AIR CARIBBEAN LTD. v.

AIR TRANSPORT LICENSING AUTHORITY ET

AL
https://carilaw.cavehill.uwi.edu/permalink/carilaw6800
Subject: Administrative law
Citation Number: TT 1998 HC 84
Country: Trinidad and Tobago
Court: High Court
Date: June 18, 1998
Judge: Hosein, J.
Suit No.: HCA No. 707 OF 1998
Sub-subject: Legitimate expectation - Applicant argued that the respondent represented to and
agreed that it would be the sole operator and would have exclusive rights to all
domestically generated passenger and freight traffic between Trinidad and Tobago
and in reliance thereon it had expended the sum in excess of TT$15,000,000.00 - R. v.
DCC ex parte Baker [1995] 1 All E.R. 73 considered - Court held that no
representation was made and those that were made were not clear and
unambiguous.

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Full Text
Appearances:

Mr. A. Alexander S.C. and Mr. A. Fitzpatrick for applicant

Mr. M. Daly S.C., Mr. E. Prescott, and Mr. R. Harnanan for respondent

Mr. E. Thorne Q.C. and Mr. J. Jeremie for Interested Party

HOSEIN, J.: The Facts

In the year 1991 the government of Trinidad and Tobago appointed a committee which became known as the
Airbridge Committee. The Airbridge Committee was comprised of several senior public servants, as well a
s Mr. Frank de Matas and Dr. Alison Williams. Mr. de Matas was subsequently appointed chairman of the A
irbridge Committee and was the chairman of the respondent for the period 1986 to January 1995. Dr. Will
iams is now the chairman of the respondent. The Airbridge Committee was mandated to invite proposals fo
r the operation of a scheduled passenger and cargo service between Piarco and Crown Point Airports, to
evaluate such proposals and to make recommendations to the Cabinet. To this end the Airbridge Committee
issued a Request for Proposals.

The request for proposals invited proposals from persons who were interested in being designated as the
"the domestic operator". It was written in language that was far from satisfactory. It however contempl
ated the selection of a domestic operator which could e been Trinidad and Tobago BWIA International Air
way Corporation ("BWIA"), or a combination of BWIA and another airline, or an airline other than BWIA,
in its own right. In the event that a proposal was accepted that did not include the participation of B
WIA, then that proposer and BWIA were required by the request for proposals to negotiate, under the joi
nt supervision of the respondent and the Airbridge Committee a harmonized schedule. In such a case BWIA
was to be excluded from participating in flights that originated at Piarco and terminated at Crown Poin

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 t and vice versa (Tobago domestic flights) and restricted to ferrying passengers to and from Piarco and
Crown Point an its international flights only (Tobago international flights).

BWIA was represented on the Airbridge Committee. It did not submit a proposal. The absence of a submiss
ion by BWIA of a proposal reduced its participation under the request for proposals to negotiating a ha
rmonized schedule with the applicant under the supervision of the respondent and the Airbridge Committe
e.

On the 8th July 1991 Mr. Leslie Lucky Samaroo, a promoter of the applicant, submitted on its behalf a p
roposal to the Airbridge Committee. On the 26th November 1991 the applicant was incorporated as a priva
te limited liability company with the principal object of providing an air service between Trinidad and
Tobago. The proposal submitted on behalf of the applicant clearly contemplated that the applicant would
be the sole provider of air passenger services on the Tobago domestic flights.

The total air passenger traffic to and from Piarco and Crown Point in 1990 was in the vicinity of 345,0
00 passengers. In its proposal the applicant, estimated that it was likely to attract some 276,000 pass
engers representing same 80 percent of the total traffic which it proposed to carry in on Tobago domest
ic flights. The applicant also proposed that BWIA should have the benefit of 15 percent of the total tr
affic which should be accommodated on its Tobago international flights and another airline LIAT would b
e allowed 5 percent of the total traffic.

In 1991 representatives of BWIA and the Airbridge Committee orally represented to the applicant that BW
IA and the government of Trinidad and Tobago were desirous of BWIA discontinuing its flights which orig
inated and terminated at Piarco and Crown Point respectively. By letter dated the 31st January 1992, th
e Permanent Secretary in the Ministry of Works and Transport informed the applicant that the government
had agreed that "steps be taken to enter to negotiations" with the applicant "with a view to concluding
a contract for the provision of a domestic air service" between Piarco and Crown Point.

Shortly thereafter, Cabinet appointed a committee which it purported to authorise, to negotiate with th
e applicant a contract for the provision of domestic air services between Piarco and Crown Point. This
Cabinet committee was also comprised of senior public servants and included Mr. de Matas and Dr. Willia
ms. Representatives of the applicant met with the Cabinet committee n the 16th April 1992. At that meet
ing the applicant for the first time requested the exclusive right to ferry all domestically generated
passenger and freight traffic. The applicant therefore expanded on the scope of the request made in its
proposal to the Airbridge Committee. The applicant justified this new request on the grounds of BWIA(s
disinterestedness in continuing on the domestic route as well as financial viability of the applicant c
ould be achieved only if it was granted exclusive rights on the route.

Following on the meeting, by letter dated the 8th July 1992 the applicant was given the assurance by th
e Cabinet committee that the negotiations would be conducted "in accordance with the provisions of the
request for proposals" and on "the basis of exclusive domestic cabotage rights for scheduled passenger
and freight between the two airports". By letter dated the 5th January 1993 under the hand of the then
Minister of Works and Transport the applicant was designated "as the carrier for domestically generated
cargo and passenger traffic between Piarco International Airport and Crown Point International Airport
for a period of seven (7) years i.e. from March 9th, 1993 to March 8th, 2000".

Thereafter the applicant expended a sum of money which it says is in excess of T.T. $15,000.000 in esta
blishing its operations. Meanwhile, by letter to the Permanent Secretary Ministry of Works and Transpor
t dated the 4th March 1993, the applicant requested confirmation that it had "exclusive rights to all d
omestically generated passenger and freight traffic between Piarco International Airport and Crown Poin
t International Airport(.

By letter dated the 15th March 1993 the Permanent Secretary, Ministry of Works and Transport advised th
e applicant that Cabinet on the 17th June 1992 noted that "the domestic air service between Trinidad an
d Tobago be provided by an appropriate carrier with suitable short range aircraft dedicated to the rout
e, the said carrier to be guaranteed a suitable majority percentage of the passenger traffic necessary
for financial viability of the route". The letter also indicated that Cabinet had already noted that th
e "financial viability of Air Caribbean Limited's proposal for provision of a domestic air service was
dependant on a guarantee of a minimum of 80 percent of passenger traffic on the route" and (Cabinet's a
pproval has already been obtained with regard to the guaranteed percentage of traffic or the airline" a

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 pproval has already been obtained with regard to the guaranteed percentage of traffic or the airline" a
nd the "the information available indicated that the locally generated traffic is 80 percent of all tra
ffic on the route".

Under cover of a letter dated 1st July 1993 the applicant forwarded to the respondent an application fo
r a licence and drew its attention to the "terms that have been agreed to by Air Caribbean and the gove
rnment of Trinidad and Tobago". The letter also noted that the applicant "shall have exclusive rights i
n respect of passenger traffic and cabotage and to the scheduled service on the domestic route between
Trinidad and Tobago". The respondent granted to the applicant two licences, to operate scheduled air se
rvices, the first dated the 5th August 1993 and the second dated 14th August 1995. Both licences were i
ssued subject to conditions which were set out in their overleaf. However neither of them made any refe
rence to the issue of exclusivity which engaged the attention of the Airbridge Committee and the Cabine
t Committee.

Since the issuance of the licences by the respondent the applicant has vigilantly protected what it per
ceived to be its rights on the route. Prior to commencing its service on the 8th August 1993 as well as
thereafter the applicant made written representations to the respondent, in respect of BWIA, which had
been granted certain extensions to operate on the domestic route to Piarco and Crown Point respectively
. In one instance by letter dated the 27th August 1993 it went to the extent of confirming to the respo
ndent that it had no objection to BWTA operating until the 7th November 1993 subject to certain stated
conditions. In addition, on two occasions it commenced proceedings in High Court Actions nos. 3743 and
895 of 1994 respectively to enforce its claims in respect of the route. In High Court Action no. 3743 t
he applicant's application for interim injunctive relief was refused. On another occasion in High Court
Action no. 895 the applicant succeeded in obtaining an injunction requiring the respondent to suspend t
he permission granted to BWIA to operate flights between Piarco and Crown Point. Bath of these matters
were settled by consent orders, which did not resolve the issues central to this dispute.

Thereafter in the latter part of 1997, the respondent, in the face of strenuous objection by applicant,
granted to another airline LIAT a licence to operate between Piarco and Crown Point. However, the respo
ndent orally informed the applicant that LIAT would not operate any scheduled flights and consequently
the issue was not taken any further. Consequently since the 31st March 1994 until the 27th March 1998,
when BWIA commenced its operations pursuant to a licence granted by the respondent, the applicant was t
he sole operator of scheduled services between Piarco and Crown Point Airports.

On the 4th March 1998 the applicant received a letter of even date from the respondent inviting it to a
ttend a meeting an the 11th February 1998 for the purpose of holding discussions relevant to the issue
of the Domestic Airbridge". At that meeting, as well as by letter of the 16th March 1998 and at a meeti
ng of the 18th March 1998 the applicant raised objections to the application by BWIA International Airw
ays Limited (also referred To as BWIA), the successor company to BWIA to operate scheduled services bet
ween Piarco and Crown Point Airports.

The applicant's objections focused on a number of issues which could best be summarized as follows:

(i) The Cabinet committee, the Government of Trinidad and Tobago and the respondent represented to and
agreed with the applicant that the applicant would be the sole domestic operator and would have exclusi
ve rights to all domestically generated passenger and freight traffic between Trinidad and Tobago and t
hat in reliance thereon the applicant had expended a sum in excess of TT$15,000,000.00 in setting up it
s operations;

(ii) BWIA was in a dangerously poor financial position arid to this end referred the respondent to a nu
mber of newspaper clippings;

(iii) BWIA showed no interest in the domestic route in 1991 and 1992;

(iv) The applicant had been the sole provider of scheduled domestic service between Trinidad and Tobago
and had operated in an efficient, punctual and regular manner;

(v) BWIA's application as presented to the applicant by the respondent involved uneconomical overlappin
g. The applicant explained that dais was self evident from a comparison of the departure and arrival sc

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 hedules of the applicant and that proposed by BWIA to the respondent to and from Piarco and Crown Point
Airports respectively. The applicant felt that the schedules between the two airlines when not the same
, were so proximate to each other that it would result in the decrease in the availability of passenger
s and freight to the applicant, logistical difficulties at the respective airports and a consequential
adverse financial impact on the applicant that would force it to reduce the services offered;

(vi) The MD 83 which BWIA proposed to use on the route was uneconomical given the short duration of the
flight;

(vii) The applicant was of the view that the presence of BWIA operating the MD 83, with a seating capac
ity of 120 to 140 seats would create a severe aver capacity, since the demand an the route had historic
ally been met by small to medium size aircraft.

The respondent responded to these objections indicating

(i) that the public was requesting the presence of an additional airline on the route;

(ii) the applicant's proposal submitted in the request for proposals process required that a minimum of
80 percent of all passenger traffic on the route which had been guaranteed by the respondent [and which
] would be preserved;

(iii) it had never represented to, nor agreed to grant to the applicant the exclusive rights to all dom
estically generated passenger and freight traffic an the route.

In reply to the response offered by the respondent, the applicant indicated, that it had always a put a
n additional flights to meet the demands of the travelling public, and was prepared to continue to do s
o, and that its original proposal was for exclusive rights to domestic flights an the route. In additio
n, the applicant contended that the economic analysis contained in its proposal submitted pursuant to t
he request for proposals process (reflected the applicant's perception of the percentage of all traffic
between Trinidad and Tobago at that time which was attributable to domestic flights".

On the 18th March 1998 the respondent issued a licence to BWIA to operate two return trips on Mondays a
nd Fridays between Crown Point and Piarco Airports from the 18th March 1998 until the 31st October 1998
("the March decision(), and the applicant was so informed. Meanwhile by letter dated the 23rd March 199
8 BWIA sought the respondent's (consideration for an exchange to operate the Thursday 9th and Tuesday 1
1th April flights". The letter of the 23rd of March 1998 made reference to a previous letter of the 20t
h March 1998 which is not in evidence. By itself, the letter of the 23rd March 1998 lacks particularity
and coherence.

By letter dated the 25th March 1998 the respondent invited the applicant to a meeting on the 1st April
1998 "to hold continuing discussions together with BWIA on the matter of the POS-Tobago Airbridae". Apa
rt from this generalized reference to discussions this letter did not contain any indication of the pur
pose of the meeting. By letter dated the 26th March 1998 the applicant declined attendance at the meeti
ng in language that suggests that it was not aware that the meeting was being convened to discuss a var
iation of BWIA's licence. The applicant was not represented at this meeting. However an inquiry was bei
ng made by telephone on the 1st April 1998 to the applicant's office and the respondent was advised tha
t the applicant would not be attending the meeting. On the 1st April 1998 the respondent then proceeded
to grant approval to BWIA to operate two return flights on the route namely the 9th April 1998 and on 1
1th April 199$ ("the April decision").

2. The Response of the Decision maker

The respondent's answer to the applicant's complaint in respect of the March decision was to describe i
n its evidence a process which entailed a meeting with the applicant followed by the submission of the
letter by the applicant of the 16th March 1998 containing (observations objections and analyses". The r
espondent den observed that this was followed by a meeting on the 18th March 1998 at which the applican

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 espondent den observed that this was followed by a meeting on the 18th March 1998 at which the applican
t was represented and at which the respondent "gave consideration to the representation made on behalf
of the applicant and to the service being provided to the public and was satisfied that the grant of a
licence to BWIA would not result in uneconomical overlapping nor adversely affect the viability or prof
itability of the applicant".

Concerning the April decision the respondent recited the chronology of events that have already been ad
verted to and concluded that "After meeting with BWIA on 1st April 1998, the respondent granted the lic
ence and permitted the variation of the BWIA schedule as requested as it was satisfied that that was ne
cessary to the provision of an effective and efficient service at a period of very high passenger traff
ic and the applicant's market share of 80 percent was not likely to be affected by the variation or by
the presence of BWIA on the route.

These facts are found an a close reading of all the affidavits. The applicant mined deeply into its rec
ords and produced a well documented and extensive catalogue of complaints against the respondent. Its a
ffidavits included a wealth of particulars which enabled the Court to obtain a comprehensive account of
this ongoing dispute, What then are the obligations of a decision maker to a public law Court in circum
stances where its decisions are being reviewed?

3. Duties and Oblations of a Decision maker to a Public Law Court

The law does not recognise any general duty that compels decisions makers to give reasons for their dec
isions. In the case of R v. Secretary of State for the Home Department ex p Doody [1993] J 3 WLR 154 Lo
rd Mustill stated as follows:

"I accept without hesitation, and mention it only to avoid misunderstanding, that the law does not at p
resent recognise a general duty to give reasons for administrative decisions. Nevertheless it is equall
y beyond question that such a duty may in appropriate circumstances be implied, and I agree with the an
alyses by the Court of appeal in R. v. Civil Service Appeal Board ex p Cunningham (1991) 4 All E.R. 3.1
0. "

It is the duty of a respondent to make full disclosure to a public law Court if an applicant can satisf
y such a Court that the facts are sufficient to entitle it to apply for judicial review or relief under
the constitution. In the case of R v. Lancashire County Council [1986] 2 All E.R. 941 Lord Donaldson MR
put the relationship between the Courts and decision makers on the on the basis of a partnership. Lord
Donaldson stated at page 945 946 as follows:

"This development has created a new relationship between the Courts and those who derive their authorit
y from the public law, one of partnership based on a common aim, namely the maintenance of the highest
standards of public administration...

The Courts must and do recognise that, where errors have, or are alleged to have, occurred, it by no me
ans follows that the authority is to he criticised. In proceedings for judicial review, the applicant n
o doubt has an axe to grind. This should not be true of the authority.

The analogy is not exact, but, just as the judges of the inferior Courts when challenged an the exercis
e of their, jurisdiction traditionally explain fully what they have done and why they have done it, but
are not partisan in their defence, so should be the public authorities. It is not discreditable to get
it wrong. What is discreditable is a reluctance to explain fully what has occurred and why...

Certainly it is for the applicant to satisfy the Court of his entitlement to judicial review anal it is
for the respondent to resist his application, if he considers it to be unjustified. But it is a process
which, folds to be conducted with all the cards face upwards on the table and the vast majority of the

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 which, folds to be conducted with all the cards face upwards on the table and the vast majority of the
cards will start to the authority's hands.

...the [respondent] council [contends] that it is often impossible to list seriatim all the factors of
which account is taken on reaching a discretionary administrative decision and, if only some are listed
, it will be assumed that these were the only factors taken into account. The applicant will then adver
t to some other factor and claim relief on the mistaken basis that this was never considered. I accept
that this may well be widely believed by some, and perhaps many authorities, but they are mistaken The
legal, as contrasted with the evidential, burden being on the applicant to establish his entitlement to
relief, they are entitled and are very willing to assume that the authority has acted in accordance wit
h the law, until the contrary is shown. But authorities assist neither themselves nor the Courts, if th
eir response is a blanket assertion of having acted to accordance with law or one which begs the questi
on. If the issue is whether an authority took a particular factor into account, it will be a sufficient
response to show that it did. But if the allegation is that a decision is prima facie irrational and th
at there are grounds for inquiring whether something immaterial may have been considered or something m
aterial omitted from consideration, it really does not help to assert baldly that all relevant matters
and no irrelevant mutters were taken into consideration without condescending to mention same at least
of the principal factors on which the decision was based."

This inevitable march towards greater openness is further illustrated in the case of Ex p Doddy cited a
bove. In that case Lord Mustill stated at page 169F

"... in the more recent cases on judicial review a perceptible trend towards an insistence on greater o
penness, or if one prefers the contemporary jargon 'transparency', in the making of administrative deci
sions."

Another feature of the review process is the inferences that a Court may draw in the absence of adequat
e or any reasons by an applicant. In the landmark case of Padfield v. Minister of Agriculture Fisheries
and Food [1968] AC 997 Lord Reid stated at page 1032G as follows:

"I do not agree that a decision cannot be questioned if no reasons are given. If it is the Minister's d
uty not to act so as to frustrate the policy and objects of the act, and if it were to appear from all
the circumstances of the case that that has been the effect of the Minister's refusal, then it, appears
to me that the Court mast he entitled to act."

And Lord Pearce stated at page 10616 as follows:

(If all the prima facie reasons seem. to point in favor of his taking a certain coarse to carry out the
intentions of parliament in respect of a power which it has given him in that regard, and he gives no r
eason whatever for taking a. contrary course, the Court may infer that he has no good reason and that h
e is not using the power given by parliament to carry out his intentions."

The issue was succinctly dealt with in the case of Secretary of State for Trade and Industry ex p Lonrh
o [1989] I WLR 525 at 539 540B in which Lord Keith stated as follows:

"The absence of reasons for a decision where there is no duty to give them cannot by itself provide any
support for the suggested irrationality of the decision. The only significance of the absence of reason
s is that if all other known facts and circumstances appear to point overwhelmingly in favour of a diff
erent decision, the decision maker, who has given no reasons cannot complain if the Court draws the inf
erence that he had no rational reason, for this decision."

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 Under the Air Navigation (Licensing of Air Services) Regulations made under the provisions of the Colon
ial Air Navigation (Application of Acts) Order 1937 ("the regulations() the respondent in its discretio
n may hold inquiries in public as well as in private in determining applications for licences. An appli
cant for a licence may require the respondent to hold a public enquiry. The respondent is obliged to pu
blish in a prescribed format particulars of its decisions on applications for licences and of its decis
ions to revoke or suspend them. The underlying duty on the respondent under the regulations is a requir
ement of openness and transparency in its decision making process.

A Court engaged in reviewing a decision of the respondent in circumstances where an applicant satisfies
it that the facts are sufficient to entitle it to apply for judicial review, expects the respondent to
fully comply with the strictures enunciated by Lord Donaldson in ex p Huddleston. Indeed this Court ass
erts, that in circumstances such as these, a respondent is obliged to give a public law Court a full an
d fair disclosure as to how the respondent arrived at its decision. Moreover its affidavits should depo
se with particularity to the decision making process. This level of disclosure is necessary so as to en
able a Court whilst reviewing the process to have the benefit of all the relevant information regarding
the process. This Court is not unmindful of the observations of Lord Justice Parker made at page 947F i
n Ex p Huddleston in which he states:

"I do not wish to be thought that once an applicant has obtained leave he is entitled. to demand firm t
he authority a detailed account of every step in the process of making the challenged decision in the h
ope that something will be revealed which would enable him to advance same argument which had not previ
ously occurred to him.(

It is not good enough for the respondent to have made on its behalf, an affidavit that is bare on the d
etails and which states that the respondent had considered the applicant's representations and was sati
sfied that it would not adversely affect the applicant. The requirement of disclosure is founded on the
nation that decision makers more often than not have access to information that is not within the knowl
edge or even the reach of an applicant. Therefore once an applicant crosses the evidential threshold re
quired to apply for judicial review it is now the duty of the decision maker to explain "what has occur
red and why(. The highest standards of public administration demanded that the respondent now faced wit
h those allegations had a duty to place "all the cards upwards on the table(.

4. The Application

The applicant in proceedings commenced on the 6th April 1998 under the provisions of order 53 of the or
ders and rules of the Supreme Court 1975 sought and obtained leave of the Court to review the March dec
ision as well as a decision of the respondent made between the 18th March 1998 and the 5th April 1998,
which is now ascertained to have been on the 1st April 1998 and now referred to as the April decision.
The reliefs sought by the applicant are orders of certiorari to quash both decisions. Mr. Alexander in
the course of his rich and venerable submissions sought the leave of the Court to amend the relief soug
ht in relation to the April decision and to substitute in its place a declaratory order.

5. The Supervisory Jurisdiction

The High Court has historically exercised a supervisory jurisdiction over the proceedings and decisions
of interior Courts, tribunals, public authorities aid bodies that perform public duties and functions (
all of whom are collectively referred to as "the decision makers"). This jurisdiction is now exercisabl
e under the public law remedy of judicial review. This remedy has become one of the principal methods b
y which the Courts now control the sometimes unfettered actions of decision makers. The source of the d
ecision making power may be either statutory or common law. The remedy of judicial review is not direct
ed at reviewing the merits of a decision but the decision making process itself. It is not within the c
ompetence of a Court to substitute its own opinion for that of the decision maker. A Court of law is no
t entrusted with the power to make the decision that is being reviewed and must guard against substitut
ing its own concept of merit for that of the decision maker. It must confine its review to the decision
making process that is being reviewed.

