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Clearing Up the Clearing in Question Consider this scenario: a yacht arrives in the BVI at 2000 hours, too late to check in at one of the usual Customs and Immigration offices.  The crew hoists a yellow flag to the starboard spreader and stop off at the Bight for some partying at the Willy T before heading into West End or Road Town to clear in the following morning.  Did they do the right thing?    Or how about this: a couple of BVI residents take their small power cruiser over to St. Thomas for a day’s shopping, only to find that they have run out of time on their return.  One of the shoppers gets dropped off by her car and takes all her goods with her, intending to return to Customs the next day with receipts in hand to declare her purchases.  The boat’s operator continues on to his usual mooring intending to do the same the following day.  Is that okay?

Well, of course neither of these scenarios is legal. In fact they both ended in serious fines for the boaters involved.  In the latter case, the wayward shoppers were assessed fines of $3,000 and the duties on their goods were doubled. An expensive trip to STT.

One of the difficulties in making sense of the BVI Immigration requirements is that so many of the stories of people being caught and punished seem to be stories of naïveté and ignorance rather than deliberate wrongdoing.  Meanwhile, a boatload of 42 Haitians gets dropped on Norman Island and there seems to be no interest in pursuing the identities of the perpetrators.  So what is a poor yachtie to do?

First up, when a visiting yachtsman arrives in the BVI after usual working hours he must proceed to a port of entry, raise the yellow Q flag and anchor at the port of entry until the next day.  It is not legal to stop off at, say, the Bight or Cooper Island or anywhere other than one of the four ports of entry (Road Harbour and West End Harbour on Tortola, Great Harbour on Jost Van Dyke, and St. Thomas Bay on Virgin Gorda).  If the yachtsman had the foresight, he might have called Customs on 284-494-3475 and Immigration at 284-494-3701 ext. 2538, to schedule an after-hours processing.  Charter yachts can do this via their clearing house personnel. All crew and personnel aboard the vessel must be present when clearing in.  Appropriate visas are required, although citizens of most European countries, Commonwealth countries and the US are exempt for a stay of up to six months.

Where things get complicated is in the oddly frequent instances where vessels from the USVI are stopped somewhere close to St. John but are seized for being in BVI waters illegally. Can the authorities do that to an innocent vessel in its own waters?  The BVI asserts territorial rights to the waters up to 12 miles offshore.  In areas where there are neighbouring nations (e.g., the USVI), the borders are negotiated and clearly marked on navigational charts.  Vessels are permitted to transit national waters by way of a strait or a channel that is clearly necessary for safe passage.  As the Law of the Sea has it, “The coastal state may not hamper the innocent passage of foreign ships through its territorial sea except in accordance with international law. [1958 Territorial Sea Convention, Article 15(1); LOS Convention, Article 24(1)].  However, the coastal state has the unilateral right to verify the innocent character of passage, and it may take the necessary steps in its territorial sea to prevent passage which it determines to be not innocent.”  So if the Customs and Immigration boat pulls up to a wandering vessel in open waters and asks the occupants where they are going, a reply of “the Willy T” would render the passage no longer innocent if the vessel had not cleared in at a port of entry.

This was the case last December when a boatload of USVI residents was stopped off Norman Island.  This particular bust went badly when the Customs boat, in an event that is still unexplained, ran over the top of the impounded USVI vessel at a speed of 40 knots, putting two of the occupants in hospital—one requiring 300 stitches to her face. So not only do you have to be afraid of the financial cost of flouting the law, you might get run down by the authorities as well.

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In general, though, the BVI law is the same as in most other countries—no movement in or out unless the parties have cleared in and cleared out through Customs and Immigration. What makes the issue less than clear-cut is the presence, just a few miles away, of the other Virgin Islands.  Traffic between the two is constant and varied, from large ferries and cruise ships to inflatable dinghies and small runabouts.  US law provides for citizens who are frequent users of the Customs and Immigration facilities to register and clear in and out via cellphone.  Perhaps the BVI government could try that here. The only trouble would be in getting through on your cellphone…..but that’s another story.

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