Appendix 4.40 (En)

Directory Verdict of the Supreme Court of the Republic
putusan.mahkamahagung.go.id
of Indonesia
VERDICT
Number 113/ 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 : KYI LWIN

Place of birth : Kyauktaga Myanmar
Age/Date of birth : 56 Years/20 April 1963
Gender : Male
Nationality/Citizenship: Myanmar
Residence :: No.514-5:
No. 514-518, Room No. 4A, Merchant
road,
Yangon, Myanmar
Religion : Buddha
Occupatio : Captain of Ship MT. Royal Diamond 7 flags
n
Marshall Island
The defendant in this case was not detained:
The defendant in this case was accompanied by his Legal Advisors

DR.Dyah Ersita Yustanti, SH.MH and Yanuarda Yudo Persian, SH who acted
based on a Special Power of Attorney dated March 25, 2020 which has been
registered at the Tanjung Pinang District Court Register under Register Number
82/SK/IV/2020 dated April 23, 2020 which made the Power of Attorney Subsidiary
to Drs. Annur Syaifuddin, SH based on Substitution Power of Attorney dated 22
April 2020 under Register number 191/sk/V/2020 dated 4 May 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
113/Pid.Sus/ 2020/ PN. TPG dated April 23 2020 concerning the appointment
of the Panel of Judges;
- Determination of the Chief Judge Number 113/ Pid.Sus/ 2019/ PN Tpg dated
April 23 2020 concerning the determination of the trial day;
Page 1 of 40 Verdict Number 113/Pid.Sus/2020/PN Tpg
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of 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
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- Case files and other relevant documents;
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 16 June 2020 submitted
by the Public Prosecutor which was in essence as follows:
1. Declare that the Defendant KYI LWIN has been legally and convincingly proven guilty
of committing the crime of "Captain who did not comply with the provisions
relating to traffic procedures " in a Single Indictment;
2. Therefore, sentences the Defendant KYI LWIN to imprisonment for 3 (three) months
and a fine of IDR 150,000,000,- (one hundred and fifty million rupiah) subsidiary 4
(four) months in prison;
3. Order that the Defendant be detained;
4. Determine evidence in the form of:
1) Captain's Passport: MC513622;
Returned to the defendant;

2) 1 (one) unit of Ship MT. Royal Diamond 7, Flag: Marshall Island, Tonage: GT.
8539, IMO / Call Sign : V7PL9/9367437, Ship Type : Tanker, Company / Agent :
PT. Benline, Owner: Norstar Ship Management Pte. Ltd, Captain: Kyi Lwin,
Number of Crew: 24 People including Captain, Nationality: Myanmar;
3) Ship Documents:
1. Port Clearance;
2. Crew List;
3. Health Book;
4. Permanent Certificate Of Registry;
5. Documents Of Compliance;
6. Safety Management Certificate;
7. Republic of The Marshall Islands Maritime Administrator;
8. Certificate of Insurance or Other Financial Security In Respect Of Civil Liability
For Oil Pollution Damage;
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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.
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: Halanp/1 2/367
Email: kepaniteraan@mahkamahagung.go.id Telp : 021-384 3348 (ext.318)
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For Banker Oil Pollution Damage;
10.Certificate of Insurance or Other Financial Security In Respect Of Civil Liability
For The Removal Of Wrecks;
11. Minimum Safe Manning Certificate Certificate Number 11157;
12. International Ship Security Certificate;
13. Continuous Synopsis Record (CSR) Document;
14. Korean Register - Certificate OS Classification;
15. Cargo Ship Safety Construction Certificate;
16. International Load Line Certificate;
17. International Tonnage Certificate (1969);
18. Korean Register Of Shipping - Confirmation Of Deadweight;
19. ABS Pacific Division - Panama Canal Commission;
20. American Bureau Of Shipping - IMO No. 9367437;
21. Cargo Ship Safety Equipment Certificate;
22. Cargo Ship Safety Radio Certificate;
23.Checklist For Safety Radio Equipment (GMDSS) Survey (For Radio
Technician);
24. Shore-Based Maintenance Certificate;
25. Ship Radio Station License - No. 49199;
26.International Oil Pollution Prevention Certificate. SGP-IOPPB-0034- 19;
27.International Air Pollution Prevention Certificate. SGP-IAPP-0042- 19;
28.Engine International Air Pollution Prevention Certificate. MKPNX- 0001-13;
29. International Anti-Fouling System Certificate. SGP-IAFS-0041-19;
30.International Sewage Pollution Prevention Certificate. SGP-ispp- 0041-19;
31. Ship Sanitation Control Exception Certificate. No. A01900;
32. Korean Register Of Shipping. SGP-OC-0087-19;
33.P&I, Certificate Of Insurance N o. 54646/1031071/512859/LCC - P&I/01;
34. Cover Note Reference : 20190083/84/85;
35. Member ship Record Form (No.14683);
36. Certificate of Test and Thorough Examination of Lifting Appliances;
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37. Document of Compliance with ILO Convention Nos. 92&133. SGP- ILODOC-
0009019;
38. ABS Quality Evaluations, Certificate Of Conformance. ISO 14001:2015;
40. ABS. Company Compliance. Cert.Num. 877243-3703744-001;
41. Korean Register Of Shipping - Certificate of Emergency Response Service;
42. ABS. Norstar Ship Management PTE, LTD;
43. Annual Testing Of 406MHZ Epirbs;
44. Certificate of Compliance for Voyage Data Recorder;
45. Automatic Identification System (AIS) Check List;
46. Conformance Test Report;
47. Korean Register - Checklist for Survey of Ship Security Alert System (SSAS);
48. Customer Service Certificate (IMO No.9367437);
49. Medical Chest Certificate;
50. International Certificate Of Fitness For The Carriage Of Dangerous Chemicals
In Bulk. SGP-IBC(N)-0019-19;
51. The Trust Company Of The Marshall Islands, INC;
52. Maritime Labor Certificate, 08166006-3638150-001;
53. International Energy Efficience (IEE) Certificate;
54. Report Of Inspection In Accordance With The Memorandum Of Understanding
On Port State Control In The Asia-Pacific Region;
55. Republic Of The Marshall Islands Maritime Administrator;
56. Republic Of The Marshall Island Maritime Administrator - List of Deficiencies as
Issued by The Administration;
57. Examination Certificate - SGP-SX2-0006-19;
58. International Ballast Water Management Convention Certificate - SGP-BWM-
0030-19;
59. Type Approval Certificate;
60. Document of Compliance for Garbage Pollution Prevention - SGP- IGPP-0029-
19;
61. Statement Of Compliance - SGP-VEC-0014-19;
62. Statement for Ongoing Type Approval Process;
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63. LLOYD'S Standard form of Salvage Agreement - No Cure - No Pay. LOF 2011;
64. STS Operations Plan Letter of Approval;
65. Statement Of Facts. No. N18-00-0009-18;
66. Tocicology- Certificate;
67. The People's Republic of China - Tonnage Dues Certificate;
Be returned to the GSH2 Chem-Prod I AS Company located at