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 making process that is being reviewed.

6. A Bird's Eye View of the Grounds

The grounds on which Courts have reviewed the decisions of decision makers have deliberately been kept
open and flexible. From time to time the Courts have attempted to classify the grounds on which the act
ions of decisions makers have been reviewed. Perhaps the most widely accepted attempt to do so was in t
he Council of Civil Service Unions and Minister of the Civil Service [1984] 3 All ER 935 where Lord Dip
lock stated at p.950 as follows:

"... one can conveniently classify under three heads the grounds on which administrative action is subj
ect to control by judicial review. The r first ground I would call 'illegality' the second 'irrationali
ty' and the third procedural impropriety', That as not to say that further development on a case by cas
e basis may not in course of time add, further grounds."

7. The Regulatory Framework

Like so many other countries, the end of the last World War marked the beginning of an expanded role fo
r the state in the governance of this country. The boundaries of the state sector was further expanded
after independence in the year 1962. The decade of the 1980's ushered in the widespread acceptance of t
he concept of the borderless world and the attendant retreat of state participation in many areas of ac
tivity. The state has however, not surrendered its role in many areas of governmental activity. One suc
h area has been referred to as "new property". This nomenclature is a convenient expression used to des
cribe the approvals that are now required in order to undertake many areas of economic activity. These
approvals usually require the grant of a licence which could be a valuable asset and the subject matter
of regulation.

As a consequence the regulatory role of the state has not only remained undiminished during this period
but more recently has expanded into the banking and non financial institution sectors, securities, tran
sport and environmental matters. The system used to regulate state activity varies according to the lev
el of governmental policy that is required in the process of regulation. In some areas such as transpor
t or land use government has maintained a close and direct linkage to the regulated activity by establi
shing agencies that are adjuncts to ministries of government and which are staffed by public servants.
These agencies are sometimes engaged in not only deliberately establishing policies that are consonant
with the wishes of the political directorate but in implementing these policies as well.

In other areas the legislature has established statutory regulatory bodies which operate independently
of the executive. In such areas the wisdom appears to be that such bodies must establish and implement
policy based on their own sense of what is required in particular circumstances. However such bodies co
nstituted as they are, must exercise their own independent judgments, in consonance with the statute wh
ich created them. These bodies very much like the commissions established by the constitution, have the
ir own minds and are insulated from executive control or influence. The legislature can by a simple maj
ority repeal the legislation creating the said bodies and invest the decision making process in any bra
nch of the Executive.

One such body is the respondent authority which is constituted under the regulations. The regulations p
rovide that the membership of the respondent shall not be less than three persons appointed by the pres
ident of the republic of Trinidad and Tobago for a term determined by him. A member of the respondent m
ay demit office on resignation, at the expiration of his term, or on being terminated by the president
for "inability or misbehavior". The regulations also provide for prospective members of the respondent
to declare their financial interest prior to their appointment, or when such financial interest is acqu
ired after appointment within four weeks. There is also provision in the regulations for the president
to prescribe the quorum of the respondent and the way in which it may determine questions.

In the legislative framework creating the respondent the executive has not retained any residual author
ity as it has done in other cases. In the United Kingdom the Civil Aviation Authority was established b
y act of parliament with the principal objective of avoiding state monopoly in air transport. The secre

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 tary of state retained the right under the legislation subject to approval of parliament by resolution
to provide `guidance' to the Civil Aviation Authority. The legislation also gave the secretary of state
the authority to give `directions' in specified circumstances without the approval of parliament. A dis
pute over issue was litigated in the case of Laker Airways Ltd v. Department of Trade [1977] QB 643.

The respondent is however entrusted by the regulations with the sole authority to grant licences on sch
eduled journeys subject to such terms and conditions as it may specify. The executive cannot fetter suc
h authority by or through any of its organs or by the establishment of committees in which members of t
he respondent were selected to be a part. There is no room in the regulations for the participation of
either the Airbridge Committee or the Cabinet Committee in this process. Any undertaking or representat
ion by either or both of these committees to the applicant on the issue of the applicant's participatio
n in the transport of passengers and cargo between Piarco and Crown Point Airports was undertaken in ci
rcumstances, where not only did they not have any authority in law to do so, but in purporting to do so
, they did not and indeed could not create any rights or entitlements which could bind the respondent o
r which were enforceable by or against it.

Mr. Daly in an able and articulate submission on behalf of the respondent urged on this Court the case
of Birkdale District Electricity Supply v. Southport Corporation [1926] AC 355 where at page 364 Lord B
irkenhead stated as follows:

"[It is] a well established. principle of law, that if a person or public body is entrusted 1 y the leg
islature with certain powers end duties expressly or impliedly for public purposes those persons or bod
ies cannot divest themselves of these powers or duties. They cannot enter into any contract or take any
action incompatible with the due exercise of their powers or the discharge of their duties."

This principle is of constitutional significance. In addition to the evidential requirement on the appl
icant to prove on a balance of probabilities, that the respondent made a clear and unambiguous represen
tation, or entered into a contract with it on which it relied and acted to its detriment, there remains
the outstanding issue of whether the respondent could divest itself of its duties and powers exercisabl
e under the regulations. This Court would jealously guard the independence of the respondent from execu
tive interference whether undertaken mistakenly or deliberately or otherwise. The notion that a committ
ee constituted by the executive, and on which the respondent is represented, may bind the respondent is
unacceptable. This proposition holds true even in circumstances where the respondent's representation o
n a committee is authorised to bind the respondent.

8. The Legitimate Expectation

The principle of legitimate expectation is an emergent doctrine, the boundaries of which have not been
definitively determined. The categories of legitimate expectation have been the subject of widespread a
cademic commentary. An extremely useful classification is contained in the speech of Simon Brawn LJ in
the case of R v. Devon County Council ex p Baker [1995] 1 ALL E.R. 73. This dicta whilst acknowledging
that its categorization does not constitute an exhaustive analysis divides it into four broad groups at
pages 88 and 89:

"(1) Sometimes the phrase is used to denote a substantive right: an entitlement that the claimant asser
ts cannot be denied him. .These various authorities show that the claimant's right will only be fund es
tablished when there is a clear and unambiguous representation upon which it was reasonable for him to
reply. Then the administrator or other public body will be held bound in fairness by the representation
made unless only its promise or undertaking as to haw its power would be exercised is inconsistent with
the statutory duties imposed upon it. The doctrine employed in dais sense is akin to an estoppel. In so
far as the public body's representation is communicated by way of a stated policy, this type of legitim
ate expectation falls into two distinct sub categories: cases in which the authority are held entitled
to change their policy even so as to affect the claimant, and those in which they are not...

(2) Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant'

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 (2) Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant'
s interest in same ultimate benefit which he hopes to retain (or, same would argue, attain). Here, ther
efore, it is the interest itself rather than the benefit that is the substance of the expectation. In o
1. ther words the expectation arises not because the claimant asserts any specific right to a benefit but
rather because his interest in it is one that the law holds protected by the requirements of procedural
fairness; the law recognises that the interest cannot properly be withdrawn (or dented) without the cla
imant being given an opportunity to comment and without the authority communicating rational grounds fo
r any adverse decision...

(3) Frequently, however, the concept of legitimate expectation is used to refer to the fair procedure i
tself. In other words it is contended that the claimant has a legitimate expectation that the public bo
dy will act fairly towards him

(4) The final category of legitimate expectation encompasses those cases in which it is held that a par
ticular procedure, not otherwise required by law in the protection of an interest, must be followed con
sequent upon some specific promise or practice. Fairness requires that the public authority be held to
it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by
way of established practice."

The principles contained in the Devon case culminates a line of authorities dealing with substantive le
gitimate expectation and firmly and authoritatively anchors the concept in the legal terra firma. Prior
to that case in an interesting judgment of Stuart-Smith L.J, in the case of R v. Jockey Club ex p RAM R
acecourses Limited [1993] 2 All E.R. 225 the components of legitimate expectation were adumbrated as fo
llows at pages 236 237b:

"The doctrine of legitimate expectation] has many similarities with the principles of estoppel in priva
te taw. In my judgment the matters that the applicant has to prove in this case are these;

(1) A clear and unambiguous representation.

(2) That since the applicant was not a person to whom any representation was directly made it was withi
n the class of persons who are entitled to rely upon it; or at any rate that it was reasonable for the
applicant to rely upon as without more.

(3) That it did so rely upon it

(4) That it did so to its detriment, While in some cases it is not altogether clear that this is a nece
ssary ingredient since a public body is entitled to change its policy if it is acting in good faith, it
is a necessary ingredient where, as here, an applicant is saying ‘You cannot alter your policy now in m
y case; it is too late.

(5) That there is no overriding interest arising from [the respondent's] duties and responsibilities wh
ich entitled [them] to change their policy to the detriment of the applicant.

The burden of proving the first four points is, in my judgment, upon the applicant. As to the fifth req
uirement, it seems to me that this is a matter it the [respondent] to establish."

The equitable doctrine of estoppel has its place in the realm of private law as opposed to public law.
The doctrine of estoppel has sometimes been described as equivalent to legitimate expectation. This has
always been a useful device so as to facilitate a description of legitimate expectation and not to sugg
est that an applicant must prove the ingredients of estoppel in order establish a legitimate expectatio
n.

Mr. Alexander for the applicant has quite properly argued his case an the ground that the respondent in
making the March and April decisions took action "equivalent to a breach of contract or breach of repre

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 making the March and April decisions took action "equivalent to a breach of contract or breach of repre
sentation by estoppel". The applicant's first ground is that the respondent took action equivalent to a
breach of contract or representation by estoppel made in the course of negotiations between the Cabinet
committee, of which the chairman of the respondent was a member, and the applicant granting to the appl
icant a contract with the exclusive right to all domestically generated passenger and freight traffic b
etween Piarco and Crown Point Airports. A breach of the kind alleged in the first ground cannot by itse
lf give rise to a remedy in public law. An applicant must go further and allege that the representation
s gave rise to a legitimate expectation. The applicant did so in the second ground. The second ground o
n which the respondent relies is that in making the March and April decisions the respondent deprived t
he applicant of its legitimate expectation that the exclusive right contracted or represented would not
be frustrated by the respondent except where the overriding public interest demanded it. Mr. Alexander
developed this ground by submitting that representation made by the Cabinet committee created a substan
tive right. In the case of R v. Board of Inland Revenue ex p MFK Underwriting Agencies Ltd [1990] 1 ALL
ER 91 at 110 Bingham LJ said:

(If a public authority so conducts itself as to create a legitimate expectation that a certain course w
ill be followed it would often be unfair if the authority were permitted to fallow a different course t
o the detriment of one who entertained the expectation, particularly if he acted on it. If in private l
aw a body would be in breach of contract in so acting or estopped from so acting public authority shoul
d generally be to no better position."

These two grounds are closely related and would for the purpose of convenience be dealt with together.

In support of these grounds the applicant alleges that the Cabinet committee contracted with, or altern
atively represented to the respondent during their negotiations that the respondent would be entitled t
o the exclusive right to all the domestically generated traffic on the route, and in reliance on that t
he respondent invested monies in purchasing equipment and commencing operations. The applicant further
alleges, that the then chairman of the respondent Mr. de Matas, was appointed to the Cabinet committee
in his capacity as the chairman of and as representative of the respondent with the authority to make a
nd approve decisions on behalf of the respondent. It is instructive to note that Mr. de Matas made an a
ffidavit which was filed on behalf of the applicant.

There are several features of Mr. de Matas' affidavit which are noteworthy. Firstly, the Court is not p
rovided with any particulars relating to the meeting including the date at which Mr. de Matas was autho
rised to act on behalf of the respondent. In addition the applicant does not allege that the respondent
entered into the contract or made the representation alleged. At all material times the alleged contrac
t and representation as pleaded in the statement filed pursuant to order 53 of the rules of the Supreme
Court of Judicature of Trinidad arid Tobago was made to the applicant by the Cabinet committee of which
Mr. de Matas was a member.

In circumstances where the regulations provide for the respondent to make a decision, the presence of t
he respondent's chairman an the Cabinet committee, even where he was authorised to bind the respondent,
could amount to no more than a representation by the Cabinet committee and not by the respondent. There
is no evidence to indicate that the respondent made any representation or contracted with the applicant
in respect of any of the matters alleged. Indeed there is no evidence of any oral or written communicat
ion from the respondent to the applicant that evidences such a contract or representation. The only evi
dence of a representation emanates from the Cabinet committee or from the Ministry of Works and Transpo
rt.

In order to establish a legitimate expectation that amounts to a substantive right there must be a clea
r and unambiguous representation by a decision maker upon which it was reasonable for an applicant to r
ely. The applicant in its initial proposal in response to the request for proposals expressed a desire
to be the sole provider of all passenger and freight traffic on the Tobago domestic route. This traffic
then amounted to 80 percent of the freight traffic on the said route. Subsequently on the 16th April 19
92 the applicant requested of the Cabinet committee that it be allowed the exclusive right to all domes
tically generated passenger and freight traffic on the said route. The Permanent Secretary in the Minis
try of Works and Transport by letter dated the 15th March 1993 to the applicant indicated that Cabinet
had noted that the financial viability of the applicant's proposal was (dependent on a guarantee of a m

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 inimum of 80 percent of the passenger traffic(.

The Permanent Secretary in the Ministry of Works and Transport was not entitled to make a representatio
n to the applicant on behalf of the respondent and in fact did not do so. The letter of the 15th March
1993 from the Permanent Secretary did no more than represent to the applicant that it was entitled to 8
0 percent of the passenger traffic, which in any event the Permanent Secretary was not authorised to do
, and not the exclusive right to all domestically generated passenger traffic on the route.

In any event it is not the ease of the applicant on the statement filed that it entered into any contra
ct with or that any representation was made to it by the Minister of Works and Transport. However this
evidence is mentioned so as to illustrate that there is a conflict in the positions taken by the Perman
ent Secretary in the Ministry of Works and Transport in its letter to the applicant of the 13th March 1
993 and that taken by the Cabinet committee in its letter to the applicant dated the 8th June 1992, in
circumstances where, not only were both bodies acting as organs of the executive, but where they were n
ot authorised in law to exercise a discretion that was vested in the respondent.

The other area of evidence that merits attention are the exchanges between the applicant and the respon
dent. The applicant's letter of the 16th July 1993 that accompanied its application to the respondent r
equested "exclusive rights in respect of passenger traffic and cabotage and to the scheduled service on
the domestic route between Trinidad and Tobago up to and including the 8th March 2000". The respondent
did not respond to this request. However in response to the application by BWIA on the 4th March 1998 f
or a licence the respondent orally, and quite inaccurately, informed the applicant an the 18th March 19
98, "that the applicant's proposal submitted pursuant to the RFP required, for economic viability, a mi
nimum. of 80 percent of all passenger traffic between Trinidad and Tobago which had been guaranteed by
the respondent and would be preserved notwithstanding any approval of BWIA's application". Even this or
al acknowledgement of the respondent does not confirm the applicant's claim for an exclusive right to a
ll domestically generated traffic.

On the evidence as presented this Court finds that the respondent did not make any representations or e
nter into any contract with the applicant which granted to the applicant exclusive rights to all domest
ically generated passenger and freight traffic on the route. In addition the representations which were
made by the Cabinet committee were done so in circumstances where these representations conflicted with
that of another organ of the executive, namely the Ministry of Works and Transport. In addition the Cab
inet committee was not authorised to make any representation binding the respondent, and in any event w
hatever representations it made were not clear and unambiguous.

10. Abuse of Power, Wednesbury Unreasonableness and Irrationality

(i) The general principle

In its third, fourth, sixth and eight grounds the applicant invokes the principle of Wednesbury unreaso
nableness. Since the decision of Lord Diplock in the GCHQ case this principle has increasingly come to
be referred to as irrationality. The term unreasonableness has been used interchangeably with abuse of
power and irrationality. As early as 1898 in Kruse v. Johnson (l889) 2 Q.8, 291 Lord Russell ruled that
that bye-laws could be struck down on the ground of unreasonableness and stated as follows:

"If, for instance they were found to be partial and unequal in their operation between different classe
s; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive car gr
atuitous interference with the tights of those subject to them such as could find no justification in t
he minds of reasonable men(.

In the case of Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1KB 223 Lord Green
M.R. formulated the principle of Wednesbury unreasonableness in the following terms:

"When an executive authority is entrusted by Parliament to a body such as the local authority in this c

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 "When an executive authority is entrusted by Parliament to a body such as the local authority in this c
ase, what appears to be an exercise of that discretion can only be challenged in the Courts in a strict
ly limited class of cases. As I have said, it must always be remembered that the Court is not a Court o
f appeal. When discretion of this kind is granted the law recognises certain principles upon which. tha
t discretion must be exercised, but within the four corners of those principles the discretion, in my o
pinion, is an absolute one and cannot be questioned in any Court of law. What are those principles? The
y are well understood. They are principles which the Court looks to in considering any question of disc
retion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, i
n the statute conferring the discretion there is to be found expressly or by implication matters which
the authority exercising the discretion ought to have regard to, then in exercising the discretion it m
ust have regal to those matters. Conversely, if the nature of the subject matter and the general interp
retation of the act make it clear that certain matters would not be germane to the matter in question,
the authority must disregard thane irrelevant collateral matters. ....I am not sure myself whether the
permissible grounds of attack cannot be defined under a single head. It has been perhaps a hale bit con
fusing to find a series of grounds set out. Bad faith, dishonesty those of course, stand by themselves
- unreasonableness, attention given to extraneous circumstances, disregard of public policy and things
like that have been, referred to, according to the facts of individual cases, as being matters which ar
e relevant to the question. If they cannot all be confined under one head, they at any rate I think, ov
erlap to a very great extent. For instance, we have heard to this case a great deal about the meaning o
f the word (unreasonable(. It is true the discretion must be exercised reasonably. Now what does that m
ean? used as a general description of the things that must not be done. Far instance, a person entruste
d with a discretion must, so speak, direct himself properly in law. He must exclude from his considerat
ion matters which are irrelevant to what he has to consider. If he does not obey those rules, he may tr
uly be said, and often lawyers familiar with the phraseology commonly used in relation to exercise of s
tatutory discretion so often use the word `unreasonable' in a rather comprehensive sense. It has freque
ntly been used and is frequently is said, to be acting 'unreasonably'. Similarly, there may be somethin
g so absurd that no sensible person could ever dream that it lay within the powers of the authority."

In the GCHQ case Lord Diplock defined the principle of irrationality as follows:

"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness(.
It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to be decided could have arrived at it
. Whether a decision falls within this category is a question that judges by their training and experie
nce should be well equipped to answer, or else there would be something badly wrong with our judicial s
ystem."

(ii) Abuse of Power.

Counsel for the applicant argued that the respondent's conduct in making the March and April decisions
was equivalent to a breach of contract or representation, and unless the respondent(s conduct in effect
ing that breach was in the public interest then by that conduct the respondent has acted unfairly and i
t amounted to an abuse of power. The challenge to the decision an the ground of abuse of power is just
another manifestation of Wednesbury unreasonableness. To support this argument the applicant relies on
the case of Preston v. Inland Revenue Commissioners [1985] 2 All E.R. 327. In that case Lord Templeman
stated at page 341 as follows:

(In principle I see no reason why the taxpayer should not be entitled to judicial review of a decision
taken by the Commissioners if that decision is unfair to the taxpayer because the conduct of the Commis
sioners as equivalent to a breach o f contract or a breach of representation. Such a decision falls wit
hin the ambit of an abuse of power for which in the present case judicial review is the sole remedy."

This Court has already held that the respondent had not engaged in any acts that were equivalent to a c
ontract or representation made to the applicant and therefore this issue does not arise.

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 (iii) The Regulations

Additionally, the applicant complains that the March and April decisions were irrational on the ground
that the respondent failed to take into account relevant considerations took into account irrelevant co
nsiderations. These allegations fall squarely within the parameters set out by Lord Greene in Wednesbur
y. Paragraph 11 of the regulations acknowledges that the respondent, has a discretion to exercise. In e
xercising the discretion the respondent was mandated by the regulations to consider the matters contain
ed in paragraph 11. This is not an issue dealing with the balancing of considerations. In any event the
balancing of considerations which weigh on a decision is not a matter for the Court but is primarily a
matter for the decision maker.

Paragraph 11 of the regulations is comprised of two components namely general and specific guidelines.
Specific guidelines are referred to in the regulations as particular matters. Under the general guideli
nes the respondent is obliged to consider (a) the co-ordination and development of air services general
ly with the object of ensuring the most effective service to the public and (b) whilst at the same time
avoiding uneconomical overlapping and generally to the interest of the public including persons requiri
ng or likely to require facilities for air transport as well as those persons providing such facilities
.

Paragraph 11 of the regulations require the respondent to consider particulars matters or the specific
guidelines. In interpreting this paragraph the specific guidelines are to be considered as having prior
ity aver the general. The general guidelines provide the broad macro framework for the interpretation o
f the specific guidelines. The respondent was obliged to give consideration to all the matters in the s
pecific guidelines. Some matters in the specific guidelines may be more important than others, but all
of them have to be considered in accordance with their varying levels of relevance. The respondent was
also obliged to give consideration to the general guidelines.

Without attempting to state exhaustively the full purport of the general guidelines, there are two whic
h are significant. The first is for the purpose of establishing the general backdrop against which the
specific guidelines may be interpreted. The second and perhaps more important is to allow the Responden
t to consider those matters, which, although not contained in the specific guidelines are relevant to t
he decision, and which fall under the umbrella of the general guidelines.

The specific guidelines mandate the Respondent to consider the following matters;

i) the existence of other services in the area through which the proposed services are to be operated;

ii) the demand for air transport in that area;

iii) the degree of efficiency and regularity of the air services if any,

iv) already provided in that area, whether by the applicant or by other operators;

iv) the period for which such services have been operated by the applicant or by other operators;

v) the extent to which it is probable that the applicant will be able to provide a satisfactory service
in respect of safety, continuity, regularity of operation, frequency, punctuality, reasonableness of ch
arges and general efficiency;

vi) the financial resources of the applicant;

vii) the type of aircraft proposed to be used;

viii) the remuneration and genera! conditions of employment of the aircraft and other personnel employe
d by the applicant.

