索马里海盗赎金理赔法律问题

从索马里海盗行为特点入手,对索马里海盗赎金的性质从合法性及法律地位两个方面进行分析,认为可将船舶和货物的赎金列为共同海损中的替代费用。而对于海盗赎金的理赔分别从船货赎金和人命赎金两个方面进行阐述,并提出解决海盗赎金理赔的可行方法及注意事项,期望对解决索马里海盗赎金理赔的法律问题有所裨益。     

海盗赎金应由谁买单

近来,索马里海盗频频出现在新闻报道中,也不时耳闻航行于索马里海域的船舶被海盗劫持。船东出于保护船员人质安全,同时也为了船货安全,不得不向海盗支付大笔赎金,而船东为向船上货物所有人摊回部分赎金,在船舶抵达下一港口时宣布共同海损,要求货主提供共同海损担保,否则,船东有权滞留货物。这时,货主(被保险人)会要求保险公司根据货运险条款承担保险责任并出具共损担保函,但是保险人对于海盗行为下的海盗赎金是否可列入共同海损分摊存在争议。保险人与被保险人双方对该问题存在分歧,形成目前海上保险争论焦点之一,也是保险业界当前需要解决的紧迫问题。     

索马里海盗赎金能否理赔

长久以来,船东为了赎回被海盗扣押船舶、货物和人员而支付的赎金可以作为共同海损牺牲向货主和其他利益相关方要求分摊损失,或者作为保险损失要求向有关利益的保险公司索赔,这已成为航运惯例,这无论是在英美法系还是大陆法系的周家郜有支持这种惯例的判决案例和相天法条。这种赎金一般属于财产险中船舶险范畴,而船舶险又分为一切险和全损险（或推定全损）两种。     

索马里海盗赎金能否理赔

长久以来，船东为了赎回被海盗扣押船舶、货物和人员而支付的赎金可以作为共同海损牺牲向货主和其他利益相关方要求分摊损失，或者作为保险损失要求向有关利益的保险公司索赔，这已成为航运惯例，这无论是在英美法系还是大陆法系的周家郜有支持这种惯例的判决案例和相天法条。这种赎金一般属于财产险中船舶险范畴，而船舶险又分为一切险和全损险（或推定全损）两种。     

索马里海盗对世界航运业的影响及应对策略

海盗问题历史悠久,一直伴随着世界航运业的发展而发展。随着索马里附近海域商船及船员遭遇海盗劫持并勒索赎金事件的骤然增多,索马里海盗问题正式浮出水面,这对世界航运业造成了重大影响。     

国际

索马里海盗生意惨淡向被绑中国渔民学捕鱼 一艘航行在印度洋上的独桅帆船10月5日遭到海盗袭击，这是台风季过后的首起索马里海盗袭击事件。不过，较之2011年，今年索马里海盗袭击次数骤减，被扣船仅5艘，其索得的赎金少得可怜，不少海盗甚至传出“破产”消息。     

索马里海盗现状及预防措施

索马里海盗杀人劫船,索要巨额赎金,严重威胁过往船舶的安全,船公司为此遭受巨大损失,打击和预防海盗已是当务之急。通过分析索马里海盗现状特点,提出具体预防、反击武装海盗措施以及过海盗区的一些注意事项。     

信息动态

<正>亚洲运煤船成索马里海盗新目标亚洲对南非煤炭的需求旺盛,将令更多船只面临索马里海盗威胁,且会进一步推高海运保险费和运费。在赎金上升的激励下,索马里海盗近月活动愈发猖獗,在印度洋和亚丁湾大肆     

国际刑警追赎金流向

国际刑警犯罪组织和暴力罪行调查部代表黄英伟近日出席“香港国际关注海盗问题大会2009”时表示。有关当局虽然未曾起获索马里海盗收取的赎款，但关注可疑资金流动去向，务求瓦解索马里海盗背后的犯罪网。他指出，索马里不会将获得的赎金保留在索马里，大部分资金会转往海外，但有关资金走向繁复，增加追查困难。     

索马里海盗日益猖獗，商船自救是根本

由于索马里政局不稳，该地区海盗活动非常猖獗，2008年以来，金融危机也导致海盗活动呈现活动范围更广、出动频率更高、劫持能力更强、素要赎金更高的特点。前期素马里海盗劫持了沙特阿拉伯油轮“天狼星号”，这艘超级油轮的体积相等于航空母舰的三倍，是索马里海盗历来劫持的最大艘轮船，充分显示索马里海盗的活动能力和信心都有了很大提升。     

Deterring the dauntless—appraising the effects of naval deterrence against the Somali piracy

This article considers whether the Somali pirates were deterred by the naval task forces between the years 2009 and 2013. By disaggregating data and using previously unpublished records regarding the naval operations, two areas of operations are identified as potential periods of deterrence. The article uses a model of asymmetric deterrence to study the outcomes and equilibria of the navy-pirate interaction. It is found that the naval operations eventually did deter the Somali pirates in the Gulf of Aden, but that this objective was not met in the Somali Basin. It is concluded that the operational focus on the Gulf of Aden coupled with the fact that the area is relatively smaller than the Somali Basin enabled the naval credibility, thus effectively denying the pirates access to the sea. Conversely, limited attention by the naval units and the long Somali southern coast with its open waters impeded naval control in the Somali Basin. In connection to these findings some conclusions regarding naval deterrence are discussed.     

