Taiwan found without high seas jurisdiction in international law with the exception of Article 16 ROC law on EEZ jurisdiction for marine environment violations

1. INDICTMENT ISSUED BY HUALIEN DISTRICT PROSECUTORS OFFICE OF
TAIWAN
File No.: 2009-chen-tzu-ti-1873
Section in Charge: Chieh Section
Defendants : KARIM MOHAMMAD REZAUL
Date of Birth: April 15, 1981
Nationality: Bangladesh
Passport No.: V0149777
currently in custody at Hualien Detention House in Taiwan
: AROZA GLEN PATRICK
Date of Birth: March 17, 1972
Nationality: India
Passport No.: Z1730530
: Eduardo JR, Caballero Mallorca
Date of Birth: January 28, 1978
Nationality: Philippines
Passport No.: RR0098704
Selective Defence Counsels (acting jointly for the above three defendants)
: Cheng Shuei-Wen (Vincent), attorney-at-law
Liu Yang-Hao (Howard), attorney-at-law
The Defendants are accused of the crime of manslaughter by desertion, and
investigation thereof has been closed. The Prosecutor holds that the Defendants should
be prosecuted. The facts and evidence of crime committed, and the related laws are
described hereunder.
Facts of Crime Committed
1. The Defendants AROZA GLEN PATRICK (hereinafter referred to as Captain
AROZA), KARIM MOHAMMAD REZAUL (hereinafter referred to as 2nd Officer
KARIM), and MALLORCA EDUARDO JR. CA BALLERO (hereinafter referred to as
AB MALLORCA) are employees of NYKSM, a Japan-based shipping company. The
Defendants were dispatched to work on TOSA, a Panama registered tanker owned
by NYKSM, as Captain, 2nd Officer, and AB, respectively. In the evening of April 14,
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2. 2009 the Defendants, together with the Chief Officer and the Junior Chief Officer,
steered TOSA which had departed from Port of Daesan, Korea and was heading for
Singapore while navigating along the edge of the Pacific Ocean southward in a
direction of 200 degrees from the north. Captain AROZA was accountable for the
tanker’s safety and prevention of a collision. At 22:15, April 16, 2009, the TOSA
commanded by Captain AROZA shall be entering the fishing traffic located west-
northwesterly to the Senkaku Shoto in accordance with a scheduled route, and thus
TOSA was likely to be confronted with expected or unpredictable emergency; hence,
he should be on the alert. Also, a Captain of a vessel should give an appropriate
order or instruction concisely to prevent a collision, pursuant to International Safety
Management (ISM) Code, Article 5.1.3. However, 2nd Officer KARIM was a new
hand and AB MALLORCA, an assistant to 2nd Officer KARIM, was unable to
substitute for 2nd Officer KARIM, because AB MALLORCA’s experience is
insufficient to compensate for 2nd Officer KARIM’s inexperience. Any order made
should be feasible and executable rather than just attributable to paperwork
conducted with the sole purpose to fool around. Unexpectedly, Captain Aroza
indulged himself with sleeping and therefore chose to give an order in writing, by
putting in the Night Order Book the following words: the crew on duty should
maintain a relatively large safety distance and navigate the tanker along the
scheduled route. The aforesaid words are abstract and vague. Hence, Captain Aroza
failed to exercise a duty of care that entails instructing, in a concrete and definite
manner, a sailor on duty as to what action to take in order to prevent a collision and
thereby ensure safety of navigation. Nor did Captain Aroza let the crew on duty
know under what situation should the sailors on duty ask him to come to the
bridge/steering room to steer the tanker personally or to appoint a competent crew
to steer the tanker, so as to prevent a collision, but simply went to the Captain’s
cabin to take a rest therein.