Finally the respondent is mandated to take into consideration any objections or representations made in

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 Finally the respondent is mandated to take into consideration any objections or representations made in
accordance with the provisions of the regulations. There are three classes of persons whose representat
ions and objections the respondent is required to consider, namely the public, the applicant for a lice
nce and other operators which in this case is the applicant.

(iv) Relevant matters that were not considered

The matters which the applicant alleges that the respondent did not consider may be divided into two br
oad groups. The first such group relates to the applicant exclusively. It includes firstly those matter
s which the applicant alleges amount to a contract or representations made with or to it by the Cabinet
committee amounting to a substantive legitimate expectation and secondly its preparedness to put on add
itional flights to meet any increase in demand. For the reasons already stated the issue relaxing to th
e alleged contract or representation amounting to a legitimate expectation is not a matter to which the
respondent should have given consideration.

The applicant has boldly asserted that in. its meeting with the respondent on the 11th March 1998 it in
dicated that (it has always put on additional flights to meet the demand of the travelling public and w
as prepared to continue do so'. The respondent's response to this was far from satisfactory. It stated
that `the applicant did not undertake or give to the respondent any indication that it was prepared to
seek to have its schedules varied to put on additional flights'. The respondent did not in the circumst
ances heed the strictures placed on it in ex p Huddleston. This is an issue to which the respondent was
obliged to have regard and is clearly contemplated within the ambit of the general guidelines in paragr
aph 11 of the regulations. In addition, this issue is also clearly contemplated in the specific guideli
nes set out in paragraph 11 of the regulations which obliged the respondents to give consideration to t
he existence of other air services on the route.

The second group of matters which the applicant alleges that the respondent did not consider or relate
to BWIA: These matters included the financial difficulties of BWIA, the type of aircraft to be used by
BWIA which were uneconomical and unsuitable and the uneconomical overlapping of BWIA's scheduled flight
s with those of the applicant. In support of the first two allegations the applicant submitted to the r
espondent several newspaper articles.

Leading counsel far BWIA Mr. Thorne with his usual erudition objected to the use of these newspaper art
icles as evidence and applied to have them struck out as exhibits on the grounds that they are irreleva
nt and in any event their contents cannot amount to my reliable evidence. This Court is not concerned a
bout the truth of the contents of these articles. Those were matters that ought to have occupied the at
tention of the respondent in arriving at the March and April decisions. The applicant cannot have been
expected to have within its ready grasp within the relatively short time frame after it was notified of
BWIA's application, and the meetings of the 11th and 18th of March 1998, or indeed at any other time, t
he financial details of BWIA, or the suitability of the aircraft that BWIA proposed to use on the route
. These are matters for the respondent. All the applicant did was to bring to the attention of the resp
ondent these articles and it was for the respondent to investigate these matters and determine their va
lue in the decision making process. In the circumstances this Court declines the invitation to strike o
ut the exhibits.

The respondent has not provided evidence that it had specifically given consideration to the applicant(
s objections to BWIA on the ground of BWIA's financial difficulties, the types of aircraft that BWIA pr
oposed to use and the uneconomic overlapping of BWIA's schedules flights with those of the applicant. T
he respondent's case is that on the 11th March 1998 it invited the applicant to make "recommendations a
nd present any objections for the consideration of the respondent" and the applicant submitted "its wri
tten observations, objections and analyses" by letter dated 16th March 1998. The respondent further say
s that it "gave consideration to the representations made can behalf of the applicant". A Court of publ
ic law can hardly be expected to find comfort in such a bald statement.

A Court in these circumstances is left to consider the constituent elements of the representations'. Is
there some difference between "representations" on the one hand and (recommendations and objections" an
d "observations, objections and analyses" on the other hand? The first two issues, namely the financial
difficulties of BWIA as well as the type of aircraft proposed to be used, are comprised within the spec
ific guidelines which are required to be considered by paragraph 11 of the regulations. The third issue

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 ific guidelines which are required to be considered by paragraph 11 of the regulations. The third issue
relating to uneconomic overlapping farms part of the general guidelines. This Court has not been provid
ed with the evidence by the respondent to quiet its discomfort concerning the respondent's consideratio
n of these matters. In the circumstances this Court is prepared to hold that the issues relating to the
financial resources of BWIA, the type of aircraft proposed to be used and the issue of uneconomic overl
apping were not considered by the respondent, in arriving at the March and April decisions.

(v) An irrelevant matter considered

An additional ground of complaint is that the respondent considered an irrelevant matter namely a reque
st by the public for an additional airline. The general guidelines provide for consideration to be give
n by the respondent "to the co ordination and development of air services generally with the object of
ensuring the most effective service to the public while avoiding uneconomical overlapping and generally
to the interest of the public including those of persons requiring or likely to require facilities for
air transport".

The specific guidelines require the respondent to have regard to the demand for air transport in the ar
ea. In relation to the public these guidelines are cast in specific terms so as to avoid consideration
of a whimsical request by the public purely for variety rather than a real demand for air transport on
the route. The considerations of `service to the public( and `interest to the public' are founded on th
e underlying considerations of (co-ordination and development of air services generally" and the avoida
nce of (uneconomical overlapping" respectively. A request by the public for an additional airline, in a
ddition to being difficult to measure, could only form the basis, of decision making by popular request
and cannot be the basis for exercising a discretion ordinarily or indeed rationally. The regulations de
al specifically with demand for air transport which increased from 345,000 in 1990 to 360,000 passenger
s in 1997. This factor is capable of measurement and is not, like the request by the public for an addi
tional airline, dependent on the vagaries of public opinion. In arriving at its decision the respondent
ought not to have given any consideration to this matter.

The regulations confer on the respondent a discretion which it is mandated to exercise. The respondent
in exercising its discretion is required to consider and to be guided by the provisions of the regulati
ons and in particular paragraph 11. The respondent in making the March and April decisions did not adhe
re in all respects to the regulations, and consequently considered matters it ought not to have conside
red and omitted to consider others that were germane to the issues and which it ought to have considere
d. The respondent did not direct itself properly in law. In the decision making process the respondent
acted unreasonably and its decision ought not to stand.

(vi) Decision not supported by evidence

The applicant also criticised the March and April decisions on the ground that they violate yet another
facet of Wednesbury unreasonableness, that is, the decisions could not be supported by the evidence or
the evidence taken as a whole was not reasonably capable of supporting findings of fact which were nece
ssary to support the decision. This limb of unreasonableness is often referred to as "pure irrationalit
y". The evidence offered in support of this argument is unchallenged. It comprises firstly of a compari
son of the arrival and departure schedules of the applicant and that of BWIA which were the subject of
the March decision. An examination of the applicant's as well as the respondent's schedules reveal that
their arrival and departure times were in close proximity to each other. The applicant submitted to the
respondent on the 11th and 18th March 1998 the impact this would have on its activities: including fina
ncial and the decrease in the availability of passengers and freight to it. This is an allegation of un
economic overlapping. The second piece of evidence relied on is the increase in the air traffic on the
route between 1990 and 1997 from 345,000 to 360,000 passengers or as illustrated by counsel for the app
licant an increase of 41 passengers per day.

In the case of Peak Park Joint Planning Board v. Secretary of State for the Environment and Waller 1991
J.P.L. 774 the judgment was reported as follows:

"The evidence on this point was therefore all one way and it was not displaced by the site inspection t

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 he value of which was as indicated debatable. A conclusion which flew in the face of the evidence had i
n has view to be perverse. Put another way, it rues based on a view of the facts which could not reason
ably be entertained. The fact was that the inspector had simply failed to notice the inconsistency to h
is reasoning on this point and thereby had fallen into error."

In the case of R v. Mid Hertfordshire Justices ex parte Cox 1995 8 A.L.R. 409 Mr. Justice Lewis Cox in
reviewing the decision of local magistrates stated at page 413 as follows:

(....I am certainly persuaded that no reasonable bench of magistrates, faced with the unchallenged evid
ence of the applicant on November 22nd 1994 could properly have issued a warrant for the whole period o
f 56 days. For them to have lone so leads me to the conclusion that they simply famed to give any weigh
t whatever to the evidence of his changed circumstances. Of course I accept, the evidence as... the mag
istrate states, that they had regard to all his material but they have imposed a sanction on this man w
hich. is no less severe than might have been applied had he been fortunate enough to remain in work thr
oughout this period..."

Judged in the light of these facts this Court finds that no reasonable licensing body mandated to exerc
ise a discretion in compliance with the regulations could have made the March and April decisions. In a
rriving at this conclusion this Court is careful not to substitute its own opinion for that of the deci
sion maker. The authority under which this decision was made was improperly exercised. In fact these de
cisions were unlawful, irrational and even perverse.

11. The Right to be Heard

The fifth ground advanced by the applicant in its statement is that in making the April decision the re
spondent failed to give the applicant an opportunity to be heard. Paragraph 7 of the regulations provid
e for the respondent to cause to be published in a prescribed form particulars relaxing to any applicat
ion for a licence. The circumstances surrounding the application by BWIA and the grant of the variation
as contained in the April decision has already been adverted to in this judgment. Under the provisions
of paragraph 8 of the regulations the applicant as well as "responsible persons or bodies who may reaso
nably have an interest, private as well as public" are afforded in the prescribed form an opportunity t
o make "representations or objections with regard to any application for a licence.(

The applicant was a responsible person within the contemplation of paragraph 8 of the regulations. In a
ddition the applicant fell within a class of persons described in ph 11 of the regulations as (providin
g such (air transport), facilities". The applicant had a real and substantial interest in being heard.
This entitlement in addition to being implied as well as expressed in the regulations, was also part of
the accepted procedural rules with which the respondent is mandated by public law to comply. These rule
s supplemental to the regulations and are implied in the event that the statute is silent. In the Doody
case [1994] A.C.531 at 560 Lard Mustill stated the proposition as follows:

"The principles of fairness are not to be applied by rate identically in every situation. What fairness
demands is dependent on the context of the decision, and this is to be taken into account in all its as
pects. An essential factor of the context is the statue which creates the discretion, as regards both i
ts language and the shape of the legal and administrative system within which the decision is taken."

In the GCHQ case Lord Diplock described procedural impropriety as follows:

"I have described the third head as 'procedural impropriety( rather than failure to observe basic rules
of natural justice, of failure to act with procedural fairness towards the person who will be affected
by the decision. This is because susceptibility to judicial review under this head covers also failure
by an administrative tribunal to observe procedural roles that are expressly laid down in the legislati
ve instrument by which its jurisdiction is conferred, even where such failure does not involve any deni

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 ve instrument by which its jurisdiction is conferred, even where such failure does not involve any deni
al of natural justice."

Neither the letter to the applicant of the 25th March 1998 nor the telephone inquiry of the 1st April 1
998 to the applicant's office informed the applicant of the pending application by BWIA for a variation
. The applicant was not informed of the pending application and did not get a chance to make any "repre
sentations or objections" to BWIA's application which formed the subject of the April decision. The res
pondent therefore failed to observe the procedural rules laid dawn by the regulations as well to observ
e the rules of natural justice relating to the right of the applicant to be heard. The result therefore
was that procedural fairness or procedural propriety as formulated by Lord Diplock in the GCHQ case was
not accorded to the applicant a person who would have been affected by the decision.

12. Illegality

The formulation of unreasonableness by Lord Greene MR in the Wednesbury case acknowledges that a Court
may intervene to "interfere" with a decision an the grounds that a decision maker has "contravened the
law by acting in excess of the powers which parliament has conferred on [it]". In addition Lord Greene
MR also rested his judgment on the ground of excess of jurisdiction. More recently in the case of R v.
Secretary of State Environment for the Environment ex p Hammersmith [1991] 1 A.C. 521 Lord Bridge formu
lated the principle without reference to unreasonableness but an the ground of illegality as follows:

"....if the Court concludes, as the House did in the Padfield case, that [an] exercise of a statutory d
iscretion has been such as to frustrate the policy of the statute, that conclusion rests upon the view
taken by the Court of the true construction of the statute which the exercise of the discretion in ques
tion is then held to have contravened. The administrative action or inaction is then condemned on the g
round of illegality. Similarly, if there are matters which, on the true construction of the statute con
ferring discretion, the person exercising the discretion must take into account and others which he may
not take into account, disregard of those legally relevant matters or regard of those legally irrelevan
t matters will lay the decision open to review on the ground of illegality. "

In the GCHQ case Lord Diplock described illegality as follows:

"By `illegality' as a ground for judicial review I mean that the decision maker must understand correct
ly the law that regulates his decision making power and must give effect to it. Whether he has or not i
s par excellence a, justiciable question to be decided, in the event of dispute, by those persons, the,
judges, by whom the judicial power of the state is exercisable."

This judgment has already adverted to the three matters raised by the applicant to which the respondent
did not specifically given consideration namely BWIA's financial difficulties, the type of aircraft tha
t it proposed to use and the uneconomic overlapping of BWIA(s scheduled flights with those of the appli
cant. In addition the respondent gave consideration to a matter that was not relevant namely of the dem
and by the public for an additional airline. In the circumstances this Court holds that the respondent
acted illegally, in excess of its jurisdiction and committed an error in law.

For all of these reasons both the March and April decisions were flawed. Accordingly I make an order of
certiorari to remove into this Court and quash the decision of the respondent made on the 18th March 19
98. I would in the circumstances not order that the matter be remitted to the respondent for its recons
ideration. In addition the amendment sought by counsel for the applicant is granted and this Court decl
ares that the decision of the respondent made on the 18th April 1998 is and was invalid and of no effec
t. The respondent is ordered to pay the applicant's costs certified fit for two counsel, the interested
party to bear its own costs.

[email protected] p. 18
 BWIA INTERNATIONAL AIRWAYS LIMITED v. AIR CARIBBEAN
LIMITED ET AL
https://carilaw.cavehill.uwi.edu/permalink/carilaw6703
Subject: Practice and procedure
Citation Number: TT 1998 CA 31
Country: Trinidad and Tobago
Court: Court of Appeal
Date: July 1, 1998
Judge: Permanand, J.A.
Suit No.: C.A. No. 151 of 1998
Sub-subject: Order of certiorari - Appellant argued that the appeal from which the application
stemmed was filed without leave and accordingly the application could not be
maintained Whether the Court has jurisdiction to grant a stay of execution of an
order of certiorari Section 38(2)(c) of the Supreme Court of Judicature Act Chap 4:01
considered On first ground, Court held that leave was not required and that it did
have jurisdiction to grant stay.

  VIEW FULL TEXT AS A WORD DOCUMENT

Full Text
Appearances

Mr. Sonny Maharaj S.C. holding for Mr. E. Thorne Q.C.

And Mrs. R. Johncilla for the appellant

Mr. Alvin Fitzpatrick fro the first respondent

Mr. Martin Daly S.C. and Mr. E. Prescott

And Mr. R. Harnanan for the second respondent (end of page 1)

PERMANAND, J.A.: The order sought to be stayed by the summons filed on June 25 1998 was made on an appl
ication for judicial review. On June 18 1998 an order of certiorari was made by the Honourable Mr. Just
ice F. Hosein who quashed the decision of the Air Traffic Licensing Authority dated March 18 1998, whic
h granted a licence to the appellant under the Air Navigation (Licensing of Air Services) Regulations.
The appellant who appeared as an interested party was ordered to bear its own costs.

Before this Court counsel for the respondent took a preliminary objection on the grounds: -

1. That appeal from which this application stems was filed without leave and accordingly this applicati
on cannot be maintained;

[email protected] p. 19
 (2) The Court has no power to grant a stay of execution of an order of certiorari.

With regard to (1) counsel referred to s. 38(2) (c) of the Supreme Court of Judicature Act. 4:01, which
provides: -

No appeal shall lie, except by leave of the judge making the order or of the Court of appeal from -

an order made with the consent of the parties;

an order as to costs;

a final order of a judge of the High Court made in a summary.

also to C.A. 11/86 Earl et al v. Gladstone Solomon where McMillan, J.A. ruled that proceedings for judi
cial review were summary in nature and accordingly leave was required.

In C.A. 124/97 Romain v. WASA de la Bastide, C.J. stated, (I do not regard judicial review proceedings
as falling within the category of summary proceedings(. However the learned Chief Justice went on to sa
y that ( the matter was not argued and therefore the question is left open for the possibility of revie
w upon full argument(

Mr. Daly S.C. who appeared on behalf of the Authority informed this Court that the Authority was not in
terested in the merits of the application but would render assistance to the Court. With this usual can
dour and clear and concise submissions adopted the view of the Court of appeal in the (end of page 83)
aforementioned C.A. 124/97 and maintained that the proceedings were not summary but however cautioned t
hat if leave is required that in accordance with s. 38(2) the exercise of that function is by the Court
of appeal and not by a single judge whose powers are circumscribed by order 59 r. 20. Order 59 r. 20(1)
provides: -

20. (1) Without prejudice to the provisions of these rules, in any cause or matter pending before the C
ourt, a single judge of the Court may upon application make orders for (

giving security for costs to be occasioned by any appeal;

(b) a stay of execution on any judgment or order appealed form pending the determination of such appeal
;

an injunction restraining the defendant in the action from disposing of or parting with the possession
of the subject matter of the appeal pending the determination therefore;

and may hear, determine and make orders or any other interlocutory application.

Mr. Maharaj S.C. who had appeared before the Court of Appeal in C.A 124/97 Romain v. WASA had indicated
to that Court that he was not adopting the position that leave is a mere irregular; Order 2 r 1 Rules o
f the Supreme Court refer. Counsel also relied on the judgment of Lord Denning, M.R Knighthood Assuranc
e Consultants Ltd. V Meacher (1976) Solicitor(s Journal Vol. 120 p. 117.

I considered the submissions and ruled with regard to (1) above that leave was not required and with re
gard to (2) I deferred the ruling until further arguments were heard.

[email protected] p. 20
 gard to (2) I deferred the ruling until further arguments were heard.

On behalf of the appellant two affidavits were filed by Peter Hill Vice President, customer service and
operations, and an affidavit was filed by Joanne Roberts, Director, Government Industry Affairs, both d
eponents are employed with BWIA. On behalf of the respondent an affidavit was filed by Leslie Ann Lucky
-Smaroo, its Corporate Secretary and was made without prejudice to legal submissions that may be made a
t the hearing of the application. (end of page 84)

On the facts it was strenuously argued by counsel for the appellant that disruptions has been caused an
d will continue to occur as well as a service financial impact due to the order of Hosein, J.

Mr. Fitzpatrick counter argued that the evidence can the affidavit as a whole discloses no disruption a
s the deponent on behalf of the respondent stated that an application for the grant of a licence could
be heard within a few days and more so that the appellant had sought and was granted permission to oper
ate a charter flight since the decision given by Hosein, J. Further that the respondent had provided ad
equate services on the route without complaint. Reference was made to C.A, 147/93 Loorkhoor and Ramkhal
awan which referred to Linotype-Hell Finance Ltd. V Baker (1992) All ER 887 when Straughton, L.J. state
d:

"... It seems to me that, if a defendant can say that without stay execution he will be ruined and that
he has an appeal, which has some prospect of success, that is a legitimate ground for granting a stay o
f execution( (

There is no evidence of the type of ruin as contemplated in the aforementioned case Mr. Fitzpatrick sub
mitted.

In any event it was Mr. Fitzpatrick's contention that the Court is prohibited from granting a stay of e
xecution of the Order as granted. The Court was referred to the Order of Hosein J. made on June 18, 199
8 and which was "stayed" until June 20, 1998 at 6.00 p.m. Mr. Fitzpatrick submitted that the order was
suspended and therefore an application should have been made to the Court during the period of the susp
ended order. Counsel relied on Rex v. West Madiland Traffic Area Licensing Authority (1935) 1 KB.449 an
d in particular to the judgment of Greer, L.J. at p. 464. In that matter a licence had been granted by
the licensing Authority under Road and Rail Traffic Act, 1933, but was quashed by a divisional Court an
d a writ of certiorari was issued, the Court of Appeal on reversing the decision of the Divisional Cour
t under order 58 r.4 granted a writ supersedeas and procedendo to restore the decision of the Licensing
Authority. At p. 465 Greer, L.J. stated: -

"It is however, boldly argued on behalf of the railway company that a writ of certiorari once issued ca
nnot be undone notwithstanding a decision of the Court of Appeal or even a decision of the House of Lor
ds. I should be sorry to think that our power to interfere in such a case is so slight that it is impos
sible for us to do that which is reasonably necessary to give effect to our decision. We have (end of p
age 85) power to do that which we are asked to do, and it ought to be done; but in the circumstances, a
2.
nd to obviate any difficulty, we think that the writ should lie in the office for fourteen days, and if
the necessary steps are taken by the railway company to appeal to the (House of Lords the writ will con
tinue to lie in the office until the disposal of the appeal."

In view of the above it was Mr. Fitzpatrick's contention that to grant a stay of the order of Hosein, J
. would be a restoring of the decision of the respondent Authority, which could only be done by the ful
l Court after consideration of the appeal.

In relation to a stay of execution pending appeal there are two matters that are to be, considered, the
first is, what are the prospects of success. It would be wrong for the Court on this application to say
anything that would indicate any view as to the merits of the action on fact or on law because the judg
ment is subject to appeal.

[email protected] p. 21
 ment is subject to appeal.

The grounds of appeal are:

(1) The judgment is unreasonable and cannot be supported having regard to the evidence.

(2) The judge erred in law:

(a) In failing to hold (and indeed in his judgment at all to consider) the submission made on behalf of
the appellant that the powers duties and functions exercisable by the Air Transport Licensing Authority
in relation to the issue of licences to Air Caribbean Limited, had been unlawfully delegated and/or exe
rcised by a body or by bodies of persons other than the Air Transport Licensing Authority.

(b) In failing to hold that the said licences to the Air Caribbean Limited had been unlawfully issued b
y reason of the delegation of its said functions powers and duties

In failing to hold that the application of the respondent, Air Caribbean Limited herein was vitiated by
the said unlawful delegation and/or that the said application assumed the validity of the issue of the
said licences. (end of page 86)

(d) In failing or refusing to strike out paragraph 34 (11) of the affidavit of Lesley Ann Lacky-Samaroo
dated and filed 6th April, 1998 and the exhibits referred to therein, and/or in taking the said exhibit
s into account in his consideration of the grounds of the application.

