The MV Barima and the Maritime Statute Book of Guyana: A Fully Expanded Analysis of Statutory Deficiency in the Law Governing Domestic Passenger Shipping

What this source establishes

A 253-page statutory analysis submitted to this archive by its author, Robert C. Millington - a retired US Navy officer and former licensed US Coast Guard Merchant Marine Deck Officer and First Class Ship Pilot, both Unlimited Tonnage. Read from the authorised Laws of Guyana, it argues that Guyana's maritime statute book contains almost no enforceable safety standard for the class of vessel most Guyanese travel on, requires nobody to count who goes aboard, and imposes on no person a duty to investigate a marine casualty. Its central finding is a 24-metre gap: the only instrument containing stability criteria, muster requirements and a record of passengers applies to vessels under 24 metres, while the survey instrument covering vessels above 24 metres excludes passenger ships in five words - so the Barima at 40.26 metres fell under neither. It also explains why a load line cannot answer the overloading question, why the Commission sits under a general statute rather than a maritime one, and identifies a six-month limitation period against the operator expiring on or about 18 January 2027. It makes no finding of fact and presumes the innocence of everyone charged.

Key claims

• A 253-page statutory analysis by Robert C. Millington - retired United States Navy naval officer, former licensed US Coast Guard Merchant Marine Deck Officer (Unlimited Tonnage) and former First Class Ship Pilot (Unlimited Tonnage), BSc Marine Transportation, State University of New York Maritime College at Fort Schuyler, thirty-nine years in the military, maritime and logistics sectors. Submitted as an aid to the Commission of Inquiry. Text current to 29 July 2026
• Statutory text read directly from the authorised Laws of Guyana, Revised Edition, as authorised by L.R.O. 1/2012, covering Cap. 49:01 (Guyana Shipping Act), Cap. 49:04 (Transport and Harbours Act), Cap. 49:07 (Shipping Casualties (Investigation and Prevention) Act 1883), Cap. 50:01 (River Navigation Act 1891) and Cap. 47:01
• THE 24-METRE GAP - the central finding. The Barima was 40.26 m long. Because she exceeded 24 metres the Guyana Shipping (Small Commercial Ship Safety) Regulations, Reg. 5 of 2005 did not apply to her - and that instrument is 'the only place in the entire 904-page consolidation containing intact stability criteria, stability information for operating personnel, an ISM-referenced safety management system, a Record of Passengers, a marine casualty notification duty, and station bill, muster and drill requirements'
• Because she was a passenger ship the Guyana Shipping (Cargo Ship Survey) Regulations, Reg. 6 of 2005 expressly carved her out: regulation 3 applies to sea-going Guyana ships of less than 500 gross tonnage but above 24 metres in length 'except passenger ships, fishing vessels and pleasure craft'. In the author's words she 'fell squarely inside the band and was removed from it by five words'
• Part XV of Cap. 49:01, headed 'Passenger Ships', consists of two sections - one an enabling power to make regulations that do not appear in the authorised consolidation, the other creating offences of drunkenness and fare evasion
• The author's summary of the consequence: 'A vessel one metre shorter, carrying a small fraction of her complement, was subject to a materially more demanding safety code than she was. Had she carried freight instead of people, she would have been subject to a five-yearly structural and machinery survey and to annual surveys. Because she carried people, she was subject to neither instrument'
• NO COUNTING DUTY EXISTS. SOLAS Chapter III regulation 27 requires all persons on board a passenger ship to be counted before departure and the record kept ashore. Cap. 49:01 s. 398(1)(b) confers a power to require particulars as to all passengers but is an enabling power with no regulations made under it. The author's conclusion: 'The discrepancy between 133 and 179 is therefore not, on the face of the statute book, a breach of any counting duty - because no counting duty exists.' A manifest is described as a commercial document compiled from bookings for revenue purposes, not a safety document
• THE LOAD LINE CANNOT ANSWER THE OVERLOADING QUESTION, and the author locates the fault in the statute rather than in the regulator: 'A load line measures reserve buoyancy at a given displacement. It measures total weight and water density. It is entirely indifferent to where that weight is.' It does not measure metacentric height, the righting-lever curve, the area under that curve, the angle of vanishing stability, free-surface effect, the downflooding angle, passenger crowding, or whether the vessel is already taking water. 'Every one of those determines whether a vessel capsizes. Not one is measured by the mark on her side'
