Denying that it is responsible for any destruction, the owner of the MV Tradewind Passion which crashed into the Demerara Harbour Bridge (DHB) last month, resulting in what the government says will cost in excess of one billion dollars in repairs; is arguing that the incident resulted from unforeseen circumstances.
In fact, the ship’s owner says that the bridge failed to inform it that it was on a collision course; while also stating that the lights displayed on the structure were misleading and/or not in compliance with regulations or up to international standards.
“The incident occurred without fault on the part of the Master, crew…and arose as a result of irresistible and unpredictable natural forces or force majeure.”
These are among the arguments being made by the ship in its defence to an action brought against it by the bridge which is suing for damage it says is likely to exceed a billion dollars.
In its defence filed on Monday, the ship is contesting the account of the bridge “that the incident resulted in substantial damage,” stating its position that the vessel at all times proceeded “in accordance with good seamanship and applicable regulations, and under the advice of Pilot Kenneth Cort.”
Against this background it is saying that it is the bridge which would have caused or contributed to any damage which it may have suffered by reason of the incident and that any damages recoverable in respect thereof shall be reduced by the Court.
The collision occurred just about 2 am on October 8th when the Panamanian-registered vessel crashed into the bridge damaging four spans. At the time it 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.
Not predictable
The ship’s position is that as it approached the bridge it was caught in what it described as “an extraordinary combination of circumstances,” which it advances were “not predictable” to its “highly experienced Master or Pilot.”
In its defence seen by this newspaper, the ship said that the period from October 7th to 13th was one of “abnormally high tides,” reaching on the day of the collision, “a height of 3.08m, being above the monthly average of 2.71m.”
According to the ship, at about 1 that morning, the flood tide at the retractable span of the bridge was unusually strong and was not predictable to its “highly experienced Master or Pilot,” and that “no warning was given by the bridge to the vessel during its approach of the unusual effect of the current at the time and on the night in question.”
It said too, that 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 MV Tradewind Passion then goes on to aver that it was caught by the current on its approach to the retractor section of the bridge.
It said that between 01:51 hours and 01:52 hours the helm of the vessel was adjusted by 10°, then 20°, then a further 10° to starboard, stating that any of those movements “should have enabled the vessel to safely transit the bridge.”
The ship is complaining that the bridge never informed it that it “was on a collision course with the bridge,” only that it was “on a course close to the cluster piles.”
The shipping company avers that there was also never any indication or direction that it was required to change course by that time; but that nonetheless its helm was adjusted a further 10° to starboard; noting that it had thus been adjusted through 50° to starboard in the course of some two minutes.
According to the ship, then “apparently realizing its mistake” in inviting it to transit the bridge under the particular prevailing conditions, it was only then that the bridge directed it to “turn around.”
Striking lack of familiarity
The shipping company argued that this “demonstrates a striking lack of familiarity for an experienced bridge operator accustomed to inviting and directing vessels to transit the bridge with the capabilities of vessels underway to maneuver in restricted waters, in particular when subject to strong tidal conditions and/or caught in a fast moving current.”
“At 01:54 hours the Claimant (bridge) warned the vessel to not “come through” but to “turn around”, again demonstrating such striking lack of familiarity as to the maneuverability of vessels,” the MV Tradewind continued; adding that “contact” with the bridge, was the eventual result “in spite of all actions taken by the Master and with the advice of Pilot Cort in accordance with good seamanship.”
While making no admission thereto, the ship says that it is putting the bridge to “strict proof of negligence,” while going on to add that that if the incident did result from negligence, it would be the negligence of the bridge in directing the vessel to transit “at a time and under conditions in which it was unsafe or dangerous for a vessel” of its type and size “with or without appropriate direction.”
It contends, too, that any damage which the bridge may have suffered by reason of the incident and any damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just.
In the main, however, the Tradewind Passion is asking for the claim filed by the bridge to be dismissed; even as it counterclaims for damages in excess of 100,000,000.
Among other things, the ship is suing the DHB for damage suffered to it, downtime, damages for its detention and other losses which it says the Court may deem just to grant.
Earlier this month, High Court Judge Fidela Corbin-Lincoln allowed the owner of the Panama-registered ship to lodge the sum of $247.4m as limited liability, compared to the more than $1b being sought by the bridge company.
Canama Trading’s position is that if its ship is at all liable for any damage, it would be only for $244,944,006.21.
The Judge in granting the Order 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.
That letter has been lodged as ordered by the Court.
The release and departure of the ship from Guyana has, however, drawn the ire of Minister of Public Works Juan Edghill; and three employees of the bridge have been sent on leave to enable a probe of how the ship departed without official notification.
Attorney for the ship, Kamal Ramkarran, has, however, since sought to remind that the government had failed in its attempt to stall the departure of the vessel.
On this point he told Stabroek News that the action on behalf of the government to stall the departure of the ship had failed in court and there had been no impediment to its departure.
The departure is seen as a major embarrassment to the government which has said that the ship caused $1b in damage. No money has yet been paid over but the court has accepted the lodging of a Letter of Undertaking to the value of $247.4m. This would ostensibly be paid over if court action by the government against the ship owner succeeds.
Ramkarran has said that the vessel was finally released by the court on November 19 but that there was an appeal of that decision by the DHB and Duke.
“The appeals and application for a stay were heard on 21 November in the Full Court and the Chief Justice [Roxane George] and Justice [Simone] Morris-Ramlall dismissed them as being completely without merit. And [they ordered] both the DHB and Andy Duke to pay $1,000,000 in costs to the vessel, each,” he said.
Edghill’s position, however, is that there is still ongoing litigation and that regulatory approvals for the vessel’s departure were not given.
The three persons sent home to facilitate the investigation are the Traffic Manager who coordinates with the company and with all vessels passing in and out of the river; the Radio Operator who communicates with incoming and outgoing vessels to allow for smooth passage and the Shift Supervisor.
“People who are directly responsible for the operations were sent home to allow for the investigations,” Edghill said.
He noted that it is mandatory that all vessels coming into the country that have to pass through the opened bridge follow lawful processes that include notifying Guyana’s Maritime Administration Department (MARAD) and the Demerara Harbour Bridge General Manager. Edghill said that MARAD officials will also be questioned during the investigation.
“The boat left the jurisdiction without the approval of the General Manager of the bridge .Any vessel transiting the Demerara Harbour Bridge, in or out, the General Manager must be notified,” he said.
“No vessel passes out [through] the bridge without the DHB giving clearance. Certain processes have to be followed, this includes that a shipping agent ensures that the vessel’s time is correlated to the DHB and a time stipulated is given when it can happen…,” he noted, explaining the procedures.