(e) In holding that there was any or any sufficient basis for the granting of the said application disc
losed in the affidavit filed on behalf of the respondent herein, Air Caribbean Limited.

(f) In holding that the evidence disclosed that the respondent herein, Air Caribbean Limited, had been
denied the opportunity to object to the grant of the licences issues to the appellant.

3. The judge erred in law in failing, having regard to his decision, to remit the question of the grant
of a licence to the, appellant, BWLA for further consideration by the Air Transport Licensing Authority
, given the nature of the case, the circumstances in which the licence had been granted and the inevita
ble and foreseeable consequences of the order.

4. The judge erred in law in that his order went beyond the necessity of the case.

5. That the judge erred in failing to justify, in his judgment not ordering that the Air Transport. Lic
ensing Authority pay the appellant's costs of the hearing.

The appeal will have to be heard and dealt with hereafter. Nothing I say is to be taken as in anyway ex
pressing a view as to the ultimate outcome of the appeal as being an appeal that is obviously destined
to fail or obviously instituted for purposes of delay. I can take into account a view that the appeal i
s wholly unmeritorious and wholly unlikely to succeed.

[email protected] p. 22
 With regard to Ground 2 (a) to (c) - Mr. Daly who had appeared in the High Court indicated to this Cour
t that in its written submissions the appellant contended that the respondent Air Caribbean could not b
ring the action. Counsel for the appellant Mr. Maharaj submitted that the judge failed to deal with thi
s aspect in his judgment. It appears therefore that there is room for argument before the Court of Appe
al in what appears to be a. substantial ground of appeal. (end of page 87)

The second point is are there any special circumstances that would, justify exceptionally the grant of
a stay.

In Romain v. WASA (supra) de la Bastide, C.J. stated with reference to Linotype Hell Finance Limited v.
Baker (supra) "with great respect that While the judgments of the Court of Appeal in England are highly
persuasive, so far as we are concerned, they are not binding on us and I reserve our position in relati
on to the principle which governs the grant of a stay and in particular the recent revision of the prin
ciple applicable."

From the affidavit of Peter Hill filed on June 25, 1998 he, deposed inter alia at:

paragraph 13:

"The appellant makes its Tobago flights available around the world through all international reservatio
ns systems. This enables customers coming through any of its international ports to book travel directl
y to Tobago... "

"( The process for removing BWIA flights from these data bases, could take two to three weeks. Until th
ey are removed there is a strong risk that international passengers could book flights with a connectio
n to Tobago arid arrive in Trinidad to find themselves in a position where they have no BWIA connecting
flight( "

At paragraph 14:

"Further the appellant faces the difficulty of having to notify passengers who have already booked flig
hts in unrealistically short period of time. From the preparation of the amended schedule of flights to
the time of notification to other airline passengers the time lapse would take about 2 weeks The notifi
cation of BWIA booked passengers would take about 7 days based an the number of passengers which the ap
pellant needs to advise. "

At paragraph. 15:

"The inability of the appellant to fly to Tobago would have a severe, adverse financial impact not only
on the airline but on the Tobago tourist industry. As far as the airline is concerned not only do fligh
t crews still have to be paid even if they do not work, but it is most likely that passengers and cargo
that cannot get a connection from Trinidad and Tobago would not (end of page 88) fly the long haul flig
ht from international destinations but would opt to use a foreign carrier instead.

At paragraph 21 the deponent also referred to the judgment of Hosein, J. where the judge found that the
respondent Air Caribbean did not have an exclusive right to service the airbridge between Trinidad and
Tobago.

Taking into consideration all the aforementioned principles as referred by counsel also the powers of a

[email protected] p. 23
 Taking into consideration all the aforementioned principles as referred by counsel also the powers of a
single judge as provided for in the Rules of the Supreme Court ( order 59 r. 20(1) (b) it is my view th
at a stay should be granted for the period referred I the summons filed on June 25 1998, in effect the
decision of Hosein, J. dated June 18 1998 is suspended until August 31 1998.

Costs to be Costs in the appeal certified fit for senior and junior counsel.

Dated this 1st day of July 1998

J. Permanand, J.A.

Agreement between the Government of Barbados and the

 Revolutionary Government of the Republic of Cuba for Air Services
between and beyond their respective territories
https://carilaw.cavehill.uwi.edu/permalink/carilaw21142
Subject: Air Services
Citation Number: 1973 BB TS 2

  VIEW FULL TEXT AS A WORD DOCUMENT

Full Text
Agreement between the Government of Barbados and the Revolutionary Government of the Republic of Cuba f
or Air Services between and beyond their respective territories

The Government of Barbados and the Revolutionary Government of the Republic of Cuba;

Being parties to the Convention on International Civil Aviation opened for signature at Chicago on the
seventh day of December, 1944;

Desiring to develop and strengthen their reciprocal relations in the field of civil aviation and to con
clude an Agreement, supplementary to the said Convention, for the purpose of establishing air services
between and beyond their respective territories;

Have agreed as follows:

Article I

For the purpose of this Agreement, unless the context otherwise requires:

[email protected] p. 24
 (a) the term "aeronautical authorities" means in the case of Barbados, the Minister responsible for civ
il aviation, and any person or body authorised to perform any functions at present exercisable by the s
aid Minister of similar functions, and, in the case of the Republic of Cuba, the Director General of th
e Instituto de Aeronautics Civil de Cuba, and any other person or body authorised to perform any functi
ons at present exercisable by the said Director General or similar functions;

(b) the term "the Convention" means the Convention on International Civil Aviation opened for signature
at Chicago on the seventh day of December; 1944, and includes any Annex adopted under Article 90 of tha
t Convention and any amendment of the Annexes or Convention under Articles 90 and 94 thereof so far as
those Annexes and amendments have become effective for or been ratified by both Contracting Parties;

(c) the term "designated airline" means an airline which has been designated and authorised in accordan
ce with Article 3 of this Agreement;

(d) the term "tariff" means the prices to be paid for the carriage of passengers and cargo and the cond
itions under which those prices apply, including prices and conditions for agency and other auxiliary s
ervices, but excluding remuneration and conditions for the carriage of moil;

(e) the term "territory" in relation to a State means the land areas and territorial waters adjacent th
ereto under the sovereignty, protection or trusteeship of that State; and

(f) the terms "airline", "air service", "international air service", and "stop for non-traffic purposes
" have the meanings respectively assigned to them in Article 96 of the Convention.

Article 2

Each Contracting Party grants to the other Contracting Party the rights specified in this Agreement for
the purpose of establishing international air services on the routes specified in the appropriate Secti
on of the Schedule annexed to this Agreement. Such services and routes are hereafter called "the agreed
services" and "the specified routes'.' respectively. The airlines designated by each Contracting Party
shall enjoy, while operating an agreed service on a specified route, the following rights-

(a) to fly without landing across the territory of the other Contracting

Party;

(b) to make stops in the said territory for non-traffic purposes; and

(c) to make stops in the said territory, subject to any restriction specified in the Schedule to this A
greement, at the points specified for that route in the Schedule for the purpose of putting down and ta
king up international traffic in passengers, cargo and mail.

Article 8

1. Each Contracting Party shall have the right to designate in writing to the other Contracting Party o
ne or more airlines for the purpose of operating the agreed services on the specified routes.

2. On receipt of such designation, the other Contracting Party shall, subject to the provisions of para
graphs 3 and 4 of this Article, without delay grant to the airline or airlines designated the appropria
te operating authorisations.

3. The aeronautical authorities of one Contracting Party may require an airline designated by the other
Contracting Party to satisfy them that it is qualified . to fulfil the conditions prescribed under the
laws and regulations normally and reasonably applied to the operation of international air services by
such authorities in conformity with the provisions of the Convention.

4. Each Contracting Party shall have the right to refuse to grant the operating authorisations referred
to in paragraph 2 of this Article, or to impose such conditions as it may deem necessary on the exercis
e by a designated airline of the rights specified in Article 2 of this Agreement, in any case where the

[email protected] p. 25
 e by a designated airline of the rights specified in Article 2 of this Agreement, in any case where the
said Contracting Party is not satisfied that substantial ownership and effective control of that airlin
e are vested in the Contracting Party designating the airline or in its nationals.

5. When an airline has been so designated and authorised it may begin at any time to operate the agree
services for which it has been designated, provided that a tariff established in accordance with the pr
ovisions of Article 10 of this agreement is in force in respect of those services; and provided further
that the frequency and scheduling of the services to be operated by such airline have been approved by
the aeronautical authorities of the Contracting Party which has granted the operating authorisation.

Article 4

1. Each Contracting Party shall have the right to revoke an operating authorisation or to suspend the e
xercise of the rights specified in Article 2, of this Agreement by an airline designated by the other C
ontracting Party, or to impose such conditions as it may deem necessary on the exercise of these rights
-

(a) in the case of failure by that airline to comply with the laws or regulations of the Contracting Pa
rty granting these rights; or

(b) in case the airline otherwise fails to operate in accordance with the conditions prescribed under t
his Agreement.

2. Unless immediate revocation, suspension or imposition of the conditions mentioned in paragraph 1 of

this Article is essential to prevent further infringements of laws or regulations, such right shall be
exercised only after consultation with the other Contracting Party.

Article 5

The frequency and scheduling of services to be operated by the designated airlines of one Contracting P
arty shall be subject to the approval of the aeronautical authorities of the other Contracting Party.

Article 6

1. Aircraft operated on international air services by the designated airlines of either Contracting Par
ty, as well as their regular equipment, supplies of fuel and lubricants, and aircraft stores (including
food, beverages and tobacco) on board such aircraft shall be exempt from all customs duties, inspection
fees and other similar charges on arriving in the territory of the other Contracting Party, provided su
ch equipment and supplies remain on board the aircraft up to such time as they are re-exported or are u
sed on the part of the journey performed over that territory.

2. There shall also be exempt from the same duties, fees and charges, with the exception of charges cor
responding to the service performed-

(a) aircraft stores taken on board in the territory of a Contracting Party, within limits fixed by the
authorities of the said Contracting Party, and for use on board outbound aircraft engaged in an interna
tional air service of the other Contracting Party;

(b) spare parts introduced into the territory of either Contracting Party for the maintenance or repair
of aircraft used on international air services by the designated airlines of the other Contracting Part
y;

(c) fuel and lubricants destined to supply outbound aircraft operated on international air services by
the designated airlines of the other Contracting Party, even when these supplies are to be used on the
part of the journey performed over the territory of the Contracting Party in which they are taken on bo
ard.

Materials referred to in sub-paragraphs (a), (b) and (c) above may be required to be kept under Customs
supervision or control.

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 Article 7

The regular airborne equipment, as well as the materials and supplies retained on board the aircraft of
either Contracting Party, may be unloaded in the territory of the other Contracting Party only with the
approval of the Customs authorities of that territory. In such case, they may be placed under the super
vision of the said authorities up to such time as they are re-exported or otherwise disposed of in acco
rdance with Customs regulations.

Article 8

1. There shall be fair and equal opportunity for the airlines of both Contracting Parties to operate th
e agreed services on the specified routes between their respective territories.

2. In operating the agreed services, the airlines of each Contracting Party shall take into account the
interest of the airlines of the other Contracting Party so as not to affect unduly the services which t
he latter provide on the whole or put of the same routes.

3. The agreed services provided by the designated airlines of the Contracting Parties shall bear close
relationship to the requirements of the public for transportation on the specified routes and shall hav
e as their primary objective the provision, at a reasonable load factor, of capacity adequate to carry
the current and reasonably anticipated requirements for the carriage of passengers, cargo and mail orig
inating from or destined for the territory of the Contracting Party which has designated the airline. P
rovision for the carriage of passengers, cargo and mail both taken up and put down at points on the spe
cified routes in the territories of States other than that designating the airline shall be made in acc
ordance with the general principles that capacity shall be related to -

(a) traffic requirements to and from the territory of the Contracting Party which has designated the ai
rline;

(b) traffic requirements of the area through which the agreed service passes, after taking account of o
ther air transport services established by airlines of the States comprising the errs; and

(c) the requirements of through airline operation.

3. Article 9

In operating any agreed service on any specified route a designated airline of one Contracting Party ma
y substitute one aircraft for another at a point in the territory of the other Contracting Party on the
following conditions only-

(a) that it is justified by reason of economy of operation;

(b) that the aircraft used on the section of the route more distant from the terminal in the territory
of the first Contracting Party is not larger in capacity than that used on the newer section;

(c) that the aircraft used on the more distant section shall operate only in connections with and as an
extension of the service provided by the aircraft used on the nearer section and shall be scheduled so
to do; the former shall arrive at the point of change for the purpose of carrying traffic transferred f
rom, or to be transferred into, the aircraft used on the nearer section; and its capacity shall be dete
rmined with primary reference to this purpose;

(d) that there is an adequate volume of through traffic;

(e) that the airline shall not hold itself out to the public by advertisement or otherwise as providing
a service which originates at the point where the change of aircraft is made;

(f) that the provisions of Article 8 of this Agreement shall govern all arrangements made with regard t
o change of aircraft;

(g) that in connection with any one aircraft flight into the territory in which the change of aircraft

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 (g) that in connection with any one aircraft flight into the territory in which the change of aircraft
is made, only one flight may be made out of that territory.

Article 10

1. The tariffs to be charged by the designated airlines of one Contracting Party for carriage to or fro
m the territory of the other Contracting Party shall be established at reasonable levels, due regard be
ing paid to all relevant factors including cost of operation, reasonable profit, characteristics of ser
vice and the tariffs of other airlines.

2. The tariffs referred to in paragraph 1 of this Article shall, if possible, be agreed between the des
ignated airlines of both Contracting Parties. These airlines may consult other airlines operating over
the whole or part of the route.

3. Where one Contracting Party has not designated an airline, the tariffs shall be drawn up by the desi
gnated airline or airlines of the other Contracting Party.

4. The tariffs so agreed or drawn up shall be submitted by the designated airline or airlines to the ae
ronautical authorities of the Contracting Parties for approval at least ninety (90) days before the pro
posed date of their introduction. In special cases this period may be reduced, subject to the agreement
of the aeronautical authorities of both Contracting Parties.

5. Subject to the provisions of paragraph 8 of this Article, no tariff shall come into force unless it
is approved by the aeronautical authorities of both Contracting Parties.

6. If the aeronautical authorities of a Contracting Party are dissatisfied with a tariff submitted to t
hem under paragraph 4 of this Article the aeronautical authorities 'of the other Contracting Party and
the designated airline or airlines concerned shall be so informed at least thirty (30) days prior to th
e proposed date of introduction of such tariff.

7. If a tariff cannot be agreed in accordance with paragraph 2 of this Article, or if during the period
applicable in accordance with paragraph 6 of this Article, the aeronautical authorities of one Contract
ing Party give the aeronautical authorities of the other Contracting Party notice of their dissatisfact
ion with a tariff submitted in accordance with the provisions of paragraph 4 of this Article, the aeron
autical authorities of the two Contracting Parties shall endeavour to determine the tariff by mutual ag
reement.

8. If the aeronautical authorities cannot agree on the determination of any tariff under paragraph 7 of
this Article, the dispute shall be settled in accordance with the provisions of Article 14 of this Agre
ement.

9. A tariff established in accordance with the provisions of this Article shall remain in force until a
new tariff has been established under the procedures set out in this Article or it is agreed by the aer
onautical authorities or decided in accordance with the provisions of Article 14 of this Agreement that
the tariff, shall be discontinued.

Article 11

The aeronautical authorities of a Contracting Party shall supply to the aeronautical authorities of the
other Contracting Party at their request such periodic or other statements of statistics as may be reas
onably required for the purpose of reviewing the capacity provided on the agreed services by the design
ated airlines of the Contracting Party referred to first in this Article. Such statements shall include
all information required to determine the amount of traffic carried by those airlines on the agreed ser
vices and the origins and destinations of such traffic.

Article 12

1. Each Contracting Party, in accordance with its applicable exchange control regulations, grants to th
e designated airline or airlines of the other Contracting Party the right of free transfer of the exces
s of receipts over expenditure achieved by that airline or those airlines in its territory in connectio

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 n with the carriage of passengers, mail or cargo. Such transfer shall be at the official rate of exchan
ge, where such a rate exists, or otherwise at a rate equivalent to that at which the receipts were earn
ed.

2. Where the foreign currency exchange system is governed by a special agreement between the Contractin
g Parties, this special agreement shall apply.

Article 13

1. In a spirit of close co-operation, the aeronautical authorities of the Contracting Parties shall con
sult each other from time to time with a view to ensuring the implementation of, and satisfactory compl
iance with, the provisions of this Agreement and the Schedule annexed thereto and shall consult when ne
cessary to provide for modification thereof.

2. Either Contracting Party may request consultation, which may be through discussion or by corresponde
nce and shall begin within a period of sixty (60) days of the date of receipt of the request, unless bo
th Contracting Parties agree to an extension of this period.

Article 14

If any dispute arises which relates to the interpretation or application of this Agreement or the Sched
ule annexed thereto, the aeronautical authorities of both Contracting Parties shall, in the first place
, endeavour to settle it by negotiation. If the aeronautical authorities fail to reach a settlement, th
e dispute shall be referred, through the usual diplomatic channels, to the Contracting Parties for thei
r decision.

Article 15

If either of the Contracting Parties considers it desirable to modify any provision of this Agreement i
ncluding the Schedule annexed thereto, such modification, if agreed between the Contracting Parties sha
ll come into effect when confirmed by an Exchange of Diplomatic Notes.

Article 16

This Agreement and its Schedule shall be amended by an Exchange of Diplomatic Notes between the Contrac
ting Parties so as to conform with any multilateral Convention or Agreement which may become binding on
them.

Article 17

Either Contracting Party may at any time give notice to the other Contracting Party of its decision to
terminate this Agreement; such notice shall be simultaneously communicated to the international Civil A
viation Organization. In such case the Agreement shall terminate twelve (12) months after the date of r
eceipt of the notice by the other Contracting Party, unless the notice to terminate is withdrawn by agr
eement before the expiry of this period. In the absence of acknowledgement of the receipt by the other
Contracting Party, notice shall be deemed to have been received fourteen (14) days after the receipt of
the notice by the International Civil Aviation Organization.

Article 18

This Agreement shall be applicable from the date of signature and shall enter into force definitively o
n the date when the Contracting Parties shall have notified each other through diplomatic channels of t
he completion of the constitutional measures necessary to give effect to this Agreement.

In witness whereof the undersigned, being duly authorised by their respective Governments, have signed
this Agreement.

DONE in duplicate at Bridgetown this seventh day of December, 1973, in the English and Spanish language
s, both texts having equal authority.

[email protected] p. 29
 GEORGE C. R. MOE

For the Government of Barbados J. F. COSSIO

For the Revolutionary Government of the Republic of Cuba

SCHEDULE

Section I

Route to be operated by the airline or airlines designated 6y Cuba:

Cuba - Points in the Caribbean (excluding Haiti, Dominican Republic, Puerto Rico and the United States
Virgin Islands) - Bridgetown - Port of Spain Georgetown - Conakry or Freetown.

Section II

Route to be operated by the airline or airlines designated by Barbados:

Barbados - Points in the Caribbean (excluding the United States Virgin Islands, Puerto Rico, Dominican
Republic and Haiti) - Havana - A point in Mexico (to be named) - A point in Canada (to be named).

Notes

1. The designated airline or airlines of one Contracting Party may make stops at points outside the ter
ritory of the other Contracting Party other than those notified, provided that no commercial rights are
exercised by that airline or those airlines between such points and the territory of the other Contract
ing Party.

2. The designated airlines of the Contracting Parties may serve the points referred to above in any ord
er and may omit calling at any of them on any or all flights.

Agreement Establishing the Caribbean Environmental Health

 Institute
https://carilaw.cavehill.uwi.edu/permalink/carilaw21180
Subject: Environmental health
Environmental planning, Health
Citation Number: 1980 CARTS 1

  VIEW FULL TEXT AS A WORD DOCUMENT

Full Text
Open to: Any state other than those listed in the Annex which becomes a Member or Associate Member of t

[email protected] p. 30
 Open to: Any state other than those listed in the Annex which becomes a Member or Associate Member of t
he Caribbean community or any other State of the Caribbean region approved by the Governing Body of the
Institute.

Full text:

THE CONTRACTING PARTIES:

SEIZED with a common determination to improve the environmental health standards and consequently the q
uality of life of the people of the Caribbean Region, as articulated in the 1977 Declaration on Health
of the Conference of Ministers Responsible for Health;

RECOGNISING the need for a regional organisation to stimulate, coordinate and play a catalytic role in
environmental management and environmental health, particularly in the areas of manpower development, p
roject development, information collection and dissemination, and applied research;

AWARE that a regional approach to the solution of environmental problems will not only be more cost eff
ective but also aid the integration effort in a meaningful manner;

CONVINCED that the establishment of a regional institution for environmental management, with emphasis
on environmental health, will expedite work on programmes designed to achieve the stated goals;

HEREBY AGREE AS FOLLOWS:

ARTICLE 1
ESTABLISHMENT
The Caribbean Environmental Health Institute (hereinafter referred to as "the Institute") is hereby est
ablished, having the membership, powers and functions hereinafter specified.

ARTICLE 2
MEMBERSHIP
1. Membership of the Institute shall be open to
States listed in the Annex to this Agreement;
Any other State of the Caribbean Region which becomes a Member or Associate Member of the Caribbean Com
munity;
Any other State of the Caribbean Region approved by the Governing Body of the Institute.
2. The States listed in the Annex to this Agreement, the Governments of which sign the Agreement in acc
ordance with Article 19, and ratify it in accordance with Article 20, shall become members of the Insti
tute.