• On why MARAD used it: 'the load line is the only quantitative loading control Guyanese law gives for this class of vessel. There are no intact stability criteria, no prescribed content for stability information under s. 290, no duty to calculate a departure condition, no approved loading conditions, and no passenger-crowding criterion. A regulator with a load line and nothing else will use the load line'
• THE OWNER IS THE REGULATOR. Cap. 49:01 s. 3(3) provides that where a Guyana Government ship is registered, 'any reference to an owner shall be construed as a reference to the Director'. The owner must report accidents to the Director (s. 237), notify defects to the Director (s. 292), carry stability information (s. 290), not send an unseaworthy ship to sea (s. 337), and is subject to detention by the Director (s. 339). 'In every case the person who must report is the person to whom the report is made.' The same Director appoints the assessors to any Board of formal investigation (s. 429(1)) and receives its report (s. 429(6))
• TWO CASUALTY-INVESTIGATION REGIMES, NEITHER OF WHICH COULD LAWFULLY BE USED. Cap. 49:01 Part XVIII (1998) gives the Minister a power and not a duty - 'no threshold, no trigger, no time limit, no duty to publish'. Cap. 49:07 Part I (1883) provides at s. 3 that nothing in that Part applies to any ship belonging to or in the service of the State; the Barima belonged to the State, so 'the machinery was disapplied to her by its own terms'. The author states the Commission of Inquiry therefore correctly sits under the general Commissions of Inquiry Act, and that this is 'the clearest possible proof of the deficiency'
• The IMO Casualty Investigation Code, mandatory under SOLAS Chapter XI-1 regulation 6 since 1 January 2010, is described as unimplemented in Guyana in every respect - no mandatory investigation of a very serious marine casualty, no independence, no separation from blame attribution, no protection for witness evidence, no duty to publish, no submission to the IMO
• THE PENALTIES ARE INVERTED. Submerging a load line, Cap. 49:01 s. 319: $100,000. Fraudulently altering draught marks, Cap. 49:04 s. 46: $48,750. Sailing with no stability information, s. 290(3): $10,000. Sending a ship to sea so unseaworthy that life is likely to be endangered, s. 337 via s. 444(1): $25,000 and six months. 'A vessel loaded one centimetre too deep attracts four times the fine of a vessel sent to sea in a condition likely to kill everyone aboard.' Both Acts supply a defence that sending an unseaworthy ship to sea was 'reasonable and justifiable'
• The author records - expressing no view on the charges and presuming innocence - that 'the recourse to common-law murder is a direct consequence of the penalty structure of the Guyana Shipping Act - a legislative failure, not a prosecutorial choice'
• ACCOUNTABILITY REACHES ONLY CERTIFICATE HOLDERS. Cap. 49:01 s. 429(3) permits a Board of formal investigation to cancel or suspend a certificate or censure its holder, and the author states 'that is the whole of its dispositive power over persons'. There is no finding available against a company, a Government Department, a Ministry, MARAD, the Director, or any uncertificated person; the Transport and Harbours Department 'cannot commit an offence under the Act, because the Act creates none capable of being committed by a Department'. His conclusion: 'Under the maritime statutes as they stand, the small man is the only person the law can reach'
• THE SUPERINTENDENT OF LOADING DOES NOT EXIST IN LAW - recorded as Deficiency 62. The office the Minister publicly identified as responsible for inspection and loading 'is not created by, named in, or given any duty by' Cap. 49:01, Cap. 49:04, Cap. 49:07 or Cap. 50:01. No qualification is prescribed for it, no standard governs how it loads, no record is required and no offence attaches to it. 'A person cannot be regulated by an office the statute does not create.' The author notes one of the three men charged on 28 July is described as the Goods or Loading Superintendent
• THE STATUTE STILL POINTS AT THE UNITED KINGDOM. Cap. 49:07 s. 5(4) requires the Minister to transmit a court of inquiry's report to 'the Board of Trade of the Government of the United Kingdom', as amended in 1998. The Coasting and Passenger Trade Regulations reg. 13(3) provide that the number of passengers a coasting steam vessel may carry is 'as ascertained in accordance with the survey established from time to time by the Board of Trade of the United Kingdom' - which the author states is the only rule in Guyanese law for ascertaining the passenger capacity of a power-driven coasting vessel. The Fourth Schedule prices the exercise at $20 for a vessel over 120 feet by deck measurement; the Barima was 126.5 feet
• THE 1891 RIVER LAW IS BETTER THAN THE 1998 SEA LAW. The River Navigation Regulations under Cap. 50:01 require annual inspection, branded waterlines against a statutory freeboard scale, machinery and steering maintained on pain of detention, a certificated maximum number of persons crew included with that number painted on both bows, one lifebelt for every certificated person, a count of persons entered in a book at a Government Station before departure, a prohibition on taking any additional person aboard after reporting, and a duty to report any accident whatever occasioning loss of life
