Appendix 4.37 (En)

Directory Verdict of the Supreme Court of the Republic of
Indonesia
putusan.mahkamahagung.go.id
VERDICT
Number 106/ Pid.Sus/ 2020/ PN.Tpg
FOR THE SAKE OF JUSTICE BASED ON THE ALMIGHTY GOD

The Tanjung Pinang District Court, which hears criminal cases using
ordinary examination procedures at the first instance, has handed down the
following verdict in the Defendant's case:
Full name : FRANCESCO SOMA

Place of birth : Meta
Age/date of birth : 65 years old / May 25, 1955
Gender : Male
Nationality : Italy
Residence : Via Olivari 25 Meta Italia..
Religion : Catholic
Occupation : Captain of Ship MT. SEAWAYS
Education
The defendant in this case was not detained:
The defendant in this case was accompanied by his legal advisor DR. D
YA H ERSITA YUSTANTI, SH.MH who acted based on a Special Power of
Attorney dated 11 February 2020 which was registered in the Tanjungpinang
District Court Register under Register Number 176/SK/IV/2020 dated 17 April
2020 which exercised Substitution Power of Attorney to Drs. ANNUR
SYAIFUDDIN, SH based on Substitution Power of Attorney dated 22 April
2020 under Register number 183/sk/IV/2020 dated 24 April 2020
The defendant in this case was accompanied by a certified foreign
language translator, namely English, whose full name was Ardi Gunawan and
who had taken an oath to translate from English to Indonesian or vice versa from
Indonesian to English;
the District Court;
After reading:
- Determination of the Chairman of the Tanjungpinang District Court Number
106/Pid.Sus/ 2020/ PN. TPG dated April 8 2020 regarding the appointment of
the Panel of Judges;
- Determination of the Chief Judge Number 106/ Pid.Sus/ 2019/ PN Tpg dated
April 8 2020 concerning the determination of the trial day;
- Case files and other relevant documents;
Page 1 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg
Disclaimer
The Registrar's Office of the Supreme Court of the Republic of Indonesia strives to always include the most up-to-date and accurate information as a form of the Supreme Court's commitment to public service,
transparency and accountability in the implementation of judicial functions. However, in certain cases it is still possible for technical problems to occur related to the accuracy and up-to-dateness of the information we
present, which we will continue to improve from time to time.
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If you find inaccuracies in the information contained on this site or information that should be there, but is not yet available, please immediately contact the Registrar of the Supreme Court of the Republic of
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After hearing the statements of the Witnesses, Experts and Defendants;
After paying attention to the evidence in this case;
After hearing the reading of the criminal complaint dated 11 May 2020 submitted
by the Public Prosecutor which was in essence as follows:
1. Declare that the Defendant, FRANSESCO SOMA, has been legally and convincingly
proven to have committed the crime of "Shipping" as stated in the Public Prosecutor's
indictment for violating Article 317 in conjunction with Article 193 paragraph (1) of
Republic of Indonesia Law Number 17 Year 2008 concerning Shipping;
2. Sentences the Defendant FRANSESCO SOMA to imprisonment for 2 (two) months
and a fine of IDR 150,000,000 (one hundred and fifty million rupiah) with the provision
that if the fine is not paid it will be replaced by imprisonment for 3 (three) months, with
order that the defendant be immediately detained;
3. Declaring Evidence in the form of:
1 (one) unit of Tanker Ship MT. Seaways Mulan with the Marshall Island flag
161233 GT and equipment;
2. Captain's Passport YA6867162.
3. Documents : -
• Port Clearance
• Change of Statements
• Mi Declaration Form (MI-297B)
• Cert, of Registry
• Int'l Tonnage Cert
• Bridge Letter
• Suez Canal Special Tonnage Cert.
• Ml Tonnage Tax Receipt
• USA Tonnage Tax Receipt
• Ml Ship Radio Station License
• Minimum safe Manning Cert.
• Ml Continues Synopsis Record (CSR)
• Safety Conduction Cert.
• Record of Conditions of Assignment
• Load Line Cert.
• Safety Equipment Cert.
• Safety Equipment Cert. (Form E)
• Record of Safety Equipment
Disclaimer
The Registrar's Office of the Supreme Court of the Republic of Indonesia strives to always include the most up-to-date and accurate information as a form of the Supreme Court's commitment to public service, transparency and
accountability in the implementation of judicial functions. However, in certain cases it is still possible for technical problems to occur related to the accuracy and up-to-dateness of the information we present, which we will continue to
improve from time to time.
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• Safety Radio Cert.

• GMDSS Annual Survey Checklist
• Approved GMDSS Radio Installation
• IOPP
• IOPP Form B
• Sewage Cert
• Approved Rate Untreated Sewage
• IAPP
• Anti Fouling System
• Record of Anti Fouling System
• Ship Emergency Response Service (SERS)
• OWS Calibration Cert.-ANNUAL
• ODME Calibration Cert.-Annual
• EPA (NPDES) VGP Drydock Survey
• EPA Notice of Intent
• VGP Annual Report
• Energy Efficiency Cert. (IEEC)
• Ballast Water Management Cert.
• Safety Management Cert. (SMC)
• Declaration of DPA
• Document of Complaint (DOC)
• Shipsecurity Cert. (ISSC)
• Declaration of CSO
• SSP Class Approval Cert.
• EIAPP Cert Main Engine
• EIAPP Cert Main GEN No.I
• EIAPP Cert Main GEN No.2
• PMS Class Approval Cert.
• Cert of Class
• Lifeboats Service Annual
• Lifeboats Service-5 Years/Hooks
• LifeboatsBottles Hydrotest-5 Years
• Liferafts
• HRU Liferafts
• Immersion Suits
• Fixed C02 System-Annual
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• Fixed C02 Syste m Hydrotest-10 Years

• Foam Analysis Annual (3%deck-6000L)
• Foam Applicator-Annual
• Portable Fire Extinguishers-Annual
• Portable Fire Extinguishers Hydrotest
• Deep Fat Fryer/Galley C02 - Annual
• CSBA Hydrotest
• CSBA-Annual
• Air Quality Test- Annual
• EEBD Hytdrotest
• EEBD-Annual
• Medical Oxygen Cylinders Hydrotest
• Medical Oxygen Cylinders-Annual
• ITF Green Card
• Crew Accommodation Compliance (Ho 92)
• Sanitation Cert
• Medicine Chest Cert.
• AGM- Asian Gypsy Moth
• Alcotest Calibration Cert.
• Random Drug/Alcohol Test-Shore Annual
• Compass Deviation Card
• Gyro Compass Annual Service
• GMDSS Shore Based Maintenance Cert.
• S-VDR Pervormance Test- Annual
• LRIT Conformance Test
• AIS Annual Test
• EPIRB Annual Test
• SSAS Annual Test
• SART Annual Test
• VHP Annual Test
• Technician GMDSS Annual Report
• Guard PL I
• CLC 1992- OH Pollution
• USCG Cofr
• California Cofr
• Liability Insurance Cert-Hull
• Liability Incurrence Cert-War Risk
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• CLC-2001 Bunkers
• CLC 2007 Removal of Wrecks
• Ml Safety Inspection Annual
• USCG Coc/TVEL
• PSC/Port Sate Control Inspection
• Lifting Appliances-5 Yearly
• Elevator Service Annual
• Pumproom L ballast Fixed Gas Detection
• MMC S/N 12997
• MMC S/N 20888
• MMC S/N 20891
• MMC S/N 10716
• MMC S/N 20890
• MMC S/N 20892
• Charts and Publications Chartco
• Ecdis-EC Type Examination Cert.
• Ecdis QS Cert of Assessment
• Chartco Charts and Publications
• IM&M
• ISO 9001 Ship Management Approval
• VECS 02 Sensors
• IGS 02 Analyzer
• Temperature Calibrator- Annual
• Pressure Calibrator -Annual
• Tranter Basketball Personnel
• BHS Test-Annual
• Cargo Line Pressure Test 150% MAWP)
• Cargo Line Pressure Test (100% MAWP)
• Bunker Line Pressure Test (150% MAWP)
• Emergency Tranter Hose Test
• Fire/Foam line Pressure Test Annual
• Vapor Tightness Cert.
• Garbege Comminutor Incinerator
• USCG Statement of Complaint Sanitation
• USCG Statement of Compliance VECS
• Class Statement of Complaint OWS
• Cargomax Test Annual / CH. File officer
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• Suez Canal David