ARTICLE 3
OBJECTIVES OF THE INSTITUTE
1. The objectives of the Institute shall be:

(a) to provide technical and advisory services to member States in all areas of environmental managemen
t, including water supplies, liquid waste and excreta disposal, solid waste management, water resource
management, coastal zone management including beach pollution, air pollution, occupational health, vect
or control, agricultural pollution and pesticides control, disaster prevention and preparedness, natura
l resource conservation, environmental institution development and the socio economic aspects of enviro
nmental management;
(b) to prepare and keep inventories of:
education and training programmes especially those in related disciplines;
regional experts and other manpower resources;
(c) to promote and collaborate in the planning and programming of symposia, workshops and on the job tr
aining in Member States;
(d) to conduct courses, seminars, symposia and other workshops at either the Institute or other selecte
d regional institutions;
(e) to arrange and accept grants for financing scholarships and fellowships to facilitate the training

[email protected] p. 31
 (e) to arrange and accept grants for financing scholarships and fellowships to facilitate the training
of nationals of Member States;
(f) to act as:

a regional reference centre for the collection and dissemination of technical and scientific informatio
n;
(ii) a focal point for various environmental monitoring networks for the collection and dissemination o
f environmental data, especially health related, in the Caribbean Region;

to promote and co ordinate applied research relevant to the environmental problem of the Caribbean Regi
on as identified by Member States;
to stimulate the provision of engineering, public health laboratory and other related environmental ser
vices for Member States, or groups of Member States in accordance with their desires;
to promote uniformity in professional practice, design standards, and technical methods in programmes f
ormulated for the improvement of environmental health and environmental management;
to promote activities which will facilitate the implementation of the Environmental Health Strategy.

2. For the purposes of this Article, the Institute may take such action as may be necessary or expedien
t for the attainment of its objectives and the performance of its functions.

ARTICLE 4
STRUCTURE OF THE INSTITUTE
The Institute shall have the following:

(a) a Governing Body;

(b) a Board of Directors with a Chairman and Deputy Chairman;
(c) an Executive Director;
(d) such other officers and staff as may be necessary.

ARTICLE 5
GOVERNING BODY OF THE INSTITUTE
1. The Conference of Ministers Responsible for Health (hereinafter referred to as "the Conference") sha
ll be the Governing Body of the Institute.

2. Without prejudice to the generalities of paragraph 1 of the Article, the Conference shall have the p
ower to:
give general or specific policy directions to the Board of Directors;
appoint an Executive Director after it has considered the recommendation of the Board of Directors;
(c) appoint the Chairman of the Board of Directors;
authorise agreements to be entered into with other countries, international agencies and entities;
approve the budget of the Institute to be prepared annually for the following three (3) financial years
;
approve the work programme annually for the next following three (3) financial years.

ARTICLE 6
MEMBERSHIP OF THE BOARD
1. The composition of the Board of Directors (hereinafter referred to as "the Board") shall be as follo
ws:

(a) One member nominated by:

the Government of Barbados;
the Government of Guyana;
the Government of Jamaica;
the Government of Saint Lucia;
(v) the Government of Trinidad and Tobago;
(vi) the Governments of Grenada and St. Vincent;
the Governments of Antigua and Dominica;
the Governments of Bahamas and Bermuda;
the Governments of Belize, St. Christopher Nevis Anguilla, and Montserrat;
(x) the Caribbean Development Bank;

[email protected] p. 32
 (xi) the Caribbean Community Secretariat;

(b) the Chairman;

(c) a representative from:

(i) the University of the West Indies;
(ii) the University of Guyana;
(iii) the Pan American Health Organisation/World Health Organisation;
(iv) the United Nations Environment Programme;

(d) the Executive Director ex officio.

2. Subject to the provisions of paragraph 2 of Article 8, the Chairman and the Executive Director, toge
ther with the representatives of the Caribbean Community Secretariat, University of the West Indies, Un
iversity of Guyana, Pan American Health Organisation/World Health Organisation, United Nations Environm
ent Programme and the Caribbean Development Bank, shall sit as non voting members of the Board.

3. (a) Alternate Directors shall be appointed by the appropriate authorities in accordance with paragra
ph 1 above.
Directors and Alternate Directors shall be persons of integrity and high competence preferably with wid
e professional experience in Environmental Health, Environmental Management, or Community Health with r
espect to practice, administration or research and shall be selected with due regard to the principles
of equitable geographical distribution.

4. Directors shall hold office for a term of three years and shall be eligible for reappointment for no
t more than another term in succession. They shall continue in office until their successors shall have
been appointed and assumed office. If the office of a Director becomes vacant before the expiration of
his term of office, the vacancy shall be filled by a new Director who shall be appointed in the same ma
nner as his predecessor and he shall hold office for the remainder of the term of office of his predece
ssor.

ARTICLE 7
FUNCTIONS AND POWERS OF THE BOARD OF DIRECTORS

1. The Board of the Institute shall be responsible, subject to any directions of the Conference, for th
e general operation of the Institute. It shall implement the general policies of the Institute and may
give the Executive Director general instructions for the implementation of such policies.

2. Without prejudice to the functions specified in paragraph 1 of this Article, the Board shall:

make recommendations to the Conference in respect of the appointment of the Executive Director;
(b) receive and may approve the annual report of the Executive
Director, which shall include the financial report;
make recommendations for the approval annually by the Conference of the work programmes for the next fo
llowing three financial years;
make recommendations for the approval by the Conference of Estimates of Expenditure and the audited acc
ounts of the Institute;
assist the Executive director in seeking the support and resources necessary for the fulfilment of the
objectives of the Institute;
except as is otherwise provided exercise control over appointments, and termination of appointments;
cause to be kept appropriate books of account, which shall be audited at least once a year by an audito
r who shall be a qualified and independent accountant appointed by the Board and shall also cause to be
prepared annual audited statements showing in detail the income and expenditure of the Institute and th
e assets and liabilities as they stood at the end of the immediate preceding financial year;
carry out such other functions as the Conference may delegate to it from time to time.

3. The Board may delegate to the Executive Director such of its functions as it thinks fit, provided th
at no such delegation shall preclude the Board from so acting at any time it thinks fit, without prejud
ice however to anything done by the Executive Director under that delegation.

[email protected] p. 33
 4. The Board may also appoint a Technical Advisory Committee to assist in discharging its responsibilit
ies if this is considered necessary.

ARTICLE 8
MEETINGS OF THE BOARD

1. The Board shall meet at least twice a year or as often as the business of the Institute may require.
A majority of Directors entitled to vote shall constitute a quorum for any Meetings of the Board.
2. Each Director entitled to vote shall have one vote and the Chairman shall have a casting vote only.
3. Subject to this Agreement, the Board shall regulate its own procedure.

ARTICLE 9
CHAIRMAN OF THE BOARD
1. The Chairman of the Board shall be appointed by the Conference after considering the recommendation
of the Board.

2. The Chairman of the Board while holding office shall not be a Director or Alternate Director appoint
ed by a Member State or any Body which is represented on the Board.
3. The term of office of the Chairman shall be for three years and he shall be eligible for reappointme
nt.
4. The Deputy Chairman shall be elected by the Board from among its members.

ARTICLE 10
THE EXECUTIVE DIRECTOR

1. The duties of the Executive Director shall include:

the day to day management and control of the Institute;
(b) the control of the expenditure of the funds of the Institute within the approved estimates;
(c) the performance of such functions of the Board as may be delegated to him;
(d) the organisation of special programmes and projects in furtherance of the objectives of the Institu
te;
ensuring that the correct procedures are followed with respect to all matters within the competence of
the Institute;
representation, either personally, or by a nominee appointed by him, upon such Authorities, Boards or C
ommittees of the Caribbean Community as may be agreed on with the Community;
(g) the submission of an annual report to the Board;
(h) preparation annually for approval by the Board of work programmes for the next following three fina
4. ncial years;
preparation annually for the approval by the Board of Directors, of estimates of expenditure for the ne
xt following financial year.

2. In the absence or the incapacity of the Executive Director or while that office is vacant, the Board
shall make suitable arrangements for the carrying out of the duties of the Executive Director and shall
submit such arrangements for the approval of the Conference.

ARTICLE 11

STAFF OF THE INSTITUTE

1. The Institute shall appoint such members of its staff in accordance with the estimates approved by t
he Conference as are necessary for the performance of its functions.
2. All staff appointments shall be made subject to the terms and conditions of service determined by th
e Board.

ARTICLE 12
REVENUE
The revenue of the Institute shall be derived from:
the annual contributions of Member States;
(b) such contributions as may be made by other States or agencies whether within outside the Region;

[email protected] p. 34
 (c) such grants as may be made from any source for the financing of applied research, information colle
ction and dissemination, manpower development, advisory services, engineering projects, fellowships, ho
lding of symposia, courses or for any other purpose consistent with its objectives as set out in Articl
e 3;
such fee as may be determined from time to time by the Board as fees payable to the Institute;
payments made to the Institute in consideration of consultancy services provided through the Institute;
(f) income from any other sources.

ARTICLE 13
LOCATION OF THE INSTITUTE
1. The Headquarters of the Institute shall be located in Saint Lucia.
2. The Secretary General of the Caribbean Community Secretariat shall negotiate suitable arrangements w
ith the Government of Saint Lucia for the establishment of the Headquarters of the Institute at the Res
earch and Control Department, Morne Fortune.
3. The conclusion of such arrangements shall be subject to the approval of the Conference.
4. The Institute may establish in any Member State such other branch or research stations as may be dee
med necessary by the Board.

ARTICLE 14
RELATIONS WITH REGIONAL OR NATIONAL
TEACHING INSTITUTIONS OR RESEARCH CENTRES
The Institute shall seek such affiliation with regional or national teaching or research centres as wil
l promote the achievement of its objectives.

ARTICLE 15
LEGAL STATUS
1. The Institute shall possess full juridical personality.

2. The Institute shall enjoy in each Member State such legal status and legal capacity as may be necess
ary for the fulfilment of its objectives and the exercise of its functions. In particular the Institute
shall have the capacity to:
(a) contract;
(b) acquire and dispose of movable and immovable property;
(c) institute legal proceedings.
3. The Institute shall enjoy in each Member State such privileges and immunities as may be necessary fo
r the fulfilment of its objectives and the exercise of its functions. In particular, property and asset
s of the Institute wheresoever located, and by whomsoever held, shall be immune from either confiscatio
n or expropriation.
4. The Institute may cooperate with international organisations active in similar fields and may seek a
ll appropriate contacts with a view to cooperating with other Institutions in similar fields.

ARTICLE 16
IMMUNITIES AND PRIVILEGES OF INSTITUTE PERSONNEL

The Executive Director and other officials and employees of, and experts performing missions for, the I
nstitute:
(a) shall be immune from legal process with respect to acts performed by them in their official capacit
y;
(b) except in the countries of which they are citizens, shall be accorded such immunities from immigrat
ion restrictions, alien registration requirements and national service obligations, and such facilities
as regards exchange control, as are not less favourable than those accorded by the participating Govern
ments concerned, to the representatives, officials, and employees of diplomatic missions of comparable
rank.

ARTICLE 17
DISPUTES
1. If a dispute should arise between the Institute and a Member State or any of the Authorities represe
nted on the Board, such dispute shall be submitted to arbitration by a Tribunal of three Arbitrators. E
ach party shall appoint one arbitrator and the two arbitrators shall appoint a third who shall be Chair
man. If within 30 days of the request for arbitration either party has not appointed an arbitrator, or

[email protected] p. 35
 man. If within 30 days of the request for arbitration either party has not appointed an arbitrator, or
if within 15 days of the appointment of the second arbitrator, the third arbitrator has not been appoin
ted either party may request the Secretary General of the Caribbean Community Secretariat to appoint an
arbitrator.
2. The procedure of the arbitration shall be fixed by the arbitrators. However, the third arbitrator sh
all be empowered to supply all rules of procedure in any case of disagreement with respect thereto.
3. The majority vote of the arbitrators shall be sufficient to reach a decision which shall be final an
d binding upon the parties.

ARTICLE 18
IMPLEMENTATION
Member States shall take all steps necessary for the implementation of this Agreement.

ARTICLE 19
SIGNATURE
This Agreement shall be deposited with the Secretariat of the Caribbean Community (hereinafter referred
to as "the Depositary") and shall be open for signature until the entry into force of this Agreement, b
y any of the States listed in the Annex to this Agreement (hereinafter referred to as "the Annex").

ARTICLE 20
RATIFICATION
This Agreement shall be subject to ratification by the signatories in accordance with their respective
constitutional procedures. Amendments to the Agreement shall likewise be subject to ratification by all
Member States. Instruments of Ratification shall be deposited with the Depositary which shall transmit
copies to each Member State.

ARTICLE 21
ENTRY INTO FORCE
This Agreement shall enter into force by the deposit of the Instruments of Ratification in accordance w
ith Article 20 by six of the States listed in the Annex including any three out of Barbados, Guyana, Ja
maica and Trinidad and Tobago and three out of the remaining States listed in the Annex.

ARTICLE 22
ACCESSION
1. Any State listed in the Annex which, upon the entry into force of this Agreement has not signed this
Agreement in accordance with Article 19 and which wishes to become a Member after that date may accede
to the Agreement by deposit of appropriate Instruments of Accession with the Depositary.
2. Any State other than States listed in the Annex which becomes a Member or Associate Member of the Ca
ribbean Community or any other State of the Caribbean Region approved by the Governing Body of the Inst
itute may accede to the Agreement.
3. Admission to membership under paragraph 2 of this Article shall be upon such terms and conditions as
the Conference may decide and shall take effect from the date on which the appropriate Instrument of Ac
cession is deposited with the Depositary.

ARTICLE 23
AMENDMENT
1. Any member State may make proposals for amending this Agreement. Such proposals shall be submitted t
o the Conference for its approval through the Depositary.
2. Any proposed amendment that is approved by the Conference shall be submitted to each Member State fo
r ratification.
3. Any such amendment shall enter into force upon the deposit of the Instruments of Ratification by all
Member States.

ARTICLE 24
WITHDRAWAL
1. Any Member State may withdraw from this Agreement by giving not less than 12 months notice in writin
g to the Depositary which shall forthwith notify other Member States.
2. A Member State withdrawing undertakes to honour any financial obligations duly assumed during its pa

[email protected] p. 36
 2. A Member State withdrawing undertakes to honour any financial obligations duly assumed during its pa
rticipation in this Agreement.

ARTICLE 25
INAUGURAL MEETING
As soon as this Agreement enters into force, each Member State together with the authorities represente
d on the Board shall appoint a Director of the Board in accordance with Article 6, and the Secretary Ge
neral of the Caribbean Community Secretariat shall convene the Inaugural Meeting of the Board of Direct
ors.
(Article 2)

ANNEX
LIST OF STATES

Antigua
Bahamas
Barbados
Belize
Bermuda
Cayman Islands
Commonwealth of Dominica
Grenada
Guyana
Jamaica
Montserrat
St. Christopher Nevis Anguilla
Saint Lucia
St. Vincent and the Grenadines
Trinidad and Tobago
Turks and Caicos Islands
Virgin Islands (British)

IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have
affixed their signatures to this Agreement.

Done at Georgetown, this 10th day of July, One thousand nine hundred and eighty in a single copy which
shall be deposited with the Caribbean Community Secretariat which shall transmit certified copies to al
l the Contracting States.

Signed by
For the Government of Antigua an
at

Signed
by For the Government of Bahamas on
at
Signed by
For the Government of Barbados on
at
Signed by
For the Government of Belize on
at
Signed by
For the Government of Bermuda on
at
Signed by
For the Government of Cayman Islands on
at
Signed by
For the Government of Commonwealth of Dominica on

[email protected] p. 37
 at
Signed by
For the Government of Jamaica on
at
Signed by
For the Government of Montserrat on
at
Signed by
For the Government of St. Christopher Nevis Anguilla on
at
Signed by
For the Government of Saint Lucia on
at
Signed by
For the Government of St. Vincent and the Grenadines on
at
Signed by
For the Government of Trinidad and Tobago on
at
Signed by
For the Government of Turks and Caicos Islands on
at
Signed by
For the Government of Virgin Islands (British) on

at

HOLDER v. CARIBBEAN AIR CARGO CO. LTD.

https://carilaw.cavehill.uwi.edu/permalink/carilaw2745
Subject: Employment law
Citation Number: BB 1984 HC 32
Country: Barbados
Court: High Court
Date: June 8, 1984
Judge: Williams, J.
Suit No.: Civil Suit No. 719 of 1983

[email protected] p. 38
 Sub-subject: Contract of service - Wrongful dismissal - Whether the defendant wrongfully
suspended the plaintiff without pay and dismissed him without just cause - Plaintiff
was involved in an incident concerning the misuse of property belonging to
someone else which he converted to his own use and which was the subject matter
of a legal action - The plaintiff was acquitted of this action in the Magistrate's Court -
Court found that the plaintiff having converted the property to his own use would
have caused the employer much embarrassment which would justify instant
dismissal - Since the plaintiff was only suspended and not dismissed, the defendant
had shown no justification for the subsequent dismissal especially since the
plaintiff was acquitted of the charge - Court found also that the plaintiff was entitled
to claim pay for the period over which he was suspended - The plaintiff was in the
company's service during suspension and there was no rule empowering the
employer to withhold his wages - Judgment given for the plaintiff in the sum of
$4,994.00.

  VIEW FULL TEXT AS A WORD DOCUMENT

Full Text
Mr. W.L. Inniss for the plaintiff.
Mr. D.A.C. Simmons Q.C., for the defendant.

WILLIAMS, J.: Caribbean Air Cargo Company Limited is a limited liability company which carries on busin
ess at Grantley Adams International Airport, Christ Church. By an agreement contained in a letter dated
the 9th of July, 1981 the company agreed to employ Emerald Holder, the plaintiff, as a mechanic. It is
pleaded by the plaintiff, and admitted by the defendant, that implied terms of the agreement were that
the plaintiff would receive salary for as long as the agreement was in force and that his service would
not be terminated except for just cause. The plaintiff's case is that the defendant on the 21st of Dece
mber, 1982 by letter wrongfully and in breach of the agreement suspended him without pay and on the 6th
of May, 1983 dismissed him without just cause. The plaintiff's claim is for his wages during his 19 wee
ks of suspension and for 3 weeks wages in lieu of notice. His further claim for 3 weeks vacation pay wa
s abandoned.

In the Defence it is denied that the defendant wrongfully or in breach of the agreement suspended the p
laintiff without pay or that the plaintiff was dismissed without just cause. (end of page 1)

Paragraphs 5 to 9 of the Defence contain what seems to be the meat of the defendant's case. They are -

"5. If, which is not admitted, the plaintiff was suspended and/or dismissed the said suspension and/or
dismissal was justified -

Particulars

At all material times on the 21st of December, 1982 the plaintiff was employed by the defendant in the
capacity of mechanic. A shipment of hams and turkeys consigned to Mr. Leroy Sisnett was placed by the p
laintiff on a pallet which was then put on a forklift truck, taken away and opened.

The hams and turkeys were removed and the plaintiff distributed them to other employees of the defendan
t.

The matter was investigated by the police and the defendant was gravely embarrassed by the plaintiff's
conduct.

At no time was it part of the plaintiff's duties as a mechanic, either to place consigned goods on the

[email protected] p. 39
 defendant's equipment or to remove and open and/or distribute and/or deal with goods not consigned to h
imself.

6. Further or in the alternative, at all material times there was an express term of the plaintiff's co
ntract of employment that he should not in any way tamper with goods consigned to customers of the defe
ndant or remove goods from packages consigned to the defendant's customers.

7. In the further alternative there were implied terms of the plaintiff's said contract of employment t
hat:

(a) he should take reasonable care in the exercise of his service for the defendant and
(b) he should obey all reasonable orders or instructions of the defendant.

8. In breach of the said terms and contract, the plaintiff failed to obey the reasonable orders of the
5. defendant and failed to take reasonable care in the exercise of his service.

9. By reason of the matters aforesaid the defendant was entitled to and was justified in dismissing the
plaintiff from his employment or terminating his contract of employment and/or service."

The plaintiff gave evidence and the witnesses for the defendant were Leon Romero, the defendant's manag
er of administration and air services, Kenneth Quintyne, the defendant's chief of security, and Winston
Bovell, a security guard employed by the defendant. Admitted in evidence were the plaintiff's letter of
appointment dated July 9, 1981 (Exhibit "EH 1"), a further letter relating to his appointment dated Sep
tember 21, 1982 (Exhibit "EH 2"), his job description as a mechanic (Exhibit "EH 3"), a Caribbean Air C
argo Company Limited cargo manifest for December 21, 1982 (Exhibit "R 1") and a telex of December 23, 1
982 (Exhibit "R 2"). (end of page 2)

I find as facts -

(1) that on December 21, 1982 the plaintiff was employed by the defendant as a mechanic at a weekly wag
e of $227.00; that he had been given a description of what his duties were as a mechanic, and that as a
mechanic he was not authorised to handle cargo arriving on the planes;

(2) that on the same date a box containing hams and turkeys arrived from Miami on flight No. D.C. 170;
and marked on the side of the box was the name "Sisnett" with an airway bill number;

(3) that the plaintiff assisted in handling this box from the plane into the warehouse, through customs
and then past the defendant's security. He later distributed the hams and turkeys among various persons
;

(4) that he was suspended from duty on the same date and dismissed on May 6, 1983.

The plaintiff's story is that he had arranged for hams and turkeys to be sent in from Miami on one of t
he defendant's flights, various persons having placed orders and given him the money and he having forw
arded the money to Miami; and he mistakenly thought that the box from which he made the distribution on
December 21 contained the hams which he had ordered and was expecting.

Whether this is a genuine story or not, it seems clear that the plaintiff converted to his own use prop
erty belonging to someone else which had been entrusted to the care of his employer. This would have ca
used much embarrassment to the defendant. It is my opinion that instant dismissal would have been justi
fied.

However, the defendant took a different course. The plaintiff was suspended and the police undertook a
prosecution. The plaintiff was acquitted presumably because the magistrate believed, or was left in dou
bt by, the plaintiff's story that he thought he was dealing with the hams and turkeys which he had orde
red. It was only after the plaintiff's acquittal that the plaintiff was dismissed.

The issue over the plaintiff's claim to be paid for the 19 weeks over which he was suspended seems stra
ightforward.

[email protected] p. 40
 The following statement appears in Fridman, Modern Law of Employment at p. 486 -

"Whether the employer has the power to suspend the employee for misconduct depends upon the terms of th
e particular contract of employment. Suspension will be wrongful on the part of the employer if there i
s no power to suspend given by the contract; in such a case the employee may sue for the wages which he
has lost by being suspended." (end of page 3)

The learned author went on to say that power to suspend may be given by statute governing the particula
r relationship of employer and employee concerned, or may be contained in an express term of the contra
ct or may be implied by the current, operative practice of the kind of employment in question.

In similar vein is Hepple & O'Higgins, Employment Laws, Fourth edition, at 472 (p.217) - "Suspension of
an employee without pay involves a derogation from the employee's contractual right to be paid and ther
efore is a breach of contract unless authorised by the contract itself."

