In developments close on the heels of the tragic killing of two Indian fishermen by Italian armed guards aboard the tanker "Enrica Lexie' off the Indian coast, media sources suggest that the Ministry of Shipping is contemplating making a Flag State endorsement compulsory for merchant ships entering Indian waters if they have armed security guards on board. If declared, the aim will be to ensure that jurisdictional issues are more easily dealt with in future, and that the Government of the country in which the vessel is registered is also accountable for the actions of armed guards aboard their vessels.
The Enrica Lexie incident has enraged many in India; two Italian armed forces personnel shot and killed two fishermen on an Indian fishing boat that came within a hundred metres of the vessel and were mistaken for pirates, according to the Italian version of the story. It appears that no warning shots were fired and no emergency alarm raised before the fatal shooting. The Italians initially claimed that the fishing boat was actually a pirate vessel, but changed their story later, saying that the incident happened in international waters and was therefore outside Indian legal jurisdiction. The Enrica Lexie was diverted by Indian authorities to Kochi; media reports say that two security guards have been now arrested and an investigation is underway.
The common practice for employing armed guards is for a Flag State to give general approval for their carriage, subsequent to which an owner can get into a contractual agreement with a security company without further Flag State intervention. In cases like with the US, where their armed forces provide guards on US registered vessels, rules of engagement may specify that the defence personnel report to a military commander ashore and not the ship's Captain. Many countries including India allow registered ships to have armed guards; the IMO has issued guidelines for their deployment.
If rolled out, the Indian government's mulling of the Flag State endorsement for ships carrying armed guards may be more pertinent to Flags of Convenience- where a ship is registered in one country and owned, managed, crewed and operated by nationals of many other countries. In addition, the contracted security agency may belong to yet another country and individual security guards can come from anywhere. With such complicated operations, jurisdictional issues can be a nightmare. Some Indian government officials say that making the Flag State share responsibility will sort out many of these problems of jurisdiction and liability.
Meanwhile, to add to the confusion, the port of Kochi says that the Enrica Lexie has been moved, as its location was hampering the movement of other vessels in its present location and that crude oil imports were being delayed. Bharat Petroleum Corporation Ltd's Kochi refinery was badly affected and had approached the port for help. The blocked berth was the only one that can take tankers with a 12.5-metre draft, according to reports.
Maritime experts say that jurisdictional issues in incidents involving armed guards will not be easy to handle, Flag State endorsement or not. They point out that many flags are notorious for dragging their feet in any kind of investigation, be it a marine accident or any other. Making Flag States jointly responsible on paper is one thing, experts say; making them cooperate fully will prove extremely difficult in practice.