Brother Shot Dead Fishing Tests Armed Guards' Accountability

Nov. 29 (Bloomberg) -- The Italian-flagged Enrica Lexie was sailing off the coast of India on Feb. 15 when two marines protecting a commercial tanker shot at a boat they thought contained pirates. Indian officials say it was an unarmed fishing boat. The shots killed two fishermen on board. The state of Kerala is trying to prosecute the soldiers while Italy has argued in India's Supreme Court that Kerala has no jurisdiction. If the criminal case goes ahead it would be the first attempt to hold armed maritime guards accountable for the deaths of innocent people in an anti-piracy operation. (Source: Bloomberg)

Seventeen-year-old Aguna Xavier breaks down in tears when she talks about her dead older brother. He was shot in February after Italian marines protecting a commercial tanker allegedly mistook him for a pirate off the coast of India, where he fished to earn a living.

Ajeesh Pink took his sisters swimming and told them jokes, she says, bringing levity to a life marred by losing both parents and seeing parts of their village washed away by the 2004 tsunami. After his death, she failed 10th grade.

“It’s all lost now,” says Aguna Xavier, covering her eyes as she sits in a pink plastic chair in her aunt’s house in the town of Erayumanthurai, near India’s southern tip. Another plastic chair holds a photo of her brother, adorned with pink flowers painted in the corners and a tasseled chain.

Nothing can change that, not even the $180,000 she and her sister received from Italy, after which they dropped their civil case against the marines, she says. “Am I happy with the money from the Italians?” she asks. “No, I’m not happy. I want him alive.”

The police of the Indian coastal state of Kerala booked the two Italian marines, who were acting as guards on the Italian- flagged Enrica Lexie tanker, for the murders of Ajeesh Pink, 19, and the fishing boat’s first mate, who used a single name, Valantine. If the criminal case goes ahead in the port city of Kochi, it would be the first attempt to hold armed maritime guards accountable for the deaths of innocent people in an anti- piracy operation, according to two lawyers and an official at the United Nations’ International Maritime Organization, or IMO.

Fishermen Killed

At least eight fishermen from India and Yemen have been killed since 2008 by soldiers assigned to deter pirates or by guards responsible for keeping ship cargos and crews safe, according to government documents. Another Indian fisherman died in July when sailors on the USNS Rappahannock, a U.S. naval supply ship, opened fire on a vessel off the coast of Dubai. The U.S. Navy’s investigation into the shooting hasn’t been completed, said Lieutenant Greg Raelson, a spokesman for the U.S. Fifth Fleet in Bahrain.

The Enrica Lexie case highlights how the $1.8 billion armed response to Somali piracy, while successful in slashing hijackings, has also brought some of its own violence and death to the high seas. It may force ship owners, security companies and governments to define more clearly when force can be used from commercial vessels.

“There was certainly a tragedy here,” says Duncan Hollis, a law professor at Temple University in Philadelphia, who has worked on maritime jurisdiction cases. The challenge is that fighting piracy doesn’t fall under the rules of true armed conflict, nor of traditional law enforcement, he says. “How do you get troops to modulate use of force?”

Global Treaties

Currently no global treaties regulate weapons fire from commercial ships, even as the use of military detachments and private armed guards to protect them on their passage through the Indian Ocean has surged.

Related: Off the Coast of Yemen, a Fishing Boat Faces a Volley of Gunfire

That vacuum, combined with spotty reporting, means there have been no prosecutions in any shooting deaths of fishermen by anti-piracy forces. While a vessel is bound by the laws of its flag state, investigating incidents is often difficult in practice or sometimes simply not done, says Chris Trelawny, the IMO’s deputy director of the maritime safety division.

“The rule of the sea as we know it needs to be re-thought for the 21st century,” says Syam Kumar, a maritime lawyer in Kochi who represented Aguna and her sister in their civil case. Fishermen have been going out into these waters since time immemorial, he says. “The problem is the armed personnel and their suspicions of every small vessel that approaches,” he says.

‘Reasonable Steps’

Clear guidelines must be set for when force can be used on a commercial ship in international waters for its own defense, according to Kumar and Christopher Parry, a former rear admiral in the U.K.’s Royal Navy. Without that, it is impossible to determine whether a good faith effort was made to resolve an incident before using force, and to provide legitimacy for armed guards who have to fire their weapons, Parry says.

