FatalShootingofIndianFishermen

byDrJeanPieGauciMaistreAdvocate B.A.,MICS,MSc(WMU),LL.D. In reality I think it was a matter of when and not if, for it was something that was bound to happen. Unfortunately,twoarmedshipguardsservingonboardtheAframaxtankerEnricaLexiehavebeenarrestedin IndiafollowingthedeathsoftwoIndianfishermenfromgunshots.Indiahassofarinsistedthatthetwoship guardswillfacetrial. FairplayreportedthattheItalianguardsfiredatthefishermenaftermistakingthemforpirateson15February offKochiwhilstthedAmatoFratelliownedvesselwasenroutetoPortSaid.GiventhattheshipwasinIndian waters during the deadly incident India has the right to prosecute under Indian law, as stated by Kerala directorgeneralofpoliceJacobPunoose. This incident is set to have far larger implications for the shipping community at large and it behoves flags States to monitor the situation closely and take any necessary proactive measures. For instance, Hellenic Shipping News and the Hindu Business Line have reported that Indias maritime administration is seriously consideringmakingflagStateendorsementsmandatoryforallforeignmerchantshipsenteringIndianwaters with armed security guards on board. By doing so they will shift responsibility of the actions of the armed guards onto the Government of the country in which the ship is registered, that is, the flag State. The jurisdictionalissuesthatcanandwillariseareboundtotesteventhemostknowledgeableprivateandpublic internationallawexpert.Tobeginwiththeshipcouldbeownedbyacompanyregisteredandoperatingoutof one country but managed by a company registered and operating out of another. The private maritime securitycompany(PMSC)couldbesetupandoperatingoutofanotherjurisdictionwithitssecuritypersonnel being of various nationalities. Then there is the flag State of the vessel which has to be taken into considerationaswellasthelocationofthevesselatthetimeoftheincident,thatis,territorialorinternational waters. The nationality of the victims could also play a role. Furthermore, security personnel could cross variousjurisdictionsinordertosignonandoff.ItislittlewonderthereforethatIndianGovernmentofficials wantflagStatestoshoulderresponsibilityforrecklessactsbyarmedmenonboardtheirregisteredvessels. However,historyhasshownusthatsuchjurisdictionalissueswillnotberesolvedsoeasilyorsoquickly. Nonetheless,aswiftandthoroughreportisessentialtogettothebottomofthis.Armedguardshavestrict instructionsthatshoottokillisalastresort.TheMaltaflagadministrationwouldnotallowanythinglessandit is the same for other flag administrations. The rules of engagement normally require that the hull or the engine are shot at, if necessary. So, it must be established why the armed guards on board the MT Enrica Lexieshotatthefishermen.Wasitarecklessactordidthefishermengettooclosetothetankerandifso, why? To think that this incident will be a one off is most probably naive. It is for this reason that it is imperativethattheIndianauthoritiesgettothebottomofthisswiftly.Onlythenwillauthoritiesaroundthe worldbeinapositiontotakethenecessaryaction.

This article is published on the blog of the Economicard http://maltabusinessblog.com/2012/02/27/fatal-shooting-of-fishermen/

Group

of

Companies

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.