COMPULSORY JURISDICTION AT ITLOS & CONNECTED MATTERS

CONTENTS

I. COMPULSORY JURISDICTION AT ITLOS 2

II. APPLICATION OF SECTION 301 OF UNCLOS 1982, Article 2 UNCH & Other Conventions TO TAIWAN 3

III. THE CASE FOR INTERNATIONAL LEGAL PERSONALITY (ILP) OFTAIWAN AS A STATE PARTY 4

IV. HAS THE TIME COME FOR INTERNATIONAL TRIBUNALS TO EXERCISE INHERENT POWER TO DO JUSTICE? THE PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION 7

V. GLOBAL MARITIME COMMUNITY CONTINUES TO RECOGNIZE TAIWAN AS A FLAG STATE - M.T. TOSA CASE 9

VI. SUGGESTED COMPOSITION OF CHAMBER OF SUMMARY PROCEDURE - CASE OF M.T. TOSA 10

VII. What the Indian diplomats have asked for is to “expedite a fair trial.” !!! 12

VIII. NAVIGATION RELATED TECHNICAL INVESTIGATION FLAWS IN INDICTMENT File No.: 2009-chen-tzu-ti-1873 DATED 16 JULY 2009 13

IX. SERIOUS DISCREPANCIES BETWEEN REPORTED NEWS STATEMENTS OF OFFICIALS AND INDICTMENT BY PROSECUTOR 16

X. NYKSM IN VIOLATION OF IMO Resolution LEG.3(91) adopted on 27 April 2006 Guideline VI 12.1 20

XI. TOSA CASE OF 17 APRIL 2009 CONSIDERED UNDER VARIOUS LAWS OF REPUBLIC OF CHINA AND IMPACT OF INTERNATIONAL LAW 31

XII. Taiwan Representation in India 45

XIII. EIGHT REASONS WHY CAPT GLEN AROZA OF INDIA CAN NEVER GET JUSTICE IN TAIWAN 46

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I. COMPULSORY JURISDICTION AT ITLOS

The President of the International Tribunal for the Law of the Sea clarified at Page 13 of The Gilberto Amado Memorial Lecture held during the 61st Session of the International Law Commission at Geneva, on 15 July 2009, "..... the prompt release procedure ..... when based on compulsory jurisdiction, may only be instituted ..... for alleged violation of fisheries legislation of the detaining State and for marine pollution or environmental damage. The prompt release procedure (when based on compulsory jurisdiction) cannot be used in cases of detention or arrest of vessels and crew for other reasons."

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II. APPLICATION OF SECTION 301 OF UNCLOS 1982, Article 2 UNCH & Other Conventions TO TAIWAN 1. In response to reservations of Peoples Republic of China and two others, the Representative of the Republic of China to the United Nations stated that the Republic of China, a sovereign State and Member of the United Nations, had attended the United Nations Conference on the Law of Treaties in 1968 and 1969, contributed to the formulation of the Convention concerned and signed it on 27 April 1970, and that "any statements or reservations to the said Convention that are incompatible with or derogatory to the legitimate position of the Government of the Republic of China shall in no way affect the rights and obligations of the Republic of China as a signatory of the said Convention". In this view of the matter it can be interpreted that R.O.C. Taiwan has unconditionally accepted all "rights and obligations" under the Law of Treaties 1969.

2. Article 4 of the Law of Treaties 1969 which came into force on 27 January 1980 provides that this Convention applies only to treaties which are concluded by States, after the entry into force of the present Convention. 3. UNCLOS 1982 was not ratified by Taiwan, hence it does not, in general, apply to Taiwan. However the Law of Treaties 1969 clearly applies to Taiwan (acceptance dated 27 April 1970 and entry into force 27 January 1980). In view of Articles 30 (4) (b), 38, 63, 73 and 74 of the Law of Treaties 1969, Article 301 of UNCLOS 1982 applies to Taiwan and Taiwan is bound by its unconditional acceptance of "rights and obligations" under the Law of Treaties 1969, regardless of the status of its diplomatic relations with any State Party and regardless of any succession of States. 4. This is in view of "Article 38 Rules in a treaty becoming binding on third States through international custom." which article has been accepted by Taiwan on 27 April 1970. 5. On similar logic Taiwan has all the obligations under its treaties as executed before 25 October 1971 and existing on 1 January 1979 as elucidated in Section 3303 of Taiwan Relations Act 1979. 6. Taiwan is also bound by all its treaty obligations existing on 25 October 1971 including but not restricted to:(a) Paragraph 6 of Article 2 of the Charter of the United Nations relating to non member States.(b) Articles 1, 2 & 3 of the INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO PENAL JURISDICTION IN MATTERS OF COLLISION OR OTHER INCIDENTS OF NAVIGATION BRUSSELS, 10.5.1952 adopted by United Nations with ratification by Republic of China (Taiwan).(c) Article 11 of the International Convention on the High Seas, Geneva 29 April 1958 adopted by United Nations with ratification by Republic of China (Taiwan), reinforcing the legal framework for freedom of navigation on the high seas.

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III. THE CASE FOR INTERNATIONAL LEGAL PERSONALITY (ILP) OF TAIWAN AS A STATE PARTY Introduction: It is well known that Taiwan fulfils the four elements to claim statehood as required under Article 1 of the ‘Montevideo Convention on Right and Duty of States 1933’. However, since 1946,there has been a shift from the earlier test of statehood from effectiveness/capacity to legitimacy/capacity with the Charter of the United Nations laying down that membership of States is to be approved by the UN General Assembly only after approval of the Security Council. In effect a minimum of 9 members of the 15 member Security Council including always the five permanent members — China, France, Russian Federation, the United Kingdom and the United States hold the key to admission of a non member State intending to apply for membership. As the entire territory of China (population 1.3 billion) including Taiwan (population 23 million) is currently claimed by China and also by Taiwan, it is no surprise that China as a permanent member of the Security Council would never permit Taiwan to pass the test of statehood from the current viewpoint of legitimacy/capacity under the Charter of the United Nations. As regards the earlier test of statehood from the viewpoint of effectiveness/ capacity as required under Article 1 of the ‘Montevideo Convention on Right and Duty of States 1933’, two permanent members of the Security Council, China and the United States have been maintaining informal relations with Taiwan, while abstaining from formal diplomatic relations. United States and Taiwan: In all its three Joint US-China communiqués the US acknowledged the Chinese position that Taiwan is part of China. Even so, the US House Subcommittee on Asia and the Pacific chairman Eni Faleomavaega was reported in a Taipei Times, Taiwan article dated 21 March 2009, "US resolution on TRA weakened" as stating that the future of Taiwan was “for people on both sides of the Strait to resolve.... it is the policy of the US to provide Taiwan with arms of a defensive character to maintain the capacity to resist any resort to force or other forms of coercion.....(Taiwan Relations Act 1979 is) vital to relations between the US and Taiwan.” (http://www.taipeitimes.com/News/front/archives/2009/03/21/2003439002 ) China and Taiwan: Taiwan's Cabinet-level Mainland Affairs Council chairwoman, Lai Shin-yuan, was quoted by Taiwan's Central News Agency as saying on 7 August 2009, "Lai reiterated that the two sides should respect the fact that they co-exist in international society and therefore should pursue international cooperation by treating each other with equality and dignity."(http://www.etaiwannews.com/etn/news_content.php?id=1025384&lang=eng_news )

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In an article dated 14 March 2005 "Four-point guideline on cross-Straits relations set forth by President Hu Jintao" on the official website of the Embassy of the People's Republic of China in the Kingdom of Denmark, reporting that Chinese President Hu Jintao set forth a four-point guideline on cross-Straits relations under the new circumstances, while attending a joint panel discussion of China's top advisory body members representing the Taiwan region, it was stated, "Peaceful reunification does not mean that one side "swallows" the other, but that the two sides confer on reunification through consultation on an equal footing." (http://www.fmprc.gov.cn/ce/cedk/eng/zt/AcrossTaiwanStraits/t187246.htm ) "Equality" in Cross Straits Relations: The two reports above indicate that the two sides, China and Taiwan, have been engaging each other in dialogue on cross-Straits relations on an "equal footing" or with "equality and dignity" over the last four years. The Case for Taiwan's ILP as a State Party: A State to be a member State of the UN requires to pass the test of legitimacy/ capacity. However, China, as a permanent member of the Security Council, would never permit Taiwan to pass the test of statehood from the current viewpoint of legitimacy/capacity. That Taiwan has its own set of laws, its own defence forces to guard its borders, and engages in international trade and relations independently of China is no secret. It even has non formal (read non diplomatic) relations with two permanent members of the Security Council, China and the United States. It also has trade relations with China through various private trade bodies. Taiwan briefly exhibited both effectiveness and capacity required of a State from 23 May 1895 to 21 October 1895 when it resisted the Japanese occupation after China gave up its claim to the island in favour of Japan. After the Japanese surrender, from 25 October 1945 till the massacre of 28 February 1947, it was an island province loosely governed by the KMT. After the KMT was defeated on the mainland by the Communists it moved into Taiwan in December 1949 with 600000 troops. The KMT continued to claim to represent the entire territory of China at the United Nations, whereas its writ was limited only to the island of Taiwan, till it was finally expelled from the United Nations on 25 October 1971. Not only was Taiwan stripped of its status as a member State of the United Nations (and member of the Security Council), the UN General Assembly also declared that Taiwan was a province of China (PRC). The status of Taiwan on 25 October 1971 as a State party had no doubt suffered extremely severe, almost fatal, damage, but it still had sizable armed forces fully capable of defending its maritime borders, a constitutional government in full control of the stable and permanent population of the erstwhile island of Formosa, and continuing trade, economic and diplomatic relations with some nations, a few of whom continued as member States of the United Nations. Under the Taiwan Relations Act 1979 the United States provided a shield against any forced re-unification of Taiwan by big brother China. Hence it is apparent that Taiwan has an ILP that has most of the traditionally accepted criteria of a State Party.

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Effect of Denial of ILP as a State Party to Taiwan: It is true that “if international law withholds legal status from effective ... entities, the result is a legal vacuum undesirable both in practice and principle”.[Crawford, ‘The Criteria for Statehood in International Law’, 48 BYIL (1976/77) 93, at 145; Crawford, supra note 16, at 79.]. The International Courts have not dealt with a single case wherein Taiwan has been named as a State Party to the proceedings ever since its expulsion from the United Nations in 1971. That this has created an undesirable legal vacuum is apparent from the fact that no actions were brought against Taiwan for wanton acts against stowaways in 1996 (Maersk Dubai Case) and against seafarers in 1996 (Kasuga I Case) and 2009 (Tosa Case). Recommendation: The Island of Taiwan should be deemed to be a State Party amenable to the jurisdiction of International Courts for violations of human rights and also for threat to use force or actual use of force which is prima facie found to be in violation of international law.

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IV. HAS THE TIME COME FOR INTERNATIONAL TRIBUNALS TO EXERCISE INHERENT POWER TO DO JUSTICE? THE PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION 1. Historically, it has been the foremost duty of the National Federal / Supreme Courts in all Nation States to uphold the Constitution of that Nation State, thereby ensuring the rule of law, which usually includes respect for international law and obligations.

2. The "principle of inherent right and duty of the Court knowing no limitations" [cf. Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, pp. 102-103, dissenting opinion of Judge Urrutia] is "indispensably necessary to the discharge of any (judicial) duties." [United States Commissioner Gore in the Betsey case (1797)]. Inherent power of the Court to do justice, therefore, may not, in a suitable case, be bound by precedent caselaw, procedure, rule or regulation.

