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Gunpoint detention of Master by Taiwan

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Breach of Flag State Jurisdiction and Crew Citizenship Norms in International Convention of High Seas by Taiwan

Breach of Flag State Jurisdiction and Crew Citizenship Norms in International Convention of High Seas by Taiwan


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  • 1. MOST IMMEDIATE TODAY CAPT. GLEN PATRICK AROZA, MASTER M.T.TOSA, NYK SHIPS -DETENTION IN HUALIEN, TAIWAN SINCE 18 APRIL 2009 Sarvadaman Oberoi <manioberoi@gmail.com> Fri, Jul 3, 2009 at 12:51 PM To: Central Govt Smt Pratibha Patil Hon'ble President of India <presidentofindia@rb.nic.in>, Central Govt Hon'ble Prime Minister of India <pmosb@pmo.nic.in>, "Shri G.K. Vasan Minister of Shipping" <gkvasan@sansad.nic.in>, lakshmi@dgshipping.com, dgshipo@dgshipping.com, "Shri G.K. Vasan Minister of Shipping" <dsadmn-ship@nic.in>, mospko@mea.gov.in, babuj4@rediffmail.com Cc: Michael Lund <mlu@bimco.org>, International@bimco.org, THE MARITIME UNION OF INDIA <oceanite@hathway.com>, sgnhrc@nic.in, info@humanrightsinitiative.org, chri@sas.ac.uk, info@hri.ca, jennifer@jhr.ca, niu@ohchr.org, gmagazzeni@ohchr.org, toronto@hrw.org, hrwdc@hrw.org, hrwpress@hrw.org, community@japantimes.co.jp, adriana.liche@mhouse.ro, abonamente@cotidianul.ro, dramiral@curentul.ro, iulia@curentul.ro, Vlad.Macovei@evz.ro, Ioana.Lupea@evz.ro, Calin.Hera@evz.ro, Silviu.Sergiu@evz.ro, Alin.Paicu@evz.ro, Serban.Stoica@evz.ro, Adina.Stan@evz.ro, redactia@nineoclock.ro, andra@nineoclock.ro, florian.dinu@nineoclock.ro, tmendoza@philstar.com.ph, filexpress@aol.com, foreign@washpost.com, president@nytimes.com, laura.goldberg@chron.com, Newsroom@herald.ca, "MR. HUANG YU-SHENG - ITF CO- ORDINATOR - KEELUNG TAIWAN" <yu-sheng_huang@itf.org.uk>, info@mail.chinapost.com.tw, letters@taipeitimes.com, focusint@sinfo.net, focusint@cableonda.net, canias_john@itf.org.uk, mcintosh_finlay@itf.org.uk, chang_sanders@itf.org.uk, oceanite@mtnl.net.in, hs.pathania@nyksm.com.sg, anuraj.singh@nyksm.com.sg, nyksm@nyksm.com.sg, mumbai@nyksm.com, kanarachamber.2008@rediffmail.com, raghuramrao2001@yahoo.co.in, menezesjp@yahoo.com, alvakp@satyam.net.in, nnadkarni@seatrade-global.com, Vinoddar@gmail.com, glen aroza <glen.aroza@gmail.com>, preetha.aroza@gmail.com, arozaleena@gmail.com, joslin aroza <joslinaroza@yahoo.com>, dsouzanaveen@yahoo.com, chetansyam@gmail.com, chetansyam@rediffmail.com, captainrajgoel@yahoo.com, goel_raj@hotmail.com, cmd@iwl.in, ind@mofa.gov.tw, ita@ms1.hinet.net, panaind@bol.net.in, panaemba@iplus.net.tw, dosdgdbd@bttb.net.bd, editor@thedailystar.net, editorinchief@tribuneindia.com, editor@timesgroup.com, editor@expressindia.com, bgd@mofa.gov.tw, thaidac@mfa.go.th, tecocomu@ji-net.com, editor@thebangladeshtoday.com, n_editor@bangla.net, manabzamin@yahoo.com, editor@e-bangladesh.org, maskwaith@gmail.com, editor@energybangla.com, fexpress67@gmail.com, indnews@bol-online.com, pradeep_narula@hclinfinet.com, rraghvendra13@rediffmail.com, yadram_bansal@rediffmail.com, yadrambansal@gmail.com, arnab@ndtv.com, sanjay@ndtv.com, rajc@intoday.com, lokesh.bhargava@timesgroup.com, ashokdixit@hotmail.com, ipanews@mail.com, priyankatikoo@hotmail.com, samita@abpmail.com, gopmisra@hotmail.com, paranjoy@yahoo.com, Sevantininan@vsnl.com, anjanapasricha@hotmail.com, deepak_haldankar@yahoo.com, shiv35@yahoo.com, shivaroor@gmail.com, amanchima@gmail.com, jaspal.oberoi@gmail.com, mytimesmyvoice@timesgroup.com, rajatpandit@gmail.com, sandeep4731@gmail.com, pramodsingh7@gmail.com, pranab.samanta@expressindia.com, narula_vk@hotmail.com, letters@thehindu.co.in, sonubagga@hotmail.com, ashishbagga@hotmail.com, alamsrinivas@gmail.com, dashreporter@gmail.com, sumi.sukanya@gmail.com, bp_pandey07@rediffmail.com, ayesha.arvind@gmail.com, avnishjolly@yahoo.com, adititandon@tribunemail.com, gurgaonexplorer@gmail.com, pravinkdev@gmail.com, anharizvi@rediffmail.com, kundandla@gmail.com, s_banerjee@mp.bhaskarnet.com, sharbani80@gmail.com, bsjoon@gmail.com, abhaygurgaon@gmail.com, ekkttasinha@gmail.com, dhananjay.jha@hindustantimes.com, satbiry@gmail.com, geetanjaligayatri@rediffmail.com, raju.william@gmail.com, poojamadhok@gmail.com,
  • 2. pranab.saikia@timesgroup.com, rspranab@gmail.com, sonbha2007@gmail.com, sunitdhawan@gmail.com, metro@aajtak.com, amitabh.a@aajtak.com, schauhan@nda.jagran.com, rakesh.malik2@timesgroup.com, feedback@hindustantimes.com, nehakh@ndtv.com, bhawnagandhi2007@gmail.com, smrsharma@gmail.com, rajnisha@starnews.co.in, manvirsaini_manvirsaini@yahoo.co.in, manvirsaini@gmail.com, aadhar_shila@yahoo.co.in, ashok.pradhan@metronow.co.in, erd@airtelmail.in, psarin@ariworld.com, mpbhasin@mscsmi.com, anmehrotra@gmail.com, sikanddeepak@yahoo.com, capt.khanijo@tciseaways.com, info@imo.org, RANBIR SINGH RATHEE <dlfrwa@gmail.com>, bhawanist@hotmail.com, socialactionfoundationforequity@googlegroups.com, marisa@naturopathicwellness.com.au, Singapore <singapore@nautilusint.org>, enquiries@nautilusint.org MOST IMMEDIATE TODAY It is to inform you that there is threat to life of Capt Glen Aroza as a "NO PURPOSE" email has been forced out from him under God knows what threat, to resile or dilute his FIR(First Information Report): [See enclosures below for fuller explanation.] INDIA should TODAY make a co-ordinated démarche with Japan, Phillipines, Panama and Bangladesh and get Capt Glen Aroza OUT from TAIWAN by midnight TODAY as he faces immense danger NOW. GET HIM OUT NOW!! Quote Between 17th /1300 and 18th / 1200: Vessel maintained position, informed CG that Tosa was awaiting instructions from Managers. Also passed on Managers contact details to the CG. During this time CG also threatened the vessel that if Tosa did not follow their orders, the CG vessels and aircrafts would use force for Tosa to proceed to Port. They were insisting that Tosa proceed to Hua Lien immediately. Fearing threat to Vessel and crew, Master maintained position and awaited further instructions from Managers, assuring the CG119 of Tosa’s full cooperation at all times.unquote Regards. Sarvadaman Oberoi Tower 1 Flat 1102, The Uniworld Garden, Sohna Road, Gurgaon 122018 Haryana INDIA Mobile: +919818768349 Tele: +911244227522 Website: http://www.freewebs.com/homeopathy249/ email: manioberoi@gmail.com COMPARATIVE STATEMENTS 17 APRIL 2009 AND 3 JULY 2009 - CAPT GLEN AROZA fromglen aroza <glen.aroza@gmail.com> tothsymphony@amosconnect.com ccmanioberoi@gmail.com date Sun, Jun 14, 2009 at 10:16 PM subject From Capt. Glen Aroza at Hua Lien Taiwan - 15th June 09. mailed- bygmail.com Hi! Varun, XXXXXXXXXXXXXXXXXXXXXXXXXXXXX i am attaching the series of events of 17th of April and then on.
