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.