(TRINIDAD EXPRESS) – AN Irish company is seeking close to US$13 million ($88 million) in compensation from the Trinidad and Tobago government for breach of contract for a helicopter under the Kamla Persad-Bissessar regime in 2014.
If pre-judgment and post-judgment interest are added, the figure could skyrocket to $100 million should the court rule in favour of Vertical Aviation LLC.
The helicopter—a Sikorsky S-76—is well-known globally for its work in VIP transportation and utility work. The helicopter in question is owned by Vertical Aviation LLC and retails for US$15 million.
The lawsuit came up for hearing last Monday in the New York Southern District Court before Justice Mary Kay Vyskocil.
Vertical Aviation had originally filed the lawsuit in 2018, but the case was voluntarily dismissed without prejudice after the parties (Vertical Aviation and Government of T&T) reached a settlement in 2019.
The Settlement Agreement provided that Vertical Aviation would refile its lawsuit if the defendant (T&T government) failed to comply with the settlement terms.
The terms which relate to the specific monetary and non-monetary terms and conditions of settlement were made to preserve the parties’ privacy and confidentiality interests in compliance with the terms of their 2019 Settlement Agreement, and prohibited public disclosure of the terms of that agreement.
Griffith and sovereign immunity
Apart from the Government of T&T being listed as the defendants, the claim names former national security minister Gary Griffith and said in determining the matter, the court has to decide “whether Gary Griffith, minister of national security for Trinidad and Tobago, had actual and/or apparent authority to waive sovereign immunity… the Court is particularly interested in which law, New York law or the law of the Republic of Trinidad and Tobago applies to determine whether Griffith had actual authority”.
Sovereign immunity refers to the fact that the government cannot be sued without its consent. Essentially, in this instance, it means if you are a business in T&T, you cannot sue the United States government and vice versa, unless a contract is signed stating otherwise.
Vertical Aviation is claiming such immunity does not exist, since when the contract was signed it was more of a business deal than government arrangement.
As part of its case, Vertical Aviation attached three confidential communications on the decision to lease the helicopter—T&T National Operations Centre, which at the time was within the Office of the Prime Minister, Minister of National Security, and the National Security Council. Persad-Bissessar at the time headed the Security Council.
The Sunday Express contacted representatives of Vertical Aviation via e-mail last Tuesday, seeking a comment. We were told to e-mail questions to GECAS’ Global Communications Leader at email@example.com.
An e-mail response sent that same day by James Luton, Global Communications Leader at GE Capital Aviation Services (GECAS), stated, “Thank you for reaching out with your enquiry. However, we do not comment on pending litigation.”
As part of its evidence, Vertical Aviation submitted the terms of the lease agreement, letter of comfort and undertaking, as well as a December 19, 2014, letter regarding the lease from the “Director General of Civil Aviation for the Trinidad and Tobago Civil Aviation Authority, Mr Ramesh Lutchmedial”.
“Exhibit 4 is a Opinion from KR Lalla & Company, the law firm based in Port of Spain in Trinidad and Tobago that represented Defendant in connection with the Lease transaction”.
The opinion limits disclosure of the letter, but permits its use in connection with the lease transaction.
Vertical Aviation stated in court documents, “Out of an abundance of caution and because Defendant has not appeared in this action, Plaintiff seeks leave to file the exhibit under seal to preserve Defendant’s confidentiality and privacy interests with respect to opinions rendered by its counsel”.
Exhibit 11 is the parties’ Settlement Agreement, effective February 22, 2019.
Exhibit 12 is a letter sent by attorney Susman Godfrey LLP, counsel for Vertical Aviation, to the government of T&T, to inform the latter of the “Plaintiff’s exercise of its put right to require Defendant to purchase the Aircraft as agreed under the terms of the Lease”.
According to court documents, when the matter came up for hearing, the judge ordered “that on or before December 21, 2020, Plaintiff shall file a letter brief addressing the following issues:
(1) the propriety of service of process, including the history of the prior related action before Judge Keenan;
(2) Defendant’s waiver of sovereign immunity and consent to the jurisdiction of the Court;
(3) Whether Gary Griffith, Minister of National Security for Trinidad and Tobago, had actual and/or apparent authority to waive sovereign immunity.
“With respect to the third issue, the Court is particularly interested in which law, New York law or the law of the Republic of Trinidad and Tobago applies to determine whether Griffith had actual authority.
“Specifically, Plaintiff should address (1) the choice-of-law provision in the Lease; (2) recent decisions of the New York Court of Appeals concerning the effect contractual choice-of-law provisions have on common-law conflict-of-laws principles; and (3) the effect, if any, such recent decisions of the New York Court of Appeals have on the most-significant-relationship approach federal courts in this District have used to find that the laws of a foreign state apply to determine whether an agent of a foreign state had actual authority to waive sovereign immunity.”
Additionally, it was ordered that on or before January 11, 2021, the Government of T&T shall file a letter explaining:
(1) Why it has failed to appear in this action and why default judgment should not be entered in the amount of $12,045,000, plus pre-judgment and post-judgment interest; and
(2) any opposition in response to plaintiff’s motion for default judgment and plaintiffs letter brief.
The court also ordered that Vertical Aviation serve the T&T Government electronically with supporting documents, inclusive of, but not limited to, the default judgment and various affidavits tendered, on or before January 4, 2021. Should the T&T Government fail to appear, defend and file on or before January 11, 2021, “and if upon review of Plaintiff’s (Vertical Aviation Ltd) letter brief, considered with the documents filed in support of Plaintiff’s Motion for Default Judgment, the Court concludes that Griffith had authority to waive Defendant’s (T&T Government) sovereign immunity such that the Court may exercise jurisdiction over Defendant, the Court will enter default judgment…”
National Helicopter Services
Ltd vs Vertical Aviation
On August 28, 2018, Vertical Aviation filed a lawsuit seeking money owed.
On January 18, 2019, the case was terminated.
Court records revealed the matter was heard in the New York Southern District Court before Judge Katherine Polk Failla. Court records showed the matter was a voluntary dismissal, “with prejudice against the defendant(s)—National Helicopter Services Ltd”.
The Sunday Express understands the matter was settled between both parties.
During a debate in the House of Representatives in October 2018, Works and Transport Minister Rohan Sinanan had indicated the Government was facing a US$27 million ($189 million) bill for breach of contract for a helicopter that never came to Trinidad and Tobago.
Sinanan had said: “I have here a breach of contract claim against NHSL (National Helicopter Services Ltd) by Vertical Aviation LLC. This is a contract signed in May 2015 by Joshey Mahabir, general manager of NHSL.
“This (claim) refers to a helicopter that was leased in 2015 which the last government rented for US$120,000 a month. We have paid so far $2,489,000. The helicopter never came to Trinidad.
“Never came to Trinidad! Why? Because it could not be certified in Trinidad,” Sinanan had said.
“National Helicopter Services is now legally exposed by this deal made under the previous government, and it now falls on the Minister of Works and the Government of Trinidad and Tobago to explore a way to neutralise this grave exposure,” he said then.