Enrica Lexie and Kerala Mess

Supreme court should have asked the courts why did they allow the fishermen's families to be a party to the case at all. It is a criminal case between State of Kerala and the Italian marines who allegedly shot and killed two fishermen. Again the agreement is  one between the fishermen's families and the Italian government that they will not file any civil suite to get any compensation in case the marines are found guilty. Its legality or illegality is not an issue as it has no connection to the criminal case. Further the Italian Government has told that the payment was only a goodwill gesture. Suppose the Italian Church has given some money to the fishermen on compassionate ground can anyone object to it. It is not proper to blame the poor families if they accepted any money. They would have to wait for years and years to get any compensation from the court if the marines were found guilty of the crime they are accused of. And if no guilt could be established then no money. Now at least they got a decent money the income from which will help them to lead a decent life. And this payment can in no way affect the trial of the marines. The families are in no way connected with the case as they are not witness or anything of that sort. But the case with Freddy the owner of the boat is different. He filed a civil suite against the owners of the ship Enrica Lexie for compensation for the damages happened to his boat St.Antony due to  the shooting. He asked for 72 lakhs and got 17 lakhs and happily signed that he is withdrawing the civil suite. Who will not be happy to get 17 lakhs for a few bullet holes and few scratches on the boat which could be set right with some 5,000 or so. He was so overjoyed and in his enthusiasm told some plain truth much against what the had told to the police. That the boat was driven by Valentine, one of those killed and he does not have a license to drive the boat. Also that there were flashes from the ship and warning shots and still Valentine went ahead. This is something the prosecution cannot expect from its star witness. In fact he had turned to be a hostile witness. So prosecution is changing tack and now want to file charges as per Suppression of Unlawful Activities Act of Maritime Law which has more teeth. Like our former TADA,POTA et al. It will be interesting to see how Government of Kerala wriggle out of this mess and get the marines convicted. Yeh to izzat ki savaal hai. It is a matter of prestige for Kerala Government.

Visitors to Italian prisoners

Hai Mr.Pillai, there is news that apart from the Italian visitors allowed by the Government of Kerala there are others dropping in at will without any formalities. 'Eli' that is rats and 'kothu' that is mosquitoes too visit them. Also it looks that Freddy the owner of the boat got 17 lakhs and he is happy. He seems to have told the Italians that he is not very sure who fired the shots as all the crew in the boat were asleep. Freddy is the star prosecution witness. The holes in the bottom of the boat can now be repaired but the hole in the prosecution will be un-pluggable. The case now may go down like 'The Don' ( why they gave the boat the name Don? It could have been better if it was 'Dawn'.) which went under the sea when hit by MV Prabhu Daya.

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Question to Sampath

Mr.Sampath, this has nothing to do with this article. Since you are an insurance man I want to ask one doubt regarding the Enrico Lexie/ Prabhu Daya affair. If I had your e-mail id I would have written to you directly. I am hearing that the owners, of the two ships involved in two incidents where lives have been lost, are trying to settle the matters by out of court settlement with the families of the killed fishermen. I think it must be civil part of the case. Is it possible to settle the civil case without any reference to the Criminal case about the death of fishermen? How compensation can be paid before the criminal case is settled? Suppose if the case against the alleged killers could not be proved due to something or other then how the payment will be justified? In the case of Enrica Lexie the prosecution has to prove that such and such guns belonging to the marines has fired the fatal shot and killed the fishermen. I think the guns will have to be produced in the court also. Also the prosecution will have to prove conclusively that at the time of incident the ship was at the spot where the shooting has occurred. If the electronic data of the ships positions prove that the ship was not at that place how the marines can be punished? And how the payment will be justified. So too with Prabhu Daya. If it is not proved that the ship was at that spot where the collision has occurred how the ship can be accused of colliding with the boat? The dents and scratches on the hull of the ship could have happened at some other time. The pieces of net could have got entangled when the ship was going through that area where the boat had capsized earlier and the pieces of net were floating. My doubt is can the civil case settled before the criminal one is settled?

