By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

THE Exuma tour boat captain, whose exploding vessel killed one tourist and seriously injured four others, was yesterday ordered to face a new Supreme Court trial on charges of manslaughter and causing harm “by negligence”.

The Court of Appeal, in a unanimous verdict, partially overturned the previous Supreme Court ruling which found that Roderick Watson, who was in charge of the 4Cs Adventure vessel on its ill-fated ‘swimming with the pigs’ excursion, should be acquitted on the basis that he had “no case to answer” due to insufficient evidence.

However, Sir Michael Barnett, the appeal court president, and his fellow justices also upheld the acquittal of Clayton Patterson Smith, owner of both 4Cs and the boat, finding that Justice Jeannine Weech-Gomez was correct to direct his acquittal by the jury on charges of “manslaughter by negligence” and “negligently endangering a vessel”.

Recalling an accident that resulted in the death of Maleka Jackson, a US tourist, while her husband and another visitor had to have their legs amputated, Sir Michael noted that all had booked a ‘swimming with the pigs’ excursion through 4Cs. “The boat was captained by the second respondent, Watson, who did not have a captain’s licence,” he noted. “Watson’s second mate was the eight year-old son of Smith. Everyone was happy and excited to be on this excursion.

“Watson was also in good spirits. Approximately five to eight minutes into the excursion, the boat exploded. As a result of the explosion, Maleka Jackson succumbed to her injuries. Stephanie Schaffer had both legs amputated, Tiran Jackson had his leg amputated, and Paul and Stacey Bender suffered serious life threatening injuries.”

After the Supreme Court directed ‘not guilty’ verdicts for Messrs Smith and Watson, the director of public prosecutions moved to set aside the verdict - and have the case sent back to the Supreme Court for retrial - on six grounds. “Stripped to its bare essentials, the prosecution’s case is that Smith built the boat that exploded, he did not possess the requisite skill and expertise, and he knowingly concealed defects on the boat,” Sir Michael wrote.

“The appellant [director of public prosecutions] alleged that Smith hired his co-respondent, Watson knowing full well that Watson was not in possession of a captain’s licence and he did not have the requisite training, qualifications and knowledge to operate the boat. The appellant also alleged that, as a result of numerous acts of negligence as told by various witnesses, including two expert witnesses, Maleka Jackson died and the other passengers suffered grave permanent injuries.”

Both Messrs Smith and Watson, represented by Murrio Ducille KC, stayed true to their argument that the prosecution failed to produce any evidence that proved they committed the alleged offences. However, the director of public prosecutions, represented by Raquel Whyms and Shaneka Carey, argued that Mr Smith “knew or had knowledge” that work done on the boat was likely to endanger passengers and “that he concealed any defects as to” its safety.

Cadrington Coleby, an engineer who had inspected Mr Smith’s vessel for insurance purposes, told the original trial he was not provided with a certificate of registration despite requesting one and did not glimpse a registration number on the boat. Information on fuel capacity and engine maintenance was also not forthcoming.

“Mr Coleby was asked whether an eight year-old should be responsible for the bunkering of fuel commonly referred to as ‘pumping gas’, and he asserted that it is generally done under the supervision of a licensed officer. He opined that a boat does not explode for no reason,” Sir Michael noted of his evidence.

“There needed to be a defect for that to occur. He stated that you will be able to smell gas spillage, as it is a very noxious fluid, and if an inspection is carried out before every voyage and there is a gas spill it would be detected.... Under cross-examination, Mr Coleby indicated that the boat could be considered seaworthy for tourist excursions, which it was said to be used for.

“He was questioned as to whether the boat was ready to go on the sea, and he said that it could safely remain afloat. He added that the boat was clean and the navigational console equipment, the bilge pump, the fuel pump, the piping, the VHF, the electrical circuitry and battery system, the cathodic protection, the interior inspection of the hull and the framing were all good and the two bilge pumps were new.”

