The Tribune

• Western Air battles $200k fine, 90-day suspensions

• Feared ‘real and irreparable damage’ over Easter

• Judge bars Civil Aviation from enforcement action

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Prime Minister’s Bermuda trip has flown into a fresh storm of controversy as the airline responsible is battling a $200,000 fine over accusations it operated the flight in a “negligent and/or reckless” manner.

Western Air, which carried Philip Davis KC, ex-prime minister Perry Christie and multiple Cabinet ministers, Senators and PLP officials to the mid-Atlantic island on October 19, 2022, raced to the Supreme Court earlier this month to successfully obtain an injunction barring the Civil Aviation Authority from suspending three key employees over the affair and inflicting “real and irreparable damage” to its peak Easter travel business.

Justice Petra Hanna-Adderley, in her April 11, 2023, verdict that barred the Bahamian regulator from both enforcing the fine and suspensions, revealed that the flight at the centre of the aviation safety and regulatory dispute was the trip undertaken by the Prime Minister and his delegation. They were invited by Bermuda premier, David Burt, with Mr Davis addressing the ruling Progressive Labour Party conference.

The Civil Aviation Authority, in moving to initiate “enforcement action” against Western Air via the $200,000 fine, also sought 90-day suspensions for Captain Gregory Rolle, the airline’s senior pilot and flight instructor; Captain Caneil Cartwright, a senior pilot; and Jason Nairn, manager of its Flight Control Centre, over their roles in the Prime Minister’s Bermuda trip.

However, Justice Hanna-Adderley maintained “the status quo” and granted Western Air’s injunction while ordering that the airline must launch its Judicial Review challenge to the Civil Aviation Authority’s decision and its enforcement by May 1, 2023.

Rex Rolle, Western Air’s president, director and accountable manager, had received a letter from Alexander Ferguson, Civil Aviation’s director-general, on February 2, 2023, “inviting Western Air to show cause in writing within seven days as to why intended enforcement action relating to a flight operated by Western Air from the Lynden Pindling International Airport (LPIA) to the island of Bermuda on October 19, 2022, should not be proceeded with...

“On February 3, 2023, Sherreta Rolle, vice-president of operations and general counsel to Western Air, responded to the letter pointing out to the director-general that the threatened enforcement action was based on assertions made by him which were incorrect, and that the threatened enforcement would be unjust,” Justice Hanna-Adderley wrote.

Two months elapsed before, just two days prior to the start of the Easter holiday weekend, Mr Rolle on the afternoon of Tuesday, April 4, “received a penalty notice electronically from the defendant advising that it was satisfied that Western Air was responsible for the operation of flight WST 1700, which was operated ‘negligently and/or recklessly’ during the subject flight and that the defendant [Civil Aviation] was imposing a fine in the combined sum of $200,000”.

Mr Rolle was also warned that Civil Aviation planned to suspend the Air Transport and Flight Dispatcher certificates, respectively, for his three key personnel - in effect removing their licences to operate - for a period of 90 each. He added that he was informed by his attorney that Civil Aviation had “no authority” and “no power” to impose either the fine or certificate suspensions.

“Mr Rolle states that he is satisfied that it was within the director-general’s knowledge that the Easter weekend was the busiest period in the calendar year for Western Air in providing services throughout The Bahamas and, as usual, the [airline] had made arrangements for additional flights to meet anticipated increased demand from passengers wanting to travel to Bimini, Cat Island, Andros and other destinations during this Easter season,” Justice Hanna-Adderley wrote.

“That passengers had purchased tickets in large numbers, and to have to cancel flights because of these unlawful decisions would have been disastrous for the business operations of Western Air. Hence the injunction application.

The ruling did not mention any of the passengers on the flight. However, the destination - Bermuda; the date - October 19, 2022; and flight number - 1700 - all match the details of the trip by the Prime Minister and his delegation. Moreover, Bermuda is not part of any Western Air regular route schedule, and aviation industry insiders yesterday confirmed it was indeed Mr Davis’ flight.

The Prime Minister’s press secretary declined to comment last night on the grounds that the matter was before the courts or “sub judice”. Besides Mr Christie, Mr Davis was accompanied by Fred Mitchell, minister of foreign affairs and the PLP chairman; JoBeth Coleby-Davis, minister of transport and housing; Myles Laroda, minister of state in the Prime Minister’s Office; Leon Lundy, parliamentary secretary in the Prime Minister’s Office; and Senators Barry Griffin and Quinton Lightbourne.