Reply to Shyam Kumar

1. • Mr.Shyam Kumar, I am not a person conversant with legal matters and do not have any personal interest in this matter. Just out of curiosity and you being a man of law I an asking these doubts. It pertains to this Enrica Lexie shooting and collision of MV Prabhu Daya with a fishing boat.
     In the case of Prabhu Daya as per reports there has been some sort of understanding has been achieved between the relatives of the fishermen who were drowned and the owners of the ship regarding compensation for the bereaved families. Does it mean that the families will get compensation before the case is settled? The ship collided with the boat which is a criminal act and irrespective of the civil aspect where the compensation is settled the criminal proceedings have to be completed. So is it that the compensation will be paid after the settlement of the criminal case? If the compensation is given before hand and in the end the criminal case could not establish that it was Prabhu Daya which had collided with the boat but some other ships which were also in the vicinity, will it not be a case where the owners of the ship was unjustly made to pay compensation. So will the payment of compensation wait till the criminal case against the ship Prabhu Daya is established? The dents on the ship and portions of net are not conclusive proofs. A ship which had preceded Prabhu Daya could have knocked it and drowned. Some portions of the net could have been floating on the sea and when Prabhu Daya came in the same route could have entangled with its propeller. And the dents could have happened sometimes earlier. Were there any paints which was on the boat sticking on the ship? If Prabhu Daya establishes that it was somewhere else at the time of collision as per the electronic monitoring equipments which all ships should have how the ship can be punished? Settling the civil case before the criminal case is not proper. First the crime should be established I think.
     Now regarding Enrica Lexie. As per the laws you have quoted there cannot be any question about India’s jurisdiction to try the case. Whether the ship was fifty nautical miles from the shore or 250 miles from the shore it is Indian government who should prosecute the case. But here also there are reports of the parties that is the relatives of the killed fishermen and ship’s owners trying to come to an understanding regarding the compensation to be paid to the bereaved family. And I have the same doubts I raised on the affair of MV Prabhu Daya. Here also the the alleged killers have not been yet charged. Investigations are still going on. So I repeat how the compensation can be settled at this stage? The police have taken some guns from the ship some 45 days ago. Still forensic examination is going on. Is it not really scandalous that the police have got the guns suspected to be the ones used for shooting and still could not establish it? Why the police cannot call other experts who are more experienced and competent? Even take help from Scotland Yard or FBI. The guns are yet to be identified. Now if the ship proves from its record that it was some other place at the time of shooting from its electronic data. I think apart from VDR which keeps data of only for 12 hrs at a time there are other electronic navigation equipment which send data of its position, speed and many other things on FM. These data are received by any ship in the vicinity and shore stations which have receiver. If it is proved that the ship was elsewhere the case will have to be closed unsolved. Also it may so happen that the crew of the boat must have got confused about the position and time of shooting. A good defense lawyer will make a mince meat of the illiterate crew. The boat could not have a GPS or the crew would have looked at their watch when the shooting took place. It is not yet time for Kerala government to feel smug. There can be many a slip between the cup and lip.
     Now you have told the pathetic state of the families of the killed fishermen. Yes I agree. BUT what about the soldiers who get killed by the bullets of terrorists in Kashmir. Do the families of those soldiers get such huge sums the families of these fishermen are demanding? If instead of the fishermen getting shot and killed but their boat capsized do they get all these lakhs? Same case for the fishermen of Prabhu Daya. If their boat has capsized in a storm, what the families will get? These families are demanding money just because the other party is rich enough. What about those hundreds who get killed in accidents and like that? What compensation they get. Don’t those get killed also have their poor families of children siblings? I have sympathy for them. But they are just one among millions and they don’t deserve any special sympathy. The whole thing has got all this publicity because the government of Kerala is playing to the gallery.

