Re The Cowboy III

• Jurisdiction: Cayman Islands
• Judge: (Douglas, Magistrate)
• Judgment Date: 12 September 1984
• Court: Summary Court (Cayman Islands)
• Date: 12 September 1984

Summary Court

(Douglas, Magistrate)

IN THE MATTER OF THE FORFEITURE OF THE COWBOY III

R. D. Alberga, Q.C. for the applicant;

A. S. Smellie, Crown Counsel, for the Crown.

Cases cited:

(1) Bender, ReUNK(1980), 32 W.I.R. 305.

(2) Evans v. Dell, [1937] 1 All E.R. 349, applied.

(3) Goldsmith v. DeakinUNK(1933), 50 T.L.R. 73, dicta of Avory J. applied.

(4) James & Son Ltd. v. Smee, [1955] 1 Q.B. 78; [1954] 3 All E.R. 273.

Legislation construed:

Misuse of Drugs Law (Revised) (Law 13 of 1973, revised 1983), s.14: The relevant terms of this section are set out at page 414, line 6 page 415, line 2.

Criminal Law-drugs-sentence-forfeiture-no restoration of forfeited vessel allowed under Misuse of Drugs Law (Revised), s.14(8)(a) if owner permits use for purpose of offence-permitting inferred from wilful blindness to risk of offence, reckless failure to check on identity and qualifications of charterer and crew, and gross neglect to check whether modifications made to vessels fuel capacity before left port

The applicant, the owner of a vessel which had been used for the purposes of an offence under the Misuse of Drugs Law (Revised) and which had subsequently been forfeited, sought the revocation of the order of forfeiture and the restoration of the vessel.

The vessel had been chartered from its home port in Miami for a period of two months. During the charter period, it was arrested in George Town carrying a large quantity of ganja and its captain and crew were convicted of importation and possession of the drug. The Summary Court ordered the forfeiture of the vessel pursuant to the Misuse of Drugs Law (Revised), s.14(2)(a).

The applicant sought the revocation of the order and the restoration of the vessel under s.14(6) on the grounds that he had not permitted its use for the purpose of the offences and had no knowledge that it would be used for such purpose. He gave evidence that he had previously only chartered the vessel for weekends, that he was not aware of any modifications which had been made to the vessel during the six months he had owned it before the commencement of the present charterparty, and that since the vessels fue! capacity would only allow it to travel up to 60 miles, any enlargement of the tanks must have been carried out after the present charterparty had commenced.

The Crown opposed the application. It pointed out that the applicant had admitted awareness of the drug traffic into Miami by boat yet despite this he had allegedly chartered his own valuable boat to a comlete stranger, without making any inquiries about him, his captain or is crew. He had asked no questions about the destination of the vessel and had imposed no reporting requirements on the charterer. The vessel had in fact not left Miami for 17 clear days after the commencement of the charterparty and if alterations had been made to it during that period, the applicant had been guilty of gross neglect in failing to make appropriate checks. Moreover, although the applicant had claimed that he had previously only hired out the boat for weekends, there was evidence that it had visited the Cayman Islands earlier in 1983-necessitating a round trip from Miami lasting 910 days.

Held, dismissing the application:

The vessel would not be restored to the applicant as the court was satisfied that he had permitted its use for the purpose of the illegal carriage of drugs, as a result of which the captain and crew had been convicted and the vessel had been forfeited under the Misuse of Drugs Law (Revised), s.14(2). The evidence established that the applicant, knowing that drugs were regularly brought into Miami by boat, had shut his eyes to the obvious risks of his vessel being used for this purpose, had recklessly made no inquiries into the identity or the qualifications of the charterer, captain or crew and had been grossly neglectful in failing to check whether adaptations had been made to the vessels fuel capacity before it left Miami. The court was therefore entitled to infer that the applicant permitted the use of the vessel in connection with offences contrary to the Law and that he had knowledge that it would be so used, and was therefore precluded by s.14(8)(a) from making an order restoring it to him (page 416, line 24 page 417, line 2).

DOUGLAS, MAGISTRATE: The applicant, Jose Calvo, is an
engineer of Miami, Florida. In November 1982 he obtained the
30	vessel, the subject of this application, in payment of a debt owed
him by one Ramoon Fuentes, for whom the applicant had worked.
On January 10th, 1983 the name of the vessel was changed from El
Indio to Cowboy III, the name which she still bears. By charter
agreement dated May 2nd, 1983 the said vessel was leased to one
35	Ramon Cortez for a period of two months, commencing May 2nd,
1983 and terminating on July 2nd, 1983. On May 30th, 1983, the
Cowboy III arrived at George Town, Grand Cayman with 5,030
lb. of ganja concealed beneath its deck. The captain, one Santiago
Franco and a crew of three were arrested, tried and convicted
40	and sentenced on charges of importation and possession

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