Armed Soldiers on Ships. the "Enrica Lexie" Case: When Things Go Terribly Wrong

Armed soldiers on ships. The "Enrica Lexie" case: When things go terribly wrong Claudio Perella Attorney at law, LS Lexjus Sinacta, Italy On 15th February 2012, the Italian oil tanker m/v Enrica Lexie was sailing from Singapore to Egypt with a crew of 34 and an escort of six Italian marines from the San Marco Regiment (members of the Italian Navy “Vessel Protection Detachment”). At approximately 4:30 PM, the Enrica Lexie was 22 nautical miles off the West coast of the Indian state of Kerala, while the Indian fishing trawler St. Antony was returning to the nearby port of Neendakara. Indian and Italian sources give different accounts of the ensuing events According to the captain of the Enrica Lexie and the Italian marines, a boat of armed pirates approached the oil tanker, and the marines fired some warning shots to prevent them from boarding The warning shots were preceded by signals with the ship’s searchlight According to the captain and owner of the fishing trawler they were returning from a fishing expedition, and while waiting for the oil tanker to pass security men onboard the Enrica Lexie fired without warning and “without provocation”. The firing lasted for about two minutes, during which the boat’s helmsman was killed and another crewmember was seriously wounded and succumbed to his injuries shortly thereafter. After the fishing boat reported the incident the Indian Coast Guard deployed patrol vessels and aircraft to intercept the tanker. The Enrica Lexie was contacted by the Coast Guard and after a positive answer to the question if she had been involved in a pirate attack was escorted to the port of Kochi to provide further details. The vessel was then put under arrest and detained for several months. The Kerala Police charged two of the Italian marines aboard the Enrica Lexie with murder under Section 302 of the Indian Penal Code. The marines are currently standing trial Contested issues A “perceived” threat of piracy? the waters near the coast of Kerala have never been affected by piracy it is alleged by the Indian authorities that the Master failed to use alternative measures, like searchlights, laser “dazzlers”, anti-piracy water hoses along the ship’s side and non-lethal measures like Long Range Acoustical Device (LRAD), which were activated very late. It is furthermore alleged that the vessel did not change speed quickly enough while could have easily left behind the fishing trawler (the tanker had a speed of 14 kts) The reason for the (apparently unexplainable) behaviour of the fishing boat is perhaps that local fishermen sometimes trespass the areas allowed for fishing and lie their fishing nets beyond these limits, so they were trying to induce the ship to change course avoiding to destroy the nets The evidence of the shooting The shots come from the right deck of the bridge, at a height of 23,20 m from the sea level Main legal issues Immunity from jurisdiction The Italian Government claims that the marines enjoy sovereign immunity, as they are naval guards employed on board an Italian ship and acting under the instructions and on behalf of the Republic of Italy. Indian authorities point out the absence of any international treaty granting immunity from prosecution to Vessel Protection Detachments onboard privately-owned ships. Indian Supreme Court held that the accident did not take place in Indian territorial waters, but denied that marines enjoy sovereign immunity. Jurisdiction Both Italy and India are relying on provisions of the United Nations Convention on the Law of the Sea (UNCLOS) in order to establish jurisdiction over the investigation and prosecution of the alleged crime. Article 97 UNCLOS Penal jurisdiction in matters of collision or any other incident of navigation In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 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. Soldiers vs. private contractors Italy has recently enacted the legislation allowing the employment of security companies on board, but: the employment of PMSC is considered as an alternative to the employment of soldiers, and only in case the latter option is not available it is limited to the Indian Ocean and the area between the straits of Bab El Mandeb and Hormuz, Par. 12 S Mer. 78 E. The difference between embarking military personnel vs. private contractors is very much focused on the chain of command It is possible to stipulate with PMSC the Guardcon standard contract or a similar contract; no such contract exist with soldiers. Level of training and experience: the Guardcon sets out criteria and skill sets for the individual security team members including the need for military or similar experience and the need for training in Standards of Training, Certification and Watchkeeping ("STCW") and BMP (if applicable). Many companies offering vessel security services have joined organizations such as SAMI or IAMSP that provide vetting and guidance Master’s authority on board Master’s authority has to be retained at all times, the guards are entitled to invoke the RUF but the Master retains the right under all circumstances to order the guards to cease firing. This is a SOLAS requirement and is expressly stated in the contract. • minimum insurance cover set out in the standard contract (US$5m; a higher figure may be agreed by the parties). • ‘knock for knock’ clause for the mutual allocation of risks • Third-party liability: each party indemnifies the other against claims by third parties with the exception of claims from third parties arising out of the owners’ or contractors’ own negligence. An ‘unlawful and/or negligent act or omission’ act is intended to cover scenarios such as fishermen being killed by a guard using unlawful force. Thank you [email protected] Armed soldiers on ships. The "Enrica Lexie" case: When things go terribly wrong Claudio Perella Attorney at law, LS Lexjus Sinacta, Italy .

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