Asha Javeed

Lead Ed­i­tor In­ves­ti­ga­tions

asha.javeed@guardian.co.tt

The Paria Fu­el Trad­ing Com­pa­ny Lim­it­ed should be charged for cor­po­rate manslaugh­ter.

It’s one of 52 rec­om­men­da­tions from the 380-page re­port pro­duced by Jerome Lynch, KC, chair­man of the Com­mis­sion of En­quiry (CoE) in­to the Paria pipeline tragedy which lead to deaths of four divers on Feb­ru­ary 25, 2022.

The re­port, which was sub­mit­ted to Pres­i­dent Chris­tine Kan­ga­loo on No­vem­ber 30, was laid in Par­lia­ment by En­er­gy Min­is­ter Stu­art Young yes­ter­day.

Lynch said Paria breached its du­ty of care to Land and Ma­rine Con­struc­tion Ser­vices Ltd (LM­CS). In turn, LM­CS breached its du­ty of care to its work­ers.

Rec­om­men­da­tion 40 said: “We rec­om­mend to the Di­rec­tor of Pub­lic Pros­e­cu­tions that on the ev­i­dence be­fore this tri­bunal, we find that there are suf­fi­cient grounds to con­clude that Paria’s neg­li­gence could be char­ac­terised as gross neg­li­gence and con­se­quent­ly crim­i­nal. We do not con­clude that the same is true of LM­CS as we are of the view that they were ef­fec­tive­ly pre­vent­ed from pur­su­ing a res­cue by Paria.”

Rec­om­men­da­tion 41 asked that the “DPP con­sid­er charg­ing Paria with what is com­mon­ly known as cor­po­rate manslaugh­ter”.

The divers—Rishi Na­gas­sar, Kaz­im Ali Jr, Fyzal Kur­ban, Yusuf Hen­ry and Christo­pher Boodram, em­ploy­ees of LM­CS, were sucked in­to a 30-inch un­der­wa­ter pipeline af­ter a dif­fer­en­tial pres­sure (Delta P) event oc­curred while they were do­ing main­te­nance work at Berth No6 in the Pointe-a-Pierre har­bour.

Dur­ing the CoE, Paria had claimed it did not know the divers were in the pipe be­tween 2.45 pm and 5.30 pm on the day and on­ly be­came aware when Boodram emerged. Paria did not al­low a res­cue mis­sion for the oth­er divers and Boodram was the sole sur­vivor in an or­deal, which last­ed five days.

The deaths and the pub­lic furore which fol­lowed, led to the CoE, which cost $15.5 mil­lion.

The re­port said there was enough ev­i­dence for pros­e­cu­tion of both Paria Fu­el op­er­a­tions man­ag­er Col­in Piper and LM­CS’ Kaz­im Ali Sr in­di­vid­u­al­ly and Paria and LM­CS as em­ploy­ers for a num­ber of of­fences un­der the OSH Act.

“How­ev­er, at the time of writ­ing this re­port, the OSH ACT re­quires that any such pro­ceed­ings be­fore the In­dus­tri­al Court must be filed with­in two years of the in­ci­dent be­com­ing known - in oth­er words 24th Feb­ru­ary 2024,” it said.

Lynch’s rec­om­men­da­tion was that the com­pa­ny im­ple­ment strin­gent mea­sures to en­sure all divers are of a cer­tain ac­cred­i­ta­tion.

“That com­pul­so­ry reg­u­la­tion of all com­mer­cial div­ing op­er­a­tions be in­tro­duced with a regime of fi­nan­cial penal­ties and crim­i­nal sanc­tions for com­pa­nies and in­di­vid­u­als fail­ing to ad­here to them,” the re­port rec­om­mend­ed.

In his fi­nal press con­fer­ence, Lynch said it re­mains fac­tu­al that in an in­dus­try in­her­ent­ly dan­ger­ous in its op­er­a­tions, there are no com­pul­so­ry stan­dards in this coun­try.

In ad­di­tion, the re­port looked at in­ad­e­qua­cies in the con­tract be­tween LM­CS and Paria and the fact that no pro­vi­sion was made for a Delta P event in the con­tract.

Fur­ther­more, there was no cer­tifi­cate of en­vi­ron­men­tal clear­ance for the area, which was cru­cial to reg­u­la­to­ry com­pli­ance.

Lynch rec­om­mend­ed that the new draft dive stan­dards be made com­pul­so­ry im­me­di­ate­ly.

Ir­re­spon­si­ble be­hav­iour

In the re­port, all Paria’s of­fi­cers in­volved in the in­ci­dent came un­der crit­i­cism:

Main­te­nance tech­ni­cian, Hous­ton Mar­jads­ingh was crit­i­cised for be­ing in­ex­pe­ri­enced for the post he held dur­ing the in­ci­dent. In ad­di­tion, the re­port not­ed that he did not at­tend Berth #6 un­til 2:30 pm on Feb­ru­ary 25, nei­ther did he at­tend the Tool­box meet­ing (to plan that day’s work) even though he signed it as be­ing present.

