The High Court has allowed the owner of the Panama-registered ship which collided with the Demerara Harbour Bridge (DHB) last month to lodge the sum of $245.5m as limited liability compared to the more than $1b being sought by the bridge company and the vessel has now left Guyana’s waters.
The limited liability application which was made by Panamanian company, Canama Trading, which owns the vessel—the Tradewind Passion—was granted last Friday by High Court Judge Fidela Corbin-Lincoln.
Canama Trading’s position has been that if it is at all liable for any damage, it would be only for $244,944,006.21.
The Judge in granting the Order sought by Canama Trading to argue limitation of liability in the action brought against its ship by the bridge, also ordered that the vessel be released, once a letter of undertaking constituting the limitation fund has been lodged with the Registrar of the Supreme Court.
According to the Order seen by this newspaper, Justice Corbin-Lincoln directed that the letter be lodged no later than November 25th and that thereafter the DHB Company forthwith release the vessel to return to service and leave Guyana.
Stabroek News has been able to confirm that that letter has already been lodged, and that the ship has been released.
According to the Order, the Judge granted Canama Trading the limited liability request pursuant to Part 70 of the Civil Procedure Rules and Section 402 of the Guyana Shipping Act “as a defence to all physical property damage claims” arising from the October 8th collision.
The Bridge Company in its $1b lawsuit in which it is additionally seeking general damages for “negligence” in excess of $50,000,000 has said that the one billion dollars takes account only of the damages so far assessed, noting that “this amount is not final.”
A date is yet to be fixed for its action to be heard.
The DHB says that due to negligence on the part of the Master and crew of the ship, it has suffered and will continue to suffer extensive losses.
The DHB has 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.”
Particularizing its claim of negligence, the bridge company through its
attorney Sanjeev Datadin, said 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 had argued, 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.
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”
It is against this background that Canama 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 Canama Trading 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 argued 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.
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.