3. The similar principle finds approval by many authors on EC Law, [National remedies before the European Court of Justice : issues of harmonisation and differentiation, Oxford 2004, Michael Dougan ] and the time has come, in the interest of upholding the principle of effective judicial protection, to extend this logic to the inherent powers of the emerging international tribunals, in a manner that has not been envisaged by any author upto now. The Federal / Supreme Courts in U.S.A., Australia, India and elsewhere have, in a few cases, not hesitated, in a fit case, to take cognizance of acts amounting to serious violation of constitutional provisions, and have shown the courage to register the case against such violation without any application made by the state/ non State parties involved, through the device of "Court on its Own Motion versus Respondent"

4. In the case of threat to use force by Taiwan Coastguard against M.T. Tosa on 17 April 2009 on the high seas, which has been highlighted in the international media over the last about one week, there has been a denial by the Taiwan Head of Mission in India that Capt Aroza was not jailed (media had only stated that he was detained) but no denial was made by the Taiwan Head of Mission in India of the media reports of the M.T. Tosa being taken under threat of use of force (ships and aircraft) from the high seas to Hualien Port in Taiwan. That no Flag State investigation under international safeguards has been instituted is also not denied. That a criminal trial may only follow the conclusion of Flag State investigation is also not a fact that is open to any kind of dispute. The criminal trial has been set for 20 August 2009 without the provision of a copy of the Flag State investigation being provided to the crew, in total negation of well settled principles of natural justice. The Report of the Master "Tosa - Events of 17.4.09" states "Between 17th /1300 and 18th / 1200: Vessel maintained position, informed CG that Tosa was awaiting instructions from Managers. Also passed on Managers contact details to the CG. During this time CG also threatened the vessel that if Tosa did not follow their orders, the CG vessels and aircrafts would use force for Tosa to proceed to Port. They were insisting that Tosa proceed to Hua Lien immediately."

5. These facts provide the prima facie ground enabling an international tribunal to excercise its inherent power of judicial presumption if it so desire. Is the presumed

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ground serious enough to warrant such interference? In 1956, the International Law Commission, in its draft article 35, followed the approach of the 1952 Convention, stating that its position had the object of protecting ships and their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas, since such proceedings may constitute an intolerable interference with international navigation.[Report of the International Law Commission covering the work of its eighth session (A/3159), article 35 Commentary, para. (1), II YB ILC 1956, at 253, 281]. Let us see what would be the effect if Panama is unable to proceed with the case before an international tribunal prior to 20 August 2009, for any reason whatsoever. The crew, some of whom have already spent upto 3 months in solitary confinement, would be almost certainly convicted in absence of impartial investigation and put in jail for 5 to 10 years or more, thus "such proceedings may constitute an intolerable interference with international navigation," IN FACT, THE 3 MONTHS OF SOLITARY CONFINEMENT OF THE SECOND OFFICER HAS ALREADY CREATED INTOLERABLE INTERFERENCE WITH INTERNATIONAL NAVIGATION.

6. It is for the international tribunal concerned with the law of the sea to decide whether or not, in its opinion such proceedings at Taiwan constitute an intolerable interference with international navigation. If, as is more than likely, the decision is in line with the 1956 position of the International Law Commission, then it may, in its wisdom, in the eventuality of no action or excessive delay by Panama, consider the matter for issuing notice on its own motion to Panama and Taiwan, sui generis (one of a kind or unique issue).

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V. GLOBAL MARITIME COMMUNITY CONTINUES TO RECOGNIZE TAIWAN AS A FLAG STATE - M.T. TOSA CASE

ROC (Taiwan) was a founding member of the United Nations. In 1972, when ROC (Taiwan) was divested of UN membership it also lost its IMO member status. However the global maritime community continues to recognize ROC (Taiwan) as a Flag State even as IMO only lists PRC (China) in its so called "White List." Today ROC (Taiwan) continues to regularly operate its ships to every maritime nation in the World including PRC (China).

IACS is the only non-governmental organisation with a Permanent Representative at the IMO since 1969. IACS is the only non-governmental organisation enabled by IMO to develop and apply rules for classification societies. "IACS MONTHLY REPORT FOR JUNE 2007 OF THE VESSELS THE CLASS OF WHICH HAS BEEN/WAS SUSPENDED FOR MORE THAN 7 DAYS" reveals inspection of eight vessels "Flag (State) - TWN" with "Owner - R.O.C. Taiwan Coast Guard." In fact therefore, and in the eyes of law, R.O.C. Taiwan is indeed a Flag State and it continues to regularly operate its ships to every maritime nation in the World including PRC (China) on the basis that it is a Flag State.

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VI. SUGGESTED COMPOSITION OF CHAMBER OF SUMMARY PROCEDURE - CASE OF M.T. TOSA 1. There has been no case before ITLOS involving a non member State, while there has been one case involving use of force by a member State (M.T. Saiga). 2. As regards cases involving threat to use of force are concerned, the matter of jurisdiction is well settled in international law, in accord with Paragraph 6 of Article 2 of the Charter of the United Nations read with Article 301 UNCLOS 1982 both of which refer to "State Parties" and not , as elsewhere in these conventions, to "member States." 3. However two issues are not well settled in regard to cases involving non member States: (a) Representation by a member of the nationality of the parties in the tribunal involving non member States. (b) Enforcability of a decision of ITLOS upon default by a non member State or non State party. 4. The problem of enforcing a decision of ITLOS upon default by a non member State or non State party was discussed in an article by learned members of ITLOS: "It is open to the injured State to secure compliance by its own means permitted by international law in this regard as also by recourse to more general diplomatic steps. Third States could also validly act in support of the court decision." The Charter of the United Nations entrusts the enforcement role of decisions of the ICJ to the Security Council. UN General Assembly Resolution 55/2 of 8 September 2000 calls upon "Members of the United Nations to 'ensure compliance' with the decisions of the ICJ,........Though not explicitly stated, this applies with equal force to decisions of all international courts and tribunals, whether within the framework of the United Nations system or outside." [The International Tribunal for the Law of the Sea : law and practice, 2001, Rahmatullah Khan; P Chandrasekhara Rao] 5. Representation by a member of the nationality of the parties in the tribunal involving non member States does not seem to have been discussed anywhere. However Paragraph 3 of Article 17 of the Statute of ITLOS, " If the Tribunal, when hearing a dispute, does not include upon the bench a member of the nationality of the parties, each of those parties may choose a person to participate as a member of the Tribunal." shows one workable solution. (a) In the inerests of doing justice by ROC Taiwan, no member of the 5 member Chamber of Summary Procedure should be of any of the nationalities who are in any manner involved in Case M.T. Tosa and hence should NOT be from:

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(i) PRC (which claims Taiwan is a province of PRC)(ii) Panama(iii) India(iv) Bangladesh(v) Philipines(vi) Japan(vii) Singapore(viii) Any other nation as ITLOS may decide (b) One member each may be nominated from amongst the 21 members of ITLOS [excluding the nations listed in sub paragraph (a) above] in accord with Paragraphs 3, 4 & 5 of Article 17 by: (i) ROC Taiwan (non member State / non State party - exact status to be decided later on separately)(ii) Panama jointly with India, Bangladesh, Philipines, Japan & Singapore in accord with Paragraph 5 of Article 17. It would be advisable that Panama leave the selection to the better judgment of ITLOS(iii) Remaining 3 (or 4 if Panama and others so decide) members so as to be in accord with Rules of ITLOS.

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VII. What the Indian diplomats have asked for is to “expedite a fair trial.” !!!

Times News Network reporting on 4 August 2009 in "Indian govt was indifferent to our plight", quoted Capt Raj Goel "On July 19, 1996, the district court, Keelung, sentenced Goel and Dodla to four years imprisonment. Both appealed against the verdict. After many legal wrangles, they were finally set free by the high court on June 22, 1999." (It was only when the matter was raised in Parliament in 1999 that our Government acted - 3 years late.) Wenchyi Ong, Representative (equivalent to Ambassador) of Taiwanese Mission in India told the Deccan Herald a couple of hours ago that what the Indian diplomats have asked for is to “expedite a fair trial.” (SHADES OF 1996) If this is true then the worst nightmare of the Maritime fraternity could well unfold on the 20 August 2009 at Hualien, Taiwan, as a fair trial is impossible without first having an impartial and fair investigation under STCW 1978 and COLREGS 1972 / UNCLOS 1982 and providing one copy to each of the accused crew members. See also attached files detailing this impending grave miscarriage of justice. For "expedite a fair trial" read "expedite a rigged jury trial." While it is the JS(EA) who is dealing with the case, the action has shifted to Panama which does not fall under his jurisdiction. Possibly an important meeting is to take place in next 24 hours at Panama where NYK lawyers in Panama ( De Castro & Robles ?) will meet with Panama Foreign Ministry officials and Panama Attorney General to decide whether or not a case could be filed before ITLOS. As pointed out earlier Transcript of the oral communication between the Tosa and the CG119 - April 17th, 2009 to April 18th, 2009 was stated to be given only "to Taiwanese authorities and to experts appointed by our underwriters" by NYKSM. It has been refused to the defence lawyer for Capt Aroza. IT HAS NOT BEEN CONFIRMED BY NYK EVEN AFTER ASKING THEM WHETHER THIS VITAL TRANSCRIPT HAS BEEN GIVEN TO NYK LAWYERS IN PANAMA. Page 11 of INDICTMENT [File No.: 2009-chen-tzu-ti-1873]- Item 8 of checklist of exhibits and facts to be proved "Testimonies given by witnesses Hsu Kuo-Ching and Chu Cheng-Kuo during prosecutor’s interrogation" to prove "The fact that, on April 16, 2009, Defendant AROZA who was aboard TOSA put down a wrong instruction/order in the night order book" are yet to be provided to Capt Glen Aroza in English translation so that he may know what exactly is the case against him. There is insufficient pressure of the DG Shipping on NYKSM, Mumbai to produce all relevant documents even at this late stage.

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VIII. NAVIGATION RELATED TECHNICAL INVESTIGATION FLAWS IN INDICTMENT File No.: 2009-chen-tzu-ti-1873 DATED 16 JULY 2009 BY Prosecutors Hsueh Chih-Yu AND Lin Shih-Chun of Hualien District Court of Taiwan

Ser Indictment Technical Flaws1 Page 8:

"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."

Page 9:"It was not until 15:44, May 1 were two heavy-duty hoists 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."

Page 12:"11 A report made by the Criminal Investigation Bureau, Ministry of interior on evidence collected from the wreckage of the fishing boat Shin Tomg Chyuan No. 86 The fact that the hull of the fishing boat Shin Tomg Chyuan No. 86 was damaged."

The repeated forcible attempts to hoist the capsized Shin Tomg Chyuan No. 86 to stand upright with a bulldozer damaged the hull. Later the correct method of pumping air into the now damaged but still unbroken hull with proper use of two heavy-duty hoists made the ship float. The denial of joint inspection by both sides makes the charges at Page 12 “hull of the fishing boat Shin Tomg Chyuan No. 86 was damaged” unreliable and unacceptable as evidence in any civilized system of jurisprudence.

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2 Pages 14-15:"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 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,

The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978, as amended in 1995 (STCW-95) was adopted by the International Maritime Organisation (IMO) in 1978 and came into force in 1984. During the late 1980s, it was clear that STCW-78 was not achieving its aim of raising professional standards world-wide, and so IMO members decided to amend it. This was done in the early 1990S, and the amended Convention is now referred to as STCW-95. Whereas the STCW-78 Convention focused almost entirely on knowledge, the emphasis of STCW-95 has been shifted to practical skills and competence underpinned by theoretical knowledge. The standards set by the Convention applies to seafarers of all ranks serving on sea-going merchant ships registered under the flag of a country Party to the Convention. The Convention has already been accepted by 133 countries, including all major labour suppliers and shipping registries but R.O.C. Taiwan does not find a mention here. Between 7 February 2007 and 11 May 2007 eight vessels of R.O.C. Taiwan Coast Guard were got inspected for classification by an IASC member, DNV on specific request of owner. This resulted in a withdrawal of classification of all eight vessels.

This may point to serious deficiencies in the way STCW 78 / STCW 95 is being implemented in R.O.C. Taiwan. CCRS, R.O.C. Taiwan is currently amongst non-IACS Classification Societies. "Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case 39.416 — Ship classification" on 10 June 2009 has opened the way for non IACS members such as Taiwan's CCRS to consult technical data on IACS database by 2011. As a direct result of this decision IACS Quality System Certification Scheme is also being modified so that requirements therein (the Quality Management System Requirements and IACS Unified Requirements, Common Structural Rules, Unified Interpretations and Procedural Requirements) can be applied equally by IACS Members and non-IACS Classification Societies (including non-Applicants for IACS Membership).