2. At 23:00, April 16, 2009, 2nd Officer KARIM and AB MALLORCA took over the
Junior Chief Officer’s shift so that 2nd Officer KARIM started to steer the tanker in
the steering room and AB MALLORCA started to work as a lookout man and
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3. operate the helm as instructed by 2nd Officer KARIM. At the moment when he took
over the Junior Chief Officer’s shift, 2nd Officer KARIM knew that plenty of moving
or stationary vessels were found at the sea about 9 nautical miles in front of TOSA,
and the Junior Chief Officer told 2nd Officer KARIM that the ARPA radar installed
on TOSA had long been automatically receiving AIS information “two China
registered fishing boats (ZHEYUYU 1998 and ZHUYUYU 4195), Targets A and B for
short”, and that two other vessels, namely Taiwan registered fishing boats Shin
Tomg Chyuan No. 82 (Target 1 for short) and Shin Tomg Chyuan No. 86 (Target 2
for short), had been manually locked as targets. During the period of time he was on
duty, 2nd Officer KARIM was the commander of TOSA. The 1972 Convention on the
International Regulations for Preventing Collisions at Sea, Rules 8, 15, 16, and Rule
18, Paragraph 1, Item 3 provide: a power-driven vessel underway shall keep out of
the way of a vessel engaged in fishing; a succession of small alterations of course
and/or speed should be avoided; should avoid a close-quarters situation with
another vessel; action taken to avoid a collision with another vessel shall be such as
to result in passing at a safe distance, and the effectiveness of the action shall be
carefully checked until the other vessel is finally past and clear. In fact, 2nd Officer
KARIM was well aware that a large tanker close to a small vessel could bring about
enormous sucking currents that suck and endanger the small vessel. The then
situation was not unpredictable; hence, 2nd Officer KARIM was obligated to take
definite measures promptly to avert danger, for instance, distancing TOSA from its
original course so as to give way to the fishing boats operating at the sea ahead.
Unexpectedly, 2nd Officer KARIM ignored the dangerous situation and failed to
take prompt measures to avoid a collision or decelerate TOSA; hence, 2nd Officer
KARIM put TOSA on the brink of disaster as TOSA was edging toward an alarm
area where a collision between any vessel therein and TOSA was imminent. Still, at
23:38 on the same day, TOSA was advancing recklessly at 11.4 knots at the location
N 25° 48' 32", E 123° 05' 311". By 23:41 on the same day, TOSA had arrived at the
location N 25° 47' 587", E 123° 05' 134", and, although the radar warned that the
locked vessels were approaching TOSA, 2nd Officer KARIM ignored the radar
warning again and failed to take any emergency measures. 2nd Officer KARIM was
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4. surprised to find that TOSA was close to China registered fishing boat Target B just
before TOSA was going to collide with Target B. In an attempt to prevent TOSA
from colliding with Target B, 2nd Officer KARIM ordered AB MALLORCA to turn
the helm to port by 20°, but 2nd Officer KARIM did not consider the likelihood that
turning TOSA to port persistently at the same high speed in an attempt to avoid a
collision would cause TOSA to dash in the direction of Target 1 and Target 2.
Steered by 2nd Officer KARIM, TOSA skirted China-registered fishing boat Target B
by a distance of 0.18 nautical mile therebetween; meanwhile, 2nd Officer KARIM
realized that it was impossible to instantly decelerate or stop TOSA within a short
distance and that TOSA’s collision with fishing boats Target 1 and Target 2 was
imminent. Hence, 2nd Officer KARIM hurriedly ordered AB MALLORCA to make a
quick evasion by turning a large angle with the hard-port helm. Subsequently, at
23:50:02 on the same day, TOSA arrived at the location N 25° 46' 232", E 123° 05' 186",
and thus the bow of TOSA still passed the port bow of Shin Tomg Chyuan No. 86
quickly. Ho Hsi-Chuan, the captain of Shin Tomg Chyuan No. 86, found a short
distance of less than 0.095 nautical miles (as indicated by VDR data) between Shin
Tomg Chyuan No. 86 and TOSA and therefore did his level best to attempt to evade
TOSA. However, Shin Tomg Chyuan No. 86 is a large trawler of model CT4-2790
that weighs 99.81 tons, but TOSA has a loaded weight of more than 300,000 tons.