Also present were Barbara Cartwright, the PLP’s general secretary, and other officials. Much of the controversy surrounding the Bermuda trip to-date has centred on whether the Government (Bahamian taxpayers) or the Progressive Liberal Party (PLP) covered the costs since it appeared to be more of a political visit rather than one related to government business.

However, aviation industry contacts, speaking on condition of anonymity, yesterday said the real focus should have been on whether the flight complied with international regulatory requirements. Questions were flying around the Bahamian aviation industry just after the Prime Minister returned from Bermuda last year over whether these standards had been met.

No one, though, was prepared to place their concerns on the record for fear of being caught up in a political controversy when contacted by Tribune Business. However, industry sources spoken to by this newspaper yesterday said the matter should not become caught up in party politics - even though it will likely reignite the controversy surrounding the Bermuda trip - because responsibility for the flight’s compliance rested with the airline.

One contact said the key questions, given that the flight had to cross a vast stretch of the Atlantic Ocean to reach Bermuda, were whether the plane was equipped with the necessary life rafts; if it possessed two high frequency (HF) radios and dual long-range navigation systems as demanded by the ‘Class Two’ air space it crossed; and if the pilots and dispatcher were fully trained to operate in that air space.

Tribune Business was told that planes undertaking flights such as the one that brought the Prime Minister to Bermuda need HF radios, rather than the shorter-range VHF variety, to remain in contact with - and report their position to - the New York controllers who manage the Atlantic ocean space that was crossed. If planes drop out of radio contact, New York than has to undertake significant work to deviate all other aircraft in the vicinity to avoid a possible mid-air collision.

This newspaper was told that, for the return trip to New Providence, the Prime Minister’s flight had to “borrow a hand-held satellite phone from Jet Blue” to regularly report its position. And the flight’s status was changed from a Western Air flight to a “state flight” with the designation ‘VP’ - ‘Victor Papa’ - One - otherwise, contacts said, the return may not have been allowed to take-off.

“If that had not been a government flight, the plane would have been sitting in Bermuda for a long time,” one source said. Another added: “The only way around it was to declare it a state flight, an official flight of The Bahamas,” a contact added. “They did that in order to get back. They had to change their call sign and become a state aircraft.”

Justice Hanna-Adderley’s verdict did not detail the basis of Civil Aviation’s findings and enforcement action. Harvey Tynes KC, representing Western Air, branded the penalties being levied against the airline as “excessive and unlawful” as he argued that the $200,000 vastly exceeded the sums provided for in the Civil Aviation Act. And he added that the licence suspensions were “illegal” because they could only last for a maximum of 21 days, not 90 days.

This was disputed by Ryan Sands, the Attorney General’s Office attorney representing the Civil Aviation Authority. However, Mr Tynes argued that it was “a matter of tremendous urgency” that the injunction be granted given that two days before the long Easter weekend his clients were “slammed” with a $200,000 fine even though they “refute the allegations of wrongdoing or impropriety”.

Finding that there were serious issued to be tried, Justice Hanna-Adderley found for Western Air and granted the injunction blocking Civil Aviation’s enforcement of the fines and licence suspensions. “The claimants, in my view, have demonstrated that they will suffer real and irreparable damage should the enforcement of the decisions not be restrained until the determination of the intended Judicial Review proceedings,” she ruled.

“A $200,000 penalty to any business would cause economic harm. There can be no doubt that the three employees (two pilots, captains no less, one in charge of training pilots and a person responsible for the Flight Control Centre of the airline) are key employees in the operation of the airline.

“Just as their services were keenly required during a busy holiday weekend, they would be required in the day-to-day operation of the airline and, if de-rostered, would probably result in cancelled flights as would have occurred over the holiday weekend, loss of revenue, a reduction in efficiency and, most of all, the loss of goodwill by the Bahamian public and reputational damage to the said employees,” Justice Hanna-Adderley wrote.

“While some of these damages are calculable, I am of the view that in the circumstances of this case, due to the overall and various damages and inconvenience that would be suffered by the claimants that damages would not be an adequate remedy.”