MARITIME attorney Nyree Alfonso has been cleared of all wrongdoing in the acquisition of the MV Superfast Galicia to service the inter-island seabridge over a decade ago.
In 2018, the Port Authority and the Attorney General filed a claim for breach of fiduciary duty against Alfonso, Intercontinental Shipping Ltd (ICSL), and its representative, John Powell.
The lawsuit alleged between December 2013 and July 2014, the authority retained Alfonso to help procure a new vessel for the inter-island ferry service.
It claimed Alfonso breached her fiduciary duty as an attorney for the authority, as she was associated with the company and assisted in its successful tender in exchange for financial gain. The authority alleged that while Alfonso was working for the port, she appointed Intercontinental Shipping Ltd, as her agent to tender for the contract. Intercontinental, the agents for the Superfast Galicia, won the bid.
The claim further alleged Alfonso benefited financially from the $148 million paid to Intercontinental for the Galicia.
In a ruling on Tuesday, Justice Joan Charles held that the Port Authority had not established that Alfonso acted in breach of her fiduciary duty to win a tender and the Port Authority, with full knowledge, approved ICSL.
She also held that neither Intercontinental nor Powell acted as Alfonso’s agents or with her to “derive a pecuniary benefit.
“The claimants had full knowledge of all information relating to the charter of the MVSG…that the first defendant was not involved in the tender and that the second defendant was acting independently.
“The claimants, with full knowledge of all the facts, entered into a charter party with the second defendant as disponent owner of the MVSG and Astralship as broker for the said vessel.
“I, therefore, dismiss the claimants’ case and give judgment for the defendants,” she ruled.
Details of the claim against Alfonso were that she reviewed the case for terminating the authority’s arrangements for the Government Shipping Service with the owners of the MV Warrior Spirit and identified the MV Superfast Galicia as the preferred replacement.
It also pleaded that the only reason Astralship was excluded from the tender process as the broker was to permit Alfonso, ICSL and Powell to tender. The judge said this claim was “surprising” since the Port Authority pleaded that the broker was excluded from the tender process, yet the charter party for the Galicia showed it was the ship’s broker.
“This averment was shown to be completely inaccurate; this aspect of the claimants’ case was thereby undermined,” the judge said.
The lawsuit filed against the three sought damages for an alleged breach of fiduciary duty by Alfonso while she was working for the Port Authority as an adviser to help them source a vessel to replace the Warrior Spirit on the inter-island sea bridge.
She denied that ICSL or Powell ever acted as her agent in the authority’s tendering process to find a suitable cargo vessel for the inter-island route during the time the Warrior Spirit was to go into dry dock. She also said she was only on a six-month contract to help the port help identify/locate a party/vessel for the route during the dry-docking period of the Warrior Spirit, but not “bring it here or operate it.”
The lawsuit against Alfonso, Powell, and ICSL was filed shortly after the Superfast Galicia contract was cancelled in April 2017. Before then, the Galicia had operated on the seabridge since 2014.
The decision to cancel the contract led to daily delays in the ferry service before the government eventually bought the Galleons Passage to service the seabridge.
In her evidence, Alfonso said the port mistakenly sent a tender package to her and she sought to transfer it to ICSL. She also admitted to making an error in a letter she wrote allegedly appointing ICSL as her agent.
“It was an error. All I intended to do was assign the tender documents to ICSL. It was not the right way to approach it, but what I intended and what I wrote were not the same thing,” Alfonso said.
She said it was unfortunate, but at the time she was consumed by her work at First Citizens Bank, where she was non-executive chairman at the time.
The judge said it was “passing strange” that the Port Authority did not deny the existence of the letter, but sought to allege it was fabricated as a “clumsy and futile attempt to shield themselves from legal proceedings.
“There is no evidence before me of NDA (Alfonso) diverting a commercial opportunity to herself by excluding the broker of the vessel who had been identified even before this tendering process had proceeded.
“I accepted Ms Alfonso’s evidence that upon sourcing the vessels as directed by the PATT she had advised the latter that the broker for the MVSG was Astralship...
“I also note that there is no evidence of financial benefit to the first defendant; while the second defendant was paid under the charter party, the evidence shows that good value for service was provided in that the GORTT as well as the public was satisfied with the ferry service during the three years that the MVSG operated over the seabridge.”
The judge also noted there was no evidence to support the Port Authority’s contention that Alfonso shared knowledge with ICSL to give it an advantage in its bid.
She said based on the evidence, the tender was awarded with the Port Authority’s full knowledge and assent and it selected them “with eyes wide open.”
Charles also said the Port Authority and the AG could not now allege that ICSL obtained a benefit, nor was there evidence to show Alfonso benefited financially from the arrangement, since “by all accounts, the vessel performed to the satisfaction” of the Government, with no complaints.
At a press conference in July 2018, then-Attorney General Faris Al-Rawi announced the State’s lawsuit against Alfonso and the others.
Four months earlier, then-minister in the Office of the Attorney General Stuart Young spoke on the Galicia’s procurement in Parliament.
Powell and ICSL were represented by Jonathan Walker and Sherry Gopie. Alfonso is represented by a team of attorneys led by Senior Counsel Sophia Chote, Shiv Sharma, Asif Hosein-Shah and Ananda Rampersad.
Representing the Port Authority were Claude Denbow, SC, and Donna Denbow.
The attorneys were told to send a note to the judge on the issue of costs.