Inspector Dwayne Lewis, of the Royal Bahamas Police Force’s marine support services branch, examined the 4Cs vessel some two to three hours after the June 30, 2018, explosion. “Overall, he firstly opined that the boat was constructed without proper counsel or without adhering to industry standard, certain regulations and best practices,” Sir Michael said of the inspector’s evidence.

“He emphasised that although he examined the boat after the incident, the clear evidence is that the tank was not properly protected in terms of insulation and shock mitigation..... When asked about the likely origin of the fire, Inspector Lewis indicated that ‘it’s not certain where it would have occurred, but the most probable area would be in the area of the tank’.

“In his professional opinion, a boat does not explode for no reason. There are elements that have to be present for there to be an explosion. An explosion needs a fuel source, air and an ignition source (faulty wiring). In addition, the captain should have been able to smell gas spilling since gas has a distinctive odour.”

Ms Whyms, for the director of public prosecutions, argued to the Court of Appeal that Mr Smith knew the boat - which he himself constructed in 2017 - was not built to code. “She submitted that he chose not to have the boat registered because to do so the boat had to undergo a statutory inspection, and Smith knew that it would not have passed the inspection,” Sir Michael wrote.

“For that reason, he did not register or insure it. In addition, the boat should have been registered in accordance with the Commercial Recreational Watercraft Act, Chapter 278. Ms Whyms submitted that the irresistible inference to be drawn is that Smith knew that the boat was not built to the requisite standard, and his decision not to register it was a contrived effort to conceal the defects.”

Mr Ducille, though, countered that no evidence was produced to show Mr Smith ‘knowingly’ used any materials, performed any work or concealed any defects such that the safety of the boat and its passengers would be endangered. And the Court of Appeal agreed, despite the lack of registration and insurance both being breaches of the Commercial Recreational Watercraft Act.

“Ms Whyms invited this court to draw the inference that because the boat was unregistered and uninsured, Smith knew that it was not built to the requisite standard and his actions of not registering and not insuring the boat amounted to a contrived effort to conceal the defects. In our opinion, this is a quantum leap. The fact that Smith did not register and insure the boat cannot mean that he was concealing defects,” Sir Michael wrote.

Noting that the vessel had operated for a year without incident, the Court of Appeal dismissed the appeal against Mr Smith. However, when it came to Mr Watson, the evidence of all four passengers was that the boat was travelling at “excessive speed” almost from the moment it left the dock and exploded within five to eight minutes of leaving shore.

Sir Michael wrote that their evidence was sufficient to establish “a prima facie case of negligently causing harm against Watson”, and the Court of Appeal restored these charges against him. As for “manslaughter by gross negligence”, the appeal court president said this required proof that the vessel was being driven or operated in a reckless manner.

“With respect to Smith, the prosecution has adduced direct as well as circumstantial evidence that he built a boat that was faulty and which did not conform with standard practice,” Sir Michael concluded. “The prosecution’s case is that Smith did not use the skill and precaution that was reasonably necessary under the circumstances in the construction of the boat, and therefore he negligently caused the death of Maleka Jackson by unlawful harm.”

But it was also “acknowledged that Smith was not present and nowhere close by when the explosion occurred”. Because he was not present, and not participating in the act that resulted in the death and injuries, the Court of Appeal agreed that the vessel owner could not be properly convicted on the evidence and that his acquittal should be upheld.

However, Sir Michael added: “With respect to Watson, the prosecution has adduced direct as well as circumstantial evidence that he drove the boat in a reckless manner and, had he been vigilant, he would have discovered that the fuel tank had a leak which caused the explosion and resulted in the unfortunate death of Maleka Jackson by unlawful harm.

“Looking at the ingredients of the offence of manslaughter by negligence, as well as the evidence adduced by the prosecution against Watson, a properly directed jury could properly draw two inferences from the evidence, one consistent with his guilt and the other with his innocence. It is not for the judge to decide which inference is to be preferred. In a situation such as this, the judge ought to have allowed the case to go to the jury.”