     Reply

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One Crore Compensation for the fishermen's kin

I am always for the poor and downtrodden. If someone rich tries to exploit I feel very bad. Not that I will go and help him or her always. But I try to. But in this case of this Enrica Lexie I am very much with the 'haves' and not the 'have-nots'. When the families of the killed fishermen ask for one crore compensation from the Enrica Lexie owners I think it is going beyond the limit. It is right that the innocent fishermen allegedly got killed by the marines on the ship. For that they are demanding one crore each. That way how many people get killed everyday due to some accidents? Are they all getting such a sum from the perpetrators of the crime. If a motor car drives over someone and kills him it is murder. Whether it is due to negligence or intentional does not matter. For the families of the killed it is loss of life. Do those families get compensation like this? How many soldiers get killed in Kashmir border and such places? Do the families get compensation? If the very same fishermen had died due to the boat getting capsized in a storm, will they get compensation? Here the government got the ship in their custody and owners can be arm-twisted to cough up the money all this exorbitant demands are being made. And why this one crore? Obviously the fishermen could not have been paying any income tax. So their income has to be below some 1.5 lakhs or so an year. Or monthly some 15,000 at the maximum. A 15 lakhs in bank should fetch that interest. Then the rest of 85 lakhs for the trauma the death has caused? What about the trauma of the families of the soldiers killed, or those killed in accidents, or those killed in the shooting by Kasab and co? Why this families should want to be included in the case against the marines? It is government case. They families can ask the government to provide adequate monetary compensation when the trial is concluded. I think it is the lawyers who must be stepping the demand. I have heard that in US there are lawyers who are called 'ambulance chasers'. They are always on the look out for catching any accident victims and get an authority from them to represent them for case of compensation. They demand a hefty percentage of the compensation from the beneficiary. The demand for compensation should be reasonable. One should not be greedy.

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Hello Mr.Pillai, Both India and Italy are playing to the galleries. When two of its citizen who are innocent are shot by Italians, India will and has to, get upset. My only complaint is that let us know the whole fact before jumping to accuse the marines. Somehow I feel that no one will just shoot someone for target practice and send a hail of bullets at the boat. Let us hear what others on the ship Enrica has to say about the whole incidence. If some boat suspected to be a pirate boat was noticed is it not natural that the person on watch would have alerted everyone? Is he going to sit and smoke some a cigarette with the belief that it is a matter for the marines to handle and others need not bother? So what I am thinking is that others also must have witnessed the happenings. After hearing them let us condemn the marines for their action. Not before that. Also India has taken the words of the boat crew to ascertain the location of the happenings. How far it is reliable? They are illiterate or semi-literate persons. The way they assess the distance must be some crude method of seeing some object on shore. Let us say like the building looks like ones small finger the boat should be 10 miles from shore or like that. I do not think they carry any GPS. And even if they do can you expect them to note down the location when some shooting occurs? Whatever the ships data says it is the authentic record. What I have understood is that apart from the VDR there is some unit in ship which sends continuous data of the position, speed etc to near by ships and shore on FM. Those with receiver, and all ships are bound to have it, would have monitored it. The coast guards also should have the monitor and should have been monitoring the data. So check the data and then say whether it happened in our territorial water or in the contiguous zone or EEZ. But India says it happened in territorial water without quoting any source. Also I am at a loss to know why the ship is required during the trial and should be detained at Kochi or give a bond that it will come to trial as and when required? If a murder happens in a building normally photographs of the place is taken and they are used as evidence. 'The building is never brought to the court.'. If anyone has done some shooting from a train will the train or the compartment detained till the case is over? To me it looks simple harassment for no purpose.

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India and in particular Kerala was puking all the hatred for the white race. Just because the white men ruled us for nearly half a millennium. For that they got, of all European nations the tiny Italy. Turkey is called the 'Sick man of Europe'. But Italy is a runner up to that status. So India could flex its muscles to its hearts content. Here is a foe you need not be afraid of. I seems to have read that India employed a little ruse also to get the Enrica Lexie to Kochi that some pirate boat has been seized and wants to be identified whether it was the boat which was trying to attack the ship. And once the ship was at Kochi the marines were arrested and ship taken and crew and captain told not leave. Even after more than 45 days the search operation and testing of the guns taken from the ship has not been completed. Meanwhile the ship, its captain and the crew are all lying at Kochi. The request of the owners of the ship to release it goes from one court to another in the typical Indian style. And to cap the whole thing, one judge has already pronounced the killing amounted to terrorist act even though charges have not been filed yet. The Kerala people are gleefully waiting to see the prisoners being fried at stake like the savages do when they get a white traveler in the thick African jungles some 100 years back.

