The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Rubis Bahamas has accused Cable Bahamas of acting in “manifest bad faith” by refusing to give it access to its former customer service building, so it can clean up a massive gasoline spill.

Gordon Craig, the petroleum distributor’s managing director, alleged that the BISX-listed communications provider reneged on an agreement between the two sides that would have allowed Rubis to “remediate” the spill’s impact on its property.

Mr Craig, in a December 5, 2014, affidavit opposing Cable Bahamas’ bid to obtain summary judgment against Rubis and the operator of its Robinson Road gas station alleged that it was using “spurious reasons” to not comply with the two sides’ Access Agreement.

And Mr Craig also branded as “somewhat offensive” the inference that Rubis had accepted responsibility for the gasoline leak, which sparked Cable Bahamas’ initial $15 million claim, simply because the petroleum supplier had taken the lead on the clean-up.

The Rubis managing director questioned why Cable Bahamas had refused to grant it access to its former customer service building, despite “repeated requests” since mid-2013 that it do so, allowing “renowned remediation experts commissioned by Rubis to promptly further remediate the entire area in question”.

“In fact, the plaintiff [Cable Bahamas] has acted in manifest bad faith in this matter, as it agreed to an Access Agreement which entitled Rubis to promptly access its property to conduct bona fide remediation activities,” Mr Craig alleged.

“Not only did the plaintiff renege on the Access Agreement for spurious reasons but, I am advised, as aforesaid, that it has wrongfully exhibited documentation which was provided to it on a clearly without prejudice basis.”

Mr Craig claimed there was no basis in law to deny Rubis access, suggesting that Cable Bahamas was refusing to grant permission because the Government had yet to approve its remediation plan.

Arguing that such approval was not a condition of the Access Agreement, Mr Craig said it had nevertheless now been obtained from the Ministry of the Environment and Housing, and its internal/external consultants.

Sources close to Rubis have said the petroleum supplier wrote to Cable Bahamas seeking access to its property for remediation purposes as recently as December 16, 2014, one say before the latter’s summary judgment application hearing started.

“In the event that it is ultimately established, as a matter of law, that Rubis is not liable, it would nevertheless continue to assume responsibility for the remediation in accordance with its corporate philosophy,” Mr Craig added.

“However, it is somewhat offensive to infer from Rubis’ efforts to lead remediation that it accepts liability.

“Further, if this is to be a necessary judicial inference from Rubis’ remediation activities, I am of the view that this would necessarily be questionable public policy and contrary to the public interest.”

As for Cable Bahamas’ allegation that negligence on Rubis’s part led to the gas leak, Mr Craig said “a significant and sustained programme of maintenance” had occurred at the Robinson Road service station under both its ownership, and previous owner, Chevron.

Noting that $106,800 had been spent with just one contractor, Tim’s Electrical Services, on the Robinson Road gas station, Mr Craig said Rubis implemented its own “upgraded maintenance and repair programme” once it acquired Chevron’s Bahamas business on May 1, 2012.

He added that between May 1, 2012, and January 28, 2013, Rubis spent $248,569 on repairs to its gas station network, some of which went on the Robinson Road service station.

Elsewhere, John Gomez, Cable Bahamas’ vice-president of engineering, said in an affidavit that Rubis had agreed to pay the lease and utility bills on its temporary customer service office at the Mall at Marathon, where it was forced to relocate.

Mr Gomez’s affidavit refers to a $821,767 cheque payment sent to Cable Bahamas by Rubis on August 6, 2013, to cover these expenses.

Cable Bahamas is arguing that neither Rubis nor the gas station operator, Fiorente Management & Investments, has a defence to its “negligence and/or nuisance” claims, hence the summary judgment move.

It is arguing that 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.

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.