• Regulation 19(1), made in 1918, permits one passenger with baggage for every five square feet of deck surface, expressly excluding space occupied by machinery, open hatches, skylights, fuel and any cargo carried on deck - a self-executing deck-area capacity rule that automatically reduces the permitted number of persons as deck cargo is loaded. The author states it applies on the Barima River and the Kaituma Creek but not on the sea passage between them and Georgetown
• Cap. 50:01 s. 14, inserted in 1998, is described as the only mandatory enforcement duty in the entire Guyanese maritime statute book: 'it shall be the duty of the Director and the Maritime Administration Department to enforce' the Act. 'In 1998 Parliament knew how to write such a duty. It wrote one, once, into an 1891 river statute, and did not write it into the new Act'
• WHAT THE REGULATOR SAID SEVEN YEARS BEFORE THE CASUALTY, which the author calls the most significant single item of institutional evidence in the document because it predates and is therefore uncontaminated by the casualty. On 27 March 2019 the Director General of MARAD, Claudette Rogers, stated publicly that 'although Guyana has ratified the main International Maritime Conventions, the requisite regulations need to be enacted or put in place because the country follows the common law system'; that the IMO Member State Audit of Guyana was completed in 2018; that one necessary measure arising directly from that audit was 'the enacting of regulations to give full and complete effect to the conventions which Guyana has ratified'; that Professor Duke Pollard, a retired Judge of the Caribbean Court of Justice, had been retained to update Guyana's maritime legislation and had completed the assignment with recommendations expressly directed at eliminating conflicts among agencies as to where responsibility for key maritime functions resides; and that Guyana had not ratified the STCW 95 amendments while Guyanese surveyors were issuing certificates on that basis, which she described as a significant breach of international maritime law
• The author identifies four documents which he says will very largely answer the Commission's question about institutional failure, and which all exist: the IMO Member State Audit report, Guyana's corrective action plan, the progress reports on its implementation, and the Pollard report and recommendations
• THE 18 JANUARY 2027 LIMITATION DEADLINE - recorded as the most urgent item in the document. Cap. 49:04 s. 23 requires that no action against the Transport and Harbours Department be commenced until one month after written notice naming the claimant's legal practitioner has been served, and that every such action be commenced within six months after the thing done or omitted, 'and not otherwise'. Six months from 18 July 2026 expires on or about 18 January 2027; notice must therefore be served by on or about 18 December 2026
• Six reasons the author gives for why that period is a trap for the people least able to avoid it: it runs from the act or omission and not from knowledge, death, identification of a body or a grant of representation; the Commission will very probably not have reported within six months, so a family that waits may find the period gone; claimants are disproportionately Region One residents with no road to Georgetown and the vessel that connected them is on the seabed; the notice must name a practitioner, so a family must find and instruct one before the clock can be stopped; five recovered victims remained unidentified and at least thirty unaccounted for as at 27 July 2026, and a family with no body and no death certificate cannot readily obtain a grant of representation while s. 23 makes no allowance; and ex gratia assistance is not compensation and does not stop the clock
• AND THERE IS NO INSURER TO CLAIM AGAINST. Cap. 49:01 s. 398(2) requires the Minister to have due regard to the Athens Convention when making passenger-ship regulations; no such regulations were made, 'so the requirement of due regard never attached to anything'. Guyana enacted the limitation of liability in Part XVI and not the liability - 'the protective half of the international bargain was omitted and the limiting half retained'. There is no strict liability for a shipping incident, no presumed fault, no compulsory insurance and no direct right of action against an insurer
• [CONFLICT WITH THIS ARCHIVE] The document gives the distress signal as 22:43, against the 23:01 this archive records from the Department of Public Information and the BBC. The author further states that on the night 'the distress signal reached an aviation authority at 22:43 and took twenty minutes, through two intermediaries, to reach the maritime rescue authority' - which, if correct, reconciles the two times and explains why several outlets named air traffic control as the recipient