Munkedmsveien45, Vika Atrium, PO.Box 1444 vika N- 0250, Oslo, Norway
through the Defendant;
5. Charges the defendant to pay court costs 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 Indonesian
state so that he could immediately return to Myanmar to meet his wife and children;
The Defendant's legal advisor has submitted a Memorandum of Defense which in
essence asks the Panel of Judges to:
1. Accept and approve the Memorandum of Defense/Plea submitted by LEGAL
ADVISOR OF THE DEFENDANT Kyi Lwin;
2. Acquit the DEFENDANT Kyi Lwin from all legal demands (Vrijspraak) or at least
release the DEFENDANT Kwi Lwin from all legal demands (Ontslaag Van Alle
Rechtsvervolging)
3. Order the PUBLIC PROSECUTION at the Bintan District Prosecutor's Office to
RELEASE THE DEFENDANT Kyi Lwin and the entire crew of the MT Royal
Diamond 7;
4. Declare the MT Royal Diamond 7 ship and all related evidence to be returned to
the owner through LEGAL ADVISOR;
5. Charge the costs of this case to the state;
Or:
If THE HONORABLE JUDGES have a different opinion, the LEGAL
ADVISOR requests that this case be decided fairly (ex aequo et bono);
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Considering, that the Defendant was brought to trial by the General
Prosecuter based on the indictment dated 16 April 2020 Case Reg No:PDM - 19 / Bintan
/Eku.204/ 2020 is as follows:
That he is the defendant KYI LWIN as the Captain of the Ship MT. Royal Diamond 7
with the Marshall Island flag on Monday 02 March 2020 at around 15.00 (UTC+07:00), or at
least in March 2020 or at least in 2020, located in the North Berakit Waters of Bintan
Regency at the coordinate position 01° 21' 33 ” N - 104° 41' 30” E which is the territorial
waters of the Republic of Indonesia or at least within the jurisdiction of the Tanjungpinang
District Court which has the authority to examine and adjudicate the case, "The captain
who does not comply with the provisions relating to traffic procedures", the action The
defendant did this in the following way:
That on February 28 2020 at 21.06 (UTC+07:00), the defendant as Captain of the
Ship MT. Royal Diamond 7 with the Marshall Island flag departed from the port of
Merak, Banten, Indonesia, carrying out a voyage to Singapore, to pick up the cargo
(Loading) of diesel fuel in accordance with the Sailing Approval Letter (SPB/Port
Clearance) number M. 1/KSOP. 1/993/11/2020 issued by the harbor Captain/port
authority of Merak, then during the voyage the defendant as the captain of the ship
MT. Royal Diamond 7 carried out anchoring without permission on March 1 2020
at 22.12 (UTC+07:00). Furthermore, KRI Krait - 827 detected contact with a
foreign-flagged ship at position 01° 21' 00" N - 104° 36' 00" E which was carrying
out anchoring within the Indonesian territorial boundaries, then KRI Krait - 827
moved closer to the Ship MT. Royal Diamond 7. Next, witness Rovin Anggun H.H
and witness Damya Yogi A.S.S who are officers of KRI Krait - 827 carried out an
inspection and search at the position 01° 21' 33" N - 104° 41' 30" E. From the
results of the examination by the examining team, it was discovered that the
defendant, the captain of the ship MT. Royal Diamond 7 anchored its ship in
Indonesian territory without permission and did not comply with shipping traffic
regulations.
Afterwards, the defendant and the ship MT. Royal Diamond 7 was taken to the
Indonesian Navy Base in Tanjung Uban for further examination.
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Whereas based on Expert, Rostina, MH, M.Mar 's testimony, it is explained that 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 during 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 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 this is necessary
because of force majeure , or disaster or for helping people, ships or planes that are in a disaster. If the ship has
anchored, there must be notification and approval from the local Harbor Captain. In accordance with the city's
regulations and the Shipping Law, the Harbor Captain determines the anchor location;
Defendant KYLWIN's actions are as regulated and punishable by crime in Article
317 in conjunction with Article 193 Paragraph (l) letter a of Republic of Indonesia Law
Number 17 Year 2008 concerning Shipping;
Considering, that to prove his accusation the Public Prosecutor has presented the
following witness evidence:
Considering, that witness Rovin Anggun, HH and witness Damya Yogi S who
served on the KRI Krait - 827 were duly summoned but were unable to attend as arresting
witnesses because the KRI Krait - 827 was carrying out routine law enforcement operations
in Anambas Waters based on a letter dated 8 May 2020 Number B/215/V/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 Rovin Anggun, HH and witness Damya Yogi S, have
also taken an oath according to their religion by the Indonesian Navy Investigating Officer,
namely Adj i Puspa Negara, SH after the person concerned gave a statement in the
investigator's Investigation Report, so that based on
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Verdict of the Supreme Court of the Republic of Indonesia Number: 661 K/Pid/1988 dated
19 July 1991, with the basic rule that the testimony of a witness who is sworn in by an
investigator but because of a legal impediment cannot be present at the trial, is of the same
value as testimony made under oath;
1. Witness ROVIN ANGGUN, HH, read his statement under oath at the trial as follows:
- That the witness served on KRI Krait - 827, and the witness held the position of
Jr. Gudang Senri, and witness DAMYA YOGI AS with the position of Juru Bama;
- That MT. Royal Diamond 7 with the Marshall Island flag was inspected and
captured in the waters north of Tanjung Berakit or at position 01° 21' 33" N -
104° 41' 30" E, on Monday 2 March 2020 at around 15.00 (UTC+07:00);
- That the ship's name was MT. Royal Diamond 7 with Marshall Island flag, tanker
type, captain Kyi Lwin with a crew of 24 people including the Captain;
- That the Ship MT. Royal Diamond 7 with the Marshall Island flag when inspected
was anchored at position 01° 21' 33” N -104° 41' 30” E. in the territorial sea area
of Indonesian waters;
- That when the witness boarded the ship and carried out the inspection on MT.
Royal Diamond 7 with the Marshall Island flag, and when the captain was
inspected, he admitted that he had entered Indonesian territorial waters and
initially did not know that the area was still Indonesian territory;
- That at TW 0302.1400 at position 01° 21' 00" N - 104° 36' 00" E when KRI Krait -
827 sailed in the waters of Tg. Berakit, KRI Krait - 827 detected contact with a
foreign-flagged ship carrying out anchoring within Indonesia's territorial
boundaries without permission. Based on the position on the Furuno Radar FAR
2127, the foreign ship anchored at a distance of 10 NM from land (Tg. Berakit)
with the name MT. Royal Diamond 7, the KRI Krait - 827 then moved closer to
the ship contact. TW.0302.1430 (UTC+07:00), 1000 yards from the contact, KRI
Krait - 827 carried out the inspection and search role followed by the lifeboat
role. At TW 0302.1500 (UTC+07:00) in position 01° 21' 33" N - 104° 41' 30" E,
the KRI Krait lifeboat
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- 827 docked on the left side of the target ship, then the inspection team carried
out an inspection and search and from the results of the inspection by the
inspection team it was discovered that the ship anchored in Indonesian territory
without permission, violating article 193 paragraph 1 in conjuction with article
317 of Law No. 17 Year 2008 concerning shipping;
Regarding the witness's statement, the Defendant did not object;
2. Witness DAMYA YOGI AS, under oath, read his statement at the trial as follows:
- Whereas the witness at KRI Krait - 827, and the witness ROVIN ANGGUN with
the position of Jr. Gudang Senri, and witness with the position of Juru Bama;
- That the Ship MT. Royal Diamond 7 with the Marshall Island flag was inspected
and captured in the waters north of Tanjung Berakit or at position 01° 21' 33" N -
104° 41' 30" E, on Monday 2 March 2020 at around 15.00 (UTC+07:00);
- That the Ship MT. Royal Diamond 7 with Marshall Island flag, tanker type,
