The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Resorts World has alleged it cannot return to its “original business model” of twice daily cruises to Bimini until April 2014, due to high winter seas and the absence of its controversial terminal/jetty.

The Genting subsidiary, in the latest instalment of its court battle with US Customs and Border Protection (CBP), alleged that it was the government agency itself that “encouraged” it to alter its Bimini-centric plan.

Resorts World Bimini, in a December 26, 2013, filing in the Washington D. C. district court, claimed that CBP “prodded” it to introduce so-called evening ‘cruises to nowhere’ - sailings that never call at another port - because this would reduce the demands on its personnel when processing returning passengers.

Reiterating that its entire $275 million investment, including that in the Bimini Bay Resort, remained “in jeopardy”, the developer said it would be unable to return to its original model for four months.

Gregory Karan, Bimini SuperFast’s senior vice-president, alleged: “I have read CBP’s December 20, 2013, court filing in which it suggests that Resorts World Bimini could avoid the harm caused by CBP’s decision simply by returning to its original business model of operating two cruises per day to the Bahamas.

“As a practical matter, this is no longer a viable option. The delays that are caused by the CBP clearance process and the time needed to provide a full set of entertainment services only makes it possible to provide one daily trip to Bimini until the completion of the jetty and the end of the rough waves during the winter season.”

And Resorts World’s other court filings confirmed it could not return to that plan “until at least April 2014”.

The documents obtained by Tribune Business again detail just how vital the controversial, Bimini-based 4.5 acre cruise terminal, and 1,000 foot jetty, are to the developer’s plans.

These facilities lie at the heart of the Judicial Review action brought by the Bimini Blue Coalition in the Supreme Court, amid concerns about their potential environmental impact and affect on nearby dive tourism sites.

That action was effectively placed ‘on hold’ by Justice Hartman Longley until the Coalition came up with a collective $650,000 ‘security for costs’, although the Coalition is likely to appeal this.

It may well be that the Coalition, and its supporters, will have to pin their hopes - for the minute, at least - on the outcome of Resorts World’s own US judicial review action to halt the project.

And, back in the Washington D. C. courts, Resorts World was quick to slam the CBP’s suggestion that it was its own “bad business decisions” and “ignorance of US law” that had left its Bimini ambitions in a mess, not to mention the Christie administration’s hopes of creating a net 500 new Bahamian jobs.

“In view of the foregoing investment, construction, and financial decisions made in reliance on CBP’s prior acquiescence to, if not approval, of Resorts World Bimini’s evening excursion, Resorts World Bimini cannot just return to its original business plan,” the Bimini developer alleged.

“The irreparable harm faced by Resorts World Bimini is not the result of ‘bad business decisions’, ‘ignorance of federal law’ or any of the other shrill accusations that permeate CBP’s opposition,”

“Rather, Resorts World Bimini faces irreparable harm because it relied - to its detriment” on previous CBP decisions that allowed non-US built vessels, crewed by foreigners, to operate ‘cruises to nowhere’ so long as they entered international waters.

“The fact that Resorts World Bimini’s business plan changed, as is not unusual with start- up businesses, is in no way dispositive, and was largely due to representations made by CBP,” the developer alleged.

“The fact remains that Resorts World Bimini was in constant contact with CBP the entire time it was proceeding with its operation. CBP was a primary player in this conversation, and its advice and input on a real time basis were critical in determining each step that Resorts World Bimini took.

“The key is not that Resorts World Bimini changed its direction, but that it did so at CBP’s prodding and encouragement,” Resorts World and it attorneys argued.

“Furthermore, supported by CBP’s own materials, CBP signed off on cruises to nowhere and was completely on board for the first two months the evening excursion was operational.

“CBP actually encouraged Resorts World Bimini to operate cruises to nowhere because such operations would reduce the burden on CBP personnel, and Resorts World Bimini structured its cruise schedule to accommodate CBP.

“Resorts World Bimini relied on CBP’s approval and acquiescence in structuring the rest of its operations, and is now not able to reverse course given the many decisions it has made concerning investments, construction, and financing - all in reliance on CBP’s approval of the evening excursion.”

Resorts World added that it had little alternative but to launch its Judicial Review action, as flouting the CBP decision would expose it to a $750,000 fine per evening cruise and, potentially, the seizure of the Bimini SuperFast vessel itself.