The IMO, the UN agency responsible for shipping safety, has issued guidance to flag states, ship owners and security companies which includes taking “all reasonable steps to avoid the use of force.” The guidance isn’t legally binding.

For now, Italy and Kerala are fighting in court over who has jurisdiction.

Jurisdiction Fight

“They shot Indians on an Indian boat, so of course we have the authority to investigate,” says V. Ajith, who was the lead investigating police officer in the case.

Massimiliano Latorre and Salvatore Girone, the marines, were released on bail in May and ordered to remain in Kochi. They declined to comment when approached on the terrace of the Brunton Boatyard hotel in Kochi in October.

Italy argues in an appeal to India’s Supreme Court that Kerala state doesn’t have the right to try the guards because they were on active military duty and therefore have immunity from being tried in a local court. Italy further maintains that Kerala doesn’t have jurisdiction because the incident took place beyond the territorial limit of 12 nautical miles as defined by the 1982 UN Convention on the Law of the Sea. A ruling is expected by the end of this year.

Related Graphic: Mapping the Piracy Wars

The marines fired warning shots against a suspected pirate boat, as prescribed by anti-piracy regulations, because it was suddenly approaching the oil tanker at close range, Italy’s ministry of foreign affairs said in an e-mailed response to questions. The marines should be handed over to be investigated and tried in Italy, it said.

Fighting Piracy

Since 2008, navies from at least 22 countries, including Italy and India, have countered Somali piracy by responding to distress calls, intercepting suspect vessels and escorting merchant ships through the Gulf of Aden.

Italy approved the use of military detachments as extra protection on commercial ships last year, following similar moves by France, Spain and the Netherlands. Under Italy’s law, ship owners must pay the navy for the protection. More than a dozen nations allow shippers to use private armed guards, according to the International Chamber of Shipping.

A third of ships that registered transits in October with the European Union’s Maritime Security Centre - Horn of Africa reported having armed security aboard, up from about 4 percent in February 2011.

The increased show of force has had a dramatic impact. Shipping companies reported between 13 and 17 attacks each month in the first quarter of the year to the International Maritime Bureau or IMB. Those figures slid to nine in April, eight in May, seven in June and only two in the five months since then.

Liability Fears?

However, part of the decline is probably due to ship owners, captains and guards deciding that piracy incidents are best not disclosed, says Michael Frodl, a Washington-based maritime lawyer and chairman of C-Level Maritime Risks, a consultant with clients including ship owners and insurance underwriters.

He says he has seen examples of private marine intelligence companies receiving reports of attacks or suspicious skiffs that aren’t making it onto notices put out by the IMB, or military forces. IMB Director Pottengal Mukundan said at an industry conference on piracy in October that he suspected vessels were suppressing reports, perhaps over liability fears.

“The example of the Enrica Lexie may have taught a perverse lesson to armed guards,” Frodl says. “Not that they should tighten their rules of use of force so as not to mistake innocent fishermen for pirates, but rather, that when they shoot, they keep the incident as quiet as possible.”

Delay Costs

Any deviation or delay in a ship’s crossing can translate into big costs. For example, the Enrica Lexie suffered an estimated $1.17 million in lost earnings during the 2 1/2 months the ship was held by authorities in Kochi, based on the average daily charter rate for a tanker that size. A 30 million rupee- bond, or about $540,000, had to be paid for its release in May, court documents show.

It’s unclear whether such costs were absorbed by the ship’s owner, Naples-based Fratelli D’Amato SpA, or its insurer. Fratelli D’Amato executives didn’t respond to requests for comment.

When the shooting started in the middle of the afternoon on Feb. 15, most of the St. Antony’s 11-member crew were asleep in preparation for a night of fishing for seer fish, according to J. Freddy, the boat’s 30-year-old owner.

Jarred Awake

Freddy says he was jarred awake when a bullet hit the head of 44-year-old Valantine, who also went by Jelestine. The shot brought dribbles of blood from his first mate’s nose and ears, and he slumped forward, hands still gripping the helm.