It is only in 2011 that any R.O.C. Taiwan entity or investigator would be able to meet the quality standards requisite for navigation investigations of member Flag

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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."

State vessels on the high seas. Hence the so called investigation by witnesses Hsu Kuo-Ching and Chu Cheng-Kuo who are officials of Keelung Harbor Bureau, Ministry of Transportation and Communications, R.O.C. Taiwan do not meet the quality standards for fair and impartial investigation for the Panama Flag State vessel M.T. Tosa.

A proper investigation is sine qua non for proceeding with any criminal action. No proper investigation having been seen to be done makes the criminal trial at Hualien, illegal, arbitrary and against the principles of natural justice, which are recognized by all civilized nations.

It shall therefore be incumbent upon Flag State, Panama to file for prompt release of crew as well as a separate application for provisional measures.

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IX. SERIOUS DISCREPANCIES BETWEEN REPORTED NEWS STATEMENTS OF OFFICIALS AND INDICTMENT BY PROSECUTOR IN TOSA CASE

Ser. Reported News Indictment Remarks1 MOFA

confirms sinking of Taiwanese fishing vesselhttp://www.taipeitimes.com/News/front/archives/2009/04/18/2003441397Jenny W. Hsu and Jimmy ChuangSTAFF REPORTERS, Taipei Times Saturday, Apr 18, 2009, Page 1:

Hansen Hsu, spokesman for the Coast Guard’s Maritime Patrol Directorate General, said "Coast Guard received news of the incident at 12:38am yesterday"

Pages 10 to 11:“The fact that Captain Ho Hsi-Chuan of the fishing boat Shin Tomg Chyuan No. 86 sent out a Mayday by way of wireless radio at the moment when the accident happened”

Page 13:“Important reporting records of Fishing Boats, kept by the Fishery Communications Radio Station of the Su-Ao District Fishermen Association, at 00:00 on April 17, 2009. The fact that the fishing boat Shin Tomg Chyuan No. 86 was hit and overturned by TOSA at the aforesaid time and place.”

Page 6:“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”

1. “Mayday” was sent out at about 2351 hours 16 April 2009 - how is it possible that the Coast Guard’s Maritime Patrol Directorate General received it only at 0038 hours or 0047 hours on 17 April 2009? What was happening from 2351 hours 16 April 2009 to 0047 hours 17 April 2009? Was Fishery Communications Radio Station of the Su-Ao District unable to contact Coastguard?

2. Prosecutor has said the time of first distress call was 0000 hours on 17 April, by Fishery Communications Radio Station, not even a hint to the English media in Taiwan after filing of the Indictment?

3. Assume for a moment that the vessel capsized at 0000 hours near to incident location 25° 46.232'N 123° 05.186'E. Location of recovery of vessel is 25 50’N 123 08’E, a good 4.54 nautical miles away (at its 6 knots full speed) a full 40 minutes away. This may point to capsize of fishing vessel only around 0030 hours. Possible scenario: since Shin Tomg Chyuan No. 86 was closely followed at all times by Shin Tomg Chyuan No. 82 the 11 crew members were immediately rescued after capsize around 0030 hours 17 April 2009. Thereafter (at 0038 hours) the first distress call was sent out by Shin Tomg Chyuan No. 82 and received by Coastguard (as finds a mention in The China Post 18 April 2009) by 0038 hours (as finds a mention in Taipei Times 18 April 2009).

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2 MOFA confirms sinking of Taiwanese fishing vesselJenny W. Hsu and Jimmy ChuangTaipei Times Apr 18, 2009, Page 1:

Association for East Asian Relations Secretary-General Peter Tsai, "fishing boat .... sank at about 12:43am yesterday morning."

Page 6:“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”

1. The sailors were rescued by Shin Tomg Chyuan No. 82 at 0030 hours according to Prosecutor but the boat sank at 0043 hours according to Association for East Asian Relations Secretary-General Peter Tsai, 5 minutes after receipt of information of its “collision” at 0038 hours by the Coastguard as per reported statement of Hansen Hsu, spokesman for the Coast Guard’s Maritime Patrol Directorate General. Did the fishing vessel take 13 minutes to sink after the fishermen jumped off around 0030 hours or did it take 53 minutes to sink after “collision” with the Tosa?

2. Shin Tomg Chyuan No. 78 fishing vessel and Shin Tomg Chyuan No. 82 fishing vessel were in the vicinity of Shin Tomg Chyuan No. 86 fishing vessel, all 3 owned by Chen Wen-Li from 2350 hours 16 April 2009 till 0043 hours 17 April 2009. The Coastguard confirms no distress call was made by any of these three boats till 0038 hours 17 April 2009.

3. Coast guards searching for crewmen from capsized boatThe China Post, April 18, 2009 “The accident, which took place ..shortly after midnight .. the result of a collision between … Hsin Tung Chuan No. 82, and a cargo vessel, the officials said.”

Page 3:“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.”

These facts make it almost certain that the first distress call was sent by Shin Tomg Chyuan No. 82 at 0038 hours on 17 April 2009 and was not only picked up by Taiwan Coastguard but also Japan NAVTEX and Japan Coastguard. It is practically incontrovertible proof that accident took place around 0038 hours 17 April 2009 only and not at 2350 hours on 16 April 2009. Japan Coastguard reached the site 25 50’N 123 08’E at 0215 hours 17 April 2009 while Taiwan Coastguard reached the site 25 50’N 123 08’E at 0247 hours. The prosecutor has alleged “collision” took place at site 25° 46.232'N 123° 05.186'E.

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4 Three Panamanian sailors indictedJimmy ChuangTaipei Times Jul 18, 2009, Page 2: Hsueh Chih-yu, the prosecutor in charge of the investigation said, “He did not send any SOS message and did not stop [the vessel] to rescue the Taiwanese fishermen whose boat was hit and sunk by the Tosa."

Page 4:“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”

Page 13:“The fact that the fishing boat Shin Tomg Chyuan No. 86 was hit and overturned by TOSA at the aforesaid time and place (25° 46.232'N 123° 05.186'E)”

1. The 2nd Officer has reported that after taking evasive action at 2350 hours he observed the lights of the fishing vessel (Shin Tomg Chyuan No. 86) for upto 30 minutes after 2350 hours 16 April 2009 and that it proceeded steadily away having passed Tosa at a distance of about 3 cables.

2. This time difference also ties in with the 4.54 nautical miles between alleged “collision” spot (25° 46.232'N 123° 05.186'E) and the capsize spot. (25 50’N 123 08’E)

3. The timings of distress calls also ties in with the premise that a second incident occurred 40 minutes later that caused capsize 30 minutes later and sinking within about 13 minutes by 0043 hours 17 April 2009.

5 Three Panamanian sailors indictedJimmy ChuangTaipei Times Jul 18, 2009, "Hualien .. Chief Prosecutor Huang Yi-chun said the three Panamanian sailors would be punished according to Taiwan’s Criminal Code because the incident occurred in Taiwan’s territorial waters."

Page 14:“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.”

Prosecution has shifted its stand on jurisdiction from territorial waters to Criminal Code Article 4.Decisions regarding jurisdiction are to be taken strictly in consonance with Criminal Procedure Code, Chapter II JURISDICTION OF COURTS, Articles 4 to 16 and not the Criminal Code Article 4. Taiwan Criminal Procedure Code Article 5, “If an offense is committed on a vessel or an aircraft of the Republic of China outside the territory of the Republic of China, the court of the place where the vessel is registered or from which the aircraft departed or landed after the commission of the offense shall also have jurisdiction.” This applies onboard a vessel flying the flag of Taiwan and could not be extended to any vessel flying the flag of Panama upon the high seas. Surrounding circumstances of illegal detention on high seas do not inspire confidence that fair and proper decision on jurisdiction would be given under said Article 5 (in consonance with international law in the facts and circumstances of this case.)

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6 Three Panamanian sailors indictedJimmy ChuangTaipei Times Jul 18, 2009:

“Hsin Tung-chuan 86 captain Ho Hsi-chuan (何西川) and chief engineer Hsu Chung-wen (許聰文) went missing after the boat sank approximately 41km off the Diaoyutai islands and have been presumed dead.”

Page 13:“chief engineer Hsu Tsung-Wen of the fishing boat Shin Tomg Chyuan No. 86 fell into water and drowned when the said accident happened. ”

Page 16:“chief engineer Hsu Tsung-Wen who was confined to the cabin and drowned”

Page 9:“a task force of the Coast Guard Administration found the corpse of Hsu Tsung-Wen in the engine room entrance.”

A number of well directed internet searches failed to turn up even one news item on recovery of body of Chief Engineer Hsu Tsung-Wen. In an article datelined 19 April 2009 "Investigation turns up dirt on foreign-owned freight ship" Taipei Times, Taiwan reported, "Officials from the Maritime Patrol Directorate General under the Coast Guard Administration said a Japanese diver combed the interior of the sunken ship on Friday evening but did not find the missing men." After the Japanese diver who searched the vessel reported that there were no bodies inside it the vessel was finally recovered and brought to port on 1 May 2009. In an article datelined 6 May 2009 "CGA confirms Panama vessel hit fishing boat" The China Post, Taiwan also did not report recovery of any body including that of Chief Engineer Hsu Tsung-Wen from the recovered vessel. In an article datelined 18 July 2009 "Three Panamanian sailors indicted" Taipei Times, Taiwan reported “Hsin Tung-chuan 86 ..chief engineer Hsu Chung-wen went missing after the boat sank .. presumed dead.” Out of the hat of the prosecutor now comes the report of the prosecutor that:

(1) chief engineer .. fell into water and drowned when the said accident happened (Page 13)

(2) chief engineer .. was confined to the cabin and drowned (Page 16)

(3) a task force of the Coast Guard Administration found the corpse of Hsu Tsung-Wen in the engine room entrance!!! (Page 9)

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X. NYKSM IN VIOLATION OF IMO Resolution LEG.3(91) adopted on 27 April 2006 Guideline VI 12.1

WITHHOLDING CRUCIAL EVIDENCE FROM DEFENCE & GIVING IT TO PROSECUTOR

NYKSM DENIES DEFENSE REQUEST OF TRANSCRIPT OF COMMUNICATIONS OF TOSA, CG 119 & NYKSM BUT GIVES IT TO TAIWAN - TRIAL 3.45 PM 20 AUG 2009

1. There is now a very strong suspicion of NYK Lines, Japan and NYK Ship Management, Singapore (NYKSM) (with unofficial insider confirmation received from more than one insider) having colluded with the Taiwanese local authority in order to obtain prompt release of their captive vessel. (See also Email of NYKSM below). The Indian Master and other crew have been ordered to be in Taiwan criminal court for the trial on 20 August 2009 in what is one big resounding slap on the face of the UNITED NATIONS and a snide message to India that it is "A Nation of one billion weak kneed pushovers", who pretend not to recognise Taiwan, yet allow it to maintain four economic/trade and even one foreign relations office on Indian soil, the same Nation that did not give a damn when its own Capt Raj Goel was detained in Taiwan from 1996 to 1999; Capt Glen Patrick Aroza [DOB 17 Mar 1972 Indian Passport No Z1730530] is now detained and being tried on questionable jurisdiction without proper rules of evidence in a serious insult to Indian Honour, if any is left, as well as an insult to the international community spearheaded by the UNITED NATIONS. As the Panama Ambassador said, while promising to obtain information from his Foreign Ministry, at a meeting on 22 July 2009, this issue can lead to any kind of a grave international situation. The Taiwan Ambassador conveyed that the situation is very sensitive hence he would not meet us, but his deputies would meet us - on 22 July 2009 his deputy promised nothing except to forward our letter to their Foreign ministry. 2. There is no way that the 2nd Officer Mohammad Rezaul Karim [DOB 15 Apr 1981 Bangladesh Passport No. V0149777],could have been put in solitary confinement for 3 months unless (so as to enable Tosa to be quickly released by 1 May 2009) there was some sort of collusion between the Taiwan prosecutor, NYKSM and the Panama investigators (who have yet to make their investigation of 24 April 2009 public) to gloss over the evidence. As the attached papers on Taiwan Justice System show there is in Taiwan "An Adversarial System that Lacks Adversaries." The defence lawyers can not defend; system is so harsh that local defence lawyers dare not defend, and defence lawyers are in awe of the prosecutor who enjoys powers as draconian as the judge. Strong lawyers from outside Taiwan are not allowed to appear even for non nationals being tried in violation of international law. If this is not FORCE what else is? See extracts from War aggression and self defence by Yoram Dinstein, attached. 3. This is a clear and prescient signal to EVERY Master NEVER AGAIN to keep quiet for months under threat/persuasion of ship's managers/ insurers, and on orders of the ship's managers, to let the agents and lawyers take charge and get papers blindly signed on the dotted line. Masters LEARN YOUR RIGHTS & DUTIES (TO CREW) KNOW YOUR MARINE LAW. 4. The threat to use force by the Taiwan Coast Guard is public knowledge. It is no secret as clarified below, however the IMO must IMMEDIATELY order a high level

