Seaman Guard Ohio – @TheChennai6. Was Sri Lanka’s own floating armoury scandal to blame?
On November 28th 2017, over four years after their original arrest, the crew and men from the Seaman Guard Ohio were released having been acquitted of all charges by the Indian High Court in Medurai. They were driven from Chennai Central prison having won, not only what one of the men’s sisters described as their “battle for freedom,” but also the battle for justice. It had been a long time coming and a lot of people had made a significant emotional investment in their plight. Many had given time and money in support of the men and their families, some of whom paid a hefty personal price as a result of the lengthy separation. But there is still a suspicion harboured by a few, that men accused of “smuggling” arms cannot really be as innocent as they claimed and if they were, why did the Indians react as they did? Now the men are home and the appeal judgement issued, the men and the families deserve to have those concerns laid to rest. This article sets out the story behind the arrest and incarceration of the men and explains why this was such a miscarriage of justice. I should declare an interest in that I worked with the families and the FCO on a pro-bono basis to coordinate the legal strategy and to interface with the excellent Indian lawyers.
It is important to set the scene and explain the regulatory framework governing the vessel and weapons that were on board. This is critical to an understanding of the charges that the men faced and the injustice they suffered.
The Seaman Guard Ohio is a small vessel and at the time it was seized was registered in Sierra Leone. There are many types of ships on the high seas and each sits in a designated and recogniseable category such as: tanker; bulk carrier, offshore support vessel and the like. There is no category for a “floating armoury” and the Seaman Guard Ohio was built and registered as a ”utility” vessel but so there was no doubt about its function, “SEAMAN G//UARD” was painted down the side in large red and black lettering. The hull was grey and it had the profile of a small naval vessel. Its quasi-military role was unmistakable.
The seaworthiness of most commercial ships is monitored by a number of Classification Societies which as a group form the International Association of Classification Societies (IACS). However, the Seaman Guard Ohio was registered with a smaller Society outside the IACS group whose regulatory standards are perceived as not being as high. This and the fact that the vessel was registered in a small and (in maritime terms) unsophisticated country was to become a serious issue in the eyes of the original Judge in the subsequent criminal case against the men.
The Seaman Guard Ohio acted as a hotel and logistics platform where private maritime security operators would spend their downtime, waiting for commercial ships that were crossing the high-risk area in the Indian Ocean. The ships would stop or at least slow and pick them and their weapons up, usually in teams of three or four, made up of UK, Estonian and Indian nationals. It was operated by Advanfort, a US based Private Maritime Security Company (PMSC) run by Sam Farajallah and one of his son’s, Ahmed. It was classed, insured and it was operating lawfully.
Even today, similar vessels operate in the Red Sea and off Fujairah and many but not all, are approved to be used as armouries by the UK government. Before it merged with another governmental department, the old Department for Business, Innovation and Technology had the responsibility for issuing Trade Control licensesto UK PMSCs which allow them to transfer weapons and other sensitive military equipment between third party countries. Other countries do not have the same robust export control legislation which in the minds of UK PMSCs, creates an unfair playing field because they say that foreign companies (like Advanfort) are not subject to the same level of scrutiny. Advanfort is not subject to the UK legislation in this regard and has no need for a Trade Control license. UK nationals are bound by the legislation but in the maritime sector it is generally accepted that if a company has the necessary licenses then the individuals need not make their own application. Until the Seaman Guard Ohio, the only floating armoury operating in the southern Indian ocean (a key hub for vessels transiting between Europe and the far east) was off Galle in Sri Lanka. Other than the actual crew, all those on board the Seaman Guard Ohio were ex-military and their role was to provide armed protection for their employer’s clients’ commercial ships. It was, and still is, a role recognized and endorsed by the International Maritime Organisation of which most nations are members (including India) and the shipping industry at large. Putting armed guards on ships was and remains a vital part of the successful fight against Somali piracy.
For India, terrorism is a serious threat and thousands of people have died through a number of attacks over the past twenty years. The Mumbai attacks in 2008 received the most widespread international attention and they were significant not least because the perpetrators arrived by boat. In terms of international reach it was India’s 9/11. The Indians are very wary of the vulnerability of their coastline and security is an understandable concern exacerbated by the high-profile incident in February 2012 where armed guards (supplied by the Italian Marines) on board the Enrica Lexie are said to have shot and killed two Indian fishermen. Legislation in the form of the Arms Act 1959 bans the importation of weapons into India which includes their territorial waters. There is an important exception where those weapons are said to be part of the ordinary equipment of the vessel in question. However, weapons carried by armed guards on anti-piracy operations on commercial ships go into Indian ports every week. Specific guidelines (which are not backed by any legislation) were issued by the Ministry of Transport to deal with this and detailed how those weapons should be stored and declared ahead of any port visit. It is a straight forward administrative exercise.