  • 3. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX regards, glen. ======== Tosa - Events of 17.4.09.doc 50K View as HTML Open as a Google document Download XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Attachment sent on Sun, Jun 14, 2009 at 10:16 PM stating clearly Quote Between 17th /1300 and 18th / 1200: Vessel maintained position, informed CG that Tosa was awaiting instructions from Managers. Also passed on Managers contact details to the CG. During this time CG also threatened the vessel that if Tosa did not follow their orders, the CG vessels and aircrafts would use force for Tosa to proceed to Port. They were insisting that Tosa proceed to Hua Lien immediately. Fearing threat to Vessel and crew, Master maintained position and awaited further instructions from Managers, assuring the CG119 of Tosa’s full cooperation at all times.unquote After receipt of Email to President of India dated 3 July 2009 time stamped IST 0631 hours the Taiwanese Authority are using pressure/ blackmail to cow down Capt Glen Aroza and in the email of Fri, Jul 3, 2009 time stamped 11:51 AM IST more than 5 hours he has been FORCED into re?stating (UNDER THREAT TO HIS LIFE?) to state: Quote (e). this close qtr sitn occurred in international waters outside recognised territorial jurisdiction, about 75 nautical miles from nearest mainland of Taiwan (north eastern side of taiwan) . nearest land was utsuori shima, a disputed island, vessel was 21 n.miles westof this island. the position of interception by coast guard is 24deg 9min (n) and122deg 26min(e) about 35 n.miles off nearest land of east coast of Taiwan. this is the posn where vessel stopped. vessel was stopped upon instructions from NYKSM. Self maintained thisposition for 24 hours. this is the position where CG inspected shipsside and said "thank you for your cooperation and sorry for interfering in your voyage, we have not found any scratch marks on your ships side". Diverting to Hua Lien was also carried out by self upon instructions fromNYKSM’. Unquote SEE DOCUMENTS ATTACHED BELOW: “CHRONOLOGICAL ORDER OF EVENTS OF ‘ALLEGED’ INVOLVEMENT OF VLCC ‘TOSA’ IN A CLOSE QUARTERS SITUATION WITH A TAIWANESE FISHING TRAWLER Tosa is a 299996 dwt VLCC delivered on 31.3.08, built in Japan, registered in Panama and managed by NYK ship management, Singapore. LOA 333 mts, breadth 60 mts and depth 29 mts. Tosa sailed out from Daesan, South Korea on 14.4.09, RFA at 2200 LT, after completing discharge of crude oil, enroute to Singapore for bunkers and further orders. SMT = GMT+9 (from departure Daesan until 18th April). TAIWAN MAINTAINS GMT + 8. 17.4.09 0920 – Tosa noticed a Taiwanese Coast Guard vessel “CG 119” coming very close to port quarter, almost 2 cables. Tosa called up CG and asked intentions, if all was OK. CG asked for Tosa’s 0200 hrs position, last port and next port. (Vessel was proceeding at a speed of approx
  • 4. 13.5 knots, the location was off East Coast of Taiwan, in approx 23 degrees latitude, about 45 to 50 miles south east of a port called Hua Lien.) CG also informed Tosa that there was a collision with a fishing boat at night and two Taiwanese persons (Master and Chief Engineer) were missing, whether Tosa was aware of it. Tosa said no. Master called up Chief Officer. C/O said that the 2/o had informed him at 0400 hrs that some fishing vessels had come close to Tosa, so he took evasive action and had passed clear. Master informed Managers (Superintendent Incharge Mr. A. Sarpal) over the phone about the incident and communication with CG, and then on, kept informing Managers of the situation both via phone and email. 0945 - Master called 2/o on bridge and when enquired, 2/O said that there were a few fishing boats in the vicinity, 2 on his stbd side and 2 on his port side, all were maintaining more than 1 mile CPA. Suddenly he saw that the boats on the port side were coming very close and trying to cross the bow from port to stbd, so he altered to port and passed the boats at about 3 to 4 cables and then saw them pass well clear, he also monitored them for sometime until they passed clear and monitored their lights. The above occurred between 0030 and 0100 ships time. When asked why he did not inform master, he said it all happened so suddenly and that he had handled the situation and did not see the reason to call master. (The 2/O is a Bangladeshi age 28, with 2nd mates license and near coastal Mates license issued by Bangladesh. Last two trips of 6 months each as 3rd Officer. First ship as 2nd Officer, first VLCC. Has been onboard since 26th February, already made a similar voyage from S.Korea to Arab Gulf and back). Master also called AB Edwardo (Filipino, aged 31) and he also narrated similar situation. He was hand steering from 0020 until past 0100. Both 2/O and AB have given written statements, which were forwarded to Managers. Master also made initial statement basis information given by 2/O and AB, same has been forwarded to Managers. Earlier, Master had left night orders at 16th/2315 hrs and gone to sleep. Masters standing orders clearly stated CPA of 2 miles in open waters and 1 mile in restricted waters and all conditions for informing / calling master and acknowledged by all Officers onboard. In this case, the vessel was in open sea and the nearest land was 21 miles off. There was no traffic in the vicinity except a few fishing boats here and there. The sea condition was rough sea and swell, force 5, seas on tosa’s port quarter. Currents were against, vessel was doing a speed of approx 12 knots. Vessel was continuing on passage, CG was following the vessel very closely… In between 0930 and 1045: CG asked for more information of vessel, name of Owners, cargo onboard, draft, Masters name, etc. All information as requested was passed onto CG. A record of all vhf communication was maintained in the GMDSS log. Tosa also confirmed to CG that vessel was maintaining GMT+9 and that the there was a time difference of 1 hour between ships time and Taiwan time. Besides, the alleged location of capsizing was one hour away from Tosa’ sposition at the said time. (In GMT) At about 1000 hrs:
  • 5. Tosa received a navtex from Japan radio which stated sunken fishing boat in said position and said time. Tosa was approximately 1 hour away from this position, at the alleged time of capsizing of the fishing trawler. The location of the alleged capsizing / sinking was approximately 21 n.miles off a Japanese island named Utsuori Shima, about more than 50 miles off the North Eastern coast of Taiwan. At about 1100: CG asked Tosa to stop as they wanted to carry out inspection of ships side and board the vessel for some enquiry. Master immediately informed managers and stopped the vessel and fully cooperated with the Coast Guards. Alcohol check of 2/O and AB was carried out, nil record. At around noon, SVDR information was saved. The coast guards carried out inspection of the ships side, but could not board the vessel as the sea condition was rough. At around 1230 hrs: CG thanked Tosa for cooperation and said sorry for interfering with voyage and that they did not find any crash marks on the ships side. When Tosa asked whether vessel could continue on voyage to Singapore, CG said please wait as awaiting orders from base. At around 1300: CG said please proceed to calling port. Tosa confirmed whether to proceed to Singapore. CG said No, Proceed to Hua Lien for investigation. Master immediately informed managers and informed CG that Tosa was awaiting instructions from Managers to deviate from intended voyage. All this while, vessel maintained a position of approx 35 to 40 miles from nearest Taiwan coast, by drifting, about 40 miles SE of Hua Lien, strong currents and rough sea pushed the vessel closer towards land and vessel maintained position as much as possible on course line, more than 36 miles off coast of Taiwan. Between 17th /1300 and 18th / 1200: Vessel maintained position, informed CG that Tosa was awaiting instructions from Managers. Also passed on Managers contact details to the CG. During this time CG also threatened the vessel that if Tosa did not follow their orders, the CG vessels and aircrafts would use force for Tosa to proceed to Port. They were insisting that Tosa proceed to Hua Lien immediately. Fearing threat to Vessel and crew, Master maintained position and awaited further instructions from Managers, assuring the CG119 of Tosa’s full cooperation at all times. On 18th April 09, at around 1230 hrs: Tosa received confirmation from Managers NYKSM, Singapore, to proceed to Hua Lien for further investigation, after they consulted with their P&I, H&M and legal and insurance departments. At 1300 hrs: Vessel proceeded to Hua lien, escorted by two CG vessels. Tosa retarded clock by 1 hour to make SMT = GMT +8. 1630: Vessel arrived Hua Lien, 5 miles east of breakwater and drifted, using engines continuously. Strong currents and sea condition restricted vessel from approaching any closer. Local agent, P&I