• Sox Emissions
• ESP Notation
• Cargo Tank Fixed Pressure Sensors
• Cargo System Pressure Gauges
• ETAAft Towing Arrangement
• Tongue Type Stopper
• Sludge PUMP
• Accommodation Fad deers
• Eori Registration
• FPD For Lifeboats
• Pilot Ladder Magnet Cert.
• Anchor Chain
• Rubber Matting Cert.
• Portable cot IGS Pressure Gauges
• Manifold Thermometers
• Heating Coil
• Ballistic Vest and Helmet
• Motorola Portable Radio
• Lifebuoy Lights
• AED Defibrillator
• Cargo Tanks Radar Gauges Calibration
• SLOP P/S Temperature Gauge Calibration
• Drafts and Ballast gauge calibration
• Bunker Tanks Gauges Calibration
• AUS System Calibration
• EPA- DRY Doc Survey
• Statement of Facts V. Groub 0.50% Sulfur
• Statement of Facts No HSFO Onboard
Returned to the rightful person through the Defendant.
4. Determine that the Defendant be charged a court fee of IDR 5,000 (five thousand
rupiah)
The defendant, in his verbal application note after being translated by an interpreter
under oath, in essence asked for forgiveness for violating the territory of the State of
Indonesia so that he could immediately return to Italy to meet his wife and children;
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The Defendant's legal advisor has submitted a Memorandum of Defense which in
essence asks the Panel of Judges to:
1.Accept and grant the Memorandum of Defense/plea submitted by the
DEFENDANT Fransesco Somma's LEGAL ADVISOR ;
2.Free the DEFENDANT Fransesco Somma from acquittal (Vrijspraak) or at least
release the DEFENDANT Fransesco Somma from all legal demands (Onslaag
van Rechtsvervolging)
3.Order the PUBLIC PROSECUTION at the Tanjungpinang District Prosecutor's
Office to RELEASE THE DEFENDANT Fransesco Somma and the entire crew of
the Ship MT Seaways Mulan.
4.Declare the ship MT Seaways Mulan and all related evidence to be returned to
its owner.
5. Charge the costs of this case to the State;
Considering, that the Defendant was brought to trial by the Public Prosecutor based
on the indictment dated 2 April 2020 Case Reg No:PDM : 13 / Eku.2 / 04/ 2020 as follows:
That the defendant Fransesco Soma as the Captain of the ship MT. Seaways with the
Marshal Island flag on Saturday 08 February 2020 at approximately 08.30 (UTC+07:00) or
at least at other times still included in the month of February 2020, located in Tanjung Brakit
Waters at position 01° 22'50' N -104° 41'28 ' E in the territorial waters of the Indonesian
state or at least in other places are still included in the jurisdiction of the Tanjung Pinang
District Court which has the right to examine and adjudicate this case, the Captain who
does not comply with the provisions, traffic procedures, shipping lanes, route systems,
shipping areas ship passage, navigation aids as intended in Article 193 Paragraph (1),
which the Defendant carried out in the following manner:
That initially the Defendant was the Captain of the Ship MT. Seaways with the Marshal
Island flag on February 5 2020 sailed from Singapore to the High Seas in accordance with
the mandate in Port Clearance issued by the Singapore State and the Defendant should
have sailed and entered the right of innocent passage and the crossing had to be
continuous, direct and as fast as possible without stopping, However, at around 20.48
(UTC+07:00), the Defendant stopped his ship and anchored at 01° 22'50' N
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-104° 41'28' E, which is included in Indonesian maritime waters and was in that position
until Saturday 08 February 2020 at approximately 11.50 (UTC+07:00). when the Ship MT.
Seaways was anchoring in Indonesian waters at position 01° 22'50' N -104° 41'28' E, seen
by the Navy Patrol Ship KRI Lemadang-632 which was patrolling in Indonesian sea waters
then the KRI Lemadang Ship approached to identify and contacted the ship using radar
and when approached it was discovered that the ship was named MT. Seaways and was
anchoring, afterwards the ship KRI Lemadang-632 approached and docked at the hull of
the ship MT. Seaways and boarded the ship, then members of KRI Lemadang-632
checked both the cargo and documents.
That the ship MT. Seaways when anchored at position 01° 22'50' N -104° 41'28' E was
in Indonesian Territorial Sea Waters, the ship's position is 9 nm from the mainland of
Tanjung Brakit and this position is still in the sea area of Indonesian Territorial Waters and
then the Ship MT. Seaways were escorted to Lantamal IV Tanjung Pinang for further
inspection.
That the defendant's actions are as regulated and punishable by crime in Article 317
in conjunction with Article 193 Paragraph (1) of Law of the Republic of Indonesia No. 17
Year 2008 concerning Shipping.
Considering, that to prove his accusation the Public Prosecutor has presented the
following witness evidence:
Considering, that witness Aprildo Aidi and witness Sumarno who served on the KRI
Lemadang - 632 had been properly summoned but were unable to appear as arresting
witnesses because the KRI Lemadang - 632 was carrying out routine law enforcement
operations in Anambas Waters based on a letter dated 23 April 2020 Number B
/261/IV/2020, therefore, at the request of the Public Prosecutor, with the approval of the
Defendant, the information in the Indonesian Navy's Investigation Report was read out at
the trial;
Considering that the witness Aprilldo Aidi and witness Sumarno, has sworn an oath
that was also taken according to their religion by the Indonesian Navy Investigating Officer,
namely Moch. Valri Veriandy after the person concerned gave a statement in the
investigator's Investigation Report, so that based on the Verdict of the Supreme Court of
the Republic of Indonesia Number: 661 K/Pid/1988 dated 19 July 1991, the basic rule is
that the testimony of a witness who is sworn in by the investigator due to a legal
impediment cannot be present at the trial, then has the same value as testimony made
under oath;
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1. Witness APRILDO ALDI, whose statement in the Minutes of Trial was read out, in
essence explains as follows:
The witness explained that on Saturday, February 8 2020, at around 06.45
(UTC+07:00), KRI Lemadang - 632 detected a foreign-flagged ship carrying out
anchoring activities at the Indonesian territorial border without permission. Based on
the position on Radar and Ecodis, the foreign ship was located at 9 NM from the
mainland (Tanjung Berakit) with the name MT. Seaways with a Marshal Island flag
then KRI Lemadang - 632 approached the ship's contact and at approximately 07.00
(UTC+07:00) from a distance of 1000 yards KRI Lemadang - 632 carried out an
inspection, search and the role of the lifeboat, and at TW0208.0730 (UTC+07:00) in
position 01° 22'50' N - 104° 41'28' E the lifeboat KRI Lemadang - 632 docked on the
right hull of the target ship, then the inspection team carried out an inspection. The
results of the inspection revealed that the ship anchored in Indonesian territory without
permission.
That the witness explained that the ship had no cargo. Based on the witness's
statement, the Defendant also confirmed this
2. Witness SUMARNO read his statement at the trial which in essence explained as
follows:
- The witness stated that on Saturday, February 8 2020, at around 06.45 (UTC+07:00),
KRI Lemadang - 632 detected a foreign-flagged ship carrying out anchoring activities
at the Indonesian territorial border without permission. Based on the position on
Radar and Ecodis, the foreign ship was located at 9 NM from the mainland (Tanjung
Berakit) with the name MT. Seaways flagged Mashal Island then KRI Lemadang -
632 approached the contact ship and at approximately 07.00 (UTC+07:00) from a
distance of 1000 yards KRI Lemadang - 632 carried out an inspection, search and
the role of the lifeboat, and at TW0208.0730 wit in position 01° 22'50' N - 104° 41'28'
E the lifeboat KRI Lemadang - 632 docked on the right hull of the target ship, then
the inspection team carried out an inspection. The results of the inspection revealed
that the ship anchored in Indonesian territory without permission.
The witness stated that the ship had no cargo;
Based on the witness's statement, the Defendant stated that he was correct;
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3. Witness NESTOR BINWAC AYOC, under oath at trial, explained in essence:
- That the witness is the Engine Master of the Ship MV Seaways Mulan;
- That the witness knows the Defendant, where the Defendant is the captain of the Ship
MT. Seaways Mulan with the Marshall Island flag;
- That on February 8 2020 the Ship MT. Seaways Mulan with the Marshall Island flag
anchored in rough waters after the ship carried out plotting;
- That the Ship MT. Seaways Mulan's destination is the High Seas from Singapore;
- That the owner of the ship is the Tanker Corporation in Marshall Island;
- That as far as the witness knows, there were 22 (twenty two) crew members on the
ship, including the captain.
- That, the ship had no engine damage and the ship's engine was in good condition at
that time.
- That, the witness did not know that our ship MT. Seaways Mulan entered Indonesian
waters.
- That during the anchoring, we did not report it to the Indonesian Harbor Captain
authority office
- That, the anchoring was carried out for approximately 2 (two) days
Regarding the witness statement read by the Public Prosecutor, the Defendant stated
that the statement was correct;
4. Witness SUNLE VILASAN ALFANTA under oath in essence explained as follows:

- That the witness is the Second officer on the Ship MT. Seaways Mulan;
- That the witness knows the Defendant, where the Defendant is the captain of the
Ship MT. Seaways Mulan with the Marshall Island flag;
- That on February 8 2020 the Ship MT. Seaways Mulan with the Marshall Island
flag anchored in rough waters after we carried out plotting;
- That according to the port clearance, the Ship MT. Seaways Mulan's destination
was the High Seas and at that time we were from Singapore;
Disclaimer
The Registrar's Office of the Supreme Court of the Republic of Indonesia strives to always include the most up-to-date and accurate information as a form of the Supreme Court's commitment to public service, transparency and accountability
in the implementation of judicial functions. However, in certain cases it is still possible for technical problems to occur related to the accuracy and up-to-dateness of the information we present, which we will continue to improve from time to
time.
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- That the owner of the ship is the Tanker Corporation in Marshall Island;
- That as far as the witness knows, there were 22 (twenty two) crew members on
the ship, including the captain.
- That, the ship had no engine damage and the ship's engine was in good
condition at that time.
- That, the witness did not know that our ship MT. Seaways Mulan entered
Indonesian waters.
- That, the anchoring was carried out for approximately 2 (two) days.
- That during the anchoring, we did not report it to the Indonesian harborCaptain
authority office.
Regarding the witness's statement, the witness did not object;
Considering that the Public Prosecutor has also proposed the following
Experts:
1. Nautical Expert HAKA ANDINANTHA under oath in court explained in essence the
following:
That the expert's expertise is in the field of nautical which is currently an expert working
at Lantamal IVTanjung Pinang;
That, what is meant by territorial sea is waters 12 nautical miles wide as measured from
the outermost baseline of an island;
That the territorial line in map 352 is a line in the form of an elongated dash and there is
a ++ sign 2 (two) times;
That, after plotting the coordinate points, it was discovered that the ship MT. Seaways
Mulan is in the waters of Berakit Island, Bintan, 11.2 NM from Berakit Island, which is
part of the Indonesian territory;
That in the case of anchoring, if the ship is damaged and is in the anchor position,
during the day the ship must have one black ball-shaped sign placed on the main mast
of the ship, then at night the ship must use a white light placed on the mast of the main
part of the ship that can be seen from all directions.
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2. Maritime Law Expert in the name of ARIE AFRIANSYAH, SH, MIL, PH.D, whose
Minutes of Examination was read out in court under oath stated in essence the
following:
- That the rules at sea in Indonesia, for the most part, follow international rules. In
Article 18(2) UNCLOS, it is said that "Passage shall be continuous and expeditious.
However, passage includes stopping and anchoring, but only in so far as the same
are incidental to ordinary navigation or are rendered necessary by force majeure or
distress or for the purpose of rendering assistance to persons, ships or aircraft in
danger or distress.” From this provision it is clear that even if a foreign ship is
exercising the right of innocent passage, it may only stop or anchor if the activity is
"incidental to ordinary navigation". So only in incidental or occasional circumstances
or necessary in sailing. Meanwhile, in national law, it is clear in PP no. 36/2002
concerning the Rights and Obligations of Foreign Ships in Carrying out right of
innocent passages through Indonesian Waters, Article 3 Paragraph 4 states that "In
carrying out right of innocent passages..., foreign ships may not drop anchor, stop, go
back and forth, unless it is necessary to do so. due to force majeure, or disaster or
because of helping people, ships or aircraft that are in a state of disaster;
Whereas for foreign ships that intend to stop and anchor, they should obtain
permission from the coastal state authorities for shipping security reasons;
- Based on the information obtained by the experts, the ship MT. Seaways Mulan with
the Marshall Island flag stopped and anchored deliberately to wait for the queue to
enter the territory of another country. This certainly cannot be justified in the context of
"incidental to ordinary navigation" because the Ship MT. Seaways Mulan with the
Marshall Island flag had already intended to stop and anchor so it needed permission
from the coastal state;
- The expert explained that Indonesian law enforcement officials could carry out legal
proceedings against the Ship MT. Seaways Mulan with the Marshall Island flag
because it has violated Indonesian national law. Apart from not fulfilling the elements
of implementing the right of innocent passage, the ship can also be said to have
violated the regulations of the shipping law
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Indonesia number 17 Year 2008 Article 193 paragraph 1 which states that "During
sailing the captain is obliged to comply with the provisions relating to: a. traffic
procedures; b. shipping; c. route system; d. ship traffic shipping areas; and e.
Navigation Aids.”;
-That ship MT. SEAWAYS Mulan with the Marshall Island flag can be said to violate
Article 193 paragraph 1 because it does not follow traffic regulations in Indonesian
maritime territory. This will greatly endanger navigation traffic in Indonesian maritime
areas. Ship MT. SEAWAYS MULAN with the Marshall Island flag can also be said to
be in violation because logically navigation does not comply with the route system that
has been given to it to reach its destination according to its route;
- That Article 317 in conjunction with Article 193 paragraph (1) of Law No. 17 Year 2008
concerning Shipping can be applied to MT Ships. No. 7 SJ GAS flag of South Korea
for not following traffic regulations in Indonesian maritime territory. This will greatly
endanger navigation traffic in Indonesian maritime areas. Ship MT. No. 7 SJ GAS of
the South Korean flag can also be said to be in violation because logically navigation
does not comply with the route system that has been given to it to reach its
destination according to its route;
- Whereas in Article 3 paragraph (4) PP 36 of 2002 that "In carrying out the right of
innocent passage as intended in paragraph (1), paragraph (2), and paragraph (3),
foreign ships may not drop anchor, stop, go back and forth, unless this needs to be
done because of force majeure, or disaster or because of helping people, ships or
planes that are in a state of disaster." In fact, this regulation eliminates the phrase
"includes stopping or dropping anchor as long as it is related to normal navigation"
contained in Article 11 paragraph (3) of Law 6 of 1996. This shows that more specific
settings can override more general rules (lex specialis derogate lex generali).
Anchorings done by MT. No. 7 SJ GAS South Korean flags to wait in line to enter the
port are NOT INCLUDED in the "incidental to normal navigation" category.
- That in shipping navigation, the ship will take the closest route as long as it is
considered safe for navigation and does not violate the territory of another country. As
many may know
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Some international ports in the world are very busy, causing queues for foreign ships
to enter the destination port. Circumstances like this can certainly be predicted by the
ship owner and captain so that time is needed to wait in line and the ship needs to
anchor to ensure the ship does not move far from its waiting position. This anticipatory
thing is what the ship owner or captain needs to do if they have to wait in the area.
Other countries must within a certain time request permission from the coastal State
authorities. In other words, anchorings for waiting in line to enter the harbor are NOT
INCLUDED in the “incidental to normal navigation” category. If you do not ask for
permission, it could be considered to be disrupting the traffic and shipping security of
the coastal State.
Considering, that the Defendant did not present a defense witness (a de charge )
even though he had been given the opportunity by the Panel of Judges;
Considering, that the Defendant at the trial has provided information which in essence
is as follows:
- That, the defendant is the captain of the Ship MT. Seaways Mulan with the Marshall
Island flag which anchored in position 010 22' 50” N - 1040 41' 28” E which is included
in Indonesian waters;
- That the defendant departed from Singapore on 5 February 2020 at 14.30 Singapore
Time and sailed to the High Seas in accordance with the mandate of Port Clearance.
On February 8 2020 at approximately 08.30 (UTC+07:00) Singapore time, the
Indonesian Navy called the defendant's ship via Radio Chanel 16 and they asked for
permission to board the defendant's ship to carry out an inspection, at around 08.42
Singapore time three fully armed navy members said that the ship the defendant was
captaining was in Indonesian waters illegally, therefore the defendant was asked to
follow the Indonesian navy ship to Tanjung Uban waters for inspection.
- That the defendant anchored in the Indonesian territorial sea at position 010 22' 89" N -
1040 41' 38" ” U - 1040 41' 28” T, so approximately the defendant has been in that
position for 3 (three) days.
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- That after the defendant plotted the coordinates, the defendant's anchor
was in Indonesian waters 11.2 NM from Berakit Island.
- Whereas, the defendant thought that the position of the anchor of the
defendant's ship was in the High Seas because on the defendant's
electronic map there was no marking of the Territorial Sea boundary line;
- That the owner of the ship was 1372 Tanker Corporation located in
Marshall Island;
- Whereas, the number of ABK / Crew was 22 (twenty two) people including
the defendant as the captain;
- That when the defendant carried out the anchor, the ship was in good
condition. The Defendant was just waiting for instructions from the ship
owner to go to the next port.
- That the ship MT. Seaways Mulan has no cargo;
- That the Defendant did not contact the Indonesian Port Authority when
carrying out anchoring.
- That, the defendant was sorry and really did not know, therefore the
defendant also apologized to the Indonesian government.
Considering, that the Public Prosecutor presented evidence as
follows:
1. 1 (one) unit of Tanker Ship MT. Seaways Mulan with the Marshall Island flag 161233
GT and equipment;
3. .Documents : -
•Port Clearance
•Change of Statements
•Mi Declaration Form (MI-297B)
•Cert, of Registry
•Int'l Tonnage Cert
•Bridge Letters
•Suez Canal Special Tonnage Cert.
•Ml Tonnage Tax Receipt
•USA Tonnage Tax Receipt
•Ml Ship Radio Station License
•Minimum safe Manning Cert.
•Ml Continues Synopsis Record (CSR)
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•Safety Construction Cert.
•Record of Conditions of Assignment
•Load Line Cert.
•Safety Equipment Cert.
•Safety Equipment Cert. (Form E)
•Record of Safety Equipment
•Safety Radio Cert.
•GMDSS Annual Survey Checklist
•Approved GMDSS Radio Installation
•IOPP •IOPP Form B
•Sewage Cert
•Approved Rate of Untreated Sewage
•IAPP
•Anti-Fouling System
•Record of Anti Fouling System
•Ship Emergency Response Service (SERS)
•OWS Calibration Cert.-ANNUAL
•ODME Calibration Cert.-Annual
•EPA (NPDES) VGP Drydock Survey
•EPA Notice of Intent
•VGP Annual Report
•Energy Efficiency Cert. (IEEC)
•Ballast Water Management Cert.
•Safety Management Cert. (SMC)
•Declaration of DPA
•Document of Complaint (DOC)
•Shipsecurity Cert. (ISSC)
•Declaration of OSO
•SSP Class Approval Cert.
•EIAPP Cert Main Engine
•EIAPP Cert Main GEN No.I
•EIAPP Cert Main GEN No.2
•EIAPP Cert Main GEN No.3
•PMS Class Approval Cert.
•Cert of Class
•Lifeboats Service Annual
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•Lifeboats Service-5 Years/Hooks

