The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Court of Appeal this week upheld a verdict that the Airport Authority was negligent over the 2007 theft of a Western Air plane, but rejected the company’s call for damages to be increased to $3.235 million.

Justice John, in a ruling backed by his two fellow Appeal justices, agreed with the Supreme Court that the Airport Authority’s failure to provide “proper security” at the Lynden Pindling International Airport (LPIA) led to the plane’s theft.

Yet they also rejected Western Air’s counter-claim that damages be increased from $2.634 million to $3.335 million, finding that the airline and its principals had failed to prove the plane’s theft cost them $2.401 million in annual revenues.

Setting out the case, Justice John said Western Air’s Metro III Aircraft, CG-SAQ, was “parked at its designated spot” at LPIA on April 26, 2007, when it was stolen.

The Government-owned Airport Authority had the responsibility to provide security at LPIA, and then-Supreme Court justice, Neville Adderley, found the theft “could not have occurred without negligence” by the Authority or its employees.

Entry to the area where the plane was parked was controlled by a manned security booth, which only allowed access to Western Air and Bahamasair personnel once the correct ID was produced.

The Supreme Court judgment said the last Western Air employees with access to the stolen plane were Captain Darryl Bartlett, Dominique Bannister and a mechanic, Damian Kikivarakis.

Western Air’s operations manager, Captain Wolffgang Seyfert, testified that “anyone with a little mechanical knowledge could open the aircraft”.

Surveillance photos showed the plane was present in its proper place at 8pm on April 25, only for it to be stolen at 1.13am the following morning.

The two security officers working the shift when the plane was taken, Tamara Winder-Sears and Marcus Blatch, said they could not recall allowing anyone through the security gate.

Delistine Rolle, the desk security officer on duty, testified at the Supreme Court trial that she did not note the incident, although she had been trained to do so.

Sergeant Paul Lewis, the investigating officer, “pointed to what he considered negligence on the part of the three employees at the control tower at the airport, who must not have been on the alert for the airplane to take off without their knowledge.

“He also expressed a negative view of the surveillance. Of note, there was no photograph at the estimated time that the aircraft was stolen”.

The Airport Authority’s attorney, Sir Cyril Fountain, argued that his client had no ‘duty of care’ towards Western Air given the circumstances surrounding the case.

The Court of Appeal, though, agreed with Justice Adderley that there was “little doubt” that the Airport Authority owed a duty of care to the airline, given that it was responsible for providing security at LPIA.

Western Air, and the other airlines, could not provide their own security, and the Court of Appeal found the Authority’s obligations “extended to not causing or contributing to the very act that occurred, that is the theft of the airplane by an unknown or unauthorised person”.

“The appellant provided security which included a security booth manned by a security officer,” Justice John ruled. “There was ample evidence from security personnel for the trial judge to conclude that, but for the failure of the appellant’s security, the theft would not have occurred.”

He concluded that Justice Adderley’s ruling on the liability and negligence was “just and reasonable”.

Western Air, meanwhile, in its re-amended statement of claim, claimed the theft had cost it $2.401 million in lost revenue, calculated at $7,000 per day for 343 days.

It also alleged that the incident saw its five-year insurance premium increase by $769,000, while also generating an $83,000 ‘interest on bank loss’ charge. The latter payments were required to cover a bank loan secured on the stolen plane until insurance monies arrived.

At the Supreme Court trial, Western Air’s principal, Rex Rolle, said he was unable to provide documents proving the airline’s economic loss because the records were destroyed in a fire at its San Andros headquarters.

“This statement shows that he anticipated that there might be a shortage of documentary back-up for his claims,” then-justice Adderley said.

The Court of Appeal backed Justice Adderley’s findings, ruling that he was correct to disallow the $2.401 million loss of revenue claim.