  • 6. surveyor, H&M surveyor and Managers appointed lawyer boarded the vessel. All information requested by the surveyors was given, after consultation with lawyer. The CG team of 13 members boarded vessel at around 1900 and carried out investigation until midnight. All information requested by CG was given, after consultation with the lawyer. The CG team left at 19th / 0010 hrs. The Port State Control inspectors (2 persons) boarded at around 1945 hrs and departed at 2030 hrs. They informed master that they would return the following day for PSC inspection. They too asked for some ships information which was given after consulting the Lawyer. 19.4.09 0930: The Lawyer, surveyors, agent, C/Officer, 2/Officer and AB left vessel. They went for investigation / enquiry to CG Office at Hua Lien. The C/O returned at 2330 hrs. The AB and 2/O were asked to stay back for further enquiry. CO was asked questions related to the daily operations onboard and in particular if he knew anything as to what happened during the 12 to 4 watch of the said day. The Lawyer was present during this questioning. 20.4.09 Vessel was drifting about 8 miles off Hua Lien port the full day. A CG vessel was patrolling close by and monitoring all moves of Tosa. 2/o and AB were taken to local prosecutor’s office for enquiry and investigation. An interpreter was arranged. Tosa was accused of collision, negligence, manslaughter and hit and run. All information requested by CG, Lawyers, surveyor and Managers was passed on after consulting. Several crafts with lot of cameramen and other persons made circles of the vessel during the course of the day. None were allowed to board the vessel. 21.4.09 CG called up vessel and informed that divers will approach the vessel for inspection. The vessel maneuvered to 2.5 miles off the breakwater. The diver then realized that the current was more than 3 knots. The CG called the vessel and informed that underwater inspection / diving was cancelled as it was too dangerous for the diver. However, a small CG raft closely inspected the entire ships side. They found a white coloured buoy of size 1 foot height and 20 cms dia with a messenger line hanging at the rudder, they cut it and loaded it onto the CG vessel and took it away for investigation. The vessel was stbd side alongside during discharge at Daesan. As per Managers requirement, a complete vessels report has to be sent on CD to the Managers every 6 months, which includes photos of ships side. The Chief Officer had taken pictures of the ships side while at Daesan. He had the photos of this buoy, marker and rope, which were noticed on 14th April. He had not informed Master as it slipped out of his mind. He was busy with discharge and then with paperwork after departure. He remembered the same only when the CG found the marker and the rope. The photos were immediately sent to the managers. It was later confirmed by the fishing trawler company that the buoy and rope did not belong to them. Today, at 1400 hrs, the Chief of Coast Guards Capt. Fang came onboard to take a copy of the ships SVDR.
  • 7. 22.4.09 Master was called for investigation. On 21st, the Managers had arranged for a standby Master and 2/o, as they felt that the prosecutors were insisting that the Master was needed for the investigation. On 22nd, the standby Master and 2/O boarded the vessel and Self disembarked at 0800 hrs to proceed for investigation. There was no change of command or any hand over. The standby master was called in for the safety of the vessel, as informed by the COO of NYKSM. Self was taken to the district prosecutor’s office. I was asked a few questions between 1030 hrs and 1245 hrs and 1355 to 1410 hrs. Most of my answers were – “I am not aware, as I was asleep / off duty / I had left standing instructions and night orders to be called if in doubt”. I was asked regarding a few navigation watch hand over / take over procedures onboard. The remaining questions were mostly on my opinion as Master, what I would do in such a situation. A lot of time was spent on the translation part. All communication by the prosecutor was in Chinese. The Lawyer was present during the entire proceeding. All papers were signed by self with remarks “I do not understand Chinese”. This was instructed by the Lawyer. During this time, the 2/O and AB were questioned separately in different rooms. 23.4.09 2/O and AB were questioned. Self had to wait. Today, the Hua Lien Port State Control boarded the vessel and carried out inspection between 1430 hrs and 1730 hrs. They gave the vessel a clean chit and found no deficiencies. Earlier, vessel also had a PSC inspection at Daesan on 14.4.09 with two deficiencies, both related to certification, involving Class. Annual Class surveys (NKK) were held at Fujairah, UAE on 17.3.09. 24.4.09 I was asked questions on the radar pictures obtained from the SVDR between 1000 hrs and 1215 hrs. Again, a lot of time was spent on translation. I had to explain a few radar terms as to what is CPA, TCPA, how the targets are plotted, what are the alarm settings on the radar etc. At 1350, I was called in along with the Lawyer and told that I am now a witness in this case and that anything I say will be used as evidence against the word of the 2nd officer and AB. So I have to speak the truth. If I am found lying I will be jailed for 7 years or less. As I was not aware of what the prosecutor was talking about, he allowed me 10 minutes to discuss this with the lawyer in private and return. The Lawyer suggested that I agree to be a witness as I was not around / off duty during the time of the incident. We then returned to the court room and I signed a Chinese paper which read the same thing as was explained by the lawyer. He read it out to me. I put a remark that I do not understand Chinese. I was then asked to remain in Taiwan and fully co-operate until the case is solved. All the above occurred between 1350 and 1410 hrs. 26.4.09 Panama ambassador to China, a Panama Lawyer, deputy Mayor of Hualien and the ambassador’s assistant visited me at my hotel and took my statement. They were meeting with the External affairs ministry the following day and also the Chief Prosecutor. They have assured me of their full support and assistance in sorting out this matter as soon as possible. 28.4.09