•LifeboatsBottles Hydrotest-5 Years
•Liferafts
•Liferafts HRU
•Immersion Suits
•Fixed C02 System-Annual
•Fixed C02 SystemHydrötest-10 Years
•Foam Analysis Annual (3%deck-6000L)
•Foam Applicator-Annual
•Portable Fire Extinguishers-Annual
•Portable Fire Extinguishers Hydrotest
•Deep Fat Fryer/Galley G02 - Annual
•CSBA Hydrotest
•CSBA-Annual
•Air Quality Test- Annual
•EEBD Hytdrotest
•EEBD- Annual
•Medical Oxygen Cylinders Hydrotest
•Medical Oxygen Cylinders-Annual
•ITF Green Card
•Crew Accommodation Compliance (Ilo 92)
•Sanitation Cert
•Medicine Chest Cert.
•AGM- Asian Gypsy Moth
•Alcotest Calibration Cert.
•Random Drug/Alcohol Test-Shore Annual
•Compass Deviation Card
•Gyro Compass Annual Service
•GMDSS Shore Based Maintenance Cert.
•S-VDR Pervormance Test- Annual
•LRIT Conformance Test
•AIS Annual Test
•EPIRB Annual Test
•SSAS Annual Test
•SART Annual Test
•VHP Annual Test
•Technician GMDSS Annual Report
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•Gard P&I
•CLC 1992- Oil Pollution
•USCG Cofr
•California Cofr
•Liability Insurance Cert-Hull
•Liability Incurrence Cert-War Risk •CLC-2001 Bunker
•CLC 2007 Removal of Wrecks
•Ml Safety Inspection Annual
•USCG Coc/TVEL
•PSC/Port Sate Control Inspection
•Lifting Appliances-5 Yearly
•Elevator Service Annual
•Pumproom L ballast Fixed Gas Detection
•MMC S/N 12997
•MMC S/N 20888
•MMC S/N 20891
•MMC S/N 10716
•MMC S/N 20890
•MMC S/N 20892
•Charts and Publications Chartco
•Ecdis-EC Type Examination Cert.
•Ecdis QS Cert of Assessment
•Charts and Publications Chartco
•IM&M
•ISO 9001 Ship Management Approval
•VECS 02 Sensors
•IGS 02 Analyzer
•Temperature Calibrator- Annual
•Pressure Calibrator -Annual
•Basketball Traner Personnel
•BHS Test- Annual
•Cargo Line Pressure Test 150% MAWP) •Cargo Line Pressure Test (100% MAWP)
•Bunker Line Pressure Test (150% MAWP) •Emergency Tranter Hose Test
•Fire/Foam line Pressure Test Annual
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•Vapor Tightness Cert.