Freddy called out for everyone to get down as more bullets showered the fishing boat, “like raindrops over our heads,” according to Muthappan Thavanesh, 50, another crewmember.

Ajeesh Pink, who was sitting over the back edge of the boat, was too slow. A bullet hit him on the right side of the chest. As he slid to the deck he cried out, “Mamma, mamma, mamma,” Freddy and Thavanesh say.

Standing to take the wheel and turn the boat away from the merchant ship, Freddy glanced at the stern of the black-and-red tanker as it passed a bit more than a football-field’s length away. “Napoli,” he read, the home port of the Enrica Lexie.

Calling Police

Freddy then used his mobile phone to call a fellow fisherman to warn him of the attack, he says. That friend called the coastal police in Kochi, who in turn called the Indian Coast Guard, he says.

India’s Maritime Rescue Coordination Centre later the same day asked the Enrica Lexie whether it had faced a piracy attack. When the ship said it had, it was asked to come to Kochi port to help the Coast Guard complete the details, Italy’s appeal to the Supreme Court says. Once there, local police detained the ship and arrested the marines for allegedly shooting the fishermen.

The Italian marines fired 20 bullets, says policeman Ajith, who has since been transferred to the city of Kottayam where he is deputy superintendent of police. They told him they thought the boat was filled with Somalis because the people looked black, he says.

“There weren’t any weapons on the St. Antony, just fishing nets and gear,” Ajith says. Of the marines, he says, “I think they acted in good faith, but without proper care and caution.”

‘Targeted Intentionally’

John Churchill, a Catholic priest who is general secretary of the South Asian Fishermen Fraternity and Aguna Xavier’s cousin, takes a darker view. “Why is it that our fishermen seem to be targeted intentionally, directly and purposefully?” he says. “Is it in the minds of the people that target the fishermen that they will have no one to speak for them?”

The Italian marines’ arrest in Kerala created a rift between Italy and India, grabbing headlines in both countries.

Even as Italy’s government pressed its claim the two should be immune from prosecution, in April it offered financial settlements to the families of the two victims and Freddy. They all say they dropped the civil cases against the marines after receiving the funds. The country paid 10 million rupees, or about $180,000 to Valantine’s widow and sons, and the same amount to Ajeesh Pink’s two younger sisters, says Churchill, who negotiated one of the agreements. Freddy says he got 1.7 million rupees in compensation for the loss of his livelihood.

Fishermen March

Italy’s foreign ministry confirmed in an e-mail that payments had been made to the victims’ families, without providing monetary amounts.

Kerala’s fishermen have pressed to keep the criminal case going. T.J. Anjalose, a former Communist Party member of parliament from Kerala and now a trade-union leader, led a series of marches by fishermen in March and April protesting against danger at sea.

The shooting deaths come on top of the dozens of fishermen killed each year when they are run over by commercial ships, says Anjalose, 53. “There have been so many incidents in which fishing boats have been destroyed, nets shredded, people killed; and most aren’t ever investigated at all,” he says. “The government must protect fishermen’s security.”

As the legal battle plays out, India has worked to extend its oversight. In March, it advised merchant ships transiting the country’s exclusive economic zone, which extends 200 nautical miles from the coast, to declare any armed guards on board to India’s navy.

Unnerving Owners

That is unnerving ship owners, says Thomas Winkler, a Danish diplomat who is chairman of an international working group on legal issues involving Somali piracy. They fear they might find their vessels arrested for noncompliance if they don’t report armed guards, or have them forced into port for investigation if they do, he says.

Ferrari SpA, the Italian sports car maker, even weighed in, having two of its cars carry the flag of the Italian navy during the Oct. 28 Formula One grand-prix race in New Delhi. Ferrari’s Fernando Alonso came in second in the race.

“The Italian navy is another one of our excellences in the world,” said Ferrari Chairman Luca Cordero di Montezemolo who is also the head of a political movement called Toward the Third Republic. “This will be our small contribution aimed to see Italian and Indian authorities finding a solution.”