  • 8. 2/O and AB were called for investigation. As per their information, same questions were repeated. The Junior C/O (8 to 12 watch keeper who had handed over to 2/o) was also called for investigation today. He was asked similar questions as to his duties onboard, procedure of hand over and take over, what happened on midnight of the said day etc. 29.4.09 Today, the district Chief Prosecutor, along with the coast guards and local police, boarded Tosa around sunset time and carried out further investigation. They took pictures of the general layout of the vessel, tried out the GMDSS / distress system, and checked the radar operation and a few other items. They also simulated the situation with the CG boat coming close to the bow of Tosa and checked the range of visibility etc. 30.4.09 2/O, AB and self were called at 2315 hrs and asked if we had anything to supplement our previous records or statements. I had none. Later, 2/O and AB were again called inside the court room at 2345 hrs. They were charged with negligence, manslaughter and hit and run. The 2/O was immediately hand cuffed and the AB has been told not to leave Hua Lien city without permission from the court. 1st May 09 Tosa sailed out around 1800 hrs, after signing a letter of undertaking with the owners of the fishing trawler. The Junior C/O returned to the vessel. AB and self have been in a guest house since 2nd May. We are taken care of well, no harassment or ill treatment of any kind. The lawyer (who is based in Taipei) strongly advised us not to visit the 2/o in jail. The 2/o’s bail plea has been rejected. We are awaiting a hearing or a first verdict from the local court. No news yet. The Lawyer has asked me to be optimistic as I was not on duty and that the 2/O and AB have confirmed that they did not call me. He has asked me to be patient and cooperate with the authorities. A few additional points: 1. I have seen the SVDR radar pictures. The targets seem very close, up to 3 cables off, but no judgement can be made as the clutter is too strong. The sea condition was rough, force 5, rough sea and swell. There appears to be no contact though, as the targets seem to have passed well clear. I have told the prosecutor that I am unable to make any judgement on scanty radar information as per the rules and in situations at such close range, the targets are usually monitored by visual, using binoculars. 2. The vessel passed Singapore on 7th May, underwater survey was carried out and no damage or scratches have been found anywhere, except anchor chain marks. The remaining length of the rope and some nets were found but already confirmed not belonging to the fishing trawler. The prosecutor had shown me a picture of the bulbous bow and asked me what the scratch marks were. I had told him that as per my knowledge they are anchor chain marks. 3. Unaware of the VHF communication recording of the SVDR during the incident as vessel did not have software to decode the recording. Had enquired with 2/O and AB, they had confirmed several times that neither did they hear any distress call nor receive any message regarding any assistance required. They had seen the boat pass well clear with all lights fully on. 4. The trawler named “SHINGTONG CHEN #86” was salvaged and towed to a nearby port called SUAO where survey was carried out only by the fishing company’s reps. Tosa’s reps were not allowed to join in the survey. The body of the Chief Engineer was found in the engine room
  • 9. bottom. The Master is still missing. Pictures of the fishing trawler after recovery are available, no signs of damage on the hull of the fishing boat whatsoever. Besides, a few crew of the fishing trawler have given statement that there was no actual contact between the two vessels. The actual reason for the capsize of the trawler is not known. 5. Understand that the Letter Of Undertaking was signed for an amount of USD five million. USD400,000/- each has been paid to the families of Master and Chief engineer. 6. Self have made a sea protest regarding this incident and got it notarized as advised by Lawyer and P&I. 6. Tosa has RT flex engines, whereby, revolutions of the ME can be adjusted very easily, for the purpose of bunker saving. Vessel was proceeding at 54 rpm from Daesan to Singapore as per Charterers instructions. (The max rpm is 71). However, daily, whilst vessel is at sea, rpm is increased to 66 for one hour in the morning and evening, for the purpose of soot blowing. At the time of interception by CG, vessel was gradually increasing speed for the morning soot blowing and speed had increased to almost 16.5 knots. The CG increased their speed to more than 17 knots and kept following the vessel. Its almost two months now. There has been no progress. The 2/o is still in jail. The AB was called for investigation on 3rd June and released on a guarantee of usd16,000/-. I am still not aware why i am asked to stay back in Taiwan. I was told that i am now being investigated to find out if Master has trained the 2/0 and AB adequately. My reply was that I am not responsible for their training, they are certified by their respective governments. So, i was told that the investigation is not over, have patience!!!!!” XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX THIS LATEST EMAIL AFTER OUR EMAIL SENT OVER 5 HOURS EARLIER REEKS OF BLACKMAIL BY THE TAIWANESE AUTHORITIES ---------- Forwarded message ---------- From: glen aroza <glen.aroza@gmail.com> Date: Fri, Jul 3, 2009 at 11:51 AM Subject: From Capt. Glen Aroza - Tosa's position. To: cmd@iwl.in, vinod gupta <vinoddar@gmail.com> Cc: menezesjp <menezesjp@yahoo.com>, raghuramrao2001@yahoo.co.in, alvakp <alvakp@satyam.net.in>, preetha aroza <preetha.aroza@gmail.com>, joslinaroza <joslinaroza@yahoo.com>, Sarvadaman Oberoi <manioberoi@gmail.com>, chetansyam@gmail.com Good day Sirs, The Tosa was enroute from Daesan in South Korea to Singapore, in ballast. The vessel was transiting on the eastern side of Taiwan, not through the Taiwan Strait (Formosa Strait). The position of capsize of trawler is 25deg 50mins (n) and 123deg 8min (e). this close qtr sitn occurred in international waters outside recognised territorial jurisdiction, about 75 nautical miles from nearest mainland of Taiwan (north eastern side of taiwan) . nearest land was utsuori shima, a disputed island, vessel was 21 n.miles west of this island.
  • 10. the position of interception by coast guard is 24deg 9min (n) and 122deg 26min(e) about 35 n.miles off nearest land of east coast of Taiwan. this is the posn where vessel stopped. vessel was stopped upon instructions from NYKSM. Self maintained this position for 24 hours. this is the position where CG inspected ships side and said "thank you for your cooperation and sorry for interfering in your voyage, we have not found any scratch marks on your ships side". Diverting to Hua Lien was also carried out by self upon instructions fromNYKSM. I believe that Ince & co. has forwarded its report on the incident to NYKSM. I am aware of its contents but do not have a copy. Kindly request you to please insist a copy of same from NYKSM, if possible, so all matters will be very clear. The vessel is panama flagged. the managers are NYKSM singapore. Owner is Hernandia shipholding s.a, panama, charterer is NYK line, tokyo. sincerely, capt. glen aroza. ============== ---------- Forwarded message ---------- From: Sarvadaman Oberoi <manioberoi@gmail.com> Date: Fri, Jul 3, 2009 at 6:31 AM Subject: CAPT. GLEN PATRICK AROZA, MASTER M.T.TOSA, NYK SHIPS -DETENTION IN HUALIEN, TAIWAN SINCE 18 APRIL 2009 To: Central Govt Smt Pratibha Patil Hon'ble President of India <presidentofindia@rb.nic.in>, Central Govt Hon'ble Prime Minister of India <pmosb@pmo.nic.in>, lakshmi@dgshipping.com, dgshipo@dgshipping.com, "Shri G.K. Vasan Minister of Shipping" <dsadmn-ship@nic.in>, mospko@mea.gov.in, babuj4@rediffmail.com Cc: Michael Lund <mlu@bimco.org>, International@bimco.org, THE MARITIME UNION OF INDIA <oceanite@hathway.com>, sgnhrc@nic.in, "info@imo.org" <info@humanrightsinitiative.org>, chri@sas.ac.uk, info@hri.ca, jennifer@jhr.ca, niu@ohchr.org, gmagazzeni@ohchr.org, toronto@hrw.org, hrwdc@hrw.org, hrwpress@hrw.org, community@japantimes.co.jp, adriana.liche@mhouse.ro, abonamente@cotidianul.ro, dramiral@curentul.ro, iulia@curentul.ro, Vlad.Macovei@evz.ro, Ioana.Lupea@evz.ro, Calin.Hera@evz.ro, Silviu.Sergiu@evz.ro, Alin.Paicu@evz.ro, Serban.Stoica@evz.ro, Adina.Stan@evz.ro, redactia@nineoclock.ro, andra@nineoclock.ro, florian.dinu@nineoclock.ro, tmendoza@philstar.com.ph, filexpress@aol.com, foreign@washpost.com, president@nytimes.com, laura.goldberg@chron.com, Newsroom@herald.ca, "MR. HUANG YU- SHENG - ITF CO-ORDINATOR - KEELUNG TAIWAN" <yu-sheng_huang@itf.org.uk>, info@mail.chinapost.com.tw, letters@taipeitimes.com, focusint@sinfo.net, focusint@cableonda.net, canias_john@itf.org.uk, mcintosh_finlay@itf.org.uk, chang_sanders@itf.org.uk, oceanite@mtnl.net.in, hs.pathania@nyksm.com.sg, anuraj.singh@nyksm.com.sg, nyksm@nyksm.com.sg, mumbai@nyksm.com, kanarachamber.2008@rediffmail.com, raghuramrao2001@yahoo.co.in, menezesjp@yahoo.com,