captain Kyi Lwin with a crew of 24 people including the Captain;
- That the Ship MT. Royal Diamond 7 with the Marshall Island flag when inspected
the ship was anchored at position 01° 21' 33” N -104° 41' 30” E. in the territorial
sea area of Indonesian waters;
- That when the witness boarded the ship and carried out the inspection on MT.
Royal Diamond 7 with the Marshall Island flag, and when the captain was
inspected, he admitted that he had entered Indonesian territorial waters and
initially did not know that the area was still Indonesian territory;
- That at TW 0302.1400 at position 01° 21' 00" N - 104° 36' 00" E when KRI Krait -
827 sailed in the waters of Tg. Berakit, KRI Krait - 827 detected contact with a
foreign-flagged ship carrying out anchoring within Indonesia's territorial
boundaries without permission. Based on the position on the Furuno Radar FAR
2127, the foreign ship anchored at a distance of 10 NM from land (Tg. Berakit)
with the name MT. Royal Diamond 7, the KRI Krait - 827 then moved closer to
the ship contact. TW.0302.1430 (UTC+07:00), 1000 yards from the contact, KRI
Krait - 827 carried out the inspection and search role followed by the lifeboat
role. At TW 0302.1500 (UTC+07:00) in position 01° 21' 33 ”N - 104° 41' 30” E,
the lifeboat KRI Krait
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- 827 docked on the left side of the target ship, then the inspection team carried
out an inspection and search and from the results of the inspection by the
inspection team it was discovered that the ship anchored in Indonesian territory
without permission, violating article 193 paragraph 1 in conjuction with article
317 of Law No. 17 Year 2008 concerning shipping;
3. Witness NYAN SOE under oath in essence at trial explained as
follows:
- That the witness understands the purpose of being questioned at this trial
because the witness as the second officer of the Ship MT. Royal Diamond 7 has
anchored in Berakit waters precisely at the position 01° 23' 51" N - 104° 41' 48"
E, which is included in Indonesia's territorial waters;
- That the witness's position when carrying out anchoring on March 1 2020 was
01° 23' 51" N - 104° 41' 48" E and this position was the position when the
Indonesian Navy questioned us;
- That the duties and responsibilities as Second Officer are related to navigation;
- That on February 28 2020 at approximately 21.00 (UTC+07:00) the ship
departed from Merak Indonesia for Singapore carrying a crew of 24 (twenty four)
people, all of whom were Myanmar citizens. On March 1 2020 at around 23.00
(Singapore time or 22.00 (UTC+07:00)) the ship lowered anchor at position 01°
23' 51" N - 104° 41' 48" E. However, when the ship anchored, the witness was
not on guard (sleeping), then the witness only went up on guard at around 24.00
(Singapore time) the witness then asked the captain why the anchor was in that
position and the captain answered that there was a problem with the engine so
he could not continue cruise. Then around March 2 2020 at 16.00 (Singapore
time or 15.00 (UTC+07:00)) KRI Krait 827 from the Indonesian Navy came and
inspected the ship. About 4 Indonesian Navy officers boarded and informed
them that the ship was in the Indonesian territorial sea. Indonesian Navy officers
ordered us to follow their ship to Tanjung Uban Waters but because there was a
problem with the engine we were unable to carry out their orders. The next day,
March 3 2020, at around 11.30 (UTC+07:00), the witness, captain and engine
master boarded on KRI Krait 827 to
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head to the Indonesian Navy Base in Tanjung Uban. At around 17.30
(UTC+07:00) we returned to our ship and arrived at our ship at around 22.45
(UTC+07:00). The next day, March 4 2020, at around 03.00 (UTC+07:00) we
went to Tanjung Uban Waters and at around 06.06 (UTC+07:00) we arrived at
Tanjung Uban Waters to anchor there;
- That the Defendant is the Captain of MT. Royal Diamond 7 with Marshall Island
flag and the Witness has no family relations to the Defendant;
- That the voyage destination of the MT. Royal Diamond 7 flag with the Marshall
Island flag is from Merak to Singapore;
- That the owner of the ship is the company GSH2 Chen-Prod Carrire I AS,
Munkedmsveien 45, vika Atrium, PO box 1444 vika N-0250, Oslo Norway. The
operator is BTS Tanker Pte Ltd/ 2 Battery Road/ #29-01 Maybank tower/
Singapore 049907;
- That Crew/ABK of MT. Royal Diamond 7 with the Marshall Island flag numbered
to 24 (twenty four) people including the captain, all of whom are citizens of
Myanmar;
- That the navigation equipment on the ship MT. Royal Diamond 7 is GPS,
RADAR, ECDIS, SEXTANTS, Binocular, Compass, AIS, VHF, Echosounder,
SAT-C. MF/HF;
- That the ship MT. Royal Diamond 7 with the Marshall Island flag carried out
anchorage for approximately 14 hours until inspected by the Indonesian Navy;
- That the cargo on board the ship MT. Royal Diamond 7 with the Marshall Island
flag does not exist;
- That the Defendant told the witness that he had contacted VTS Batam but there
was no response;
- That the witness has a Class III OOW Certificate issued by Myanmar;
4. Witness PHONE MYINT, under oath at trial, in essence explained as follows:
- That the witness understands the purpose of being questioned at this trial
because the witness is the Engine Master of the Ship MT. Royal Diamond 7 with
the Marshall Island flag who has done or carried out anchoring but were not
aware of the position of the anchoring, the ship
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carried out anchoring due to engine failure, namely the ship could not increase
speed and was running very slowly;
- The witness stated that he did not know the coordinates because the witness
only looked after the machine;
- That the witness explained the duties and responsibilities of the witness on the
Ship MT. Royal Diamond 7 with the Marshall Island flag as Engine Master and
the witness's main responsibility is to carry out repairs, maintenance of engines
and all equipment in the engine room;
- That the witness explained that on February 28 2020 at approximately 21.00 MT.
Royal Diamond 7 with the Marshall Island flag carried out engine preparation
and at 21.11 MT. The Royal Diamond 7 with the Marshall Island flag departed
from Merak Indonesia with the destination Singapore. On March 1 2020 at
approximately 22.00 the ship experienced engine speed problems, at
approximately 23.18 MT. Royal Diamond 7 with the Marshall Island flag carried
out anchoring and turned off the engine, the captain ordered to turn off the
engine and lower the anchor due to engine damage experienced by the Ship
MT. Royal Diamond 7 with the Marshall Island flag that is the ship's speed
cannot be increased and that the engine cannot work optimally. Then I checked
the engine, to find out what the problem was, I checked the air pressure for
starting the main engine, after we checked, what happened was that there was a
leak in the connecting part between the main engine and the air pressure for
starting the main engine, that the connecting rubber had to be replaced and the
item was ordered in Singapore, to overcome the leak problem I carried out
repairs to close the leak, I carried out repairs. On March 2 2020 at 14.00 the
Indonesian Navy Patrol Ship arrived, during an inspection by the Indonesian
Navy Patrol Ship, MT. Royal Diamond 7 with the Marshall Island flag is still
undergoing repairs. Then 4 members of the Indonesian Navy boarded the ship
to carry out an inspection but I don't know how long it took and called me to
board the KRI Krait for approximately 4 hours, and I met KKM KRI Krait to
discuss the problem of engine damage. On March 3 2020 at approximately
07.00
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The KRI Krait engine person and I took part in checking the engine of the ship
MT. Royal Diamond 7 with the Marshall Island flag, and after checking and
investigating, the Captain, I and the Second Officer were invited to the
Fasharkan Mentigi Post using the KRI Krait, as the MT. Royal Diamond 7 with
the Marshall Island flag could not be moved due to damage, around midnight the
