Lost at Sea, And in Law | The dangerous precedent of waiving FIRs

When a ship catches fire, breaks apart, or spills oil along the Indian coast, the logical first response would be the simple act of filing a First Information Report (FIR). This document, seemingly procedural, is in fact the legal lifeline for everything that follows: investigation, documentation, accountability, compensation, and justice. This is the same FIR that is registered when your bike hits an auto rickshaw -- one that is essential for you to claim your insurance.

In the twin back-to-back maritime disasters that struck Kerala — the MSC ELSA 3 grounding off Thiruvananthapuram in May and the Wan Hai 503 fire off Kozhikode days later — there has been a conspicuous absence of the FIR. In maritime disasters, where evidence is literally adrift or sunk, every hour lost is a case weakened.

FIR: Not a formality, but a legal necessity 

The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, empowers the nation to exercise full sovereign and criminal jurisdiction up to 200 nautical miles for environmental and security violations. Additionally, Section 4(2) of the Bharatiya Nyaya Sanhita (BNS), 2023 affirms that Indian criminal law applies to any person aboard a ship affecting Indian interests, regardless of the vessel’s flag or location. 

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in Section 173, clearly mandates that an FIR must be registered upon receiving information about a cognisable offence. The Supreme Court in Lalita Kumari v State of Uttar Pradesh [(2014) 2 SCC 1] affirmed this principle as inviolable. 

When a foreign ship like the MSC ELSA 3, laden with hazardous cargo including calcium carbide, capsizes in Indian waters, and when a vessel like Wan Hai 503 explodes with flammable containers visible from Kerala’s shores, provisions of the BNS such as Section 123 (Negligent handling of poisonous substances), Section 125 (Acts endangering life or public safety), and Section 281 (Danger to public health or navigation) are all attracted. Legally, an FIR is inevitable. 

Clear global precedents

Around the world, prompt filing of FIR-equivalents has been the cornerstone of maritime disaster response. In Spain’s Prestige oil spill (2002), early legal action enabled the Spanish government to secure €1.6 billion in compensation from insurers and the ship owner. After the X-Press Pearl explosion near Sri Lanka (2021), swift legal filing led to a record compensation claim of $878 million. India’s own experience with the MV Rak Carrier (2011) off Mumbai shows the flip side. No FIR was filed, evidence was lost, and no compensation was ever secured despite the environmental damage.

The Kerala Police routinely investigate crimes with cross-border elements under the Code of Criminal Procedure, and courts have upheld this, as seen in the Enrica Lexie case involving Italian marines. In any event, the effects of the capsizing — including pollution, cargo washout, and endangerment — were experienced squarely on the Indian coast, which gives the local police full jurisdiction under the ‘effects doctrine’ recognised both in Indian law and international jurisprudence.

The Cost of Silence: From ₹20,000 crore to ₹10 crore

Without an FIR or legal action establishing liability, compensation claims can shrink from ₹20,000-plus crore to just under ₹10 crore, especially when insurers treat the incident merely as a cargo loss, not a pollution or third-party liability event. Standard marine insurance policies typically cover the cargo’s declared commercial value, often just a few crores per container ship, while third-party and pollution-related liabilities fall under P&I (Protection and Indemnity) Club coverage. 

However, even in such P&I policies, the practical payout depends on fault being established, and the coverage caps vary — often ranging from $5–20 million (₹40–160 crore) for pollution and wreck removal under standard tiers. Without a legal claim backed by an FIR or prosecution, even these limits remain theoretical, and shipowners or insurers can dispute or delay payment, citing absence of negligence, State-verified damage, or enforceable claims. In the Indian context, failure to register an FIR has historically led to zero compensation, even in large-scale marine pollution events.

While large shipping corporations invoke clauses and policies, fisherfolk see their catch poisoned, marine exports dwindle, their boats idle, and their income disappear progressively as the poisonous debris disintegrates. 

Bureaucratic overreach?

In the aftermath of the MSC ELSA 3 disaster, a file note dated May 29, issued by Kerala Chief Secretary A Jayathilak contained this unusual paragraph:

“The general consensus was that a criminal case need not be filed immediately and that the entire focus at this time should be on collecting evidence of damages so that evidence-based claims can be raised.”

