The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bahamasair suffered no financial loss as a result of the Court of Appeal reversing a ruling over the January 2007 crash landing involving one of its Dash-8 planes, as it had already been paid a $4.2 million insurance claim.

Henry Woods, the airline’s managing director, said it had initiated Bahamian court proceedings against the Canadian aircraft parts designer/manufacturer, Messier-Dowty, at the behest of its insurers.

He explained that Bahamasair had received the proceeds from the insurance claim in the same year that the accident occurred, and any proceeds from a successful legal action would have been used to reimburse the insurers.

“We got paid $4.2 million for that in 2007 from the insurers,” Mr Woods told Tribune Business.

“The lawsuit was filed in the Bahamas by Bahamasair on behalf of the insurers. It’s not our loss. We’ve been paid, We haven’t lost anything.”

The Court of Appeal earlier this month overturned a $3.5 million damages award in favour of Bahamasair, finding instead that the airline had failed to install an upgraded part that may have prevented the Eleuthera crash landing.

The appellate court’s 36-page verdict overturned the October 2014 findings by former Chief Justice, Sir Michael Barnett, that “negligence” by the part’s designer/manufacturer, Messier-Dowty, had caused the landing gear on one of Bahamasair’s Dash-8 aircraft to collapse upon landing.

Apart from ‘negligence’ in manufacturing the actual part, the ex-Chief Justice also found that the Canadian firm had failed to inform Bahamasair that the ‘damper ring’ - a key component in a Dash-8’s landing gear - also suffered from ‘fragmentation’ problems.

But Appeal Justice Jon Isaacs, in a written judgment supported by his two colleagues, found that Sir Michael’s ruling against Messier-Dowty was “unreasonable and cannot be supported by the evidence”.

Justice Isaacs said Messier-Dowty had informed Bahamasair about its new, upgraded ‘damper rind’ and upper bearing, but the national flag carrier had continued to use an old part - one that had ceased to be manufactured since 1998.

And he found it was fair for the Canadian company to “assume that the end user will not so abuse or misuse his product” such that it wears down more quickly than expected - a development that does not mean the product is defective.

The Court of Appeal also criticised Sir Michael for effectively ignoring the 2007 accident report produced by the Civil Aviation Department’s Flight Standards Inspectorate, finding he failed to consider all available evidence in the case as a result.

The September 9, 2007, report listed four possible causes for the January 18, 2007, crash at Governor’s Harbour, Eleuthera. It also saw Bahamasair “contest the conclusions that they did not perform the May 2006 repairs in accordance with industry standards, and that their maintenance programme was not up to industry standards”.

Mr Woods told Tribune Business that the Flight Standards Inspectorate report was “a hatchet job”, and added that Bahamasair would likely issue a formal response to that and the Court of Appeal ruling once it had consulted with its Florida-based insurers.

No statement has been forthcoming since Tribune Business spoke to Mr Woods, but the Bahamasair managing director rejected the notion that the national flag carrier had used a part “that should have been condemned or expired”.

“The part still had life, and we have an airworthiness directive that verifies that,” he told Tribune Business.

In his ruling, Appeal Justice Isaacs found it was ‘unreasonable” for the ex-Chief Justice to have found that Messier-Dowty did not give Bahamasair warning about deficiencies with the original ‘damper ring’, especially since it had not been identified as the key cause in previous accidents.

The Court of Appeal found there was “no lack of transparency” by the Canadian manufacturer, and that country’s regulator seemed satisfied there were no defects of the kind alleged by Bahamasair.

The Court of Appeal judgment alluded to the fact that “warning signs”, such as vibrations and a ‘blown tyre’, were present before the Eleuthera crash, but were interpreted as signs of a different problem.

“It is likely that had [Bahamasair] conducted the extension test by jacking up the aircraft as recommended by the appellant’s manual as soon after five cycles as possible, the emerging problem would have been discovered and rectified,” Appeal Justice Isaacs wrote.

“[Bahamasair] was afforded an opportunity to examine the product before it failed, but declined to do so. Ultimately, therefore, the failure of [Bahamasair] to install the new damper ring and upper bearing was not due to the negligence of the appellant in advising it of the new product, but from the respondent’s decision to continue using a ring it ought to have known was no longer being produced since 1998.”