"I'm not going to be the fall guy," Lord Dalgety tells Ashika inquiry [1]
Thursday, January 21, 2010 - 19:27. Updated on Wednesday, September 11, 2013 - 09:54.
Calling the Ashika an old "rust bucket", Lord Dalgety QC yesterday told the Royal Commission of Inquiry into the sinking of the ferry that the Minister of Transport's submission was totally and utterly incorrect in stating that Dalgety had revised a Memorandum of Agreement for the FJD$600,000 purchase of the vessel.
"I'm not going to be the fall guy for signing this contract or agreeing to it," he said.
Lord Dalgety, who denied ever revising a Memorandum of Agreement (MOA) for the purchase, was appearing as a witness, on Day 32 of the inquiry, (January 20)
He told the inquiry, that the former Minister of Transport, Paul Karalus, had incorrectly submitted to the Solicitor General that he [Lord Dalgety] had revised a MOA in relation to the purchase of the Ashika, and said such a submission was "totally and utterly incorrect."
Piece of Rubbish
He was asked by the Counsel Assisting the Commission, Manuel Varitimos, "So Mr Karalus incorrectly informed the Solicitor General that you had revised the memorandum standard agreement?"
Lord Dalgety asserted, "I did not revise and I would not have revised that piece of rubbish. I'd have put a line through it and simply said, 'Reject, unsatisfactory!"
The MOA is confirmed to have been signed by Jonesse for and on behalf of the buyers.
Denied
"So where did Mr Karalus get the information from to advise the learned Solicitor General in writing: 'MOA standard agreement revised with Lord Dalgety' - where did that come from?," asked the counsel.
"I have no idea, but what I do know, and I'll repeat it, and I'll keep repeating it: I did not draft, revise, of any part in any of these agreements. I saw one agreement - the Patterson Brothers one - which they'd suggested, and I said it was inappropriate."
Lord Dalgety continued to add that Government had their own lawyers and takes advice as they think fit. He was not asked.
"The only person that showed me anything was Jonesse. And I told him that it was inappropriate and should not be used," he said.
Not fall guy
"I do not know where or why this statement is made, but it is factually inaccurate and it is wrong, and I'm not going to be the fall guy for signing this contract or agreeing to it. I had nothing to do with it. It's rubbish, totally and utterly. Anybody agreeing to this needs their head examined!" said Lord Dalgety
The witness affirmed that the Shipping Corporation were looking for a substitute vessel for the Olovaha that could be safely used in Tongan waters for a period of about two years until the Japanese new vessel arrived.
The counsel put to him that Shipping Corporation surely did not want the Government of Tonga purchasing a vessel that was likely to sink, but that the deficiencies list demonstrated that Princess Ashika, on July 2 2009, was clearly unseaworthy and unsafe.
"If we had - if we had seen this before the vessel put to sea, I would have given advice - and I fully expect that the other directors, of their own volition would have agreed - the vessel cannot and will not be operated by us," the witness replied.
Rust bucket
In the afternoon session on January 20 Lord Dalgety was asked by the Counsel Varitimos whether he knew was rust is and whether he saw any rust or had he looked for any rust, when he went onboard the MV Princess Ashika after a special prayer service before its first sailing on July 4, 2009.
Lord Dalgety answered that he didn't look for rust and the first time he saw any evidence was when it was pointed out with a film, shown at an earlier hearing of the Ashika Inquiry.
"Lord Dalgety, I suggest it was patently obvious for anyone that cared to look that Ashika was littered with rust and corrosion," Varitimos asked.
The witness replied: "But I don't - I don't - I don't deny the conclusion you've come to, that the vessel was - to put it in lay terms - a rust bucket. There seems to be enough evidence to that effect."
Lord Dalgety also said that anybody trained in these matters would certainly see it. He, on the hand, did not have the time and he wasn't looking for rust and had no recollections of rust being obvious to him.
"It was a vessel that had been certified seaworthy," the witness told the inquiry.
"Lord Dalgety, I'm asking you: did you have any interest in looking at the condition of the vessel Ashika, when you walked on it in July 2009?"
The witness answered that they were all looking about to see what facilities were there and they saw the cargo space, the passenger space and the bridge. They were notdoing a physical inspection of the vessel. But he added that his impression of the vessel when he walked on it, was that it was old.
FJD $600,000
In turning to the Contract for the Purchase of the Ashika, Lord Dalgety said that Jonesse showed him the document and he told him that it was not the appropriate document and to use the "Norwegian sale form" and that was as far as it went.
"Lord Dalgety, do you accept that Mr Jonesse knew you were an Admiralty Law expert, a Queen's Counsel and had experience in drafting contracts?' counsel asked, and the witness agreed.
He agreed that the contract was unconditional, when counsel asked, "that is, it does not matter how bad the vessel is. The Government's bound to pay F$600,000 - is that right?"
"That's right," said Dalgety.
Dalgety also agreed that the contract had no protection, which the purchasers required if it didn't measure up on inspection or on inspection of documentation; and also made no provision for survey certificates, load line certificates or any other critical certificates to be provided. The contract provided in terms of the payment obligation was that "the sum of F$90,000 shall be paid on or before May 8th" - which was the date of the contract,.
The contract also stated that the balance of $510,000 was to be paid on the same date that the contract is signed unless the parties agreed in writing otherwise.
Unusual
Counsel then asked Dalgety whether he ever seen such a contract where it required a payment obligation of the entire purchase price on the very same date that the contract is signed.
"No, I haven't and it's so highly unusual to be worthy of questioning," Lord Dalgety said.
"You would never sign such a contract - do you agree with that," asked the counsel. "I would never sign it, and I'd strongly advise others not to sign it," the witness replied.
He confirmed that these were the terms of the contract that
Mr Jonesse showed him in an unsigned version before May 8 2009, when the contract was signed.
The witness said did not speak to anyone about his concerns and he only told Jonesse to go back and speak to the person he said was the lawyer in the Minister of Transport that was handling this. And it was only later he agreed that the person there wasn't a lawyer, but an administrator who was handling the legal issues involved.
"Somebody else was buying and I was not an advisor to that party and I expressed my view and it was passed on", Lord Dalgety added.