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Court overturns forfeiture of Dom Rep fishing boats

Published:Thursday | November 7, 2019 | 12:12 AMChristopher Serju/Gleaner Writer
Adley Duncan
Adley Duncan

The two industrial fishing boats that were forfeited to the Crown after foreign crewmen pleaded guilty to poaching in Jamaica’s territorial waters on Saturday, March 2, have since been returned to the owners, who paid the cost of storage for the time the vessels were in the care of the Jamaica Defence Force Coast Guard.

The forfeiture ruling had been hailed as a landmark decision drawing a red line against international poachers who have pillaged the island’s waters, giving optimism to local fishers that heavy penalties would deter trespassers.

Attorney-at-law Jacqueline Cummings argued that the boat owners could not be held liable for the breaches committed by operators they had hired.

“There are people in the Dominican Republic who own the boats and employ persons to work the boats for them. The crews worked the boats, entered Jamaica’s Exclusive Economic Zone (EEZ), and exploited it, unbeknownst to the owners. The owners can’t lose their property by virtue of that fact.

“No Government has the right to take a person’s property without due process – unless you prove that the person did something wrong or there is other reason for such action to be taken,” Cummings told The Gleaner.

Cummings further explained that the intention of the forfeiture clause in most pieces of legislation is to punish the guilty party, and so the owners ought not to be liable for forfeiture of their property.

“If the fishermen who pleaded guilty owned the boat, then the Government would have the right to forfeit because in addition to the penalty for having broken the law, an additional penalty is the forfeiture,” she disclosed.

The case turned on evidence from the boat owners who filed affidavits asserting that they were dependent on the vessels for their livelihood.

“So the judge was able to see that these persons really owned the boats as well as their request for the boats to be returned, since they could not have foreseen that the fishermen they hired would have entered Jamaica’s EEZ and breached the country’s law,” Cummings told The Gleaner.

Undue and unfair hardships

Justice Vaughn Smith, who had granted the forfeiture request by the Crown, was convinced by the defence’s argument and ruled on July 10 that the vessels be returned to the owners, which was done three or four days later.

Acting Deputy Director of Public Prosecutions Adley Duncan, who represented the Crown, acknowledged that the defence had argued that depriving them of the earnings from the boats would bring undue and unfair hardships to their families.

He counted as gains for the prosecution the fact that the 49 foreign nationals were adequately punished, having been fined before they were deported. The multimillion-dollar catch, weighing more than 55,000lb, was forfeited to the State.

The captains of both vessels pleaded guilty during the first sitting on March 15, when they were fined $40,000 each, while the other fishermen were each fined $30,000, with the option to serve three months in prison, on March 22.