  • 11. alvakp@satyam.net.in, nnadkarni@seatrade-global.com, Vinoddar@gmail.com, glen aroza <glen.aroza@gmail.com>, preetha.aroza@gmail.com, arozaleena@gmail.com, joslin aroza <joslinaroza@yahoo.com>, dsouzanaveen@yahoo.com, chetansyam@gmail.com, chetansyam@rediffmail.com, captainrajgoel@yahoo.com, goel_raj@hotmail.com, cmd@iwl.in, ind@mofa.gov.tw, ita@ms1.hinet.net, panaind@bol.net.in, panaemba@iplus.net.tw, dosdgdbd@bttb.net.bd, editor@thedailystar.net, editorinchief@tribuneindia.com, editor@timesgroup.com, editor@expressindia.com, bgd@mofa.gov.tw, thaidac@mfa.go.th, tecocomu@ji-net.com, editor@thebangladeshtoday.com, n_editor@bangla.net, manabzamin@yahoo.com, editor@e-bangladesh.org, maskwaith@gmail.com, editor@energybangla.com, fexpress67@gmail.com, indnews@bol-online.com, pradeep_narula@hclinfinet.com, rraghvendra13@rediffmail.com, yadram_bansal@rediffmail.com, yadrambansal@gmail.com, arnab@ndtv.com, sanjay@ndtv.com, rajc@intoday.com, lokesh.bhargava@timesgroup.com, ashokdixit@hotmail.com, ipanews@mail.com, priyankatikoo@hotmail.com, samita@abpmail.com, gopmisra@hotmail.com, paranjoy@yahoo.com, Sevantininan@vsnl.com, anjanapasricha@hotmail.com, deepak_haldankar@yahoo.com, shiv35@yahoo.com, shivaroor@gmail.com, amanchima@gmail.com, jaspal.oberoi@gmail.com, mytimesmyvoice@timesgroup.com, rajatpandit@gmail.com, sandeep4731@gmail.com, pramodsingh7@gmail.com, pranab.samanta@expressindia.com, narula_vk@hotmail.com, letters@thehindu.co.in, sonubagga@hotmail.com, ashishbagga@hotmail.com, alamsrinivas@gmail.com, dashreporter@gmail.com, sumi.sukanya@gmail.com, bp_pandey07@rediffmail.com, ayesha.arvind@gmail.com, avnishjolly@yahoo.com, adititandon@tribunemail.com, gurgaonexplorer@gmail.com, pravinkdev@gmail.com, anharizvi@rediffmail.com, kundandla@gmail.com, s_banerjee@mp.bhaskarnet.com, sharbani80@gmail.com, bsjoon@gmail.com, abhaygurgaon@gmail.com, ekkttasinha@gmail.com, dhananjay.jha@hindustantimes.com, satbiry@gmail.com, geetanjaligayatri@rediffmail.com, raju.william@gmail.com, poojamadhok@gmail.com, pranab.saikia@timesgroup.com, rspranab@gmail.com, sonbha2007@gmail.com, sunitdhawan@gmail.com, metro@aajtak.com, amitabh.a@aajtak.com, schauhan@nda.jagran.com, rakesh.malik2@timesgroup.com, feedback@hindustantimes.com, nehakh@ndtv.com, bhawnagandhi2007@gmail.com, smrsharma@gmail.com, rajnisha@starnews.co.in, manvirsaini_manvirsaini@yahoo.co.in, manvirsaini@gmail.com, aadhar_shila@yahoo.co.in, ashok.pradhan@metronow.co.in, erd@airtelmail.in, psarin@ariworld.com, mpbhasin@mscsmi.com, anmehrotra@gmail.com, sikanddeepak@yahoo.com, capt.khanijo@tciseaways.com, anil.bakshi@vsnl.com On Thu, Jul 2, 2009 at 12:58 PM, preetha aroza <preetha.aroza@gmail.com> wrote: "2nd July 2009 Mangalore. From: Preetha Aroza, W/o Capt. Glen Patrick Aroza (ex-Master, M.T.TOSA, NYK Ship Management Pvt.Ltd.) Tel: +91 9663332290, +91 824 4271234 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx FILIPINO CREW ALLEGEDLY TERRORIZED INTO SEEKING ASYLUM IN CANADA 1997, 3 ROMANIAN BOYS ALLEGEDLY CASTOFF IN MIDOCEAN 1996 BY 7 TAIWANESE OFFICERS, Yang Ming Marine Tpt Co of Taiwan's "Maersk Dubai", INDIAN MASTER JAILED/ DETAINED FOR HIGH SEAS INCIDENT FOR 3 YEARS 1996-1999 NYK Shipping Japan "Kasuga I" Panama FLAG, ANOTHER INDIAN MASTER & FILIPINO SEAMAN DETAINED & BANGLADESH 2ND OFFICER JAILED FOR OVER 2 MONTHS TAKEN AT GUNPOINT FROM HIGH SEAS BY TAIWAN WARSHIPS/ AIRCRAFT ON 17 APRIL 2009 NYK Shipping Japan "Tosa" Panama FLAG REPEATED BREACH OF INTL LAW OF HUMAN RIGHTS & HIGH SEAS xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
  • 12. To, The President of India, 3rd July 2009 INTRODUCTION The case of Capt Glen Aroza of Mangalore, India, detained since 17 April 2009 taken at gunpoint from the high seas, to HuaLien, Republic of China(Taiwan), was referred to DG Shipping and Ministries of Shipping and External Affairs but there has been no cogent response at all from any of these authorities so far, and they have not informed Mrs Preetha Aroza about factual information obtained from ROC Taiwan, if any collected. A 2nd Officer (Bangladesh) is held in jail while AB Edwardo (Phillipines) is detained. Even earlier DG Shipping did nothing when Capt Raj Goel of India (Panama Flag, Japanese owner) was kept in Keelung, Taiwan Jail/ detention from 7 February 1996 to 22 June 1999, in gross violation of well settled international law and human rights principles. Mrs Preetha Aroza has requested me to take up this matter on her behalf. INTERNATIONAL LAW The law creating processes are: 1. International law in unorganised international societies(international customary law). 2. General principles of law recognised by civilized nations. 3. Treaties. One of the 7 fundamental principles of international customary law is: "Freedom of the High Seas" which has been formalised in Article 11 etc of UNCLOS 1958 / Articles 86, 87, 97 etc of UNCLOS 1982, derived from Articles 1, 2 & 3 of the 1952 Convention [ Brussels, 10 May 1952, 439 UNTS 233; UKTS No. 47 (1960). Cmd. 1128] Another of the 7 fundamental principles of international customary law is: "International Responsibility" which has two major propositions: 1. Breach constitutes an international tort. 2. Commission of an international tort involves the duty to make reparation. Interaction of the rules governing the fundamental principles of international customary law: 1. Protection of nationals abroad; this rule has behind it the authority of the PCIJ, Permanent Court of International Justice & a host of international tribunals. 2. Freedom of Commerce & Navigation. In 1956, the International Law Commission, in its draft article 35, followed the approach of the 1952 Convention, stating that its position had the object of protecting ships and their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas, since such proceedings may constitute an intolerable interference with international navigation.[Report of the International Law Commission covering the work of its eighth session (A/3159), article 35 Commentary, para. (1), II YB ILC 1956, at 253, 281] INCONSISTENCY OF TAIWANESE INTERPRETATION OF JURISDICTION ON HIGH SEAS WHEN FOREIGN NATIONALS ALLEGED TO BE INVOLVED IN COLLISION "Maersk Dubai" 1996 - alleged butchering of 3 innocent boys on 2 separate dates at sea - "A Taiwanese diplomat in Ottawa, Leonard Chao of the Taipei Economic and Cultural Office, was quoted as follows “even if an investigation concludes that these allegations are true and the officers are shown to have contravened out country’s criminal code, the case will be dealt with accordingly by our law enforcement authorities. Other than the fact that the ship was Taiwanese, the accused officers (Captain-Shiou Cheng, Chief Officer-Chung-Chih Wu, Second Officer, First Mate, Chief Cook, Carpenter, and Chief Engineer) should be tried in their home state, not the state the crime was committed against. Thus, it is clear that the Republic of China has a right to demand the return of the Taiwanese sailors for the purpose of prosecution for the alleged offenses." Taiwan threatened to recall its representative from Canada as per media reports.