There is nothing here to indicate that the defendant had any power under the contract to suspend the pl
aintiff and I will adopt the words of Alverstone, C.J. in Warburton v. Taff Vale Railway Company (1902)
18 T.L.R. 420 and say that the plaintiff was in the company's service during suspension and when he was
dismissed there is no rule empowering them to withhold his wages. Indeed the defendant in its pleading
admitted that it was an implied term of the agreement between the parties that the plaintiff would rece
ive salary for as long as the agreement was in force; and the agreement remained in force during the pe
riod the plaintiff was suspended.

On the question whether the plaintiff is entitled to any wages in lieu of notice I must determine the t
ime significance of the defendant's actions after the incident. Lush, J. said in Hanley v. Pease & Part
ners Ltd. [1915] 1 K.B. 698 at p. 705 -

"Assuming that there has been a breach on the part of the servant entitling the master to dismiss him,
he may if he pleases terminate the contract, but he is not bound to do it, and if he chooses not to exe
rcise that right but to treat the contract as a continuing contract notwithstanding the misconduct or b
reach of duty of the servant, then the contract is for all purposes a continuing contract subject to th
e master's right in that case to claim damages against the servant for his breach of contract."

It seems to me significant that the plaintiff was dismissed only after the conclusion of the criminal p
roceedings brought against him. The plaintiff was acquitted and one would have thought that an acquitta
l would have operated in his favour and not against him. In other words merely suspending the plaintiff
after the incident suggests a decision to let the question of dismissal await the determination of the
criminal Court on whether he had or had not acted dishonestly. (end of page 4)

No explanation having been offered, or reason given, for not dismissing the plaintiff at the time, my v
iew is that the defendant must be taken to have allowed the question of dismissal or no dismissal to de
pend on the outcome of the criminal charge brought against the plaintiff. In my opinion the plaintiff h
aving been acquitted, the defendant can show no justification for dismissing him at that stage. The def
endant had suffered embarrassment from the time the incident occurred. If there was no dismissal earlie
r, why after his acquittal?

No question has been raised as to the quantum of 3 weeks' pay claimed by the plaintiff.

The plaintiff is to have judgment against the defendant for $4,994.00 and costs.

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 RAMGOOLAM v. CARIBBEAN AIR CARGO CO. LTD. ET AL
https://carilaw.cavehill.uwi.edu/permalink/carilaw5919
Subject: Practice and procedure
Citation Number: TT 1995 HC 139
Country: Trinidad and Tobago
Court: High Court
Date: December 17, 1995
Judge: Bharath, J.
Suit No.: No. 166 of 1982
Sub-subject: Setting aside - Motion to set aside notice of full satisfaction and discontinuance of
6. an action - Notice operating as an agreement between the parties superseding the
claim - No jurisdiction with respect to the original cause of action - Motion
dismissed.

  VIEW FULL TEXT AS A WORD DOCUMENT

Full Text

RAMGOOLAM v. CARIBBEAN AIR CARGO LIMITED ET AL

https://carilaw.cavehill.uwi.edu/permalink/carilaw20698
Subject: Damages
Citation Number: TT 2002 HC 113
Country: Trinidad and Tobago
Court: High Court
Date: August, 19, 2002
Judge: Myers, J.
Suit No.: H.C.A. No. 166 of 1982
Sub-subject: Quantum - Whether the second defendant was liable for damages to the plaintiff
where the second defendant contracted with the first defendant - Finding that the
second defendant was not liable in damages for the loss/damage to cargo - No
award made since court found that the plaintiff had received US $31,500 from the
first defendant and could not be allowed to recover work for the same loss.

  VIEW FULL TEXT AS A WORD DOCUMENT

Full Text
[email protected] p. 42
 Appearances:

Mr. P. Persad-Maharaj (instructed by Mr. N Ojar) for the plaintiff.

Mr. Alvin Fitzpatrick SC and Mr. Colin Kangaloo (instructed by Fitzwilliam, Stone, Furness-Smith & Morg
an) for the second defendant

MYERS, J.:

INTRODUCTION: I had called the parties in on Friday, 26th July 2002 to deliver this judgment. Regretful
ly, I was forced to conclude that it was not quite ready for publication. Therefore, I made an Order di
smissing Mr. Ramgoolam's claim and indicated that I would hand down the written judgment as soon as pos
sible. This is that judgment.

[1] In mid-1981, Bajnath Ramgoolam needed to transport local frozen shrimp to Canada. Caribbean Air Car
go Limited, and ultimately Air Canada, did the job. Caricargo got the frozen shrimp to Miami and (end o
f page 1) brought Air Canada in to take it from there to Toronto. Mr. Ramgoolam did not much like the s
ervice provided, hence this litigation. Caribbean Air Cargo disappeared from the picture in July 1988,
having paid Mr. Ramgoolam a sum of money in settlement, which I have found to be US$31,500. I examine t
his in more detail during the course of this judgment. Some 20 years after the events, which gave, rise
to it, I have the responsibility of deciding Mr. Ramgoolam's claim against Air Canada, with all the evi
dential difficulties involved in trying elderly disputes.

THE WRIT OF SUMMONS, PLEADINGS AND ISSUES

[2] The original Writ of Summons was filed on the 16th February 1982. It has been amended, as have the
pleadings over time to take into account the later involvement of Air Canada as second defendant. As ev
entually set out in the Concurrent (and Amended) Writ of Summons filed on the 22nd February 1983, Mr. R
amgoolam's claim is for:

(a) Damages for the destruction of or loss or damage to his goods during Caricargo's and/or Air Canada'
s carriage thereof by air and/or damages for breach of contract for the carriage of goods by air and fu
rther or alternatively for breach of duty by Caricargo and Air Canada or either or both of them in and
about such carriage and further in the alternative for negligence in the carriage of goods by both Cari
cargo and Air Canada jointly and/or severally and/or by either of them.

(b) Costs.

(c) Interest at the rate of $18.00 (U.S.) per centum per annum.

(d) Such further or other relief as may be deemed just and expedient.

(e) Air Canada is sued as the servant and/or agent of Caricargo and/or in its individual capacity and/o
r jointly or severally with Caricargo. (end of page 2)

[3] The pleadings are the Amended Statement of Claim filed on the 22nd day of February 1983 ("the Amend
ed Statement of Claim"), the Amended Defence of the Second Named defendant filed on the 20th January 20
00 ("the Amended Defence') and the Amended Reply to Defence of the Second Named defendant Air Canada fi
led on the 1st February 2000 ("the Amended Reply').

[4] I have to determine three main issues. First, is Air Canada liable in damages to Mr. Ramgoolam for
the loss of or damage to the cargo of frozen shrimp mentioned above? Secondly, if so, is Air Canada lia
ble to pay him interest at $18.00 (United States Currency) per centum per annum? Thirdly, if Air Canada

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 ble to pay him interest at $18.00 (United States Currency) per centum per annum? Thirdly, if Air Canada
is liable to pay him damages, how much do they have to pay him?

[5] I have found that Air Canada is not liable in damages to Mr. Ramgoolam for the loss of or damage to
the cargo of frozen shrimp. I have further found that, even if I am entirely wrong on my analysis of li
ability, Mr. Ramgoolam is still not entitled to compensation from Air Canada because, to award him any
compensation, would be to allow him a double recovery and a windfall, Caricargo already having paid him
$31,500 (United States Currency) a sum which, in Trinidad and Tobago dollars valued at the time of paym
ent in 1988, entirely extinguishes the Trinidad dollar value of his claim.

EVIDENCE, FINDINGS OF FACT, THE LAW AND AN APPLICATION OF THE LAW TO THE FINDINGS OF FACT

[6] The evidence comprised the viva voce testimony of the plaintiff and his expert witness, Dr. Desmond
Ali, five documents put in by consent and marked "A" to "E", and one document marked "BR 1" put in by A
ir Canada through Mr. Ramgoolam:

Exhibit Description

“A” Copy of Air Canada Air Waybill No. 0140840 8632.

“B” Copy of Caribbean Air Cargo Air Cargo Transfer Manifest dated 30th August 1981 signed by Air Canada
. (end of page 3)

“C” Copy of U.S. Custom Inspection Permit No. 64003265 signed by Air Canada.

“D” Copy of letter dated 5th January 1982, Air Canada Cargo to Mr. M Bissoon.

“E” Copy of Caribbean Air Cargo Company Ltd. Air Waybill No. 74900275494.

"BR1" Letter dated 15th July 1988, Pollonais & Blanc to Bajnath Ramgoolam, with copies to Caricargo, WL
M Green & Co & Hobsons.

[7] Air Canada called no witnesses. I can find no reason in principle why a party to litigation on whom
a particular burden of proof rests as a matter of law, should not be allowed to satisfy that burden by
reference to the other party's evidence. In other words, evidence adduced by a party to prove his, her
or its case may well, looked at in the context of an entire case, prove the other side's case. I had to
piece together a jigsaw puzzle of what occurred based on the evidence such as it is (including the abov
e documentation), admissions in the pleadings, a recognition of where lay the burden of proof, my asses
sment of Mr. Ramgoolam and Dr. Desmond All as a witnesses, and an appreciation of inherent probability
and improbability.

[8] It is clear to me, and I so find, that Mr. Ramgoolam was an exporter of goods at the time of the fi
ling of this action (Paragraph 1(a) of the Amended Statement of Claim). However, I further find, contra
ry to Mr. Ramgoolam's pleaded case, that he was not resident in Trinidad and Tobago at the time that th
is action was filed, during its slow unfolding in the Courts of this country over a long period, or at
the time of the trial. Based on his evidence as it unfolded in front of me particularly under cross-exa
mination, which I consider in detail later on in this judgment, I find that at those times, Mr. Ramgool
am was resident in Florida, in the United States of America.

[9] I find on Air Canada's admission (paragraph 2 of the Amended Defence) that Caricargo is, or was at
the time these proceedings were commenced (it appears no longer to exist) a Company registered in the (
end of page 4) Island of Barbados, West Indies with a place of business in Trinidad d Tobago at Grenada
Avenue, Federation Park in the City of Port of Spain registered under Part X of the Companies Ordinance
Chapter 31 Number 1 and at all material times carried on the business of collecting and receiving goods
at its premises situate at Piarco for carriage by air to and delivery at divers places. I further find
that Air Canada is a Company registered in Canada with a registered office and place of business at No.
1 Place Ville, Marie, Montreal, Canada and at all material times to this action inter alia carried on t

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 1 Place Ville, Marie, Montreal, Canada and at all material times to this action inter alia carried on t
he business of collecting and receiving goods at its premises situate at Miami International Airport fo
r carriage by air to and delivery at diverse places and in particular carrying goods by air from Miami
to Toronto, Canada.

[10] This was the status of the parties as at August 28th, 1981.

DR. DESMOND ALL AND THE SCIENTIFIC CONTEXT

[11] A useful starting point for further analysis, which provides context, is the scientific framework
in which events unfolded. Dr. Desmond Ali provided that framework. He was an excellent witness. Mr. Fit
zpatrick SC aimed his cross-examination at clarification rather than impeachment.

[12] From his evidence, I make the following findings of fact:

1. Frozen shrimp is shrimp, which has been blast frozen at minus 40 degrees F. That is the market under
standing of the phrase "frozen shrimp".

2. Once blast frozen at this temperature, frozen shrimp is normally stored at minus 10 degrees F, which
is the ideal storage temperature.

3. If frozen shrimp is blast frozen at minus 40 degrees F and then stored in a cardboard container in a
normal cargo of boxes at 45 degrees F, it would take 7 to 10 days for the shrimp to reach 45 degrees F.
Thereafter, it would take 12 hours to spoil. (end of page 5)

4. If frozen shrimp is stored at 10 degrees F in a cardboard box, its temperature will eventually rise
from minus 40 degrees F to the storage temperature but it will take some considerable time to get there
, 20 to 30 days.

5. If frozen shrimp has attained a temperature of minus 10 degrees F and it is stored in a cardboard bo
x at 45 degrees F, it would take about 4 days to get to a temperature of 45 degrees F.

6. The constant factor is one frozen shrimp gets to 45 degrees F (however long it takes to get there) i
f it is stored in a cardboard container, 12 hours later there will be putrefaction.

[13] I will return to this scientific underpinning later on in the judgment. Given the overall state of
the evidence, Dr. Ali's assistance was invaluable.

MR. RAMGOOLAM'S EVIDENCE

PRELIMINARY COMMENTS

[14] Mr. Ramgoolam gave evidence. Mr. Fitzpatrick SC cross-examined him energetically and effectively.
I did not and do not find Mr. Ramgoolam to be a credible witness.

[15] Mr. Ramgoolam told me that he was the President of Carib Beach Airlines and he lived at 8501 Hawth
orne Avenue, Miami Beach, Florida. He explained that in 1981, he had been an Airline Manager, living in
both Miami and Trinidad, where had had two places where, on occasion, he would stay. He said that, in t
he intervening years, he had travelled to Trinidad on 62 occasions to deal with this matter. When asked
, in cross-examination, if he lived in Trinidad, he said that he had a "Trinidad address". On Mr. Fitzp
atrick SC suggesting to him that having travelled to Trinidad on all those occasions, he did not live i
n Trinidad, his response was that he was a "born and bred Trinidadian". When Mr. Fitzpatrick SC asked h
im whether he lived here, he said that he lived "both places", which was a better but belated answer. (
end of page 6)

[16] His evidence was that he had spent "a quite considerable time” in Trinidad in 1999 and had been in

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 Trinidad for all of 2000 up to the date of trial. Having said that he had not been in Trinidad througho
ut 1999, he then went on to say that he had come to Trinidad at the beginning of 1999, and had not yet
gone back to Miami since that time as he had been hospitalised in Trinidad. Therefore, his evidence shi
fted from an indication that he had been in Trinidad for "a quite considerable time" in 1999 to a clear
statement, under pressure, that he had come to Trinidad at the beginning of 1999 and had not gone back
to Miami since that time, as he had been hospitalised in Trinidad. At the end of that shift in position
, he confirmed to Mr. Fitzpatrick SC that he would bring his passport in to Court on the next hearing d
ate, which he never did, explaining that he had sent it out as part of an application for a visa, a fac
t which he had forgotten, he said, when making his promise. These inconsistencies and Mr. Ramgoolam's e
vasiveness led me to the conclusion that Mr. Ramgoolam was, at the time of the trial of this matter, re
sident in the United States: that is where he lived. I so find.

SUMMARY OF THE MAIN AREAS COVERED

[17] The main parts of Mr. Ramgoolam's evidence relate to (1) Air Canada's allegation that on 15th July
1988, he received and accepted from Caribbean Air Cargo, US$31,500 in full and final settlement of his
claim against them, (2) the events in Toronto when the shrimp arrived there, and (3) the value of the s
hrimp for the purposes of this claim.

THE ALLEGED PAYMENT OF US$31,500

[18] Mr. Ramgoolam did not refer to this in his evidence-in-chief, despite the fact that Air Canada put
the matter starkly in issue by Paragraph 15 of the Amended Defence of the Second Named defendant. To ma
ke it worse, at paragraph 6 of his Amended Reply to Defence of the Second Named defendant, Mr. Ramgoola
m had specifically denied having received US$31,500 from Caricargo in full and final settlement of his
claim against them. There is some confusion here. In Paragraph 6 of the Amended Reply (see above), he d
enies have received any money from or belonging to Air Canada as he says is alleged in the Amended Defe
nce. In fact, my reading of Paragraph 6 of the Amended Defence is that Air Canada is alleging that Mr.
Ramgoolam received and accepted from Caricargo the sum of US$31,500 in full and final settlement of his
claim against the latter, that (end of page 7) is to say Caricargo, not Air Canada. This raises an issu
e of double recovery, to which I return later on in this judgment.

[19] It is noteworthy that he denies receipt of this amount, but not this, or any other amount Nor did
he chose to plead that he received an amount from Caricargo but not in settlement of his claim against
Air Canada, assuming that he had misunderstood and had concluded that Air Canada's case was that Carica
rgo had paid a sum to him in settlement of their and Air Canada's liability to him. Caricargo and Air C
anada had retained separate firms of attorneys. Pollonais & Blanc had written him separately (see below
). In the circumstances, I am hard pressed to see how he could have thought that Pollonais and Blanc ha
d made the payment on behalf of both defendants. In the light of the pleadings, it is dear to me that t
his was a matter to which he should have referred in his examination-in-chief and clarified, if only to
avoid an allegation of lack of forthrightness. His failure to do so, combined with the information that
did emerge during his cross-examination, further confirmed my early impression of him as an evasive wit
ness, entirely lacking in credibility.

[20] By contrast, Mr. Fitzpatrick's careful and persistent cross-examination on this subject yielded in
teresting results. It began with Mr. Ramgoolam agreeing with Mr. Fitzpatrick that he, Mr. Ramgoolam, ha
d initially sued only Caribbean Air Cargo because he thought them to be primarily responsible, an unexc
eptionable admission, which provided a foundation for what followed. Mr. Ramgoolam confirmed that he ha
d entered into negotiations with Caribbean Air Cargo. Mr. Fitzpatrick SC bluntly asked him: "They accep
ted liability and paid you money?" To this, he responded that "[t]hey did not accept liability." His fa
ilure to answer all of the question, confining his response to questions of liability and sidestepping
the question of payment, struck a discordant note, which motivated Mr. Fitzpatrick SC immediately to fo
llow up with: "They paid you money?" To which, Mr. Ramgoolam responded "no". Not "they paid me some mon
ey, but less than you say". Simply "no". His subsequent concession that he had been paid US$27,000, to
which I return below, destroyed the remnants of his credibility.

[21] Mr. Fitzpatrick SC then narrowed his focus and asked Mr. Ramgoolam whether Caricargo had paid him
US$31,500 thereby giving Mr. Ramgoolam a specific figure with which to work. Mr. Ramgoolam said "no". M

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 US$31,500 thereby giving Mr. Ramgoolam a specific figure with which to work. Mr. Ramgoolam said "no". M
r. Ramgoolam then confirmed that the then firm of (end of page 8) Pollonais & Blanc had acted for Caric
argo. Mr. Fitzpatrick SC asked him whether he had received a letter from that firm dated 15th July 1988
concerning the shrimps. He replied in the negative. Mr. Fitzpatrick SC then repeated the question and r
ead from a document, which, it was entirely clear to the witness, was the very letter to which Mr. Fitz
patrick SC had referred. Mr. Ramgoolam still denied receiving the letter. Once more, Mr. Fitzpatrick SC
repeated the question and, reluctantly, Mr. Ramgoolam responded that he had "received such a letter". H
7. e confirmed that it had been addressed to him and had been in connection with the matter presently befo
re the Court. He accepted that the letter did refer to a cheque being forwarded in the sum of US$31,500
but denied that he ever received the cheque. He went on to say that the letter was a fabrication but th
at he did not know who had made it up. Mr. Fitzpatrick SC then showed him a copy of the letter, which h
e confirmed was a copy of the letter that he had received in Miami. Mr. Fitzpatrick SC tendered it, wit
hout objection and it went into evidence as "BR 1". Mr. Ramgoolam's inability to respond to a straight
question with a straight answer in this context, further fortify me in my conclusion that it would be w
rong to credit his evidence.

[22] The contents of that letter warrant my interrupting the narrative assessment of Mr. Ramgoolam's ev
idence and setting it out in full:

15th July 1988

Mr. Bajnath Ramgoolam

Santa Monica Gardens

Mausica

Dear Sir,

Re: H.C.A. No. 166 of 1982 - Bajnath Ramgoolam v. Caricargo

Enclosed, please find our client's cheque in the sum of US$31,500.00 made payable to your goodself in f
ull and final settlemnt [sic] of your claim and costs in this matter. (end of page 9)

Kindly acknowledge receipt of same and let us have a sealed copy of your Notice of Full Satisfaction in
due course.

Yours faithfully

/s/

POLLONAIS & BLANC

WH:kr

encl. c

c.c. Caricargo

1. W.L.M. Green & Co

2. Messrs. Hobsons"

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 [23] Mr. Ramgoolam's position on this document, as emerging from his cross-examination is as follows:

1. He signed a Notice of Full Satisfaction at the offices of Pollonais & Blanc on 14th July 1988, havin
g received a cheque for US$27,000, not US$31,500.

2. Looked at carefully, the date written in by hand on the Notice of Full Satisfaction on the Court fil
e is 14th July, not 19th July.

3. That a reference in an affidavit of his during the course of 2000 to the Notice of Full Satisfaction
of being filed on the 19th July was a typographical error, which he had overlooked because he had not r
ead that affidavit thoroughly.

4. Whenever it was that he received the letter saying that a cheque was enclosed, no cheque was enclose
d.

[24] I am unable to accept any of this in the light of the information, which emerged from the further
cross-examination of Mr. Ramgoolam on subsequent days. Mr. Ramgoolam began by saying that he went to Po
llonais & Blanc and told them "what nonsense is this" and asked them to show him the cheque they had re
ferred to. They did not produce the cheque, he said. They could not find the "entire file" and provided
no retraction. Mr. Ramgoolam never made a written response to the letter. He did not take the letter to
his then attorney Mr. Greene (end of page 10) (his initial explanation was that Mr. Green had ceased to
be on record, a position from which he rapidly resiled when confronted by Mr. Fitzpatrick SC). He then
made the extraordinary assertion that he did not think it necessary to respond to a firm of lawyers, ev
en more extraordinarily because he had never received the cheque, he said. Despite all of this, and a f
eeling that it was not important enough to respond to in writing, he flew to Trinidad to confront Pollo
nais & Blanc, an approach that he described in one breath as "the only possible way", recanting that st
atement in the next breath. He was unprepared to accept that he had agreed to accept US$31,500 to relea
se Caricargo until confronted with a previous inconsistent statement in an affidavit sworn to by him in
July 1995 but remained adamant that he had not been paid US$31,500 even though he had released them fro
m any further liability. His explanation was that he agreed to a lesser sum with them, a position which
had not appeared in his July 1995 affidavit and which he was advancing for the first time at the presen
t hearing. There was nothing consistent in anything that Mr. Ramgoolam said under cross-examination on
this point. Moreover, many of his explanations were entirely improbable, for example, the letter was so
unimportant to him that he could not be bothered to write to Pollonais & Blanc but was content to By to
Trinidad to confront them. This was evasion and prevarication to the nth degree.

