that the one billion dollars takes account only of the damages assessed so far, noting that “this amount is not final.”
The DHB said that the vessel was attempting to transit during the period of retraction when the allision (the running of one ship upon another ship that is stationary) occurred, and that the Master was negligent by not “exercising the relevant international safety conventions for safety at sea and applying the applicable speed necessary in the prevailing circumstances.”
The DHB says that due to that negligence on the part of the Master and crew of the ship, it has suffered and will continue to suffer extensive losses.
Particularizing its claim of negligence, the bridge company through its attorney Sanjeev Datadin, says that the ship “failed to report difficulties being encountered upon approaching the bridge; and failed also to “use reasonable skill in its operation” to veer from the bridge.
Meanwhile, among the particulars to substantiate its more than one billion dollars being called for special damages, the bridge company said that there have been expenses for anchorage parts, structural components parts, welding and electrical works; as well as rental of tower lights among many others expenses.
Through its attorney Kamal Ramkarran, Canama Trading is arguing, however, that if it is at all even liable in the first place; it would be only to the tune of $244,944,006.21 and not the one billion dollars the bridge company is calling for.
Additionally, Canama wants its ship to be released forthwith.
In its limited liability application, it said that in accordance with Section 401 of the Guyana Shipping Act, a ship-owner may limit its liability and that according to Section 402; it is entitled to limit that liability—regardless of the basis of that liability—to, among other things “claims in respect of loss of or damage to property, including damage to harbour works, basins and waterways and aids to navigation, occurring on board or in direct connection with the operation of the ship and consequential loss resulting therefrom”
Against this background, Canama has advanced that the DHB’s claims are subject to limitation, regardless of the basis of liability; while adding that Section 404 sets out the claims for which limitation of liability is not available; arguing that the damages alleged by the bridge company are not included in the exhaustive list of exclusions.
Regarding its liability, Canama relies on Section 405 which it notes provides that a person is barred from limited liability only where it can be proved that the loss resulted from his “personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.”
On this point the Claimant said that the Court’s only concern would be with the personal actions and knowledge of the ship-owner and not with those of his servants or agents. Canama argues further that, it must be shown that the ship-owner personally acted with foresight of the particular damage occurring.
Against this background, the ship-owner said that neither the Master of the vessel, nor any of the crew on board the vessel at the time of the incident held any office in its company; while adding that Section 413 (1) (a) provides that the ship-owner is entitled to limit his liability for loss which has resulted from the negligent, intentional or reckless conduct of his servants or agents for whom he is vicariously liable.
The burden of proof, Canama advances, lies on the person asserting that the ship-owner is not entitled to limit liability, while contending that it is entitled to limit its liability for the bridge’s claims, in accordance with Section 407 of the Act.
Canama then went on to note that Section 407 (b) (i) provides that the limit of liability for claims other than those for loss of life or personal injury shall be 167,000 Units of Account for a ship with a tonnage not exceeding 500 tons, and for each ton from 501 to 30,000 tons, 167 Units of Account.
The gross registered tonnage of the vessel Canama said, is 5001 tons.
It then went on to note that the current value of a Unit of Account as defined in the Act is GYD$266.63; and in the alternative US$1.27.
Against this background, Canama then went on to reason that it is entitled and claims to limit its liability being 918,667 × GY$266.63; which is equivalent to GY$244,944,006.21 plus interest thereon from October 8th to the date of constitution of the fund. The Claimant then goes on to note that in the alternative it would be 918,667 × US$1.27 which is equivalent to US$1,172,549.81 plus interest thereon from October 8th to the date of constitution of the fund. Canama has advanced that since no rate of interest is specified in the Act, the applicable rate should be 4% per annum pursuant to the section 12 of the Law Reform (Miscellaneous) Provisions Act; noting that the calculated interest falling due on the date of its application is GYD$134,215.89
Further, in arguing that its vessel is being wrongfully detained without reasonable grounds, Canama said that the Defendants have “deliberately interfered” with its economic or other interests “by unlawful means.”
It said that since the incident, the detention causes it loss at the daily rate of US$12,250. The bridge company has argued, however, that should the ship be allowed to leave Guyana, it will not be able to recover its losses.
Background
The collision occurred just about 2am on October 8th after the MV Tradewind Passion crashed into the bridge damaging four spans. At the time, the Panamanian registered vessel was navigating the channel to offload fuel at GuyOil’s Providence Terminal.
The vessel shifted the bridge about 45 degrees out of alignment while damaging spans 8,9,10 and 11. The damage has been labelled as extraordinary and requires a lot of technical work to restore the bridge to its previous state.
DHB Company Ship Supervisor, Andy Duke was also seriously injured after he was forced to jump from a tower to get to safety.
Apart from implementing several policies in keeping with international standards and the requirement for annual medical tests for river pilots, the Board of Inquiry (BoI) into the accident has since recommended that the conduct of pilots and ships’ masters should be documented.
Once implemented, these new measures are likely to see some changes in the operation of the DHB, particularly as it relates to river traffic.
The report disclosed that the final cost of the damage as a result of the accident is estimated at about US$5 million which is equivalent to $1B, and counting.
The repair works on the 42-year-old bridge involve the replacement of two pontoons that were damaged as a result of the impact. Additionally, a number of supporting structures had to be completely replaced.
The repair works were undertaken by both the government and private sector bodies.
The report pointed out some of the damage caused to the bridge as well as the vessel which were both visited as part of the inquiry.
This includes two sets of 15-pile clusters on the north western side of the bridge being mowed down, damage to a pontoon, damage to the special connecting posts at spans 7/8 and 11/12, severe damage to the transom beams at spans 7/8 and 11/12 as well as the transom beam under the ramp and damage to about 15 anchor blocks.
Both the eastern and western sections of the bridge were also forced out of original and alignment at approximately 45 degrees southwest, and northeast, respectively, the report said.
As it relates to the Tradewind Passion vessel, it was noted that there was damage to the starboard bow resulting from the impact with the bridge and the interior frame of the starboard bow.
