The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A furious $5m-plus legal battle has erupted over a tug boat and barge that became stranded in an Abaco national park in late March 2024 - an incident that sparked major environmental concerns.

Renaldo Toote, the Supreme Court’s acting registrar, in a March 19, 2025, ruling reveals for the first time that some of The Bahamas’ best-known maritime firms are embroiled in an affair which last summer prompted the Bahamas National Trust (BNT) to demand that the Government ensure both boats’ removal to prevent further damage to coral reefs and other ecosystems.

The judgment reveals that Executive Marine Management Services, which was hired by the multi-billion Baker’s Bay development to transport sand and stones from Freeport to the latter’s Great Guana Cay location, in turn contracted FowlCo Maritime and Project Services’ tug boat to tow its barge.

FowlCo then sub-contracted the management, operation and crewing of its tug boat to Campbell Shipping Company and Campbell Marine. The two vessels’ subsequent grounding has resulted in Executive Marine initiating Supreme Court legal action to recover what it alleges are “total losses” of $104,500, plus a further $3.593m in ‘special damages’ and $1.554m for purported ‘loss of future income’.

Mr Toote, in his verdict, noted that Executive Marine’s total $5.251m claim is founded on allegations of “negligence and breach of contract”. His ruling, though, only deals with Executive Marine’s demand that FowlCo be ordered by the Supreme Court to disclose information “integral to the resolution of the issues in dispute”, and that it it be given extra time itself to file a defence to the latter’s counter-claim.

“On or about March 19, 2024, the claimant [Executive Marine] was engaged to transport 2,000 tons of sand and 1,000 tons of stones from Freeport Harbour to Bakers Bay, Abaco. In fulfillment of this contract, the claimant engaged the first defendant [FowlCo] for the use of its tugboat to tow the claimant’s barge, which contained both a crane and the cargo,” the verdict recalled.

“The first defendant, in turn, sub-contracted the second and/or third defendants [Campbell Shipping Company and Campbell Marine] to manage, operate and crew the tug boat for the purpose of executing the transport operation.

“On the night of March 26, 2024, the crew lost control of the tow, leading to the grounding of both the barge and the tug boat on a reef near Man-O-War Cay, Abaco. The claimant contends that, as of the date of filing, both vessels remain stranded on the reef,” Mr Toote noted.

“As a consequence, the claimant commenced these proceedings, citing failure to deliver the cargo and damage to its barge, and is seeking compensation for total losses amounting to $104,500. Following this incident, the Port Department issued a formal demand on May 24, 2024, requiring both the claimant and the first defendant to ‘remove the tugboat and the barge from its sunken position’.

“In an effort to mitigate additional legal disputes, the claimant asserts that it was compelled to reimburse its client for the undelivered goods and services.” Executive Marine, in a bid to further its claim, then wrote to FowlCo on September 17, 2024, setting out the additional information it was seeking and warning that, if it was not provided, it would seek a Supreme Court order mandating this be provided.

Besides requesting a copy of the tug boat “management agreement” with Campbell Shipping, Executive Marine also sought “evidence and particulars of Paul Mellor’s request to be placed in direct contact with Captain Venkat Kesav, the captain of the crew managing the tug boat”.

Further details sought included “confirming that Algernon Morley advised Paul Mellor that Campbell Marine was manning, managing and operating the Heroic I” tug boat, while evidence was also demanded to support “the assertion that Paul Mellor requested/insisted that Captain Venkat Kesav deploy the tug boat on March 25, 2024”.

Executive Marine argued that “any delay in providing the information would place them at a disadvantage”, and ultimately moved for the threatened Supreme Court order. It added that this was necessary “to obtain clarity” on FowlCo’s position and secure information that the latter relied on in its pleadings.

FowlCo, though, argued that Executive Marine’s request “constitutes an improper attempt to solicit evidence rather than mere information”. It described the move as “an unwarranted bid for premature discovery” that violates the Supreme Court’s civil procedure rules, and said sped-up discovery was “inappropriate” given how far the case has moved.

Mr Toote found these arguments, advanced by FowlCo’s attorney, Keith Major, to be “persuasive”. He argued that the section in the civil procedure rules relied upon by Executive Marine “was misapplied and incorrectly used to justify an attempt at early evidence-gathering rather than proper procedural disclosure”.

“The claimant’s request for information improperly seeks to extract evidence outside the proper procedural framework,” Mr Toote ruled. “As such, I find that the information sought is more appropriately addressed during the discovery process and not at this juncture.

“Furthermore, even if the first defendant intended to oblige the claimant with the information, rule 34.2 provides that a party has up to 14 days to respond to such a request. The claimant’s demand for a response within two days was therefore unreasonable, inconsistent with the procedural rules, and deprived the first defendant of the full period afforded for compliance.”

Executive Marine, though, fared somewhat better in its request for extra time to respond to FowlCo’s counter-claim. Dawson Malone, of Callenders & Co, who is representing the claimant argued that FowlCo’s pleadings were “evasive and hinder the ability” of his client to effectively defend the counter-claim.

“He contends that this lack of clarity will ultimately impede the court’s efficient management of the case,” Mr Toote said of Mr Malone’s arguments. And he also found FowlCo’s counter-claim “to be deficient due to the absence of specific factual allegations supporting its assertion of negligence as against the claimant [as a Defendant] on counter-claim...

“The first defendant’s counter-claim alleges that the incident was caused by the negligence and/or breach of contract by the third defendant, acting directly and through its employees and agents. Additionally, the first defendant contends that the claimant, through its employees or agents, contributed to the incident in whole or in part and is therefore jointly and severally liable,” Mr Toote added of FowlCo’s counter-claim.

“However, upon review, it is evident that the first defendant’s counter-claim fails to establish a specific cause of action against the claimant. The particulars concerning the claimant’s alleged negligence are drafted as a defence and do not assert a cause of action.

“The assertions are unsupported by particularised facts or evidence. In civil litigation, a counter-claim, much like an original claim, must meet the threshold of clarity and specificity required to put the opposing party on proper notice of the case they are to answer,” Mr Toote added.

“The first defendant’s failure to plead material facts supporting its allegations of negligence against the claimant renders its counter-claim defective.... The absence of specificity in this instance suggests that the counter-claim is speculative rather than properly pleaded.”

As a result, Mr Toote found FowlCo’s counter-claim details “no cause of action” against Executive Marine but then said the “right to strike out” these pleadings was “reserved”.