Hence, TOSA is much larger and heavier than Shin Tomg Chyuan No. 86. As a
result, Shin Tomg Chyuan No. 86 could not resist the enormous suction from TOSA;
hence, Shin Tomg Chyuan No. 86 was sucked by the current created by the trail left
behind by TOSA and then hit by the billows generated by TOSA, thus ending up
with an extensible crane broken and the fishing vessel being unstable. Hence, 11
sailors aboard Shin Tomg Chyuan No. 86, namely Chen Chi-Ming, Sun Shih-Chou,
Trisukasih, Magadia Arvin Andaya, Tasiwan, Magadia Fernando Jrandaya, Rasiwan,
Asroni, Muktarudin, Adikin, and Taufikurrohman saw the large TOSA approaching
quickly and Shin Tomg Chyuan No. 86 being destined to be hit by TOSA, and thus
the 11 sailors, who found it too late to put on safety jackets or take any emergency
measures or protective measures, leapt overboard when bare-handed or gripping
float balls or buoys. The 11 sailors afloat had to fight against billows at sea in a life-
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5. threatening predicament in the night. Captain Ho Hsi-Chuan attempted to reverse
Shin Tomg Chyuan No. 86 and aimed a spotlight at the bridge/steering room of
TOSA with a view to sending an alert signal to TOSA. However, Captain Ho Hsi-
Chuan made the endeavor to escape the doom in vain, as he and chief engineer Hsu
Tsung-Wen failed to leap overboard in time but sank together with the capsized
Shin Tomg Chyuan No. 86; meanwhile, 2nd Officer KARIM was well aware that
Shin Tomg Chyuan No. 86 had capsized and fully understood that in accordance
with Article 98 of the United Nations Convention on the Law of the Sea, after a
collision, in so far as he can do so without serious danger to the ship, the crew or the
passengers, to render assistance to the other ship, her crew and her passengers. 2nd
Officer KARIM was also well aware that sailors of Shin Tomg Chyuan No. 86 might
lost overboard after Shin Tomg Chyuan No. 86 had been hit. Unexpectedly, 2nd
Officer KARIM did not continue to use the hard-port helm and search a large area of
the sea on the port side of TOSA for the sailors afloat and endangered so as to fulfill
his legal obligation of rescue; instead, 2nd Officer KARIM ordered AB Mallorca to
switch to starboard helm operation so as to flee the scene of the collision.
3. AB Mallorca followed the instruction of 2nd Officer KARIM to steer TOSA and was
just a sailor who was not empowered to instruct the crew of TOSA to launch a
rescue operation after the accident. Owing to his own limitations and environmental
limitations, AB MALLORCA was unable to take any measures to launch a rescue
operation. Before and during the accident, AB MALLORCA was working inside the
steering room/bridge, that is, taking charge of work related to TOSA, that is,
monitoring and recording weather, sea condition, and visibility, operating the helm,
and steering the tanker. Hence, AB MALLORCA witnessed alarm signals being sent
from the Captain of Shin Tomg Chyuan No. 86 by using a spotlight. At 23:53:53 on
the same day, AB MALLORCA told 2nd Officer KARIM, “the light spot is gone and
out of sight.” In response, 2nd Officer KARIM said, “I don’t think any thing has
happened, do you understand? … nothing happened…” Hence, both AB
MALLORCA and 2nd Officer KARIM were well aware of the accident, and, under
the law, they should have allowed TOSA to stop at the scene of the accident so as to
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6. rescue the drowning sailors, and they should have asked Captain AROZA to come
to handle the accident in the aftermath thereof. Unexpectedly, in an attempt to evade
the liability for the accident, AB MALLORCA, who had conspired with 2nd Officer
KARIM, still followed the instruction, at 23:51 on the same day, from 2nd Officer
KARIM to steer TOSA back to the original course by the hard-starboard rudder,
gradually increase the speed of TOSA from 7.5 knots to 12 knots, change the
direction of TOSA from 52.7 degree to 220 degree, and eventually enable TOSA to
flee the scene of the accident at an accelerated speed. At 00:30 next morning, the 11
sailors, namely Chen Chi-Ming, Sun Shih-Chou, Trisukasih, Magadia Arvin Andaya,
Tasiwan, Magadia Fernando Jrandaya, Rasiwan, Asroni, Muktarudin, Adikin, and
Taufikurrohman were rescued by Shin Tomg Chyuan No. 82 fishing vessel in the
vicinity of the scene of the accident and, luckily, their lives were spared. At 00:47,
