Another Master victimized
BSN Network / Mumbai
Monday, July 13, 2009
Barely has the maritime community heaved a sigh of relief at the release of two Indian seafarers from S. Korea, comes the news of M.V, ‘TOSA’, Master, Capt. Glen Aroza – an Indian National being detained in Taiwan. This incident points to the need for concerted efforts at national and international level to protect the rights of innocent seafarers.
Capt. Glen Aroza has been detained in Taiwan since April 17 2009, after M.V, ‘TOSA’, which is a large crude carrier registered in Panama, was taken at gunpoint from the high seas from international waters to Hualien in Taiwan said Capt. V.K. Gupta, Master of CMMI. Two other crew members, namely the second officer (a Bangladesh national) and a seaman (a Philippines national), who were on watch at the time of the alleged incident, have also been detained in jail without bail.
The allegations against the Master are vague and have been changed / amended a number of times at the whim and caprice of Taiwanese authorities.
It was first alleged that the TOSA had collided with a Taiwanese fishing trawler in international waters as a consequence of which the trawler capsized and two fishermen lost their lives. When inspections of the hulls of the trawler as well as the TOSA revealed that there was no physical contact between the two vessels, it was alleged that the trawler (whose length is said to be 21.6 meters and deadweight about 100 tons) capsized due to the wake of the TOSA. On the face of it, this allegation is ludicrous. Any one with even a nodding acquaintance of the ships and the seas knows that it is impossible for a trawler of that size to capsize simply by the waves created by a large ship – unless of course she was inherently unstable and un-seaworthy. This allegation is all the more atrocious in view of the fact that the wind force at the time was only about force 5/6 on the Beaufort scale.
Subsequently, records and investigations revealed that the second officer was independently in-charge of the navigation watch and though the Master had left WRITTEN orders to give all vessels – especially fishing vessels, a wide berth and to be called in case of doubt, the second officer did not consider it necessary to inform the Master as, in his opinion, the TOSA had passed the trawler at a safe distance. The allegation against the Master was now changed to “involuntary manslaughter” , failure to render assistance (even though, no distress signal – whether visual / wireless or otherwise were sent out either by the trawler or by any other station on shore or at sea) and / or failure to train the second officer and the seaman on duty.
Even if one ignores the patent impossibility of the alleged facts, detention of and investigation against the Master and crew of the TOSA are patently illegal and without jurisdiction for the following reasons:
1. It is an admitted position that at all material times, the second officer was independently in charge of the navigation watch and that the Master was not on the bridge – indeed he first learnt about the alleged incident from Taiwan coast guard nearly nine / ten hours after the event. STCW Convention clearly provides that the duty officer remains fully responsible for the safe navigation of the watch even if the Master is present on the bridge – unless the Master takes over the watch. Thus, if at all any blame attaches to the TOSA for the alleged capsizing of the Trawler; the officer of the watch is solely responsible and the allegations of any neglect or wrongful act on the part of the Master are without any basis.
2. At all times, the TOSA was on the “High Seas” as defined in international law (well outside the territorial waters of Taiwan) – in fact she was forced into Taiwanese ports illegally and under threat of armed force against all international law and accepted norms of civilized behavior. Thus, even if all the facts as alleged are true, Taiwanese authorities have no jurisdiction whatsoever – whether civil or criminal.
3. Article 92 of UNCLOS 1982 states: “Ships shall sail under the flag of one state only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.”
4. Article 97 of UNCLOS further holds that “no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag state.” The flag state in this case was the Republic of Panama- where the TOSA is registered. 1
5. Article 1 of “The International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation” provides: In the event of a collision or any other incident of navigation concerning a sea-going ship and involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, criminal or disciplinary proceedings may be instituted only before the judicial or administrative authorities of the State of which the ship was flying the flag at the time of the collision or other incident of navigation.
Article 2 of the same Convention provides: “No arrest or detention of the vessel shall be ordered, even as a measure of investigation, by any authorities other than those whose flag the ship was flying.”
This is not the first time Taiwan has detained an Indian citizen and merchant navy officer in violation of international law. In 1996-1999, Captain Raj Goel was detained in Taiwan for three and a half years.
Recently, two Indian merchant navy officers were illegally detained in South Korea for over one and a half years. It is no exaggeration to say that these officers were released mainly because of the pressures brought about by the international shipping community. Efforts by official circles in India were woefully inadequate and consisted of no more than lip service.
It would be naïve to expect Taiwanese authorities to abide by international law unless sufficient pressure is brought on it. It would be equally futile to hope that those in power will do any thing at all to protect Indian sea-farers unless they are compelled to do so. It is time the maritime and shipping community in India join hands to wake up our political masters and civil servants from their slumber and indifference.
The incident of Maersk Dubai is worth recalling here if only to highlight the double standards observed by Taiwan.
The Maersk Dubai was a Taiwan registered vessel owned by Yang Ming Marine Transport Corporation. She was manned by Taiwanese officers and Philipino crew.
In March 1996, two Romanian nationals were discovered in one of the containers on the ship and ordered overboard on a makeshift raft, a approximately 38 nautical miles off Gibraltar.
Again, about two months later, while proceeding towards Halifax, another Romanian was found in a container and forced overboard by the Master – one Captain Sheng Hsiu and four of his officers. A fourth stowaway was discovered by one of the Filipino crew and was kept hidden until the ship arrived at Halifax, where eight Filipino crewmen jumped ship and reported the incident to the authorities.
Captain Hsiu and his officers were arrested and charged with first degree murder. The radio operator attempted to escape by jumping into Halifax harbour but was later arrested.
Captain Hsiu attempted to deny access to the ship under “international shipping laws”.
Romania requested extradition of the Master and the accused officers. The Presiding judge held that he did not have jurisdiction as the alleged crimes had been committed on the high seas. However, he added that but for the lack of jurisdiction the Court would have committed all of the officers.
“Taiwan protested the storming of the ship and the arrest of the officers, and contested the attempt by Canadian authorities to extradite them to Romania citing Articles 92 and 97 of UNCLOS.
The officers were eventually extradited to Taiwan.
Captain Hsiu was charged with criminal negligence causing death and was subsequently acquitted for lack of evidence regarding the stowaways’ death.
None of the other officers were brought to trial.
It was widely reported that the Pilipino crew who reported the crime to the Canadian authorities were victimized and their families harassed and threatened in the Philippines.
It is yet another ‘Seafarer AT SEA’. Will the Master M.V, ‘TOSA’, Capt. Glen Aroza get justice? If ‘Hebei Spirit’ incident has proved one thing, it is this, even the high and mighty cannot withstand the combined pressures of maritime constituents.
So, are we going to remain mute spectators now? http://www.bhandarkarpub.com/NewsDetails.asp?id=8118