THE ARMED M/V SEAMAN GUARD IS NOT AN AMERICAN REGISTERED VESSEL. THE ARMED CREW IS LARGELY AMERICAN AS IS THE CORPORATE OWNER
THE M/V SEAMAN GUARD OHIO; PHOTO PUBLIC DOMAIN
Update 1/29/2018 :
Crew of Seaman Guard Ohio acquitted by Indian Court read more @ http://www.seatrade-maritime.com/news/asia/breaking-crew-of-seaman-guard-ohio-acquitted-by-indian-court.html
The M/V SEAMAN GUARD OHIO is a privately owned armed patrol vessel used for anti-piracy patrolling and owned by an American corporation AdvanFort. In October of 2013 the ship was impounded and the crew and armed guards arrested by Indian authorities. The general news media reported that India had arrested an American merchant ship. This was fundamentally and legally false. While the ship is owned by an American corporation it is registered in Sierra Leone . Thus Sierra Leone is the "flag state" and that means that there are only three legal systems involved; India's, Sierra Leone's, and International law. America's only interest is in those of the crew who have American citizenship, but none of their acts may be legally attributed to the United States as any sort of respondent superior and the only available legally legitimate response of the United States is the usual consular access to the prisoners. There is no evidence that India has denied in any way such consular access.
While AdvanFort is owned by a United States Corporation, the majority stock holder is not an American citizen, but Arab billionaire/ American resident Samir Farajallah. The company does appear to have some serious maritime security expertise in its senior executive corps. William H. Watson has been president and COO of the company since August of 2012. Mr. Watson formerly was a former Deputy Commissioner of Maritime Affairs and Special Agent with the Office of the Maritime Administration of the Republic of the Marshall Islands.. He also served as the Marshall Islands delegate to the UN Contact Group on Piracy off the Coast of Somalia (CGPCS) as well as coordinated counter piracy and anti-terrorist activities as the maritime security liaison at International Registries, Inc. (IRI). As of September 2012 its advisory board included Charles Dragonette, a retired Senior Commercial Maritime Operations Analyst at the U.S. Office of Naval Intelligence, as well as Rear Admiral Joel Whitehead (USCG-Ret), John A.C. Cartner, a master mariner and maritime and admiralty attorney, and Michael Crye, an attorney and retired Coast Guard Captain. It would seem like the company which runs armed security vessels off of Somalia was well staffed to operate within international and relevant adjacent coastal state law.
However if India's version of events is true and correct as will be tested in an Indian admiralty court the company's compliance program may have run aground within Indian territorial waters. According to Indian authorities the MV Seaman Guard Ohio was intercepted on 12 October 2013 beyond the ICC CSS High Risk Area and within Indian Customs Waters by ICGS Naiki Devi. The vessel was escorted to an Indian port and the 10 crew and 25 guards were interrogated by a federal multi-agency joint investigation team comprising members of the Indian Coast Guard, Indian Navy, Customs, Research and Analysis Wing and the Q Branch of the Intelligence Bureau. According to Indian naval sources the ship had been close to a protected maritime conservation zone, the Gulf of Mannar Marine National Park, a Biosphere Reserve., Apparently concerned fishermen informed Indian coastal police that the ship was carrying armed guards. The ship was spotted via satellite while refuelling. Indian Defense Department spokesmen said that the interception occurred 10.75 nautical miles off Vilangushuli Island.
