By NEIL HARTNELL
Tribune Business Editor
nhartnell@tribunemedia.net
The Association of Bahamas Marinas (ABM) and its payment partner “have been unfairly stripped” by the Government of the online portal they created to collect boating fees, the former’s president is alleging.
Peter Maury, in a letter to Omni Financial Services that railed against the SeaZPass portal’s closure, argued that the Government appeared to have “taken ownership of the intellectual property” for the Internet-based facility that they jointly operated for almost two years “without proper justification or due process”.
The July 10, 2023, missive that was recently filed with the Supreme Court as part of Omni and the ABM’s claim for $3.473m in damages saw Mr Maury accuse the Government of an “illegal acquisition of an asset” that belonged to the marina group and Omni by purportedly breaching the two sides’ contract.
To operate SeaZPass, which was created as a digital solution for the payment of the 4 percent charter fee and cruising permit by foreign boaters, and to expedite their clearance into this nation, Omni and the ABM signed a ten-year contract with the Ministry of Finance - called an electronic licensing solution agreement - in October 2020.
This stipulated that the Government could only terminate the agreement if Omni and/or the ABM failed to cure a so-called “material breach” after being given 30 days’ notice, or if the two private sector partners ceased to exist or became the subject of bankruptcy, insolvency or receivership proceedings.
Instead, Omni and the ABM are arguing in their “breach of contract” claim that the ten-year deal was - and never has been - properly terminated by the Government. They were ordered to “disable” it on October 7, 2022, by Simon Wilson, the Ministry of Finance’s financial secretary, on the basis that not all boating fees paid through SeaZPass had been passed on to the Public Treasury.
That is being vehemently disputed by Omni and Mr Maury, in his capacity as ABM trustee, as they argue that the Government and the accounting firm it hired to examine the fee collection process have yet to supply any evidence to show outstanding monies were not paid over.
Mr Maury, in his July 10, 2023, letter to Harvey Morris, Omni’s principal, voiced “deep concern” over what he described as “the apparently illegal actions” taken against the provider which supplied the payment platform for the SeaZpass portal solution.
“From the information available to me, the Government has taken ownership of the intellectual property of the portal that was run by the ABM without proper justification or due process,” Mr Maury wrote. “Such actions raise fundamental questions about transparency, accountability and the rule of law.
“Omni Financial Services, which has been entrusted with the management and operation of the marinas’ online collection platform, seems to have been unfairly stripped of its rights and property.... The licence agreement that was given to the ABM by the Government was to provide easy online access to pay charter fees for all yachts chartering in The Bahamas.”
Asserting that it was “important to establish whether legal procedures were followed”, Mr Maury added that the agreement with the Government called for Omni to receive a 1.5 percent fee, or commission, per transaction for processing the fee payment. A further 2 percent was to be used by the ABM to finance the restoration of navigational aids around The Bahamas, with the remainder going to the Public Treasury.
“The Bahamas has a reputation as a destination that respects the rights of individuals and businesses, upholds the principles of justice and fosters an environment conducive to investment and growth,” Mr Maury added. “This illegal acquisition of an asset of the ABM by the Government tarnishes this reputation and undermines the confidence of both local and international investors.”
Recalling the October 7, 2022, meeting during which Mr Wilson told him to shut SeaZPass down, Mr Maury asked “if we could keep the portal running as it is a great convenience to our guests and keeps the traffic flowing”. He informed Mr Morris that the financial secretary replied that the Government “would consider a new payment platform” and suggest which one to use.
The ABM chief added that he asked the Port Department’s commander, Berne Wright, if the agency had a way to collect the charter and permit fees in SeaZPass’s absence. He allegedly replied in the affirmative, and Mr Maury wrote: “I immediately asked Commander Wright and Mr Wilson to show me how it works so that I could share it with the other marinas and the yacht captains.
“They fiddled around on the web browser and were unable to show me how to sign up or process a fee payment. The only viable payment platform that actually functions is the ABM’s portal and, as far as we know, this is still the case.” Nevertheless, immediately after that meeting on the very same day, Mr Maury received a letter from Commander Wright ordering that SeaZPass be disabled.
“I replied to Commander Wright that he did not have the authority to cancel the licence as this was passed in Cabinet and approved by the minister of finance/deputy prime minister [K Peter Turnquest] and the Prime Minister,” Mr Maury added.
Omni and the ABM, in their joint claim filed on October 28, 2024, reiterated their assertion that the demand to shut down SeaZPass represented a breach of their 10-year contract and that Commander Wright had “unlawfully issued a directive”.
They asserted that the electronic licensing solution agreement, dated October 16, 2020, “remains in effect to-date by reason of the unlawful acts” of the Government “and the non-acceptance by the claimants of the repudiatory breach of the contract”.
However, the Government, in its defence and counter-claim against Omni and the ABM, alleged that SeaZPass was “highly ineffective” due to what it asserted was the inability to remit funds collected to the Government on a timely basis.
“The Omni/ABM platform was for the collection of 4 percent charter fees, which constitutes a fraction of the Port Department’s regulatory role,” the Government added. “Additionally, the platform created by Omni and the ABM was beyond the scope of the contractual agreement in that the claimants not only collected 4 percent charter fees as agreed, but went way beyond the agreed terms and conducted administrative functions in breach of the agreement.
“The Port Department never received access to the back-end of the solution. Hence there was no engagement between the Port Department and the customer.”
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