As cases of piracy continue to hit the headlines, what is the position for owners and crew in international and English law?
FORGET images of swashbuckling pirates sailing the high seas in the hope of capturing treasure chests full of gold. The 21st- century reality is far less glamorous.
Piracy remains a serious and increasing problem, notably in the Malacca Straits, South America and West Africa (particularly Nigeria). The latest counts of piracy according to Lloyd’s of London stand at 15 vessels and more than 295 seafarers being held.
In particular, Somalia has one of the worst records of piracy, and it is a problem that is constantly monitored by the International Maritime Organization and the shipping industry.
So far, the international response has been on a two-fold basis: firstly, to assemble naval forces in the affected regions; and secondly, to encourage a political settlement in the fractured state of Somalia. The European Union has now also pledged to tackle piracy with the launch of Operation Atlanta, which will add a further eight vessels to the international effort.
On November 17, the Liberian-flagged very large crude carrier Sirius Star was captured by Somalia pirates and taken into the notorious pirate stronghold of Eyl. The vessel, the biggest tanker ever taken, has over £67m ($100m) worth of oil onboard, representing a quarter of Saudi Arabia’s daily output. It also has 25 crew on board, including two Britons.
Not only has the incident raised issues about crew safety but it has also caused fear that any damage to the Sirius Star could result in an oil pollution disaster on an even larger scale than the Erika or Prestige. On November 20, the pirates issued a ransom demand for $25m, and there are concerns that non-compliance with their demand could have catastrophic consequences.
Acts of piracy are a conflict with the usual principles of exclusive flag-state jurisdiction. Usually, a state will retain jurisdiction over its nationals on a vessel, although since the collision involving the vessel Lotus there is a general expectation that where there is a conflict of two separate jurisdictions, it will be the jurisdiction of the vessel’s flag state that prevails.
That said, there still exists a legal minefield concerning who can obtain jurisdiction over the pirates and bring them to legal account.
An act of piracy undermines the usual principles applying to flag state jurisdiction, as Article 100 United Nations Convention on the Law of the Sea provides that every state has a duty to act against piracy.
Piracy itself is defined in Unclos Article 101 as “any illegal acts of violence, detention or depredation committed for private ends by the crew or passengers of a private ship against another ship or persons or property onboard it whilst on the high seas”.
The requirement of needing two vessels (pirate and victim) to be involved distinguishes acts of piracy from those of hijacking, and it explains why incidents such as the Achille Lauro and Santa Maria, where passengers took control of the vessels, are not acts of piracy.
Pirate ships on the high seas may be seized by clearly marked warships (or aircraft) or any authorized vessel on government service. Those found onboard a pirate vessel may be tried by any state before whose courts they are brought, and the state may determine by its laws the penalties to be imposed (Unclos Article 105).
However, this course of action should not be taken lightly. Unclos provides that compensation may be payable to a vessel that is incorrectly boarded.
Arguably, the most effective response by international actors would be a bombardment of the stronghold of Eyl. However, such a move could not be brought about without a resolution of the UN Security Council, an outcome that is highly unlikely.
Pirates brought before a court in England and Wales can be prosecuted under the Piracy Act of 1837. While in theory there is nothing to prevent the prosecution of pirates under this Act, there are additional problems.
It is possible that pirates can be extradited, although this may only be done within the considerations of the Human Rights Act.
Taking the example of the Somalian pirates caught by Plymouth-based HMS Cumberland, it is unlikely that they would be extradited back to Somalia (by whatever authority can be found) as the risk of unfair and harsh treatment is extremely high. The pirates were, eventually, handed to Kenya, not Somalia.
On November 20, AP Moller-Maersk announced its adoption of a new policy in respect of its tankers. Vessels will be routed past the Cape of Good Hope, although, depending on the availability of escorts, some vessels may join naval convoys through the Gulf of Aden.
Speculation suggests that this may not overcome the problem, though, as pirates are increasingly capable of extending their catchment’s area and their weapons’ capabilities.
While a decision to avoid the Suez Canal ultimately means higher overheads, which will be passed on to consumers, there will be other long-term implications. Egypt depends on the Suez Canal as its second most important foreign currency earner after tourism.
As levels of piracy rise, ship owners can in turn expect insurance premiums to increase accordingly. The insurance industry is undecided about where piracy risks should lie. There is the power to move this risk between hull and war cover, as proposed by using wording issued by the Joint War and Hull Committees.
If piracy risks rest with hull and machinery cover, it is likely that a member will pay specifically increased premiums for traversing a stretch of water such as the Gulf of Aden, in the same way that increased premiums were fixed in, for example, the Iraq wars.
Furthermore, it is not clear whether ransoms are covered under the scope of a war and terrorism policy or P&I Club terms. Should ship owners be made to pay for a peril, unless there is specific cover?
Lloyd’s List recently reported that Hiscox Insurance Group has highlighted a new scope of insurance. Traditional marine cover will meet the cost of the ransom but none of the costs involved in the process. Ransom can account for just 25%-30% of the costs of the incident. Where kidnap and ransom cover goes above the traditional marine policies is that it will become involved from the moment a vessel is seized.
As to the legality of ransom, there are two potential pitfalls under English law, with the provisions of anti-terror laws and the Proceeds of Crime Act.
Money cannot be paid over to individuals if there is a reasonable belief that the organization is a terrorist one, or if there is a reasonable chance that the funds could end up in the hands of terrorists. Pirates have gone to great lengths to issue statements that they are not affiliated with any terrorist groups.
It is generally anticipated that the payment of ransom equates to extortion, and there is a clear belief that public policy dictates that those who pay ransom demands should be exempt from money- laundering regulations.
There is much debate over the use of armed guards, or even arming members of the crew. The general consensus with the shipping, and indeed, the security industry, is that arming vessels is not a sensible route forward.
Crews who open fire on pirates could escalate a situation to a lethal level. Furthermore, many very large crude carriers are so long in length that it would be impossible to provide adequate levels of security on a cost-effective basis.
The industry is divided on this point, as ship owners require adequate protection but remain responsible for the acts and omissions of their armed and specifically trained sub-contractors.
There must be a sound argument for providing thorough training on counter-attack measures so that crew members will have the confidence to deal with incidents in as non-violent a manner as possible. Charles Hattersley and Polly Russell Stower are members of the marine department at Ashford.