Italian tanker ‘Enrica Lexie' was bound by contract to ensure security for and safe delivery of laden cargo and could have acted in self-defence while opening fire at an Indian boat in sight killing two fishermen.
But the crew would have to produce third-party witness to support its claim, if at all, says Mr V. Inbavijayan, a leading Chennai-based International Arbitrator.
CHARTER PARTY
The charter party, as the liners are called, have an exclusive carrier contract with a seller of a commodity or its buyer to ferry cargo across national or international waters for safe delivery.
Under the carrier contract, they are liable for certain things, not least of which is the safety and security of the cargo on board. They are bound to ensure and safeguard the security of the commodity that they have taken delivery of and are carrying for being delivered to another person.”
It could be in furtherance of this part of the contract and its closure along purely commercial terms that they might have taken the extreme step, Mr Inbavijayan told Business Line here.
HAZARDOUS CARGO
The fact that the ship was laden with a hazardous cargo such as oil could only have precipitated the action viewed not just from the danger involved in case of pirate fire but also of the environmental impact from a probable spill that could occur.
“My personal opinion is that the Italians – Italian or other nationals or the security guards employed by the charter party - might have done this as an act of self-defence.”
But all would now depend on how far the Government of India, the prosecution or investigators can go to build up a case.
BURDEN OF PROOF
The tanker crew would have to prove that the boatmen were warned with adequate alarm or otherwise cautioned.
Similarly, the proof that there was no malafide intention on the part of the boatmen when spotted within the firing range would also become crucial.
If there is a third-party evidence to support the act of self-defence, then the Italians would have a strong case.
In case there isn't any, the Government of India has every right to register a case and the investigating officer has to charge-sheet the aggressors.
‘Action already delayed'
According to Mr Inbavijayan, procedural action in the ‘Enrica Lexie' case has been delayed already.
“We should not have allowed this delay from the reporting of the incident and charge-sheeting”, said the Chennai-based International Arbitrator.
But India professes by the non-aligned and Panchsheel principles, which preclude us from acting head-on unless provoked by an aggressor.
This is quite unlike many countries in the West, which can invoke a disclaimer clause in the applicable law to enter a foreign domain with the intention ‘to act' in order to protect its citizens or interests.
According to him, the GPS-based location-finding technology could be used by the Indian authorities to push a case against the tanker crew to validate its coordinates at the time of the incident.
But which court has the jurisdiction to entertain this issue - the Sessions Court in Kollam or the International Criminal Court (ICC) in Rome?
India is not a signatory to the Rome Statute nor is a member of the ICC.