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MV Seaman Guard Ohio

Piracy1 has been put under close scrutiny since the past few years. Pirates have
always been a threat to the smooth functioning of sea trade. They terrorize the
whole concept of peace at sea. One could find a plethora of articles and reported
incidents on piracy. To some extent the success of the movie Captain Phillips could
also be drawn to the fact that surviving a pirate attack could be as tormenting as
any terrorist attack and that issues like piracy is so grave that it directly effects
trade in the whole region. In order to tackle the issue of piracy international trading
community together with IMO has come up with various solutions. One amongst it is
deployment of armed guards on vessels transiting through High risk area 1.
The Deployment of armed guards is one of the most accepted forms of combating
piracy. Statistically the vessels with armed guards on board have registered no
pirate attack till date. There are arguments for and against the deployment of
private armed guards en generale. Notwithstanding the forgoing spat on
deployment of non- flag army professionals, one could view that, in the context of
maritime security ,if professionally trained guards with considerable ex army
experience is engaged by PMSC for handling arms on board the risk level could be
drawn down to a minimum and efficiency in combat would be high . Thus reducing
reckless handling of weapons;
PMSC (Private military & security company), its legal implications and issues faced
by them vary from continent to continent; there are no uniform statutes with regard
to PMSC. To ease down the issue faced by these companies the IMO (International
maritime organization) has come up with circulars as guidance to member countries
to deal with issues pertaining to PMSC. Various MSC circulars have been published
by IMO to regularize and guide the functions of PMSC viz MSC.1 Circ.1443
( Interim guidance to private maritime security companies providing privately
contracted armed security personnel on board ships in high risk area)MSC.1 Circ
1405/Rev.2 revised interim guidance to shipowners ship operators and ship
masters on the use of privately contracted armed security personnel on board ships
in High risk area) MSC-FAL.1 Circ.2 (questionnaire on information on port and
coastal state requirements related to privately contracted armed security personnel
on board ships) MSC.1-Circ.1406-Rev.2 ( Revised interim recommendations for
flag states regarding the use of privately contracted armed security personnel on
board ships in the high risk area) MSC.1 Circ .1339 (Piracy and armed robbery
against ships in waters off the coast of Somalia). These circulars however could be
treated only as guidance to member states and each country again via their
Ministry of Shipping issues certain guidelines in consonance with the IMO circulars
which will have to be followed by Vessels engaged in PMSC duty.

One of the most tormenting and appalling incident took place in India a year back
when MV Seaman Guard Ohio a ship registered with Sierra Leone chartered by the
company Advan registered in USA was arrested by the Indian coast guards off the
coast of Tuticorin (India) for storing arms illegally (Without a license) and illegal
bunkering of fuel within territorial waters of India. The vessel was engaged by the
Company (Advan Fort) as a floating platform for providing accommodation to
Privately Contracted Armed Security Personnel (PCASP) during and in between the
embarkation and disembarkation process. The vessel got arrested when it was
drifting in Indian territorial waters and was definitely in a distress situation for need
of Fuel and food. When the vessel was caught there were arms on board with crew
and guards. Its been more than a year and still the crew and guards and the
captain are stuck in India as the case is yet to be resolved.
The case is such that the Arms and ammunition on board the vessel was not
declared and further the vessel engaged in illegal bunkering in territorial waters.
The charge was under the Indian Arms Act 1958 and Essential commodities act
The vessel was drifting in territorial waters and it was indeed the distress situation
which forced the vessel to enter Indian territorial waters. According to the The
territorial waters, continental shelf, exclusive economic zone and other maritime
zones act,1976. S.4 (1)2 and UNCLOS Articles 18-19 all vessels shall enjoy the right
of innocent passage through the territorial waters so long as it is not prejudicial to
the peace, good order or security of respective countries. In this case the vessel was
drifting and her entering into territorial waters was a forced one due to distress and
as there was no intention to visit Indian port, the captain did not declare the arms
on board (Declaration of arms on board is necessary only while visiting Indian
ports). Furthermore the vessel bearing the flag of Sierra Leone was on PMSC duty
and it holds the license of Sierra Leone to hold arms in the vessel and besides
according to S.45 of the Indian arms act, the provisions of the act do not apply to
arms on board a vessel.
The vessel Seamanguard ohio should not have been charged in the first place for
holding arms illegally as they had express authority from the respective shipping
registry and that the vessel had no intention to anchor or visit any ports in India and
was operating in High Seas and it was indeed the distress situation which made the
vessel to pass through Indian Territorial waters and it was completely an Innocent
passage .
Aggrieved by the situation the company approached the Madras High court (Mariya
Anton Vijay v. State) which had jurisdiction over this matter and a quash order was
given dismissing the criminal charges in the light of the universal concept of
innocent passage and the necessity of entering territorial waters in distress
situation further the Indian Arms act by virtue of S.45 do not apply to arms on board
vessels. At present the charge under essential commodities act persist and hence

the crew captain and guards could not leave the country although freed from police
custody until the case is resolved fully. The quash order of Madras High court was
challenged by Tamil Nadu Police in the Supreme Court of India and at present the
case is pending before the honorable Supreme Court .
United Maritime law Chambers is representing MV Seaman Guard Ohio in the
Supreme Court of India.

UNCLOS 1958-Art-101 piracy contains any of the following acts- Any illegal acts of violence
or detention

2 S.4(1) without prejudice to the provisions of any other law for time being in force all foreign ships
(other than warships including submarines and other underwater vehicles) shall enjoy the right of
innocent passage through the territorial waters explanations- for the purposes of this section, the
passage is innocent so long as it is not prejudicial to the peace, good order or security of India.