Landmark ruling for licensees of the Grand Bahama Port Authority Ltd

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On an issue of major significance to licensees of the Grand Bahama Port Authority Ltd, members of the Firm obtained a landmark ruling from the Supreme Court of the Bahamas relating to the Hawksbill Creek Agreement.

On an issue of major significance to licensees of the Grand Bahama Port Authority Ltd, members of the Firm obtained a landmark ruling from the Supreme Court of the Bahamas relating to the Hawksbill Creek Agreement.

After six years in litigation in the Supreme Court in Grand Bahama, the Hon. Mrs. Justice Estelle Gray-Evans ruled in favour of G.B. Janiki Investment Company Limited/Mr. James Kemp in allowing him to by-pass a Government Moratorium on the issuance of taxi plates.

Mr. Kemp was represented by Mrs. Kenra Parris-Whittaker and Mr. Jacy Whittaker while the Queen/Assistant Deputy Controller of Road Traffic and Inspector of Road Traffic were represented by Ms. Melissa Wright and Ms. Ingrid Brookes of the Attorney General’s office.
According to the final judgment Mr. Kemp had applied to the Grand Bahama Port Authority for a business license to operate a taxi business in Freeport which he was granted. On importing the vehicles he at first attempted to have one of them inspected with the Road Traffic Department but was told the vehicle could not be inspected because Mr. Kemp did not have a Government license to operate a taxicab business.

The Assistant Controller of Road Traffic who agreed with the inspector that the due to the fact that there is a “Government moratorium” on taxi cabs licenses and Mr. Kemp not having a Government license, he would not be able to inspect nor license his vehicle nor any other vehicles he owned.

Hearing this, Mr. Kemp secured his legal team and filed an action against the Road Traffic Department on 19 September, 2006.

The Justice in this case decided that the amendment to the Hawksbill Creek Agreement in 1993 included a clause that would allow Mr. Kemp to by-pass the Government’s moratorium on the issuance of taxicab plates.

In the agreement it says in Clause 3(7) that the parties mutually agreed that:

The Port Authority will not assign their rights under this Agreement without the consent in writing of the Govenrment provided always that nothing in this sub-clause contained shall be deemed to prevent or restrict in any way the Port Authority licensing any persons, firm or company to carry on any lawful business, undertaking or enterprise within the Port Area on such terms and conditions as the Port Authority shall in (its) absolute discretion deem fit and proper, subject only to the provisions hereinbefore contained.

Then in Clause 2(23) it was noted that the Agreement provided:

(23)  That subject to the provision of sub-clause (10) only the Port Authority and any licensee shall have the right:

(a) To carry on and engage in any business or undertaking of trucking or transporting passengers and freight, stevedoring, and the handling of freight, within the Port Area during the continuance of this Agreement  without having to obtain any permit or license therefore (sic) or in respect thereof from the Government or any department thereof or any licensing Authority thereof, any present laws or regulations of the Colony and the enactment of future laws or regulations win the Colony to the contrary notwithstanding; and

(b) To carry on and engage in any other lawful business or undertaking (other than those referred to in paragraph (a) of this sub-clause of this clause) within the Port Area during the continuance of this Agreement without having to obtain any permit therefore (sic) or in respect thereof from the Government or any department thereof, provided always that if any law or regulation for the time being in force in the Colony shall require that the person intending to carry on any such other business or undertaking shall first obtain a license therefore, then and in that normal manner and as if such other business or undertaking was not to be carried on within the Port Area, and Provided further that if the person applying for such license shall be refused the grant thereof within the Port  Area then such person shall not carry on or engage in such business in respect of which such license shall have been refused within the Port Area.

Justice Mrs. Gray-Evans said that it is clear from this that in order for Mr. Kemp to carry on business in the Port Area he needed to have a Port License and not a Government license.
Having this, it was ordered that the vehicles brought in by Mr. Kemp for his business be inspected and licensed so that he can begin conducting business in the Port Area as far as the boundaries allowed.

Further, the Court held that even if the alleged moratorium existed, the moratorium would not extend to the Port Area of Freeport.

A copy of the decision is available here