crew returned to the Ship MT. Royal Diamond 7 with the Marshall Island flag. On
March 4 2020 at approximately 03.40 the ship moved slowly from the anchoring
position to the current position. At 07.18 the ship arrived at its current anchor
position, all ship and shipping documents were already with members of the
Indonesian Navy, KRI Krait;
- That the witness explained that everything was recorded in the engine log book,
but for this engine damage I have not recorded it because if it were recorded I
would be the one having problems with the ship owner, because the ship owner
does not want to know about damage to the ship's engine;
- That the witness stated that he had informed the Indonesian Navy that there was
engine damage, when the KRI carried out a direct inspection of the engine, they
discovered that the ship was damaged, and when the ship was to be towed, the
ship could not sail;
- That the witness has no recorded evidence that my ship was damaged;
- That the witness did not carry out tank cleaning, the waste was stored in the
ship's Slop Tank, in reagrds to quantity the captain was more knowledgeable;
- That the witness explained that the defendant was the captain of the ship MT.
Royal Diamond 7 with the Marshall Island flag and that the witness has no family
relations to the Defendant;
- That the witness did not know the destination of the Port Clearance, as the
captain was more knowledgeable and the witness only looked after the engine;
- That the witness explained that the owner company is GSH 2 Chen Prod Carrire
I AS, Munkedmsveien45, Vika Atrium, PO box 1444 vika N-0250, Oslo Norway;
- That the witness stated that the total number of 24 (twenty four) crew members
of the ship, including the captain, were all Myanmar citizens;
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- That the witness stated that he did not know that the Ship MT. Royal Diamond 7
with the Marshall Island flag had entered the territorial sea area of Indonesia, the
witness only took care of the engine, when we realized that it was in the
Territorial Sea, the witness found out about it from the Indonesian Navy Patrol;
- That the witness explained that the witness did not understand what navigation
equipment was on board the ship because it was not within the witness' area of
responsibility;
- That the witness stated that he did not know the position of the coordinates, the
witness heard from the captain that the area was a place to anchor;
- That the witness explained that it had been approximately 14 hours since the
witness' ship carried out anchoring on March 1 2020 at 23.18 (UTC+07:00);
- That the witness explained that he was only responsible for the engine and
following the captain's orders, the ship anchored due to damage but the witness
did not write this down in the engine log book;
- That the witness stated that he had a certificate as Engine Master issued by the
Maritime Authority of the Government of Myanmar and approved by Marshall
Island;
5. Witness HENDRA IRAWAN, under oath at trial, in essence explained as follows:
- That the owner of the ship MT. Royal Diamond 7 is a US GSH2 Chem-Prod
Carrier I Company located at C/O Obilgo Real Estate AS Bolette Brygge 1, No
0252 Oslo, Norway;
- That the GSH2 Chem-Prod Carrier I AS company appointed the witness
company, namely PT Buana Saka Samudera, as the Representative in
Indonesia to manage MT. Royal Diamond 7 wiht the Indonesian flag based on
Letter of agency appointment dated March 17 2020. After that the witness
appointed witness Imam Turmuzi as a local agent in Batam to take care of the
arrangements and processing permits of the ship MT. Royal Diamond 7 with the
Marshall Island flag based on power of attorney no: SKK-AGY/-8/BSS/03-20
dated 20 March 2020;
- That the witness is the agent/Owner Representative of the ship MT. Royal
Diamond 7 with the Marshall Island flag from March 17 2020 to date;
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- That during this trial the company GSH2 Chem-Prod Carrier I AS appointed the
company PT Buana Saka Samudera as the Representative in Indonesia to
manage MT. Royal Diamond 7 with the Indonesian flag based on Letter of
agency appointment dated March 17 2020;
- That on March 17 2020 the Manager of GSH2 Chem-Prod Carrier I AS on behalf
of Tom Bonehill contacted the witness via email and told him to take care of MT.
Royal Diamond which was detained and is being investigated by the Indonesian
Navy, in this case Lantamal IVTanjungpinang;
- That the basis for ownership of the ship MT. Royal Diamond 7 with the Marshall
Island flag owned by the US GSH2 Chem-Prod Carrier I company is from the
Ship's Particular which was given by the ship owner to the witness (photocopy);
- That the witness knows about the Port Clearance is that according to the
captain, the ship sails from Merak to Singapore;
- That to the knowledge of the witness the violation committed by
the defendant was anchoring in the territorial sea without permission from the
Indonesian port authority;
- That the number of crew members on the Ship MT. Royal Diamond 7 with the
Marshall Island flag are 24 people including the captain, all of whom are
Myanmar citizens;
- That the Ship MT. Royal Diamond 7 with the Marshall Island flag does not carry
any cargo;
- That the one most responsible for everything that happens while the ship MT.
Royal Diamond 7 sails was the Defendant as the Captain;
- That the witness has appointed a local agent to help supply food supplies or
deploy the crew and captain, namely Imam Turmuzi, based on power of attorney
no.: SKK-AGY/-8/BSS/03-20 dated 20 March 2020;
6. The witness IMAM TURMUZI, under oath at trial, in essence explained as follows:
- That the Owner of the Ship MT. Royal Diamond 7 is a US GSH2 Chem-Prod
Carrier I Company located at C/O Obligo Real Estate AS Bolette Brygge 1, No
0252 Oslo, Norway;
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- That the witness is a local agent to take care of permits related to the ship MT.
Royal Diamond 7 with the Marshall Island flag designated by PT. Buana Saka
Samudra through Hendra Irawan (owner representative) based on power of
attorney no: SKK-AGY/-8/BSS/03-20 dated 20 March 2020. PT Buana Saka
Samudera was appointed by GSH2 Chem-Prod Carrier I AS as the
Representative in Indonesia to manage MT. Royal Diamond 7 with the Marshall
Island flag based on Letter of agency appointment dated March 17 2020;
- That the witness is a local agent for the Ship MT. Royal Diamond 7 with the
Marshall Island flag from March 20, 2020 to date;
- That the witness said the appointment as local agent was based on power of
attorney no: SKK-AGY/-8/BSS/03-20 dated 20 March 2020 from PT. Buana
Saka Samudra;
- That on March 20 2020 the director of PT. Buana Saka Samudera contacted the
witness via cellphone and told him to become a local agent for MT. Royal
Diamond 7 which was detained and is being investigated by the Indonesian
Navy, in this case Lantamal IV Tanjungpinang;
- That the basis for ownership of the ship MT. Royal Diamond 7 with the Marshall
Island flag owned by the US GSH2 Chem-Prod Carrier I company are from
Ship's Particular;
- That the destination of MT. Royal Diamond 7 based on Port Clearance is from
Merak to Singapore;
- That as far as the witness knows, the violation committed by the Defendant while
sailing was anchoring in the territorial sea without permission from the
Indonesian port authority;
- That the number of crew members on the Ship MT. Royal Diamond 7 with the
Marshall Island flag are 24 people including the captain, all of whom are
Myanmar citizens;
- That the ship MT. Royal Diamond 7 with the Marshall Island flag does not carry
any cargo;
- That the person most responsible for everything during the voyage is the
Captain;
Considering, that the Public Prosecutor has also submitted an Expert
as follows:
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1. Maritime Law Expert's, by the name Rostina, MH,, m.mar, ; statement in the
Investigation Report
under oath in court, was read which was essentially as follows:
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 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 this is necessary because of force majeure , or disaster or for
