Asha Javeed

and Jensen La Vende

In­ves­ti­ga­tions Desk

The Paria Fu­el Trad­ing Com­pa­ny Lim­it­ed should be in­ves­ti­gat­ed for cor­po­rate manslaugh­ter. It is one of the rec­om­men­da­tions from the 380-page re­port pro­duced by Jerome Lynch, KC, chair­man of the Com­mis­sion of En­quiry (CoE) in­to the Paria pipeline tragedy which led to the deaths of four divers on Feb­ru­ary 25, 2022.

It echoes the call made by at­tor­ney Prakash Ra­mad­har, who rep­re­sent­ed the be­reaved fam­i­lies, at the con­clu­sion of the CoE. “So I move against my in­ner in­stincts that there should be crim­i­nal pros­e­cu­tion rec­om­mend­ed in this mat­ter,” Ra­mad­har had said in his clos­ing ar­gu­ment.

The divers–Rishi Na­gas­sar, Kaz­im Ali Jr, Fyzal Kur­ban, Yusuf Hen­ry, and Christo­pher Boodram, em­ploy­ees of the Land and Ma­rine Con­struc­tion Ser­vices Ltd (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 No 6 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 Com­mis­sion of En­quiry which cost the coun­try $15.5 mil­lion.

The Sun­day Guardian un­der­stands that 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.

“Com­mon law is not old law, it’s laws that the Com­mon­wealth adopt­ed and can im­ple­ment in the re­spec­tive ju­ris­dic­tions un­der ex­ist­ing laws,” a source said.

As for LM­CS, Lynch’s rec­om­mend­ed that the com­pa­ny im­ple­ment strin­gent mea­sures to en­sure all divers are of a cer­tain ac­cred­i­ta­tion. Fur­ther­more, there should be laws that man­date com­pa­nies have those mea­sures in place for all their work­ers.

That rec­om­men­da­tion echoes a call made by Gilbert Pe­ter­son, SC, Paria’s at­tor­ney, dur­ing his clos­ing state­ment.

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.

The CoE re­port, which was sub­mit­ted to Pres­i­dent Chris­tine Kan­ga­loo on No­vem­ber 30, has been sent to the Di­rec­tor of Pub­lic Pros­e­cu­tions, Roger Gas­pard, for his con­sid­er­a­tion.

“The re­port has far-reach­ing con­se­quences so as a re­sult it was de­cid­ed that the re­port be sent to the DPP,” a Cab­i­net source told the Sun­day Guardian.

Prime Min­is­ter Dr Kei­th Row­ley has giv­en his com­mit­ment to lay the com­plete re­port in Par­lia­ment af­ter it is re­viewed by Cab­i­net.

The Sun­day Guardian un­der­stands that the re­port will al­so be part of a dis­cus­sion by the Joint Se­lect Com­mit­tee on Land and Phys­i­cal In­fra­struc­ture whose mem­bers are Sad­dam Ho­sein, Kennedy Richards, Lisa Mor­ris-Ju­lian and Symon de No­bri­ga.

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

“We un­der­stand there is a de­sire not to ac­cept li­a­bil­i­ty lest that should in­cur fi­nan­cial re­spon­si­bil­i­ty in some civ­il suit at some lat­er stage, but these men, as I said, al­ready did not die by ac­ci­dent. What they and their fam­i­lies are left with is the pos­tur­ing of the po­ten­tial par­ties, per­haps chal­leng­ing the very find­ings of this in­quiry be­fore they start fight­ing with each oth­er, each in­sist­ing that they got noth­ing wrong,” Lynch had said.

“This re­port pulls no punch­es. It is our hon­est ap­praisal of the facts as we see them. There may be those who will be dis­ap­point­ed. There may be those who will be out­raged and those who will wish to chal­lenge it,” he said.

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

How Paria de­fend­ed it­self through the tragedy

On May 10, Paria is­sued a press state­ment that it wel­comed the Gov­ern­ment’s de­ci­sion to es­tab­lish a CoE and it looked for­ward to “pre­sent­ing the facts on the in­ci­dent” which took place at its fa­cil­i­ty in Pointe-a-Pierre.

