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Privy Council Vindicates Bahamasair Personnel

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bahamasair's maintenance staff were yesterday vindicated by the highest court in the Bahamian judicial system, which ruled they were not to blame for an April 20, 2007, plane crash.

The London-based Privy Council, in reinstating the original Supreme Court verdict by then-chief justice, Sir Michael Barnett, found Canadian aircraft parts designer/manufacturer, Messier-Dowty, responsible for the landing gear collapse suffered by one of Bahamasair's Dash-8 aircraft when it arrived in Governor's Harbour, Eleuthera.

As a result, it rejected the company's allegation that "poor maintenance" by Bahamasair staff was responsible for a crash which impacted 48 passengers plus flight crew on the plane.

The Privy Council ruling, which also restored a $3.5m damages award against Messier-Dowty and in favour of the national flag carrier's insurers, was highly critical of the "fundamentally wrong approach" taken by the Court of Appeal in overturning Sir Michael's original ruling.

It found the Court of Appeal had breached a key judicial rule, which stipulates that all appeal courts should be reluctant to interfere with "findings of fact" by trial judges - who will have read all the documents, and observed the behaviour of witnesses under cross-examination - unless there is a compelling reason to do so, such as the discovery of fresh evidence.

Ruling that Sir Michael was entitled to reach his conclusions, the Privy Council said there was no cause for the Court of Appeal - led by appeal justice Jon Isaacs - to re-examine the evidence anew as it had done.

The Supreme Court, in its original October 2014 ruling, found that "negligence" by Messier-Dowty, which manufacturer and supplied the landing gear on the Dash-8, had caused its collapse.

Apart from problems in manufacturing the actual part, Sir Michael also found the Canadian firm had failed to inform Bahamasair that the "damper ring" - a key component in the landing gear - suffered from "fragmentation" problems.

"Sir Michael Barnett found that the landing gear was inadequate for the number of times that it was required to perform," the Privy Council judgment said yesterday. "He found further that Messier, despite knowing that the landing gear was inadequate, had failed to warn Bahamasair of that inadequacy.

"He awarded Bahamasair the sums which they had claimed for the loss of the aircraft and the cost of the investigation. The Chief Justice also rejected a claim by Messier that the failure of the landing gear was due to the negligence of Bahamasair in relation to its maintenance."

This, though, was overturned by the Court of Appeal, which ruled that there was "no warrant for his [Sir Michael's] finding that Messier had failed to warn Bahamasair of the inadequacy of the landing gear".

Multiple investigations were conducted into the Governor's Harbour crash. These probes, including one by the then-Civil Aviation Department's Flight Inspectorate, found that the shock strut which failed on the Dash-8 was inspected and replaced almost one year before the crash on May 19, 2006.

"But no entry was found in the maintenance records that showed that, in replacing the shock strut outer cylinder, Bahamasair had followed the proper procedure and used the correct maintenance manual reference for the work that had been carried out," the Privy Council noted. "Various other deficiencies in the record-keeping of Bahamasair were identified."

Bahamasair's attorneys then commissioned an analysis of the accident's cause, which was completed in September 2013. It "quickly scotched the suggestion that the accident might have been caused by the absence of a damper ring", as fragmented pieces of this part were found on the Governor's Harbour runway following the accident.

David Hall, the accident investigator who wrote the analysis, "also reviewed maintenance records and file materials, and concluded that these testified to an appropriate standard of care by Bahamasair maintenance personnel for the work performed on the left main landing gear of the aircraft".

Sir Michael's verdict found that Messier-Dowry had failed to notify Bahamasair of the need to upgrade the "damper ring" and other landing gear components in the wake of a 1996 crash in Canada, which resulted in modifying these parts;

Aaron Jones, a materials engineer, told the Supreme Court trial "that the accident would have been avoided" had Bahamasair's Dash-8 been upgraded with the new parts.

But John Langston, director of maintenance for National Aircraft Services, testified on Messier-Dowty's behalf that the accident resulted from improper installation and service by Bahamasair's maintenance staff and ground crew.

The Privy Council described Mr Langston's theories as "essentially speculative" and "largely based on what he considered to be a lack of records maintained by Bahamasair". These assertions, its judgment said, were "directly contradicted" by Bahamasair's maintenance director, Tracy Cooper, who is now the airline's managing director.

Mr Cooper said he was satisfied that all necessary maintenance work and procedures had been carried out on the Dash-8 that crashed. And, while Transport Canada issued a directive calling attention to the landing gear problems one month after that work was completed, Mr Cooper said it "did not require or recommend the immediate replacement" of the faulty parts.

"In the absence of any alert from Messier, therefore, there was no reason, said Mr Cooper, for Bahamasair to apprehend that these component parts needed to be replaced before the next scheduled maintenance date, which was 30 April 2007," the Privy Council judgment said.

"In his judgment, Sir Michael expressed himself satisfied that, if Messier had warned of or made recommendations about the need to replace the old upper bearing and damper ring, Bahamasair would have done so.

"If these parts had been replaced, the Chief Justice found, accepting the evidence of Mr Jones, the accident would not have happened. He held that Messier were under a duty to give such a warning."

Messier-Dowty had alleged "that insufficient hydraulic fluid was present in the shock strut, or that there was no damper ring at the time of the accident", but no evidence to support these claims was provided.

Sir Michael's ruling was overturned by the Court of Appeal, but the latter was criticised by the Privy Council for conducting "its own analysis" of the evidence when none of the Supreme Court's findings was "obviously wrong".

"Appeal justice Isaacs embarked on an analysis of the evidence as if the Court of Appeal was a first instance tribunal," the Privy Council said.

"The Board does not consider it either necessary or appropriate to examine minutely each item of evidence which led the Court of Appeal to reverse the findings of the Chief Justice, for they consider that this was a fundamentally wrong approach."

Bahamasair's insurers were represented at the Privy Council hearing by Krystal Rolle and Wallace Rolle, from the Rolle & Rolle law firm.

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