The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Rubis (Bahamas) and the operator of its Robinson Road gas station are both resisting Cable Bahamas’ efforts to obtain a summary judgment against them, while blaming each other for the massive gasoline leak that sparked the initial $15 million claim.

The Supreme Court last week heard the BISX-listed communications company’s arguments that it should be granted such a judgment, with the international petroleum products supplier and Fiorente Management & Investments likely to counter in the New Year.

Cable Bahamas is arguing that neither has a defence to its “negligence and/or nuisance” claims, and the only issue to be determined is the amount of damages both, or just one, should pay for loss of its customer service building, associated expenses and impact to employees’ health.

Both Rubis and its gas station operator, Fiorente, are opposing this argument while, Supreme Court documents show, pointing the ‘finger of blame’ at each other for the 24,000-30,000 gallon gasoline leak that has impacted the environment and human health in the surrounding area.

Gordon Craig, Rubis (Bahamas) managing director, in a December 5, 2014, affidavit filed with the Supreme Court, alleged that Fiorente informed it on January 3 last year that “there may have been software issues with the pre-set dispensing system” at the Robinson Road station.

Mr Craig alleged that Fiorente raised no suspicions about a fuel leak when the two sides met to discuss the issue, and it was only in mid-January 2013 when Rubis “received information that there may have been an issue with loss of product”.

The cause, Mr Craig said, was not clear, adding: “Unbeknownst to Rubis, [Fiorente] had been investigating a possible issue with respect to product loss since in or about early December 2012.

“Unfortunately, [Fiorente], for whatever reason, declined to share its developing concerns relative to the possible loss of product with Rubis for approximately one month.”

Mr Craig then alleged that its gas station operator, which leased the Robinson Road site from Rubis, had not been performing consistent product storage reconciliations, forcing them to rely on “piecemeal records”.

He claimed that the data received in late January 2013 “was entirely inconsistent and impossible to decipher”, adding: “Upon further investigation, it was reinforced that [Fiorente] had failed to maintain an accurate daily wet-stock report in relation to the fuel stored at the service station.

“It was also reinforced that [Fiorente] failed to immediately report to Rubis its concerns with respect to product loss.”

Mr Craig then added that Rubis, in its defence to Cable Bahamas’ claim, said it did not control the refuelling, storage and dispensing equipment at Robinson Road.

“Rubis’ position is that [Fiorente] is solely liable for having caused the emission of petroleum, and solely liable for any damage which may actually have occurred,” he alleged.

“Rubis was not in control of the materials which resulted in the damage, but rather these materials were under the control of [Fiorente], and that [Fiorente] had an independent, non-recourse duty to properly monitor the quantity of fuel at the service station, which it did not discharge.”

This, though, was denied in a December 5, 2014 affidavit by Fiorente’s principals, who said their defence “categorically and incontestably refutes each and every allegation of negligence, breach or nuisance asserted” by Cable Bahamas.

Bianca Carter, who owns Fiorente with her husband, Harcourt, said the gas station operator “does not accept any responsibility whatsoever for the leakage or damage” because it did not own or control the tank where the leak occurred.

“While we were responsible for the operation of the gas station, we had no control over - or even access to - the tank where the leak was located,” Mrs Carter alleged.

“The tank was the property of [Rubis] at all material times, and for all intents and purposes [Rubis] had sole custody and control over, and was solely responsible for, the maintenance and repair of said equipment/tank.”

Mrs Carter alleged that Fiorente had “discharged its duty to all” by reporting the gasoline loss to Rubis, and “begging” it to “carry out its due diligence to ascertain where the losses were occurring”.

In its initial claim, Cable Bahamas had alleged that the hazardous vapours from the gasoline leak had forced 43 staff to seek medical treatment before its customer service building was closed in late January 2013.

Pointing out that it had been denied use of this building ever since, Cable Bahamas alleged it would cost at least $8.6 million to either clean up the water table pollution or build a new customer service centre elsewhere.

And it is claiming $4.432 million in ‘special damages” to recover the costs, and revenue loss, associated with having to move its customer service operations and marketing arms to the Mall at Marathon and East Street, respectively, as a result of the gas leak.

John Gomez, Cable Bahamas’ vice-president of engineering, alleged in a November 14, 2014, affidavit: “By way of update, Cable is still unable to return to its Customer Service Building and has no reliable indication as to whether the building can ever be returned to a safe, habitable condition.”