By RASHAD ROLLE
Tribune News Editor
THE Court of Appeal revived a $1.8m lawsuit against the Royal Bahamas Defence Force after the appellants' vessel sank and sustained significant damage while in the RBDF’s custody.
According to a Court of Appeal judgement, the RBDF seized the vessel “Miss Keffie” and arrested its fishing crew on October 4, 2014. The crew was charged in the Magistrate’s Court. In 2016, their vessel sank while docked at the RBDF’s Coral Harbour base. It was refloated in 2017 but sustained significant damage.
The appellants took legal action in 2018, alleging that the RBDF was negligent in sinking their ship. The Supreme Court dismissed their claim for malicious prosecution and negligence in 2017.
“Miss Keffie” was a 50-foot vessel containing a Twin Detroit 871 engine.
The appellants alleged that the RBDF tied their vessel to an “old decrepit sinking boat.” They claim the vessel was written off because of its damage. They said the Defence Force failed to take notice of their warning regarding the “improper storage” of the boat.
The appellants, Clemenza Ltd, a company registered in The Bahamas, and Jamal Nixon, the company's director, seek $250k for the destruction of their vessel and $1,615,887 for loss of earnings.
The Court of Appeal's judgement, written by Justice Indira Charles, said: “The key question is whether the respondents were negligent in securing and storing the vessel, which calls for a critical evaluation of the testimonies of Captain Henry Daxon and Captain Herbert Bain. Captain Daxon, a witness of fact with considerable experience, provided firsthand knowledge about the storage of vessels. Captain Bain, an expert witness with extensive experience, was cross-examined on the vessel’s condition and associated costs but not on his opinion regarding proper storage.
“As the judge found the respondents not negligent, it must be that she rejected the expert evidence of Captain Bain as to the proper procedure for the permanent storage of a vessel. Having done so, it was incumbent on her to give a reason or reasons for her rejection of his evidence given that he was the only expert called in this matter and his evidence was uncontroverted.
“This omission is an error in law, as Captain Bain was the sole expert witness, and his evidence was unchallenged. To assess negligence in securing and storing the vessel, the judge should have considered all the evidence, especially Captain Bain’s unchallenged expert testimony.
“In view of the errors of law made by the learned judge, the Court has concluded that a new trial is necessary. Allowing the judgment to stand would result in greater injustice to the parties given the judge's lack of clarity on the status of the two critical witnesses i.e. Captain Daxon and Captain Bain and her failure to explain the basis for preferring the evidence of Captain Daxon over the expert evidence of Captain Bain. Further, the learned judge did not discuss the relevance of Captain Bain’s expertise or lack thereof to her decision.”