Monday, October 28, 2013

“FREEDOM OF NAVIGATION” AND THE SEIZURE OF SEA MAN GUARD OHIO.

 “FREEDOM OF NAVIGATION” AND THE SEIZURE OF SEA MAN GUARD OHIO.

          (SYAM KUMAR V.M., ADVOCATE, HIGH COURT OF KERALA, COCHIN.)

Ship Registry of the Republic of Sierra Leone has issued a press release yesterday calling upon the Indian authorities to release the vessel SEA MAN GUARD OHIO which is under detention in the Indian Port of Tuticorin. The interesting part in the Press release is the attempted invocation of the concept of FREEDOM OF NAVIGATION as crystallised under PART VII of Art. 87 of UNCLOS, to seek the release of the vessel.
According to the Indian Coast Guard, the said vessel was found within Indian maritime zones with a cache of arms and ammunitions which she could not properly account for. The Master, Officers and Crew of the vessel (including Indians) have been arrested and are presently lodged in an Indian Prison in the State of Tamil Nadu. They have been charged of violating under various Indian statues including the Arms Act,      etc.
The press release by Sierra Leone Ship Registry comes after the contradictory, legally imprudent and damaging statements  issued by those concerned with the vessel in the course of nearly two weeks after the incident.
To top it all, the press release now purports to rely on PART VII of Art. 87 of UNCLOS to seek release of the vessel. Though the attempt seems to be to pull in the controversial F.O.N. Programme of United States into the issue, the same if pursued would prove to be proverbial “Last Nail on the Coffin” for SEAMAN GUARD OHIO.
Let us briefly examine why.
The relevant provision referred to in the press release reads as follows:
Article87
Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises,inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
The issues that are propped up by one such contention of Sierra Leone are myriad and manifold.
The perceived relevance, if any, of the said Article that lead Sierra Leone to rely on the same is apparently clause (a) that pertains to “Freedom of Navigation”. Does it help the case of Sierra Leone? Have they realised the import of the “Right” under Art. 90 upon the “freedom” under Art 87?
A feeble contention is seen put forth now that the vessel was exercising its “Freedom of Navigation” through the High Sea and was “illegally lured” in to Indian Waters by the Indian Coast Guard and then an “Illegal” boarding and searching was done leading to seizure and arrest.
 If this is the best legal contention that Sierra Leone could come forth with after nearly a dozen days of detention and seizure, then it is going to be a field day for the Indian prosecuting agencies once the matter reaches trial. Guess Sierra Leone is about to encounter, not one but veritable packs of legal issues during trial which would see a generous use of the strict norms under the law relating to evidence in force in India.  
At the threshold they might have to deal with the status of  Sierra Leone registry as the purported “Flag state”. No one likes being called a Flag of Convenience. But if it comes to a trial, Indian prosecutors would dig right from the Nottebhom case onwards and would beneficially proceed to such indeterminate premises like “genuine link” being the “financial link”. Does Sierra Leone stand a chance? Well, an exit at the very threshold could at least save them from further embarrassments.
Sierra Leone while taking such contention appears to be blissfully ignorant of the legal scenario in India which pertains to distances as far as its EEZ and the ramifications it could have in the international legal back ground involving PSSA vis a vis provisions of UNCLOS.
Indian Parliament has enacted the SUA Act taking cue from the SUA Convention. The boarding provisions in the convention which provides for boarding of a ship even in the high seas when there exists reasonable grounds to suspect that the ship or a person on board the ship is, has been, or is about to be involved in, the commission of an offence under the Convention are not an anathema to Indian Law.
The issue is still unravelling. We need to wait. After the perceived triumph of Indian Legal system and its diplomacy in the Enrica Lexie affair, which saw the Italian Marines still languishing in India after being caught unaware, confused and confounded within the virtual labyrinth of Indian legal system, now it appears to be the turn of those concerned with SEA MAN GUARD OHIO.
Unfortunately for those arrested and their family members, there appears to be long road ahead,  but for a diplomatic break through which is doubtful once courts are seized of the matter. 
                                                ***

Friday, September 14, 2012

Clearing and Forwarding agent – Whether liable for damages caused during the ocean transit?



 (By Adv. V.M. Syam Kumar-Lecturer for Maritime Law, National University for Advanced Legal Studies, Kochi.)

Whether a clearing and forwarding agent whose name is shown in the Bill of lading as the agent for delivery at the discharge port is liable for the damage occasioned to the cargo during transit? 

