The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bimini Bay’s original developer yesterday overturned an almost-$600,000 damages award against it for negligence relating to the theft of a boat from its marina more than 13 years ago.

The Court of Appeal, in a unanimous verdict, threw out the original ruling by now-chief justice Ian Winder on the basis that the marina slip lease between RAV Bahamas and the Rum N’ Coke’s owners placed the burden of preventing the vessel’s loss on the latter.

Appeal justice Jon Isaacs, in a written ruling, found that the lease terms meant RAV, the company founded by Cuban-American developer, Gerardo Capo, cannot be held liable for the boat’s loss as it owed no “duty of care” to secure it. He added that marina traffic, and the level of security, meant it was “not reasonable” to place the onus for theft prevention on Bimini Bay’s first developer.

And the Court of Appeal also found that the investigation into the disappearance of the 41-foot Luhrs motor yacht “appears flawed”, as its owners - the Modronos - were not all probed on whether they had removed the Rum N’ Coke or instructed anyone else to do so.

The judgment also noted that:

• O’Neil Rolle, the porter/dock hand who prepared the vessel for departure prior to its August 2009 theft, said he received his instructions via phone from a 305 Miami area code. Appeal justice Isaacs said it was “curious” that a search of Mr Rolle’s phone revealed that, at the relevant time, he instead received eight calls from a 954 area code, which is for the Fort Lauderdale/Broward County area.  

The number belonged to a company called Air and Sea Group, which the judgment said was connected to a person potentially suspected of being involved in a previous boat theft.

• Mr Black, Bimini Bay’s director of marina operations, disclosed that he and his staff initially believed the Rum N’ Coke had not been stolen and that it was “just one of the owners, or the captain and somebody, miscommunicating”. He added that it “took a little bit of time” before it sank in that the boat really was stolen, with the theft going undetected until the Modronos made a complaint.

• The Court of Appeal verdict also questioned why Great Lakes Reinsurance, the vessel’s insurer, would make a full claims payout at a time when the theft investigation remained active and had not eliminated the possibility of insurance fraud by the Modronos.

Detailing the background to the dispute, the Court of Appeal said the Rum N’Coke was owned by a corporate entity known as Modrono’s Bimini Place LLC (MBP). Manuel Modrono Jnr, an owner and officer of the company, together with his father, also named Manuel, purchased the vessel but monthly payments to cover its expenses were also made by the son’s cousin, Tony, and another man, James Begera.

Besides acquiring residential units at Bimini Bay, the Modronos entered into an agreement to lease a 54-foot boat slip at the development for $200,000. The Rum N’ Coke travelled to The Bahamas on June 9, 2009, under the charge of Tony, Norberto Albalat and two of their friends, with the necessary cruising permit obtained from the Bahamian authorities.

Mr Modrono Jnr travelled to Bimini on July 4, 2009, and stayed for ten days. The last time he saw the vessel was on July 12 at its normal marina slip. Tony left the same day, adding that he locked the Rum N’ Coke but did not know if anyone else had a key.

“Sometime around July 18, 2009, O’Neil Rolle received a telephone call from a 305 area code number,” the Court of Appeal ruling recorded. “Someone representing himself to be Anthony Modrono, the owner of the vessel, advised O’Neil that he would be sending his captain to collect the vessel, and requested O’Neil go on to the vessel and turn on the air conditioning in the cabins and salon area, and turn on the water pump.

“The caller directed O’Neil as to how he was to perform the tasks. He told O’Neil to go on board the boat, to look in the top left corner for the breaker box and switch on the breakers for the air conditioning and the water pump. He told O’Neil to let the water pump run overnight and then shut it off, but he was to make sure the air conditioner cools before leaving the vessel.

“The caller also asked O’Neil to have the waterline of the vessel cleaned. The person said the vessel was moored at Dolphin 16 and was unlocked. A price for the service O’Neil was to perform was negotiated and he was to be paid when the captain came to take the vessel.”

The judgment continued: “O’Neil did as he was requested, having met the vessel unlocked, and two days later he met two men, one of whom he assumed was the captain. The captain searched for the cruising permit on the vessel and located it. The man then paid O’Neil $400 cash, $180 of which was paid to the young man who had cleaned the waterline.

“O’Neil explained that he did not suspect the speaker on the telephone was not who he said he was because the man knew so many details about the vessel. O’Neil was off from work on the day that the men came and took the vessel, but he had gone to the marina to collect the money owed to him.”

The Rum N’ Coke was subsequently taken by the men and has never been recovered. Alphonso Lazaro, of Nautilus Investigations, who was hired to probe the theft, ultimately tracked it to Venezuela following stops that it made in Long Island, Turks and Caicos, the Dominican Republic, St. Croix, St. Kitts and Guadeloupe.

The investigation ultimately concluded that none of the vessel’s owners were involved in the theft. Great Lakes, as a result, paid out the insurance claim and took their place by initiating legal action against RAV Bahamas, as Bimini Bay’s then-majority owner, to recover the $579,721 claims payout and $18,545 investigation costs.

However, the Court of Appeal noted that now-chief justice Winder did not address an answer given by Mr Lazaro during the Supreme Court trial where he admitted that his probe was ongoing in relation to the possibility of an insurance fraud by Mr Modrono.

“One may ask why would a theft claim be paid if there was an ongoing fraud investigation which could possibly conclude that there was complicity of the owners in the alleged theft?” the Court of Appeal asked. It also noted other potential inconsistencies and coincidences.

“Curiously, although O’Neil claimed that the number the caller used had a 305 area code, his phone records revealed some eight phone calls during the relevant period from a telephone number with a 954 area code, a US area code,” the judgment noted. 

“The telephone number belonged to a corporation called Air and Sea Group, and may have been connected to an individual named Fabian Pesantes, who Lazaro reported ‘was a person of interest involved in a previous Osprey claim’. That may be taken to mean Pesantes was a suspect in the earlier theft of a boat.”

And the Court of Appeal added: “As a side note, Lazaro did not interview two of the purported operators of the vessel, nor did he himself obtain photographs of the men, nor of the two men who were said to have accompanied Tony to Bimini, and show them to O’Neil.

“Moreover, it does not appear that, although Tony had photographs of the four operators on his computer when he went to meet with O’Neil, he actually showed them to O’Neil. Additionally, six of the individuals said to have been with the vessel in Santa Domingo, following the theft of the vessel, had business addresses in the area where Mr Modrono lived in Florida.”

The Court of Appeal ultimately decided in RAV Bahamas’ favour, and overturned the Supreme Court’s verdict that it was guilty of negligence, based on paragraph 17 in the boat slip lease agreement’s fourth schedule. This stated: “The tenant is responsible for proper operation and mooring, and taking all necessary precautions to ensure that the boat is secure from damage from any and all causes including - without limitation - theft, fire, vandalism and storm.”

As a result, RAV Bahamas argued that it “owed no duty of care” to the Modronos and that it was the latter who had primary responsibility to secure the vessel from theft. It successfully asserted that this lease clause absolved it of all responsibility, and added that “the owners were contributorily negligent at the very least because they did not secure the vessel by locking it since the employee of the marina would not have been able to ready the vessel for sailing had the cabin been locked”.

The Court of Appeal backed the arguments over paragraph 17, finding that it made the vessel’s owners primarily responsible for securing it. And there was no evidence to support the Supreme Court’s “finding of systemic failures to provide adequate security”.