New Jersey family fighting for return of fisherman jailed in British Virgin Islands
Fisherman Michael Foy has traveled the world fishing the oceans from New Jersey to Hawaii, South Africa and the Caribbean. However, he is being held in a jail cell in Her Majesty's Prison on Tortola, the largest of the British Virgin Islands.
His family is now scrambling to free him, including asking the U.S. government and Secretary of State Mike Pompeo for help, reports the Asbury Park Press, part of the USA TODAY Network.
His family said the jail's conditions are "deplorable," from what they've gathered from Foy through phone calls.
"He has rats and cockroaches in his cell, so you can imagine many nights he goes without much sleep," said his sister Kimberly Foy Kelly.
According to the British Virgin Islands Office of the Director of Public Prosecutions, on June 8, Foy, 60, of Stafford Township, was caught in territorial waters near Peter Island and Norman Island by Her Majesty’s Customs.
Foy was the captain of the commercial fishing vessel Rebel Lady, which was carrying 7,000 pounds of fish.
Also on board were Indonesian nationals, who could not speak English and were holders of C-11 transit visas, which are only applicable to persons working on a fishing vessel.
British Virgin Islands authorities said in the statement that Foy admitted to customs officers that he was the captain of the vessel and claimed that he received permission to enter the British overseas territory.
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Investigations by the police found, however, that permission was sought and denied by the chief immigration officer as the borders were closed as part of the territory’s response to the COVID-19 pandemic, according to the statement.
Kelly said authorities asked her brother to follow them into port. Once at the dock, he was taken into custody and his boat was seized.
In the days that followed, Foy's family and lawyers said island authorities seized Foy's catch of tuna and swordfish — with an estimated worth of $56,000. According to Kelly, the fish was removed from the boat by British Virgin Islands authorities and sold.
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Foy was charged with illegal entry, unregistered and unlicensed fishing, and failure to arrive at a customs port, authorities said in the statement.
His bail was denied on the basis that he has no connection or legal status to the territory, according to a statement from island authorities.
He faces a $511,000 fine and seizure of his vessel, which is outfitted for longline fishing — a technique of floating hundreds of yards of fishing line with baited hooks, his attorneys said.
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But Foy's attorney says they have a strong defense witness to counter the claims: the U.S. government.
According to his family and lawyers, Foy was taking his four Indonesian crew members to the British Virgin Islands to get their passports stamped in order to legally return to the U.S. when he was arrested.
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The Indonesian crew members must have their passports stamped every 29 days. Foy has been clearing the men through Tortola for the last year and, most recently, did so on April 27 without incident, Kelly said.
Andrew Minkiewicz, a Washington-based lawyer who specializes in maritime and fisheries law, said the Rebel Lady is electronically monitored via satellite tracking by the U.S. government. That tracking, he says, proves Foy never entered island waters as BVI officials allege.
"The satellite tracking system sends a position every hour. Tortola claims he was elsewhere, which is not possible. He was six miles offshore when they claim he was 1½ miles," Minkiewicz said.
Six miles would place Foy outside of British Virgin Islands’ three-mile territorial jurisdiction, he added.
Minkiewicz said Foy called his agent at Tortola to clear customs and was told to wait offshore. As he was drifting offshore he was approached by customs officials who brought him to port.
"He wasn't aware he was under arrest. He didn't find that out until he got to port," Minkiewicz said.
Foy was first charged with illegal entry. Then, Minkiewicz said, authorities hit him with the additional illegal fishing charge and failure to come to a customs port.
Minkiewicz said BVI authorities claim Foy caught his fish in their waters illegally but their defense is he caught them off the coast of Puerto Rico.
He said every longline vessel must have a camera and video sensor to demonstrate when the gear is put in the water. All of this is part of the U.S. process of managing fisheries.
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They are trying to get Pompeo to enforce the Fishermen’s Protective Act, which directs that office to take steps to protect a U.S. vessel and its crew if they are illegally seized by a foreign government. They've also set up a petition at change.org to draw attention to Foy's story.
In order for that to apply though, the charges have to be something that is not recognized by the U.S. as against the law.
"We would say being seized while drifting outside of territorial waters would constitute use of the act," Minkiewicz said.
Under the act, any U.S. vessel taken by a foreign government not at war with the U.S. shall be reimbursed by the federal government for the amount of the fine.
According to the act, after the secretary of state has secured the release of the vessel and reimbursed its owner, he is then allowed to take such action that he deems appropriate to make and collect claims from the foreign country for the amount reimbursed.
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If the vessel that is seized is a commercial fishing vessel, the secretary of state is authorized to reimburse the owner for the fair market value of any catch that was spoiled as a result of the seizure.
Minkiewicz said they contacted Pompeo in mid-June and were informed by his staff, they'd look at the case. Pompeo, though, has not taken any action.
A spokesperson for the U.S. State Department said they have seen media reports of a U.S. citizen detained in the British Virgin Islands, but for privacy issues have declined to speak about the case. The spokesperson issued the following statement:
"We generally do not share information with the media about private U.S. citizens absent their written consent. One of the most important tasks of the Department of State and U.S. embassies and consulates abroad is to provide assistance to U.S. citizens who are incarcerated or detained abroad. Whenever a U.S. citizen is detained overseas, the Department works to provide all appropriate consular assistance."
U.S Sens. Corey Booker and Bob Menendez and Rep. Andy Kim, all New Jersey Democrats, have written British Virgin Islands Deputy Gov. David Archer Jr. saying that they expected a fair trial.
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In the letter, the lawmakers told Archer they "will continue to closely follow Mr. Foy’s case and expect him to be treated appropriately under safe and sanitary conditions. Mr. Foy should be treated fairly, and we support a fair legal process without delay."
Foy is also represented by Paul Edward, an attorney in Tortola. Edwards said Foy has pleaded not guilty to the charges. His trial is scheduled for Sept. 9.
While Foy sits in jail, his four Indonesian crew members, some of whom have been with him for 15 years, are sitting in port and barred from leaving the boat, his attorneys said.
When Jersey Shore native Dan Radel is not reporting the news, you can find him in a college classroom, where he is a history professor. Reach him @danielradelapp; 732-643-4072; dradel@gannettnj.com.
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This article originally appeared on Asbury Park Press: Fisherman jailed in British Virgin Islands; family fights for return