This question was recently considered by a Civil Court in Kochi. 
Suit had been filed jointly by the Insurance company and the consignee alleging that damages had occasioned to a cargo comprising of Light Black Pepper (Light Berries) consigned from Hoch-Minh- City, Vietnam to Kochi, India. Damage caused was sought to be recovered from both the Carrier (NVOCC) based in Vietnam and their local agent in Kochi India. 
The bill of lading issued by the Carrier contained the name of the agent in Kochi as the person to be contacted for delivery of goods. The plaintiff based on the said statement in the Bill of lading arrayed the agent along with the Carrier and sought a decree against both. The carrier was arrayed as the first defendant and the agent as the 2nd defendant. (Though the house Bill of lading issued by the carrier also contained an endorsement that the Carrier was an agent for Ocean Liner, plaintiffs did not array the Line as a party to the suit).
The court dismissed the suit against the agent of the Carrier in Kochi on the following reasoning:  

“According to the plaintiffs, the 2nd defendant is the agent of the 1st defendant. Counsel for the Plaintiff argues that Ext. A2 Bill of Lading shows that the 2nd defendant has to be contacted for delivery of goods and as per Ext. A2 bill of lading and admission in Ext. A5 reply, second defendant is the agent of the 1st defendant. In Ext. A2 bill of lading the name and address of the 2nd defendant is shown as the contact address for delivery. However the name “…….Line” is given as agent for the carrier. But address of the said …..Line is not given in Ext. A2. When the bill of lading which is the document of contract between the 2nd plaintiff and the 1st defendant specifically provide the name of the …..Line as agent of the carrier, it is the bounden duty of plaintiffs to establish that the 2nd defendant is the agent of the 1st defendant. When the 2nd defendant in the written statement took up the contention that they were only forwarders directed to assist delivery of goods, the plaintiffs could have called for the document showing the contract / direction of the 1st defendant or some other person to the 2nd defendant to assist delivery of goods or sought for a direction from court to the 2nd defendant to produce the document showing their authority to assist in the delivery of goods….” “ When Ext. A2 specifically  provide the name of agent of the carrier in it, the 2nd defendant whose name appears in Ext. A2 can be considered as agent of carrier only for the limited purpose of delivery of cargo and not for any other purpose. Absence or lack of address of the agent of carrier in the bill of lading cannot be made a ground for treating the 2nd defendant as agent of the carrier. It is settled principle of law that when the identity of the principal is disclosed, the agent cannot be sued in a legal proceeding. Moreover, there is no privity of contract between the plaintiff and the 2nd defendant and the suit is not maintainable against the 2nd defendant on that count also.”  
Holding thus the Court dismissed the suit filed against the agent however passing a Decree for the plaint claim against the first defendant carrier. 
The case assumes relevance for steamer agents and local clearing and forwarding agents who are at times proceeded against by the consignee terming them as the agent of the carrier/ the line. Such agents are easy targets in suits seeking damages. Courts view in the above discussed judgment is encouraging for such clearing and forwarding agents whose name is mentioned as delivery agent of the carrier in the bill of lading. Such agents have nothing to do with the loss or damage during transit. However, for the consignee these agents appear to be sitting ducks. The foreign carrier (most of the time an NVOCC), who is primarily answerable for the alleged claims could be ex parte thus leaving the agent alone to contest the suit. Thus it becomes more onerous to the clearing and forwarding agent to put up defenses which ought to be taken up by the foreign carrier. The present judgment safe guards the genuine interests of such an agent whose name is mentioned as delivery agent of the carrier in the bill of lading against claims for ocean transit damage.   
                                                       * * *

Sunday, April 15, 2012

THE LONG ARM OF INDIAN LAW - ENRICA LEXIE INCIDENT AND JURISDICTION OF INDIAN COURTS TO TRY THE ITALIAN MARINES.

(Author is a Lecturer for Law of the Sea and Maritime Law, National University for Advanced Legal Studies, Kochi.)

Does the arm of Indian law stop short at 12 nautical miles from Indian coast or is it long and capable enough of being stretched beyond that limit to further extents of her maritime zones so as to deal with perpetrators of crime within those zones? This is one among the many pivotal questions thrown up by the recent incident involving the Italian Vessel ENRICA LEXIE.

ENRICA LEXIE continues to be anchored in Indian territorial waters. Two Italian marines who were on duty on board the vessel are presently in judicial custody charged with the crime of shooting to death two Indian fishermen. They have been charged for murder under sec.302 of the Indian Penal Code.