J. Freddy, the St. Antony’s owner and captain, lives in a three-room house with his wife and year-old son. It sits amid a cluster of orange brick buildings erected after the 2004 tsunami on a hill in Poothurai. Red dirt roads nearby are lined with coconut palms and plantations of rubber trees with scarred bark, taps and coconuts in the half-shell to catch the precious sap.

Financial Disaster

Recalling the shooting in October, Freddy says his life has become a financial disaster, even after the Italian payment.

That is because his red-trimmed, white-and-blue boat, remains stuck in a police port, where it’s being held as evidence. It was pulled from the water to dry dock because it had begun to rot. Freddy says he can’t afford to pay the bond price. He’d be afraid to take it anyway, because if it sank, he could be jailed for destroying evidence, he says.

He bought the boat for 2.3 million rupees in 2005, about half in loans from private individuals at an average interest rate of 24 percent. When the fishing was good, covering the 32,000 rupees in interest payments each month wasn’t a problem. Freddy says he made about 150,000 rupees a month, leaving plenty to provide for his family.

Now, falling behind in his payments, and taking out new loans at even higher interest rates as he tries to keep up, Freddy appears unsure and saddened about what to do next.

“I need to get my boat back, fix it and sell it to pay off my debt, but I can’t afford to get it,” he says.

And then there is the fear that the bullets will come again. “I don’t really want to keep fishing now,” he says.

Gathering Crowd

The bullet’s strike blew apart Aguna Xavier’s world. When she heard the news, she screamed. She kept shrieking as she ran from her grandmother’s house, where she had been visiting, to the house of her aunt Janet Mary, a crowd gathering along the way, she says. She and her siblings have lived there since their mother died of an unknown disease in 2006, three years after losing their father to a fishing accident at sea.

She screamed and cried all through the next day, too, she says. When her brother’s body was returned a few days later, Aguna Xavier fainted.

For now, she plans to continue living with her aunt, where she’s working to pass tenth grade again with the help of a tutor. “My parents and brother are all gone, what do you want me to do?” she asks.

Aguna’s aunt, Janet Mary, takes a more pragmatic view. “After they get over the loss of their parents and their brother, I plan to marry them into a better life,” she says.

To contact the reporter on this story: Alan Katz in Paris at akatz5@bloomberg.net.

To contact the editor responsible for this story: Melissa Pozsgay at mpozsgay@bloomberg.net.

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Photographer: Alan Katz/Bloomberg

The St. Antony fishing boat sits in dry-dock in Neendakara, Kerala.

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Photographer: Alan Katz/Bloomberg

The St. Antony fishing boat sits in dry-dock in Neendakara, Kerala. Close

The St. Antony fishing boat sits in dry-dock in Neendakara, Kerala.

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Italian marines Latore Massimiliano, left, and Salvatore Girone are escorted by Indian police outside a court in Kollam on May 25, 2012. Close

Italian marines Latore Massimiliano, left, and Salvatore Girone are escorted by Indian police outside a court in... Read More

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A photograph of Ajesh Pink sits on a chair next to his sister Aguna Xavier in Tamil Nadu, India, on Oct. 3, 2012. Close

A photograph of Ajesh Pink sits on a chair next to his sister Aguna Xavier in Tamil Nadu, India, on Oct. 3, 2012.

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This Feb. 16, 2012 file photo shows the Italian oil tanker Enrica Lexie, left, as an Indian coastguard vessel patrols in waters off India's southern state of Kerala. Close

This Feb. 16, 2012 file photo shows the Italian oil tanker Enrica Lexie, left, as an Indian coastguard vessel patrols... Read More

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This Feb. 15, 2012 file photo shows people standing on a platform near an Indian fishing boat, that came under fire from an Italian oil tanker, in Kollam, southern India. Close

This Feb. 15, 2012 file photo shows people standing on a platform near an Indian fishing boat, that came under fire... Read More

Photographer: Alan Katz/Bloomberg

J Freddy stands holding his son in Tamil Nadu, India, on Oct. 3, 2012. Close

J Freddy stands holding his son in Tamil Nadu, India, on Oct. 3, 2012.

Photographer: Alan Katz/Bloomberg

The St. Antony fishing boat sits in dry-dock in Neendakara, Kerala. Close

The St. Antony fishing boat sits in dry-dock in Neendakara, Kerala.

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