By:  Iman Sjahputra, SH, SpN, LL.M *)

      TRAGEDIES of ship passenger accident in this country have occurred many times. Many ship passengers have become the victims in various accidents in the sea.  One example of passenger ship accident which has become black history in maritime in Indonesia was the burning of MV Tampomas II which occurred around Masalembo island in January 1981.

      Thousands of passengers (even though fix number is not known), 431 person were stated died and 288 lost together with the sinking of the ship.

      Beside MV Tampomas II there are many other ship accidents in the territory of Indonesia.  MV Digoel which sailed Arafura watery in 2005 also sunk when she was sailing from Merauke to Tanah Merah.  Hundreds of passengers were found dead.  A passenger ship with capacity of 50 passengers was in fact loaded with 200 passengers.

      Recently another ship accident also occurred in the Sibolga watery of North Sumatera.  The MV Ferry, Surya Makmur Indah, with hundreds passengers sunk.  Temporary figure noted 94 were safe and 39 lost.

      What is necessary noted in this writing not merely the number of ship accidents which of course brought financial loses.  But more concern was to the number of the human victims which cannot be calculated financially in any ship accident.  Ironically it has never been cleared as to what the findings of the investigation and who shall be held liable.

      At least we are faced with question such as, “that the accident was due to bad weather” or at most it was stated as “technical matters”.  Whilst on the other hand we all know that all people involved in sea transportation and ferry should have been aware of the sea weather and nature is the highest risk.  It should be that natural factor has been calculated in any provision of sea vessel for passenger transport.  Natural factor has to be anticipated with various stipulation, including provision on sea worthiness of the ship, that when an accident occurs in the sea the total victim can be reduced  and bad weather is not always be quoted as the cause of the accident.

      Legally who shall be held liable in the ship accident?  Many instances were involved in this case including Maritime Tribunal.  But we need to remember that under criminal law we know the principle that says “no liability without guilty”, meaning that someone can be held liable if he is guilty, and not merely seen from elements of the crime.

      And the guilty can be of the type of intention or of negligence.  So our question is, in the case of the ship accident in Sibolga, who shall be held liable?

      Let’s say that the accident of the ferry was not due to “bad weather”, but due to “human error” or “technical matter”.  Meaning that with over capacity of passengers and the ferry was old and some leaking were found that she was not worthy sailing.

      It can be suspected in this case that the guilty was in the form of negligence in the part of the operator of the vessel due to non-repairmen of the leaking and also the guilty of the master due to over capacity of the passengers which was more than seat capacities.

      Thus in the case of the ferry in the accident in Sibolga if the accident caused death or injury of the passengers then legally criminal liability can be charged against the carrier and the master.

      The reference is provision of Article 389 of Penal Code which provides liability due to intention or negligence.  Beside that Law No. 21 Year 1992 under Article 86 paragraph (1) provides that “Sea carrier shall be held liable for the accident that occurs in the operation of his ship”.  For the death and injury suffered by the passenger Article 88 provides, “Master or ship leader shall be held liable for the accident unless it can be proven otherwise”.

      In addition to criminal provision in a ship accident, the carrier or the master can also be held liable to compensate for the passengers or their heirs.

      Under Civil Code it is provided that an agreement or contract purpose is to provide something, to do or not to do something (Article 1234 of Civil Code).  The passengers and the carrier enter into contract as proven by the ticket purchased with obligation to transport the passenger to a certain destination.

      If the transport fails to reach destination, it can be deemed as breach of contract in the part of carrier and the effect of which is to compensate for the losses by the carrier.

      More clearly when someone is deemed to have been default (non fulfillment of his/her obligation), it is due to non fulfillment of the obligation or partial fulfillment of the obligation which is less that it should have been.  Beside that it may happened that someone fulfills his/her obligation but the time frame was exceeded or he/she performed something which was not obliged under the contract.

      We expect that ship passenger accidents in Indonesia can become lessen so as to avoid the loss of human life.  But we also expect that in the case of the sunk of the ferry in Sibolga watery will leave a longer suffering for the victims and that the rights of the victims can be fulfilled by related instance.  More important is that this case shall become a lesson for all of us with the expectation that ship passenger accident no longer occur because it only will add the note of sufferings in this country.

*) The writer is practicing lawyer in Jakarta.