April 17, the Coastal Patrol Directorate General (under the Coast Guard
Administration of the Executive Yuan) received the accident report, set up an
emergency response center, and promptly dispatched patrol cruiser Lien-Chiang of
the Northern Sector Flotilla, cruiser RB02 of the Keelung Flotilla, and cruisers 6001
and 10023 of the Su-Ao Flotilla to the scene of the accident to carry out a rescue
operation therein. From 01:45, Japan Coast Guard dispatched CHIKU ZEN (a patrol
vessel equipped with a helicopter) and PS-11 (a civil servant ship staffed with
special rescuers) to help with the search for the missing sailors; however, Ho Hsi-
Chuan, the Captain of Shin Tomg Chyuan No. 86, had been drowned, and chief
engineer Hsu Tsung-Wen were confined to the capsized Shin Tomg Chyuan No. 86
and dead. Hence, both of them were not found by the sailors afloat at sea and the
rescue vessels. Afterward, the Coast Guard Administration made reference to data
provided by the Ministry of National Defense, Ministry of Transportation and
Communications, and Japan Coast Guard and thereby determined that TOSA, a
Panama-registered tanker, was suspected to be accountable for the accident. Hence,
at 08:20, April 17, at a location about 55 nautical miles northeast to Hualien, TOSA
was intercepted by cruiser Hualien and cruiser 10023 dispatched by the Coast Guard
Administration. However, in an attempt to cover up the crime he had committed,
2nd Officer KARIM did not put down the causes of the accident in the vessel's log
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7. book as otherwise required. Accordingly, ignorant of the accident, Captain AROZA
was so confused that he refused to be interrogated by an investigator, thereby
resulting in a stalemate therebetween. In the early morning of April 18, the Coast
Guard Administration was instructed to dispatch cruiser 10029 to lend support to its
counterparts. At 07:05, April 18, cruiser 10029 and cruiser Hualien met. At 07:20,
cruiser 10029 sent a boat to the surround of TOSA to search for evidence, and the
boat discovered a dubious scratch on the left side of the bow of TOSA and found
that the scratch was stained with white paint and the rudder blade was entangled
with fishing net and buoys. In view of this, cruiser 10029 and cruiser Hualien were
prepared to detain TOSA pursuant to Article 16 of the Law on the Exclusive
Economic Zone and the Continental Shelf of the Republic of China but were
eventually unable to board TOSA due to adverse weather. It was not until 08:40,
April 18 did Captain AROZA agree, upon communication with the investigator, to
go to the Port of Hualien to be investigated therein. At 9am, a representative of the
Singapore Branch of Japan-based NYKSM agreed to allow TOSA to enter the
territory of Taiwan to be investigated. At 10am, cruiser 10029 and cruiser Hualien
started to escort TOSA to an anchorage outside the Port of Hualien. At 17:20, a
prosecutor of the Prosecutors Office and Cheng Hsiao-Kuei (the division head of the
Forensic Science Division, Criminal Investigation Bureau) got aboard a cruise of the
Coast Guard Administration to encircle TOSA so as to carry out an evidence
collection operation. Also, the Prosecutors Office appointed a prosecutor to lead
officers of the Coast Guard Administration and officers of the Hualien Harbor
Bureau onto TOSA to conduct maritime and criminal investigation. A total of 17
documents, such as log book, a GPS track record, a navigation chart, a vessel
navigation course record, and an engineer operation record, which were all stamped
by Captain AROZA, were brought back to the Prosecutors Office. In the morning of
April 19, the Hualien Harbor Bureau dispatched a pilot ship to take the Chief Officer
of TOSA, AB MALLORCA, and 2nd Officer KARIM to the Hualien Coastal Patrol
Office for investigation, and an identification officer aboard a small fishing boat
approached TOSA to examine, at a short distance away from TOSA, any marks left
on the surface of the hull of TOSA and took samples of the standard paint on the
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8. hull of TOSA. On April 20, the prosecutors of the Prosecutors Office finished
interrogating 2nd Officer KARIM and AB MALLORCA, and held that 2nd Officer
KARIM and AB MALLORCA had committed the crimes of desertion leading to
other people’s death, causing an accident and fleeing, and involuntary manslaughter.
