By Annie Banerji and D. Jose
NEW DELHI/KANYAKUMARI (Reuters) - The thud of bullets smacking into his wooden fishing boat jolted captain John Freddy out of his afternoon nap. He saw one of his crew slumped dead over the helm and then, seconds later, another shot in the chest. The man cried out for his mother before falling dead on the deck, Freddy would later tell Indian police.
Indian prosecutors allege the two Indian fishermen were shot by two Italian marines serving as security guards on an Italian-flagged oil tanker, the Enrica Lexie, about 20 nautical miles off the southern Indian state of Kerala in February last year.
The marines, Massimiliano Latorre and Salvatore Girone, are awaiting trial in New Delhi on charges of murder. Their Indian lawyers say their clients mistook the fishermen for pirates and fired warning shots into the water. The two marines do not admit killing anyone or aiming directly at the fishing boat.
"How could they kill with warning shots?" a lawyer for the marines, who asked not to be identified because he was not authorized to speak to the media, told Reuters. "These men had ample experience as vessel protection detachment personnel. Murder is out of the question."
A Reuters reconstruction of the events surrounding the shooting - based on interviews with members of the fishing boat crew, witness statements to Kerala police and chargesheets - reveals a confused account of what warnings were given, and when, before the two marines fired two volleys of shots from their assault rifles.
A key question at the heart of the Enrica Lexie case is whether the ship's crew followed established shipping industry guidelines on the use of all non-lethal measures, including evasive action, before using force as a last resort.
The incident is the first known fatal shooting involving military personnel on a commercial vessel. It has shone a spotlight on the loosely regulated, nearly two-year-old practice of placing private and military armed guards on ships as protection against pirate attacks.
The case navigates uncharted legal waters. Maritime experts say it is the first test of whether military personnel enjoy sovereign immunity aboard commercial vessels, who should authorize the use of lethal force - the ship's captain or the commander of the security team - and how far out to sea a country's laws can be enforced.
"I hope this has drawn attention to the grey areas in jurisdiction over armed guards," said Peter Hinchliffe, secretary general of the London-based International Chamber of Shipping, which represents more than 80 percent of the world's merchant fleet.
"There is a real and present need for the development of international regulation over the use of armed force to defend world trade as it is carried around the world in merchant ships," Hinchliffe told Reuters.
Naples-based Dolphin Tankers, the owner of the Enrica Lexie, referred Reuters' queries to its parent company, Fratelli D'Amato, which declined to comment.
Pirate attacks cost billions of dollars every year - as much as $5.7-6.1 billion in 2012, according to The Oceans Beyond Piracy advocacy group - prompting shipping companies to turn to armed security guards.
While attention has generally focused on waters near Somalia, pirates operate further afield, disrupting shipping on global routes in the vast Indian Ocean and into the Red Sea. Thanks to naval patrols and armed guards aboard ships, global pirate attacks fell to 297 in 2012, compared with 439 in 2011, the International Maritime Bureau reported in January.
COUNTRIES OFFER SOLDIERS FOR HIRE
The Enrica Lexie case has soured relations between India and Italy. Italian foreign minister Giulio Terzi quit in March after his government returned the marines to India for trial, saying he was stepping down to protect the "honor of the country, of the armed forces, and Italian diplomacy".
India arrested the marines when their ship berthed at an Indian port several days after the incident. It allowed the men to return home to vote in Italy's general election in February but Rome then refused to send them back, infuriating New Delhi. Italy reversed its decision after the Indian Supreme Court said the Italian ambassador to New Delhi would be barred from leaving the country.
The marines are due to go on trial by July. A Supreme Court order said they could stay at the Italian embassy while awaiting trial but they must report to a police station once a week.
The Italian government plans to challenge India's jurisdiction when the trial starts, the Indian lawyers for the marines told Reuters. They say they will argue that Italy considers its merchant vessels Italian soil and that the marines were performing their sovereign duty to protect the ship.
The marines will say the 14-metre fishing boat was on a collision course with the 244-metre Enrica Lexie at the time and ignored repeated warnings to change direction, according to their lawyers and a Supreme Court petition they filed.
The Italian government has said that the shooting took place in international waters and that the marines should be tried at home. The Indian government says the marines killed unarmed fishermen on the outer edges of what it says are its territorial waters.
While onboard security has become an integral part of the shipping business model, there are no industry guidelines or even agreement among countries on the use of lethal force by anti-piracy security teams, whether military or private.
"Government policy, international organizations and international law have failed to keep pace with the rapid changes happening in the shipping and maritime private security industries," the Lowy Institute, an Australian think-tank, said in a 2012 report titled "Pirates and Privateers: Managing the Indian Ocean's Private Security Boom".
It said the Belgian, French, Italian and Dutch governments had offered private shipping companies, whose ships fly their country's flag, the opportunity to hire military security teams.
The shipping industry preferred military personnel to private contractors in the belief they "have better protection from prosecution, and more certain legal status", it said.
"For a start, you get a lot better trained personnel in some cases, you get much high-powered weaponry and you get much more certainty with the full force of government behind you if anything goes wrong," the report's author, James Brown, told Reuters in an interview.
