Midland Acres to pay cost of shipping 50,000 pounds of emulsion back to supplier
Midland Acres Limited was fined a total of $1,300 after its director, Suresh Prasad, entered pleas of guilty on the quarrying company’s behalf to four charges of importing explosives without a permit. At the conclusion of matters late Tuesday, charges against Mr. Prasad personally were left on file.
Under the Explosives Law, it is an offence to import explosives without the written authorisation of the managing director of the National Roads Authority. The maximum fine is $1,000. Forfeiture of the imported materials is mandatory unless the court has good reasons to direct otherwise.
Defence attorney George Keightley had said last week that guilty pleas would be entered if the question of forfeiture of the materials could be resolved. He indicated that time was an important factor for his client because of a large contract; he also advised that the value of the materials was around $150,000 (Caymanian Compass, 24 August).
Crown Counsel Candia James subsequently provided a basis on which guilty pleas were accepted. She said she was satisfied that Midland Acres’ sub-contractor had the correct licences, permits and facilities to store and use all of the imported explosives, except one item. That one she asked to be forfeited to the Crown.
The item was described in the charges as an emulsion containing Ammonium Nitrate and Petroleum Distillates all weighing a total of 50,000 pounds (net).
The sub-contractor, Precision Drilling and Blasting Services Ltd., could store the emulsion, but not in that quantity, Mr. Keightley accepted.
Since the material was brought into Grand Cayman in February, it has been kept by the National Roads Authority, which by law oversees matters pertaining to explosives. Ms James said the authority’s acting managing director, Edward Howard, had expressed concern about the material, which the court previously heard had a limited shelf life of about six months. To destroy it would be at significant cost and there would be the possibility of negative environmental impact.
“We therefore ask that it be forfeited to the Crown and the NRA send it back to the supplier, but Midland Acres be responsible for the costs,” she told Magistrate Valdis Foldats.
Regarding the other items, Ms James said the Crown would argue that they should not be returned to the importer. However, she noted, in last week’s discussion of what would be good reasons for not forfeiting the items, there had been mention of a legitimate commercial purpose for them and a properly licensed person to take control of them. “Our position is – if you are minded to make an order for non-forfeiture, they should be sent to Precision Drilling, which has permits for proper storage and use,” she said.
Those other items are 100 electric detonators and 2,500 non-electric detonators; 2,000 units of nitro-methane Kinepak Liquid all weighing a total of 480 pounds (net); Ammonium Nitrate – Kinepax Solid all weighing a total of 1,734 pounds (net).
Ms James provided the court with what she referred to as the official summary of what had happened in this case. She said the company is a quarry operation which mines and sells its products. Mr. Prasad, as managing director, purchased and imported various types of explosives, as indicated in the charges. When they arrived, a company employee attempted to clear the items at Customs, but was told he needed a permit.
He spoke with an official at the NRA and was told he was unlikely to get a permit. Because of concerns about the stability of the items, arrangements were made for their storage at various locations. Mr. Prasad wrote two letters apologising for ordering the items before asking permission. One day later, Justin Woods of Precision Drilling applied for the import permit, but it was not granted because Midland Acres had imported the materials, not Precision Drilling.
When interviewed, Mr. Prasad admitted importing the items. He said he was doing it for the first time, in an attempt to speed up the process because it was his first big contract with Dart – referring to a large quantity of fill for building works and roads.
In light of his assertion that he intended Precision Drilling to have the materials once imported, Mr. Woods was contacted. He said Precision Drilling had been blasting for Midland Acres for more than four years. He said about a year and a half ago he was approached about using different blasting agents and their productivity. In January 2012, an agreement was arrived at. After it was formalised there was no further discussion.
Mr. Woods said he was not a party to the importation and did not advise or assist. He said he was contacted after Mr. Prasad faced difficulties at Customs. He said he did not have storage facilities for 50,000 pounds of the emulsion and he was not trained to use the truck brought in to mix it.
Later, Mr. Keightley filled in other details. He said Mr. Prasad had been in discussion with Florex Explosives, Inc. about different blasting materials because blasting deeper than usual was going to be required, and then he had ordered the materials. The attorney agreed that Mr. Woods’ licence would have required supervision for use of the material.
He said his clients did not suggest that the law was draconian or unnecessary: it is a matter of public safety, he agreed. The source of this error was “Haste makes waste, nothing more sinister than that.”
In his decision, the magistrate said the explosives law and regulations set out a comprehensive scheme to protect the public. There is no fee for importing explosives, he noted, because it is not a revenue measure. It is a means of monitoring the process and ensuring that importation is carried out by persons with the proper permits for handling and storage of the items.
“Explosives are inherently dangerous. Every aspect of the law and regulations must be strictly adhered to,” he emphasised.
Midland Acres should have followed its long-standing practice of having its sub-contractor import the items, he said. The sub-contractor is known to the authorities and has a good track record. The sub-contractor had not been trained to mix the emulsion, but could have arranged for an expert to come in for this aspect.
Good reasons not to forfeit materials included their legitimate, planned commercial purpose; no risk of them falling into the wrong hands; the person who was going to deal with them had the proper licences and permits; there was no risk to public safety. Further, the defendant was contrite and had apologised; no duties or taxes were evaded; all goods were disclosed. All of these factors allowed him to find good reasons not to forfeit the materials – except for the emulsion, which he did order forfeited.
The magistrate said he did not see that he had the power to order the company to pay for shipment of the emulsion back to the supplier and he thanked the company for taking the approach that they would pay.