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investigation, obtain all the records from NYKSM, and enforce its Resolution A.987(24) adopted on 1 December 2005 and Resolution LEG.3(91) adopted on 27 April 2006 for FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT. "ENOUGH IS ENOUGH" The Taipei Times, Taiwan, Saturday, Apr 18, 2009, Page 1 reported "The Tosa however, was stopped by Coast Guard ships about 74km from Hualien at 11:30am yesterday." The China Post, Taiwan, Wednesday, May 6, 2009 reported "The Tosa at first refused to cooperate with the probe and wanted to continue on its voyage to Singapore, the officials said." This lends an extremely certain degree of credence to the Report of the Master, "During this time CG also threatened the vessel that if Tosa did not follow their orders, the CG vessels and aircrafts would use force for Tosa to proceed to Port. They were insisting that Tosa proceed to Hua Lien immediately. Fearing threat to Vessel and crew, Master maintained position and awaited further instructions from Managers, assuring the CG119 of Tosa’s full cooperation at all times." 5. NYKSM has stated that it has handed over the information sought by Preetha Aroza (wife of Capt Glen Aroza) only to Taiwanese authorities and the underwriters and has refused to hand it over to anyone else including Preetha Aroza. NYKSM needs to answer the following questions: (a) Was this data handed over ONLY to the Taiwanese authorities and the underwriters and to nobody else? (b) Why was it not handed over to Panama as Flag State which is mandated to investigate under IMO Resolutions and UNCLOS 1982? Does Japan not recognise UNCLOS 1982? (c) Why was it not handed over to DG Shipping India in terms of reporting regulations accepted by NYKSM in terms of License No 120, as an Indian crew member is involved in the incident? (d) There is a critical requirement of international law to hand over this data to the Flag State so as to prove beyond any doubt the threat to use force made by Taiwan. Why has this not been done?

6. As per IMO Resolutions of 1 Dec 2005 and 27 Apr 2006, "shipowners have an overriding duty to protect the rights of the seafarers employed or engaged," also they must "use all reasonable means to preserve evidence" and they must also "ensure that no discriminatory or retaliatory measures are taken against seafarers." Any action of NYKSM to deny this transcript is patently discriminatory in so far as Prosecutor has been given this transcript but seafarer has been denied the same. 7. The handing over to the Prosecution "Taiwan State" of transcript and denying the same to the Defence "Capt Glen Aroza" is a clear violation of all the three above

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mandates of IMO. This robs him of an opportunity for a fair trial and is unacceptable from any viewpoint, individual, national or international. A State that has been seen to have used threat to use force to abrogate international law can never be expected to provide even a semblance of a fair trial. This denial of transcript also interferes with the capacity of Panama to establish jurisdiction in terms of Article 301 of UNCLOS 1982 before ITLOS (alongwith Article 2(6) of the Charter of the United Nations.) 8. ITLOS.The Rules of the Tribunal provide that it is to give priority to applications for the prompt release of vessels or crews over all other proceedings before the Tribunal. The hearings of the application (normally limited to 2 days) are required by the Rules to commence within 15 days from the first working day after the application is received. The judgment of the Tribunal is then required to be given within 14 days of the closure of the hearing. Of all proceedings before international courts and tribunals, this mechanism is thus exceptionally fast.Only the flag State is entitled to bring prompt release proceedings. {Prompt release cases before the International Tribunal for the Law of the Sea, Christopher Staker (Barrister, 39 Essex Street.) [Sans Frontières, The bi-annual newsletter of SJ Berwin’s International Arbitration Group, Issue 1 2004/2005]} 9. As per IMO Resolution LEG.3(91) adopted on 27 April 2006 and Resolution A.987(24) adopted on 1 December 2005, FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT, "shipowners have an overriding duty to protect the rights of the seafarers employed or engaged," also they must "use all reasonable means to preserve evidence to minimize the continuing need for the physical presence of any seafarer; " and they must also "ensure that no discriminatory or retaliatory measures are taken against seafarers." 10. The handing over to the Prosecution "Taiwan State" of transcript of communications and denying the same to the Defence "Capt Glen Aroza" is a clear violation of all the three above mandates of IMO.

INCIDENT INVESTIGATION & INDICTMENT - TRIAL COMMENCEMENT DATE 20 AUGUST 2009 AT 3.45 pm 11. The Taipei Times, Taiwan, Saturday, Jul 18, 2009, Page 2 reported "Hualien District Prosecutors’ Office Chief Prosecutor Huang Yi-chun said the three Panamanian sailors would be punished according to Taiwan’s Criminal Code because the incident occurred in Taiwan’s territorial waters." 12. But in the Indictment (TRANSLATION) received today, Prosecutor claims jurisdiction is because of "criminal act onboard a Taiwanese vessel" on the high seas and that the TOSA was detained pursuant to Article 16 of the Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China. These are misconceived claims and have no basis whatsoever in national or international law. The

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prosecutor forgets that onboard the Taiwanese vessel on the high seas the Taiwan law applies but onboard the Panama flagged vessel on the high seas Panama law shall apply. 13. Surprisingly the entire blame is thrust upon the crew of TOSA by quoting (incorrectly and with poor knowledge of COLREGS and STCW Conventions) the very Conventions of LOS that Taiwan claims it is not subject to, as regards jurisdiction clause of UNCLOS 1982. 14. When it suited Taiwan in May 1996 they quoted UNCLOS 1982 chapter and verse to release their crew (3 stowaways died after being thrown overboard on 2 separate occasions on the high seas, by Taiwanese nationals, one whose body was sucked into the propellor leaving a trail of blood, in the infamous case of MAERSK DUBAI, a vessel partly owned by the Taiwan Government) from Canada and prevent their repatriation to Romania. 15. The technical correctness of the actions of the 2nd Officer, is apparent to any impartial observer. A last minute navigation error of the Captain of the 'ZHUYUYU 4195' (starboard of 'ZHUYUYU 4195' was to port of TOSA) forced 300,000 ton TOSA to take evasive action, whereby it passed TOSA at about 3 cables as per 2nd Officer (ARPA errors are well known so the 1.8 cables in the indictment is only an ARPA figure which has often been found to be unreliable, eg on 6 September 1996 collision with the fishing vessel Galaxy, on 26 November 1996 collision with the fishing vessel NIMBUS, on 21 June 2000 collision with the fishing vessel Sue M, on 3 August 2000 ATSB issued a formal alert on ARPA limitations for fishing vessels at "http://www.atsb.gov.au/media/36762/masters_bridge_watch.pdf" , on 29 May 2003 collision with the fishing vessel Sassenach, on 21 August 2003 collision with the fishing vessel Jenabar, in December 2004 in Safety Bulletin 05, ATSB formal alert on ARPA limitations for fishing vessels ) ; the 2nd Officer rightly followed up the port manouevre with a starboard manouevre so as to avoid the stern of the TOSA from hitting the 99.81 ton 'Shin Tomg Chyuan No. 86' (Target 2) one of four fishing vessels in the vicinity. It is well established by now that separation of 2 to 5 cables is routine in passing through high concentration of fishing vessels; if at the last minute one of the fishing vessels breaches COLREGS a collision is inevitable; in this case an inevitable collision was avoided with the 'Shin Tomg Chyuan No. 86' on account of the quick thinking of the 2nd Officer. The 2nd Officer is of the firm opinion that the separation was about 3 cables (not withstanding the (unreliable?) ARPA reading of about 1 cable). He observed the 'Shin Tomg Chyuan No. 86' for about half an hour after 2350 hours, and seeing/receiving no distress signals/ transmission proceeded on the voyage, convinced that there was no cause to alert the Captain. This was confirmed in his order to AB Mallorca Caballero Eduardo Jr, [DOB 17 Mar 1972] at about 2354 hours, an order mistakenly alleged by prosecutor to be a proof of guilt. In his handing over report to Chief Officer at 0300 hours (0400 hours ships time) he mentioned the incident in the normal routine. 16. The prosecutors report mentions course of TOSA as 200 degrees before 2338 hours (all timings Taiwan Time), there is a mention of 20 degrees helm to port around 2341 hours to skirt Target B, followed by hard port soon after to avoid Target 1 and Target 2

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around 2350 hours; at 2351 hours from a course of 52.7 degrees with speed 7.5 knots, 2nd Officer ordered hard starboard and sometime thereafter TOSA was on course 220 degrees with speed 12 knots as per report of prosecutor. 17. The indictment of hit and run is misplaced since every action on a modern ship is recorded, there were 4 fishing vessels in close vicinity observing everything, none of them sent out any distress signal or blamed TOSA around 2350 hours (time of incident). The white marker on the attached map shows the incident spot [25 46.232'N 123 5.186'E], Point 1 [25 48.32'N 123 5.311'E] and Point 2 [25 47.587'N 123 5.134'E] show location of TOSA at 2338 and 2341 hours; the Japan Navtex reported capsize location at Point 'S' [25 50N 123 08E] about 4.54 nautical miles from Point of incident. At 6 knots (nearly its full speed) the 'Shin Tomg Chyuan No. 86' would take 45 minutes to cover the distance from incident spot to Point 'S', that is by about 0035 hours the 'Shin Tomg Chyuan No. 86' would have been at Point 'S'. 18. No one radioed the TOSA till 0820 hours, although it was known that it was nearby and there was never any distress call or any other call received onboard TOSA as per record onboard TOSA (SVDR).

19. At 0820 hours CG 119, Taiwan intercepted TOSA and as per report of Master "CG asked for Tosa’s [0100] hrs position, last port and next port." 20. The inquiry about 0100 hours position of TOSA also points to capsize around 0043 hours or so and not at 2350 hours. Master's Report, "At about 1000 hrs: Tosa received a navtex from Japan radio which stated sunken fishing boat in said position and said time. Tosa was approximately 1 hour away from this position, at the alleged time of capsizing of the fishing trawler." The said position (navtex from Japan radio) was later confirmed as 25 50'N 123 08'E by the Master. 21. The prosecutor has also stated in the indictment that, "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" [One Taiwanese fisherman, two Chinese, six Indonesians and two Filipinos.] 22. Even though there were 4 fishing vessels close together, the first reports,are known to have come in only by about 0043 hours. The Taipei Times, Taiwan, Saturday, Apr 18, 2009, Page 1 reported "Tsai said there were no confirmed details about the accident except that it was suspected that a Panamanian-registered cargo ship had hit the fishing boat before it sank at about 12:43am yesterday morning......Tsai said the Japanese search and rescue boats arrived on the scene at about 2:15am, while Taiwanese rescue boats arrived at 2:47am." Force 5 clear weather would not hamper/delay rescue or capsize a 99 ton vessel.

