The sloop, Grace Crest, was on its way to Antigua from Jamaica laden with 1,440 pounds of marijuana when it was intercepted in the territorial waters of the British Virgin Islands by officers of the marine unit of the Royal Virgin Islands Police Force. The three occupants of the Grace Crest, including the appellant, Glenroy Pierre, were arrested and charged with unlawful possession of cannabis with intent to supply, possession of a controlled drug, importation of a controlled drug, offering to supply a controlled drug, and illegal entry. Two pled guilty to the charges. However, the appellant contested the charges before the Magistrate. His counsel contended that the Grace Crest had entered the territorial waters as a result of force majeure, having been smitten by a freak storm. The engine malfunctioned and the boom was broken. The entry, being under distress, provided a defence to the charges and the appellant ought to be acquitted.

The Magistrate held that the presence of the Grace Crest in the British Virgin Islands was not a result of force majeure, and that force majeure had no applicability to this 'marine scenario'. The appellant was convicted on all the charges and sentenced accordingly. He appeals his conviction and sentence.

Held: Appeal against conviction and sentence in respect of the charge of illegal entry allowed and sentence set aside. Appeal against conviction in respect of the drug charges dismissed and conviction affirmed, though for reasons different from those of the Magistrate.

It is well established that a ship in distress entering a port or territorial waters of a state can attract immunity from the operation of local laws. In Buelvas v Pierre [1985] LRC (Crim) 462, the Court of Appeal of Trinidad and Tobago recognised and accepted force majeure as a defence. The master of a ship was convicted for possession and importation of marijuana. The ship was boarded by the coast guard officers while it was anchored off Huevos Island. The appellant stated that he had proceeded to the nearest port, when his ship, en route to Martinique with a cargo of marijuana, had developed engine trouble 70 miles off Trinidad. On appeal against conviction, it was argued that the trial Court had exceeded its jurisdiction, for under international customary law a foreign vessel taking refuge in port by reason of force majeure is immune from local jurisdiction for offences occasioned by its presence. The Court of Appeal held that the defence that where the presence of a ship in territorial waters is due to force majeure, there is immunity from prosecution for offences which are occasioned by that entry, can only arise when the issue arises on the evidence. The Court stated that the issue of immunity because of an entry in distress clearly arose on the evidence. The onus therefore fell on the defendant (as a fact peculiarly within his knowledge) to establish, on a balance of probabilities, that the ship entered the territorial waters by reason of distress. The Court stated that in order to establish the immunity, it was necessary for the appellant to do no more than to create a reasonable doubt as to whether the ship had entered the waters by reason of distress. The Court noted that it was submitted before the Magistrate that the prosecution had failed to discharge the onus which rested upon it to disprove distress. The Court stated that the evidence was far from adequate to disprove the defence of distress as raised in the explanation given by the appellant and in support of which the appellant himself gave evidence on oath. The Court further observed that the Magistrate’s reasons did not show what view he took of the law with regard to distress, the onus of proof where this was raised or the facts which he found in relation the defence of distress. The Court concluded that the appellant’s case created a reasonable doubt on the question of distress and quashed the convictions and sentence.

Distress must be urgent and something of great necessity; the distress must not be self-induced; there need not be an actual physical necessity, a moral necessity would suffice; the burden of proof to establish distress is on a balance of probability and lies on the person claiming exemption from the local law.

In the present case, the Crown led evidence that when the Grace Crest was intercepted, the sail was broken and the engine was malfunctioning; it was not seaworthy and had to be towed to the marine base. The appellant testified before the Magistrate that the Grace Crest did not intend to sail to Tortola. Its destination was Antigua. It drifted into the territorial waters of the British Virgin Islands as a result of encountering a freak storm about 200 miles from Antigua. The storm resulted in the boom being broken as a result of which a motor engine was used; the engine subsequently broke down. After the failure of the engine, the Grace Crest drifted for about two to three days until the crew came to the north east of Tortola; they were unable to make any repairs to the vessel before that time.

It would be instructive at this stage to consider how the Magistrate dealt with the matter. The magistrate stated that the unseaworthiness of the Grace Crest did not make it a vessel in distress. He reasoned that distress imports a very high sense of urgency; a condition of imminent danger to life, to survival. The Magistrate sought to buttress his position by pointing out that when the police boarded the Grace Crest, the men on board did not have life jackets on them. The Magistrate saw 'a significant situational difference between not being seaworthy and being in distress'. The Magistrate held that 'distress implies utter helplessness where the survival imperative is the operational principle and existential situation' and noted that 'they survived a freak storm'. The Magistrate found that 'while the defence of force majeure exists as a matter of international law, it does not apply as the vessel was not in distress'.

Essentially, the Magistrate held that the presence of the Grace Crest in the territorial waters of the British Virgin Islands was not a result of distress. The reasons given by the Magistrate for arriving at his decision are unsatisfactory and he erred in arriving at his conclusion.

Accepting that the Grace Crest entered the territorial waters as a result of distress, would that render it absolutely immune from the local jurisdiction, local laws and regulations? The immunity should not be absolute and must be of limited import. The immunity should not apply to all local laws. The immunity would apply to the violations committed by the ship in distress and inevitably resulting from the distress. In the circumstances, the Grace Crest could not claim immunity from the local jurisdiction in relation to the drug offences but could claim immunity in respect of the charge of illegal entry. While the illegal entry was a violation committed by the distressed Grace Crest and inevitably resulted from the distress, the same cannot be said for the drug charges.

Article 108 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) enjoins all States to 'co-operate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions’. Although the article refers to the high seas, it would be surprising if as a matter of principle, a coastal State would be rendered incapable of suppressing the illicit traffic in drugs by a ship in its territorial waters, by that ship relying on distress.

The analysis above necessarily and inevitably entails a departure from the authority of Buelvas.