LMCS: We have been transparent in our conduct on diving tragedy

Land and Marine Contracting Services Ltd (LMCS) – the company that employed the five men involved in the Paria diving tragedy in 2022 – insists it “has been and continues to be” transparent in its conduct.

The company responded to separate negligence and personal injury claims against it and Paria Fuel Trading Company Ltd in a statement on October 28.

“LMCS has observed the guidelines and processes of the pre-action protocol procedure laid out under the Civil Proceedings Rules.

“It has put forward a very substantive defence to claims of inter alia negligence and breach of statutory duty brought by the divers/estates.

“LMCS has also issued pre-action claims against Paria and all parties concerned have been served with the same.

“They are, therefore, aware that LMCS has a powerful ancillary claim of its own against Paria.

“LMCS has been and continues to be very transparent in its conduct as it relates to this most unfortunate and tragic incident involving the divers," the company’s attorney Dinesh Rambally said in the statement.

Newsday has sought a comment from the company on the newest claims.

The claims were filed by Christopher Boodram, the surviving diver of the 2022 diving tragedy at Paria Fuel Trading’s berth in Pointe-a-Pierre, and Vanessa Kussie the widow of one of the four divers who became trapped in a pipeline while repairing it.

The claims were filed in the Supreme Court’s San Fernando sub-registry on October 14. Boodram and Kussie, the widow of Rishi Nagassar, whose body was removed from the 36-inch pipeline on March 3, are seeking compensation from Paria and LMCS. Boodram’s claim has been assigned to Justice Christopher Sieuchand while Kussie’s has been docketed to Justice Avason Quinlan-Williams. Boodram and Kussie are represented by a team of attorneys from Freedom Law Chambers, led by Anand Ramlogan, SC.

The claims are separate from the 15 criminal charges against managers of Paria and LMCS’s owner Kazim Ali and 12 Occupational Safety and Health (OSH) charges against the companies and its top managers in the Industrial Court.

In those matters, Paria and its managers as well as LMCS and Ali have been accused of violating the Occupational Safety and Health Act. The charges filed include failure to properly assess risks and failure to prepare and revise an emergency plan.

The divers – Kazim Ali Jr, Yusuf Henry, Rishi Nagassar and Fyzal Kurban – died on February 25, 2022, after being sucked into a large pipeline they were repairing. Boodram survived.

While repairing the riser, the hyperbaric chamber flooded, and the divers were sucked in. Boodram’s claim said when the water level in the habitat rose suddenly and quickly, he attempted to swim out but swirled in the chamber and felt the sensation of being flushed down the pipeline.

“His body was hitting the sides of the pipe and the slushy debris on the walls. His lungs were making a ‘crackling’ noise and his throat hurt from how hard he was trying to hold his breath as he was engulfed in water.”

Boodram dragged himself along the pipeline after encountering an air pocket before he heard his colleagues call out. His claim said he eventually met with them and Ali and Henry told him they were injured. Kurban told him Nagessar was with him, breathing but not responding.

“Despite the immense fear and pain he felt at that moment, the claimant tried his best to think as logically as he could have at the moment, and he directed his friends to form a chain with their bodies to drag each other along the pipeline to get help.”

While navigating the confined space, the claim said the men “rested, prayed and clung to hope” that they were headed in the right direction to berth #6 and not #5 which had no access to the surface at that end.

Boodram decided to swim ahead for help “as he was the only hope of survival for himself and his friends” and eventually reached the surface.

“He was drenched in oil; his eyes were burning and he could not see.”

“The claimant was overwhelmed with sadness and hurt because he thought that there would have been a rescue team and persons ready and waiting to pull him out at the top. However, to his despair, there was no one.”

Eventually, two rescue divers pulled Boodram out of the pipeline. “The claimant came out of the water around 5.30 pm. The other men were still alive in the pipeline at that time.

“The claimant pleaded to all those around him and begged them to rescue the other divers because they were not too far behind and they were still alive.”

The claim alleged while other divers volunteered to rescue the trapped men, Paria officials prevented them from entering the water without a permit.

“The claimant later became aware that the Coast Guard was also stopping divers and boats from entering the water,” Boodram’s claim alleges. It also said the Coast Guard did not have the necessary diving equipment and although his brother loaned them his, they decided “that they would not be diving to conduct a rescue.’

It also said one of the divers who rescued him, Ronald Ramoutar, had defied orders to save him.

Boodram was taken to the San Fernando General Hospital but his lawsuit said he was not taken to a decompression chamber in La Romaine until 14 hours after he was rescued. While at home, he learned of his friends’ death.

The claim alleges 29 failures by Paria and 25 against LMCS, key among them are the alleged failure to ensure LMCS was competent and could do the job safely with the required equipment; and failure to plan for a Delta P scenario (a latent hazardous differential pressure condition), among others.

Boodram’s claim said he intended to rely on the November 2023, report of the Commission of Enquiry (COE), led by King’s Counsel Jerome Lynch, that recommended prosecutors file corporate manslaughter charges against Paria, saying it made “little or no attempt to rescue” the divers.

In a statement on July 30, Director of Public Prosecutions Roger Gaspard, SC, had considered the Paria CoE report and identified “ the only possible non-regulatory criminal offence which could have been committed as being manslaughter by gross negligence.”

He said he advised Police Commissioner Erla Harewood-Christopher to “commence a criminal investigation, to determine whether there is sufficient evidence to charge any individual or corporate entity with manslaughter by gross negligence.

"An investigation is required as the commission's report does not itself constitute evidence, and it is materially deficient in proving all of the elements of the offence to be investigated."

The DPP's statement added that Harewood-Christopher told him she had appointed an officer to lead the investigation.

In response to the DPP’s statement, Paria said it was seeking the appropriate legal advice and “will be guided” by the advice it received on any investigation.

Boodram’s claim also identified the 15 injuries he sustained which include 80 per cent permanent partial disability.

“The claimant undoubtedly faced an incredibly traumatic experience resulting in profound pain, suffering, and a substantial loss of amenities.

“This distressing incident has had a pervasive impact on various aspects of his life.

“He endured unimaginable suffering…The once-beloved sea, a source of love and tranquillity for the claimant, has transformed into a constant reminder of this harrowing incident.

“He now finds himself unable to be near the sea, avoiding beaches, which used to bring him solace. Moreover, the direct view from his home, overlooking berths #5 and #6 where the incident occurred, adds to his distress, making it challenging for him to engage in routine activities like spending time in his own backyard with his family.”

Boodram's claim also adds, “The burden of being the sole survivor, forced to abandon his friends in need, has inflicted profound guilt on the claimant.”

In addition to compensation for pain, suffering and loss of amenities, Boodram’s claim also seeks compensation for loss of earning capacity and future prospects since he “has been unable to work within his field as an underwater/deep sea diver due to severe trauma he has endured.”

“It is highly unlikely, in light of the extent of the injury and trauma the claimant has endured, that he would be able to return to his job as an underwater diver.” It also said it was unlikely he would continue to fish which earned him an average income of $7,000 a month before the incident. His total wages as a diver and fisherman were quantified at $438,927.45 since February 2022.

He is also seeking repayment of his medical expenses and future medical care.

Kussie, in her claim, also filed on behalf of their son, alleged Nagassar died because of Paria and LMCS’s negligence. Among the 48 alleged failures by the company associated with the job, Paria is also accused of failing to rescue/save Nagassar’s life while LMCS was accused of failing to identify Delta P hazards, and failing to have correct and proper equipment, among others.

Paria was also accused of failing to provide Nagassar’s family with assistance after the incident.

Nagassar’s widow and son are claiming compensation for pain, suffering loss of earnings, and funeral expenses, and aggravated and exemplary damages. It also includes a dependency claim.

“The claimants have endured a level of distress that goes beyond the ordinary…”

“Paria has not offered any financial support or assistance to alleviate the claimants’ financial burdens or emotional distress. The treatment and attitude of Paria toward the claimant's family, as highlighted in the COE findings, lacked compassion and was deemed insensitive and inhumane.”

LMCS: Paria to blame for disaster

In response to pre-action protocol letters from Freedom Law Chambers and attorneys for Kurban and Henry’s families, as well as to Paria in September, LMCS’s attorneys Dinesh Rambally and Kamini Persaud-Maraj, maintained that the differential pressure event (Delta P) was solely attributable to the negligence, and/or breach of statutory duty on the part of Paria.

It accused Paria of unfathomable acts and conduct,” and advised the families to direct their negligence lawsuit to Paria.

While they refuted any “imputation of culpability attached to it by the Commission of Enquiry (CoE),” LMCS denied liability and said it was relying on “Paria’s failure to fulfil its non-delegable duties to the safety of LMCS Ltd and its employees resulting in an accident and sufferable deaths and injury of the survivor.”

The letter admitted LMCS was responsible for compensating its workers’ families and Boodram under the Workmen’s Compensation Act. However, the company claimed it was forced to bring action against its insurer Trinre Ltd, after it failed to respond to its claims filed a month after the incident.

“Despite all claims and calculations being submitted for payment both Trinre Ltd and/or its agent have gone completely silent,” Persaud-Maraj said.

“LMCS is therefore not responsible in any way for the delayed compensation to the estates and injured parties.”

Persaud-Maraj said the compensation owed to its deceased workers’ families and Boodram was clearly and precisely calculable under the legislation.

She noted that LMCS has initiated action to facilitate the payments.

“Workmen’s compensation proceedings have since commenced and since Paria is the party wholly responsible for the accident LMCS is entitled to defend accordingly and pursuant to the Workmen’s Compensation Act to join Paria in those proceedings for the commissioner to determine liability,” Persaud-Maraj said.

She also accused Paria of engaging in “deceptive” tactics.

“The accident was caused by the gross negligence of Paria and was not an event that the contracting parties agreed could occur but whose timing and impact they cannot control. Force majeure was therefore inapplicable to this matter,” she said.

Persaud-Maraj claimed Paria was obligated to indemnify LMCS against the proposed legal action based on its alleged role and contractual obligations.

She also responded to the negligence claims made against LMCS and Paria by the victims’ families and Boodram.

“Paria’s (not LMCS’s) action was the base reason for the root cause of the accident,” she said.

Persaud-Maraj suggested that even if her clients were partially responsible for the initial accident as alleged, Paria’s handling of the response absolved it.

Persaud-Maraj also sought to challenge claims made by Paria in July that LMCS was frustrating its efforts to compensate the victims’s families and Boodram and avoid litigation.

“LMCS is therefore being used by Paria as a scapegoat to unscrupulously delay compensation and further aggravate and punish the deceased workers’ estates and the sole survivor in that regard,” Persaud-Maraj said.

“We also hold the strong view that morally, legally and on the simple premise that Paria is a State-owned-operated entity which ought to lead corporate citizens by example, Paria ought to have accepted liability and acted expeditiously (whether prior to or subsequent to the Report of the CoE) to ensure that your client’s claims were duly considered and settled.”