There is tremendous public sympathy in India for the two fishermen who were shot to death.One among the diseased is survived by two minor girls, his sisters. Their parents are already dead and now their only brother has been shot dead. The other fisherman's family consists of a widow who has to bring up her two young children all by herself. Both families belong to economically weaker sections of Indian society and deserves maximum sympathy.

In Italy too there is great concern regarding the fate of the two marines who are now lodged in Indian prison awaiting a lengthy murder trial. A long drawn and onerous criminal trial, which could be a punishment in itself, awaits them, if the Courts in India turns down their preliminary objection regarding jurisdiction of Indian Courts to try them. Families of the marines in Italy have genuine reason to be concerned and the Italian Government is trying in earnest to resolve the quagmire.

ENRICA LEXIE incident catches the attention of a maritime lawyers not only from the above humanitarian concerns which vexes every lawyer, but also because it throws open a number of questions within and outside the realm of International Law especially that branch of it which we term as the Law of the Sea.

Though the questions regarding the scope and extent of coastal state's jurisdiction over adjoining waters have engaged attention of maritime lawyers since decades and was fairly thought to be settled, 21st century problems demand 21st century solutions.

Piracy, once thought to be dead and buried thus receiving a cursory and half baked attention even in the third UNCLOS, have spread it evil head so wide that world has to sit up and deliberate, lest incidents like ENRICA LEXIE are repeated.

21st century piracy, though said to be originating from Somali Coast but which is perceived of being controlled from world business capitals, is even threatening the life of innocent fishermen from tiny fishing hamlets along Indian coast where they have been engaged in small time fishing since time immemorial.

Bravado exhibited by US, Italian and even Indian navy so far in and around the Somali Coast, Arabian Sea and some areas of Indian Ocean in the pretext of containing piracy, but which many a times lead to shedding innocent blood are no more viable solutions to this deeper problem. India and Italy have learnt this the tough way with ENRICA LEXIE incident. Others might learn it later, albeit slowly but in a more gruesome way. This has to be avoided.

Since the incident is developing day by day let us save the larger issues involved in ENRICA LEXIE incident for discussion later and confine ourselves to the limited issue of the jurisdictional power or the lack of it, of the Indian Courts to try the Italian Marines alleged to be involved in the incident.

The Italian marines and the vessel are undoubtedly entitled to a fair trial and hearing. They should never be condemned unheard. Their legal and factual contentions deserve to be considered with due merit and they ought to be presumed innocent until found otherwise by a competent court of law. If they have a case that they are not governed by Indian law, that contention too deserves to be considered with due respect and if it is found that Indian law is not applicable they ought to be handed over to Italy for being tried under their law.

The question whether the Indian Courts have jurisdiction to try the two Italian Marines involved in the shooting of the fishermen from the Italian Vessel ENRICA LEXIE was specifically addressed before the Court by the relatives of the dead fishermen.

They had started by pointing to Sec.3 of the Indian Penal Code and then to two specific statutes that are in force in India. The statutes are the Admiralty Offences (Colonial) Act, 1849 and the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (the SUA Act, 2002).

Though there exists some cloud over the exact distance from Indian base lines to the marine area were the shooting incident took place, even the State Police seems to agree that the same happened beyond the 12 nautical mile territorial waters of India but within the Indian Contiguous Zone and Exclusive Economic Zone.

That being the factual position, one is prone to jump to the conclusion that since the incident happened beyond Indian Territorial Waters neither the Indian law nor Indian courts have jurisdiction and ENRICA LEXIE being registered in Italy, the flag state law ie., Italian Law ought to apply in view of the principles of International Law of the Sea as settled under the UNCLOS .

But a conjoint reading of Sec.3 and the said two statutes clearly reveal that the Indian Courts are well within their powers to try the Italian Marines. Let us examine the provisions closely.

Sec. 3 of the Indian Penal Code reads as follows:

Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied)

Section 3 of the Penal Code reproduced above has the following attributes:

(a) It applies to all persons including foreigners and is not confined to citizens of India.

(b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.

(c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.

(d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.

Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.

The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.

Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:

Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,-

Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.

The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. Mark the words ‘or at any place out of such colony’ as it specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.

In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.

The Captain of the Vessel Enrica Lexie and the two Italian Marines could also be liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.

The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.

Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:

Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-

(1) Whoever unlawfully and intentionally-

(a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;

(b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;

(c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;

Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:

(g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-

(i) causes death to any person shall be punished with death;

(ii) ……;

(iii) ……;

(iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and

(v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.

(emphasis supplied)

Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:

Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.

Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-

(a) …;

(b) …; or

(c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India.

Take special note of the words "is on a ...ship in relation to which such offence is committed when it enters the territorial waters" as also the words "or is found in India" in Sec. 3 (8) (c). In the case of ENRICA LEXIE the Italian marines were on ENRICA LEXIE when she entered Indian Territorial waters and moreover the Marines and the Captain are still in India. So the Act squarely applies to the facts of the case.

Further a reading of Sec. 13 of the SUA Act 2002 which provides for presumption of offences under sec. 3 should alarm any lawyer appearing for an accused charged under SUA. The said provision which shifts the burden of proof on to the accused could make the criminal trial a very arduous one for the accused.

In the light of the above said Legal norms which are presently in force in India, the two Italian Marines and the Captain of the vessel are liable to be proceeded in India under Indian law. If they are so proceeded and earnestly prosecuted there is a reasonably high chance that they will be convicted.

However as on date the Government of India has refused to invoke SUA Act, 2002 in the ENRICA LEXIE matter. Similarly unlike the Maharashtra Police who effectively invoked the provision under Admiralty Offences (Colonial) Act, 1849 the Kerala Police is refusing to invoke the same against the Italian accused.

Even after the lapse of more than one month after the incident and number of rounds of legal battles in the Courts, the investigating agencies have so far chosen not to invoke SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849. They have charged the marines only under sec. 302 read with Sec. 34 of the Indian Penal Code (I.P.C.). It is trite law settled by innumerable precedents including those from the Supreme Court of India that I.P.C. and the Cr.P.C. have no applicability beyond Indian territorial waters extending to 12 nautical miles except under circumstances falling within Sec. 4 of IPC and Sec.188 of Cr.P.C. That it would be onerous to prove the existence of the said circumstances in ENRICA LEXIE incident is also evident. Thus charging the marines under the IPC and Cr.P.C. without invoking the SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849 could lead to a situation where the Courts in India will after a point be compelled to acquit the accused marines.

By virtue of the norms put in place by the Admiralty Offences (Colonial) Act, 1849 and more recently by the enactment of the SUA Act 2002, Indian law does not invariably freeze, stultify or become ineffective upon reaching the outer limits of the territorial waters i.e., immediately upon reaching the outer limits of the 12 nautical mile territorial waters. The Courts and authorities in India are empowered, capable and competent under the said statutes to apprehend, try and punish perpetrators of crime as far as Indian Exclusive Economic Zone which is 200 nautical miles from the Base lines.

The 21st century world and the issues endemic to our times demand that Indian law needs to have the said extra territorial operation and vibrancy so as to retain the basic quality of law as a purposive enterprise.

Thursday, April 5, 2012

RUNNING WITH THE HARE AND HUNTING WITH THE HOUNDS - THE INDIAN GOVERNMENT'S GAME PLAN IN ENRICA LEXIE INCIDENT..

(Author is a Lecturer for Law of the Sea and Maritime Law, National University for Advanced Legal Studies, Kochi.)

ENRICA LEXIE still continues to be anchored in Indian territorial waters. Two of her marines are presently in judicial custody. Does that mean that Indian Law has triumphed and justice will be rendered to the fishermen families whose kin were shot to death? Appearances could be deceptive.

Though the fact that the vessel has not sailed out of India and the marines are in custody could give an impression that law is taking its own course, the under currents should not be lost sight of.

The Governments both central and state are busy at work. There appears to be a clear game plan too. The plan is not a new one. The same age old one often employed to spectacular results by democratic governments - Running with the hare and hunting with the hound.

By the time the public realises the game plan, like the proverbial hare, hounds would have snatched it by the throat and here the vessel ENRICA LEXIE and the accused marines would have reached home, latter savouring a spaghetti or Italian pizza and musing about their brief sojourn in the Gods own Country.

The real losers in this entire episode will be the relatives of the dead fishermen, two minor girls whose parents are already dead and now their only brother shot dead by Italian marines and another family with a widow who has to bring up her minor children all by herself.

The Indian legal system will stand shamed and ridiculed for failing to render justice to its citizens though there were ample provisions in the book, which the government failed to invoke reducing courts of law to mute spectators.