Total losses and the peril of piracy in English law of marine insurance

Whereas the Marine Insurance Act 1906 provides substantial detail about total losses, very little is provided in relation to piracy in the said statute. The recent judgments in Masefield v Amlin by Steel J ([2010] 1Lloyd's Rep. IR 345) and then by the English Court of Appeal ([2011] EWCA Civ 24) have highlighted the difficulties associated with determining whether a seizure of the subject-matter of insurance, in this case cargo, by pirates, demanding a ransom, can give rise to a claim for a total loss. This is a very important matter which also raises issues of legality and public policy. This article examines the implications of this judgment against the backdrop of the English marine insurance definition of piracy and the intricacies of the law relating to constructive and actual total losses. The article concludes with the suggestion that possibly the marine insurance definition of piracy should tally with that in the domain of public international law, and further, that legislative intervention should be considered for the purpose of ascertaining the point in time whether and when seizure by pirates can constitute a total loss.     

Is Somali piracy a random phenomenon?

This paper investigates whether Somali piracy is a random phenomenon. The investigation takes place in two distinct parts. Its statistical analysis spans over a period of 11 years, from 2000 until 2011 for the first part (flags), and 5 years, from 2007 until 2011 for the second one (crews). The reason is that although prior to 2007 there have been a substantial number of attacks (parameter used in the first part of the research), very few ships were practically pirated (parameter used in the second part) within the same period. Firstly, it is widely believed that Somali pirates select their targets at random and the decision on attacking a vessel registered under a particular flag is unrelated to the participation of the flag state in any of the naval forces operating around the Horn of Africa. The enquiry attempts to assess whether these two common beliefs are supported by historical data and to what extent. Secondly, this paper asks whether there are certain nationalities of crews which are for ethnic and/or cultural reasons more (or less) vulnerable to fall victims of pirates off Somalia. Such groups (if there are any) would in effect indirectly ‘support’ Somali piracy, and for this reason, they could be considered as ‘passively supportive crews’. The analysis focuses on the crew composition of the attacked vessels with special interest cast upon those ships (meaning the crews) which eventually succumbed to Somali pirates and were in the end seajacked.     

索马里海盗现状及应对策略

索马里海盗劫持船舶行为给世界航运市场带来了巨大考验,造成了船期的巨大浪费、营运成本的大量增加和船员生命安全的严重威胁。如何提高船舶抵御海盗袭击、劫持的能力成为当今一项极为紧迫的课题。文中介绍了索马里海盗的现状特点并阐述了国际社会应对索马里海盗的策略。     

Challenges to apprehension and prosecution of East African maritime pirates

The coast of East Africa, the Gulf of Aden and nearby waters of the Indian Ocean stand as the most pirate-ridden area of the seas at this time and naval forces from many nations have descended upon the region to ensure the safe passage of commercial vessels; yet piracy for ransom continues. The US, the North Atlantic Treaty Organization (NATO) and now the European Union deploy their navies to disrupt raids, intercept and capture pirates attacking ships passing through the region. However, apprehending pirates is only effective if they can also be brought to a court capable of adjudicating their guilt. Increasingly, the captured suspects are being disarmed and released, lacking a reliable nearby littoral state to prosecute them. In this region, with few viable states either willing or capable of holding piracy trials, apprehending pirates meets only part of the challenge of abating the practise. What is needed is a court system capable of adjudicating these cases; yet a thicket of both law and custom limits the ability of seagoing states to adequately arrest and hand over to reliable prosecution high seas pirates. This article addresses the problems inherent in abating piracy by these means off the coast of East Africa.     

