15 charges for state-owned oil company, LMCS in diving tragedy

The Occupational Safety and Health Authority and Agency (OSHA) has been accused of a “double-barrelled” attack on the Paria Fuel Trading Company and two of its senior employees in its prosecution arising out of the 2022 diving tragedy.

Paria’s lead attorney Gilbert Peterson, SC, made the accusation after his clients, Paria’s general manager Mushtaq Mohammed, terminal operations manager Collin Piper and the company itself pleaded not guilty to nine of 15 charges against them.

Magistrate Alicia Chankar read out the 15 charges to Paria’s Mohammed and Piper and Land and Marine and Construction Services (LMCS) director Kazim Ali Snr on September 11.

On February 25, 2022, Ali Jnr and four other LMCS divers – Rishi Nagassar, Fyzal Kurban, Yusuf Henry and Christopher Boodram – were repairing a 30-inch pipeline at Paria’s Pointe-a-Pierre facility when they were sucked into it.

Only Boodram managed to get out alive. LMCS was contracted by Paria to repair the pipeline.

Mohammed faces four charges which alleged as a manager of Paria, between June 2, 2021, and February 28, 2022, he facilitated by neglect the commission of a breach of the OSH Act; failed to prepare an emergency plan based on a risk assessment; and failed to ensure workers not in Paria’s employ, including the four divers who died in an incident at its Pointe-a-Pierre facility and the lone survivor, were not exposed to a risk to their safety.

He pleaded not guilty.

He also pleaded not guilty to the four charges against Paria on behalf of the company as its general manager.

The state-owned fuel trading company is alleged to have failed to ensure the five divers were not exposed to a risk to their safety; failed to implement an emergency plan based on a risk assessment; failed to revise, in consultation with worker representatives, an emergency plan; and failed in its duty to make an annual assessment of the risks to the safety and health of those not in its employment.

Piper faced a single charge alleging a failure to ensure those not in Paria’s employ were not exposed to the risks to health and safety. He, too, pleaded not guilty.

Ali, whose son Kazim died in the diving incident, faced three charges that alleged as director of LMCS, he neglected to ensure the safety, health and welfare of all employees, including the five divers; failed to make suitable annual risk assessments; and neglected to provide training, instructions and supervision to ensure the safety and health of his employees, including the five.

LMCS’s charges allege the company failed to make a risk assessment, ensure the safety of its employees, including the five, and failed to provide them with proper training and supervision.

He pleaded not guilty to all the charges laid by chief inspector Franz Bisbane.

The three first appeared before Chankar in July, but the charges were not read then.

At the virtual hearing on September 11, Peterson complained of the “double-barrelled” attack, since similar complaints have been levelled against Paria, LMCS and its principals in the Industrial Court.

His statements came after asking the magistrate to await the outcome of a Privy Council decision involving a case against OSHA involving the time limit by which the agency can bring proceedings for alleged breaches of the OSH Act.

The Court of Appeal looked at the wording of the OSH Act. It ultimately ruled that the six-month limitation period applied to both safety and health offences and summary offences established under the act, while the two-year limitation period applied to civil claims.

Peterson said, “I cannot think of a greater abuse of process than this.”

He said the OSHA did not have to wait for the outcome of the commission of inquiry into the diving tragedy to bring charges, and the ruling in the apex court would have an impact on the case.

“The limitation period is very alive.”

However, Senior Counsel Pamela Elder, who leads a team of attorneys for OSHA, said the Privy Council case had no bearing on the matter in the magistrates’ court.

She explained the rationale for filing complaints in the separate courts, saying OSHA was looking for “punishment” in the criminal courts and “compensation” in the Industrial Court for alleged breaches of the act.

The charges against Paria and its executives were joined, and the same was done for LMCS. However, neither party agreed to have all 15 complaints joined until OSHA provides them with a summary and information to support the charges.

Elder agreed to provide disclosure after both Peterson and Dinesh Rambally, who represents LMCS and Ali, complained they could not agree to the joinder until they see the particulars of the allegations against them.

“LMCS is seeking justice as well. Justice is due process. If you want justice, what could be wrong in sharing the information?” Rambally said.

Rambally also raised the issue of discovery so his clients could launch an argument under section 89 of the OSH Act, which would allow it to “blame another party.”

“We were seeking full disclosure in relation to all the parties against whom complaints have been made.

“From day one, we indicated, if you are the recipient of a complaint, you can make a complaint against whom you believe is the actual offender.

“This is not a case where were are co-defendants and share a common interest.

“I want to be able to advise my clients under section 89(1) to put the blame on another parties. We are not united in other areas.”

He suggested the magistrate defer to the provisions of section 89, as it was for the inspector, not the court, to be satisfied to proceed against the alleged offender without first proceeding against the employer, owner or occupier.”

Rambally said they wrote to OSHA on September 6, but had not received a response.

“It follows the matter should proceed by court deferring to section 89…”

He, too, agreed with Peterson on waiting for the Privy Council case on the limitation period.

The matter has been adjourned to January 16 for a status hearing.

Elder also agreed to provide a copy of the arguments in the Privy Council case to emphasise her position that it did not affect the matter in the magistrates’ court.

The CoE, chaired by Jerome Lynch, KC, delivered a report to President Christine Kangaloo on November 30, 2023, and on January 19, Energy and Energy Industries Minister Stuart Young laid the 380-page document in Parliament.

Over 50 recommendations were made, including charging Paria with corporate manslaughter.

The report added that there was evidence to prosecute Piper and Ali Snr and their firms for offences under the Occupational Safety and Health Act. Labour Minister Stephen Mc Clashie told the Parliament proceedings started in the San Fernando Magistrates’ Court on April 2.

On September 4, attorneys for LMCS wrote to the legal representatives of the families of the diving tragedy advising them to direct their negligence lawsuit to Paria.