The Italian marines and the vessel are undoubtedly entitled to a fair trial and hearing. They should never be condemned unheard. Their legal and factual contentions deserve to be considered with due merit and they ought to be presumed innocent until found otherwise by a competent court of law. If they have a case that they are not governed by Indian law, that contention too deserves to be considered with due respect and if it is found that Indian law is not applicable they ought to be handed over to Italy for being tried under their law.

But the moot point is does the Italian marines and the vessel ENRICA LEXIE deserve to be treated as holy cows who cannot be touched by Indian law or Indian courts even if Indian law as it stands now specifically provide for their trial and prosecution?

The question whether the Indian Courts have jurisdiction to try the two Italian Marines involved in the shooting of the fishermen from the Italian Vessel ENRICA LEXIE was specifically addressed before the Court by the relatives of the dead fishermen.

They had started by pointing to Sec.3 of the Indian Penal Code and then to two specific statutes that are in force in India. The statutes are the Admiralty Offences (Colonial) Act, 1849 and the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (the SUA Act, 2002).

Though there exists some cloud over the exact distance from Indian base lines to the marine area were the shooting incident took place, even the State Police seems to agree that the same happened beyond the 12 nautical mile territorial waters of India but within the Indian Contiguous Zone and Exclusive Economic Zone.

That being the factual position, one is prone to jump to the conclusion that since the incident happened beyond Indian Territorial Waters neither the Indian law nor Indian courts have jurisdiction and ENRICA LEXIE being registered in Italy, the flag state law ie., Italian Law ought to apply in view of the principles of International Law of the Sea as settled under the UNCLOS .

But a conjoint reading of Sec.3 and the said two statutes clearly reveal that the Indian Courts are well within their powers to try the Italian Marines. Let us examine the provisions closely.

Sec. 3 of the Indian Penal Code reads as follows:

Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied)

Section 3 of the Penal Code reproduced above has the following attributes:

(a) It applies to all persons including foreigners and is not confined to citizens of India.

(b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.

(c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.

(d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.

Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.

The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.

Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:

Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,-

Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.

The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. Mark the words ‘or at any place out of such colony’ as it specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.

In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.

The Captain of the Vessel Enrica Lexie and the two Italian Marines are also liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.

The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.

Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:

Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-

(1) Whoever unlawfully and intentionally-

(a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;

(b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;

(c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;

Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:

(g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-

(i) causes death to any person shall be punished with death;

(ii) ……;

(iii) ……;

(iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and

(v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.

(emphasis supplied)

Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:

Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.

Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-

(a) …;

(b) …; or

(c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India.

Take special note of the words "is on a ...ship in relation to which such offence is committed when it enters the territorial waters" as also the words "or is found in India" in Sec. 3 (8) (c). In the case of ENRICA LEXIE the Italian marines were on ENRICA LEXIE when she entered Indian Territorial waters and moreover the Marines and the Captain are still in India. So the Act squarely applies to the facts of the case.

Further a reading of Sec. 13 of the SUA Act 2002 which provides for presumption of offences under sec. 3 should alarm any lawyer appearing for an accused charged under SUA. The said provision which shifts the burden of proof on to the accused could make the criminal trial a very arduous one for the accused.

In the light of the above said Legal norms which are presently in force in India, the two Italian Marines and the Captain of the vessel are liable to be proceeded in India under Indian law. If they are so proceeded and earnestly prosecuted there is a reasonably high chance that they will be convicted.

However as on date the Government of India under pressure from powers that be within and outside India has refused to invoke SUA Act, 2002 in the ENRICA LEXIE matter. Similarly unlike the Maharashtra Police who effectively invoked the provision under Admiralty Offences (Colonial) Act, 1849 the Kerala Police is refusing to invoke the same against the Italian accused.

As part of the strategy evolved to save the marines and the vessel, even after the lapse of more than one month after the incident and number of rounds of legal battles in the Courts, the investigating agencies have so far chosen not to invoke SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849. They have charged the marines only under sec. 302 read with Sec. 34 of the Indian Penal Code (I.P.C.) . It is trite law settled by innumerable precedents including those from the Supreme Court of India that I.P.C. and the Cr.P.C. have no applicability beyond Indian territorial waters extending to 12 nautical miles except under circumstances falling within Sec. 4 of IPC and Sec.188 of Cr.P.C. That it would be onerous to prove the existence of the said circumstances in ENRICA LEXIE incident is also evident. Thus charging the marines under the IPC and CrPC without invoking the SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849will ensure that the Courts in India will after a point be compelled to acquit the Italians.

