by Commodore RS Vasan
That the Italian authorities agreed to hand over the two Italian naval personnel for further investigation regarding the shooting incident on 15th February,that killed two innocent fishermen after a gap of four days paved the way for the Kerala police to go ahead with the investigation in to this murder for which the crew have been charged under IPC 302. The investigations are still underway. While, the Italian authorities resisted all the attempts initially to hand over the culprits (indicating that the offence was committed on the high seas and it would be investigated by the flag state in this case Italy), the strong argument that the offence was committed against an Indian fishing vessel resulting in death and therefore needs full investigation and apprehension of the Italian naval marines finally was upheld and the crew are being investigated. An issue that has not been given the importance that it deserves is the role of the master and his culpability. Here are some laws and the interpretation that would reinforce the argument that the Master is to be taken in to custody along with the marines and tried for negligence and murder of the fishermen without further delay.
United Convention on the Laws of the Seas (UNCLOS). India is a signatory to the UNCLOS that was promulgated in 1982. Related to this case, mainly there is need to establish where the offence was committed. Without access to the track charts, Global Positioning system recordings and the logs maintained by the ship, there is no way to establish the veracity of the reports as to where when and why an offence was committed. The witness of the crew and the master are again vital to establish the facts beyond doubt.
As far as the provisions of the UNCLOS are concerned, the territorial waters up to 12 nautical miles allow application of the laws of the land in this defined area. The contiguous zones are another 12 nautical miles from the territorial waters and allow for limited control in this area for violation of sanitary laws, customs, fiscal, immigration and other defined violations. The Exclusive Economic Zone which extends up to 200 nautical miles allows the state in possession of this area the right for harnessing the living and non living resources in this area. It is quite clear that all vessels do enjoy the right of innocent passage even in the territorial waters of a country as long as it is peaceful and does not cause infringement to the laws of the land which extend up to the territorial waters.
If the vessel was not guilty or maintained that the incident committed was on the high sea then technically it was possible for the ship not to stop or be diverted. It is clear that the master and the crew were aware of their mistake and therefore agreed to come to Kochi for investigation when confronted by the Navy. If the vessel had disregarded the directives of the Navy/Coast Guard, maintaining that it was on the high seas, the incident could have escalated leading to possible use of force by the Indian Navy. This would have brought the relations between India and Italy to greater stress in addition to creating an international situation.
Role of Master. As per reports it has been indicated that the Master was not aware of the firing at all. According to certain other inputs, it has been indicated that the Master had a meeting onboard prior to taking a decision to engage the fishing vessel St Antony. If it happened without the knowledge of the master, this is a serious situation where the master is not in control of the happenings on board. As per the international conventions, a master of a vessel cannot be absolved of his responsibility for the conduct of his ship and crew members under all circumstances with out exception.
Even according to a set of rules called the Rules of the Road(RoR, surprisingly not called the Rules of the Seas) that govern the passage and crossing of ships at sea, rule number 2(a) clearly stipulates that nothing in these rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
According to rule number 5 of RoR, every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision. It is obvious that full appraisal of the situation was not carried out by thorough analysis of all inputs including radar plot to establish the position and speed of the fishing vessel, visual inputs through binoculars that would have indicated that there were no arms or any other means that would be used against the ship for boarding.
Sub clauses of Rule 18 while establishing the responsibilities between vessels of different description clearly includes that a power driven vessel underway shall keep out of the way of vessel engaged in fishing. It is again clear that the master of this power driven vessel, who could manoeuvre, was guilty of not keeping out of the way of the fishing vessel.
Also, while the courts have allowed the search of the ship for the fire arms used for shooting, since a lot of time has elapsed in recovering the weapons after the search, the joint ballistic examination could be misleading as the right weapon may not have been handed over. There was enough time to tamper with material evidence or even dump the weapon involved in the firing to ensure that the investigation reaches a dead end. This would require lengthy investigation to establish the number of weapons and ammunition carried by the ship and all the records related to their carriage, transfer, maintenance and use.
By all the above accounts and the application of the relevant laws, it is clear that the Master of the vessel is blameworthy and is to be tried for his neglect that has resulted in the shooting of two innocent fishermen. There is another important centuries old obligation of the master which is to render help to those who are distressed at sea. In this case, it is clear that the Master had no intention of helping out the fishermen who were shot in the mistaken belief that they were pirates. Without the trial of the master and his deposition in a court it would not be possible to establish the role of the master and the crew and not complying with international codes of conduct. By not being arrested, and only targeting the marines, the master is likely to get away scot free. There is an immediate need to prevent this from happening.
As this case is still being investigated, two more fishermen have been killed due to a collision at 0200 hrs on 01 March 2012 in a case of classic hit and run. While two have been reported dead, three more are missing and others injured. So we have a case of ‘shoot and scoot’ on 15th February followed by a ‘hit and run’ case on 01 Mar 2012. So both the cases clearly illustrate that the merchantmen plying close to our waters are being reckless and irresponsible and are not even conforming to the norms of code of conduct at sea. There have been increased violations of the Rules of the Road.
India has apparently lodged a protest about the classification of the entire Arabian Sea including areas under its control as high risk area. ( Plse see map below)
Most of the shipping companies are being advised by the security service providers (who are paid hefty amounts) to hug the coast as there are no acts of piracy close to the Indian coast due to the proactive assertive action by the Indian Navy and the Coast Guard. As such there is no justification for the concerned authorities to include areas of Indian waters under risk areas. The reason for the ships coming closer to the Indian coast is to prevent the piracy attacks which are happening in the mid seas at extended ranges from Somalia. So it is ironical that the ships that sail closer to the Indian shores to be safe are endangering the safety and lives of Indian vessels and crew in Indian water.
It is evident that the State should not lose any more time in arresting the master of Enrica Lexie as by all norms of international behavior he is responsible for the lapses on his ship. Indian masters have been taken in to custody in different corners of the world for far lesser offences in which they did not have a role to play.
Commodore RS Vasan IN(Retd)
Head,Strategy and Security Studies
Center for Asia Studies,Chennai
