Captains of the two vessels involved in last year’s boating tragedy could be called to testify in the highly publicized boating inquiry as early as next week, after a Supreme Court ruling quashed a decision handed down several weeks ago by the Wreck Commissioner.
Overturning the January 7 ruling, Supreme Court Justice Anita Allen told attorneys Wednesday that Wreck Commissioner, retired justice Joseph Strachan, does have the power to summon and compel parties to testify in the highly publicized case that has dragged on for months.
“Having reviewed the process in respect of the ruling, I am of the view that the learned Wreck Commissioner was wrong when he ruled as he did,” Justice Allen said.
Justice Strachan had ruled in favour of the captains’ attorneys who argued that their testimony could result in them incriminating themselves.
He determined at the time that there was no statutory basis to compel an individual (who is a targeted person) to come and give evidence.
But the Commissioner also ruled that the captains could be called in to testify for the defense.
Wednesday’s decision, which was a major victory for Lead Counsel Cheryl Grant-Bethel, brought to an end weeks of legal wrangling that has halted the inquiry, which seeks to determine the circumstances that led to the boating tragedy.
She had maintained all along that as a matter of law, “it would be proper for the parties to testify”, and that the matter would be taken as far as the Privy Council, if need be.
Four people were killed and more than 20 others injured when the mailboat, Sea Hauler and the barge, United Star, collided in the early morning hours of August 2, 2003, off Eleuthera.
Speaking to the press immediately after the ruling, Mrs. Grant-Bethel said, “Apart from following the law, [the ruling] follows a common-sense approach that the persons who saw and who were intimately involved in what happened that night should come before the Wreck Commissioner’s inquiry and say what happened.
“I think that the public, the families of the four persons who died as well as those injured, want to hear from these persons who may have been involved in the collision.”
Mrs. Grant-Bethel is hoping to call several parties in the proceedings, among them the proprietor and director of Carib USA, Thomas Hanna, who is also the owner of the M/V United Star; Rodney Miller, one of the captains who was aboard the barge; and Desnal Hanna, who is alleged to have been the helmsman on board the vessel.
In addition, she hopes to call Captain Allan Russell Sr., owner and operator of the Sea Hauler; his first mate, Michael Harris; and Alston Strachan, who is alleged to have been operating the ill-fated vessel at the time of the collision.
Mrs. Grant-Bethel believes that calling the captains to the stand would shed more light on two major issues: What led to the collision at sea last August and what were the specific navigational qualifications of the persons manning the vessels?
Having cleared this major hurdle, the lead counsel pointed out that she would be prepared to resume proceedings in the inquiry as soon as Monday or Tuesday, by calling key witness, Captain Russell.
She said this would happen assuming that there is no appeal.
Even though he was jailed last December in connection with a 1980’s drug smuggling operation, Captain Russell will be issued an order of attendance to testify, she said.
According to Mrs. Grant-Bethel, attorneys for the Sea Hauler and United Star have indicated that they will be seeking instructions from their clients.
This is not the first time the Wreck proceedings have adjourned due to a judicial review.
Last September, determined attorneys for the vessels took the same action following Justice Strachan’s decision not to use the Merchant Shipping (Formal Investigation) Rules during the proceedings.
Quashing the ruling, Supreme Court Justice Hugh Small pointed out 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.”
Before adjourning her proceedings, Justice Allen also proposed a revision of the country’s maritime legislation.
“It is obvious from the litigation which has resulted from the formal investigation already, that the law needs to be urgently revamped and put in a text which is clear and intelligible,” she said.
Macushla N. Pinder, The Bahama Journal