•Garbage Comminutor Incinerator
•USCG Statement of Complaint Sanitation
•USCG Statement of Compliance VECS
•Class Statement of Complaint OWS
•Cargomax Test Annual / CH. File officer
•Suez Canal Davit
•Sox Emissions
•ESP Notation
•Cargo Tank Fixed Pressure Sensors
•Cargo System Pressure Gauges
•ETA Aft Towing Arrangement
•Tongue Type Stopper
•Sludge PUMP
•Accommodation Laddeers
•Eori Registration
•FPD For Lifeboats
•Pilot Ladder Magnet Cert.
•Anchor Chain
•Rubber Matting Cert.
•Portable cot IGS Pressure Gauges
•Manifold Thermometers
•Heating Coil
•Ballistic Vest and Helmet
•Motorola Portable Radio
•Lifebuoy Lights
•AED Defibrillator
•Cargo Tanks Radar Gauges Calibration
•SLOP P/S Temperature Gauge Calibration
•Drafts and Ballast gauge calibration
•Bunker Tanks Gauges Calibration
•AUS System Calibration
•EPA- DRY Doc Survey
•Statement of Facts V. Groub 0.50% Sulfur
•Statement of Facts No HSFO Onb
Where each of these pieces of evidence has been legally confiscated based on
the Confiscation Approval Letter and where these goods
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tevidence has been shown to the witnesses, and the Defendant and then each of them
confirmed it;
Considering that, at the trial the defendant was shown a picture of the ship along with
documents confiscated by the Public Prosecutor, which on this occasion the Defendant
confirmed that
Considering, that based on the evidence and evidence submitted, the following legal
facts are obtained:
- That, the defendant is the captain of the Ship MT. Seaways Mulan with the Marshall
Island flag which anchored in position 010 22' 50” N - 1040 41' 28” E which is included
in Indonesian waters;
- That the defendant departed from Singapore on 5 February 2020 at 14.30 Singapore
Time and sailed to the High Seas in accordance with the mandate of Port Clearance.
On February 8 2020 at approximately 08.30 (UTC+07:00) Singapore time, the
Indonesian Navy called the defendant's ship via Radio Chanel 16 and they asked for
permission to board the defendant's ship to carry out an inspection, at around 08.42
Singapore time three fully armed navy members said that the ship the defendant was
captaining was in Indonesian waters illegally, therefore the defendant was asked to
follow the Indonesian navy ship to Tanjung Uban waters for inspection.
- That the defendant anchored in the Indonesian territorial sea at position 010 22' 89" N -
1040 41' 38" ” U - 1040 41' 28” T, so approximately the defendant has been in that
position for 3 (three) days.
- That after the defendant plotted the coordinates, the defendant's anchor was in
Indonesian waters 11.2 NM from Berakit Island.
- Whereas, the defendant thought that the position of the anchor of the defendant's ship
was in the High Seas because on the defendant's electronic map there was no marking
of the Territorial Sea boundary line;
- That the owner of the ship was 1372 Tanker Corporation located in Marshall Island;
- Whereas, the number of ABK / Crew was 22 (twenty two) people including the
defendant as the captain;
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- That when the defendant carried out the anchor, the ship was in good condition. The
Defendant was just waiting for instructions from the ship owner to go to the next port.
- That the ship MT. Seaways Mulan has no cargo;
- That the Defendant did not contact the Indonesian Port Authority when carrying out
anchoring.
- That, the defendant was sorry and really did not know, therefore the defendant also
apologized to the Indonesian government.
That based on PP no. 36/2002 concerning the Rights and Obligations of Foreign Ships
in Carrying out Right of Innocent Passage through Indonesian Waters, Article 3
Paragraph 4 states that "In carrying out Right of Innocent Passage..., foreign ships
may not drop anchor, stop, go back and forth, unless it is necessary to do so. due to
force majeure, or disaster or because of helping people, ships or aircraft that are in a
state of disaster;
That the expert is of the opinion that for foreign ships that intend to stop and anchor,
they should obtain permission from the coastal state authorities for shipping security
reasons;
That in the exercise of the right of innocent passage, the ship can also be said to violate
the rules of the Indonesian Shipping Law number 17 Year 2008 Article 193 paragraph 1
which states that "During sailing the captain is obliged to comply with the provisions
relating to: a. traffic procedures; b. shipping lanes; c. route system; d. ship traffic shipping
areas; and e. Navigation Aids.”;
That expert said the ship MT. SEAWAYS Mulan with the Marshall Island flag can be said
to violate Article 193 paragraph 1 because it does not follow traffic regulations in
Indonesian maritime territory. This will greatly endanger navigation traffic in Indonesian
maritime areas. Ship MT. SEAWAYS MULAN with the Marshall Island flag can also be said
to be in violation because logically navigation does not comply with the route system that
has been given to it to reach its destination according to its route;
That expert said it is clearly stated in Article 3 paragraph (4) PP 36 of 2002 that "In
implementing the Right of Innocent Passage as
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referred to in paragraph (1), paragraph (2), and paragraph (3), foreign ships may not
drop anchor, stop, go back and forth, unless this is necessary because of force majeure,
or disaster or because they are helping people, ships or aircraft who are in a state of
disaster." In fact, this regulation eliminates the phrase "includes stopping or dropping
anchor as long as it is related to normal navigation" contained in Article 11 paragraph
(3) of Law 6 Year 1996. This shows that more specific settings can override more general
rules (tex specialis derogate lex generali). Anchorings done by MT. Seaways Mulan with
the Marshall Island flag to wait in line to enter the port is NOT INCLUDED in the “incidental
to normal navigation” category
That the defendant has never been convicted.
Considering that everything that was revealed at the trial and is relevant for
consideration but has not been included in this verdict, to shorten the description of this
verdict, everything that has been recorded and contained in the minutes of the trial is deemed
to have been included and considered and is an integral part that is not can be separated in
this verdict;
Considering, that next the Panel of Judges will consider whether based on the legal
facts mentioned above, the Defendant can be declared to have committed the criminal act with
which he is charged;
Considering, that the Defendant was charged by the Public Prosecutor with a single
charge, namely violating Article 317 in conjunction with Article 193 Paragraph (1) of Law of the
Republic of Indonesia No. 17 Year 2008 concerning Shipping whose elements are as follows:
1. Captain;
2. Failure to comply with provisions relating to traffic procedures, shipping lanes,
route systems, shipping areas for ship traffic, and navigation aids;
Ad.l Captain Element;

