With the Attorney General’s Office deciding not to appeal Supreme Court Justice Hugh Small’s ruling in the Wreck Commissioners inquiry, the hearings are expected to resume in mid-November, with both indigenous Bahamian and inherited British laws applicable.
Following Justice Small’s ruling, attorneys for both sides in the inquiry into the August 2 collision at sea between two Bahamian vessels, sought an appropriate mesh between the two legal codes.
Legal counsel to the Commission, Cheryl Grant-Bethell, told the Guardian on Tuesday that an attempt to tie in the two systems would be no easy task.
“It is a very difficult process attempting a marriage between these two very different systems. The Bahamian system provided for under the Commissions of Inquiry Act and the British system provided, or under their Formal Investigation rules. It is no easy marriage because one is a pure-base inquiry and the other is an adversarial system which contemplates a civil trial. So we must prepare for the more onerous task of an adversarial civil trial setting,” Mrs. Grant-Bethell said.
In his October judgment, Supreme Court Justice Hugh Small ruled that both British and Bahamian laws were applicable to the proceedings. His decree followed on the heels of a ruling made by Wreck Commissioner Joseph Strachan which stated that the Bahamian Merchant Shipping Act and parts of the Commissions of Inquiry Act were sufficient to conduct the inquiry.
Justice Small also ruled that the summons process in relation to the witnesses and the notice process provided for in the rules were also correct.
As a result, Mrs. Grant-Bethell said, the Minister of Transport and Aviation has identified some eight persons as parties in relation to the matter. They include the owners and principals in relation to both the United Star and Sea Hauler, the captains and the individuals who were driving the vessels. The Bahamas Maritime Authority has also been named.
Those persons have been served with notices, and all of the witnesses would have been correctly summoned, which meant there was no need to re-serve those persons.
“So we could just start the trial at the end of the day calling all of the parties and the witnesses together,” Mrs. Grant-Bethell said.
She could not say at that time whether the Minister of Transport will be called to give evidence.
The Commission was summoned to determine how and why the collision occurred. During the pre-dawn hours of August 2, the United Star, a barge enroute to Nassau, collided with the MV Sea Hauler with 194 passengers onboard, headed for the Cat Island Emancipation Day Regatta.
The accident, which occurred in waters between Eleuthera and the Exumas, resulted in four deaths: Brenda Smith-Ellis, 40, and her 29-year-old sister Brennell Smith-Leslie; 14-year-old Livingstone Seymour; and 38-year-old Lynden Riley.
Some 25 others were injured, 15 of whom were seriously hurt.
According to Mrs. Grant-Bethell, the trial, which was projected to be completed within 12 weeks will more than likely surpass that.
“What we are now dealing with is a situation where you may have individuals who are parties calling witnesses in their own defence. And so that s something that you cannot anticipate and ought not anticipate; you ought to give them as much time as they need to call these witnesses in order to make their case,” she said.
“But for myself, I would probably be taking less time than I had originally anticipated, because I would be using this period when we are trying to make the two systems work to not just look at the law, but to streamline the witnesses so that every witness called or marshaled on behalf of the Minister is a very relevant witness.
“So you won’t have for instance 10 people coming to tell the same story; you will choose the one who saw the most and who would have observed the most and let that person come and maybe tender the other nine for cross examination purposes,” Mrs. Grant-Bethell explained.
“My interest is merely a search for truth and my questions would be aimed at seeking to have those witnesses in as open and as frank a manner as possible to tell exactly what happened,” she said.
The civil trial provides for examination in chief, cross-examination and re-examination of witnesses just as one would see it in the Supreme Court. However, there are no charges laid, “but what you have very closely approximates a trial,” Mrs. Grant-Bethell said.
Although the Commission was appointed by the Ministry of Transport to investigate the matter, up to press time on Tuesday the Guardian could not ascertain a cost for the proceedings todate.
When contacted, Minister of Transport and Aviation, Glenys Hanna-Martin said:
“It is a continuing matter. It is something that was not anticipated to go beyond nine weeks. And, and you know, the legal wrangling took it a little further than that. We tried to minimise the cost in this lull period, but once it starts we don’t anticipate that it will go too long a period after that.”
By Keva Lightbourne, The Nassau Guardian
