Last week, POGO learned about the case of Lieutenant Colonel Dominic "Rocky" Baragona and that the Senate had recently introduced a bill named in his honor--the "Lieutenant Colonel Dominic 'Rocky' Baragona Justice for American Heroes Harmed by Contractors Act" (S. 526)--to provide legal recourse to Americans harmed by U.S. contractors performing contracts overseas.
Baragona was killed in a traffic accident in Iraq in 2003. His parents brought a wrongful death lawsuit against the driver of the other vehicle involved in the accident and his employer, a Kuwaiti shipping and transport company called Kuwait & Gulf Link Transport Co. (KGL). The Baragonas filed suit in federal court in Atlanta, Georgia, because they alleged that KGL was, at the time of the accident, working on a contract with the Army Central Command unit headquartered at Fort McPherson in Atlanta. In November 2007, the court entered a default judgment against KGL and ordered it to pay $4.9 million in damages. KGL, which up to that point had ignored the lawsuit, came parachuting in to fight the judgment on the grounds that the court lacked jurisdiction.
POGO pointed out that the Baragonas' lawsuit was a last-ditch effort, and that the American legal system can sometimes turn out to be a painfully-slow, heartbreaking experience even for litigants who think they have “won.” Sure enough, after having heard KGL's side of the story, the court last Friday vacated its judgment and dismissed the lawsuit.
Even though the court had choice words about KGL's behavior (“KGL's conduct in this case was indignant and callous”), it could find no constitutional basis for exercising jurisdiction over KGL and allowing the lawsuit to continue. The court heard evidence that the KGL driver whose truck collided with Lt. Col. Baragona's Humvee had been acting on a contract with the United Nations World Food Programme, not with the Army. Even if one of KGL's many U.S. government contracts had been involved, the evidence indicated that, for jurisdictional purposes, all of these contracts took place outside the U.S. and thus outside the reach of U.S. courts.
KGL was also let off the hook by the Army's Procurement Fraud Branch with regard to possible suspension and debarment for its conduct in the case. Recall from last week's blog that it was the Army's threat of initiating suspension and debarment proceedings that motivated KGL to get involved in the lawsuit in the first place.
Will the Baragonas file an appeal? Will the bill named in their son's honor ever become law? Even if it does, will it have any effect on their lawsuit? Hopefully, this story is not over yet.
-- Neil Gordon
It is a scandal that there is no accountability when transporters do not believe in training to enhance safety.
It is all about fat profits for the directors and senior staff members.
During the KBR Rio project in 2004, drivers burnt to death in their cabs close to Basra in a multi tailgating incident due to the fact that at that time the transporters in Kuwait did not have driver training facilities.
KGL only started professional driver selection and the training of drivers in 2005 following concerns of increasing accidents. Prior to this drivers were recruited by the HR Manager and Transport Administrators all of which could not even drive articulated vehicles themselves and would not know a driver if one smacked them in the face. The recruits then arrived in Kuwait and were given minimum training and sent on mission
Because most projects were managed by Asians the project managers preferred Asian drivers, because they were subservient and did as they were told. Any one who was not subservient was seen as a trouble maker.
Even the manpower suppliers had no transportation experience and the choice of manpower supplier was based upon favors for the recruiting team. If the manpower supplier did not continually put his hand in his pocket, he was seen to be a poor supplier.
All of the Flights, Hotels, Food the perks for the recruiting team were eventually to the cost of the driver who had to pay the agent (slave trader) between 1600 and 2000 USD to come to Kuwait for a base salary of approximately 240 USD.
Posted by: Rick Ellis | Aug 21, 2009 at 01:54 AM
Howdy Rick,
Thank you for the comment. Let us know if you come across any specific cases where this has been reported!
Posted by: Bryan Rahija | Aug 20, 2009 at 11:40 AM
Many transport companies in Kuwait still continue to search the world for the cheapest possible people to drive their trucks so that their profits can be maximised. In many cases the people recruited are from rural area's of the worlds poorest countries and often have learning difficulties. In most cases they have never driven anything more powerful than an agricultural tractor. Whilst in some cases training is given on arrival Kuwait,it is the minimum. These recruits are then sent on Military convoys with zero experience, which often results in the death of the drivers and others.
Posted by: Rick Ellis | Aug 20, 2009 at 01:55 AM