Shipping Special Report: Sea and enemies

Piracy is a very real and growing threat and one that can even land the unwary lawyer in hot water. By Tomás Fernández-Quirós and Oscar Morales

Shipping Special Report: Sea and enemies In recent times acts of piracy at sea have been much reported in the news.

Most people believe that pirates ceased to exist some ­centuries ago, but the reality is that they have never disappeared, as their recent hijacks and attacks confirm. If we approach piracy from a legal standpoint, two main issues arise: what do we define as piracy from a legal point of view and what ­international conventions or regulations are applicable?

The Montego Bay Convention

This is an area where the maritime lawyer has to follow the public international law ­provisions informing the United Nations Convention on the Law of the Sea, ­commonly known as the Montego Bay Convention.

Article 101 of the convention defines ­piracy as any of the following acts: “(i) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship and directed on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft, or against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (ii) any act of voluntary participation in the operation of a ship with knowledge of facts making it a pirate ship; or (iii) any act of inciting or of intentionally facilitating
an act described in the other two cases.”

The Montego Bay Convention also ­regulates what is deemed as a pirate ship, the right of any state to seize a pirate ship, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board, whether this occurs in the high seas or in any other place outside the jurisdiction of any state, or even the potential liability of a state that has seized a ship on suspicion of piracy without ­adequate grounds.

Additional regulations

Another regulation to be followed is the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988, which was adopted following the Achille Lauro hijacking in October 1985.

In such cases, the maritime lawyer is not only expected to know the public international law principles that are applicable, but the concerned parties (shipowners, cargo owners, charterers or insurers) usually seek the maritime lawyer to advise on a wide variety of questions in relation to the contracts of carriage, the insurance cover and the party that must bear the cost of paying any ransom.

Among the usual questions are included: what are the effects of piracy acts on charter parties? Can a ship be held off-hire while it is hijacked by pirates? Who has to pay the ransom? Are any rules infringed when ­paying a ransom? Is piracy considered as a peril under the usual marine insurance cover? Do ransom payments qualify as a general average expenditure?

Navigating piracy law

As in these matters, because it is expected that the pirates will raise ransom demands, in such cases lawyers must be very careful of the potential implications of being involved in the negotiation of any ransom demand.

Under Spanish Criminal Law, for example, the involvement of any person in such ­negotiations can make them criminally liable if such involvement or intervention is remunerated, as a criminal court could hold that those persons would have obtained an economic benefit from a criminal action.

Furthermore, in these cases the individuals involved could hardly argue that their ­intervention is justified on the grounds of necessity.

Therefore, it would be prudent for any lawyer or individual, at least from a Spanish law perspective, to avoid becoming involved in negotiations concerning ransom demands.

Indeed, there is an ongoing draft of amendment of the Spanish Criminal Code that will incorporate a new criminal offence of maritime piracy, punishable by imprisonment of a term between 10 and 15 years.

Tomás Fernández-Quirós and Oscar Morales are partners at Uría Menéndez