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Chart: Tosa Course from 2338 to 2350 on 16 April 2009 As Per Prosecutor and comparison point of capsize

23. The Prosecutor is claiming there was some superficial damage to the vessel but this could well be accounted for by the process of retrieving the vessel from the ocean floor. The Master was not permitted to inspect the vessel after recovery by the Prosecutor. The press reports state that the Chief Engineers body was found in the engine room but the prosecutors report states that he was "confined to his cabin." Was he locked up inside or was he sleeping is not clear. Post mortem reveals he drowned to death. Is it possible that, on being abused by Captain Ho Hsi-chuan for not doing proper lookout duty at 2350 hours, the crew locked up the Chief Engineer Hsu Chung-wen, killed the Captain, threw him overboard and around 0030 hours at full speed turned hard to port or starboard to capsize the boat, so as to cover their tracks? This would account for the lack of any

25

distress transmission or flares from the 'Shin Tomg Chyuan No. 86' from 2350 hours to 0043 hours, the time of its sinking to the bottom of the sea. The many cases of fishermen being thrown overboard on Taiwanese fishing vessels and captains being killed open such a possibility here as well. 24. It is crystal clear that this boat sank at Point 'S' [25 50N 123 08E] after a gap of more than 45 minutes after safely crossing the TOSA whence it proceeded at a good speed of 5 to 6 knots, to Point 'S', a good 4.54 nautical miles from the alleged incident spot [25 46.232'N 123 5.186'E]. The real causes of its capsize and sinking have not been established and may never be established. The reasons are perhaps poor co-ordination and poor learning from accidents due to communication gaps between various agencies and the lack of an overarching National Transportation Safety Board (adopted by many countries on the advice of the ICAO and IMO) and recommended by Taiwanese scholars who have also advised the setting up of such a body in many published articles. Poor human resource management practices in the fishing industry, 30000 odd fishing vessels, many of old vintage, jostling for space and for trained crew compound the problem. Vessels of PRC and Japan make for a disaster zone with over 600 accidents to Taiwanese fishing vessels annually, many of them not even being reported.

Regards.

Sarvadaman Oberoi

---------- Forwarded message ----------From: Hemant Pathania <hs.pathania@nyksm.com.sg>Date: 2009/7/29Subject: Re: Transcript of the oral communication between the Tosa and the CG119 - April 17th, 2009 to April 18th, 2009To: preetha aroza <preetha.aroza@gmail.com>Cc: glen aroza <glen.aroza@gmail.com>, "michael.demenezes" <michael.demenezes@nyksm.com>

Dear Mrs Aroza,With reference to your message below, please be advised as follows:The SVDR recording has been submitted to the Taiwanese authorities and to experts appointed by our underwriters to analyze the same.We are not in a position to ask them to distribute it to others for the following reasons:(a) The data is now a part of the legal proceedings currently in progress - both civil and criminal.(b) The recording contains confidential data that concerns various members of the vessel's staff and also contains information sensitive to the civil case.We request your kind understanding of the above.Best regardsHemant Pathania--------------------------------------------------------------------------------------------------------

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preetha aroza <preetha.aroza@gmail.com>28/07/2009 08:11 PMToHemant Pathania <hs.pathania@nyksm.com.sg>ccCapt A K Bansal <cmd@iwl.in>, vinoddar <Vinoddar@gmail.com>,menezesjp@yahoo.com, "capmnaik@vsnl.com" <raghuramrao2001@yahoo.co.in>,alvakp@satyam.net.in, glen aroza <glen.aroza@gmail.com>, joslin aroza<joslinaroza@yahoo.com>, Sarvadaman Oberoi <manioberoi@gmail.com>,"michael.demenezes" <michael.demenezes@nyksm.com>SubjectTranscript of the oral communication between the Tosa and the CG119 - April 17th, 2009 to April 18th, 2009 Dear Mr. Pathania,As we know that m.t.Tosa was taken under threat by the Coast Guards, Taiwan on 18th April.I am given to understand that all oral and electronic communications are required to be recorded by ship's managers for 24 to 48 hours. In case of an incident, these records are required to be permanently secured.Hence all records of oral and electronic communications from/with Tosa (including with CG119) are on the record.I request you to kindly make available one copy to me of the record including a certified transcript of the oral communications from/ with Tosa/ship's managers/ CG 119.Thanks and regards,Preetha Aroza+919663332290 ------28/07/2009 email to Preetha Aroza from Sarvadaman Oberoi-------This case is not a straightforward case for international tribunal, else Panama may have done the needful by now. I have tried to explain the sticking points and how they may be resolved in earlier communications. The matter was explained to Ambassador of Panama in a meeting on 22 July 2009 - a copy of letter handed to him is also enclosed. The basis of the special jurisdiction under Article 2(6) of Charter of the UN and Article 301 UNCLOS 1982 is explained in extracts from Yoram Dinstein's book attached. Capt. V.K. Gupta, Master of CMMI has brought out the facts of the case in an article of 13 July 2009 attached. The big mystery is the delay of Panama in stating its action or opinion. Will they wait it out till trial commences on 20 August 2009?

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The proof of threat to use force would lie in the recording of the radio communications between Tosa, CG 119 and NYKSM, Singapore. And in one Taiwan news report - copy enclosed

--------------------------END OF EMAIL--------------------------------- ---------- Forwarded message ----------From: Sarvadaman Oberoi <manioberoi@gmail.com>Date: Mon, Jul 20, 2009 at 5:37 AMSubject: IMMEDIATE TRANSFER OF JURISDICTION FROM TAIWAN TO PANAMA - CAPT. GLEN AROZA & 2 OTHERS M.T. TOSA, NYKTo: Rosalie Balkin <RBALKIN@imo.org>

Dear Dr Balkin, I have just seen this news item: IMO to sanction Nigeria over littered waters "Thursday, July 16, 2009, 10:32:00 AM | info Coordination marée noire International Maritime Organisation may sanction Nigeria over waste dumping by ships in the country's territorial waters. It was learnt that the ship owners have continue to dump residue unchecked by the regulatory agency, Nigeria Maritime Administration and Safety Agency (NIMASA)." The true nature of the TOSA case has not registered with the IMO as full facts are only now emerging. This is a case of flagrant dereliction of duty by a Flag State not filing timely proceedings for provisional measures under Paragraph 1 of Article 290 UNCLOS 1982 on receipt of a report from NYK Ship Management, Singapore on 20 April 2009, that ROC, Taiwan CG 119 threatened to use force and forced its vessel to abandon voyage on the high seas and proceed under escort to Hualien Port on 17/18 April 2009. (Also Article 292 proceedings for prompt release of crews.) As you well know the threat to use force attracts the provisions of Article 301 UNCLOS and when read with Article 2(6) of the Charter of the United Nations, immediately invokes the jurisdiction of the United Nations against the offending State including a non Member State such as ROC (Taiwan). At the time of the alleged navigation incident the TOSA was one hour away from the location of alleged navigation incident. (NOTE below discusses details of time & place & actions etc)

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The ship's managers every attempt to transfer jurisdiction under UNCLOS 1982 to Flag State has been thwarted by the Flag State itself, so much so that all documentary proofs and affidavits were also filed by the ship's managers through their lawyers with the Flag State on 26 June 2009 without receiving any response AT ALL till 18 July 2009 from Flag State, in this day and age of instant emails. The IMO Regime cannot play second fiddle to the National Laws of ROC (Taiwan) which have brazenly usurped the IMO guarantee of freedom of navigation of the high seas in such a brutish manner as to threaten to use force to direct an innocent vessel to abandon voyage in protected high seas and proceed to detention at its port. The ROC Taiwan laws protect their own seafarers from criminal action in cases of injury or death resulting from collision / navigation incidents through an exclusionary/ saving Article in their Seafarer Law 1999 (copy attached). (as you will read in the detailed Note below.) It is shameful that Article 80 of Seafarer Law provides the penalties for death or injury from navigation errors and Article 1 excludes cases like navigation errors for which penalty is provided in the Act, yet the 2nd Officer is being charged with "Fleeing after Traffic Accident - Hit and Run" under the Criminal Code. Some documents are also attached for ready reference as all of them are not easy to find. As the ITLOS Judgement of 1 July 2009 in Saiga amply clarifies it is for the Flag State alone to approach the Tribunal because States of citizenship of the crew do not have locus to approach it. Hence it is all the more reprehensible that the Flag State has been derelict in protecting the crew serving under its Flag. If innocent seamen are arrested for months and harassed in this manner and finally left to their own devices by the Flag State, the IMO needs must sanction such shameful abdication of responsibility by the concerned Flag States. In the Taiwanese criminal system the judge has the discretion to completely discard the evidence of expert witness and further has the discretion to accept or reject the case of the prosecutor - a case which by law must be prepared secretly "Article 245 - Investigation not to be public" This will be a bigger disaster for the IMO than the Hebei Spirit, unless prompt action is taken even now - better late than never. I shall not embarass you or the IMO by making this missive public in true Taiwanese spirit. I assure you that no one else has access to this email. Kindly take action as deemed fit and proper in the facts and circumstances of this case.Regards.Sarvadaman Oberoi

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---------- Forwarded message ----------From: Kaljit Gill <KGILL@imo.org>Date: Wed, Jul 15, 2009 at 5:35 PMSubject: CAPT. GLEN PATRICK AROZA (EX-MASTER, M.T. TOSA, NYK SHIP MANAGEMENT PVT. LTD)To: preetha.aroza@gmail.comCc: Agustin Blanco-Bazan <ABLANCOB@imo.org>, Dany Broderick-Bunn <DBRODERI@imo.org>, Rosalie Balkin <RBALKIN@imo.org>

Dear Mrs. Aroza,

Please see below response from Dr. R.P. Balkin, Director, Legal Affairs and External Relations Division of IMO, to your e-mail of 2 July 2009 to the Secretary-General on the above-mentioned subject.

15 July 2009

Dear Mrs. Aroza,

I write on behalf of the Secretary-General in connection with your email letter to him of 2nd July 2009. I very much sympathize with your present situation and that of your husband and the other members of the crew who have been detained for this lengthy period of time. Unfortunately, however, IMO has no mandate and is, accordingly, not able to intervene in an individual case like this one, where a criminal investigation is in progress in accordance with the domestic law. In this particular situation, there is an additional complexity, caused by the fact that the detaining authorities are from a territory where, due to strict rules applicable within the UN system, of which IMO is an integral part, IMO is prevented from having any direct contact with these authorities.

Accordingly, I would suggest that the best way for you to proceed would be to contact the authorities of the flag State and request them to periodically assess the situation and to make representations, as appropriate, to the port authorities in order to ensure that the detention of your husband and other crew members does not last longer than strictly required for the progress of the investigation of the incident.

I note that you have also sent this email to the authorities of the Government of India as well as to the General Secretary of the International Transport Workers’ Federation (ITF), who may be better placed than us to assist in this regard. I wish you success in your further endeavours.

Yours sincerely,

Dr. R.P. BalkinDirector, Legal Affairs and External Relations DivisionIMO

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XI. TOSA CASE OF 17 APRIL 2009 CONSIDERED UNDER VARIOUS LAWS OF REPUBLIC OF CHINA AND IMPACT OF INTERNATIONAL LAW 1. Request dt 26 June 2009 by Ship’s Managers to Flag State, Panama, for Transfer of

Jurisdiction of TOSA Case from Hualien, ROC to Panama

A. ROC National Laws and International Law of the Sea and IMO Conventions

(a) Although not a member state of IMO, ROC (Taiwan) has willingly committed to comply with

IMO resolutions. [Page 208 of Journal of Marine Science and Technology, Vol. 16, No. 3, pp.

207-213 (2008), THE IMPLEMENTATION OF PORT STATE CONTROL IN TAIWAN, Rong-Her

Chiu, Department of Shipping and Transportation Management, National Taiwan Ocean

University, Taiwan, Chien-Chung Yuan, Department of Shipping Administration, Taichung

Harbor Bureau, No 2 Chung-chi Rd., Sec. 3, Wu-chi, Taichung County, Taiwan and Kee-Kuo

Chen, Department of Shipping and Transportation Management, National Taiwan Ocean

University, Taiwan.]

