The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Airport Authority yesterday failed in its final bid to overturn a verdict that its "negligence" was responsible for the 2007 theft of a Western Air plane from Lynden Pindling International Airport (LPIA).

The UK-based Privy Council, the highest court in the Bahamian judicial system, rejected the Government-owned Authority's final appeal on the basis that there was "ample material" to prove multiple security deficiencies at LPIA when the aircraft was stolen.

Apart from a perimeter fence that was "not wholly secure", thus allowing intruders easy access to the airport and parked aircraft, the Privy Council also found that LPIA security made no effort to prevent the plane's take-off despite the potential theft being detected and reported to two supervisors.

While finding that there could be "no other conclusion" than to find the Airport Authority at fault, the Privy Council judgment did not appear to rule on Western Air's cross-appeal.

The Bahamian-owned airline had sought a $2.401m increase upon the $833,000 damages awarded to it for the plane's loss, arguing that extra compensation was due because of the lost revenues resulting from an inability to use that aircraft on its commercial route. This would have increased the total damages to $3.234m, but the Privy Council ruling did not address this issue.

Detailing the dispute's origins, the Privy Council ruling noted that the Metro III aircraft was on April 26, 2007, parked in its correct spot in the "designated restricted zone" at LPIA. As the airport's owner, with responsibility for security, the Airport Authority "was required to control access to this zone" to prevent unauthorised persons gaining access to planes.

"A system was in place for controlling access to the airside part of the airport. This included securing the perimeter of the airport, providing patrols and designated entry points (known as 'gulfs'). The gulfs should have been manned constantly by security guards," the Privy Council said.

Tamara Winder Sears, one of the security guards on duty that night, said no one attempted to access the area where Western Air's plane was parked through the appropriate 'gulf'. Yet "during the night, a security officer heard the propellers of the aircraft start up and saw it emerge from its parking space", the Privy Council said. "Its lights had not been illuminated.

"The officer informed a supervisor who, in turn, reported the matter to her supervisor. That supervisor had recalled that on a number of occasions in the past Western Air planes had embarked on late flights and she assumed that this was just another instance of that. Nothing was done to impede the take-off of the aircraft."

The two Airport Authority security officers who manned the booth controlling access to the part of LPIA where the Western Air plane was parked "assert that no unauthorised person was admitted".

But a police investigation into the theft, headed by Sergeant Paul Lewis, found "defects in the security fencing around the airport, and that it was therefore possible to obtain access to the area where the aircraft was parked without passing through the access points where the security booths were".

How Western Air's plane was stolen was never established. The prime suspect was a former employee and pilot for the airline called Mr Terreros, who had been denied compassionate leave by his employer just prior to the theft.

"It appears that he may have been aggrieved about that. In any event, he had not been seen in The Bahamas since the plane was stolen and, in a telephone conversation with Sergeant Lewis during the latter’s inquiries, he said that he had stolen the plane and that he had flown it to Venezuela. This was the sum of the evidence as to who stole the plane," the Privy Council judgment said.

Noting that this evidence was questionable, the UK-based court said the identity of the thief has never been properly established. Both the Supreme Court and Court of Appeal found that, as the sole agency responsible for security at LPIA, the Airport Authority had "a duty of care" towards Western Air and its negligence had resulted in the plane's theft, leaving it liable to compensate the airline.

The Airport Authority, and its attorneys, sought to overturn those verdicts by arguing that the lower courts were wrong to find Western Air could not provide its own security. They also alleged that any "duty of care" did not extend to the loss the airline sustained. Western Air countered that the LPIA owner was seeking to overturn factual findings which appeal courts are reluctant to do.

The Privy Council, after finding that the Airport Authority was solely responsible for providing security at LPIA, said: "None of this detracts from the unquestioned position that the Airport Authority was responsible for the overall security of the airfield, and it is not in the least surprising that the Authority conceived it to be its duty to provide perimeter security and to restrict entry on to the airfield to all but authorised personnel.

"When one combines those circumstances with the finding of the trial judge that Western Air was not permitted to provide private security for its own aircraft, the conclusion that the Authority was responsible for the safeguarding of the aircraft while it was parked on its stand is inescapable. ... It ought to have been conscious that it was the sole agency into whose care the safety of the plane fell".

With the theft proving that LPIA's security system was deficient, the Privy Council said of the Airport Authority: "It is entirely fair, just and reasonable that it be held liable for its [Western Air's] loss."