The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bimini Bay’s original developer has been ordered to pay almost $600,000 plus interest after being found guilty of negligence over the theft of a 41-foot yacht from its marina.

Justice Ian Winder, in a January 17, 2022, ruling found there was “compelling evidence” to support allegations that RAV Bahamas, the company founded by Cuban-American developer, Gerardo Capo, had “breached its duty of care” towards the owner of the Rum N’Coke which was stolen from the marina on August 19, 2009.

He based this on the report produced by Bimini Bay’s security department three days after the theft occurred. This described how a marina employee, O’Neil Rolle, who was described as a dock master, recalled how he allegedly received a call from Anthony Modrono, the yacht’s owner, requesting that the water line be cleaned, and air conditioning and fresh water pump turned on.

Mr Rolle agreed to do this for $400, but never verified that it was actually Mr Modrono he spoke to. “Mr Rolle met an individual whom he assumed was a captain, who paid him the sum of $400, the amount agreed by himself and Mr Modrono,” the report said.

“Mr Rolle did not ask for identification, did not seek assistance from a senior person, did not ask Mr Modrono for faxed verification of individuals arriving to take possession of the yacht, did not have the persons taking possession of the yacht complete a vessel release form.

“A vessel release form is in place for the authenticity of individuals to take possession of property at the owner’s request. A procedure as to what steps is necessary for this process to proceed forward should be implemented.”

Justice Winder said Bimini Bay’s “own account” of the theft showed “a recognition of the failures” of Mr Rolle, which he found aided the vessel’s removal and theft from Bimini Bay’s marina.

An investigator hired by Great Lakes Reinsurance (UK) PLC, which insured the vessel and stepped into Mr Modrono’s shoes as plaintiff after paying out his claim over the theft, found that the Rum N’ Coke was taken from Bimini Bay to the Dominican Republic after which its whereabouts became unknown.

Great Lakes, in an action that was begun more than a decade ago in 2011, concerning an event that occurred 11-and-a-half years ago, alleged that the theft resulted from RAV Bahamas’ “failure to provide reasonable security” at the Bimini resort property and its marina.

It claimed $579,721 in a bid to recover its insurance claim; $18,545 to cover the costs of the investigation it initiated into the theft; plus judgment interest and costs. However, RAV Bahamas, in rejecting the allegations, argued that the vessel was unlocked and that Mr Modrono allowed “various persons unknown” to Great Lakes to use it.

And it claimed that the dockage lease agreement with Mr Modrono, via clause seven of the lease, placed the duty to keep vessels moored at Bimini Bay safe on the boat owner - not the resort. RAV Bahamas argued that, as a result, “owed no duty of care”, and argued that the security guards and surveillance cameras deployed were “deemed adequate and sufficient”.

However, Justice Winder, in his ruling noted that Doug Black, director of Bimini Bay’s marina operations, admitted that at the time of the theft “there were no cameras anywhere in the marina” - something that changed immediately after the vessel’s theft.

He added that besides owing “a duty of care” to dockage and slip owners, RAV Bahamas and Bimini Bay also needed to ensure they took “reasonable measures” to keep vessels safe and ensure they were not vulnerable to being stolen.

“I am satisfied that the defendant breached its duty of care as its actions fall below the reasonable standard expected of it, resulting in the loss of the vessel,” Justice Winder ruled, granting Great Lakes the full amount of its claim.

He added that the lease defence cited by RAV Bahamas had no merit as it “could not contemplate the negligence of the nature claimed” which led to the boat theft. And he suggested that clause seven ran afoul of the Consumer Protection Act that requires contract terms to be “reasonable”, as RAV Bahamas could not “exclude itself from liability” from such negligence.