Attorneys for the two vessels involved in the August 2 fatal boating tragedy cleared a major hurdle Friday, after a judicial review of the Wreck Commissioner’s decision to dismiss the Merchant Shipping (Formal Investigations) Rules from the proceedings was overturned.
According to Supreme Court Justice Hugh Small, Wreck Commissioner, retired justice Joseph Strachan’s ruling was flawed. In his written ruling, Justice Small pointed out that under the Merchant Shipping Act, the formal investigations were adversarial and judicial in nature.
“I hold that there is no inconsistency between section 243(3) and the Rules,” he said. “The Shipping Act and the Rules contemplated a judicial procedure and I hold that the Commissioner erred when he ruled that the proceedings were stamped with an investigative character.”
Justice Small’s decision was in direct contrast to the Wreck Commissioner’s ruling September 18, which indicated that the Commission’s work is only investigative.
“I observe that ‘under the Act’ must mean under the Commissions of Inquiry Act, and serves to stamp these proceedings with an investigative character. Applying the Rules would replace that with an adversarial character….Hence, for the reasons which I have understandably, I trust, briefly tried to make plain, the application fails,” Justice Strachan said at the time. ”
Quashing the ruling, Justice Small’s decision essentially means however that both the Rules, which were drafted under the Merchant Shipping Act and the Act itself should govern the formal investigations, as there were “no inconsistencies.”
According to lead counsel, Cheryl Grant-Bethel, in such a case, Transport and Aviation Minister, Glenys Hanna-Martin will determine when it is necessary to use either procedure.
It’s a decision that marks somewhat of a victory for attorneys who had challenged Justice Strachan’s ruling on the grounds that it “contained errors of law.” The attorneys asserted that the proceedings were “flawed” as no notice of investigation was served on persons whom the Minister deemed to be parties.
Leading the challenge, attorney for the United Star, Charles Mackay, pointed out that the “notice of investigation is the foundation on which a formal investigation rests and if none exists, the investigation cannot proceed.”
Mr. Mackay also highlighted the provisions of Rule 7(6) which established the right of parties to cross-examine witnesses called on the Minister’s behalf. It also gave leeway for parties to call their own witnesses and rebut.
The attorneys also generally felt however that the Act gave the Commissioner broad sweeping powers to make his own rules on how the proceedings should be conducted.
The adoption of both sets of provisions mean several things, according to Justice Small’s ruling. It means that in keeping the Rules, parties to the proceedings should be served at least 30 days notice, that these parties could confront the testimony of witnesses through cross-examination and produce contrasting evidence.
“We will now probably have to sit down and figure out who are parties, who might be people charged at the end of the day,” Mrs. Grant-Bethel pointed out to the Bahama Journal Friday. “We were trying to avoid doing that because we were trying to keep it impartial, so that a determination would not be made upfront as to
who may be liable at the end of the day.”
Mrs. Grant-Bethel had submitted that there was a conflict between the Merchant Shipping Rules and the sections 9 to 13 of the Commission of Inquiry Act, which is also adopted as part of the Merchant Shipping Act.
But Justice Small’s ruling makes it clear.
Minister Hanna-Martin appointed the Wreck Commission to investigate the collision of Bahamian registered vessels, barge, the United Star and mailboat, Sea Hauler on August 2. The impact caused a hydraulic crane to careen to the mailboat’s deck, crushing four persons to death. Dozens others were injured.
There was no indication when the formal investigation would resume. However one attorney in the matter told the Bahama Journal Friday that because the Merchant Shipping Rules mandate a 30-day notice for parties, it may be at least another month before the proceedings begin.
To date, none of the 80 witnesses have been called.
Appearing for the M/V United Star are attorneys, Charles Mackay, Kendal Wright, Raphael Moxey and Renae Mackay. Attorney John Deal appears for the Sea Hauler.
By Macushla Pinder, The Bahama Journal
