OSHA charges against LMCS, Paria in limbo

A RULING by this country’s highest court, the Privy Council, will determine whether 12 charges filed by the Occupational Safety and Health Authority and Agency (OSHA) in the Paria diving tragedy after a six-month time limit is valid.

The charges filed against Land Marine Construction Services (LMCS), Paria Fuel Trading Company, and three of Paria’s executive managers arising out of the 2022 diving tragedy will remain on hold pending the Privy Council’s ruling.

In 2023, OSHA lost its case in an unrelated matter when the Court of Appeal held that the complainant only has six months from when the cause of action became known to OSHA to file a claim.

If the Privy Council agrees with the local court ruling, the charges against LMCS and Paria and its three managers will fall by the wayside.

The bulk of the five complaints were against LMCS, with two against Paria, its general manager Mushtaq Mohammed and terminal operations manager Collin Piper and one against technical and maintenance manager Michael Wei.

Sunday marked two years since five LMCS divers were sucked into a pipeline at Paria’s Berth 5 facilities off Pointe-a-Pierre.

Christopher Boodram, Kazim Ali Jnr, Fyzal Kurban, Yusuf Henry and Rishi Nagassar were repairing a 30-inch pipeline when they were sucked in. Only Boodram was able to get out. The others remained trapped inside. Their bodies were removed from the pipeline days later.

Families of the men held a second-anniversary walk in Couva on February 24, calling for justice.

The OSHA’s complaints were filed on December 13, 2023, in the Industrial Court. A report by the Commission of Enquiry (CoE) into the diving tragedy was delivered to President Christine Kangaloo on November 30, 2023, and the report was laid in Parliament on January 19.

LMCS has since filed a cross-complaint against Paria, accusing the state company of causing the accident which claimed the lives of its employees by changing the scope of works they were contracted to undertake. It also maintains it is not liable for what took place two years ago.

LMCS also maintained that it was prevented by Paria from rescuing its workers and saving their lives.

The CoE recommended charging Paria with corporate manslaughter.

“There is not a strong enough case to recommend the prosecution of any one individual. However, the law permits a corporation to be charged with manslaughter." The DPP is reviewing the recommendations of the report.

The report said there was evidence to prosecute Piper and LMCS head Kazim Ali Snr (whose son died in the tragedy) and their firms for offences under the Occupational Safety and Health Act. The report said the deadline to file such proceedings at the Industrial Court was two years after the incident, February 24, but recommended this be extended to three years.

According to the complaints against LMCS, named as the first defendant in the action, between January 7-February 28, 2022, the company committed a safety and health offence when it failed to ensure the safety, health and welfare of its employees.

The particulars of that complaint are that on February 25, 2022, the five LMCS employees were conducting subsea maintenance work at Berth 6 when they were pulled into the No 36 sealine riser by a rapid rise of water.

This resulted in the death of four divers, the complaint said. LMCS was accused of failing to identify and evaluate the risk of a differential pressure condition (or delta P) and failing to implement control measures to manage the risks associated with a delta P.

The second complaint also concerns the delta P hazards and an alleged failure to take these into account by implementing appropriate procedures for subsea work.

LMCS was further accused of failing to provide adequate and suitable driving apparatus for subsea work, “thus exposing its employees to the risk of bodily harm.” The complaint said the self-contained underwater breathing apparatus used by the five divers was prohibited for the diving operations that were being done.

The fourth complaint was that LMCS, as the men’s employer, failed to properly train, instruct and supervise the five divers while the fifth complaint was that it failed to identify, assess and mitigate the hazards associated with subsea maintenance works and working in a confined space.

Complaint against Paria

Two complaints were lodged against Paria Fuel Trading Company.

The first complaint against the state-owned company is that from June 2, 2021, to February 28, 2022, it failed, as an employer, to ensure that individuals not in their employment, namely the five divers, were not exposed to risks to their safety and health.

The complaint said Paria’s undertaking included conducting and mobilising subsea maintenance work. It said Paria engaged LMCS to carry out repairs and refurbishment works; directed LMCS how the No 36 sealine riser was to be cleared; and informed LMCS they would provide personnel to oversee the line clearing.

The complaint said Paria changed the methodology in the line clearing operation of the works to be done by LMCS and failed to reassess the risks associated with such a change, in particular, the creation of a latent hazardous delta P condition.

It also accused Paria of failing to monitor/oversee the works being done by LMCS; failing to provide LMCS with the relevant information on the risks associated with the change in methodology for the line-clearing operation; and failing its duty to oversee the work that was being done by LMCS.

The second complaint accused Paria of failing to prepare or revise an emergency plan in writing based on a risk assessment in line with provisions of the OSH Act. That complaint alleges that Paria failed to review and commend its emergency response plan to address the risk of a delta P hazard involved in the subsea maintenance work, which it hired LMCS to do.

Paria’s managers were accused of neglecting their duties to ensure safe operations, oversee the project and ensure an emergency response plan.

LMCS counter-complaint 

On February 23, LMCS filed ten counter-complaints against Paria.

One of the complaints alleged that from June 1, 2021-February 28, 2022, Paria breached its duty under the OSH Act by failing to ensure that LMCS employees were not exposed to risks to their safety and health.

It said Paria’s scope of work for the work tendered by LMCS included conducting and mobilisation of subsea maintenance work at Berths No 5 and 6.

LMCS claimed Paria engaged LMCS to carry out repairs and refurbishment work and accepted its tender documents, which included its project execution plans.

It said Paria directed LMCS on content removal at No 36 sealine riser and provided personnel to oversee isolation/deisolation, depressurisation/pressurisation and draining/filling product from lines Berth No 5 and Berth No 6.

It further noted that LMCS’s project execution plan (PEP) and its method statements were premised on content removal of the sealine riser No 36 between Berths 5 and 6 but Paria “changed and/or modified the line clearing target and/or ought to have known from its systematic measurements that an excessive amount of content beyond the methodology in the line clearing operation of the works being conducted by LMCS was removed and failed to inform LMCS of this and/or to stop work and reassess the risks associated with such change, in particular the creation of a latent hazardous differential pressure condition.”

LMCS accused Paria of failing in its duty to monitor/oversee the work it was doing and misguided it on the content removal.

LMCS further accused Paria of failing to prepare or revise an emergency plan in writing based on a risk assessment of a latent differential pressure hazard.