Kirk Sea Tours fined after accident

Sun Runner capsized last year

Kirk Sea Tours Ltd. and its operations manager Bradley Potgeiter were each fined $750 for negligently conveying passengers on a vessel in such a state as to be unsafe.

The unsafe vessel was the Sun Runner, which capsized in North Sound on 7 April, 2006, with 55 passengers aboard.

When the boat captain pleaded guilty in January 2007, Crown Counsel Trevor Ward told the court that tragedy had been averted because of the prompt response by nearby vessels whose crews assisted in the rescue operation. Four passengers were reported as receiving minor injuries, while another attended George Town Hospital exhibiting shock symptoms.

Inspection after the accident showed that the removal of a macerating pump by staff of Kirk Sea Tours a few days before had resulted in the valve leading to the through-hull fitting being left open. This was a major contributing factor to the vessel taking on water rapidly (Caymanian Compass, 18 January, 2007).

Owner Kirk Hendricks appeared on behalf of the company and entered the guilty plea, avoiding what had been set down as a three-day trial.

Defence Attorney David McGrath represented Potgeiter. He said Potgeiter, 35, accepted he had responsibility for overseeing the maintenance of the company’s vessels. His plea was on the basis of his overall supervisory role; his negligence was to the extent of failing to supervise those in his charge.

Mr. McGrath asked that no conviction be recorded against his client because it could affect his ability to get a work permit here.

He described the charge as regulatory and verging on the quasi-civil. In terms of culpability, it was probably at the bottom end and trivial.

Chief Magistrate Margaret Ramsay-Hale rejected the ideal of the offence being trivial. The law is concerned with public safety; people being transported at sea for entertainment is part of Cayman’s tourist industry, she commented.

She adjourned sentencing until the next day so that she could review last year’s proceedings against the boat captain, who had been fined $750.

At that time, the maximum sentence was a fine of $2,000 and imprisonment for up to two years. The magistrate had agreed with Defence Attorney Lee Freeman that the threshold for custody had not been reached.

In sentencing Potgeiter and Kirk Sea Tours Ltd, the magistrate first dealt with Mr. McGrath’s request not to record a conviction against the operations manager on the grounds that it would destroy his good character and conceivably prevent his from working in Cayman. Mr. McGrath had said this was a consequence out of proportion to the seriousness of the offence.

The magistrate agreed that the offence was regulatory rather than criminal, but she did not agree that it was trivial. The provisions were intended by Parliament to protect public safety – in particular the safety of persons carried on seagoing vessels.

‘Their protection is so important that the level of fault required by the section is negligence only,’ she pointed out.

As the manager, Potgeiter had the responsibility for ensuring the proper maintenance of the boats. ‘That his failure to do so did not result in death or serious harm to any of his passengers is a matter of luck,’ the magistrate emphasised.

Potgeiter had also exposed the company to liability and to criminal prosecution. That was not trivial.

She said she regretted not being able to accede to the request not to record a conviction. It would be entered on the record.

As for the company, its liability was founded on the criminal act of those who manage its affairs. It liability was not greater than the liability of those who manage it. The penalty for the company was therefore on par with the penalty imposed on its manager.

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