To ensure subsequent investigation, the prosecutor immediately sent a letter to the
National Immigration Agency under the Ministry of Interior to impose departure
restriction upon 2nd Officer KARIM and AB MALLORCA. At 15:45 on April 21, the
prosecutor dispatched officers to board TOSA to remove the voyage data recorder
(VDR) from TOSA. On April 22, the owners of TOSA hired and dispatched a new
Captain and a new 2nd Officer to work for TOSA, and Captain AROZA alighted
from TOSA so as to be interrogated. On April 24, the prosecutor sent a letter to the
National Immigration Agency under the Ministry of Interior to impose departure
restriction upon Captain AROZA, thereby confining the three defendants’ residence
to Hualien City. During the period of time from 16:13 to 18:47 on April 29, the
prosecutor of the Prosecutors Office led the coastal patrol personnel and
identification personnel of the Hualien County Police Bureau to board TOSA via the
pilot ship again to carry out an evidence collection operation. At 17:05, April 30, a
rescue ship towed the wreckage of Shin Tomg Chyuan No. 86 back to the Port of Su-
Ao. At 18:20, April 30, six divers (two from Su-Ao Coastal Patrol Squadron, and four
from the Lan-Yan Rescue Association) went underwater to collect evidence.
However, fishing nets abound deep down the sea, and thus the divers were unable
to go into the cabin of the sunken Shin Tomg Chyuan No. 86. Afterward, the Army’s
underwater operation squadron lent a helping hand to the evidence collection
operation at the prosecutor’s request, only to find that the attempt to go into the
cabin of the capsized Shin Tomg Chyuan No. 86 was made in vain again. Afterward,
three hoists and a bulldozer were brought in to help with the evidence collection
operation and eventually proved useless to enable the capsized Shin Tomg Chyuan
No. 86 to stand upright. Considering that the crimes committed by 2nd Officer
KARIM, such as desertion leading to other people’s death, are felonies, the
prosecutor successfully petitioned to the court to give a ruling on putting 2nd
Officer KARIM in custody. It was not until 15:44, May 1 were two heavy-duty hoists
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9. deployed to hoist the hull and was air pumped into the hull so that the capsized
Shin Tomg Chyuan No. 86 stood upright successfully and emerged from water to be
afloat. Later, water was drained out of the cabin. The identification personnel of the
Criminal Investigation Bureau and members of a task force of the Coast Guard
Administration found the corpse of Hsu Tsung-Wen in the engine room entrance. At
that point, all the facts and exhibits related to TOSA had been made clear and
verified. On the same day, TOSA was steered by the newly hired crew thereof and
escorted by a cruiser of the Coast Guard Administration so as to depart from the
territory of Taiwan, Republic of China.
4. In response to the complaints made from Chen Chi-Ming, Sun Shih-Chou,
Trisukasih, Magadia Arvin Andaya, Tasiwan, Magadia Fernando Jrandaya, Rasiwan,
Asroni, Muktarudin, Adikin, Taufikurrohman, Ho Huang Hsiu-Hsia, Ho Wen-
Chieh, and Liu Su-Chen, the 6th Offshore Flotilla of the Coastal Patrol Directorate
General (under the Coast Guard Administration, Executive Yuan) handed over this
case to this Prosecutors Office.
Exhibits and the texts of the laws governing the crimes committed are as follows:
1. The checklist of exhibits and facts to be proved are as follows:
No. Exhibits The Facts to be Proved
1 Statements given by 1. The fact that Defendant KARIM was in charge of
Defendant KARIM during navigation of TOSA from 23:00 April 16, 2009 to
the interrogation of the 03:00 April 17, 2009
police and prosecutor. 2. The fact that, at the aforesaid time and place,
Defendant KARIM instructed AB MALLORCA to
evade the fishing boat Shin Tomg Chyuan No. 86
urgently by turning TOSA away therefrom by a
large angle with the hard-port rudder.
2 Statements given by 1. The fact that Defendant MALLORCA was
Defendant MALLORCA instructed, at the aforesaid time and place, by
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10. during the interrogation Defendant KARIM to evade the fishing boat Shin
of the police and Tomg Chyuan No. 86 urgently by turning TOSA
prosecutor. away therefrom with the hard-port rudder.
2. The fact that, at the moment when the accident
happened, Defendant KARIM went to the
platform on the right wing of the steering room of
TOSA to look out the surroundings.
3 Testimony given by 1. The fact that, at the moment when the accident
Defendant AROZA happened, Defendant KARIM should have been
during prosecutor’s aware if a spotlight calling for help had been
interrogation emitted from the fishing boat Shin Tomg Chyuan
No. 86 and fallen on the steering room of TOSA.