  • 13. Nova Scotia Supreme Court in case of 7 Taiwanese officers who were arraigned before it noted as follows, "The Court noted that but for the lack of jurisdiction it would have committed all of the officers." [Romania v Cheng, (March 6, 1997) No. 128423 (N.S.S.C.) ] But in the 10 June 2009 case of the "Koshiki" - "Lienhe" incident of alleged entry into Japanese waters / sinking of "Lienhe", Taiwan insisted that Japan release the Taiwanese master who was briefly held for questioning after hot pursuit /sinking of "Lienhe", as it was allegedly not in High Seas at commencement of "hot pursuit". Taiwan threatened to recall its representative from Japan as per media reports. The NYK Japan Shipping "Tosa" (Panama Flag) case is no longer one that the Government of India can afford to overlook as it concerns Panama (Flag State), Phillipines, Bangladesh & India (Protection of nationals abroad), Taiwan(International tort) and Japan(owner), all of whom have independently signed/ratified the high seas convention on jurisdiction of flag state/crew nationality. This incident is a (second) slap (first being in 1996-1999) on the face of every Citizen of India as it has permitted the human rights of an Indian Citizen to be violated, once again, in breach of well settled international law (international tort requiring reparation) arising from Article 11 of the International Convention on the High Seas signed on 29 April 1958 by, among others, Republic of China (Taiwan), Bangladesh (through Pakistan), and Panama which came into force on September 30, 1962; its successor Article 97 of UNCLOS 1982 signed on 10 December 1982 has been ratified by Phillipines (1984), India (1995), Panama(1996), Japan (1996), Bangladesh(2001). Article 11 of 1958 and Article 97 of 1982. This is on the lines of Articles 1, 2 & 3 of the 1952 Convention [ Brussels, 10 May 1952, 439 UNTS 233; UKTS No. 47 (1960). Cmd. 1128] TAIWAN ADHERENCE TO UNCLOS AND INTERNATIONAL JUSTICE SYSTEM That Republic of China (Taiwan) demonstrates adherence to international law notably, Article 97 of UNCLOS 1982, and had been actively participating in PCIJ and ICJ (International Court of Justice) as is apparent from the the record below: 1. The jurisdiction of Hague Convention of 18 October 1907, in matters concerning US- China relations was ratified by Republic of China (established 1912) on 15 September 1914. [ Article II of Treaty of Arbitration between United States of America & Republic of China, 15 September 1914; American Journal of International law, supplement, Vol. X, p. 268] 2. Republic of China was a founding member of the League of Nations on 10 January 1920(ratified 16 July 1920), along with India & Bangladesh (through GB), Japan (withdrew 27 March 1933) and Panama. League of Nations was dissolved 18 April 1946. 3. Statute of the Court of PCIJ was signed by Republic of China on 28 January 1921 and ratified on 13 May 1922. 4. Articles 1 and 2 of Kellogg-Briand Pact, 27 August 1928, "the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means." Ratified by Republic of China (now at Taiwan), India &, Bangladesh, (through GB), Panama, Phillipines (through USA) and Japan. 5. One case was submitted by Republic of China to jurisdiction of PCIJ, Permanent Court of International Justice. ["Denunciation of the Treaty of 2 November 1865 between China and Belgium", PCIJ Order dated 25 May 1929, PCIJ, 1929 Series A, No 18] 6. From Republic of China - Chun Hui Wang was Deputy Judge of PCIJ from 30 January 1920- 6 December 1930 and Judge of PCIJ from 15 January 1931- 15 January 1936; Tien Hsi Cheng was a Judge of PCIJ from 8 October 1936- October 1945.
  • 14. 7. Republic of China was a founding member of the United Nations on 24 October 1945, along with India & Bangladesh (through GB), Phillipines (through USA) and Panama, till passing of Resolution 2758(XXVI) of 25 October 1971, when its place was taken by PRC. Japan had joined the United Nations on 18 December 1956. 8. Upon dissolution of PCIJ on 31 January 1946, Hsu Mo of Republic of China served as a Judge of ICJ from 1946 to 1956. Wellington Koo of Republic of China served as a Judge of ICJ from 1957 to 1964 and as its Vice President from 1964 to 1967. 9. Republic of China (Taiwan) was a member of the Inter-Governmental Maritime Consultative Organisation, ICMO (IMO since 22 May 1982) on its coming into force on 17 March 1958. Taiwan lost its place in the UN bodies to PRC on 25 Octopber 1971, since it claims to represent entire undivided China as it existed in 1949. Nevertheless Taiwan follows the UNCLOS and engages in co-operation with US, Japan and other countries on the high seas. TAIWAN STAND ON ARTICLE 97 OF UNCLOS 1982 IN CANADA 1996 On 24 May 1996, when Canadian Police arrested seven Taiwanese (Republic of China) officers after some initial resistance, from the Taiwanese registered Maersk Dubai in a sorrowful saga involving the US, Canada, Romania, Phillipines and Republic of China. On the insistence of a Taiwanese diplomat, Leonard Chao, in Canada the flag state / crew nationality principle of the law of the sea was upheld as contained in Articles 1, 2 & 3 of the 1952 Convention, Article 11 of the International Convention on the High Seas 1958 and Articles 86, 87, 97 of UNCLOS 1982.(All Annexed below) (Detailed reports on the incidents of the "Maersk Dubai" and "Kasuga I" are also annexed. CONCLUSION 1. It is crystal clear that Taiwan Courts have neither locus nor jurisdiction to commit the foreign crew of "Tosa". 2. The detention of the crew without jurisdiction is severe breach constituting intolerable international tort of vast magnitude, having hurt the psyche of each and everyone of the one billion common citizens of the Sovereign Democratic Republic of India. 3. Threats to severe relations by Taiwan, as reported by media in Canada and Japan to influence the course of justice must be stoutly resisted by the Government of India. 4. Money can not recompense the lost honour and the shame that the alleged sloth of the DG Shipping has brought upon us common citizens but nevertheless this citizen calls upon his Government if there be one to take forthwith action to obtain release of our honour and our citizen. Parliament needs must be seized of this grave matter. 5. Reparation must follow tort as night follows day and a sum of one billion dollars in reparation will hopefully dissuade such distasteful show of aggression by a nation that has adopted double standards in international law for far too long, and no civilization may permit of such continuing inconsistent approach to international judicature. Regards. Sarvadaman Oberoi Colonel (Retd) Indian Army Tower 1 Flat 1102, The Uniworld Garden, Sohna Road, Gurgaon 122018 Haryana INDIA Mobile: +919818768349 Tele: +911244227522 Website: http://www.freewebs.com/homeopathy249/ email: manioberoi@gmail.com
  • 15. ENCLOSURES: INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO PENAL JURISDICTION IN MATTERS OF COLLISION OR OTHER INCIDENTS OF NAVIGATION BRUSSELS, 10.5.1952 ARTICLE 1 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 In the case provided for in the preceding Article, 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. ARTICLE 3 Nothing contained in this Convention shall prevent any State from permitting its own authorities, in cases of collision or other incidents of navigation, to take any action in respect of certificates of competence or licences issued by that State or to prosecute its own nationals for offences committed while on board a ship flying the flag of another State. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Convention on the High Seas, Geneva 29 April 1958 "Article 11 1. In the event of a collision or of 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 persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master’s certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. 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." xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx UNITED NATIONS CONVENTION ON THE LAW OF THE SEA PART VII HIGH SEAS, Montego Bay, 10 December1982 Article 86 Application of the provisions of this Part The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58. Article 87 Freedom of the high seas 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
  • 16. (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. Article 97 Penal jurisdiction in matters of collision or any other incident of navigation 1. 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. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. 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. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Nova Scotia Supreme Court, Halifax, Canada Crimes - Extradition - Jurisdiction Romania v Cheng, (March 6, 1997) No. 128423 (N.S.S.C.) This is the decision of the Nova Scotia Supreme Court in the extradition hearing relating to the "Maersk Dubai"; a case involving allegations of murder on the high seas. Seven officers of the Taiwanese registered "Maersk Dubai" were accused of throwing Romanian stowaways overboard while en route to Canada. Canadian authorities arrested the seven officers in Halifax. The State of Romania charged all seven officers and brought proceedings to have them extradited. The issue was whether the Court had jurisdiction to extradite the officers. The Court held that it did not have jurisdiction to extradite because the Extradition Act requires that the offence occur in the jurisdiction of the requesting state. The alleged murders occurred at Sea, not within the jurisdiction of Romania, and the officers were therefore discharged. The Court noted that but for the lack of jurisdiction it would have committed all of the officers. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx VESALIUS COLLEGE, VRIJE UNIVERSITEIT BRUSSEL THE JUDICIAL STATUS OF THE MAERSK DUBAI CASE: JURISDICTION, EXTRADITION & PASSIVE PERSONALITY RELATING TO STOWAWAYS ON THE HIGH SEAS. Hugo Shebbeare Law 301 Prof. Dr. Eric Franckx March 30, 1998 Term Paper The Incidents The merchant vessel Maersk Dubai of the Yang Ming Marine Transport Company of Taiwan called in at the port of Algeciras, Spain on March 11, 1996. Two young men from Transylvania, Romania, named Radu Danciu and Petre Sângeorzan, were able to board the ship, and subsequently hide. They remained unnoticed until the Boatswain, Rudolfo Miguel, found them “’hiding in the forward part of the ship’ –near a catwalk, on the port side.”