The Director General of Shipping, Principal Officer, Mercantile Marine Department, Kochi coming under the Central Government have already filed statements before the Court that they have no objection to release the vessel ENRICA LEXIE. This has to be read as part of the larger plan.

Curiously enough the said statement has been filed in overlooking the specific provisions in Part XII of the Merchant Shipping Act, 1958. Part XII of the Merchant Shipping Act, 1958 stipulates that in Shipping Casualties in which death has been occasioned, like the one involving the vessel ENRICA LEXIE were two Indian citizens had died, a preliminary enquiry followed by a formal investigation before the competent Judicial Magistrate has to be conducted. The said part XII of the Merchant Shipping Act, 1958 under Secs. 360 to 369 provides for elaborate procedure for the conduct of the formal investigation by the Judicial Magistrate including power to enter the vessel as part of the investigation and arrest witnesses from the vessel if required. The Judicial Magistrate under Part XII of the Merchant Shipping Act, 1958 can investigate or inquire into the charges against the Master of the vessel and other officers. The Judicial Magistrate is also empowered under sec. 361 of the Act to inquire into any charge of wrongful act or default on the part of the Master in causing the shipping casualty. Under sec. 367, the Judicial Magistrate can whenever in the course of such investigation or inquiry it appears that any person has committed in India an offence punishable under any law in force in India can, cause him to be arrested or commit him or hold him to bail to take his trial before appropriate court and also exercise all powers as a criminal court. Thus the formal investigation by the Judicial Magistrate under the Merchant Shipping Act, 1958 is a crucial judicial process which should be mandatorily complied with (though the provision makes it discretionary, the same is not to be exercised according to whims and fancies and at least the Central Government ought to explain how the discretion was exercised so as to decide not to invoke a formal investigation), in the facts and circumstances surrounding the shipping causality involving the vessel ENRICA LEXIE. Director General of Shipping and Mercantile Marine Department which pounces upon Indian Ship-owners at the drop of a hat have chosen to give a clean chit to ENRICA LEXIE not withstanding the brutal killing of two Indian Citizens along Indian Coast.

Moreover, the specific guidelines issued by the Director General of Shipping himself had been flouted by the vessel and its Captain. The said guidelines in paragraph 7.6.1 specifically provide that All Merchant vessels transiting through Indian EEZ and carrying armed guards are required to provide the information contained under para 7.3 to the Coast Guard and Indian Navy.” As per para 7.3 the following information ought to be provided by Merchant vessels transiting through Indian EEZ viz.,

i. Names, Addresses and details of identification cards and pass ports of security personnel.

ii. Number and details (make, model, bore, caliber, serial number etc.) of fire arms and ammunition.

Details of license issued or accepted by the jurisdictional national administration where the PMSC is registered.

Clause 6.7 of the above guidelines reads as follows:

6.7 Command and control of onboard security team:

6.7.1 Shipowner when entering into contract with the PMSC, should ensure that command and control structure with the Master/ship’s officers and the armed security guards team is clearly defined and documented. In order to provide clarity, the documented command and control structures should provide inter-alia;

1. A clear statement that at all times the Master remains in command and retains the overriding authority on board;

Notwithstanding violations of the above guidelines, the Director General of Shipping and Mercantile Marine Department are at pains to some how push ENRICA LEXIE and her Captain out of Indian Waters and from the grip of Indian law, though serious allegations including tampering of the VDR after the incident are raised against the vessel and the Captain. The Kerala Police has ingeniously filed reports before the Magistrate Court giving a clean chit to the Captain stating that the Captain is protected under an agreement in Italy between the Ship Owners and the Italian Government. That such an agreement if at all it exists does not bind Indian Investigation agencies and that the same does not over ride clear Indian legal norms is conveniently brushed aside by the Police.

So far the above said modus operandi planned to save the Italian marines and executed by the Government of India and the Government of Kerala are going ahead well. In few days time the highest courts in India, notwithstanding the above said clear legal provisions, will be compelled to acquit the two Italian marines as well as permit the vessel ENRICA LEXIE to sail out of India due to the failure of the governments to invoke the relevant law.

Government will then step in and feed to the public through the media that the marines went through the process of law and were acquitted by the Courts and that the Governments, both state and center did stand by the fishing folk all through. The game would end there, achieving the desired result.

Republic of Italy should thank the Government of India and the Government of Kerala State for foresaking its own citizens and making a scarecrow of its own judicial system. Where is the Gift?

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