[25] Accordingly, I find that Mr. Ramgoolam did receive US$31,500, despite his protestations to the con
trary. I further find that the Notice of Full Satisfaction was filed on the 19th, not 14th July. This f
inding is consistent with Mr. Ramgoolam's indication in his earlier affidavit in these proceedings, fro
m which he attempted to resile by explaining that he had not read it very carefully, and my inspection
of the document.

THE EVENTS IN TORONTO AND THE VALUE OF THE CARGO

[26] I did not find Mr. Ramgoolam's evidence on these points at all helpful.

VALUE OF THE CARGO

[27] In his evidence-in-chief, Mr. Ramgoolam said that (1) he had paid about US$43,000 for the shrimp i
n Trinidad; (2) he had made arrangements to sell the frozen shrimp to a whole distributor in Toronto fo
r US$57,100; and (3) of that figure, about US$8,000 was profit. Having (end of page 11) made these fair
ly clear statements, under cross-examination he then said (1) he could not recall the price that he had
paid National Fisheries in Trinidad for the frozen shrimp because "it was a long time"; (2) whatever he
would have paid National Fisheries would have been in Trinidad and Tobago dollars; (3) he did not have
with him his purchase order or payment receipt: "it could be in Miami"; (4) it could be that he had pai

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 with him his purchase order or payment receipt: "it could be in Miami"; (4) it could be that he had pai
d TT$48,000 to National Fisheries for the frozen shrimp; and (5) he had none of the documents with him
relating to the alleged sale to the distributor in Toronto.

[28] I find it passing strange that, even after all of this time, Mr. Ramgoolam was not in a position t
o produce relevant documents at the trial. It is not as though his evidence was that he had lost the do
cuments. In addition, the briefest look at this file underlines that Mr. Ramgoolam had most energetical
ly pursued this litigation: he certainly did not strike me as either supine in his approach to things,
or a babe in the woods. These things, combined with the absence of the documents on the day, left me wo
ndering what those documents might have contained, and, in the case of the alleged sale to the distribu
tor in Toronto, whether such an arrangement actually ever existed. This lack of documentary support for
Mr. Ramgoolam's contradictory and evasive answers (see above), set off against the indications of value
in the Caricargo Air Waybill and the United States Custom's Declaration Form (which I return to later o
n in this judgment) led me entirely to disregard Mr. Ramgoolam's evidence about the value of the cargo.

THE EVENTS IN TORONTO

[29] Mr. Ramgoolam's evidence on this is interesting. He said that he had been at the airport in Toront
o at around 6:30 pm on 30th August 1981. The frozen shrimp had been in a "cool room" rather than a free
zer facility. He went back to Air Canada's office at the Toronto Airport on the next day, 31st August 1
981, together with an attorney-at-law and a refrigeration engineer. He reported that Air Canada had ref
used him entry to see the cargo in the bonded cargo storage area but, he disclosed under cross-examinat
ion, he had sneaked in the bonded cargo storage area afterwards and discovered that the goods had gone
off.

[30] His credibility and the general accuracy of his recall were much dented under cross-examination. H
e conceded, in a manner that (end of page 12) underlined his evasiveness (see below) that he had instru
cted his lawyers that he had been notified on the 31st August 1981, that the goods had arrived in Toron
to, and not on the 30th August 1981:

"Q You instructed them [the attorneys] that you were notified on the 31st August by Air Canada that the
goods had arrived in Toronto, and not on the 30th August?

A The goods arrived on the 30th.

Q Did you not give those instructions?

A Yes."

[31] Moreover, it is clear to me from the further cross-examination that Mr. Ramgoolam was reluctantly
accepting that. Caricargo had acted inadvisably by (1) taking two days to deliver the cargo to Air Cana
da for on shipment; and (2) failing appropriately to store the goods in the interim. This as a concessi
on that he could hardly have avoided making given the nature of the case against Caricargo as pleaded.

THE LAW AND THE EVIDENCE

LIABILITY

[32] Mr. Ramgoolam's claim is for damages for breach of contract, negligence and statutory duty. I acce
pt that there was a contract between Mr. Ramgoolam and Air Canada. I further accept, and so find that t
his was a single carriage. There had been some considerable initial debate about whether the Warsaw Con
vention legal regime was the law in Trinidad and Tobago. Mr. Persad-Maharaj had taken me to the Carriag
e of Goods by Air Act 1932 of the United Kingdom and sought to persuade me that it was an Imperial Act
of general application and hence received into our laws under the provisions of the Supreme Court of Ju
dicature Act. After an afternoon of that, it became apparent the next day on Mr. Persad Maharaj's furth

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 dicature Act. After an afternoon of that, it became apparent the next day on Mr. Persad Maharaj's furth
er researches that the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 repre
sented (end of page 13) the law on the subject in this jurisdiction. The contract at hand was governed
by its terms, Article 18(1) of which provides as follows:

"ARTICLE 18

(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to
, any registered luggage or any goods, if the occurrence which caused the damage so sustained took plac
e during the carriage by air."

[33] In my judgment, this is not a classic strict liability provision. Liability is still fault-based.
Fault is assumed on proof of damage, which fault does not have to be established by the plaintiff. That
is dear from the language of Article 18. What is equally clear is that (1) the carrier can avoid liabil
ity by bringing himself within the language of Article 20; and (2) the carrier will not be liable if it
appears from the evidence (in my judgment on a balance of probabilities) that "the occurrence which cau
sed the damage so sustained" could not and did not occur "during the carriage by air."

[34] Mr. Fitzpatrick SC used the second point I have set out as the premise for his submissions on liab
ility. What, he asked, is alleged to have been the occurrence that caused the damage? His answer was th
at the evidence of Mr. Ramgoolam's witness, Dr. All, proves that there was not and could not have been
any such "occurrence" at the relevant time. He then tested this proposition by, as he described it, put
ting Mr. Ramgoolam's case at its highest. Assume, he said, that these goods were frozen shrimp in the s
ense that they were flash frozen at minus 40 degrees and stored and maintained at minus 10 degrees, whe
n purchased and delivered to Caricargo on the 28th August. This is an assumption, which I am prepared t
o make (and I so find) on the conjoint indications in the Caricargo Air Waybill, Mr. Ramgoolam's eviden
ce and Dr. Ali's evidence. On the evidence of Dr. Ali, applied to those circumstances, they could not p
ossible have gone bad on the 31st August, had they been delivered in that condition to Air Canada on 30
th August. If, on 31st August, they had "gone off", the only conclusion open to me (it is submitted by
Mr. Fitzpatrick SC), on the expert evidence of Dr. Ali is that some stage when the cargo was in the han
ds of Caricargo, as a result of Caricargo's handling, the frozen shrimp went bad. Further support for t
his view is to be found in Mr. Ramgoolam's concession that the (end of page 14) main thrust of his case
against Caricargo had related to their delay in getting the cargo on-shipped and their failure properly
to store it in the interim. I accept that conclusion. I am fortified in that position by the clausing o
n the face of the Caricargo Air Waybill (a document on which Mr. Ramgoolam said he relied) to the effec
t that some cases were open and wet. The thawing which caused the damage and eventual condemnation of t
he cargo was likely on its way before even the goods were in the hands of Caricargo.

[35] Accordingly, I find that Air Canada is not liable to Mr. Ramgoolam. That is enough to dispose of t
he claim. However, in the light of the age of the matter, which had an impact on the quality of the evi
dence, and the difficulties implicit in applying science to such evidence, I propose analysing the quan
tum aspect of the matter. My findings in this regard underline that, had I found myself in agreement wi
th Mr. Ramgoolam's case on liability, he would still have recovered nothing.

QUANTUM

[36] Mr. Fitzpatrick's submissions on quantum reward a close reading. He invited me to look first at th
e most contemporaneous document under the hand of Mr. Ramgoolam, which was exhibit "B", the Caricargo A
ir Waybill. That document sets out a value/price of TT$44,000. That figure is consistent with the custo
ms value set out in Exhibit "C", "Transportation Entry and Manifest of Goods Subject to Customs Inspect
ion and Permit U.S. Customs Service", that is to say US$20,000, as the relevant exchange rate at the ti
me was US$1.00 to TT$2.40: see Central Bank Chap 79:02, Declaration of Change in Par Value of Dollar Or
der (0.41667). There is no other cogent evidence in support of quantum. On this basis, Mr. Fitzpatrick
SC asked me to find that the price paid by Mr. Ramgoolam was TT$44,000 and, absent any documents or acc
eptable viva voce testimony of market value at Toronto, that is the level at which Mr. Ramgoolam's reco
verable loss should be pinned.

[email protected] p. 50
 [37] Mr. Persad-Maharaj submitted that this was obviously a mistake, and that the correct and appropria
te figure was US$44,000. He further submitted that support for this conclusion might be found in the fa
ct that there is evidence that Caricargo paid a settlement to Mr. Ramgoolam in United States dollars. I
prefer Mr. Fitzpatrick SC's (end of page 15) analysis, hence I find that the value/price of the goods w
as TT$44,000 appreciate that I have also found that, in 1988, Caricargo paid a settlement to Mr. Ramgoo
lam in United States Dollars. To my mind, it is entirely likely that Caricargo were presented with docu
ments supporting the Toronto Market value of the goods. I have no such evidence before me. Absent such
evidence, Mr. Ramgoolam is left with such evidence as there is as to the value of the goods in Trinidad
and Tobago.

[38] This conclusion provides the premise for the next stage of the analysis. It unfolds as follows: (1
) Mr. Ramgoolam's proved recoverable loss was TT$44,000; (2) Mr. Ramgoolam received US$31,500 in July 1
988 from Caricargo, an amount which represents (at the then exchange rate of US$1 to TT$3.60: see Legal
Notice No. 20 of 1987-par value 0.277778) TT$113,400; (4) Therefore Mr. Ramgoolam has already been comp
ensated in full, even if one doubles his figure of TT$44,000 to take into interest between 1981 and 198
8, as well as certain charges appearing on the face of the documents. There is nothing in the legal reg
ime in this area to suggest that plaintiffs are to be allowed to recover twice for the same loss. There
fore, Mr. Ramgoolam should not be allowed to recover twice. That is the end of that.

DISPOSITION

[39] In the premises, I order that Mr. Ramgoolam's claim be dismissed and that he shall pay Air Canada'
s costs certified fit for senior and junior advocate attorney-at-law.

Dated this 19th day of August 2002.

David A Myers

Puisne Judge (end of page 16)

INTER CARIBBEAN EXPRESS INC v. SVG AIR LTD.

 https://carilaw.cavehill.uwi.edu/permalink/carilaw45616
Subject: Injunction
Citation Number: VC 2015 HC 14
Country: St. Vincent and the Grenadines
Court: High Court
Date: February 25, 2015
Judge: Henry, J. [Ag.]
Suit No.: SVGHCV2014/0002

[email protected] p. 51
 Sub-subject: Interim injunction – Whether the Applicant should be granted an interlocutory
injunction – Whether there was a pre-existing cause of action where the parties are
at variance regarding to the monies owed – Consideration of American Cyanamid
Co v. Ethicon Limited [1975] 1 All E.R. 504 and Siskina (Owners of cargo lately laden
on board) v. Distos Compania Naviera S.A [1977] 3 All E.R. 803 – Whether the
damages would be adequate in lieu of the injunction – Balance of convenience –
Whether the order should be granted where the interlocutory injunction would
resolve the Claimant’s major claims without addressing the Defendant’s claims –
Whether the Court should made an interim order for the Defendant to pay damages
to the Claimant – Application for an order compelling the Defendant to deliver up
possession of the Claimant’s logbooks, records and other documents – Application
dismissed

  VIEW FULL TEXT AS A WORD DOCUMENT

Full Text
Appearances:
Mr Ronald Marks and Ms. Patricia Marks for the claimant/applicant.
Mr. Samuel E. Commissiong for the defendant.

[1] HENRY, J. (Ag.): Inter Caribbean Express Inc. ("ICE") is a company registered and having its regist
ered office in Saint Lucia. SVG Air Ltd. ("SVG Air") is a company registered in Saint Vincent and the G
renadines with a registered office in Saint Vincent. ICE and SVG Air formed ABMAir Ltd. (On April 5, 20
11, incorporated in Antigua and Barbuda — see PG1B.) ("ABMAir") in Antigua and Barbuda to provide air p
assenger services between Antigua and Barbuda and Montserrat. ABMAir Ltd. leased an aircraft (Bearing r
egistration number J8-VBL.) from ICE for one year commencing on July 30, 2012, for use in its business.
Affidavit of Wayne Mc Diarmed filed on 23 January, 2015, para. 3, exhibit "W.M.". The aircraft remained
in SVG Air's possession until July 2014 when ICE flew it from Saint Vincent to Saint Lucia without cons
ulting SVG Air. ICE seeks an interim injunction compelling SVG Air to deliver to it all logbooks, recor
ds and other documents necessary for the aircraft's proper operation. ICE is also seeking an order that
SVG Air pays it damages for trespass and for wrongful interference with the aircraft.

ISSUE
[2] The issues are whether:

(a) ICE should be granted the interim injunction compelling SVG Air to hand over those logbooks, record
s and other records? and,
(b) SVG Air should be ordered to pay ICE for damages for trespass and for wrongful interference with ai
rcraft J8-UVF?

LAW AND ANALYSIS

ISSUE 1 — SHOULD ICE BE GRANTED AN INTERLOCUTORY INJUNCTION?

[3] In arriving at a determination on this issue, the court must consider whether:

(a) ICE has a pre-existing cause of action against SVG Air; Siskina (Owners of cargo lately laden on bo
ard) v. Distos Compania Naviera S.A. [1977] 3 All E.R. 803. See also Mirsand Town Planning and Architec
ts Limited v. Samuel S. Conde Associados C. Por A TVIHCVAP2000/0020; and Antigua Aggregates Limited v.
The Attorney General of Antigua and Barbuda & Antigua Commercial Bank ANUHCV2008/0058.
(b) there is a serious issue to be tried; American Cyanamid Co. v. Ethicon Limited [1975] 1 All E.R. 50
4

[email protected] p. 52
 4
(c) damages would be an adequate remedy; Ibid and
(d) where the balance of convenience lies as between the parties. Ibid

IS THERE A PRE-EXISTING CAUSE OF ACTION OR A SERIOUS ISSUE TO BE TRIED?

[4] ICE filed a Fixed Date Claim Form on November 20, 2014 seeking among other reliefs, damages for tre
spass to its aircraft, a final injunction for SVG Air to deliver its logbooks, records and other docume
nts, damages for SVG Air's interference with its business by the unlawful detention of its logbooks and
records. ICE (See paras. 15 -17 of Wayne Mc Diarmed's (ICE's shareholder and Director) Affidavit filed
on December 16, 2014.) alleges that SVG Air's failure to deliver its logbooks and records is unlawful a
nd has resulted in the subject aircraft being grounded It also deposes that it is losing revenue of app
roximately $12,200.00 per day and incurring daily expenses of $2,609.00. Ibid. at para. 15. ICE avers t
8.
hat it owes SVG Air $25,000.00 Ibid. at para.10 as repayment for a loan. SVG Air counters that it has r
etained possession of the logbooks and records because ICE owes it $513,737.78 and refuses to address s
ettlement of this debt. See paras. 4.6, 9 b), 10 and 13 of the affidavit of Mr Paul Gravel filed on Jan
uary 13, 2015. SVG Air claims this sum in respect of inter alia, insurance payments and charters done b
y them for ICE. These divergent positions demonstrate that there is a serious issue to be tried between
the parties involving consideration of the law relating to detinue and breach of contract. These claims
pre-dated ICE's Application for the interim injunction and therefore qualify as a pre-existing cause of
action.

Would Damages be an Adequate Remedy?

[5] ICE contends that the subject aircraft is the only aircraft it owns. Mc Diarmed's Affidavit. Supra.
at para. 16. It attests further that if the logbooks and records are not returned, it would be unable t
o pay its operational expenses, services and debts, and would have to suspend operations and close. Ibi
d. at para. 20. ICE avers also that it fears that its records and logbooks may be altered or destroyed
if no steps are taken to secure them. Ibid. at para. 19. SVG Air denies that it will ever destroy or al
ter the logbooks or records. Paul Gravel's Affidavit, Supra. At para. 19. The court must consider wheth
er ICE could be adequately compensated in damages for any loss it might sustain through SVG Air's conti
nued admitted detention of its logbooks and records, if ICE succeeds in obtaining a permanent injunctio
n at the trial. See American Cyanamid, Supra. Per Lord Diplock. If the court concludes that damages wou
ld be adequate and that SVG Air is able to pay such damages, no interlocutory injunction should be gran
ted. Ibid. While it is clear that ICE can be compensated in damages if it succeeds in obtaining a perma
nent injunction at the trial, there is insufficient evidence before the court on which to make a determ
ination as to SVG Air's financial capacity to pay such damages.

[6] Similarly, while SVG Air may be adequately compensated in damages by ICE, if SVG Air prevails at th
e trial, there is no evidence before the court as to ICE's ability to satisfy an award of damages. In t
his regard, while ICE submits that it is incurring daily expenses and losing weekly revenue, no data in
the form of invoices, receipts or contracts was presented to the court supporting these assertions, or
ICE's financial status.

WHERE DOES THE BALANCE OF CONVENIENCE LIE?

[7] SVG Air claims over half a million dollars from ICE while ICE seeks to recover its logbooks and rec
ords and admits to owing SVG Air no more than $25,000.00. ICE's contention that it might even have to s
uspend and close its operations implies that it apprehends suffering significant loss to which it has n
ot ascribed a value. There is no material before the court on which such evaluation can be made. In add
ition, ICE has represented to the court that it is prepared to give an undertaking .to the court not to
dispose of the aircraft until trial of the substantive issue. There is no evidence before the court des
cribing or cataloguing ICE's assets within Saint Vincent and the Grenadines or elsewhere, if any. The s
ubject aircraft is located in and ICE is registered in Saint Lucia, a state over which this court exerc
ises no jurisdiction. ICE has not indicated the value of the aircraft or whether there are any liens or
charges in existence in respect of the aircraft. Neither party has provided information to the court re
garding their respective assets and liabilities. In this regard, enforcement of an undertaking in damag
es by ICE or an undertaking by it not to dispose of the aircraft might require SVG Air to initiate fres
h proceedings in Saint Lucia. This is likely to be disadvantageous to SVG Air who will necessarily be c
ompelled to instruct new counsel there and to travel there to facilitate disposal of the ensuing matter

[email protected] p. 53
 s, which may or may not be protracted.

[8] The court notes too that the main issues between the parties involve the resolution of a factual di
spute concerning amounts due and owing between them which spanned a period of 3 months before ICE initi
ated action in this court. Further, an order granting ICE the interlocutory injunction will effectively
resolve ICE's major claims without addressing SVG Air's. In all of those circumstances, the grant of th
e interlocutory injunction would be more disadvantageous to SVG Air that denial would be to ICE. The ba
lance of convenience favours preservation of the status quo. In the premises, although this case involv
es a serious issue, the non-disclosure of pertinent details on which the court could conclusively rule
on the issue of adequacy of damages combined with my finding on the balance of convenience, lead me to
hold than the interlocutory injunction should not be granted and that the status quo should be maintain
ed.

ISSUE 2 — SHOULD THE COURT MAKE AN INTERIM ORDER FOR SVG AIR TO PAY DAMAGES TO ICE FOR TRESPASS AND FOR
WRONGFUL INTERFERENCE WITH AIRCRAFT J8-UVF?
[9] Neither party addressed the court on this issue. The court nonetheless, has a discretion to grant a
n interim remedy including an order for damages Civil Procedure Rules 2000, Part 17.1 (1) & (3). In exe
rcising this discretion, the court must seek to give effect to the overriding objective of the Civil Pr
ocedure Rules 2000 ("CPR"). Ibid. at Part 1.2. The parties' convoluted accounts of their relationship a
nd the judiciousness of full ventilation of their respective positions militate against a summary (Albe
it by interlocutory process.) adjudication of this issue of damages. I therefore make no order on this
issue but consider it just and equitable to give directions for an early trial of the substantive matte
r pursuant to Part 17.8 of the CPR.

ORDER
[10] I accordingly dismiss Inter Caribbean Express Inc.'s application for:

(i) an order compelling SVG Air Ltd. to deliver up possession of Inter Caribbean Express Inc.'s logbook
s, records and all other documents belonging to and necessary for the proper and/or lawful operation of
Inter Caribbean Express Inc.'s aircraft J8-UVF.
(ii) an interim order that SVG Air Ltd. pays ICE for damages for trespass and for wrongful interference
with aircraft J8-UVF.
(iii) Inter Caribbean Express Inc. shall pay SVG Air Ltd.'s costs of $800.00.

Esco L. Henry
HIGH COURT JUDGE (Ag.)

WINTER v. SEAGREEN AIR TRANSPORT LTD

https://carilaw.cavehill.uwi.edu/permalink/carilaw18473
Subject: Employment law
Citation Number: AG 1986 IC 1
Country: Antigua and Barbuda
Court: Industrial Court
Date: April 22, 1986

[email protected] p. 54
 Judge: Carrott, M.
Edwards, M.
Hill, C.
Suit No.: Reference No. 4 of 1983
Sub-subject: Summary dismissal - Employee was summarily dismissed for misconduct -
Employee asked the court to find that the company's decision to dismiss him was
high-handed, unfair and contrary to law - Employer claimed that the dismissal of the
employee was not unfair or wrongful in that the employee unreasonably and without
justification at law refused to carry out a lawful order or directive of his superior
officer – Held: the employer had failed to show that it acted reasonably in
dismissing the employee - Awarded $31,150.00.

  VIEW FULL TEXT AS A WORD DOCUMENT

Full Text
Appearances:
Mr. Gerald A. Watt – Solicitor for the Employee.
Mr. John W. Fuller – Solicitor for the Employer.

The Solicitor for the Employee, by Reference dated the 19th day of March 1983, and acting under the pro
visions of Section 19 of the Industrial Court Act, 1976 as amended, gave notification to the Court of t
he existence of a trade dispute between Stephan Winter, an Airline Pilot (hereinafter referred to as “t
he employee”) and Seagreen Air Transport Limited, a Company operating in the State and carrying on the
business of an Airline Freight Service (hereinafter referred to as “the Company”). The reference stated
the issues in dispute between the parties to be: -

(a) The summary of the employee as a Pilot of the employer Company on the 10th day of December 1982, an
d whether the said dismissal was fair or unfair.
(b) Whether the dismissal conformed to the provisions of the Antigua Labour Code No. 4 of 1975 of the L
aws of Antigua.