  • 17. Miguel took the two stowaways to Captain Shiou Cheng and Chief Officer Chung-chih Wu. Once the Captain realized that the stowaways were on the ship because its eventual destination was Canada, he ordered his second mate to put them overboard. The prosecution would later argue that the Captain Shiou Cheng ordered them overboard to avoid having to pay a $7000 fine Canadian Immigration imposes on ships that bring stowaways into Canada. Miguel made a raft for the stowaways, but it was lost when the rope lowering it down to the water broke. He made a second raft made of “two empty oil drums and some pieces of wood, all fastened together with rope.” Then the officers and other crewmen forced the two Romanians down the port side ladder onto the makeshift raft. The first incident concluded when the two stowaways were thus set adrift due West of Algeciras. It is sufficient to say that Radu Danciu and Petre Sângeorzan were never seen again. While the ship passed through ports of call along the Eastern Seaboard of the United States, it made a stop in Houston, Texas, where several of the crew disembarked to visit the Lou Lawler Seafarer’s Center. Father Albano, pastor of the Center and of Filipino origin, befriended four religious Filipino crewmembers: Third Engineer Ariel Broas, Boatswain Rudolfo Miguel, Juanito Ilagan Jr. and Esmeraldo Esteban (latter two crewman posts unknown to the author). Between Houston and Algeciras, this group of four wrote to Father Albano relating the story of the stowaway incident. It was then that the Pastor informed a related center for seamen in Halifax. Meanwhile on May 18, the second incident was about to happen on the Maersk Dubai. In Algeciras again, two Romanians from Transylvania, Gheorghe Mihoc and Nicholae Pasca, found their way aboard. The former stowaway was discovered by the vessel’s Taiwanese carpenter two days from Algeciras. Miguel was asked to seize the Romanian, but he refused, so the Taiwanese carpenter took hold of him. Miguel and the second cook, Ricardo Aquino, witnessed the chief cook (armed with a knife), the captain, first mate, carpenter (who found him), and chief engineer take Gheorghe Mihoc on deck. There was a struggle and no more was seen of the stowaway because he was forced off ship without a life jacket, all that remained were bloodstains on the deck that the captain made attempts to wash away with a hose. The RCMP in Halifax later found the bloodstains while searching the boat. Within an hour after the second incident, Miguel was walking along the starboard side of the deck when he saw Romanian stowaway Nicholae Pasca “stumbling towards him holding a bible.” Having no desire for any more casualties, Miguel took Pasca to a hiding place in the ship and compelled him to read the bible. Miguel told only his fellow Filipino crewmates, Ilagan, Broas, Aquino and Esteban, about Pasca, but not his whereabouts. On May 24, 1996, the Maersk Dubai anchored in Halifax harbor. Police boarded and safely escorted the Filipino crewmembers and Nicholae Pasca onto land. The Taiwanese officers refused, initially, to leave the ship, but after heavily armed officers boarded, they were taken into custody in Halifax. Almost immediately, Romania charged the officers with murder. Jurisdiction & Extradition Hearing The following section describes the situation that arose once this case involving international law began to proceed. The position of the Taiwanese and their right as the Flag State to judge this case is discussed first, while the extradition of the accused request from Romania second. Finally, the possibility of jurisdiction by ‘passive personality’ is mentioned. Once the Taiwanese officers were taken into custody, Canadian officials “investigated the murder on behalf of Romania.” An attempt was made to extradite the Taiwanese officers to Romania for a murder trial. The case was heard at the Province of Nova Scotia Supreme Court in Halifax and presided over by Justice Michael MacDonald. Taiwan, being the judicial authority of the vessels’ Flag State, tried also to extradite the men, but were not permitted because “officially Canada does not recognize Taiwan as a sovereign state.” In this way, the Maersk Dubai case was an international legal mess. Not only was this case a mess due to the problem of jurisdiction, but also because the Flag State was not recognized by Canada.
  • 18. A Taiwanese diplomat in Ottawa, Leonard Chao of the Taipei Economic and Cultural Office, stated that “even if an investigation concludes that these allegations are true and the officers are shown to have contravened out country’s criminal code, the case will be dealt with accordingly by our law enforcement authorities.” "Other than the fact that the ship was Taiwanese, the accused officers (Captain-Shiou Cheng, Chief Officer-Chung-Chih Wu, Second Officer, First Mate, Chief Cook, Carpenter, and Chief Engineer) should be tried in their home state, not the state the crime was committed against. Thus, it is clear that the Republic of China has a right to demand the return of the Taiwanese sailors for the purpose of prosecution for the alleged offenses." It is accepted that states can assert jurisdiction over crimes committed upon their territory, but there is now way in which Romania could claim jurisdiction for the crimes committed against its citizens outside of their territory. In addition, Canada had no valid jurisdiction either to try the case because it occurred on the high seas, but it was felt by the Canadian authorities that Romania and Taiwan would be inappropriate places for a trail. Justice MacDonald noted that “had it not been for lack of jurisdiction, [he] would have committed all of the officers.” The problems that authorities found in pursuing this case typify how “persecution of crimes on the high seas are almost invariably complicated.” Lee Cohen, lawyer for the four Filipino crewmembers, provided enough evidence, by testifying the crewmembers, to prove that the Taiwanese officers had murdered the Romanian stowaways. Nevertheless, the problem of jurisdiction and the ineffectiveness of the extradition treaty discouraged Mr. Cohen. He stated that “it’s open season…[for] stowaways on the high seas. There is a long history of stowaways being murdered on the high seas…[and the Filipinos] lives have been virtually destroyed as a result of coming forward.” The judicial status of this case clearly shows how crimes committed on the high seas are not easily prosecuted. The only way in which the extradition treaty may have come to the fore was through ‘passive personality.’ Passive personality in this case suggests that the “home state of the victim [, Romania,] has some rights.” These rights become significant when the Flag State has no official status, as does Taiwan here according to the Canadian government (aforementioned); these rights give jurisdiction over alleged crimes committed against a state’s nationals that are not within the state’s territory. The latter principle, however, according to the Harvard Research Draft Convention, “was omitted as a basis for jurisdiction on the ground that it was not part of customary international law.” Therefore, for this reason, ‘passive personality’ did not provide Romania with the competence for jurisdiction over the murders of its citizens on the high seas. In sum, even through clear jurisdiction by the Flag State, judging crimes on the high seas is problematic in international law. Romania Vs. Cheng et al. is no exception to this assumption. Civil Case Since the Romanian families of the murdered stowaways were unsatisfied with the proceedings of the extradition hearing, the families sought justice by other legal means. Because Captain Shiou Cheng holds a United States passport, as well as a Taiwanese, the Romanian families sued the Yang Ming Marine Transport Company for $3 Million dollars each in the U.S. District Court in Galveston. American Justice Hilroy Nathanson of Texas presided over the lawsuit. The significance of this case is that the Filipino crewmen were spared from testifying in the lawsuit thanks to Justice Nathanson’s recognition that the lives of their families (back in the Philippines) would be in danger. Conclusion Romania Vs. Cheng has proved to be a very difficult case in international law. Not only for
