The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian's "conflicting" ties with a marine pilots group meant he lost the chance to become the South Riding Point terminal's $108,000 per year ship berthing master.

The Court of Appeal, in a unanimous September 13 ruling, upheld a previous verdict that dismissed Edmund Johnson's $142,686 breach of contract claim because no legally binding deal to employ him at the Grand Bahama-based oil storage and transhipment facility had been concluded.

South Riding Point, owned by Norwegian energy giant, Equinor, withdrew its job offer to Mr Johnson three-and-a-half weeks after it was issued because he allegedly "failed to disclose" his potential business relationship with the Bahamas Marine Pilots Association (BMPA).

The Association's emergence in 2014, driven by well-known media personality Erin Ferguson, was seen as disrupting the smooth functioning - and commercial viability - of Freeport's critical maritime economy by completely transforming the working relationship between companies and marine pilots.

The BMPA was billed as bringing Freeport into line with best practices at other major global ports/harbours by giving marine pilots independence from their employers. Several resigned from entities such as Buckeye Partners' BORCO facility and Freeport Harbour Company, joining the Association but still offering to provide the same pilotage services - as independent contractors.

The plan was for BMPA members to provide these services through Freeport Pilotage Company (FPC), a company owned by Mr Johnson, who was also one of its directors and officers. This potential "conflict" with its own operations, and Mr Johnson's non-disclosure of discussions with the BMPA, led to South Riding Point withdrawing the job offer.

The Court of Appeal judgment said the berthing master post was offered to Mr Johnson on February 24, 2014 - a period during which the BMPA's creation, and related controversy, first appeared in the media.

The terms included a $108,000 annual salary, transport assistance and a starting date of April 1 that year. Yet just over three weeks' later, on April 24, 2014, South Riding Point "informed him [Mr Johnson] that it had withdrawn its offer letter of employment for the position of berthing master".

Mr Johnson claimed the refusal to employ him resulted in loss and damage, leading him to launch a $143,000 claim for breach of contract. South Riding Point, in its defence, admitted making the job offer, but added that his employment was "conditional and contingent upon the.... conduct of background checks".

Denying the alleged contract breach, the marine terminal added: "It was the defendant's [South Riding Point] contention that having made the conditional offer of employment to the plaintiff, and having conducted its background checks and reviewing certain information it obtained in relation to the plaintiff, the defendant decided it no longer wished to engage the plaintiff as an employee.

"The defendant averred further that prior to receiving the conditional offer of employment, the plaintiff failed to fully disclose to the defendant his relationship with the Bahamas Maritime Pilots Association (BMPA) and that, after making the conditional offer of employment to the plaintiff, the defendant received information that the plaintiff was lobbying for the BMPA to assume control of pilotage services in Grand Bahama, which position the defendant contended conflicted with its business and commercial interests in continuing to provide pilotage services."

Justice Estelle Gray-Evans, in the Supreme Court's December 7, 2017, decision found it was "reasonable" for South Riding Point to determine that Mr Johnson's failure to disclose his ownership interest in FPC - at a time when it was in talks to allow BMPA members to use it as a vehicle for providing marine pilot services - "would result in an unsuccessful background check".

She also dismissed Mr Johnson's claim that his interest in FPC was known to South Riding Point, on the grounds that one of the executives who interviewed him for the berthing master post was also previously an FPC officer and director. And, with no legally binding contract in place, the marine terminal's withdrawal of the employment offer was not equivalent to a contractual breach.

"I do not find that it was unreasonable for [South Riding Point] to have decided, in the circumstances, that the plaintiff, as the majority shareholder, officer and director of a company which - from media reports - was about to go into competition with the defendant for the provision of marine pilotage services in Grand Bahama, was not a good fit for its company," Justice Gray-Evans concluded.

Besides upholding the Supreme Court verdict, the Court of Appeal also rejected Mr Johnson's bid for extra time to submit his appeal against the earlier ruling because his case was "bound to fail".

The verdict, written by acting appeal justice Milton Evans, said the basis of Mr Johnson's appeal failed to address the "legal and factual" basis of Justice Gray-Evans' ruling.

"It is clear that none of the proposed grounds of appeal attack the central finding of the judge; that the offer was a contingent offer which created a condition precedent and not a legally binding contract," acting justice Evans added.

As a result, the Court of Appeal rejected Mr Johnson's bid for more time as his appeal "had no real prospect of success". Having missed the six-week deadline to file his case with the appellate court, Mr Johnson was late by almost a month when the necessary documents were finally submitted on February 14 this year.

Mr Johnson blamed the delay on having to relocate from Freeport to Nassau to look for work, which meant he lost contact with his attorney, Trades Union Congress (TUC) president, Obie Ferguson.

He added that he was "unaware" of the Supreme Court verdict against him until February 3, 2018, as he had been pre-occupied with his wife's hospitalisation for medical treatment in Nassau.

"We were not overly impressed with the explanations given for the delay in this matter because, as submitted by [South Riding Point's attorney], with the prevalence of technology it ought not to have been hard for the intended appellant and his attorney to maintain contact with each other," acting justice Evans wrote.

"There also appeared to us to have been a failure on the part of the intended appellant to follow up on the progress of his case. He did, however, give as a part of his difficulties the fact that his wife was ill, which may have accounted for his lack of attention to his case."

South Riding point, though, argued that the delay "was not only inordinate but also inexcusable", and the appeal should only be entertained if it had merit. The Court of Appeal agreed it did not.