At the time of the detention of the vessel in October 2013 the Seaman Guard Ohio had on board 35 assorted weapons and 5682 rounds of ammunition. These were kept on board in a secure armoury and administered by the Team Leader who was an experienced UK ex-military Senior NCO. The weapons were not hidden or secreted on board in anyway which makes the continued references to “smuggling” in this context wrong. Six of the weapons had been manufactured as fully automatic (which are prohibited in India) but they had been professionally converted to single shot and were exported as such. The weapons had been bought (like many others) through a UK based firearms dealer who was licensed by the Home Office to buy and export weapons for sale. Every transfer of weapons from the UK must be underpinned by an End User Certificate (EUC) which is dated and they name the ultimate receiver of the weapons. At the height of the piracy problem there were about 175 PMSCs in existence of which around 75% were UK run although many ended up in offshore jurisdictions such as Malta and Dubai. Significant numbers of weapons were being bought in the UK and Malta in particular and exported to Djibouti before being distributed to armouries in or off the littoral countries around the Indian Ocean. As an aside, it may surprise many that no-one knows the actual number of weapons that are in circulation and the best estimate is between 10,000 and 15,000. There is no central record of who has those weapons which have in some cases been ditched overboard to avoid port regulations and in others, lent to third party companies which makes keeping track of them almost impossible.
The Seaman Guard Ohio was operating off southern India and was facing significant logistical challenges. India were determined not to give an exemption to their rule that non-IACS classed vessels could not call at Indian ports. They had already given one exemption in respect of the Seaman Guard Ohio in August 2013 when the vessel called at Cochin. At that time the vessel had no weapons on board but the authorities including Special Branch went on board during that visit and fully understood the function of the vessel. Part of their questioning of the Team Leader related to their interaction with Sri Lanka. India refused to give another exemption. The other obvious resupply port was Galle in Sri Lanka which was already a major hub in the maritime security sector. However, an argument between Advanfort and Avant Garde, the Sri Lankan operators of the only other floating armoury in the area, meant that Sri Lanka was not an option. Avant Garde had reacted aggressively to the presence of the Seaman Guard Ohio and had made it clear that it would only be tolerated if its services were exclusive to Advanfort. In other words, as long as it did not operate in competition with Avant Garde itself. But with Avant Garde’s connections to the Sri Lankan navy and government it was easy to ensure that the Seaman Guard Ohio was denied access to Galle.
In September 2013 the Seaman Guard Ohio managed to foul its propeller when it ran over a fishing net. The vessel proceeded to an anchorage offshore Tuticorin off the southern coast of India to sort it out. It attracted no attention from shore or from the Indian coast guard. Again this is unsurprising. It is a fundamental principle of the international law of the sea that every vessel has the right of innocent passage.It is enshrined in the United Nations Convention Law of the Seaand passage is only regarded as not innocent when it is prejudicial to the peace, good order or security of the coastal state. That can only be determined by looking at the intent of those on board. Armed guards on ships are not acting against the peace of the state simply because they are armed. Innocent Passage includes the right to anchor to take on supplies in the ordinary course of trade.
By the end of the first week in October 2013, the vessel was running critically low on fuel. It could not call into India or Galle and the Maldives were too far to the west. A major tropical storm was pounding the east coast of India which made a dash in that direction impossible. The vessel returned to the same anchorage off Tuticorin as it had been at in September, on 10thOctober. It had no intention of entering the port and so attempted to take on fuel supplied by local agents in barrels through a local fishing vessel which took them out to the waiting vessel. This exposed both the Captain of the Seaman Guard Ohio and of the fishing vessel to be charged with an administrative offence of illegal bunkering. Charges that both were cleared of at the original trial when it became clear that the appropriate duty had been paid on the fuel. There was no doubt that the refueling operation was poorly executed but this was about ship management and had nothing to do with the guards who by that time were effectively passengers.
On 12thOctober (following some kind of tip-off) the coast guard came out and ordered the vessel to go into the port. The coast guard was told by the master that the vessel had weapons on board and as we now know when the vessel berthed it was boarded and the weapons and ammunition were impounded. The men were unceremoniously placed into custody and charged with illegal importation of weapons. What had first appeared as a mess up with the “paperwork” had become deadly serious.
The men spent about 7 months in prison until being released on bail in the summer of 2014. Indeed, the High Court originally quashed the charges but that decision was appealed by the police authorities and the matter went to the Supreme Court that found that the matter should go to trial in the local court in Tuticorin. When it did, the local judge was not permitted to have reference to the High Court or Supreme Court decisions. Even so, it was a shock when in January 2015 the men were found guilty of the weapons charges and sentenced to 5 years in prison.
It would take nearly two years before the appeal was heard (in November 2016) in Medurai and another year before the judgement was issued and only then after a further hearing of all the evidence because the Judge had forgotten the submissions made. During that time, significant pressure was put on the judge through applications made to the Lord Chief Justice and the Supreme Court in circumstances where the Captain was suffering cancer and was desperately ill. There was a real concern that the High Court judge would simply endorse the findings of the lower court and allow the matter to be decided by the Supreme Court. To his credit the judge decided that he would assert his own judicial stamp on the matter and overturned the convictions in robust terms which saw the men released before Christmas.
