The Kerala High Court on Tuesday (July 21) orally questioned the Centre over the continued detention of the foreign crew members of the Liberian-flagged MSC Elsa 3 ship, which capsized in May last year, observing that India is bound by international obligations to ensure the fair treatment of seafarers.

Subsequent to the accident, a slew of litigation has ensued, including public interest litigations and admiralty suits before the High Court as well as criminal cases and statutory investigation under the Merchant Shipping Act, pending before the Magistrate court.

Justice Bechu Kurian Thomas today orally remarked that he was of the opinion that at least some of the crew members need not stay in India until the statutory investigation is over:

"Our judicial system is also under scrutiny...Our country is bound by the international covenants. Guidelines on the fair treatment of seafarers in the event of a maritime accident, 2006. We are bound to treat them fairly...Detaining them without any reason because an investigation...I personally feel that...they should not be retained here. Or at least, some of them...Why should they remain here until that enquiry is over? They can participate in the inquiry either through online...” the Court observed.

The development comes in a plea filed by seven foreign crew members of the ship seeking to return to their respective home countries.

Earlier, the Court had allowed three of the seven crew members to return home on modified conditions. The three persons permitted to leave are not named in the preliminary inquiry report in the statutory investigation under the Merchant Shipping Act nor are they accused in the criminal case registered by the Coastal Police Station, Fort Kochi.

Presently, four of the petitioners, including the master of the vessel, the chief officer, the chief engineer, and the second engineer, are still in the country.

The Court today orally expressed its inclination to permit two of the petitioners, unnamed in the preliminary inquiry report, to leave the country on conditions:

"I am inclined to allow these two to leave...Your report, after you conducted a preliminary enquiry, you found only the involvement of [petitioners] 1 and 3. You have asked the learned magistrate to enquire only into that...Which is the document that the Directorate General of Shipping issued?...You yourself had found only these three persons to be responsible for the operation of the ship. Petitioners 2 and 4, they have no connection with the operation of the ship. They are employees of the ship. Why should they stay here?...Probably you can insist on conditions. They can appear online. If the magistrate want, they can appear personally. But your request for investigation after preliminary inquiry concluded that only three persons are responsible to the ship, not these employees."

The Court also orally asked about what the worst case scenario would be in case the petitioners are found to be guilty in the criminal offences or the courts find liability to pay compensation.

"Maximum what can happen? Maximum, the worst scenario, suppose everything is found against them, what can be found?...What is the point, I really don't understand. Merely because an enquiry is going on, a person should remain in a foreign country and the investigation or the inquiry goes on and on and on. Now, I can understand that if it was a murder case or a very serious capital offence or having life imprisonment. Maximum pleading guilty in the criminal case so far…If they don't appear, they can even be convicted. What is the maximum conviction? 6 months?...Now, ultimately, suppose the enquiry reveals that they were negligent, what is the maximum that can be? Can the magistrate find more than what the police investigation has revealed?...Suppose, some offence have been found to be committed. We can charge them. I can understand you saying that there must be specific conditions to ensure their presence in the country...Maximum is they can be caught upon to face the trial? But why should they be in the country?...Suppose these two persons leave the country, how does it affect the claim for compensation? Even then, it becomes a maritime lien, you can attach the ship anywhere. Anywhere in the world, you can go and attach. Territorial jurisdiction can be exercised all over," Justice Bechu orally said.

The case is next posted to July 28 (Tuesday) for further consideration.

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. 17115/2026

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