Summer 2010

By Stephen Askins
With the summer monsoons pushing into the Somali basin, another piracy “season” ends and the depressing cycle shows no real signs of being tamed.
Headlines suggest an improvement but on a year on year basis it is marginal and with the focus of the international community and the better tactics of the coalition forces surely the shipping industry could have hoped for better.
A Spanish Admiral took charge of the EU forces earlier in the year and that coincided with a more aggressive posture which took the fight to the pirates. Yet in one of its noticeable successes, (the retaking of the Taipan), the Tromp the Dutch war ship involved, had to divest itself of the coalition bureaucracy and place itself temporarily back under “national tasking” in order to mount the operation. We were treated to pictures of Dutch marines fast roping onto the bow of the vessel and the crew huddled in their darkened citadel in the bowels of the vessel. The issue of the citadel and how it differs is causing confusion which it is hoped will be dispelled in part by the new updated Best Management Practice Guidelines which is to give specific guidance on their use without going as far as to recommend them.
The Taipan was a marked contrast to the boarding of the Mavi Marmara by the Israeli military which sparked international protest and questions as to whether that act constituted “piracy” in its own right. The definition of piracy most often relied on as set out at Article 101 of UNCLOS defines piracy as “…any illegal acts ….for private ends…”. An act by the State is unlikely to be for private ends which takes it outside the definition. Further, Israel relied on the principles set out in the San Remo Manual On the application of International Law Applicable to Armed Conflicts at Sea as justification for the blockade and the boarding of the vessel. We will see where that argument goes.
Perhaps one measurable effect of the failure of the world’s navy to deter the enthusiasm of the pirates has been a hardening of attitude on the question of the use of armed force. We have even seen vessels changing from one flag to another to get around laws preventing this. One such example has been German flagged vessels switching to the Liberian Register for transit of the area in order to allow the ships to carry armed security consultants.
This in itself is a worrying development. For whilst no ship protected by armed guards has been taken, there have been several reported fire fights and it is a sad fact that crew are being killed at the point of hijacking. That trend will undoubtedly continue. As yet the pirates have not seen fit to upgrade their weapons. The RPG and rusty AK47 remain the weapons of choice and still appear to be enough to take commercial ships some 900 miles off shore. Their tactics are adapted and they have developed techniques to overcome some razor wire.
The high profile cases of the past such as the Faina and Sirius Star have been replaced by a fresh cast. The North Korean flagged, Libyan owned Rim made headlines as the crew took back the vessel after several of the pirates had gone ashore to meet an intermediary leaving those on board complacent and undermanned. Having got the vessel back the crew appears then to have abandoned the ship and no doubt their debriefing by the military will be an interesting one. The third VLCC the Samho Dream was captured some 900 miles off shore and remains held some three months later. There is no doubt that tankers are seen as the ultimate prize by the pirates.
The Moscow University seems to be a story that might have satisfied the “hang them and blow them out of the water” brigade. There the vessel was recaptured by military force within hours of the hijacking where again the crew appear to have taken refuge in a well protected citadel. The pirates in a high profile example of the “catch and release” policy were sent back to Somalia only to “disappear” after an hour. The press seized on this and the Russian authorities were forced to justify what seemed to be a failure in their obligations under SOLAS.
Turning the Indian Ocean into a free-fire zone cannot be the way forward, easy and gratifying as it may seem. Anecdotally there are reports of private security operators shooting at pirates but there is little or no accountability and whilst there is no doubt sympathy we have to be wary of allowing the laws of flag states to be stamped underfoot. Here in the UK in the shadow of the Bloody Sunday inquiry the whole issue of lawful force by a section of the army which may have stepped over the line, shows how important society believes the rule of law is. The events of the Mavi Marmara also brought home the same point. Pirates are afforded the full panoply of human rights once in the hands of our military (although following the recent Supreme Court ruling the servicemen who capture them do not have the same rights). Those principles must be adhered to, not least because failure to do so invites repercussions for the crews that are being held and undoubtedly those that are yet to be hijacked.
This is particularly so as certain US senators look at the old principles allowed by Letters of Marque. These were the fashion for privateers and lawful until they were banned by Treaty in 1845. A Treaty that the US did not sign and they remain enshrined as part of the Constitution. In effect they were licences given to private individuals allowing them the right to seek and capture pirates and pirate property returning to sell it in prize courts. The US initiative is looking to raise them again not so that booty can be sold (what price a ladder, an RPG and a couple of barrels of fuel) but so that the fight can be taken to the pirates by private companies. The argument being that it frees up the navy to carry out more formal tasks of escorting ships and guarding the Internationally Recognised Transit Corridor. It is unsurprising that such a move is being lobbied by various US security companies and is a worrying development.
There is still a lack of political will to prosecute pirates captured by the coalition forces. All credit though to the US who have taken pirates to the US for prosecution. Although the defence are relying on a two hundred year old case which suggests that piracy must involve boarding and seizing a vessel which the pirates (who had attacked a US military ship) clearly had not done. The Dutch have recently convicted a group of pirates and sentenced them to five years in prison. A result no doubt appreciated by the pirates who may have heard that in Yemen several of their contemporaries were sentenced to death and others to twelve years in prison. The EU seems to have persuaded Kenya to take up where they left off last year and Tanzania will now also be used as a centre for prosecution.
In the UK, recent cases have been confined to civil proceedings and piracy issues have been the subject of judicial consideration in the High Court. The first was an insurance case: Amlin v Masefield, where a Court was asked to consider whether a ransom was contrary to public policy and found that it was not. The second and perhaps more relevant to commercial shipping was Cosco Bulk Carrier v Team Up Owning Co Limited [2000] EWHC 1340 (the Saldanha). This resulted from the hijacking of the Saldanha in February 2009 whilst sailing in a laden condition through the IRTC in the Gulf of Aden. The vessel was on charter on the standard NYPE Form which included the familiar off hire clause 15 which provided that the vessel would be off hire if delay was caused: “…….in the event of loss of time from default and/or deficiency of men ….. detention by average accidents to ship or cargo ……. or by any other cause …..”
The Court supporting the findings of a distinguished Tribunal found that pirates attacking and seizing a vessel was not an “accident” in the events understood by the shipping industry. Further that the default and/or deficiency of men did not encompass errors or negligent errors by the Master and crew. This case may yet to be appealed by the Charterers but its impact is really to help define the risk that contracting parties are taking and importantly allows the correct insurance regime to be put in place prior to transit to the high risk areas.
The winds and sea means that the pirate activity has pushed into the Red Sea but no doubt as the weather improves we will see attacks resume in the Indian Ocean. The coalition forces latest attempt to outwit them is by way of a Dutch submarine, lets hope it is of more use than the English football teams defence.

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