The BZ$11.5 million which former Chief Justice, Dr. Abdulai Conteh, had ordered MS Westerhaven Schiffahrts to pay to the Government of Belize for damage to 1.4 acres of the prestigious Belize Barrier Reef has been reduced to roughly BZ$4 million, following a ruling by the Court of Appeal, handed down at a Special Sitting last Monday, May 16, 2011.
Whereas the Court of Appeal, led by Justice Dennis Morrison of Jamaica, upheld the valuation of the reef damage at $2,000 a square meter for 5,755 meters; it ruled that the liability was limited, on account of an international convention to which Belize is a signatory.
That convention is the Convention on Limitation of Liability for Maritime Claims, 1976, crafted in London and registered at the United Nations.
Conteh had ruled last year that the convention does not apply in the case and, therefore, ruled that Westerhaven was liable to pay for the full amount of the damages, but the Court of Appeal ruled that the convention does apply and so they are not liable to pay the full amount to the Government of Belize.
Morrison, supported by Justice Elliot Mottley of Barbados, ruled that, “...GOB’s claim against the ship owners in this case is subject to limitation of liability, pursuant to the provisions of the 1976 Convention.”
The Court of Appeal Justice also held that “...the award made by the Chief Justice was within the range of awards that were open to him on the evidence; and I would therefore affirm the award of $11,510,000.00 to GOB in respect of the damage caused to the Barrier Reef by the grounding of the Westerhaven.”
“Everything hinged on the Convention,” said Michael Young, SC, attorney for Westerhaven.
He told Amandala, in an interview Wednesday, that: “It is a landmark decision, because to the best of our knowledge, and that includes the attorneys involved in the case and even attorneys in England with whom we consulted, it is a first time that a court has decided the question of whether the Convention on the limitation of liability for maritime liens of 1976 applies to accidents involving damage to the reef and so it is a case that is important not only for the laws of Belize, but also internationally...”
The Government had originally claimed $31 million, with a valuation of $5,400 per square meter for the pulverized reef.
A 1996 protocol increasing the ceiling of liability under this Convention could have netted Belize up to $10 million, much closer to the award that had been granted by Conteh, said Young. Belize, however, cannot benefit from that protocol, because it has not acceded to it.
The Court of Appeal noted that that same year, in 1996, the Barrier Reef—the longest in this hemisphere—was named by the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) as a ‘World Heritage Site’.
According to Michael Young, in virtually all cases, the parties would settle out of court; but this one went to litigation.
“There was some talk of possibly exploring settlement, but that talk never went beyond talk,” said Young.
Lois Young, SC, lead attorney for the Government, told Amandala Wednesday that she accepts the Court of Appeal ruling that the limited liability convention applies to the loss of human life, but finds it difficult to accept that it applies to reef damage.
She indicated, also, that the rulings at the Supreme Court and Court of Appeal have effectively established a benchmark value for the reef at $2,000 a square meter.
The attorneys said that the appellants are not liable to pay further costs to the government, because they had paid roughly US$2 million prior to the appeal case.
Lois Young, SC, added that the government needs to sign the 1996 protocol, amending the Convention, which could have at least gotten GOB $2 million more in the Westerhaven case.Amandala