  • 19. reasons of jurisdiction, extradition, and civil law, but because four countries became involved. Those who testified have successfully applied for refugee status in Canada, but their families have been greatly affected back at home in the Philippines. The author feels, in synch with the opinion of Stephen J. Toope , that Taiwan has the best claim to jurisdiction over the crimes that occurred on board the Maersk Dubai because it is the Flag State of the ship as well as the home of the accused officers. Taiwan is the only country that has competence in this case, although there would be a potential danger to the lives of the plaintiffs if it were held in Taiwan. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx A MASTER IN JAIL!! Hi, My name is Raj Kumar Goel I was detained in Taiwan from 7th February, 1996 to 22nd June 1999. After my release I came to India on 26th June, 1999. It is a great feeling to get back my freedom. I left Delhi on 3rd February,1996 and reached Hongkong the same day. I boarded M.V. "Kasuga 1" on 3rd night/4th February at 1.30 AM. After boarding ship outgoing Captain started handing over. Univan head office being in Hongkong, Superintendents come on board on arrival. M.V. "Kasuga 1" is a container ship owned by NYK Shipping Co. and managed by Univan Ship Management Ltd. The ship's particulars are: Length: 285 metres, full load displacement: 61255 MT and draft: 11.03 metres, full speed: 22.5 knots at 115 RPM and was a twin screw ship. We sailed out of Hongkong on 4th February at 8 PM for Los Angles. Vessel's containers on deck caused a blind sector of 3 to 4 cables from the bridge On 5th February while passing north of Taiwan, at about 2030-2040 hours, I received a call from 3/O, he asked me to come on Bridge. I went up, 3/O told me that he had seen a boat, with no navigational lights, fine on the port bow and he altered course to starboard (about 10 degrees), later the boat got hidden behind the containers and he gave a hard starboard on wheel. We had a course of 57 degrees and when I came up on Bridge the heading was about 95 degrees. After 3/O told me the situation I immediately ran to star board side, saw nothing that side (forward, abeam or quarter). Then I checked port side forward and abeam but saw nothing, on the port quarter I saw a boat with a faint light, I asked 3/O if that is boat he had seen earlier seen, he said yes. I asked him to bring the ship back to course and we continued our voyage. I again checked both sides but found no sign of collision. After 15-20 minutes the port propeller RPM reduced from 115 to 85 and starboard reduced from 115 to 107. I informed the Chief Engineer, he started checking engines and at 2300 Hrs he told me that port propeller seems to be fouled. I contacted my company Univan Ship Management Ltd, they asked Chief Engineer to check certain things in Engine room and continue moving on our course and see in the morning what can be
  • 20. done. After further checking engine room and giving astern movement the ship's speed reduced further so we again called company Superintendent Mr. Perreira and decided to divert the ship to Keelung. On 6th February afternoon we were in Keelung. Before arrival Keelung I reported to the Keelung Authorities about my problem and also contacted with my agent in Keelung. I followed the normal procedure but still Prosecutors say that I wanted to clear propeller fouling at outer anchorage, it is really foolish for Prosecutors to think like this. After we arrived at inner anchorage, divers were called and they removed the fouling (fishing net). On 7th noon before we were ready for sailing Keelung Harbour Authorities came on board and asked to see our Logbook and other records. I fully co-operated with the authorities and showed them all the records, no record was obliterated or changed. I contacted UK P&I club local representative and he also came on board. Keelung Harbour Police took us for questioning and detained us. Keelung Harbour Bureau Maritime department blamed me for not having a quartermaster on bridge along with 3/O and that I should have suspected collision once engine speed reduced. STCW convention to have quartermaster on Bridge came into force somewhere in July 97 so, legally, this does not establishes a criminal negligence. After the incident the name of quartermaster was entered in the logbook on instructions from our company, Univan Ship Management Ltd. Even after knowing that AB Tandel was not on Bridge at the time of alleged collision still he was kept in prison for 2 and half months and in Taiwan for 21 months. When we were in prison our lawyer applied for bail many times but the Prosecutor rejected. It was only when I went on fast for 3 days in the Prison that the District Court agreed to release Tandel on bail. The underwater part of bows of "Kasuga 1" had a round mark (sort of groove) which cannot be made by direct impact/collision. Classification Society NKK surveyor and other Surveyor's reported that the mark was made by a wire chafing with bows. The fishing boat was big and it would have caused a massive hole in ship had there been a direct hit. There were some paint marks (thought to be from boat) on the bows. Our P&I Club felt that the fishing boat collided with some other ship and later on the boat's net wire got caught in the bows of our ship and that is how the net got fouled in Propeller. I was not on Bridge when either of these (collision or wire getting caught) took place so it is very difficult for me comment. One person who survived said they were not fishing at the time of collision, his story made the fishing boat "Stand On" vessel and "Kasuga 1" give way vessel. According to 3/O it is the other way. If the boat had been on our starboard side before alleged collision then the fishing net should have got fouled in our starboard propeller as the net was kept on the after part of Fishing boat. I came to know about the mark on bows when I was in prison, where for 2 weeks I could not meet anyone. Keelung Harbour Maritime Department investigation said it is a collision so Courts had to follow them. The mark on bows is clearly made by wire but they did not accept that, what could I do in such circumstances. All these above facts
  • 21. were, intentionally, overlooked just to punish someone for the collision and those someone happened to be us. The facts got hidden and/or distorted because of casualties. We and our lawyers never considered International Law and so never checked whether it applies to our case. When, Taiwanese ship M.V. "Maersk Dubai" crewmembers were detained in Canada for throwing 3 stowaways in sea and Taiwan protested with Canada on the basis of International Law, did our lawyers realise that our incident also took place in International waters. Taiwan threatened to sever relations with Canada if Taiwanese are not allowed to go to Taiwan on the basis of International Law. The 6 Taiwanese crewmembers returned to Taiwan in March, 1997 but Taiwan Courts/Prosecutors have refused to release us. In July 1996 we were released on bail because of Taiwanese ship problem otherwise we would have been still inside prison. I have never relied on International Law to get released from here. I have again and again tried to tell Courts that I am innocent but no one listens. Judges and Public prosecutors and have no knowledge of ship. Till today they have been writing (indictments and verdicts) that 3/O fixed course with GPS, altered ship via the GPS, we heard some noise from the bottom of ship, boat was dragged for 15 minutes and survivor jumped after 15 minutes from collision time (they also say that the position of collision and where survivor was found is same), it was bright for us to see far off but it was dark for passing ship/boats to rescue survivors. Supreme Court has twice sent the case back to High Court. After 2nd High Court verdict to defend us against Prosecutor's appeal our lawyer gave defense statement to Supreme Court, the Supreme Court Judges did not even see that. You can imagine the biased attitude of court. What Courts and Prosecutors have been saying is mostly wrong, they want some scapegoat for the incident and they have got us. Since the 2 Supreme Court verdicts are contradictory, how can we hope to get justice. On paper Taiwan is a democratic country but actually the Judges/Prosecutors still carry same thinking/views that was prevalent during Marshall Law in Taiwan. Webmaster's Note: Most people just accept the fact that a Master becomming a scapegoat is just part of the responsibilities that come with the rank! I think that is a very lame excuse! No shore person of this level (incidentally they earn much more than a Master so don't give that crap about the salary compensating!) is put in prison for someone else's mistakes! Any seafarer knows that he / she can do nothing to prevent a ship like the Erika from cracking up, and the Master is definitely not to blame if the 3rd officer end up banging a fishing boat which has the audacity to sail at night without its lights! If you think there is nothing you can do, That's upto you . However if you feel something MUST be done, just copy the text below, click SEND below and paste the message with your name, designation and nationality. One, ten, twenty mails can be ignored. Two hundred mails cannot! Five hundred bombarding them
  • 22. can make ears pluck up! ( For your information, more than 900 peole saw this webpage between its birth on 5th Jan 2002 to today - Feb 12th 2002!) Sure - at the end nothing may happen....but at least you will have the satisfaction of Having tried !!! Otherwise, don't lament when YOU land up in a foreign prison (every Master knows how close this possibility always hovers!)!! Please Copy the following and paste in after clicking on SEND Sir / Madam, I strongly disagree with the present contention that a Master is responsible for ALL mistakes committed by other personnel of his ship or ashore or on other ships, over which he has little or no control - regarding navigation, pollution or similar matters. I strongly condemn putting a Master in Jail for such labelled "offences" - in a foreign country. Human rights and Justice is something which must not be denied to the Master of the ship. The IMO must make stricter rules than Article 97 of Unclos to ensure that a Master is tried only in his own country of domicile. Please help us and the seafaring community before it is too late!!! xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx