Introduction

Seafarers in India navigate a complex legal landscape governed by  maritime law and criminal law. Due to this  constantly evolving legal landscape, it is important for  shipowners and especially seafarers to remain abreast of their exposure towards criminal liabilities in different jurisdictions. This article is focused on the criminal liability regime of seafarers in India.

In India, the current primary criminal law code is Bhartiya Nyaya Sanhita, 2023 (“BNS”), which, with effect from July 2024, has replaced the Indian Penal Code, 1860 (“IPC”). There are various such legislations (covered in the subsequent paragraphs) which impose criminal liabilities within India and may be invoked by  law enforcement authorities on even the bare suspicion of an offence.

Some of the common scenarios leading to criminal liability exposure of a seafarer in India

Unauthorised use of Satellite Phone within Indian waters

Due to national security reasons, unauthorised satellite phone usage is restricted in India. Under Director General Shipping Order No. 02 of 2012 and Order No. 09 of 2023, Thuraya, Iridium and other such satellite phones are banned within Indian waters. Non-compliance is penalised under the provisions of the Indian Wireless Telegraphy Act, 1933, and the Indian Telegraph Act, 1885. It becomes imperative for the seafarers, owners, and agents to be aware of such restrictions, and immediately upon entering Indian waters, any satellite phone, including those phones which have dual capabilities of GSM and Satellite transmission, must be stored in a bonded area on the vessel and not used under any circumstances.

Possession of drugs and controlled narcotic substances which are banned in Indian waters

A seafarer needs to be aware of several controlled narcotics/drugs which are banned and illegal to even be in possession of within India; and in the event any such controlled/contraband substance is found to be on the vessel or in the possession of a seafarer, the law enforcement authorities invoke provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. In certain cases, it may also lead to detention of the vessel for extended periods till completion of the investigation by the investigating authorities. It is vital to understand that several drugs which may be legal/permissible in the country from where the seafarer has boarded the vessel may be banned/restricted in India. Thus, for any drug used for medicinal purposes, a medical prescription should be carried along by the seafarer, and the quantity of the drug should not be excessive.

Possession of firearms within Indian waters

Possession of firearms in India is highly restricted and regulated by the Arms Act, 1959 (“Arms Act”). While it is common for vessels, especially the ones crossing high risk piracy zones, to have armed security on board, as soon as the vessel enters Indian waters, the firearms need to be disclosed and stored in a secured facility, and they should not remain accessible to the crew when the vessel is within Indian waters.  It is important for the seafarers to be aware of strong anti-arms laws in India and strict penalties/punishments which flow from violations of the same, including imprisonment and possible restrictions from entering the country in the future.

Collision caused by negligence

India is a signatory to the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (“COLREGS Convention”) and has incorporated the principles of safe navigation in the Merchant Shipping Act, 1958, and subsequent rules thereunder. In cases where negligence leads to harm or fatality by a seafarer operating a vessel, criminal liability may arise under the BNS. It is imperative that seafarers operating the vessel be cautious and act in compliance with all the navigational rules and guidelines. Furthermore, any negligence found in the operation of the vessel, including the use of an intoxicating substance, may lead to severe criminal liabilities under the Indian criminal laws.

It is imperative that legal advice from an Indian law firm is sought as soon as any incident occurs which may lead to criminal liability.

Skuld are grateful to Mr. Kumar Abhishek Singh (Partner) and Mr. Pulkit Dhawan (Senior Associate) at ANOMA LEGAL for contributing to this article.