This document discusses an incident involving the Panama-flagged cargo ship NYK Tosa and a Taiwanese fishing vessel. It alleges collusion between NYK Lines, NYK Ship Management, and Taiwanese authorities, and argues that the trial of the NYK Tosa crew members in Taiwan violates international law. Key points made include: NYKSM denied a transcript request to the defense but provided it to prosecutors; the 2nd officer's actions were reasonable given the circumstances but he is facing unjust charges; and Taiwan lacks jurisdiction over crew members of a foreign-flagged vessel on the high seas.

1. 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.

2. 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
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.

3. 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
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

4. misconceived claims and have no basis whatsoever in national or international law. The
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

5. hours to skirt Target B, followed by hard port soon after to avoid Target 1 and Target 2
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.

6. 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

7. 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: 2009/7/29
Subject: Re: Transcript of the oral communication between the Tosa and the
CG119 - April 17th, 2009 to April 18th, 2009
To: 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 regards
Hemant Pathania
--------------------------------------------------------------------------------------------------------

8. preetha aroza <preetha.aroza@gmail.com>
28/07/2009 08:11 PM
To
Hemant Pathania <hs.pathania@nyksm.com.sg>
cc
Capt 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>
Subject
Transcript 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?

9. 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 AM
Subject: IMMEDIATE TRANSFER OF JURISDICTION FROM TAIWAN TO
PANAMA - CAPT. GLEN AROZA & 2 OTHERS M.T. TOSA, NYK
To: 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)

10. 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

11. ---------- Forwarded message ----------
From: Kaljit Gill <KGILL@imo.org>
Date: Wed, Jul 15, 2009 at 5:35 PM
Subject: CAPT. GLEN PATRICK AROZA (EX-MASTER, M.T. TOSA, NYK
SHIP MANAGEMENT PVT. LTD)
To: preetha.aroza@gmail.com
Cc: 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. Balkin
Director, Legal Affairs and External Relations Division
IMO

12. NOTE:
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.”
(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

13. 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 .]
(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]

14. (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.]
[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

15. 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 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

16. 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.
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 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.]

17. 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”.
Article 276 “those who commit murders due to professional negligence shall be imposed
fixed-term imprisonment for up to five 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.]
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

18. 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, “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.”]

19. 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.
[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 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.

20. 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.
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.

21. 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.
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