helping people, ships or planes that are in a disaster. If a ship anchors, there must
be notification and approval from the local Harbor Captain. In accordance with the
port's regulations and the shipping law, the Harbor Captain determines the location
of anchoring;
That the expert said that the conditions for a ship to carry out anchoring are:
1. The agent submits notification of the ship's arrival at the port, accompanied
by a letter of agency appointment from the owner/charter or PKKA for foreign
ships;
2. Anchor by attaching ship documents;
3. CIQP carries out boarding/check in to the ship;
The Expert explained that ALKI is a sea lane designated as a lane for the
implementation of Archipelagic Sea Lane Passage Rights based on international
maritime law conventions. This channel is a shipping channel that can be used by
foreign ships on this sea to carry out peaceful navigation in a normal manner. The
ALKI determination is intended so that international shipping can be carried out
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continuously, directly and as quickly as possible and not obstructed by Indonesian
territorial waters and air space. ALKI is designated to connect two free waters,
namely the Indian Ocean and the Pacific Ocean. All foreign ships wishing to pass
north or south must go through ALKI;
That in accordance with Law 17 Year 2008 concerning Shipping article 139 for
rescue actions, the captain has the right to deviate from the route that has been
determined and take other necessary actions;
That based on the anchoring activities carried out by MT. Royal Diamond 7 with the
Marshal Island flag, Indonesian law enforcement officials can carry out legal
proceedings against the Ship MT. Royal Diamond 7 for violating 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 provisions of the Indonesian
Shipping Law number 17 Year 2008 Article 193 paragraph 1 letter a which states
that "During sailing the captain is obliged to comply with the provisions relating to
letter: a. traffic procedures;
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 on board MT. Royal Diamond 7 with the Marshall Island flag THE
DEFENDANT served as Ship Captain or Captain (Captain) and the DEFENDANT
had a Deck Officer Class I Captain certificate as well as a maritime competency
certificate issued by the Myanmar government authorities;
- That the DEFENDANT understands the purpose of being questioned at this trial
because the DEFENDANT as the Captain of the Ship MT. Royal Diamond 7 with
the Marshall Island flag has carried out the anchoring in Berakit precisely at the
position 01° 21' 33" N - 104° 41' 30" E which is included in the territorial waters of
Indonesia;
- That on February 28 2020 at 21.06 (UTC+07:00) the Defendant and the crew of the
ship MT. Royal Diamond 7 departed from the port of Merak, Banten, Indonesia,
carrying out a voyage to Singapore, to pick up the cargo (Loading) of diesel fuel,
which then on the voyage the ship MT. Royal Diamond 7 experienced problems,
namely
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engine failure and the defendant decided to anchor the ship. THE DEFENDANT
carried out the anchoring of the ship on March 1 2020 at 23.12 Singapore time or
22.12 (UTC+07:00), at position 01° 21' 51" N - 104° 41' 49" E according to the Log
Book records. With the DEFENDANT's decision to anchor the ship because the
ship experienced engine damage and at night the shipping traffic in the Singapore
Strait was very congested and busy, so the DEFENDANT decided to stop the
cruise to carry out engine repairs. On March 2 2020 at 09.00 Singapore time or
08.00 (UTC+07:00) I reported by telephone to the operator in Singapore that the
ship experienced engine failure in the waters of Tg Berakit. Then the DEFENDANT
ordered KKM (Engine Master) to repair the machine, to repair the machine it took
the Engine Master approximately 12 hours. While the ship was being repaired at
14.40 (UTC+07:00) MT. Royal Diamond 7 received satellite telephone contact from
KRI Krait-827 and they introduced themselves and asked for permission to board
the Ship MT. Royal Diamond 7 with the aim of checking ship documents due to the
ship MT. Royal Diamond 7 being in Indonesian waters. After the KRI Krait-827
officers finished carrying out the inspection, the KRI Krait-827 asked us (MT. Royal
Diamond 7) to follow KRI Krait-827 to the waters of Tg. Uban to carry out further
examination;
- That they anchored in the sea of Tg. Berakit in the Indonesian Territorial Sea, at
position 01° 21' 51" N - 104° 41' 49" E (according to the logbook notes) which the
DEFENDANT had recorded in the Log Book on March 1 2020 at 22.12
(UTC+07:00). So approximately we were in these waters for approximately 15
(fifteen) hours until we were checked by the Indonesian Navy;
- That the DEFENDANT had never anchored in the Berakit Waters and this was the
first time the DEFENDANT had anchored there;
- That the DEFENDANT sailed from Merak Port, Banten to Singapore in accordance
with the Sailing Approval Letter (SPB/Port Clearance) number M. 1/KSOP.
1/993/11/2020 issued by Harbor Captain/Merak port authority;
- That the owner of the ship MT. The Royal Diamond 7 with the Marshall Island flag
is GSH2 Chem-Prod Crrire I AS, whose address is
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Munkedmsveien45, Vika Atrium, PO. Box 1444 vika N-0250, Oslo, Norway;
- That the number of ABK/Crew on board the Ship MT. Royal Diamond 7 with the
Marshal Island flag numbered 24 people including the defendant himself as
Captain, all of whom were Myanmar nationals, according to the existing Crew List
and Passports;
- That the ship MT. Royal Diamond 7 with the Marshal Island flag has navigation
equipment including: Radar, ECDIS, AIS, GPS, Radio, Electronic Chart and the
DEFENDANT does not have a Paper Map because everything is electronic;
- That the DEFENDANT did not know that the DEFENDANT'S ship had entered the
Indonesian territorial sea, but after the KRI Krait-827 informed the DEFENDANT
that its current position was already in Indonesian waters, the DEFENDANT
understood that the DEFENDANT had anchored in Indonesian waters, specifically
in Berakit waters;
- That the DEFENDANT set the anchor in that position because the engine had to
carry out repairs and the ship was not seaworthy but the ship did not blackout and
the DEFENDANT recorded the anchor in the position 01° 21' 51" N - 104° 41' 49" E
in the log book boat;
- That the DEFENDANT sailed from Merak to Singapore via ALKI I from the waters
of the Java Sea heading north until he entered the waters of Tg. Berakit;
- That the DEFENDANT has a certificate as a seafarer issued by the Maritime
Authority of the Myanmar State Government;
- That the ship MT. Royal Diamond 7 with the Marshal Island flag is a type of
chemical tanker;
- That the ship MT. Royal Diamond 7 with the Marshall Island flag has no cargo (Nil),
is a light ship and in ballast condition;
- That the DEFENDANT admitted that it was a mistake and violated the laws and
regulations of a country by not contacting the Indonesian port authority because the
DEFENDANT accidentally entered the Indonesian Territorial Sea or because the
ship suddenly experienced engine failure, and the DEFENDANT did not contact the
office/agent and was not aware that he was within the Indonesian Territorial Sea
area;
- That the defendant did not contact the Indonesian port authority because the
DEFENDANT did not know that the waters where they were anchoring
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THE DEFENDANT'S ship was in Indonesian waters, so it was the defendant's fault;
- That there are 2 tank slots in the Ship MT. Royal Diamond 7, the capacity of 1 tank
on MT. Royal Diamond 7 amounted to 350,390 m3 and the remaining dirty/waste
oil cargo as of February 29 2020 was 135,580 m3;
- That the defendant did not carry out tank cleaning activities during the anchoring
ctivities in Berakit waters, the DEFENDANT carried out the last tank cleaning
activity on February 2 2020 from MT. Royal Diamond to MT. Megane in Malaysian
waters Est OPL as much as 372 m3;
Considering, that the Public Prosecutor presented evidence as
follows:
3) Ship Documents:
1. Port Clearance;
2. Crew List;
3. Health Book;
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23. Checklist For Safety Radio Equipment (GMDSS) Survey (For Radio
Technician);
26. International Oil Pollution Prevention Certificate. SGP-IOPPB-0034- 19;
27. International Air Pollution Prevention Certificate. SGP-IAPP-0042- 19;
28. Engine International Air Pollution Prevention Certificate. MKPNX- 0001-13;
30. International Sewage Pollution Prevention Certificate. SGP-ispp- 0041-19;
33. P&I, Certificate Of Insurance N o. 54646/1031071/512859/LCC - P&I/01;
0009019;
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41. Korean Register Of Shipping - Certificate of Emergancy Response Service;
56. Republic Of The Marshall Island Maritime Administrator - List of Deficiencies as
Issued by The Administration;
0030-19;
19;
63. LLOYD'S Standard form of Salvage Agreement - No Cure - No Pay. LOF 2011;
65. Statement Of Facts. No. NIB-OC-0009-18;
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Where each piece of evidence has been legally confiscated based on a
Confiscation Approval Letter and then the evidence has been shown to the Witnesses and
the Defendant with each of them confirming 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;
Considering, that based on the evidence and evidence submitted, the following
legal facts are obtained:
- That on board MT. Royal Diamond 7 with the Marshall Island flag THE DEFENDANT
served as Ship Captain or Captain (Captain) and the DEFENDANT had a Deck
Officer Class I Captain certificate as well as a maritime competency certificate issued
by the Myanmar government authorities;
- That the DEFENDANT understands the purpose of being questioned at this trial
because the DEFENDANT as the Captain of the Ship MT. Royal Diamond 7 with the
Marshall Island flag has anchored in Berakit waters precisely at the position 01° 21'
33" N - 104° 41' 30" E which is included in the territorial waters of Indonesia;
- That on February 28 2020 at 21.06 (UTC+07:00) the Defendant and the crew of the
ship MT. Royal Diamond 7 departed from the port of Merak, Banten, Indonesia,
carrying out a voyage to Singapore, to pick up the cargo (Loading) of diesel fuel,
which then on the voyage the ship MT. Royal Diamond 7 experienced problems,
namely engine failure and the defendant decided to anchor the ship. THE
DEFENDANT carried out the anchoring of the ship on March 1 2020 at 23.12
Singapore time or 22.12 (UTC+07:00), at position 01° 21' 51" N - 104° 41' 49" E
according to the Log Book records. With the DEFENDANT's decision to anchor the
ship because the ship experienced engine damage and at night the shipping traffic in
the Singapore Strait was very congested and busy, so the DEFENDANT decided to
stop the cruise to carry out engine repairs. On March 2 2020 at 09.00 Singapore time
or 08.00 (UTC+07:00) I reported by telephone to the operator in Singapore that the
ship experienced engine failure in the waters of Tg Berakit. Then the DEFENDANT
ordered KKM (Engine Master) to repair the machine, to repair machine it took the
Engine Master
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approximately 12 hours. While the ship was being repaired at 14.40 (UTC+07:00) MT.
Royal Diamond 7 received satellite telephone contact from KRI Krait-827 and they
introduced themselves and asked for permission to board the Ship MT. Royal
Diamond 7 with the aim of checking ship documents due to the ship MT. Royal
Diamond 7 being in Indonesian waters. After the KRI Krait-827 officers finished
carrying out the inspection, the KRI Krait-827 asked us (MT. Royal Diamond 7) to
follow KRI Krait-827 to the waters of Tg. Uban to carry out further examination;
- That they anchored in the sea of Tg. Berakit in the Indonesian Territorial Sea, at
position 01° 21' 51" N - 104° 41' 49" E (according to the logbook notes) which the
DEFENDANT had recorded in the Log Book on March 1 2020 at 22.12 (UTC+07:00).
So approximately we were in these waters for approximately 15 (fifteen) hours until
we were checked by the Indonesian Navy;
- That the DEFENDANT had never anchored in the Berakit Waters and this was the
first time the DEFENDANT had anchored there;
- That the DEFENDANT sailed from Merak Port, Banten to Singapore in accordance
with the Sailing Approval Letter (SPB/Port Clearance) number M. 1/KSOP.
1/993/11/2020 issued by Harbor Captain/Merak port authority;
- That the owner of the ship MT. Royal Diamond 7 with the Marshall Island flag is
GSH2 Chem-Prod Crrire I AS, whose address is Munkedmsveien45, Vika Atrium, PO.
Box 1444 vika N-0250, Oslo, Norway;
- That the number of ABK/Crew on board the Ship MT. Royal Diamond 7 with the
Marshal Island flag numbered 24 people including the defendant himself as Captain,
all of whom were Myanmar nationals, according to the existing Crew List and
Passports;
- That the ship MT. Royal Diamond 7 with the Marshal Island flag has navigation
equipment including: Radar, ECDIS, AIS, GPS, Radio, Electronic Chart and the
DEFENDANT does not have a Paper Map because everything is electronic;
- That the DEFENDANT did not know that the DEFENDANT'S ship had entered the
Indonesian territorial sea, but after the KRI Krait-827 informed the DEFENDANT that
its current position was already in Indonesian waters, the DEFENDANT understood
that the DEFENDANT had anchored in Indonesian waters, specifically in Berakit
waters;
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- That the DEFENDANT left the anchor in that position because the engine had to carry
out repairs and the ship was not seaworthy but the ship did not blackout and the
DEFENDANT recorded the anchor in the position 01° 21' 51" N -104° 41' 49" E in the
log book boat;
- That the DEFENDANT sailed from Merak to Singapore via ALKI I from the waters of
the Java Sea heading north until he entered the waters of Tg. Berakit;
- That the DEFENDANT has a certificate as a seafarer issued by the Maritime Authority
of the Myanmar State Government;
- That the ship MT. Royal Diamond 7 with the Marshall Island flag is a Tanker
(Chemical Tanker) type ship;
- That the ship MT. Royal Diamond 7 with the Marshall Island flag has no cargo (Nil), is
a light ship and in ballast condition;
- That the DEFENDANT admitted that it was a mistake and violated the laws and
regulations of a country by not contacting the Indonesian port authority because the
DEFENDANT accidentally entered the Indonesian Territorial Sea or because the ship
suddenly experienced engine failure, and the DEFENDANT did not contact the
office/agent and was not aware that he was within the Indonesian Territorial Sea
area;
- Whereas the defendant did not contact the Indonesian port authority because the
DEFENDANT did not know that the waters where the DEFENDANT's ship was
anchored were Indonesian waters, so this was the defendant's fault;
- That there are 2 tank slots in the Ship MT. Royal Diamond 7, the capacity of 1 tank on
MT. Royal Diamond 7 amounted to 350,390 m3 and the remaining dirty/waste oil
cargo as of February 29 2020 was 135,580 m3;
- That the defendant did not carry out tank cleaning activities during the anchoring
ctivities in Berakit waters, the DEFENDANT carried out the last tank cleaning activity
on February 2 2020 from MT. Royal Diamond to MT. Megane in Malaysian waters Est
OPL as much as 372 m3;
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
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considered and constitutes an inseparable unit 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 of violating Article 317 in conjunction with Article 193 Paragraph (1) letter a
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 passage procedures
;
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
statutory regulations. 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 issued by the Harbor Captain (Port Clearance) No. M. 1/KSOP.
1/993/11/2020 against the Marshall Island-flagged MT Royal Diamond 7 ship, with zero
cargo, the Defendant was identified as the captain or Captain of the Ship MT. Royal
Diamond 7 with the Marshall Island flag;
Considering, that at the trial the Defendant whose full name was KYI LWIN was
presented, whose true identity had been researched and acknowledged by the Defendant