"The real question is what is the jurisdiction to resolve disputes involving military onboard commercial ships, and as this case has shown, it's a very prickly issue," Brown said. "The issue of enjoying sovereign immunity in such a case is a largely untested area."
BULLETS LIKE RAIN
When fisherman Freddy took his 10-man crew out on his boat, the St. Antony, for a week-long fishing trip on February 7 the catch was poor. Fatally, he decided to stay out one more day, he told Reuters in an interview from his hometown of Kanyakumari in Tamil Nadu state, the southern-most tip of India.
On February 15, Freddy's luck turned with a good haul of tuna. The crew celebrated with a rice and fish curry lunch and then settled down for a snooze in the stern on the hot afternoon, leaving two sailors, one known as Jelestine and the other, Ajeesh "Pinky" Pink, to navigate, Freddy said in the interview.
The fishermen were woken by Freddy shouting. When some of them began to stand up, he ordered them to hit the deck, shouting "the people in the ship are killing us, lie down", they later recounted in their statements to Kerala police, which were obtained by Reuters.
One man, Kinserian Leon, said he peeked through his hands, to see Jelestine motionless at the wheel, "blood flowing from his ears and nose". Pinky shouted "Amme" (mother) and collapsed.
"Freddy took the wheel and steered us away, but bullets continued to shower on us like rain," Leon said in his statement to Kerala police.
Leon was not available for comment as he was on a fishing trip, Freddy said.
The Italian government account of events, contained in a submission to the Indian Supreme Court, says the ship's captain, Umberto Vitelli, followed standard international procedures for suspected pirate attacks - "setting into motion the alarm, flashing search lights and horns".
When the "pirate skiff" continued to close in on the Enrica Lexie, Latorre, the commander of a six-man marine detachment, and marine Girone took "protective action" against the boat, according to the Italian submission. The marines' Indian lawyer said this meant they had fired warning shots.
The Indian government has said that flashing warning lights at the fishing boat would have been futile as it was broad daylight at the time and they would not easily have been seen.
The International Maritime Organization (IMO), the United Nations body charged with maintaining global maritime safety, has issued measures known as Best Management Practices to help ships "avoid, deter or delay" pirate attacks.
These advise the captain to immediately increase speed, sound a general alarm to alert the crew and sound the ship's foghorn to demonstrate to any potential attacker that the ship is aware of the attack and is reacting to it.
DID SHIP SOUND HORN?
In his statement to Indian police, which Reuters has obtained, Captain Vitelli said it was only after he heard gunshots that he increased to full speed, sounded the foghorn and the general alarm.
Up until that point, he had been monitoring the fishing boat as it closed from 2.8 nautical miles to within 800 meters of the ship. In recounting the moments before the shooting, he voiced no suspicion the boat could be a pirate vessel.
In his statement, Vitelli expressed surprise at the marines' decision to open fire. "When they (the marines) were standing at starboard with weapons, I never thought that they would start (to) fire," he said.
Reuters made repeated efforts to reach Vitelli by telephone but was unable to contact him.
Five other Enrica Lexie crew members gave a broadly similar sequence of events to police although they made no mention of the foghorn being sounded, according to their statements, also obtained by Reuters.
"They didn't sound any horn. I could not have missed the sound of a horn," Martin Dharmarajan, one of the Indian fishermen, told Reuters. Freddy said he, too, never heard a foghorn at any time before or after the shots were fired.
Asked to explain the apparent discrepancy between the official Italian account and the statements of the captain and the crew members, lawyers for the marines declined to comment, saying the case was before the court.
One of the marines now awaiting trial reported seeing "persons with firearms on their shoulders" as the fishing boat closed to within 300 yards (meters) of the ship, according to a report submitted by the captain immediately after the shooting to global maritime security agencies: the UK Maritime Trade Operations (UKMTO) and the Maritime Security Centre Horn of Africa (MSCHOA).
Two crew members of the Enrica Lexie were unable to confirm the marine's sighting of weapons on board the fishing boat.
"I took binoculars ... I couldn't see any person with weapons in the boat," said James Mandley Samson, chief officer of the Enrica Lexie, in his statement to Kerala police. Another sailor on board the ship told police he, too, had seen no weapons.
Samson referred Reuters to his police statement when asked for comment.
Latorre fired 12 rounds of ammunition and Girone eight in two bursts of warning shots, according to the Italian Supreme Court petition.
"The question of ‘who is responsible for the decision to pull the trigger' looms large in light of this incident," said Andrew Varney, managing director of the U.K.-based security firm Port 2 Port Maritime, which provides private armed guards to ships.
The rules of engagement for Italian military anti-piracy teams are classified information, the Italian Navy said in an email to Reuters. The navy confirmed, however, that military team leaders, and not the captain, have exclusive command in anti-piracy operations.
"Under various maritime legislation ... the master of the ship has to have absolute control of the ship," said the Lowy Institute's Brown. But if the Italian marines "are allowed to fire on their own initiative, then arguably the captain is not in full control of the ship", he added.
"It's a very murky area."
(Additional reporting by Jonathan Saul in LONDON, James Mackenzie and Naomi O'Leary in ROME and Amalia De Simone in NAPLES; Editing by Ross Colvin and Dean Yates)