The employee’s Memorandum dated 19th March, 1983, states in summation of the particulars set out, that
in accordance with section B 5(2) of the Antigua Labour Code a complaint on the matter was heard at a c
onciliatory meeting before the Labour Commissioner on the 10th March 1983, but that no settlement was r
eached. The (end of page 1) Employee was, therefore, asking the Court to find that the Company's decisi
on to dismiss him was high-handed, unfair, contrary to law and to sound established industrial practice
. On the other hand, in the Employer's Memorandum dated 9th May 1983, it is being claimed that the dism
issal of the Employee was not unfair or wrongful in that the said Employee unreasonably and without jus
tification at law refused to carry out a lawful order or directive of his superior officer.

On the pleadings the issue raised between the parties in one of misconduct and the question to be decid
ed by the Court is whether the misconduct if proved, was sufficient to warrant summary dismissal of the
Employee.

The facts are that the Employee, Stephan Winter began to work for the Employer, Seagreen Air Transport
Limited initially in 1974 and was later in 1980 rehired as a first officer pilot. In April 1982, he was
promoted to the rank of Captain of the Company's DC 3 Aircraft, a position he held up to the date of hi
s dismissal on the 10th day of December 1982. His last rate of pay was $2950.00 monthly. The Company wa
s mainly engaged in business as an airline freight charter service plying between the islands of the Ca
ribbean.

The Employee was one of two Captains employed by the Company to operate the DC 3 Aircraft. Jonathan Fit
t was the other. He left the Company's employ on the 6th day of November 1982 to take up employment wit
h Leeward Islands Air Transport, (L.I.A.T.).

[email protected] p. 55
 h Leeward Islands Air Transport, (L.I.A.T.).

In August 1982, while the two pilots were employed by the Company, a roster prepared on a monthly basis
was introduced enabling the two of them to operate alternately (with the help of a first officer), and
specifying the days on which each was required to fly as well as detailing their respective rest period
s. The arrangement existed up to the 6th day of November 1982, the date of the termination of Fitt's em
ployment.

The Company at this period was experiencing grave financial difficulty and it would seem that that infl
uenced the Employer in deciding whether to replace Fitt. It is alleged by the Employee that the agreeme
nt reached between himself and Mr. Bhuyan, the Managing Director of the Company, was that instead of re
placing Fitt, he would work on a daily basis provided that his daily periods remained short.

The Company's business period was from November to April (the tourist season) when there was generally
increased business for the Company, necessitating a considerably greater number of flights operated by
the Company. In view of the Company's decision not to replace Fitt, it meant that the entire work load
rested solely on the Employee.

On Friday the 10th December 1982, the Employee reported for duty at about 6 a.m. and operated a flight
Antigua/Saint Lucia/Antigua returning to Antigua at about 11.30 a.m., a total of 5½ hours flight duty p
eriod. On his return, Barriero Gonsalves, the Manager of the Airline, told him that he was required to
operate another chartered flight Antigua/SanJuan/Antigua, within 45 minutes. From previous experience t
his could take as long as 7 hours flight duty period, returning to Antigua when it was dark.

In his evidence before the Court the Employee said that in his response to the Employer's request, he a
sked that he be permitted to do the flight the following morning at 6.00 a.m. as it had been agreed tha
t he would fly daily but for shortened hours. He further said that he complained to Barriero Gonsalves
that he was tired and overworked and that the Employer was unreasonable to request him to fly in the ci
rcumstances.

Mr. Barriero Gonsalves on the other hand denied that the Employee ever said that he was tired but that
rather he had his own business to do and argued with him about his fixing a flight without consulting h
im. Mr. Barriero Gonsalves said that the Employee continued to argue with him, seeking to defer the fli
ght to the next day but he told him that he had a flight scheduled for the next day. The Employee insis
ted that he could not do the flight that afternoon and from the conversation he got the distinct impres
sion that he wanted time to do his own business.

Mr. Barriero Gonsalves further said in evidence that when he realized that he would not be able to pers
uade the Employee to operate the flight, he asked him to take up the matter with Mr. Bhuyan, the Managi
ng Director. Mr. Bhuyan was not called to give evidence in this matter but it would appear that the Emp
loyee spoke to Mr. Bhuyan when he called the office. There was, however, no change in the Employee's st
ance at the end of the conversation. He then left and went home.
9.
Mr. Paul Farrara, the Assistant Manager, contacted the Employee at his home and ordered him to operate
the flight and when he still refused, by letter dated 10th December 1982, and exhibited as "SW3", he su
mmarily dismissed the Employee.

On those facts as we have found, Counsel for the Employer has asked us to rule that the dismissal was f
air in that the Employee has bluntly refused to operate the flight at much financial loss to his employ
er and further that he had never said that he was tired but rather that he had his own business to do.
He has further asked us to find that even if he did say he was tired, there was no factual basis for th
e alleged fatigue as he had not been asked to fly an inordinate amount of hours in excess of the maximu
m permitted by law.

Let us examine the evidence in relation to the submissions made by Counsel for the Employer. During the
period November 8th 1982 to December 10th 1982, (a period .d, ring which the Employee was the sole Capt
ain employed by the Employer) he worked on the 8th, 9th, 10th, 11th, 12th, 16th, 18th, 22nd, 23rd, 24th
, 25th, 26th, 27th, 29th, 30th November, and on the 1st, 2nd, 6th, 7th, 8th, 9th, and 10th, December, i
n aggregate a period of 22 days. His longest flight time was 5½ hours on the 24th November 1982, and hi
s flying duty period amounted to 158 hours for the period.

[email protected] p. 56
 s flying duty period amounted to 158 hours for the period.

In his testimony before the Court the employee said these statistics were taken from the personal log k
ept by him. A sheet of paper containing these figures was admitted in evidence by consent and exhibited
and marked. "SW2". In his cross examination of the Employee, Counsel for the Employer challenged the Em
ployee's record of his flight time for the 29th November and 7th December only, but later advised the C
ourt that on a further verification of these dates he found them to be correct.

The Employee further testified that he reported for work everyday between the 8th November and the 10th
December, but he did not fly on the days for which he had given no record of his flight time, either be
cause the aircraft was unserviceable or because there was inclement weather. This testimony has not bee
n challenged and is consistent with the Employee's account that an agreement had been reached that he w
ould work daily but for shortened hours.

On the evidence as has been adduced the Court accepts the employee’s testimony that he was working on a
daily basis and that such an agreement had been reached with his employer. (end of page 2

If then as we have found, the Employer and the Employee had reached an agreement that the Employee woul
d work on a daily basis but for shortened hours, could the Employer reasonably insist on the Employee o
perating the flight on the afternoon of the 10th December, 1982, without unilaterally varying the terms
of the agreement? We think not. We think that at that stage the matter was open to renegotiation and th
e Employee was at liberty to decide whether or not to operate the flight. But the explanation he gave t
o the Employer for not operating the flight was that he was tired and he offered to operate the flight
the next morning. The fact he said he was tired has been challenged by the Employer. It has been allege
d that he said that he had his own business to do and not that he was tired. They go further. They say
that even if he had said he was tired there was no factual basis for his alleged fatigue because he had
not been asked

to fly in excess of the hours permitted by law.

Counsel for the Employer has referred us to the provisions of the Colonial Air Navigation Order 1961, S
ections 44 - 47. Counsel for the Employee agrees with him in that in the absence of a working agreement
between the Employee and the Employer, such as the Pilot's Agreement at L.1.A.T., the Tribunal must loo
k for assistance at the provisions of the Colonial Air Navigation Order 1961 and the document entitled
"The Avoidance of Excessive Fatigue in Aircrews - Guide to Requirements", copies of which were made ava
ilable to the Court. That document he submitted was an interpretation and guidance to pilots not only i
n Great Britain but also in the Caribbean and was on all fours to all intents and purposes with our own
Colonial Air Navigation Order.

Counsel for the Employee further submitted that the Employee was being asked to fly in contravention of
the lawful directions of the Colonial Aviation Authority, because the maximum duty period stipulated fo
r four sectors was 10¾ hours. The Employee had already completed 5 % hours and if he had undertaken the
flight, from past experience he would have spent a further 7 hours flight duty time. At that point the
Employee had a discretion and it mattered not whether he said he had his own business to do or that he
was tired.

We have looked at the provisions of the Colonial Air Navigation Order and for the sake of brevity only
have not produced them in this judgment.

We find that the Company was in breach of those provisions in that there were no limits laid down on th
e aggregate of the Employee's flying time, there was no established rest period. It is significant that
when Fitt was employed a roster was instituted enabling each employee to take three days off on a regul
ar basis. Consequently the Court can properly find that the Employee was tired and overworked, and that
it would have been unsafe to operate tile flight.

But even if we had found that the Employer had complied with those provisions, wouldn't the agreement r
eached between the Employer and Employee supersede these provisions. We think so.

In his letter of dismissal Mr. Farrara claims that the Employee had not cooperated with the Employer an
d had failed to show up for work on occasion. It is axiomatic that he took these matters into account w

[email protected] p. 57
 hen making his decision to terminate the Employee's services. Yet at the hearing no evidence verbal or
documentary was produced in relation to the alleged absenteeism. We are of the view that misconduct has
not been proved and that in dismissing the Employee on the 10th December 1982, the Employer acted hasti
ly and without carrying out necessary and proper investigations into the matter. In the circumstances,
the Employer has failed to show that it acted reasonably in dismissing the Employee.

Now we come to the question of compensation. The Employee has already received the sum of $9,535.86 in
respect of his holiday pay entitlement, notice pay and what the Employer termed severance pay but was i
n fact compensation for years of service. What is therefore being claimed now is compensation for the u
nfair dismissal, over and above what he has already received.

The Employee is no longer a pilot. He sought work as a pilot and could not get work. The Employer had r
efused to give him a recommendation. He eventually took up work as a heavy duty equipment operator earn
ing $1,200.00 monthly, a loss of some $1,750 per month. He was at home unemployed for about 7 months. H
e had however only worked for his employer for about 2 years.

We award him the following damages:

Immediate loss-7 months x $2950.00 = $20,650.00

Future loss - 6 months x $1750.00 = $10,500.00
TOTAL = $31,150.00

This sum should be paid no later than 15th August 1986.

We make no order as to costs.

Radford W. Hill,
Chairman.

James H. Carrott,
Member.

Charlesworth W. Edwards,
Member.

LEISTE v. THE GRENADA NATIONAL AIR SERVICES LTD.

https://carilaw.cavehill.uwi.edu/permalink/carilaw10510
Subject: Contract
Citation Number: GD 1968 HC 1
Country: Grenada
Court: High Court
Date: January 18, 1968
Judge: St. Bernard, J.
Suit No.: No. 149 of 1967

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 Sub-subject: Sale of Goods - Statute – Interpretation - Facts: An airplane was purchased by a third
party, registered in the plaintiff's name, and given to the defendant. Plaintiff entered
into a contract with the third party, which purported to be a Bill of Sale in which the
property in the aircraft was transferred to the third party as security for a loan. The
Bill of Sale was not registered as required by section 6(1) of the Bills of Sale
Ordinance, Chap. 35 of the Laws of Grenada and was therefore void as against all
trustees or assignees of the estate of the plaintiff, any assignment for the benefit of
plaintiff's creditors, etc. Plaintiff claimed the contract, as a result of it not being
registered, was void as between the parties Held: The purported Bill of Sale was
valid as between the contracting parties and operated as a contract between the
plaintiff and the third party, who was estopped from denying that there was a loan to
the plaintiff. The plaintiff was also estopped from denying the transfer of the aircraft
to him as security for the loan. Section 6(1) of the Ordinance did not operate to make
the transaction totally void as a result of non-compliance with its provisions.

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Full Text
Appearances:

George E. D. Clyne for the plaintiff.

Armand J. Williams for the defendant .

ST. BERNARD, J.: This action commenced as an originating summons in chambers between the plaintiff and
the Attorney General of Grenada but by order of the Court dated the 17th July, 1967 the Grenada Nationa
l Air Services Ltd. was substituted as defendant. The matter came up for hearing in chambers on the 18t
h August, 1967 when the Court ordered that the action be transferred as a trial action in open Court an
d the affidavits be treated as pleadings in the action.

The trial began on the 26th September, 1967, and was continued on the 27th and 28th September and on 20
th November, and other days.

The facts as I find them are as follows: On the 5th January 1967, Frank Hughes met the plaintiff an Ame
rican citizen and her husband a German National at Pearls Airport. He met the husband who is a pilot on
ce before and they renewed the acquaintance. Hughes drove them to St. George's and offered them accommo
dation which they accepted. On the evening of the same day Hughes told Horst Leiste, the husband, that
he was promoting a company to be called the Grenada National Airline and asked his opinion. Horst Leist
e thought it a good idea and the next day he was introduced to James K. Milne who was the promoter and
the financial backer of the proposed company. They discussed the promotion of this company and Leiste a
dvised that the name should be the Grenada National Air Services Ltd. and they accepted his advice. He
was asked by Milne whether he would be willing to act as consultant and pilot to the proposed company a
t a salary of $500 a month. Leiste accepted this offer. In his evidence, however, he stated that he was
only consultant and adviser and not employed as pilot. I find. that he represented himself as a commerc
ial pilot and it was for this reason he was employed. When it was found out that he was not a commercia
l pilot he was dismissed and this is the cause of all the trouble. Hughes and Milne arranged for an ext
ension of his stay in with the Immigration Office.

On the day Hughes met Leiste, Hughes was taking delivery of a Mooney Aircraft. They asked. Leiste his o
pinion of the aircraft and he informed them that that types of Aircraft was not good for air taxi servi
ce. Its only use was for test flying of the proposed flying routes. They decided to purchase a new airc
raft immediately. Leiste advised a Piper Cherokee 6 Aircraft as the best to start a small air service i

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 n Grenada as that aircraft was specially built for air taxi service in U.S.A. Leiste knew that the Pipe
r agent in Caracas was in possession of demonstration Aircraft of this type and informed Milne. Milne i
mmediately telephoned his office in Caracas to request Piper Agent to fly to Grenada for a demonstratio
n flight. A few days later a pilot from Caracas arrived in Grenada with the Aircraft. Leiste was the pi
lot for the demonstration. At the end of the test flight Milne asked whether he could purchase the airc
raft immediately, but was informed that that particular Aircraft was not for sale. He then inquired whe
ther it was possible to purchase one in Caracas without delay but was told that delivery would take thr
ee months. Although they wanted this type of aircraft found delivery time was too long and could not wa
it and so they all went to Barbados to purchase a Cessna Aircraft. This purchase, however, did not mate
rialize as they found the purchase price too high for this type of aircraft. On the way back to Grenada
the Mooney Aircraft developed engine trouble and although reached safely it was now grounded. The deman
d for an aircraft became more urgent and Milne asked Leiste whether he could suggest any way in which h
e could possess an aircraft under three months. Leiste told him that he had connections with Aircraft d
ealers in the U.S.A. and it might be possible to purchase a new aircraft but pointed out that it would
take some time to transfer ownership of an American Aircraft to a company registered in the U.S.A. or t
o a citizen not of the U.S.A. He stated that his wife was an American citizen and she would be quite wi
lling to help the company by registering the aircraft in her name and transferring the registration whe
n the company was formed. Up to this time Milne had not seen or spoken to the plaintiff. Leiste did not
accept this agreement of the wife using her name in order to purchase and then transferring to the comp
any. He stated that Milne when he could not get the aircraft purchase immediately offered him a loan fo
r his wife of $25, 000.00 U.S. at 8% interest. He was surprised at this offer as he had only known Miln
e for 14 days but thought he was a man who liked to help people. I do not accept this. During this conv
10.
ersation Leiste stated that he knew Mr. Wilder of the company of Erdle & Guilder in Florida, the manufa
cturers of the Piper Cherokee 6. Milne requested Hughes to communicate by telephone to Mrs. Wilder and
arrange for the purchase of an aircraft. This was done without delay and Hughes and Leiste left for Fre
eport, Bahamas for the delivery of the aircraft. The price of the aircraft and all expenses were paid b
y Milne – a sum totaling about $25, 000.00 U.S. The aircraft was purchased with the money given to Hugh
es by Milne but registered in the name of Evelyn Leiste, the plaintiff, Insurance was also paid by Miln
e and all travel expenses of both Hughes and Leiste. The aircraft was purchased on the 1st February, 19
6, but the proposed Grenada National Air Services Ltd, was not yet formed.

On their return to Grenada with the Aircraft it was used for commercial flying taking passengers to the
different islands. Milne paid the expenses partly for these flights and all moneys collected were given
to Hughes. Leiste was the pilot. He took his wife to Tobago and these expenses were paid by Milne. Leis
te stated all moneys collected for fares was given to Hughes. All things seem to have gone quietly unti
l 25th February, 1967, when Hughes told Leiste that all flying must cease because of information receiv
ed from several islands in the Caribbean concerning him. His services were terminated at the end of Feb
ruary 1967.

The Grenada National Air Services was registered on the 18th April, 1967, with a share capital of $5, 0
00.00 divided into 100 shares at $50 each. The signators are James J. Milne and Frank Hughes holding on
e share each. By letter dated the 7th March 1967, the plaintiff requested the Federal aviation Agency o
f the United States of America to transfer the registration of the said Aircraft from her name to that
of the Grenada National Air Services Ltd., and later by letter dated 29th March 1967 the plaintiff made
a request to the said Agency to effect a similar transfer to James K. Milne. These transfers were not e
ffected.

On this evidence I would have had no hesitation in declaring that the beneficial ownership in the Aircr
aft rested in James K. Milne but there is some further evidence which I have to consider. In my opinion
, on this evidence, the Grenada National Air Services Ltd. has no claim to the aircraft. In Natal etc.
v. Pauline Colliery Syndicate Ltd. [1904] A.C. 120 P. C. it was stated that a company cannot by adoptio
n or ratification obtain the benefit of a contract purporting to have been made on its behalf before th
e company came into existence. In order to do so a new contract must be made with it after its incorpor
ation on the terms of the old one.

Counsel for the defendant company submitted that the Court would make a declaration that the beneficial
owner is James K. Milne. He cited the case of New York Life Insurance v. Public Trustee [1924] 2 Ch. 10
1 at p. 118. James K. Milne was a witness for the defence. He was not joined as a party. Although I bel
ieve his oral evidence yet the circumstances of this case are peculiar and I have to consider the legal
position. The Aircraft was bought on the 1st February, 1967. Sometime after the purchase (the exact dat

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 position. The Aircraft was bought on the 1st February, 1967. Sometime after the purchase (the exact dat
e is unknown) Milne seemed to have become concerned of the fact about security for his money since the
aircraft was registered in the name of the plaintiff. He decided on the advise of his solicitor to obta
in some sort of security and entered into a written contract with the plaintiff. This contract purporte
d to be a bill of sale in which the property in the aircraft was transferred to James K. Milne as secur
ity for a loan of $42, 500.00 B. W. I. This bill of sale was not registered as required by section 6(1)
Bills of Sale Ordinance and is therefore void as against all trustees or assignees of the estate of the
person whose chattels, or any of them are comprised in such bill of sale under the law relating to bank
ruptcy, or under any assignment for the benefit of creditors of such person etc. Milne stated that the
bill of sale was not registered as he only required security for his money until the Grenada National A
ir Services was formed the registration of the aircraft transferred to the said company.

Section 6(1) of the Bills of Sale Ordinance, Chapter 35 of the Laws of Grenada enacts:

“Every bill of sale to which this ordinance applies shall be duly attested and shall be registered unde
r this ordinance, within seven days after the making or giving thereof, and shall set forth the conside
ration for which such bill of sale was given, otherwise such bill of sale, as against all trustees or a
ssignees of the estate of the person whose chattels, or any of them, are comprised in such bill of sale
under the law relating to bankruptcy, or under any assignment for the benefit of the creditors of such
person, and also as against all persons seizing any chattels comprised in such bill of sale, in the exe
cution of any process of any Court authorising the seizure of the chattels of the person by whom or of
whose chattels such process shall have been issued, shall be deemed. fraudulent and void so far as rega
rds the property in or right to the possession of any chattels comprised in such bill of sale which at
or after the time of filing the petition for bankruptcy or of the execution of such assignment, or of e
xecuting such process (as the case may be), and after the expiration of such seven days are in the poss
ession or apparent possession of the person making such bill of sale or of any person against whom the
process has issued under or in the execution of such bill of sale has been made or given, as the case m
ay be.”

Counsel for the plaintiff submitted that in view of this contract, exhibit 3, Milne is estopped from de
nying that there was a loan to the plaintiff. With this submission I agree. It must be noted, however,
that section 6(1) of the Bills of Sale Ordinance does not make such transaction as has taken place betw
een the plaintiff and Milne totally void. It states that such a transaction shall be deemed fraudulent
and void as against certain persons and transactions. In my opinion the purported bill of sale is valid
as between the contracting parties and operates as a contract between the plaintiff and Milne under whi
ch Milne is estopped from denying the loan, and similarly, the plaintiff is estopped from denying that
the fact that she transferred the aircraft to Milne as security for the loan. The fact is, I find, that
the aircraft never, at any time, was in the possession of the plaintiff. From the moment of purchase it
was controlled by and under the direction of Milne who placed it in the possession of Frank Hughes for
use as a commercial air carrier with Leiste, husband of the plaintiff as pilot. For his services he rec
eived $500 a month until he was dismissed. Even if I am wrong in holding that the unregistered bill of
sale is not totally void but is valid as between the grantor and grantees, yet, in my opinion, the plai
ntiff estopped by conduct from denying that the aircraft was given as security for a loan. At the time
of the purchase of the aircraft there was no loan to the plaintiff. Her name was used as a convenience
for the immediate purchase of the aircraft. Exhibit 3 was executed after the purchase and no money pass
ed between Milne and the plaintiff. When exhibit 3 was executed the aircraft was already in Milne’s pos
session and the plaintiff never made an attempt to take possession thereof. She must be taken as having
impliedly consented to its being given as security for the loan. I am confirmed in this view also by th
e fact that on the 29th March, 1967 she wrote the Federal Aviation Agency of the United States requesti
ng a transfer of registration from her name to that of James K. Milne.

In my opinion, the plaintiff is entitled to an equity of redemption in the aircraft on payment of the l
oan. The Grenada National Air Services Limited has no claim thereto and I so declare.

Costs against the Grenada National Air Services Limited. To plaintiff ? of taxed costs.

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