• The author states that the Maritime Rescue Coordination Centre has no statutory existence and that the SAR Convention 1979 is unimplemented in Guyana
• Vessel particulars given: 284 grt / 111 nrt; 40.26 m x 8.87 m; draft 7.5 ft; twin screw; Ferguson Brothers (Port Glasgow) Ltd, yard no. 340; launched 9 May 1939; registered Georgetown 17 November 1939. Life-saving equipment given as 250 lifejackets, 6 inflatable liferafts and 2 rigid liferafts. Region One (Barima-Waini) population given as 38,956 at the 2022 census, with no road to Georgetown
• The author records certificated capacity as given variously as approximately 397, approximately 394 and approximately 150 passengers by three named sources, and states that on the manifest figure of 133 'the arithmetic does not close at all: 76 rescued plus 73 recovered dead exceeds 133 by sixteen'
• DEFICIENCY COUNT: 87 numbered deficiencies plus 20 unnumbered structural items - 42 CRITICAL, 29 HIGH, 11 MEDIUM, 3 LOW and 2 URGENT-TIME. Chapter 11 sets each against its provision, the gap, the MV Barima nexus, an international benchmark and a recommended reform
• COMPARATIVE FINDING: the MV Christena, lost off St Kitts and Nevis on 1 August 1970 with 233 dead, was built between 1958 and 1959 by Sprostons Ltd in Georgetown, British Guiana. The Renwick Commission of Inquiry, also constituted under a Commissions of Inquiry Act, heard 45 witnesses and reported in October 1970, about ten weeks after the loss. It found the vessel dangerously overloaded and improperly loaded, and no reliable system for counting passengers before departure; she had sailed with her ballast tanks empty as standard practice, adopted so she would ride higher and passengers would stop complaining about spray
• Across Christena (1970), Dona Paz (1987), Bukoba (1996), Le Joola (2002) and Sewol (2014) the author identifies recurring causal factors - certificated capacity exceeded; no reliable count of persons; improper cargo loading; insufficient ballast; a known defect not acted upon; modification raising the centre of gravity; closures unsecured; slow rescue; and a lifeline route with no alternative - and states that every one maps to a Guyanese deficiency identified in the document
• TEN RECOMMENDED REFORMS, which the author states require no new Act because the regulation-making powers already exist under Cap. 49:01 ss. 251, 398 and 452 or Cap. 49:07 s. 25: a domestic passenger vessel safety code for all vessels of 24 metres and over based on the IMO Model Regulations on Domestic Ferry Safety; a published maximum number of persons marked on the vessel with exceeding it an offence by the carrier; a duty to count every person at embarkation with no boarding after the count closes; prescribed content for stability information with the departure condition calculated, recorded and certified before every voyage; an independent permanent multi-modal Transport Safety Board reporting to Parliament; repeal of s. 3(3) so the regulator is no longer the owner; repeal of the 'reasonable and justifiable' defence; accession to the Athens Convention 2002 Protocol; dealing with Cap. 49:04 s. 23 before 18 January 2027; and a Maritime Search and Rescue Act
• STATED LIMITATIONS, which the author discloses rather than conceals: the consolidation relied on is current only to L.R.O. 1/2012, so every finding expressed as the absence of a regulation is subject to verification against post-2012 instruments and the Official Gazette; and Guyana's accession status could not be verified instrument by instrument against the IMO Status of Conventions table, which he lists as Priority One verification item number one
• The author states the document 'is not an accident investigation; it has no access to the wreck, the certificates, the stability book, the manifest or any witness', is not a submission that any particular provision was breached, is not a criticism of the individuals who administer the Guyanese maritime system, and makes no finding of fact. Every person charged, detained, suspended or named is expressly presumed innocent
• The author corrects his own earlier drafts in two respects recorded in the document: an earlier framing of the owner-regulator problem as a single-ministry fusion of operator and regulator was wrong, because MARAD and the Transport and Harbours Department sit under different Ministers, and the real defect is narrower and lies inside the office of the Director; and an earlier draft recorded that the text of Cap. 49:07 could not be obtained, which has since been resolved

This page is a research summary prepared for comment and review. It is not the article. Copyright in the original remains with Robert C. Millington (submitted to this archive by the author); the full text is held only in the private research corpus from which this archive was compiled. Follow the link above to read it at the source.