His starting point was to look at the position of the vessel and he found that the evidence of the prosecutors which put the vessel in the territorial waters of India had “no legal basis”. It was submitted that the lower court had misdirected itself and had “…miserably failed to establish and prove the fact that the ship was within territorial waters on the date of interception.” The police had relied on a chart onto which they had drawn the baselines which they said represented the line from which the 12 nautical mile territorial limit was to be measured. The judge dismissed this evidence on the grounds that the police were not qualified to calculate the limits of the territorial waters. A remarkable and fortunate finding. If the vessel was outside territorial waters then the issue of Innocent Passage did not arise. However, the court noted that when considering what was “innocent” the burden was on the prosecutors to prove that the men were acting prejudicial to the peace or security of India. They had not done so. The right to transit the seas of a foreign state was not dependent on a finding that the vessel was in distress as the lower court had found. That was simply wrong on any reading of international law. The judge picked apart the findings of the lower court on the weapons and concluded that the men were entitled to rely on the exception in the Arms Act that the weapons were part of the vessel’s equipment. The state’s own ballistic expert had admitted that the weapons were only semi-automatic and therefore did not fall into the category of prohibited weapons.
After four long years in India of which two and half were spent in prison in Chennai, the Court ordered that the men be released forthwith. The police decided not to appeal. That was in no small part down to the political lobbying done behind the scenes. Within days the men were flown out of the country in time for Christmas.
The frustration for the legal team was trying to determine why the authorities had moved against the vessel and the men and had been so resolute in trying to keep them in prison. But did this go beyond India and was there a Sri Lankan angle that led to their original seizure?
Sri Lanka was well placed to exploit the sudden demand for weapons on board vessels in the Indian Ocean. It was the natural way point on vessels transit across the high risk area either to allow armed guards on or to get off. Villas and hotels in Galle were filled with young men exploiting their own mini “gold-rush” as the need for quality ex-military grew exponentially as the Somali piracy phenomenon grew. Weapons came in by sea and air and to begin with they were kept in the naval armouries ashore. Every movement of kit attracted a hefty fee and that included to the local rangers where weapon training could take place. In the meantime a small land based security firm Rakna Lanka also began investing in the maritime side of the business and by 2011 had begun to provide its own teams. At the same time it signed up with Avant Garde another local security company with connections with the Sri Lankan navy.
What started as 12 foreign owned firearms sitting in the naval armoury grew to thousands and although the navy were making considerable fees in storage costs a proposal was developed to have a floating armoury off Galle. It would be privately run, but of the “transfer fee” (running to US$3500) per transfer 17% would be paid to the navy. As a result the navy provided protection and significantly in the context of the Seaman Guard Ohio also made sure that no other foreign owned armouries could compete certainly in the waters close to Galle. That dominant market position was protected vigorously.
Whether through envy, corruption or perhaps a mixture of the two and with India taking a far greater interest in the whole concept of floating armouries it is perhaps unsurprising that Avant Garde’s monopoly was open to attack. It too was eventually brought to heel with senior figures investigated and charged with corruption. In one very high profile story one the Avant Garde’s vessels was implicated in the attempted assassination of the President of the Maldives. The vessel in that case had over 800 weapons and 60,000 rounds of ammunition which if true is more supportive of the idea that there was to be a coup than anything else.
Like everything to do with weapons and maritime security in Sri Lanka unpicking truth from fiction is impossible. Several people made significant amounts of money and protecting the Sri Lankan model was paramount. When the Seaman Guard Ohio attempted to negotiate a logistics facility in Sri Lanka it was roundly rebuffed. There is no doubt that Avant Garde was worried about the effect of having competition on their doorstep to the extent that assurances were sought that the Seaman Guard Ohio would not provide armoury services for third party maritime security providers. In the absence of those assurances, it would have been easy for Sri Lanka to have raised their concerns about the Seaman Guard Ohio with the Indian coast guard in Kerala, Southern India, and for that to have led to the interception of the vessel.
It is of course speculation but there is something about the Sri Lankan angle that has cast a shadow over this case and been a constant niggle to those involved. It doesn’t explain the following intransigence of the Indian Special Branch who seemed to fight the case to the bitter end. But then they suffered their own losses in the atrocity in Mumbai. There is always the feeling that in India the judicial process is part of the punishment and after four long years the crew and men on board the Seaman Guard Ohio would no doubt readily agree. However, there can be no doubt that the men were never involved in the smuggling of anything and were the victims of an arbitrary system and an initial finding of liability by a judge who was not familiar with the principles of international maritime law.
 See www.advanfort.com – Also one of the Farajallah sons (Mohammed) was one of the original named defendants in the Criminal Action but the charge was never served and he was convicted in his absence.
 Open General Trade Control License (Anti-Piracy).
 S. 7 and S. 25, which formed the main charge against the men.
 S. 45 – the Act shall not apply to “Arms or ammunition onboard any sea going vessel or any aircraft and forming part of the ordinary armament or equipment of such vessel or aircraft.”
 In 1989 the USA and USSR issued a Joint Statement on the Uniform Interpretation of Rules of International Law Governing Innocent Passage which provided as follows: “All ships, including warships, regardless of cargo, armament, or means of propulsion enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorization is required.”
 Article 17.