(b) CHINA CORPORATION REGISTER OF SHIPPING, the approved Register of MOTC,

Taiwan (R.O.C.) has notified every single IMO document for compliance by ships under its

register. This includes ISM Code 1999 notified in Technical Circular No. 09 dt 10 May 2003 and

COLREGS 2002 A.910(22) notified in Technical Circular No 10 dt 10 July 2003.

(c) Article 64 of SHIPPING LAW 1981, ROC provides "In case provisions involving

international matters are not provided in the present Law, MOTC may, by reference, undertake to

adopt, promulgate and enact the relevant international conventions or agreements and the

regulations, directives, standards, recommendations or programs prescribed in the annexes thereto

as the provisions."

(d) (i) Article 70 of THE SEAFARER LAW 1999 issued under authority of MOTC provides

"The seafarer, who is watchkeeping, shall observe the rules of the collision regulation, and signal

siren or hang up signals as provided.”

31

(ii) Further Article 70-1 provides "To ensure the safety of ship and navigation, the employer

shall man the ship with sufficient, qualified seafarers in accordance with relevant provisions,

before and at the beginning of the voyage."

(iii) Now the penalties - Article 80 provides as follows "A seafarer committing one of the

following things shall be subject to degrading, withdrawal or cancellation of seafarer service

book: 1. Violation of Seafarer Service Rules or Article 70, thus causing severe loss or damage to

the ship or the employer, casualties to the ship, injuries or deaths to personnel, or affecting

navigation safety."

(iv) Article 1 of THE SEAFARER LAW 1999 issued under authority of MOTC provides

"This Law is enacted for purposes of protecting rights and interests, maintaining physical and

mental health, reinforce cultivation and training of seafarers, harmonizing the relations of

employers and employees, and enhancing development of the shipping industry. The provisions

of other laws are applicable in the absence of the provisions in this Law."

(v)Further Article 3 provides "This Law shall not apply to seafarers on the following ships

except for those involving navigation safety and dealing of marine casualties: 1. Small ships

provided by the Ship Law. 2. Military vessels and boats. 3. Fishing ships."

(vi) Interestingly Article 5 provides "All seafarers shall be not less than 16 years of age.　

All masters shall be the nationals of the Republic of China (the ROC)." [COMMENT: Hence only

Master of TOSA, an Indian National, and all of the crew of the fishing vessel are denied the

protection provided by this law, however in accord with well settled international law, those

other laws become applicable only to the crew of the fishing vessel, and most certainly not to the

Master of TOSA. All other crew including watchkeepers on TOSA are protected under Seafarer

Law 1999 issued under the authority of MOTC Republic of China, as also under well settled

international law and may not be tried under any other law, such as Criminal Code, Republic of

China .]

32

(e) Article 12 of Regulations on the Management of the Crew of Fishing Vessels, made pursuant

to Article 12 of the Fisheries Act, ROC, provides "The crew officers of the navigation unit on a

fishing vessel, of which length overall is 12 meters or above but not exceeding 24 meters, and

which has been applied to navigate to and operate in an unlimited water, shall hold a Fishing

Vessel Officer Certificate for either the first grade captain or the first grade first mate. Any crew

officer other than the first grade captain or the first grade first mate, who wants to serve those

positions mentioned in the preceding paragraph in the navigation unit on a fishing vessel, shall

participate in relevant training on expertise and be qualified for this end." [COMMENT: Syllabus

of Taiwan Fishing Vessel Officer Certificate includes training on all relevant IMO regulations

including ISM 1999 and COLREGS 2002.]

B. In relation to collision claims, Republic of China Courts claim jurisdiction when,

(a) the parties agree or have agreed to Republic of China jurisdiction. If there is no agreement and

a defendant fails to object to the Court’s jurisdiction but directly proceeds with arguments about

the claim’s merits, then they are regarded as having accepted the Court’s jurisdiction and forfeit

their right to dispute it. [COMMENT: Panama Maritime Authority wrote officially to the Hua

Lien Coast Guard on the 20 April 2009 stating that they have the responsibility for investigation.

A Panama inspector was sent from Panama to Hua Lien on the 22 April 2009 to conduct an

investigation, and as per information available from the ship's managers he would shortly send

his report to the IMO. A petition was filed by lawyers appointed by the ship's managers before the

Panamanian Ministry of Foreign Affairs on 26 June 2009 for transfer of jurisdiction to Flag State

in accord with International Law. There has been no response till 18 July 2009. In view of

application expected to be made by Flag State, Panama as per formal request of the ship’s

managers dated 26 June 2009, to MOFA, ROC to transfer the entire case to Panama (Flag

State), there would have to be a proper consideration of jurisdiction under Code of Criminal

Procedure of Republic of China. See extracts below]

33

(b) a collision occurs within Republic of China territorial sea [COMMENT: UNCLOS 1982

Article 3, stipulates 12 nautical miles as width of territorial sea, whereas alleged collision

occurred about 75 nautical miles East of Coast of Republic of China {approximately 25 50 N

123 08 E}. The extended jurisdiction claims of ROC vide Article 13(1) of Law on the Territorial

Sea and the Contiguous Zone of the Republic of China 1998 and Article 16 of Law on the

Exclusive Economic Zone and the Continental Shelf of the Republic of China 1998 have been

analyzed in sub paragraph C below. ] or

(c) the offending vessel is arrested in Republic of China [COMMENT: TOSA was detained at a

location about 40 nautical miles East of Coast of Republic of China, {approximately 24 09 N 122

26 E}, on 17 April 2009, by ROC Coast Guard, a few hours after the alleged incident in an area,

21 nautical miles West of a Japanese occupied island, {approximately 25 50 N 123 08 E}, both

locations being areas specified to be on high seas route in accord with Articles 34 to 36, Article

53(5), Article 58 and Articles 86 to 98 of UNCLOS 1982. In any case there was no collision and

the only fishing vessel that had crossed the TOSA at close quarters did so between about 2330

and 0001 hours (GMT+8) 17 April 2009, and was observed passing safely for about 30 minutes,

whereas the alleged collision (now said to be a capsize) was reported around 0038 hours 17

April 2009 (GMT+8) in location approximately 25 50 N 123 08 E. At the relevant time the TOSA

was about one hour away from this location.]

(d) the vessel comes to a Republic of China port of its own volition [COMMENT: TOSA, alleged

to have been involved in an incident, was detained on high seas on 17 April 2009 by ROC Coast

Guard, and in his Report the Master has alleged that he was induced to sail into a ROC port

under the threat that Coast Guard ships and aircraft would use force if Master does not proceed

to Hualien Port. This is allegedly a clear breach of Article 301 of UNCLOS 1982 read with

Article 2(6) of the Charter of the United Nations, it invites the jurisdiction of ITLOS on two

separate counts, one, prompt release of crews under Article 292, two, provisional measures

under Article 290(1) in re threat to use force on the high seas.

34

[Reference: Roger KC Wang of Sotonors Attorneys-at-law, Taipei, "New Civil Procedural Law

for Maritime Claims in Taiwan", 12 January 2004]

C. Separate Opinion of Judge Laing dt 1.7.1999, The M/V “SAIGA” (No. 2) Case (Saint

Vincent and the Grenadines v. Guinea), Provisional Measures, ITLOS:

"provisional measures under UNCLOS are prescribed, not indicated, and therefore are binding,

arguably unlike measures under article 41 of the I.C.J. Statute. { Art. 290, para. 1, provides for

the prescription, not indication, of provisional measures. To some, it may be encouraging to

perceive that sovereigns would so agree that they could be bound by a judicial order.

Nevertheless, the potential addressees of this provision and of provisional measures also include

non-State parties to disputes (commercial entities and certain intergovernmental agencies). The

addition of this range of addressees underscores the point in the text.} Any party to a dispute

before the Tribunal can readily invoke article 290 and set in train expedited proceedings seeking

provisional measures which temporarily shunt aside the proceedings on the merits and

associated incidental proceedings, including preliminary objections. The apparently far-reaching

nature of the power is counterbalanced by the temporary ambit of its exercise and the gravity

which imbues global judicial institutions, preoccupied with their weighty functions.”].

D. Article 13 of Law on the Territorial Sea and the Contiguous Zone of the Republic of

China 1998 and Article 16 of Law on the Exclusive Economic Zone and the Continental

Shelf of the Republic of China 1998

(a) Paragraph 1 of Article 13 of Law on the Territorial Sea and the Contiguous Zone of the

Republic of China 1998 provides, "In the part of the Taiwan Straits not part of the territorial sea

of the Republic of China used for international navigation, the Government of the Republic of

China may enact laws and regulations relating to transit passage of foreign vessels and aircraft, in

respect of …..1. The maintenance of navigation safety and the regulation of maritime traffic;"

(b) Article 16 of Law on the Exclusive Economic Zone and the Continental Shelf of the Republic

of China 1998 provides "Where the authorities of .... Republic of China consider that a person or

35

an object, ... is engaged in any activity violating laws and regulations of the Republic of China",

“in its exclusive economic zone or on its continental shelf", "such authorities may engage in hot

pursuit, boarding, and inspection" and "arrest the suspected person, or detain the vessels, aircraft,

equipment, or other articles belonging to the suspected person, and institute legal proceedings."

(c) Article 36 UNCLOS 1982 provides that Part III of the Convention on transit passage, “does

not apply to a strait used for international navigation if there exists through the strait a route

through the high seas or through an exclusive economic zone of similar convenience with respect

to navigation and hydrographical characteristics; in such routes, the other relevant Parts of this

Convention, including the provisions regarding the freedoms of navigation and overflight, apply.”

The Taiwan Straits as also the route through the exclusive economic zone East of the Taiwan

Coast and West of the (disputed) Japanese islands lying at the tips of the Okinawa Trough meet

this definition.

(d) Hence Paragraph 1 of Article 13 of Law on the Territorial Sea and the Contiguous Zone of the

Republic of China 1998 and Article 16 of Law on the Exclusive Economic Zone and the

Continental Shelf of the Republic of China 1998 may amount to undue interference with freedom

of navigation on the high seas and may fall to a certain extent within the scope and precedent of

the ITLOS, Judgment dt 1.7.1999, The M/V “SAIGA” (No. 2) Case (Saint Vincent and the

Grenadines v. Guinea), Merits.

E. Extracts ITLOS, Judgment dt 1.7.1999, the M/V “SAIGA” (No. 2) Case (Saint Vincent

and the Grenadines v. Guinea), Merits.

“92. Saint Vincent and the Grenadines further contends that the rule that local remedies must

be exhausted applies only where there is a jurisdictional connection between the State against

which a claim is brought and the person in respect of whom the claim is advanced. It argues that

this connection was absent in the present case because the arrest of the ship took place outside the

territorial jurisdiction of Guinea and the ship was brought within the jurisdiction of Guinea by

force.

36

97. The Tribunal considers that in this case the rights which Saint Vincent and the

Grenadines claims have been violated by Guinea are all rights that belong to Saint Vincent and

the Grenadines under the Convention (articles 33, 56, 58, 111 and 292) or under international

law. The rights claimed by Saint Vincent and the Grenadines are listed in its submissions and

may be enumerated as follows:

(a) the right of freedom of navigation and other internationally lawful uses of the seas; ……

120. In the view of the Tribunal, there is nothing to prevent it from considering the question

whether or not, in applying its laws to the Saiga in the present case, Guinea was acting in

conformity with its obligations towards Saint Vincent and the Grenadines under the Convention

and general international law.

121. A denial of the competence of the Tribunal to examine the applicability and scope of

national law is even less acceptable in the framework of certain provisions of the Convention.

One such provision, which is also relied upon by Guinea, is article 58, paragraph 3, which reads

as follows:

In exercising their rights and performing their duties under this Convention in the exclusive

economic zone, States shall have due regard to the rights and duties of the coastal State and shall

comply with the laws and regulations adopted by the coastal State in accordance with the

provisions of this Convention and other rules of international law in so far as they are not

incompatible with this Part.

