Richard Spector, partner, els International Lawyersthe
Legal solutions to illegality on the seas
4 May 2009
14 August 2013
25 November 2013
Court construes in-transit loss clause in voyage charterparty — Trafigura Beheer BV v Navigazione Montanari Spa (Valle di Cordoba)
12 February 2014
5 March 2014
19 March 2014
The problem of high seas piracy, its causes and possible solutions, has become an increasingly high-profile staple of the international media in recent months.
The problem of high seas piracy, its causes and possible solutions, has become an increasingly high-profile staple of the international media in recent months. Primarily this is due to the vast increase in the number of reported incidents in the Indian Ocean off the coast of Somalia.
In 2008 piracy in this region doubled from the previous year. This trend has continued in 2009 with a number of
high-profile incidents, culminating in the recent seizure of the US flagged ship the Maersk Alabama and last week’s attack on Italian cruise ship the Melody.
There has been a concerted response by the international community. However, the fact that governments might have the legal remit to take a heavy-handed approach against the criminals does not necessarily make it a good tactical option. By arming crew members this could increase the chances of the pirates turning their firearms on foreign ships and crew. There are also legal issues. For example, it may not be legal to carry firearms in UK waters. The inclusion of armed crew members aboard vessels will also have an impact on the terms of insurance contracts as well as the cost of premium.
The escalation of hostilities has certainly had an effect on the attitude of the pirates themselves. Following the killing by the US Navy of three of the bandits responsible for the kidnapping of Maersk Alabama captain Richard Phillips, attacks against US vessels have increased, exemplified by the reprisal attack on the Liberty Sun last month.
There has been a similar reaction in the past by Somali pirates to French military action, including the killing and capturing of pirates following an attack on a French yacht in September 2008. It should be borne in mind that many Somali pirates believe they are merely protecting their coastline and that the ransoms are a form of rightful compensation for the depletion of fishing stocks in the Indian Ocean - a depletion caused in no small part by foreign fishing boats. That there is dubious merit in such justifications should not detract from the fact that the criminals will be willing to fight fire with fire. And so this ramping up of hostilities, while it may have been given legal approval, is unlikely to solve the underlying problem. The pirates have too much to gain and the potential loss of life is simply not enough of a deterrent.
A further legal minefield is what to do if you capture a pirate. Last year the Danish captured ten pirates, but six days later they had to be freed back to Somalia as Danish law did not permit them to be tried before a Danish court. This has been slightly helped by an agreement that Kenya will put captured pirates on trial.
What is clear is that central to the solution to the problem of piracy in the Gulf of Aden is the establishment of a competent and sufficiently resourced Somali government. In the medium term it is necessary to, under the authority of the UN, continue and increase the concentration of foreign warships patrolling the areas at risk. In the absence of a national coastguard in Somalia it is essential that countries work together, and in conjunction with the Somali authorities, to carry out coordinated blockades, ship recoveries and hostage search and rescues. Additionally, measures should be taken to freeze the assets gained by piracy and prosecuting the perpetrators.
The legality of different security measures (as well as their effect on insurance claims and premium), the negotiation process with pirates and, ultimately, how to secure the safety of ships, cargoes and crew, take priority when a ship is at sea and a threat is imminent. In essence, a holistic approach to this matter is needed if it is going to be resolved in the near future.