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Guptan VeemboorApr 3, 2012 05:09 PM

Mr.Sampath, In today's Times of India I read a news of Indian fishermen who were fishing in Pakistan territorial waters were caught by Pakistan authorities. These types of news about fishermen crossing the boundaries of territorial waters is very common. I would say that it is because the illiterate fishermen do not have any idea where the boundaries are. They don't have any means of knowing it. It is only the gut feeling. Why I am telling is that if the fishermen of the boat St.Antony says that the incident happened in Indian territorial waters it has absolutely no meaning. So the shooting could have happened outside the Indian territorial limit of 12 nautical miles. Beyond this 12 nautical miles the rules are bit grey. They are not absolutely black and white. If it is an act of terrorism then it is clear cut. Any government against whom the terrorist act has been performed it can pursue the perpetrator anywhere. That is why the defense council asked the judge whether the shooting was an act of terrorism. The judge then acted more like a politician rather than a judge. He told that the act in the eyes of the victims family is an act of terrorism.
Guptan Veemboor

Guptan VeemboorApr 3, 2012 05:23 AM

Mr.Sampath, I have many doubts about this whole affair. All the news I could get about this episode is from Indian source and I have a feeling that they are biased towards India. The comments in papers are all anti Italian. My doubts are:-
1. How is that everyone says that the shooting occurred in Indian territorial waters? what is the basis of this assertion? The ship Enrico Lexie would have been continuously transmitting its position and many other details on FM. I forgot the name of the unit but all ships are bound to have it. The data can be received by neighbouring ships and shore which have the receiver.(This is not the VDR which is the equivalent of Black Box of planes) Has this data been received by anyone and is it available so that the position of the ship at the time of occurrence of the shooting can be ascertained. Or are Indian authorities depending on the words of the fishermen for ascertaining the position. Can anyone imagine the illiterate fishermen will be carrying a GPS and would have noted the position of the boat at the time of shooting?
2. The question of shooting. Why people think that the marines are trigger happy and will shoot two innocent fishermen just for fun or target practice? Is it a normal behaviour of a human being? Is it not more probable there should have been some provocation from the side of the fishermen? You must have read of may accidents happening at unmanned railway crossing. It always happens due to utter negligence of the drivers of vehicles who tries to cross the track. Mostly they assume foolishly that they speed well enough to cross before the train reaches the spot and get crushed. Why not something like that could not have happened? The marines have told the boat was approaching ship fast. It could have been that the boat could have been foolishly thinking to cross the path of the ship before it reached the spot. This could have made the marines suspect the boat was a pirate boat coming to attack even though in fact it was trying to avoid it? Why everyone takes the fishermen's version as gospel truth and the white man is lying always?
3. How the judge has expressed his view orally that the whole episode was a terrorist act? The guilt of the accused is yet to be established. Before that how he can say that. That itself is a biased view. And on what account is this shooting a terrorist act?
4. Why this ship and its crew including its captain is held at Kochi harbour indefinitely? Police have been searching the ship some 45 days ago and the ship is under their control that they can search it at any time. They must have questioned the captain and crew and their statements taken. The guns found and taken from the ship were sent for forensic tests 45 days or so ago. Why the tests are not completed and why they insists that the ship cannot be released before the tests are over? If the tests are delayed why the ship owner should suffer losses for keeping the ship idle and also pay berth charges to Cochin Port Trust? And for the purpose of trial what is the necessity of the ship at all? Is not photographs of the places in the ship from where the alleged shots were fired enough. If a murder happened in a building is it not usual to present the photographs as evidence? Nobody brings the building neither the court goes to the building. This is simple harassment of the owners of the ship. As regards the compensation to be given to the killed fishermen the ship's owners were ready to give a bond for 3 crore rupees as asked by the court. Why the change of that decision? What I feel is that the Kerala Government has not any evidence to establish the crime and it is groping in dark and is delaying the whole thing. In the end it will have to withdraw the case for lack of evidence and give a huge compensation to the ship's owners.
Curiously the MV Prabhu Daya was allowed to sail after furnishing a bond for one crore even though four persons were killed when it collided with a boat.

Topsy Turvy: Reply to Mr.Gera