and the witnesses namely HENDRA i RAWAN and witness NYAN SOE who were
presented during the trial examination process and were in accordance with what was
written in the indictment Public Prosecutor, so that there is no {error in persona);
Considering, the Defendant's Full Name (full Name) KYI LWIN is the Captain of a
Marshall Island Flagged Ship, the person responsible
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in full of the ship, also including being 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;
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 the
Indonesian 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 issued
by the Harbor Captain (Port Clearance) for the Ship MT.
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ROYAL DIAMOND 7 with the Marshall Islandflag , with zero cargo sailing from Merak
Harbor to Singapore;
Considering, that based on the legal facts of the trial from the statements of
witnesses and the defendant, it has been proven that on February 28 2020 at 21.06
(UTC+07:00) the defendant as the captain of the Ship MT. Royal Diamond 7 with the
Marshall Island flag departed from the port of Merak, Banten, Indonesia, carrying out a
voyage to Singapore, to pick up the cargo (Loading) of diesel fuel in accordance with the
Sailing Approval Letter (SPB/Port Clearance) number M. 1/KSOP. 1/993/11/2020 issued by
the harbor Captain/port authority of Merak, then during the voyage the defendant as the
captain of the ship MT. Royal Diamond 7, due to engine failure, carried out an anchoring
without permission on March 1 2020 at 22.12 (UTC+07:00). Afterwards, KRI Krait - 827
detected contact with a foreign-flagged ship at position 01° 21' 00" N - 104° 36' 00" E which
was anchoring within Indonesia's territorial boundaries;
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.
ROYAL DIAMOND 7 has a Port Clearance from the Port of Merak Indonesia to Singapore;
Considering, the ship MT.Royal Diamond 7 with the Marshall Island flag on 28
February 2020 at 21.06 (UTC+07:00) sailed from the Port of Merak Indonesia to Singapore
in accordance with the mandate in the Port Clearance issued by the Indonesian
Government and the Defendant should have sailed and entered right of innocent passage
and had to sail continuously, directly and as quickly as possible without stopping, but on
March 1 2020 at 22.12 (UTC+07:00). Because the Ship MT. Royal Diamond 7 experienced
engine failure, the Defendant stopped the ship and anchored at the position 01° 21' 00" N -
104° 36' 00" KRI KRAIT-827, to whichthe KRI Krait-827, then approached the MT ROYAL
DIAMOND 7 ship, where witness Rovin Anggun HH and witness Damya Yogi ASS, who
are officers of KRI Krait-827, carried out an inspection and search at the position 01° 21' 33
"N - 104 ° 41' 30 ” E. Afterwards the Defendant and the ship MT. Royal Diamond 7 was
taken to the Indonesian Navy Base in Tanjung Uban for further examination;
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Considering, that the Defendant as the captain of the ship had taken
decision, to sail to Singapore but before arriving in Singapore the Ship MT. Royal Diamond
7 experienced engine failure so it decided to anchor, meaning that the ship's position must
apply traffic methods in accordance with the provisions of Law 6 of 1996, such as
navigational passage, arriving at the position point 01° 21' 00" N - 104° 36' 00” E, this
position is based on the Radar from KRI Krait - 827 and the Log Book of the ship MT.
ROYAL DIAMOND 7. The route taken is still in Indonesian waters, which is not visible on
the map of MT. royal diamond. Meanwhile Digital Maps are not owned by MT ships. royal
diamond;
Considering, that in accordance with the Sailing Agreement Letter, the ship driven
by the Defendant must anchor in Singapore waters, however, due to engine damage, the
ship decided to anchor in the waters of Tanjung Berakit, which in doing so anchored the
MT Royal Diamond Ship. 7 which was led by the Defendant did not first ask permission
from the local Harbor Captain. Therefore, it is clear that the Defendant has wronged or
violated the regulations for traffic in international sea waters. Of course it also violates the
provisions of the 1982 UNCLOS Convention and International Maritime Law;
Considering, that the Ship MT. Royal Diamond 7 does not comply with traffic
regulations when sailing in the Traffic Separation Scheme (TSS) Law No. 17 Year 2008
concerning Shipping;
Considering, that the coordinate position of the Ship MT. Royal Diamond 7, namely
position 01° 21' 00" N - 104° 36' 00" E, in the waters of Tanjung Berakit, Bintan Islands
based on Nautical 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. ROYAL DIAMOND 7 anchored in
Indonesian waters without permission and did not notify the Harbor Captain or the
Indonesian authorities first so that the Defendant's actions as ship captain should be
declared as not complying with traffic regulations when carrying out shipping;
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Taking into consideration, the panel assessed that the Defendant's actions in
carrying out anchoring in inappropriate places could endanger shipping traffic between
Indonesia and Singapore;
Considering, that based on the considerations above, the element of not complying
with the provisions relating to traffic procedures in sailing has been fulfilled;
Considering, regarding the objection note from the defendant's legal advisor,
namely:
THE DEFENDANT anchored at coordinates 01°21'33" N - 104°41'30" N because
the DEFENDANT did not know that the area where the anchor was anchored was within
the territorial waters of the Republic of Indonesia, the DEFENDANT only found out after
receiving an explanation from the Indonesian Navy on March 2, 2020;
THE DEFENDANT admitted that the DEFENDANT did not know or intentionally
entered and/or anchored in Indonesian waters. 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 MT Royal Diamond 7 ship 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:
That from the facts at trial the panel assessed that the Defendant, as the captain,
before anchoring in Indonesian waters, the Defendant should have confirmed the position
where the Defendant would anchor the MT Royal Diamond 7 ship, the defendant should
have contacted the Defendant's ship agent, which the Defendant did not do, so according
to the Panel this is a mistake on the part of the Defendant, so according to the panel the
objection note from the Defendant's legal advisor is baseless and must be rejected;
Considering, that because of all the elements in Article 317 in conjunction with
Article 193 Paragraph (1) letter a 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 a criminal act
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of Indonesia
CAPTAIN WHO DO NOT COMPLY WITH THE PROVISIONS OF TRAFFIC
PROCEDURES as charged in the Public Prosecutor's indictment;
Considering, that in the oral defense note submitted by the Defendant, he admitted
that he was responsible for his actions, and asked for forgiveness from the panel of judges
so that he could immediately return to Myanmar to meet his family. So the panel of judges,
through observations in the trial process, saw that there were many mitigating
circumstances for the Defendant compared to 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 being responsible, 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.
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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 probationary sentence
as stipulated in Article 14 (a) of the Criminal Code;
Considering, that in Article 317 in conjunction with Article 193 Paragraph (1) letter a
of Law of the Republic of Indonesia No. 17 Year 2008 concerning Shipping, apart from
being punishable by imprisonment, it is also cumulative with a fine, the Panel of Judges,
apart from 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 a criminal penalty where the length of imprisonment will be
determined in the verdict;
Considering, that the evidence presented at the trial is further considered as follows:
3) Ship Documents:
1. Port Clearance;
2. Crew List;
3. Health Book;