The chief secretary directed that criminal proceedings can be deferred so that “evidence-based claims” may be raised. But this reflects a serious misunderstanding of law. In India, only evidence collected through a police investigation triggered by a registered FIR is considered legally authoritative and admissible for prosecution, compensation, and international claims. Any so-called evidence collection done outside the framework of the BNSS lacks statutory powers — there is no legal provision to compel witness statements, seize contaminated cargo, or preserve forensic integrity without an FIR. Reports by administrative officers, port authorities, or insurers hold little to no evidentiary value unless backed by a judicially overseen investigation. We now risk the loss of admissible evidence, breaking the chain of custody, and undermining its own as well its citizens’ future claims — both in domestic courts and global arbitration forums. 

The ‘consensus’ to withhold filing an FIR may attract Section 70 (criminal conspiracy) of the BNS, which penalises an agreement between two or more persons to commit an illegal act, or a legal act by illegal means. Additionally, directing public servants to withhold mandatory legal action could attract Section 272 (public servant disobeying the law with intent to cause injury) and Section 255 (negligent conduct of public servant). Such a decision could also amount to abetment of omission under Section 55 read with Section 43 of the BNS.

Why shield a foreign company? 

What exposes the intentions behind the order is evidenced in the immediate paragraph after the advance clemency:

“The MSC is a reputed company which patronises the Vizhinjam International Sea Port… It is also in their interest to cooperate with Kerala and settle the claims through the insurance agency.”

This rationale is both perilous and precedent-setting. Tomorrow, if a profitable industrial unit triggers a chemical leak, will prosecution be paused in the interest of investment? If a popular actor — socially influential or politically connected — commits a heinous crime like rape, will ‘consensus’ suffice to prevent an FIR? How far are we willing to bend the law, and more pointedly, who are the ones who will not benefit from this selective ‘consensus’? 

Illegal orders and its consequences 

Numerous Supreme Court judgments and provisions of BNSS  make it clear that FIR registration is non-discretionary and failure to do so constitutes dereliction of duty. The Supreme Court in R P Kapur v Union of India [AIR 1964 SC 787] and Vineet Narain v Union of India [(1998) 1 SCC 226] affirmed that executive authority cannot override statutory duties, particularly in matters of criminal investigation.

Any instruction to withhold FIR registration violates Section 118 and Section 255 of the BNS, which criminalise disobedience of law and wilful misconduct by public servants to shield wrongdoers. Additionally, under the Central Civil Services (Conduct) Rules, 1964 — and equivalent state rules — civil servants are explicitly prohibited from complying with illegal orders.

Under law, no civil servant is bound to obey an illegal order, and this principle applies with even greater force to police officers discharging statutory functions. Hence, it is high time that the police got their act together to register an FIR. 

Respond like a mature maritime nation

With more mega-ships and chemical-laden vessels likely to frequent the Vizhinjam port, a professional disaster and legal response mechanism is not a luxury — it is a necessity.

We need a dedicated Marine Disaster Response Centre (MDRC) backed by Coast Guard, Pollution Control Boards, Navy, and legal experts on the West Coast to file FIRs within hours, initiate criminal probes, liaise with global conventions like MARPOL, CLC, and Nairobi Wreck Convention and ensure that bureaucrats don’t cede ground and commit legal blunders.

Let the sea not wash away our laws

Under international legal frameworks state action is not merely procedural — it is a prerequisite for seeking economic and environmental reparations. Without invoking its criminal jurisdiction, a nation forfeits its standing to press claims under these treaties. A state that cannot produce an FIR in court risks being laughed out of international arbitration forums.

Kerala is poised to handle hundreds of large container vessels annually. If we set a precedent that FIRs can be waived based on informal ‘consensus’, what happens during the next disaster? What happens when it’s not cargo containers washing ashore — but human casualties? 

Let this moment spark a minimum awareness — that laws passed by Parliament are not negotiable instruments to be suspended in the name of consensus or convenience. Above all, let it remind us that the law exists not to protect the powerful, but to defend the voiceless — the fishing communities who live and die by the sea. The first step in that defence is to salvage the FIR.

(Prasanth Nair is a civil servant and author. X: @PrasanthIAS.)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.