Under this provision, the rights and obligations of coastal and other States under the Convention

arise not just from the provisions of the Convention but also from national laws and regulations

“adopted by the coastal State in accordance with the provisions of this Convention”. Thus, the

Tribunal is competent to determine the compatibility of such laws and regulations with the

Convention. [COMMENT: In the Saiga No 2 Case, both parties were members of the UN.

However Article 301 UNCLOS 1982 read with Article 2(6) of the Charter of the United Nations

37

clothes ITLOS with jurisdiction even over cases involving non member States, in cases where a

non member State uses or threatens to use force.]

132. It remains for the Tribunal to consider whether the otherwise wrongful application by

Guinea of its customs laws to the exclusive economic zone can be justified under general

international law by Guinea’s appeal to “state of necessity”…………….

136. The Tribunal, therefore, finds that, by applying its customs laws to a customs radius

which includes parts of the exclusive economic zone, Guinea acted in a manner contrary to the

Convention. Accordingly, the arrest and detention of the Saiga, the prosecution and conviction of

its Master, the confiscation of the cargo and the seizure of the ship were contrary to the

Convention.” [COMMENT: The Judgment resulted in financial reparations of over 2 million

USD by the State of Guinea to the owners and crew members of the M/V Saiga.]

2. Extracts from The Civil Code, Republic of China

Article 184 “A person who, intentionally or negligently, has wrongfully damaged the rights of

another is bound to compensate him for any injury arising therefrom”

3. Extracts from the Criminal Code, Republic of China

[Criminal Code, Republic of China is not available in English Language, especially Articles 185-

4, 293 & 294.]

Article 12 “punishment shall not be imposed to acts that are not intentional or unpremeditated”

Article 14 “negligence is considered as although those who commit an unpremeditated crime are

not intentional, they should be able to avoid it if caution was taken depending on the actual

circumstances; the outcome is foreseeable but it is believed not existed”.

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.

38

Article 276 Paragraph 1

“those who commit murders due to professional negligence shall be imposed fixed-term

imprisonment for up to five years”

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.

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.

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.

[Master of TOSA has been charged with involuntary manslaughter under Article 276 of Criminal

Code on 17 July 2009. 2nd Officer has been charged under Articles 276, 293, 294 & 185-4. AB

Caballero Mallorca Eduardo Jr has been charged under Article 185-4, Hit and Run, Fleeing

after traffic accident. Articles 293 & 294, Offence of Abandonment/Desertion.]

4. Extracts from the Code of Criminal Procedure, Republic of China

[Articles 344 onwards are not available in English Language.]

39

Article 5 A court of the place where an offense is committed or where an accused is domiciled,

resides, or is located shall have jurisdiction over the case.

If an offense is committed on a vessel or an aircraft of the Republic of China outside the territory

of the Republic of China, the court of the place where the vessel is registered or from which the

aircraft departed or landed after the commission of the offense shall also have jurisdiction.

[COMMENT: Offence in case of crew of TOSA is alleged to have been committed on TOSA,

outside the territory of the Republic of China, but on a vessel NOT of the Republic of China.

Hence Prosecutor is barred from claiming Article 5 jurisdiction. Panama has a strong claim of

jurisdiction as Flag State of TOSA operating on high seas at relevant time and location. This is

the correct position in International Law in accord with Article 7(3) (a) of the INTERNATIONAL

CONVENTION ON ARREST OF SHIPS, 1999, Articles 34 to 36, Article 53(5), Article 58,

Articles 86 to 98 and Article 301 of UNCLOS 1982, and Article 2(6) of the Charter of the United

Nations, the last two being applicable to all States, whether or not Member States of the United

Nations. The Prosecutor has placed reliance on Article 5.1.3 of ISM 1999 to transfer blame on to

Master of TOSA; it is also alleged that the actions of watchkeeper on TOSA to avert collision

were deficient; it is further alleged that the alleged deficiency was a result of watchkeeper on

TOSA being new; it is further alleged that the Master is responsible to the extent that he is

alleged to have not given sufficiently detailed, precise, simple and clear instructions to the

watchkeeper who is alleged by the Prosecutor to be new. A plain reading of Rule 10 in

conjunction with Rules 15 to 18 of COLREGS 2002 reveals that entire responsibility to take early

and substantial action to keep well clear, devolved upon and only upon the watchkeeper on the

fishing vessel as “give-way vessel”. This is further emphasized in Rule 17(d) which provides,

“This Rule does not relieve the give-way vessel of her obligation to keep out of the way.” Further

Rule 18(a) (iii) “A power-driven vessel underway shall keep out of the way of a vessel engaged in

fishing” would also not shift responsibility upon the watchkeeper of the TOSA in view of proviso,

40

“Except where Rules 9, 10, 13 otherwise require”. Rule 10 does indeed require otherwise that “A

vessel engaged in fishing shall not impede the passage of any vessel following a traffic lane.”]

Article 9

If jurisdiction cannot be determined by applying the provisions of the preceding paragraph or

Article 5, the Supreme Court shall, by a ruling, determine the court to take jurisdiction.

[In the special circumstances of this case it would be advisable that all care is taken in

determination of jurisdiction prior to any action on merits.]

Article 10 In one of the following circumstances, the immediate superior court shall, by a

ruling, order the transfer of a case to another court within its judicial district and of the same level

as the original court:

…………..

(2) Due to special circumstances, it is considered that a trial by a court that has jurisdiction will

probably lead to the disturbance of public peace or unfairness.

[COMMENT: Panama, the Flag State, maintaining diplomatic relations with Republic of China

is expected to claim jurisdiction of this case in accordance with Article 97 UNCLOS 1982/ Article

11 of the International Convention on the High Seas, Geneva 29 April 1958 / Articles 1, 2 & 3 of

the INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES

RELATING TO PENAL JURISDICTION IN MATTERS OF COLLISION OR OTHER

INCIDENTS OF NAVIGATION BRUSSELS, 10.5.1952. Also it would lead to unfairness because

of the explicit provisions of Article 80 read with Article 1 of SEAFARER LAW 1999 issued under

authority of MOTC were “enacted for purposes of protecting rights and interests, maintaining

physical and mental health, reinforce cultivation and training of seafarers, harmonizing the

relations of employers and employees, and enhancing development of the shipping industry.”]

Article 11 A motion by a party to determine or transfer jurisdiction shall be in writing, set forth

the reasons therefore, and be filed with a proper court.

41

[The three seafarers have been charged in their personal capacity whereas application for

transfer of jurisdiction has to be filed only by Flag State, which is excluded from the proceedings,

and not by any individual. This is totally unjust because explicit provisions of Article 80 read with

Article 1 of SEAFARER LAW 1999 issued under authority of MOTC, Taiwan were “enacted for

purposes of protecting rights and interests, maintaining physical and mental health, reinforce

cultivation and training of seafarers, harmonizing the relations of employers and employees, and

enhancing development of the shipping industry.”

Article 98 An accused shall be examined in an honest manner; violence, threat, inducement,

fraud, exhausting examination or other improper means shall not be used.

Article 155 The probative value of evidence shall be determined at the discretion and based on

the firm confidence of the court, provided that it cannot be contrary to the rules of experience and

logic. Evidence inadmissible, having not been lawfully investigated, shall not form the basis of a

decision. [COMMENT: Therefore, the judge may or may not accept the expert testimony, in his

discretion, and if experts’ opinion was not accepted, who could set the safety standards?]

Article 245 An investigation shall not be public.

The defense attorney of an accused or suspect may be present and state his opinion when a public

prosecutor, public prosecuting affairs official, judicial police officer, judicial policeman examines

the accused or suspect, provided that if facts exist sufficient to justify an apprehension that such

presence may jeopardize national security or destroy, fabricate, alter evidence or form a

conspiracy with a co-offender or witness, or may be detrimental to the reputation of others, or

that the behavior of the defense attorney is so inappropriate that it would interfere with the order

of the investigation, such presence may be limited or prohibited.

The public prosecutor, public prosecuting affairs official, judicial police officer, judicial

policeman, defense attorney, agent of the complainant, or any other person performing his duty

under law during the investigation shall not disclose whatsoever information acquired through the

42

performance of the duty during the investigation, unless otherwise permitted by law, or it is

necessary for the protection of public interest or legitimate interest.

The time, date, and place of the examination of an accused or suspect during the investigation

shall be notified to the defense attorney unless urgent circumstances exist.

Article 252 If one of the following circumstances exists, a ruling not to prosecute shall be made:

(4) A law enacted after the commission of an offense abolishes the punishment;

(7) The court has no judicial power over the accused;

(8) The act is not punishable;

(9) The punishment is remitted under law;

(10) The suspicion of an offense having been committed is insufficient.

Article 255 If a public prosecutor gives a ruling of not to prosecute, deferred prosecution, or to

set aside a ruling of deferred prosecution in accordance with the provisions of Article 252, 253,

253-1, 253-3 and 254, or gives a ruling of not to prosecute for other legal reasons, he shall

prepare a written ruling setting forth the reasons thereof, provided that if consent of the

complainant or informer has obtained prior to making of the ruling, only important part thereof

has to be noted in the same.

Article 258- 2 The application for setting the case for trial may be withdrawn prior to the court

ruling is made; the same can be done after the ruling setting the case for trial has been made but

prior to the conclusion of argument at the trial of the first instance.

Article 258- 3 The ruling on the application for setting case for trial shall be determined by a

panel of judges.

The court shall dismiss the application for setting case for trial if the application is considered to

be illegal or groundless; the court shall make a ruling setting the case for trial if the application is

considered to be well-grounded; a true copy of the ruling shall be served on the applicant, the

prosecutor, and the accused.

43

The court may conduct necessary investigation before making a ruling specified in the preceding

section.

A public prosecution is deemed to be initiated at that time a ruling for setting the case for trial is

made.

An interlocutory appeal may be taken, from the ruling of setting case for trial, by the accused; the

ruling of dismissal is not appealable.

Article 269 A public prosecutor may withdraw prosecution before conclusion of the argument at

the trial of the first instance if circumstances indicate that prosecution should not have been

initiated or that it is appropriate not to prosecute.

Article 270 Withdrawal of a prosecution shall have the same effect as a ruling not to prosecute;

written withdrawal of prosecution shall be considered to be a ruling not to prosecute and the

provisions of Articles 255 through 260 shall apply mutatis mutandis.

Article 272 A summons for the first trial date shall be served at least seven days prior thereto,

and for the cases specified in Article 61 of the Criminal Code, such summons shall be served at

least five days prior to the first trial date.

Article 284 If no defense attorney appears in the cases specified in section I of Article 31, the

trial may not proceed, provided that this rule shall not apply to the pronouncement of judgment.

Article 304 If the court has no jurisdiction over the case, a judgment of "Mistake in

Jurisdiction" shall be pronounced and an order issued to transfer the case to a court having

jurisdiction.

Article 335 If a judgment of "Mistake in Jurisdiction" is pronounced, it shall not be necessary to

refer the case to a competent court unless application therefor is made by the private prosecutor.