That would be about 1.25 miles inside India's recognized territorial waters or well within her customs enforcement zone. The navigational issues are among the issues the court will have to sort out. The ship owners have admitted that the ship did not have formal permission to enter Indian waters but did so to avoid Cyclone Phailin and claims they were invited by the Indian Coast Guard. If so, the situation is referred to in admiralty law as "Force Majeure "- a recognized defense against failure to perform all of the administrative requirements for proper entry. The invitation by the Indian Coast Guard would have been quite normal, but never understood as a waiver of all applicable national law related to entry, or pratique (conditions for remaining within the territorial jurisdiction of the local sovereign). The Indian Navy had already received reports that the SEAMAN GUARD OHIO was an armed non government vessel. That alone was probable cause for a boarding but not the primary reason leading to the arrest of the vessel. As Indian authorities took pains to explain the Master had not obtained formal entry for his vessel which had entered under Force Majeure but proceeded to hold communications and exchanges with "hoovering vessels", an illegal action even out side the 12 mile territorial limit in the customs enforcement zone that extends an additional 12 miles out from the territorial sea. Worse, the ship obtained fuel from one of these vessels as confirmed by satellite imagery. Under the circumstances the fuel was likely to be from subsidised diesel, a violation of Indian customs laws. Complicating the case for Force Majeure ultimately Cyclone Phailin had no impact on the area.
So basically we have an arrest of a commercial vessel that provides private anti piracy security within a specially designated zone where such activity is internationally allowed. At the time of the arrest the ship was hundreds of miles off its normal station and inside Indian territorial seas or their customs enforcement zone without formal entry but none the less held "constructive communications" with the shore, without formal entry or pratique. In the process the ship more probably than not took on fuel in an illegal manner. About t he following there should be no doubt:
1. The Indian Navy had every legal right to board a ship in their own territorial sea or customs enforcement zone and indeed the ship was in waters under internationally recognized Indian jurisdiction.
2. The Indian Navy had more than ample "probable cause" for detaining the ship and crew based on the evidence indicating illegal fueling.
3. It will take a more extensive investigation than a navy could do at sea to determine to the standard of proof required for criminal conviction if the transaction did or did not in fact violate Indian Customs laws. Turning the ship and crew over to the court system would be the action expected of any legitimate navy.
4. All actions by the Indian Navy so far have been reasonable, legally correct, and standard practice in the majority of maritime nations, especially English speaking maritime nations.
5. Force Majeure is an accepted defense against informal, unforced entry .
6. Force Majeure is still effective even if the feared conditions do not materialize.
7. A Claim of Force Majeure does not excuse a vessel from violating the customs laws of the host nation.
8. Both Force Majeure and ignorance of the law may be claimed as mitigating factors even though probably disallowed as a defense. A demonstrated lack of criminal intent goes a long ways in reasonable and fair court systems towards mitigating against harsh penalties for people. The Indian court system is as similar to British and American systems as it is possible to find any where in the world.
9. Initial denial of bail for aliens who entered without legal formalities was the norm in the United States (until it became so common that we have serious jail overcrowding issues), why would India be any different?
10. The right to a fair and speedy trial is assured by Indian law, the jailed crew will not be in prison for very much longer before going to trial unless the defense requests a delay.
11. It is highly likely that the Indian court will consider the unintentional nature of the transgressions and deal with the crew in a fair and humane manner
12. We don't know or care to predict what will happen to the ship under Indian law. However the ship is not registered under the American flag so the U.S. Government should have no interest in the ship's fate. It is up to the flag state to protest any mistreatment of its ships.
13. All proceedings will be conducted in a fair and open manner under rules that any British or American admiralty lawyer would recognize.
Our conclusion is simple. Just as we favor letting Russia with its recent history of running kangaroo courts handle the Green Peace affair without outside intervention due to the lawful and even handed way they have acted so far, we certainly see no reason to jump into India's issue. India is a nation with a long history of an independent and fair judiciary within a system that any British or American lawyer would recognize. We believe that India is a reliable policeman for the international community in the Indian Ocean, why would anyone want to intervene in her maritime law enforcement in her own territorial seas. Yes, American seamen are involved, how innocent of wrong doing remains to be seen. But the United States has unfettered consular access to them in prison, and the court they face has an excellent record of up holding human rights and following due process. It is time to let the Indian justice system do its work. The Indian security system in the person of the Navy has already done their job, and they did it fairly, lawfully, and well.