船舶遭劫持与船员国籍的非关联性探析

文中在分析索马里海域状况和索马里海盗袭击商船的历史和现状的基础上,对国际海事组织(IMO)和国际海事局(IMB)提供的有关索马里地区调查数据进行了分析,尤其是对被海盗所劫持船舶的船员构成作了详细的分析,并由此证明船员国籍和船舶劫持之间是否存在某种关系,船员是否会因为种族或者文化的原因更容易(或不容易)成为索马里海盗的受害者等。论文的研究为认识海盗的真实原因和采取对海盗的打击和预防措施提供了依据。     

The implications of piracy on marine insurance: some considerations for the shipowner

A prominent feature of modern day piracy is the ransom that is demanded for the safe release of the ship, cargo and crew. The recent upsurge of this type of piracy, in areas of the world that are of strategic importance to the shipping industry, has created many challenges for shipowners, underwriters and the law relating to marine insurance. The aim of this paper is to examine how the marine insurance market is being affected by the threat of modern day piracy, and seeks to identify the options that are available for the recovery of a ransom payment by the shipowner. Moreover, this study aims to identify the legal issues that might prevent a shipowner from recovering a ransom payment under an insurance policy or from the other interests in a common adventure. The study establishes that a reasonably made ransom payment by the shipowner will amount to an extraordinary expense that is taken to minimise or avert a loss. Such an act can generally be recovered under the insurance policy as a sue and labour expense or from other interests in the common adventure as a general average expense. However, illegality, unseaworthiness and exemption clauses in a marine policy are identified as being legal issues that may prevent a shipowner from recovering the ransom payment. Some of these problems may be overcome if clauses are carefully drafted to specifically cater for modern day piracy in a marine insurance policy. Several inconsistencies may also be resolved by transferring the piracy peril to war risks cover. The shipowner’s duty is to respond to the changing circumstances, by ensuring that his vessel is sufficiently equipped and the crew is properly trained to resist a hijacking.     

Investigating sea piracy: crime scene challenges

In April 2011, the authors assisted a task team comprised of forensic investigators and detectives to conduct a crime scene investigation on board a very large crude carrier (VLCC) at sea off Durban, South Africa. The VLCC had been held hostage by Somali pirates for 58 days prior to the investigation. This article examines the investigative challenges faced by the forensic investigators and detectives who conducted the investigation and processed forensic evidence on the VLCC which had effectively been declared a major crime scene. Qualitative data for the article was generated from questionnaires completed by the forensic investigators and the detectives who attended the crime scene and who apart from elaborating on the challenges they consider unique to processing a major maritime crime scene also include suggestions which they believe may assist in establishing best practices for dealing with and processing physical evidence at future major maritime crime scenes.     

International cooperation against piracy: China's role,problems, and prospects

While there are some non-contentious issues about which states can cooperate, most must be molded around the demands of national interest. Piracy is a case where suppression would appear to be in the interest of all states; after all, pirates have been regarded as the enemies of all since Roman times. Despite this, states have often been more ambivalent as they have found piracy to be a useful cloak behind which to hide their wider geo-strategic ambitions. This paper notes that Somali piracy has attracted the interest of China whose citizens have been attacked and hijacked. It asks if this deployment demonstrates that China is committed to the protection of shipping in the context of the existing maritime order or if it has a wider purpose to advance Chinese interests in the Indian Ocean region.     

The jurisdictional challenges to the prosecution of piracy cases in Kenya: mixed fortunes for a perfect model in the global war against piracy

Since 2008 Kenya has distinguished itself in the global war against piracy by undertaking prosecutions in the national courts of suspected pirates arrested in the high seas and handed over by navies of leading maritime nations under bilateral agreements (MOUs) entered into between Kenya and these leading maritime nations. As of July 2011, Kenya had over 20 convicted pirates serving jail terms ranging between 7 and 20 years and over 100 suspected pirates awaiting trial in national courts. This is the largest number of suspected pirates held and tried in any one state at any given time in modern history. To achieve this, Kenya had to effect far reaching changes in the law. In the initial stages, suspected pirates were charged under Kenya’s Penal Code (Cap 63 Laws of Kenya). However, the high court in the case of Re Mohamud Mohamed Dashi and eight others [2010] eKLR, ruled that Kenya had no jurisdiction to try suspected pirates under that law. In September 2009, Kenya passed a new law (the Merchant Shipping Act), which not only defined more comprehensively and extensively the offence of piracy, but also extended the jurisdiction of Kenyan courts to try piracy committed by non-nationals. Though the law gives Kenya a very broad jurisdiction to try suspected pirates, the process is still fraught with challenges due to lack of financial and human resources. In the case of Republic vs Hassan Jama Haleys Alias Hassan Jamal and five others [2010] eKLR, the court commented thus:

“… I must note that the ‘piracy trials’ have presented a unique challenge to the Kenyan legal system. We cannot ignore the fact that these are suspects who having been arrested by foreign naval forces on the High Seas are brought to Kenya for trial. They are strangers in the country, do not understand the legal system, may not know what their rights are and do not understand the language… the Kenyan Government and the International partners supporting these trials put in place a system to provide free legal representation for the suspects…”