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10.Certificate of Insurance or Other Financial Security In Respect Of Civil Liability

23.Checklist For Safety Radio Equipment (GMDSS) Survey (For Radio

Technician);
26.International Oil Pollution Prevention Certificate. SGP-IOPPB-0034- 19;
27.International Air Pollution Prevention Certificate. SGP-IAPP-0042- 19;
28.Engine International Air Pollution Prevention Certificate. MKPNX- 0001-13;
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30. International Sewage Pollution Prevention Certificate. SGP-ispp- 0041-19;
33. P&I, Certificate Of Insurance NO.54646/1031071/512859/LCC- P&I/01;
0009019;
41. Korean Register Of Shipping - Certificate of Emergancy Response Service;
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56. Republic Of The Marshall Island Maritime Administrator - List of Deficiencies

as Issued by The Administration;

0030-19;

19;
63. LLOYD'S Standard form of Salvage Agreement - No Cure - No Pay. LOF

2011;
65. Statement Of Facts. No. NIB-OC-0009-18;
Considering, that the ship's document evidence is an integral part of the ship, where
all the evidence has an owner and is in accordance with the regulations so that it will be
returned to the owner through the Defendant;
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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;
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 has been sentenced to a crime, he must
also be burdened with paying the court costs;
Paying attention to Article 317 in conjunction with Article 193 Paragraph (1) letter a
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 KYI LWIN with the identity as mentioned above has
been legally and convincingly proven guilty of committing the criminal act of
"CAPTAIN WHO DOES NOT COMPLY WITH PROVISIONS RELATING TO
TRAFFIC PROCEDURES" as in the Public Prosecutor's Indictment;
2. Sentences the Defendant to imprisonment for 4 (four) months, with the provisions
that the Defendant does not need to carry out the sentence unless within the
probation for 6 (six) months, the Defendant is proven guilty of committing a criminal
offense 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:
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Returned to the Defendant;
2. 1 (one) unit of Ship MT. Royal Diamond 7, Flag: Marshall Island, Tonage: GT.
8539, IMO / Call Sign : V7PL9/9367437, Ship Type : Tanker, Company / Agent
: PT. Benline, Owner: Norstar Ship Management Pte. Ltd, Captain: Kyi Lwin,
3. Ship Documents:
1) Port Clearance;
2) Crew List;
3) Health Book;
4) Permanent Certificate Of Registry;
5) Documents Of Compliance;
6) Safety Management Certificate;
7) Republic of The Marshall Islands Maritime Administrator;
8) Certificate of Insurance or Other Financial Security In Respect Of Civil
Liability For Oil Pollution Damage;
Liability For Banker Oil Pollution Damage;
Liability For The Removal Of Wrecks;
11) Minimum Safe Manning Certificate Certificate Number 11157;
12) International Ship Security Certificate;
13) Continuous Synopsis Record (CSR) Document;
14) Korean Register - Certificate OS Classification;
15) Cargo Ship Safety Construction Certificate;
16) International Load Line Certificate;
17) International Tonnage Certificate (1969);
18) Korean Register Of Shipping - Confirmation Of Deadweight;
19) ABS Pacific Division - Panama Canal Commission;
20) American Bureau Of Shipping - IMO No. 9367437;
21) Cargo Ship Safety Equipment Certificate;
22) Cargo Ship Safety Radio Certificate;
23) Checklist For Safety Radio Equipment (GMDSS) Survey (For Radio
Technician);
24) Shore-Based Maintenance Certificate;
25) Ship Radio Station License - No. 49199;
26) International Oil Pollution Prevention Certificate. SGP-IOPPB- 0034-19;
27) International Air Pollution Prevention Certificate. SGP-IAPP- 0042-19;
28) Engine International Air Pollution Prevention Certificate. MKPNX-0001-13;
29) International Anti-Fouling System Certificate. SGP-IAFS-0041- 19;
30) International Sewage Pollution Prevention Certificate. SGP-ispp- 0041-19;
31) Ship Sanitation Control Exception Certificate. No. A01900;
32) Korean Register Of Shipping. SGP-OC-0087-19;
33) PLİ, Certificate Of Insurance No. 54646/1031071/512859/LCC- P&I/01;
34) Cover Note Reference : 20190083/84/85;
35) Membership Record Form (No. 14683);
36) Certificate of Test and Thorough Examination of Lifting Appliances;
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37) Document of Compliance with ILO Convention Nos. 92&133. SGP-
ILODOC-0009019;
38) ABS Quality Evaluations, Certificate Of Conformance. ISO 14001:2015;
39) ABS Quality Evaluations, Certificate Of Conformance. ISO 9001:2015;
40) ABS. Company Compliance. Cert.Num. 877243-3703744-001;

41) Korean Register Of Shipping - Certificate of Emergency Response
Service;
42) ABS. Norstar Ship Management PTE, LTD;
43) Annual Testing Of 406MHZ Epirbs;
44) Certificate of Compliance for Voyage Data Recorder;
45) Automatic Identification System (AIS) Check List;
46) Conformance Test Report;
47) Korean Register - Checklist for Survey of Ship Security Alert System
(SSAS);
48) Customer Service Certificate (IMO No.9367437);
49) Medical Chest Certificate;
50) International Certificate Of Fitness For The Carriage Of Dangerous
Chemicals In Bulk. SGP-IBC(N)-0019-19;
51) The Trust Company Of The Marshall Islands, INC;
52) Maritime Labor Certificate, 08166006-3638150-001;
53) International Energy Efficience (IEE) Certificate;
54) Report Of Inspection In A Accordance With The Memorandum Of
Understanding On Port State Control In The Asia-Pacific Region;
55) Republic Of The Marshall Islands Maritime Administrator;
56) Republic Of The Marshall Island Maritime Administrator - List of
Deficiencies as Issued by The Administration;
57) Examination Certificate - SGP-SX2-0006-19;
58) International Ballast Water Management Convention Certificate
- SGP-BWM-0030-19;
59) Type Approval Certificate;
60) Document of Compliance for Garbage Pollution Prevention - SGP-IGPP-
0029-19;
61) Statement Of Compliance - SGP-VEC-0014-19;
62) Statement for Ongoing Type Approval Process;
63) LLOYD'S Standard form of Salvage Agreement - No Cure - No Pay. LOF
2011;
64) STS Operations Plan Letter of Approval;
65) Statement Of Facts. No. NIB-OC-0009-18;
66) Tocicology- Certificate;
67) The People's Republic of China - Tonnage Dues Certificate;
Be returned to the rightful Owner through the Defendant;
5. Burden the Defendant to pay court costs of IDR 5,000,- (five thousand rupiah).-;
This was decided at the deliberative meeting of the Panel of Judges at the
Tanjungpinang District Court, on Monday, June 22 2020, by us, Admiral S.H., M.H., as
Chief Judge, Eduart MP. Sihaloho, S.H., M.H.., and Guntur Kurniawan, S.H, each as
Member Judges, the verdict was pronounced in a hearing open to the public on Thursday,
dated
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25 June 2020 by the Chief Judge accompanied by the Member Judges, assisted by Marni
Haiti, S.H., Substitute Registrar at the Tanjungpinang District Court, and attended by Eka
Putra Waruwu, S.H., M.H., Public Prosecutor at the Bintan District Prosecutor's Office, the
Defendant's Attorney and the Defendant accompanied by his translator.
Member Judge, Chief Judge,
EDUART M.P SIHALOHO, S.H., M.H. ADMIRAL S.H., M.H.
GUNTUR KURNI AWAN, S.H.
Substitute Registrar,
MARNI HAPTI, S.H.
Disclaimer
improve from time to time. In the event that you find inaccuracies in the information contained on this site or information that should exist, but is not yet available, please immediately contact the Registrar's Office of the Supreme Court
of the Republic of Indonesia via: Email: kepaniteraan@mahkamahagung.go.id Tel: 021-384 3348 (ext.318 )
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Directory Verdict of the Supreme Court of the Republic

FOR THE SAKE OF JUSTICE BASED ON THE ALMIGHTY GOD

Full name : KYI LWIN

The defendant in this case was accompanied by his Legal Advisors

the District Court;

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After hearing the statements of the Witnesses, Experts and Defendants;

After paying attention to the evidence in this case;

3. Order that the Defendant be detained;

4. Determine evidence in the form of:

1) Captain's Passport: MC513622;

Returned to the defendant;

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Be returned to the GSH2 Chem-Prod I AS Company located at

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Ad.l Captain Element;

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4. Permanent Certificate Of Registry;

6. Safety Management Certificate;

7. Republic of The Marshall Islands Maritime Administrator;

8. Certificate of Insurance or Other Financial Security In Respect Of Civil Liability

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10.Certificate of Insurance or Other Financial Security In Respect Of Civil Liability

11. Minimum Safe Manning Certificate Certificate Number 11157;

12. International Ship Security Certificate;

13. Continuous Synopsis Record (CSR) Document;

14. Korean Register - Certificate OS Classification;

15. Cargo Ship Safety Construction Certificate;

16. International Load Line Certificate;