The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Blackbeard’s Cay developer’s claim to own the project’s eight dolphins was based on “fallacious premises”, the Court of Appeal found, while also criticising its failure to accept ‘the rule of law’.

Appeal Justice Jon Isaacs, in a unanimous verdict on the court’s behalf earlier this month, said Blue Illusions and its principal, Samir Andrawos, had shown “scant regard” for a previous Supreme Court ruling that quashed all its permits and ordered that the project be shut down.

That refers to the July 2014 verdict obtained by the environmental group, reEarth, which quashed all Blackbeard’s Cay’s approvals because the Government had failed to follow its own statutory permitting processes.

That event sparked the ownership dispute over the project’s dolphins, with their Honduran supplier, Instituto De Ciencias Marinas (IMS), requesting that the mammals be repatriated to the central American nation - a move that was blocked by Blue Illusions’ competing claim.

The Blackbeard’s Cay developer’s failure to abide by the reEarth judgment was only mentioned in passing by the Court of Appeal, but it still implied concern over a foreign investor’s refusal to abide by a Supreme Court ruling and its challenge to the ‘rule of law’.

“As at the time of the appeal, the dolphins had not been removed from the facility and appear to continue to be used for profit by the appellant [Blackbeard’s Cay],” Justice Isaacs wrote.

“The appellant has paid scant regard to the re Earth Ruling, and notwithstanding that its licenses were quashed by the Court. Further, by an Order of the Supreme Court dated 24 August, 2016, the appellant was compelled to give IMS access to the dolphins.”

The Court of Appeal’s verdict reflected comments made in November 2016 by Brian Moree QC, attorney for IMS, who said it “seems contrary to the rule of law” for the $12 million Blackbeard’s Cay development to still be operating now more than 30 months after the Supreme Court quashed all its approvals.

“It would appear for some reason that the Government has allowed this business to continue to operate, even though it does not have all the licenses required by law,” Mr Moree said then.

“This raises a serious question as to the rule of law... It is difficult to understand how the business can operate without the requisite licenses.”

reEarth subsequently obtained a ‘penal notice’ to go with its July 2014 ruling, requiring the relevant government agencies to close Blackbeard’s Cay down.

The Government, though, has steadfastly refused to act and, just to make sure it does not, Blue Illusions and its attorneys subsequently initiated numerous court battles in a bid to prevent enforcement.

The Court of Appeal’s February judgment noted that four such actions had been initiated in the Supreme Court in 2016, with three commenced by entities under Mr Andrawos’s control, and another initiated by the brother of his business partner, Virginia Iglesias.

With the dolphins a major attraction for the cruise passengers and other visitors to Blackbeard’s Cay, their potential loss threatens to deal the business a severe blow- hence Blue Illusions determination to prevent their return to Honduras.

Detailing the background to the dispute, Appeal Justice Isaacs said IMS signed three agreements with Blue Illusions and its affiliates on June 15, 2012.

These created Nassau Dolphin Ventures, jointly owned by the two parties, to operate the dolphin attraction, which is located on Balmoral Island, off New Providence’s north coast opposite Sandals Royal Bahamian.

The Court of Appeal noted that the operating agreement said “the initial dolphins shall belong to IMS”, with the Hondurans agreeing to provide eight mammals and contribute a matching $500,000 in capital to the Bahamian venture. The profits were to be split evenly between IMS and Mr Andrawos’s Carib Resorts.

Justice Milton Evans, in a December 17, 2015, ruling, found that the eight dolphins belonged to IMS, prompting Blue Illusions and its attorney, Wayne Munroe QC, to challenge this at the Court of Appeal.

The developer’s first ground of appeal was rejected as “too ambiguous”, as it simply said the Supreme Court had got it wrong on the law and facts of the case, without providing any specifics.

“The ground, as framed, allowed too much wiggle room to the appellant and would no doubt have led to a roving excursion into all of the arguments raised before the court below,” Appeal Justice Isaacs wrote.

Blue Illusions and Mr Munroe relied mainly on a ‘FACTURA’ and ‘power of attorney to back its claims to dolphin ownership, but the Court of Appeal said IMS “mounted a formidable response to that document”.

This has been described at the Supreme Court as “invoice or possible receipt”,and never acknowledged a payment, just listing the eight dolphins by name at a price of $5,000 each, giving a total of $40,000.

IMS reiterated this “invoice” finding at the Court of Appeal, arguing that “Mr Andrawos admitted during his cross-examination” there was no evidence “it is a receipt for money that was paid for the purchase of the dolphins”.

“IMS did not accept that the FACTURA was evidence of a sale or transaction,” the Court of Appeal said, agreeing with its arguments.

Pointing to an e-mail chain where Mr Andrawos proposed to lease the dolphins instead of buying them, the judgment added: “There was no doubt that there was no legal intention between the parties to sell the dolphins.

“Indeed, there was no evidence that money was paid by the appellant or any other company to IMS for the dolphins, and this was admitted by Mr. Andrawos during his cross-examination.”

The Court of Appeal also found Blue Illusions’ ‘power of attorney’ argument to be “unsustainable”, and that this was intended to allow IMS to regain possession of the dolphins.

“It was notable that most of the documents relied upon by the appellant [Blue Illusions] as evidencing its title to the dolphins were prepared by it or on its direction,” the judgment concluded.

“They were, for the most part, self-serving but, even so, still fail to show actual ownership of the dolphins.

“The whole of the appellant’s case rested on fallacious premises, e.g., possession denotes ownership and customs documents’ contents can evidence title to goods.”