'Liberty Can't Be Affected Merely Because They Are Foreigners': Kerala High Court Orally Remarks In MSC Elsa 3 Crew's Plea To Return Home

The Kerala High Court on Monday (June 1) questioned the Union of India over its inquiry into sunken Liberian-flagged vessel 'MSC Elsa 3', orally remarking that due to the non-completion of inquiry the liberty of the foreign crew members is being after as they are not being permitted to return the their respective countries.

Justice Bechu Kurian Thomas made the oral observation while hearing the writ petition filed by the captain and six other crew members of the ship that sank off the coast of Kerala on May 25, 2025, causing grave environmental, ecological and economic damages. The petitioners claimed that they have not been permitting to leave India due to a pending inquiry in relation to the sinkage and had sought to return to their homes. 

"Their liberty is being affected. Merely because they are foreigners, their liberty cannot be affected like this. Your officers are conducting investigation like this at their whim and fancy. And not filing any report to let it come to a conclusion and these persons are staying here. Look at the harm that is being caused to the individual...You live in the lap of luxury in a foreign country, even 2 days would be sufficient to create mental agony. They would be affected mentally," the Court said to the counsel appearing for the Union of India. 

Senior Advocate Grashious Kuriakose appearing for the crew members that they have been staying in India for the past one year and one of the petitioners' wife has been diagnosed with cancer also. He further informed the Court that the company, MSC (Mediterranean Shipping Company) had already furnished a bank guarantee of around Rs. 1200 crores in the admiralty suit filed by the State.

"There can be two types of actions: one, criminal action, for which already an FIR has been registered, investigation has Surprisingly, it has not been completed for one year...My view is that we are not going to let them go scot-free. But these persons, they are only captain…they cannot be retained in the country until investigation is completed and for the last one year, investigation has been going on. If some other authority has started investigation, already delayed in commencing investigation. Imagine, we are in a foreign soil, a stay extended even by one day the mental trauma and agony that will be caused immense...What can they do? Morning till evening, watch TV? There is a limit to watching TV. They cannot roam around," Justice Bechu orally observed.

The Court was then told that a final report has been filed by the Coastal Police Station alleging offences under Sections 324 [Mischief], 282 [Rash navigation of vessel], 284 [Conveying person by water for hire in unsafe or overloaded vessel], 285 [Danger or obstruction in public way or line of navigation], 286 [Negligent conduct with respect to poisonous substance], 287 [Negligent conduct with respect to fire or combustible matter], 288 [Negligent conduct with respect to explosive substance], 3(5) [common intention] of the Bharatiya Nyaya Sanhita.

It was informed to the Court that there is another inquiry pending, which seeks to find out whether the vessel was unseaworthy and if found, there would be grave consequences for the same. The inquiry has been initiated by the Mercantile Marine Department (MMD) of the Directorate General (DG) of Shipping.

At this juncture, the Court intervened and asked, "Till that inquiry is completed, should these persons remain here? The inquiry may take 5 years, should they be remaining in India? When did MMD start? State of inquiry?"

The reply was that the investigation started on 28th July, 2025. On hearing the same, the Court reminded that there are guidelines on fair treatment of seafarers in case of maritime accidents which need to be followed:

"Please tell your MMD or anybody who is inquiring that there is a guideline on fair treatment of sea farers in the event of a maritime accident. You can't raise each and every objection and compel them to remain here. Whenever you want, you can ask them to appear or you can..there is a bank guarantee, you can invoke the bank guarantee. But there is a limit to this. Persons are staying here. The captain of the ship has been staying here for the last more than one year."

The Court refused to accept the ASGI's contention that there is an alternative forum to address the grievances. It said:

"When the Court is seized of the matter, why should I relegate them to any other person? It's under Article 226...Personal life and liberty. High Court can consider."

Senior Counsel for the petitioners then submitted, "At the most, what the MMD can do is conduct an investigation and file a report. If the report is against the shipping company, that will be considered as a piece of evidence in the criminal prosecution. The offences are the very same offences. They can plead guilty."

Agreeing, the Court orally said: "If unseaworthy vessel was taken into the sea, that may be a ground for arriving at the conclusion that negligent conduct with respect to machinery, conveying persons by hire in unsafe and overloaded vessel. All these sections will apply probably only after a report of the MMD saying that the vessel was unworthy. Probably that could be the reason."

The matter was then adjourned granting time to the ASGI to file a statement and calling for a report a status report by the State government.

The next posting is on Monday (June 8).

The petition is moved by Senior Advocate Grashious Kuriakose and Advocates Pranoy Kottaram, Amitava Majumdar, Goenka Ruchir Bikas Chandra, Ashutosh Tiwari, Sivaraman P.L, Athul Babu, and Sreenand Udayan.

ASGI P. Sreekumar appeared for the Union, Directorate General and MMD.

Case No: WP(C) No. 2026

Case Title: Ivanov Alexander and Ors. v. Union of India and Ors.