44

XII. Taiwan Representation in IndiaA. Taiwan Ministry of Foreign Affairs Offices in India, New Delhi (MOFA)Foreign Division, Taipei Economic and Cultural Center in New Delhi84 Poorvi Marg, Vasant ViharNew Delhi 110 057Phone:+91-11-46077777Fax:+91-11-26148480Email: ind@mofa.gov.twB. Taiwan Ministry of Economic Affairs Offices in India, New Delhi (MOEA)Economic Division, Taipei Economic and Cultural Center in New Delhi Director Lee,Chuan-Lian 84 Poorvi Marg, Vasant Vihar, New Delhi-110057, India Tel: 91-11-46077777 91-11-46077728 91-11-46077726 Director’s line: 91-11-46077722 Fax: 91-11-46077724 Email: india@moea.gov.tw C. TAITRA Offices

1. Taipei World Trade Center, Chennai Old No. 319, New No. 4, Valluvar Kottam High RoadNungambakkam, Chennai-600 034, IndiaDirector:Herben WuTel:91-44-43561520Fax:91-44-43596888Email:chennai@taitra.org.tw 2. TAIPEI WORLD TRADE CENTER LIAISON OFFICE IN INDIA CENTER 1, 11TH FLOOR, UNIT NO. 8WORLD TRADE CENTER, CUFFE PARADEMUMBAI 400 005, INDIADirector:Paul ChenTel:91-22-22163074Fax:91-22-22163078Email:mumbai@taitra.org.tw 3. Tgaipei World Trade Center Hotel Samrat Apt 365-375, Chanakya Puri, Delhi - 110021 +(91)-(11)-26870083 Monday : 10:00 - 18:00Tuesday : 10:00 - 18:00Wednesday : 10:00 - 18:00Thursday : 10:00 - 18:00Friday : 10:00 - 18:00Saturday : 10:00 - 18:00Sunday : Closed

45

XIII. EIGHT REASONS WHY CAPT GLEN AROZA OF INDIA CAN NEVER GET JUSTICE IN TAIWAN

I. In our meetings with Taiwan’s representatives at New Delhi we were given a very sympathetic hearing; innocence of Capt Glen Aroza was accepted in their body language if not in any positive response accepting our stand. It was highlighted to us that while at a personal level they empathized with Preetha’s (wife of Capt Glen Aroza) predicament, at an official level they were bound by the official stand of the President of Taiwan, already conveyed to us. It was not for them as Taiwan Government servants to discuss the vexed issue of high seas jurisdiction or the competence of the trial court in this matter involving a ship of Panama Flag State. Their body language and lack of eye contact gave away their discomfiture. In fact we could sympathize with their predicament as fellow human beings. They did not even make any assurance that our letter of appeal dated 22 July 2009 would be forwarded to MOFA, Taiwan; in fact the Ambassador declined to meet us citing the high sensitivity of the case. We have, however, no complaint against the handling of the case by Taiwan’s representatives at New Delhi, as domestic pressures in Taiwan dictate the course of events in Taiwan.

II. In our meeting with the Ambassador of Panama on 22 July 2009 he expressed his helplessness in this case as he had no knowledge of it and also had no role to play. At best he said he would ask for the status of the case from his Foreign Ministry; if he receives any details he promised to forward them to us. Nothing was heard; on 30 July 2009 a new Ambassador took over and we are in the process of requesting him for a meeting on his return from Mumbai on 5 August 2009.

III. The criminal justice system of Taiwan is undergoing massive reforms at the moment. However many learned commentators on the emerging criminal justice system conclude that despite the highly commendable reform process, the historical baggage of authoritarianism ensures that there now exists in Taiwan “ An Adversarial System that Lacks Adversaries”. {Taiwan’s New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms, MARGARET K. LEWIS, VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 49:32009] TAIWAN’S NEW ADVERSARIAL SYSTEM}. “Unlike their American or British counterparts, Taiwan's legal professionals were not exposed in law school or at the Judges and Prosecutors College to evidence law concepts. It was assumed, utterly incorrectly, that Anglo-American evidence law could be picked up in a weekend seminar.” {Walking the Fine Line in Taiwan's New Criminal Code, BRIAN L. KENNEDY, Taiwan Review Vol.53 No.01 Jan. 2003}

IV. In a missive to Preetha of 16 July 2009 the office of the President of Taiwan says “President Ma is not in a position to intervene in any legal cases as the judiciary must remain fully independent. Please be assured that any legal cases, including this one, will be adjudicated in open and fair court proceedings, regardless of nationality.” We pray and hope that this will come

46

true. However we are not comfortable about “adjudicated in open and fair” because of two Articles of Taiwan Criminal Procedure Code:

“Article 155 The probative value of evidence shall be determined at the discretion ………of the court……..Evidence …….. having not been lawfully investigated, shall not form the basis of a decision. [COMMENT: Therefore, the judge may or may not accept the expert testimony, in his discretion, and if experts’ opinion was not accepted, who could set the safety standards?]

Article 245 An investigation shall not be public.The defense attorney of an accused or suspect may be present ………such presence may be ….. prohibited. The public prosecutor……during the investigation shall not disclose whatsoever information…” [Taiwan prosecutor has conducted the entire investigation in highly secretive manner and even taken away original documents from the defence lawyer leaving no copy with the defence. The prosecutor all along misinformed NYK and Capt Glen Aroza that he was required as witness and sought his co-operation, which was given, but now manslaughter charges have been framed against him. What “open and fair court proceedings” the President of Taiwan is talking about in this kind of scenario?]

V. According to Taiwan Justice Ministry website, administratively, prosecutors’ offices at all levels in Taiwan are subject to the supervision of the Minister of Justice. This lady works directly under the control of the President of Taiwan. In addition to directing, supervising and assigning prosecutorial and administrative affairs, the Prosecutor General is required to supervise all prosecutors, who possess the status of judicial officials, at different court levels of the whole nation. Prosecutors shall follow the orders and directions of their superior prosecutors. Being different from the authority of judges who conduct trials independently, prosecutors are bound by the orders of their superiors. The Prosecutor-General or the chief prosecutor may personally undertake the business assigned to a subordinate prosecutor. In a criminal proceeding, the prosecutors’ office, acting as the instigator of the action, and the court which is in charge of trial, are two opposing bodies with independent and separate functions. [That the President of Taiwan has the authority to have the case investigated and adjudicated in open and fair court proceedings by appropriate orders to the Minister of Justice and in turn to Prosecutor General of Taiwan is therefore within the well established Taiwanese constitutional norms; in view of the international uproar of miscarriage of justice in this case, it is high time the President of Taiwan / Minister of Justice / Prosecutor General of Taiwan inquire discreetly in the matter by examining Articles 5, 9, 270 & 304 of Taiwan Criminal Procedure Code and other Taiwanese legislations, as also all applicable international jurisprudence, in line with what the civilized world understands is due process of law, proper rules of evidence and an adversarial system which has functioning adversaries, unlike the present state of Taiwan criminal justice system highlighted in International and Taiwanese law journals referred above.] [http://www.slc.moj.gov.tw/ct.asp?xItem=5954&CtNode=11186&mp=104]

VI. Taiwan news media was the first to reveal to the World that the TOSA was intercepted by the use of forcible measures in International Waters by Taiwan Coast Guard and forced to proceed into Taiwan territorial waters and detained at Hualien Port of Taiwan. This is a blatant and unparalleled illegal act of use

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of force by a non member of the United Nations against vessels and individuals of United Nations member States. Continuing silence of the United Nations and all the concerned member States is both dangerous and shameful. It is also unacceptable to the seafarer and transport federations worldwide who have gone on a concerted offensive on the matter as of today.

VII. Article 5 of Taiwan Criminal Procedure Code states, "A court of the place where an offense is committed or where an accused is domiciled, resides, or is located shall have jurisdiction over the case. If an offense is committed on a vessel or an aircraft of the Republic of China outside the territory of the Republic of China, the court of the place where the vessel is registered or from which the aircraft departed or landed after the commission of the offense shall also have jurisdiction." Initially the prosecutor insisted that the “collision” occurred at about 0043 hours on 17 April 2009 in territorial waters and hence she claimed jurisdiction. The latest media reports as of 4 August 2009 in Chinese language are now giving the date of “collision” as 16 April 2009, whereas the Taiwan English media sticks to 17 April 2009 as the date of “collision” which is even now being stated in the media as having occurred in territorial waters. A detailed examination of the prosecutors indictment [File No.: 2009-chen-tzu-ti-1873] reveals that she has quietly shifted her stand on jurisdiction away from territorial waters to take support from Article 5 above, “ an offense … committed on a vessel or an aircraft of the Republic of China outside the territory of the Republic of China” without understanding that this clause only applies onboard a vessel flying the flag of Taiwan and under no stretch of imagination could this be extended to any vessel flying the flag of Panama upon the high seas. Hence there is no valid jurisdiction claim made in the indictment and in the ordinary course this would lead to dismissal of the case. But the surrounding circumstances of highly illegal detention on high seas do not inspire confidence that a proper decision on jurisdiction would be taken in consonance with international law in the facts and circumstances of the case. The irregular actions of the prosecutor are a pointer to support from the highest levels of the hierarchy as Taiwan law gives unfettered powers over prosecutors to the President of Taiwan / Minister of Justice / Prosecutor General of Taiwan as has been clearly elucidated above. As the previous Ambassador of Panama hinted to us this kind of matter could potentially even lead to open hostilities between Taiwan and concerned member States of the United Nations. Is this what is keeping the member States from opening their mouths and taking a stand? If so, may God save the United Nations.

VIII. The fishing vessel, Shin Tomg Chyuan No. 86, that capsized was at all times closely accompanied by a second vessel of the same ownership, Shin Tomg Chyuan No. 82, before and after the passage of the TOSA at 2350 hours on 16 April 2009. This accompanying vessel never made any transmission till about 0030 hours on 17 April 2009. The capsize took place for unknown reasons at about this time at a point [25 50N 123 08E] 40 minutes away at 6 knots speed

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of these two fishing vessels away from their alleged spot of “collision” [25 46.232'N 123 5.186'E] at 2350 hours on 16 April 2009. That the fishing vessels never made any distress calls till about 0043 hours on 17 April 2009 is established by the initial questioning of TOSA by Taiwan Coast Guard asking its location at 0100 hours on 17 April 2009. Also the capsize is alleged by prosecutor to have taken place around 0030 hours only. It is very significant that the prosecutor has sanitized all mention of exact location of capsize from the indictment. This indicates a desire to conceal that these two fishing vessels proceeded at nearly full speed for 40 minutes in a north easterly course for 4.5 nautical miles WITHOUT MAKING ANY DISTRESS CALLS. An unexplained capsize at 0030 hours or later found the Chief Engineer sound asleep in his cabin, as if nothing had happened (the TOSA was by now about 10 to 12 nautical miles removed) and the Chief Engineer went down in the sudden capsize – was it perhaps a one in a billion chance of yet another nuclear powered submarine suddenly surfacing to take bearings in this area claimed by Japan, PRC and ROC? We will never know. There have been over 30 reported incidents of collisions of nuclear powered submarines.

[1961 Russia US submarines (USS Swordfish) collision196? USS Skipjack (submarine) collision with Russian destroyer15 Oct 1965 2 nuclear submarines collisionJul 1965 USS Medregal(submarine) collision with Greek freighter.Mar 1966 USS Barbel (submarine) collision with freighter near North Vietnam.Dec 1967 Russia US submarines collision19 Oct 1968 Russia NATO submarines collisionNov 1969 Russia US submarines collision14 Mar 1970 Russia US submarines collisionJun 1970 Russia US submarines collisionMar 1971 Russia US submarines collisionMid-1971 Russia USS Dace submarines collisionLate 1971 or early 1972 USS Puffer (submarine) collision with Russian submarineMay 1974 US submarine USS Pintado collision with Soviet missile boat 3 Nov 1974 Russia US submarines collision28 Aug 1976 USS Vogue collision with Soviet submarine Late 1981 HMS Sceptre (submarine) collision with Soviet submarine 3 Oct 1986 Russia US submarines collision24 Dec 1986 HMS Splendid (submarine) collision with Soviet submarine 11 Feb 1992 Russia submarine collision with USS Baton Rouge 20 Mar 1993 Russia US submarines collision11 Feb 1998 US submarine sank South Korean fishing boat19 Mar 1998 2 US submarines collision12 Aug 2000 Russia US submarines collision9 Feb 2001 US submarine collision with Japanese training fishing vessel Ehime Maru8 Jan 2005 US submarine collision with underwater mountainSep 2005 US submarine collision with Turkish cargo ship 10 Nov 2005 Japanese navy discovered a PRC nuclear submarine in Japanese territorial waters near Okinawa 8 Jan 2007 US submarine collision with Japanese M.T. Mogami Gawa7 Jan 2008 Indian submarine collision with M.V. Leeds Castle3 Feb 2009 UK France submarines collision 20 Mar 2009 US submarine collision with USS New Orleans23 Apr 2009 PRC Unveils New Fleet of Nuclear Submarines 11 Jun 2009 PRC submarine collision with USS John S. McCain (Chinese coast)]

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