Captain should be held accountable

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The captain is primarily responsible for any acts committed on board a ship at sea. But in the case of the ship, Enrica Lexia, the Neendakara police has registered an FIR against only two armed guards on board for shooting the fishermen and the captain has not been named despite the hue and cry raised over the incident.

The Arrest Convention of 1952 and1999 provides for arrest of a vessel which may have been responsible for loss of life or personal injury, giving rise to a ‘maritime claim’. Exercising its admiralty jurisdiction based on the claim made by the dependents of the victims in the present case , the High Court of Kerala arrested the ship and ordered payment of Rs 75 lakhs as security for her release, and later enhanced it to Rs 3 crores.

While the two accused armed guards on board the ship and the Italian government have already moved the high court for quashing the FIR on the ground that the alleged incident took place outside Indian territorial waters, curiously, neither the ship owner nor his agent have come to the rescue of the two men, claiming they have nothing to do with the incident. This is a very cunning move on the part of the ship owner as under Article 3 of the 1999 Arrest Convention, he must be liable for maritime claim to be arrested.

Under admiralty law the ship is regarded as the wrongdoer , but to find fault with it, it is imperative that the master/captain of the ship should also be seen as being at fault. If the alleged incident of firing on the fishermen, is construed as an act of the crew, then it must be under instructions from the captain. In other words the captain is responsible for the acts of the crew and is a necessary party to the prosecution proceedings.

If for some reason (which is still a mystery) the captain is not made an accused, then it can adversely affect those claiming compensation under admiralty law, because the ship cannot be regarded as a wrongdoer as long as her captain is not at fault .

Since the captain of the ship has not been made an accused so far, it goes without saying that the owner can wash his hands off the affair by contending that the ship has not caused the damage or loss of life.

The terms of deployment of the armed guards onboard the vessel is a serious issue which needs to be clarified. If they are treated as part of the crew, then the captain must be made liable for their act , which will in turn make the ship and its owner responsible for payment of compensation subject to the right of limitation of liability available to him.

On the other hand if the ship owner maintains the armed guards were deployed by the Italian government as security and he is neither responsible nor has any control over their acts then the whole incident will have to be viewed as an attack by two individuals, thus absolving the ship as well as its owner of any liability.

This will impede the prospects of the claimants getting adequate compensation.This has to be considered seriously especially as the ship owner has moved the high court for its release. Once the ship is permitted to sail without making the captain accountable, the claimants have a very remote chance of getting adequate compensation based on the high court’s directions.

(The author is the governing council member, Maritime Law Association)