Piper’s de­ci­sion not to al­low a res­cue mis­sion was crit­i­cised as ir­re­spon­si­ble. “All re­al­is­tic op­tions should have been con­sid­ered. Even if the cam­era re­vealed that which they sought, no plan to car­ry out a res­cue had been put in place. No at­tempt was made to en­gage with the coun­try’s best ex­perts in com­mer­cial div­ing which had ar­rived on site. Piper closed his mind to any al­ter­na­tives with­out even hear­ing them. We re­gard this as a se­ri­ous breach of Paria’s du­ties un­der the ICS. This is not to sug­gest that a res­cue must in­evitably be sanc­tioned but to reck­less­ly close one’s mind to al­ter­na­tives car­ries the hall­mark of a se­ri­ous breach of du­ty, but which on the ev­i­dence we had heard, falls shorts of crim­i­nal li­a­bil­i­ty in re­la­tion to Piper as an in­di­vid­ual,” the re­port said.

Paria’s tech­ni­cal lead Cather­ine Balkissoon “failed to stamp her au­thor­i­ty on the site and that in turn had a detri­men­tal ef­fect on co­or­di­nat­ing any kind of res­cue be­tween the com­pa­ny and the con­trac­tor”.

The re­port said Paria had a “com­mon law du­ty of care giv­en the in­her­ent­ly dan­ger­ous na­ture of the work”.

“That non-del­e­gable du­ty of care aris­es in ad­di­tion to LM­CS du­ty of care. Paria was in breach of their non-del­e­gable du­ty of care,” it said.

De­spite Lynch’s rec­om­men­da­tion that Paria be in­ves­ti­gat­ed for cor­po­rate manslaugh­ter, the crime of cor­po­rate manslaugh­ter is not cod­i­fied in T&T’s leg­is­la­tion. How­ev­er, such a charge is pos­si­ble in com­mon law.

Treat­ment of Fam­i­lies

The re­port al­so took note of how the fam­i­lies were treat­ed dur­ing the or­deal by Paria.

“In the view of the Com­mis­sion, the way in which the fam­i­lies were treat­ed were in­sen­si­tive and un­civilised. The fail­ure to keep them in­formed es­pe­cial­ly in the first 12-24 hours was shock­ing as was their fail­ure to look af­ter them. They should have been pro­vid­ed with ba­sic shel­ter, toi­let fa­cil­i­ties and wa­ter and food ought to have been pro­vid­ed by Paria to com­fort­ably ac­com­mo­date them,” it said.

The re­port iden­ti­fied three rec­om­men­da­tions about this:

Rec­om­men­da­tion 37: “Com­pa­nies that op­er­ate in dan­ger­ous en­vi­ron­ments must have a pro­to­col for deal­ing with the fam­i­lies of vic­tims of in­dus­tri­al ac­ci­dents and in­ci­dents. Once an ICS (In­dus­tri­al Con­trol Sys­tem) is es­tab­lished there needs to be a prop­er pro­ce­dure to keep the im­me­di­ate fam­i­lies of those who are di­rect­ly af­fect­ed prop­er­ly in­formed.

Rec­om­men­da­tion 38: “Ad­di­tion­al­ly, where there is the prospect of de­lay and or a res­cue at­tempt to be made, pro­vid­ing sanc­tu­ary away from the pub­lic and the me­dia to the im­me­di­ate rel­a­tives, on site, seems to us not to re­quire any pro­to­col, just com­mon hu­man­i­ty.

Rec­om­men­da­tion 39: “Last­ly, in sit­u­a­tions where fam­i­lies have had their loved ones and bread­win­ners snatched away from them in cir­cum­stances such as these, or any tragedy, re­al con­sid­er­a­tion needs to be giv­en to as­sist­ing the fam­i­lies in the im­me­di­ate af­ter­math of the in­ci­dent to help them with the fi­nan­cial bur­den that they have been cat­a­pult­ed in­to. This does not have to in­volve any ad­mis­sion of li­a­bil­i­ty mere­ly the recog­ni­tion that the fam­i­lies of those who have died, or been se­ri­ous­ly in­jured, may need help.”

Lynch had said the tragedy was “no act of God” and that every­one should en­sure it nev­er re­curs.

The board mem­bers of Paria are: New­man George (chair), Fayad Ali, Avie Chadee, Pe­ter Clarke, Eu­stace Nan­cis and Reza Sal­im

Cor­po­rate Manslaugh­ter

The law, which came in­to ef­fect in the UK in April 2008, makes Sec­tion 1 of the Cor­po­rate Manslaugh­ter and Cor­po­rate Homi­cide Act an of­fence where a gov­ern­ment en­ti­ty or com­pa­ny is found to have caused the death of some­one through neg­li­gence.

Ac­cord­ing to the Crown Pros­e­cu­tion Ser­vice, the UK’s DPP of­fice, cor­po­rate manslaugh­ter is an of­fence that was “cre­at­ed to over­come the lim­i­ta­tions of the com­mon law of­fence of gross neg­li­gence manslaugh­ter as ap­plied to com­pa­nies and oth­er in­cor­po­rat­ed bod­ies. Un­der the com­mon law, in or­der for a com­pa­ny to be guilty of the of­fence it was nec­es­sary for a se­nior in­di­vid­ual who could be said to em­body the com­pa­ny (al­so known as “the con­trol­ling mind”) to be guilty of gross neg­li­gence.” Un­der the new law, the con­trol­ling minds, the board, of the com­pa­ny, or gov­ern­ment agency can be held crim­i­nal­ly li­able.