2. The fact that TOSA should have received a
Mayday if an electromagnetic distress message
was sent from Shin Tomg Chyuan No. 86 just
before the latter capsized, and thereby was
obligated to rescue the latter.
4 Testimonies given by The fact that the fishing boat Shin Tomg Chyuan No.
witnesses, i.e., the 11 86 was pushed, pressed, and hit by TOSA and
survivors of Shin Tomg eventually capsized at the aforesaid time and place
Chyuan No. 86, including
Chen Chi-Ming, et al.,
during the interrogation
of the police or prosecutor
5 Testimony given by 1. The fact that the fishing boat Shin Tomg Chyuan
witness Huang Jen-Ho, No. 86 was pushed, pressed, and hit by TOSA and
the Captain of the fishing eventually capsized at the aforesaid time and
boat Shin Tomg Chyuan place
No. 78, during 2. The fact that Captain Ho Hsi-Chuan of the fishing
prosecutor’s interrogation boat Shin Tomg Chyuan No. 86 sent out a
Mayday by way of wireless radio at the moment
10

11. when the accident happened
6 Testimony given by 1. The fact that the fishing boat Shin Tomg Chyuan
witness Lee Cheng- No. 86 was pushed, pressed, and hit by TOSA and
Chung, the Captain of the eventually capsized at the aforesaid time and
fishing boat Shin Tomg place
Chyuan No. 82, during 2. The fact that Captain Ho Hsi-Chuan of the fishing
prosecutor’s interrogation boat Shin Tomg Chyuan No. 86 sent out a
Mayday by way of wireless radio at the moment
when the accident happened
7 Testimony given by 1. The fact that the fishing boat Shin Tomg Chyuan
witness Chen Wen-Li No. 86 was owned by the witness Chen Wen-Li
during interrogation of and registered as a Taiwanese fishing boat.
the police and prosecutor 2. The fact that, on April 15, 2009, 13 crew members
of the fishing boat Shin Tomg Chyuan No. 86,
including Captain Ho Hsi-Chuan, steered Shin
Tomg Chyuan No. 86 toward the sea for fishing
8 Testimonies given by The fact that, on April 16, 2009, Defendant AROZA
witnesses Hsu Kuo-Ching who was aboard TOSA put down a wrong
and Chu Cheng-Kuo instruction/order in the night order book
during prosecutor’s
interrogation
9 A record of conversations The fact that Defendants KARIM and MALLORCA
inside the bridge of TOSA were aware that navigation of TOSA had caused the
(23:36:32, [April 16, 2009] fishing boat Shin Tomg Chyuan No. 86 to capsize.
through 00:16:36, [April
17, 2009]) and a
translation thereof
10 The VDR record of TOSA 1. The fact that, to evade a China-registered fishing
boat (Target B), TOSA quickly passed the port
bow of Shin Tomg Chyuan No. 86 while being
spaced apart therefrom by a mere 0.095 nautical
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12. mile at 23:50:02 (16th April 2009).
2. The fact that, given the difference in weight
between TOSA and the fishing boat Shin Tomg
Chyuan No. 86, a distance of 0.095 nautical mile
therebetween was sufficient to cause a strong
sucking current whereby the fishing boat Shin
Tomg Chyuan No. 86 was sucked and
overturned, and in consequence, the fishing boat
Shin Tomg Chyuan No. 86 vanished from a radar
screen of TOSA
11 A report made by the The fact that the hull of the fishing boat Shin Tomg
Criminal Investigation Chyuan No. 86 was damaged.
Bureau, Ministry of
interior on evidence
collected from the
wreckage of the fishing
boat Shin Tomg Chyuan
No. 86
12 A report made by the All the facts about the crime
Keelung Harbor Bureau,
Ministry of
Transportation and
Communications on a
maritime case
13 A certificate of The fact that the fishing boat Shin Tomg Chyuan No.
registration of the fishing 86 was a Taiwanese fishing boat.
boat Shin Tomg Chyuan
No. 86
14 Notes taken by the 1. The fact that, at the moment when the accident
Prosecutors Office on happened, Defendant KARIM should have been
April 19, 2009 and April aware if a spotlight calling for help had been
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13. 29, 2009 regarding emitted from the fishing boat Shin Tomg Chyuan
inspections of TOSA No. 86 and fallen on the steering room of TOSA
2. The fact that TOSA should have received a
Mayday if an electromagnetice distress message
was sent from Shin Tomg Chyuan No. 86 just
before the latter capsized.