“With re­spect to the me­dia re­lease dat­ed March 07, 2022, Paria al­so takes this op­por­tu­ni­ty to clar­i­fy and re­in­force that the de­ci­sion to pre­vent fur­ther en­try by LM­CS divers in­to the 30” pipeline dur­ing the search and res­cue ex­er­cise on Fri­day 25 Feb­ru­ary 2022 was made by Paria and sup­port­ed by the T&T Coast guard and oth­er ex­ter­nal ex­perts. OSH is cur­rent­ly con­duct­ing its own in­ves­ti­ga­tion in­to the in­ci­dent and Paria is ful­ly com­mit­ted to mak­ing avail­able all rel­e­vant doc­u­ments and in­for­ma­tion to the in­ves­ti­gat­ing team, and we look for­ward to the com­ple­tion of the in­ves­ti­ga­tion,” it said.

Dur­ing the CoE, both Paria and Her­itage Pe­tro­le­um wrote to Lynch ac­cus­ing its com­mis­sion­ers of dis­play­ing “ap­par­ent bias.”

For his part, Lynch “whole­heart­ed­ly” re­ject­ed the al­le­ga­tions.

“Both sug­gest­ed they have been un­fair­ly treat­ed and that the com­mis­sion­ers, I sus­pect, pri­mar­i­ly me, have dis­played an ap­par­ent bias and that we should be re­cused,” Lynch had said.

Dur­ing the CoE, Paria’s em­ploy­ees came un­der scruti­ny.

Michael Wei, tech­ni­cal and main­te­nance man­ag­er at Paria, said the com­pa­ny did not want to risk more lives and feared any would-be res­cuers might suf­fer a sec­ond Delta P event.

Collin Piper, ter­mi­nal op­er­a­tions man­ag­er at Paria said he thought the un­of­fi­cial would-be res­cuers were too “emo­tion­al­ly charged” to en­ter the pipeline.

“My as­sess­ment of that was that it would not be a pru­dent de­ci­sion to make with a group who are emo­tion­al­ly charged, who have nev­er done any­thing like this be­fore, who have no train­ing to do any­thing like this,” he had said.

At the close of the CoE, Paria’s at­tor­ney Gilbert Pe­ter­son, SC, said Paria had no le­gal re­spon­si­bil­i­ty to res­cue the five divers and that the com­pa­ny’s on­ly oblig­a­tion was to sup­port emer­gency and ac­tion res­cue plans LM­CS had for its em­ploy­ees.

Pe­ter­son had ar­gued that Paria’s ac­tions were whol­ly rea­son­able, giv­en its op­er­at­ing con­di­tions fol­low­ing the in­ci­dent and that the re­sources avail­able and the safe­ty po­ten­tial for pro­posed res­cuers were live is­sues for Paria’s de­ci­sion-mak­ers.

He had said that Paria’s knowl­edge of the pipeline con­di­tion was in­ad­e­quate, un­aware of the lo­ca­tion and state of an in­flat­able plug and the divers.

Pe­ter­son said at the time Paria had en­gaged mul­ti­ple spe­cial­ist ser­vice providers: East­ern Emer­gency Re­sponse Ser­vices, Mitchell’s Pro­fes­sion­al Div­ing Ser­vices Com­pa­ny, HH­SL Safe­ty Sys­tems Ltd, Hull Sup­port Ser­vices Ltd, Sub­sea Glob­al So­lu­tions and Off­shore Tech­nol­o­gy So­lu­tions Ltd as well as as­sis­tance from Her­itage Pe­tro­le­um per­son­nel and the Coast Guard but none of the en­ti­ties con­tact­ed by Paria want­ed to en­ter the pipeline–the Coast Guard ad­vised that its divers did not pos­sess the train­ing or spe­cial­ist equip­ment and East­ern’s con­fined space tech­ni­cians could not un­der­take a div­ing res­cue, and Mitchell’s found the risk too high.

Pe­ter­son had de­scribed Ra­mad­har’s rec­om­men­da­tion for crim­i­nal pros­e­cu­tions of Paria per­son­nel as out­ra­geous.

“I wish Mr Ra­mad­har was here be­cause I want­ed to de­scribe his in­vi­ta­tion to the com­mis­sion for crim­i­nal pro­ceed­ings against Paria and its per­son­nel as out­ra­geous as the ev­i­dence did not sup­port this. It may grab a good head­line. It may grab the news­pa­per front page, but on the ev­i­dence: it can­not be sup­port­ed. There is no ev­i­dence here of any­thing close to crim­i­nal con­duct,” Pe­ter­son had said.

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, the com­pa­ny, or the gov­ern­ment agency can be held crim­i­nal­ly li­able.

The UK’s sen­tenc­ing re­view com­mit­tee pre­scribed that com­pa­nies found guilty face a fine be­tween $1.5 mil­lion (TT) to $171.8 mil­lion (TT) or a per­cent­age of the com­pa­ny’s worth, de­pend­ing on its fi­nan­cials.