Considering that the captain, based on Article 1 point 41 of Law Number 17 Year 2008
concerning shipping, is one of the crew members who is the highest leader on the ship and
has certain authority and responsibilities in accordance with the provisions of the regulations.
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legislation. The definition of a captain in article 41 point (1) of the Criminal Code is a person
who holds authority on board a ship or who represents it. Looking at the formulation of the two
laws above, a captain is a person appointed as the ruler, controller or supreme leader of a ship
he is steering.
Considering, that based on documentary evidence, namely based on the Sailing
Approval Letter (Port Clearance) issued by the MARITIME AND PORT AUTHORITY OF
SINGAPORE REPUBLIC OF SINGAPORE No E2903 for the Ship MT SEAWAYS MU LAN
with the Marshall Island flag, with zero cargo, the Defendant is known to be the Captain of
Ship MT. SEAWAYS MU LAN with thew Marshall Island flag.
Considering, that at the trial the Defendant whose full name was FRANCISCO
SOMMA was presented, whose true identity had been researched and acknowledged by the
Defendant and witnesses, namely NESTOR BINWAC AYOC and witness SUNLE VILASAN,
who was presented during the trial examination process and was carried out in accordance
with what was written in the indictment Public Prosecutor, so that errors in persona do not
occur;
Considering, the Defendant's with the full name, Fransisco Somma, is the Captain of a
Marshall Island-flagged ship, the person who is fully responsible for the ship, which is a foreign
ship. The Defendant is a legal subject or supporter of rights and obligations who can be held
accountable for every action before the law, and based on the trial examination process
carried out, the Defendant is in good health, both physically and spiritually, and can respond to
every question directed at him;
Considering, that based on the description of the considerations above, the captain's
elements have been fulfilled;
Ad.2 Elements of not complying with provisions relating to traffic procedures, shipping
lanes, route systems, shipping areas for ship traffic, and navigation aids;
Considering, that this second element concerns provisions relating to traffic
procedures, shipping lanes, route systems, shipping areas, ship traffic and navigation aids are
one inseparable unit, so that if one of them has been proven then these elements are
considered to have been fulfilled;
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Considering, that the provisions or rules refer to statutory regulations, conventions and
international maritime law. Legal regulations, namely Law no. 17 Year 2008 concerning
Shipping, Law no. 6 of 1996 concerning Indonesian Waters, and its implementing regulations,
namely PP No. 36 of 2002 concerning the rights and obligations of foreign ships in carrying out
right of innocent passage through Indonesian waters and Ministry of Transportation Regulation
Number PM 68 Year 2011 concerning Shipping Routes at Sea. Conventions, namely maritime
treaty laws that have been adopted by the Indonesian State, especially the United Nations
Convention on the Law of the Sea (UNCLOS) 1982, have been ratified by the Indonesian
State. International maritime law rules are opinions or doctrines relating to International
Maritime Law and refer to the customs and practices of resolving international maritime law
disputes from international maritime judges.
Considering, that maritime traffic procedures must comply with both national and
international laws and regulations. The provisions on how traffic is implemented in Indonesia
refer to Law no. 6 Year 1996 concerning Indonesian waters in article 11, namely that foreign
ships crossing Indonesian seas have the right to enjoy right of innocent passage and passage
such as navigation through territorial seas and Indonesian archipelagic waters for the
purposes of anchoring in the middle of the sea, or port facilities. Furthermore, in the provisions
of article 12, it is stated that passage by foreign ships must be considered to endanger the
peace, order or security of Indonesia if the ship is in Indonesia's territorial sea carrying out any
of the activities prohibited by Conventions and International Law.
Considering, that crossing the Indonesian territorial sea must be known by the Captain
in accordance with the legal facts as based on the Sailing Approval Letter (Port Clearance)
issued by the MARITIME AND PORT AUTHORITY OF SINGAPORE REPUBLIC OF
SINGAPORE No E2903 to the MT SEAWAYS MU LAN Ship with the Marshall Island flag,
with zero cargo Pier III which sails from Singapore to High Seas waters;
Considering, that based on the legal facts of the trial from the statements of witnesses
and the Defendant, it has been proven that on Wednesday, February 5 2020, the ship MT
Seaways Mulan with the Marshal Island flag sailed from Singapore to the High Seas in
accordance with the destination in the Port Clearance or Sailing Approval Letter. Then the
DEFENDANT stopped the ship and anchored at coordinates 01°22'50" N
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- 104°41'28" because the Defendant saw that there were several ships anchoring in that area so the Defendant decided
to anchor in that place. Considering, that when crossing Indonesian waters from the port of Singapore, a Captain as the
highest leader of the Ship MT. SEAWAYS MULAN with the MARSHALL Island flag must pay attention to the route
system, namely everything related to each other from all subsystems which are related to the safety of sailing from the
aspects of the ship in crossing Indonesian waters, and its relationship with the port of destination of the subsystem,
which must always have contact or approval until it arrives, it can be concluded that safe navigation is influenced by
subsystems where one problematic subsystem endangers safety.
Considering, it is known that the route system is related to shipping lanes as
formulated in article 1 number 45 of Law no. 17 Year 2008 concerning shipping are waters
that, in terms of depth, width and free from other shipping obstacles, are considered safe and
secure for navigation. Sea lanes are shipping lanes commonly used for shipping which are
designated as lanes for safe, continuous and fast shipping (article 1 number 7 PP 36 Year
2002) further in article 11 paragraph 1 it is formulated as foreign tanker ships, foreign fishing
vessels, research vessels.... in carrying out right of innocent passage using sea lanes which
are common for shipping from the South China Sea to the Indian Ocean or vice versa can use
international sea lanes via the Natuna Sea, Karimata Strait, Java Sea and Sunda Strait.
Considering, that based on Article 56 of the Regulation of the Ministry of
Transportation Number PM 68 Year 2011 concerning Shipping Lanes at Sea which states that
foreign ships crossing archipelagic sea lanes are not permitted to carry out activities including:
a. war training using ammunition;
b. may not be anchored except in force majeure circumstances;
c. hydrographic research or survey;
d. may not carry out loading and unloading activities of either people or goods except
in force majeure circumstances;
Considering, that the route system is a system created to determine the route through
which a body of water passes, which is safe and protects all aspects. Meanwhile, the shipping
area for ship traffic is shipping related to ships in the waters of a country
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port to port by maintaining safety and security and maritime protection.
Considering, that in the provisions of article 1 number 46 of Republic of Indonesia Law no.
17 Year 2008 concerning Shipping states that navigation aids are equipment or systems
located outside the ship which are designed and operated to increase the safety and efficiency
of ship navigation and/or ship traffic.
Considering, that to find out whether these elements are fulfilled or not, the Panel of
Judges must first consider according to the legal facts revealed in the trial that the ship MT.
Seaways Mulan has a Port Clearance from Singapore to High Seas;
Considering, that the ship MT. Seaways Mulan has sailed through the route system
through Indonesian waters on Wednesday 5 February 2020 at coordinates 01°22'50" N -
104°4Г28" until 8 February 2020, and has paid attention to good traffic methods peace and
navigation at sea, following the direction of ship traffic, with navigation aids. After sailing for
several days, the ship will finally approach Singapore as its docking destination, in accordance
with the sailing approval letter.
Considering, Ship MT. Seaways with the Marshal Island flag on February 5 2020 sailed
from Singapore to the High Seas in accordance with the mandate in Port Clearance issued by
the Singapore State and the Defendant should have sailed and entered the right of innocent
passage and the crossing had to be continuous, direct and as fast as possible without
stopping, However, at around 20.48 (UTC+07:00), the Defendant stopped his ship and
anchored at the position 01° 22'50' N -104° 41'28' E, which is included in Indonesian maritime
waters and was in that position until Saturday 08 February 2020 at around 11.50 (UTC+07:00).
when the Ship MT. Seaways was anchoring in Indonesian waters at position 01° 22'50' N -
104° 41'28' E, seen by the Navy Patrol Ship KRI Lemadang-632 which was patrolling in
Indonesian sea waters and then the KRI Lemadang Ship approached to identify it. and
contacted the ship using radar and when approached it was discovered that the ship was
named MT. Seaways Mulan was anchoring, then the ship KRI Lemadang-632 approached and
docked at the MT ship's hull. Seaways and boarded the ship, then members of KRI
Lemadang-632 checked both the cargo and documents.
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Considering, that the ship MT. Seaways Mulan when anchored at position 01° 22'50' N
-104° 41'28' E is in Indonesian Territorial Sea Waters, the ship's position is 9 nm from the land
of Tanjung Berakit and this position is still in the sea area of Indonesian Territorial Waters and
then the Ship MT. Seaways were escorted to Lantamal IV Tanjung Pinang for further
inspection.
Considering, that the Defendant, as the captain of the ship, had made the decision to
sail from Singapore to High Seas waters and then anchor in a sea area he thought was High
Seas waters, meaning that the position of the ship had to apply traffic methods in accordance
with the provisions of Law 6 Year 1996, such as navigational traffic, arriving at the position
point 01° 22'50' N -104° 41'28' E, this position is based on Radar and Ecdis (electronic Chart
Display Information System) KRI Lemadang - 362 and the Log Book of the ship MT Seaways
Mulan. The route taken was still in Indonesian waters, which was not visible on the British map
belonging to MT. Seaways Mulan. Meanwhile, Digital Maps were not available on ship MT.
Seaways Mulan.
Considering, that in accordance with the Sailing Agreement Letter, the ship piloted by
the Defendant should have anchored in High Seas waters. Therefore, it is clear that the
Defendant has wronged or violated the regulations for traffic in international maritime waters.
Of course it also violates the provisions of the 1982 UNCLOS Convention and International
Maritime Law.
Considering, that based on Unclos 1982 (United Nations Convention on the Law of the
Sea) which has been ratified by the Republic of Indonesia with Law No. 17 Year 1985, the
width of the territorial sea from the baseline is at least 3 miles to 200 miles, so there is a
problem between Singapore and Indonesia where there was an agreement in 2002, because
the starting point increased, it was agreed to divide it by 2, namely if the width was 8 milli, then