3. The fact that functions of the APRA radar installed
in the steering room of TOSA, that is, giving a
warning about an imminent collision and
generating an alert sound, were normal.
15 A schematic diagram of The fact that a pilot on duty on TOSA was always
blind spots surrounding aware of the locations of blind spots of TOSA
the hull of TOSA
16 The Chinese translation of The fact that, immediately before the accident
the 1972 Convention on happened, Defendant KARIM who was in charge of
the International the steering of TOSA was obligated to evade the
Regulations for fishing boat Shin Tomg Chyuan No. 86 as soon as
Preventing Collisions at possible.
Sea
17 Identification Report (No. The fact that chief engineer Hsu Tsung-Wen of the
2009-yi-chien-tzu-ti- fishing boat Shin Tomg Chyuan No. 86 fell into water
0981101361) issued by the and drowned when the said accident happened.
Institute of Forensic
Medicine, Ministry of
Justice
18 Important reporting The fact that the fishing boat Shin Tomg Chyuan No.
records of Fishing Boats, 86 was hit and overturned by TOSA at the aforesaid
kept by the Fishery time and place
Communications Radio
Station of the Su-Ao
District Fishermen’s
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14. Association, at 00:00 on
April 17, 2009
19 The crew list of TOSA at The fact that Defendant KARIM served as a 2nd
the moment when TOSA Officer of TOSA and took part in the voyage at issue
started on a voyage on
April 14, 2009
20 Letter (No. Kuo-tso-lien- The trail left behind by TOSA due to navigation
chan-tzu-ti-0980001063) thereof before and after the accident.
dated April 24, 2009,
issued by the Ministry of
National Defense
2. The Criminal Code, Article 4 expressly provides: If the act or the outcome of a crime
committed occurs within the territory of the Republic of China, the place in which
the crime is committed shall be deemed the territory of the Republic of China. Victim
Hsu Tsung-Wen was killed inside a Taiwanese vessel because of a criminal act
committed by these three defendants, and thus the criminal act should be regarded
as committed within the territory of the Republic of China pursuant to the Criminal
Code, Article 3, second half. Although these three defendants are not citizens of the
Republic of China, the Criminal Code of the Republic of China should be applicable
to these three defendants pursuant to the above provisions. The crimes committed by
2nd Officer KARIM are: involuntary manslaughter pursuant to the provisions of
Criminal Code, Article 276, Paragraph 2; cause an accident and flee (hit and run)
pursuant to the Criminal Code, Article 185-4; desertion and causing other people’s
death for being default of obligation pursuant to the Criminal Code, Article 294,
Paragraphs 1 and 2. The crime committed by AB MALLORCA is: cause an accident
and flee (hit and run) pursuant to the Criminal Code, Article 185-4. The crime
committed by Captain AROZA is: involuntary manslaughter pursuant to the
Criminal Code, Article 276, Paragraph 2. According to testimonies given by
witnesses Hsu Kuo-Ching and Chu Cheng-Kuo who are officials of Keelung Harbor
Bureau, Ministry of Transportation and Communications, during prosecutor
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15. interrogation, international maritime customary practice: in addition to operating the
helm, a sailor shall serve as a lookout man; if an officer is on duty in the steering
room/bridge and has switched to manual steering, the sailor at helm shall be in
charge of operating the helm only; a senior sailor shall follow an order subserviently
rather than take charge of determining the course of navigation. Even if a senior
sailor finds that a command given by an officer on duty is wrong, the senior sailor
shall not be entitled to contesting the wrong command given by the officer on duty.
In other words, a senior sailor only has to follow a superior officer’s orders and
execute the orders. The International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978, or 1978 STCW for short, provides:
a competent seafarer, a helmsman, or a sailor shall operate the helm or look out for
danger in the course of navigation of the vessel, or shall stand guard at the end of a
staircase of the vessel while the vessel was moored to a harbor, and shall follow the
orders given by the Chief Officer, a navigation sailor on duty, or the chief seafarer,
clean/maintain the inside and outside of the hull, machines installed on the deck,
and the living cabin, and prepare for the goods to be loaded or unloaded. This
proves that AB MALLORCA on duty while 2nd Officer KARIM was inside the
steering room can only follow any order subserviently, and that AB MALLORCA
did not have a say, at the moment when the accident happened, regarding the course
in which TOSA navigated, or regarding whether the crew of TOSA should stop
TOSA and start to rescue the other vessel’s sailors who had leapt overboard. Hence,
any assertion that AB MALLORCA had negligently caused Shin Tomg Chyuan No.
