Court says Ocean Explorers may stay at Kim Sha beach

SIMPSON BAY–Ocean Explorers dive center, operated by Go Dive St. Maarten NV and Beach Bums Watersports NV, will be allowed to conduct their business on Kim Sha Beach in Simpson Bay, the Court of First Instance decided in an injunction on Friday.

The company, involved with diving classes, ocean tours, and the sale of various other products on Kim Sha Beach since the 1980s, was informed by Government that it is in the wrong location, and was summoned to move to make way for the parking lot that is under construction on the premises.

By letter of February 15, Government informed Ocean Explorers that it is conducting business on its parcel of land without any legal basis, as there never has been an agreement between Ocean Explorers and the Government of St. Maarten regarding the usage or rental of the parcel. Due to the fact that the construction of the parking lot has to be completed in a short period of time, Government could not permit Ocean Explorers to continue what it considered an illegal situation.

According to Government, Ocean Explorers’ parcel, as well as several of the surrounding parcels, has been specifically zoned for public parking since 1998. Government stated that Ocean Explorers was also aware of this since that time.

“The construction of the parking lots needs to be finished to optimize the parking and improve traffic flow and safety. Ocean Explorers’ presence on the parcel – and the ongoing situation – must come to an end,” Government stated it in its letter in which Ocean Explorers was ordered to vacate the premises by July 15 or face legal steps.

Ocean Explorers refuses to leave, as there is no other location to be found to continue their operations on St. Maarten.

Government filed the injunction on March 28, in calling upon the Court to convict the dive shop to vacate the area of Kim Sha Beach.

In establishing that Ocean Explorers had failed to find an alternative location to continue its operations, the Court said Friday that any decision in Government’s favour would lead to termination of business operations and the loss of income of Ocean Explorers’ nine employees.

Therefore, the Court said, its decision in the injunction will not be temporarily valid, but indefinitely. This means that Ocean Explorers will not have to leave Kim Sha Beach for as long as the Court has not made a final decision in an appeal case, or in a court case on the merits (bodemprocedure).

The Court arrived at this conclusion because any other decision would lead to the practically irreversible situation of the parcel of land transformed into a parking lot, even in case the dive centre would eventually find the law on its side.

Ocean Explorers, represented in the injunction by attorney-at-law Cor Merx, had provided a number of arguments based on which the Court, in the defence’s opinion, should reject Government’s claim to see the company evicted.

Claimants stated that Government had failed to provide good governance and had violated the principle of equality. Ocean Explorers pointed out that the unlicensed Dino’s snack bar, which was also located in the parking lot area, initially was allowed to stay on a different location on the premises, and was provided with an alternative location later.

Ocean Explorers also failed to understand why they have to vacate the premises by July 15, whereas it remained unclear when Dino has to leave.

Ocean Explorers has been operating on St. Maarten for almost 40 years and is in possession of all the required permits and paperwork, whereas Dino was “selling barbecue chicken and pork ribs without any form of government permission.”

The Court rejected Government’s claim, and advised parties to initiate a court case on the merits. “It would even be better if parties were to sit around the table, with or without a meditator, to try and find a solution to guarantee the continued existence of the company Ocean Explorers,” the Judge stated in the verdict.

Source: The Daily Herald