the limit for each is 4 mill. There are several things that must be obeyed when traffic in sea
lanes, namely:
1. The Exclusive Economic Zone whose width does not exceed 200 Sea Mill is calculated
from the baseline/base line from which the width of the territorial sea is measured where
freedom of navigation applies.
2. Freedom of transit of foreign ships through straits used for international shipping.
3. Coastal states' rights of access to and from the sea and freedom of transit.
4. The right of innocent sea passage through the territorial sea continues to be respected.
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Considering, that in connection with Article 18 paragraph (2) of the
Republic of Indonesia Law No. 17 Year 2008, it is stated that ships passing must
be continuous, direct and as fast as possible. That right of innocent passage
includes stopping and dropping anchor, but only as long as this is related to
navigation which is customary or necessary because of force majeure or
experiencing difficulties or to provide assistance to people, ships or aircraft in
danger or difficulty and in accordance with CHAPTER III article 4 letter d
Permenhub PM Number 129 Year 2016 states that the implementation of
shipping lanes at sea is carried out for the implementation of the right of right of
innocent passage of foreign ships and CHAPTER IV article 23 paragraph (1)
letter g states that the section on separating traffic at sea (Traffic Separation
Scheme) is as in The purpose in article 22 paragraph (1) letter a, is determined
based on each route that is usually used for international navigation.
Considering, that the Ship MT. Seaways Mulan does not comply with
traffic regulations and shipping routes and lanes when sailing in the Traffic
Separation Scheme (TSS) UU Rl No. 17 Year 2008 concerning Shipping.
Considering, that the coordinate position of the Ship MT. Seaways Mulan
is 01° 22'50' N -104° 41'28' E in the waters of Tanjung Berakit, Bintan Islands
based on Marine Chart No. 352 are in Indonesian waters. And every ship,
including foreign ships, which will anchor in Indonesian waters must first ask
permission from the Harbor Captain, who then, based on the instructions and
orders of the Harbor Captain, will be given permission and determine the place to
anchor;
Considering, that the Captain of the ship MT. SEAWAYS MULAN
anchored in Indonesian waters without permission and did not notify the Harbor
Captain or the Indonesian authorities in advance so that the Defendant's actions
as ship captain should be declared as not complying with traffic regulations,
shipping lanes, route systems, and shipping areas for ship traffic. , and navigation
aids;
Considering, that based on the considerations above, the elements of not
complying with the provisions relating to traffic procedures, shipping lanes, route
systems, shipping areas for ship traffic, and navigation aids have been fulfilled;
Considering, regarding the objection note from the defendant's legal
advisor, namely:
THE DEFENDANT anchored at coordinates 01°22'50" N - 104°41'28"
because the DEFENDANT did not know that the area where he would anchor
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has entered the territorial waters of the Republic of Indonesia. THE DEFENDANT was passing
through the area for the first time and saw many foreign-flagged ships anchored there. So the
DEFENDANT thought that the area was called the East OPL Singapore area.
THE DEFENDANT has openly admitted that the DEFENDANT did not know that the
ship MT Seaways Mulan had entered Indonesian waters when anchoring. Furthermore, the
DEFENDANT stated that he had no intention or intent to commit the crime of anchoring in
Indonesian waters because the navigation system on the ship MT Seaways Mulan did not
show the territorial boundaries of a country. If the DEFENDANT knew that the area was a
prohibited area for anchoring, the DEFENDANT would not have anchored in that area. Thus,
the DEFENDANT's decision to anchor was purely ignorant of the DEFENDANT.
Considering this, regarding the objection note from the Defendant, the opinion of the
panel is as follows:
Based on the facts at trial, the panel considered that the Defendant, as the captain,
should have communicated with the nearest Harbor Captain or communicated with the agent
of the ship MT. Seaways Mulan, which is in Singapore, to ascertain the actual location of the
ship MT Seaways Mulan, will carry out anchoring, which was not done by the Defendant as the
ship's Captain, so the Panel considers that the Defendant was not alert or paid little attention
to the conditions around the ship, so according to the panel, the objection note from the
Defendant's legal advisor stated that The defendant had no intention or intent to commit a
criminal act of anchoring in Indonesian waters is baseless and must be rejected.
Considering, that because of all the elements in Article 317 in conjunction with Article
193 Paragraph (1) of Law of the Republic of Indonesia No. 17 Year 2008 concerning Shipping
has been fulfilled, then the Defendant must be declared to have been legally and convincingly
proven guilty of committing the criminal act of the Captain who did not comply with the
provisions of traffic procedures, shipping lanes and route systems, shipping areas for ship
traffic as alleged in the Public Prosecutor's indictment. ;
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Considering that the oral defense note submitted by the Defendant admitted that he
was responsible for his actions, and asked the panel of judges for forgiveness so that he could
immediately return to Italy to meet his family. So the panel of judges, through observations
during this trial process, saw that there were many mitigating circumstances for the Defendant
compared to the aggravating circumstances, this is a good thing for the Defendant to get
justice.
Considering, that during the trial, the Panel of Judges did not find anything that could
eliminate criminal liability, either as a justification or excuse, the Defendant must be held
accountable for his actions;
Considering, that because the Defendant is capable of taking responsibility, he must be
declared guilty and sentenced to a crime;
Considering, that the purpose of punishment is not retaliation but rather guidance for
the Defendant who has made a mistake so that he is expected to be able to realize, correct
and not repeat his mistake, therefore the Panel of Judges agrees with the Public Prosecutor
regarding the evidence in this case, however the Panel of Judges disagrees regarding the type
the sentence that will be imposed on the Defendant and the Panel of Judges will impose a
sentence as stated in the verdict below which is deemed commensurate with the Defendant's
actions;
Considering, that this punishment or penalty is related to various aspects, including the
aspect of legal certainty, namely the guilty person must be punished appropriately, where the
article that has been violated has 2 main penalties, namely the basic penalty of imprisonment
and the basic penalty of a fine, the second of which is cumulative. It is only known that the
aspect of legal commensurability that mitigating circumstances are more dominant than
aggravating circumstances, from the aspect of state security, the State always maintains the
stability of defense and security from foreign parties who threaten the sovereignty of the
unitary State of the Republic of Indonesia, and the nature of this threat is considered very
small even in in the case examination there was absolutely nothing. So, based on these
various aspects, the panel will still impose a principal fine on the defendant who is deemed to
have violated safety aspects at sea in Indonesian territorial waters. However, regarding the
basic sentence of imprisonment, the panel of judges is of the opinion that due to a sense of
justice from various aspects, a sentence imposed of less than 1 (one) year is the reason for
the Panel of Judges to impose a suspended sentence.
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as specified in Article 14 (a) of the Criminal Code;
Considering, that in Article 317 in conjuction with Article 193 Paragraph (1) Law of the
Republic of Indonesia no. 17 Year 2008 concerning Shipping, in addition to being threatened
with imprisonment and a cumulative fine, the Panel of Judges, in addition to imposing a prison
sentence on the Defendant, will also impose a fine, the amount of which will be determined in
the verdict, provided that if the fine is not paid by the Defendant, it will be replaced by
imprisonment, the duration of which will be determined in the verdict;
Considering, that the evidence presented at the trial is further considered as follows:
1. 1 (one) unit of Tanker Ship MT. Seaways Mulan with the Marshall Island flag
3. Documents : -
• Port Clearance
• Port Clearance
• Int'l Tonnage Gert
• Bridge Letter
• Suez Canal Special Tonnage Gert.
• Ml Continues Synopsis Record (GSR)
• Load Line Cert.
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• IOPP
• IOPP Form B
• Sewage Cert
• ΙΑΡΡ
• Cert of Class
• Liferafts
• HRU Liferafts
• Immersion Suits
• Fixed C02 SystemHydrötest-10 Years
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• CSBA Hydrotest
• CSBA-Annual
• EEBD Hytdrotest
• EEBD-Annual
• Medical Oxygen Cylinders- Annual
• ITF Green Card
• Crew Accommodation Compliance (Ho 92)
• Sanitation Cert
• AIS Annual Test
• VHP Annual Test
• Guard PL I
• CLC 1992- Oil Pollution
• USCG Cofr
• California Cofr
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• USCG Coc/TVEL
• MMC S/N 12997
• MMC S/N 20888
• MMC S/N 20891
• MMC S/N 10716
• MMC S/N 20890
• MMC S/N 20892
• IM&M
• VECS 02 Sensors
• IGS 02 Analyzer
• Temperature Calibrator-Annual
• BHS Test-Annual
• Sox Emissions
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• ESP Notation
• ETAAft Towing Arrangement
• Sludge PUMP
• Accommodation Laddeers
• Anchor Chain
• Heating Coil
• Lifebuoy Lights
Considering, that the ship's document evidence is an integral part of the ship, where all
the evidence has an owner and complies with the regulations so it will be returned to the
owner through the Defendant.
Considering, that in order to impose a crime against the Defendant, it is necessary to
first consider the aggravating and mitigating circumstances of the Defendant;
Aggravating circumstances:
- The Defendant's actions endangered shipping at sea;
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Mitigating circumstances:
- The defendant admitted his actions;
- The defendant regretted all his actions;
- The defendant promised not to repeat his actions;
- The defendant has never been convicted.
Considering, that because the Defendant was sentenced to a crime then
must also be burdened with paying court costs;
Pay attention, Article 317 in conjunction with Article 193 Paragraph (1) of Law of the
Republic of Indonesia no. 17 Year 2008 concerning Shipping and Law Number 8 of 1981
concerning Criminal Procedure Law and other relevant laws and regulations;
JUDGE:
1. Declare that the Defendant FRANCISCO SOMMA has been legally and convincingly
proven guilty of committing the criminal act "Captain who does not comply with
provisions relating to traffic procedures, shipping lanes, route systems, shipping
areas for ship traffic " as in the Public Prosecutor's Indictment;
2. Sentence the Defendant to imprisonment for 4 (four) months with the provisions that the
Defendant does not need to carry out the sentence unless during the 6 (six) month
probation period the Defendant is proven guilty of committing a crime based on a Court
Verdict which has permanent legal force;
3. Imposing a fine on the Defendant in the amount of IDR 150,000,000 (one hundred and
fifty million rupiah) with the provision that if the fine is not paid, it will be replaced by
imprisonment for 2 (two) months;
4. Order that evidence in the form of:

1 (one) unit of Tanker Ship MT. Seaways Mulan with the Marshall Island flag
Captain's Passport YA6867162.
Documents : -
• Port Clearance
• Port Clearance
Disclaimer
time.
Indonesia
• Int'l Tonnage Cert
• Bridge Letter
• Suez Canal Special Tonnage Cert.
• Ml Continues Synopsis Record (CSR)
• Load Line Cert.
• IOPP
• IOPP Form B
• Sewage Cert
• IAPP
Disclaimer
Email: kepaniteraan@mahkamahagung.go.id Telp : 021-384 3348 (ext.318) ΓΐαΙαΠΊ(\
HalamıF/12/321
Indonesia
• Cert of Class
• Liferafts
• HRU Liferafts
• Immersion Suits
• Fixed C02 SystemHydrötest-10 Years
• CSBA Hydrotest
• CSBA-Annual
• EEBD Hytdrotest
• EEBD-Annual
• Medical Oxygen Cylinders- Annual
• ITF Green Card
• Crew Accommodation Compliance (Ilo 92)
• Sanitation Cert
Disclaimer
HalamıF/12/322
Indonesia

• AIS Annual Test
• VHP Annual Test
• Guard PL I
• CLC 1992- Oil Pollution
• USCG Cofr
• California Cofr
• USCG Coc/TVEL
• MMC S/N 12997
• MMC S/N 20888
• MMC S/N 20891
• MMC S/N 10716
• MMC S/N 20890
• MMC S/N 20892
• IM&M
• VECS 02 Sensors
• IGS 02 Analyzer
Disclaimer
HalamıF/12/323
Indonesia
• Temperature Calibrator- Annual

• BHS Test-Annual
• Sox Emissions
• ESP Notation
• ETA Aft Towing Arrangement
• Sludge PUMP
• Accommodation Laddeers
• Anchor Chain
• Heating Coil
• Lifebuoy Lights
Disclaimer
HalamıF/12/324
Indonesia

Be returned to its rightful owner through the Defendant.
5. Burden the Defendant to pay court costs of IDR 5.000,- (five thousand rupiah);
Thus it was decided at the deliberative meeting of the Panel of Judges at the
Tanjungpinang District Court, on Wednesday, May 20 2020, by us, Admiral S.H, M.H, as Chief
Judge, Guntur Kurniawan, S.H, and Awani Setyowati, S.H respectively as Member Judges,
This Verdict was said in a hearing open to the public on Wednesday, 27 May 2020 by the
Chief Judge accompanied by the Member Judges, assisted by Parulian Hasibuan, S.H,
Registrar at the Tanjung Pinang District Court, and attended by Mona Amalia, S.H, Public
Prosecutor at Tanjung Pinang District Prosecutor's Office, Legal Counsel for the Defendant
and the Defendant accompanied by an Interpreter.
Member Judge, Chief Judge,
Guntur Kurniawan, S.H., Admiral S.H., M.H.
Awani Setyowati, S.H.
Registar,
Parulian Hasibuan, S.H.
Disclaimer
time. If you find inaccuracies in the information contained on this site or information that should be there, but is not yet available, please immediately contact the Registrar of the Supreme Court of the Republic of Indonesia via: lj ı l
HalamıF/12/325

Appendix 4.37 (En)

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Appendix 4.37 (En)

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Directory Verdict of the Supreme Court of the Republic of

FOR THE SAKE OF JUSTICE BASED ON THE ALMIGHTY GOD

Full name : FRANCESCO SOMA

the District Court;

Page 1 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

After paying attention to the evidence in this case;

Page 2 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

• Safety Radio Cert.

Page 3 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

• Fixed C02 Syste m Hydrotest-10 Years

Page 4 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 5 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

• Suez Canal David

Page 6 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 7 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 8 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

The witness stated that the ship had no cargo;

Page 9 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

4. Witness SUNLE VILASAN ALFANTA under oath in essence explained as follows:

Page 10 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 11 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 12 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

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Page 14 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 15 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 16 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

•Lifeboats Service-5 Years/Hooks

Page 17 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 18 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

•Vapor Tightness Cert.

Page 19 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 20 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 21 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

That the defendant has never been convicted.

Ad.l Captain Element;

Page 22 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 23 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 24 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

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Page 27 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

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Page 29 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 30 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 31 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

• Approved GMDSS Radio Installation

Page 32 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 33 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

• Ml Safety Inspection Annual

Page 34 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 35 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

4. Order that evidence in the form of:

Page 36 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 37 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

Page 38 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

• GMDSS Shore Based Maintenance Cert.

Page 39 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

• Temperature Calibrator- Annual

Page 40 of 41 Verdict Number 106/Pid.Sus/2020/PN Tpg

• SLOP P/S Temperature Gauge Calibration

Member Judge, Chief Judge,

Guntur Kurniawan, S.H., Admiral S.H., M.H.