86 to be hit and overturned by TOSA was unjustified. Also, 2nd Officer KARIM was
the plenipotentiary pilot for TOSA at the moment when the accident happened. After
the accident, it was 2nd Officer KARIM ordered that TOSA should return to the
scheduled course and leave the scene of the accident. This proves that AB
MALLORCA was not the one committing the offence of deserting the drowning
sailors of Shin Tomg Chyuan No. 86. However, as the aforesaid part arose from the
same facts of crime for which the public prosecution has been instituted against AB
MALLORCA, and thus the Prosecutors Office shall not to give a no-prosecution
sanction to AB MALLORCA. Finally, at the moment when the accident happened,
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16. 2nd Officer KARIM was accountable for the safety of navigation of TOSA.
Unexpectedly, 2nd Officer KARIM was negligent and did not abide by general
maritime rules governing a duty of care exercised when giving commands related to
navigation. Owing to 2nd Officer KARIM’s negligence, fishing boats traveling to and
fro across or working in the sea near TOSA were exposed to a high degree of danger.
In this case, the accident happened because of 2nd Officer KARIM’s gross negligence.
After causing the accident, 2nd Officer KARIM did not consider rescuing
immediately the victims who had leapt overboard and were helpless or sending out
a rescue signal to call for help immediately; instead, 2nd Officer KARIM deserted the
13 victims and fled the scene of the accident. Showing no mercy to the drowning
victims, Defendant KARIM was liable for the death of Captain Ho Hsi-Chuan who
was drowned and buried deep down in the sea and chief engineer Hsu Tsung-Wen
who was confined to the cabin and drowned, and thus Defendant KARIM was
accountable for the predicaments facing the families of Captain Ho Hsi-Chuan and
chief engineer Hsu Tsung-Wen. The statements given by Defendant KARIM was
inconsistent and evasive, not to mention that Defendant KARIM was adamant in his
refusal to admit having committing the crimes, indicating that Defendant KARIM
was indecent. However, considering that Defendant KARIM had taken on the
position of 2nd Officer for only several months and therefore was an inexperienced
2nd Officer, the Prosecutors Office hereby demands ten years of imprisonment for
Defendant KARIM so as to punish Defendant KARIM and protect the safety of the
sea navigation.
3. A public prosecution is instituted pursuant to the Criminal Procedure Code, Article
251, Paragraph 1.
It is submitted to
Hualien District Court of Taiwan
Date: July 16, 2009
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17. Prosecutor Hsueh Chih-Yu
Prosecutor Lin Shih-Chun
The certified copy is a true copy of the original document.
Date: July 16, 2009
Clerk of the Court: Chang Su-Hui
[Affixed with Official Seal of Prosecutors Office of Hualien District Court of Taiwan]
Statutes governing the crimes committed in this case are as follows:
Criminal Code, Article 185-4
(Crime of a driver who causes an accident and flees)
A person who causes injury or death to another person in an accident while driving a
motor-driven vehicle and flees the scene of the accident shall be sentenced to an
imprisonment term between 6 months and 5 years.
Criminal Code, Article 276, Paragraph 2
(Crime of Negligent manslaughter)
A working person who commits the aforesaid crime while working shall be punishable
by a maximum imprisonment term of 5 years, detention, or a maximum fine of three
thousand dollars added thereto.
Criminal Code, Article 294, Paragraphs 1 and 2
(Crime of desertion for being default of obligation)
A person who deserts or declines to give assistance, support, or protection required for
the living of another person incapable of self-rescue or shall be assisted, supported, or
protected under the law or under a contract shall be sentenced to an imprisonment term
between 6 months and 5 years.
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18. A person who commits the offence of desertion and cause a person’s death shall be
sentenced to a minimum imprisonment term of 7 years or a life imprisonment term. A
person who causes aggravated injury to a person by committing the crime of desertion
to the person shall be sentenced to an imprisonment term of between 3 and 10 years.
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