Maritime commercial malpractices and piracy under international law

The term 'Piracy' tends to be used in a loose, popular sense to refer to various acts of violence or lawlessness at sea which are not, strictly speaking, acts of piracy in law. In this article, the author examines the concept of piracy under international law and related notions such as hijacking and mutiny. In this context, he shows that the 'malpractices' of robber bands in such places as the inshore waters of Nigeria and The Philippines are not acts of piracy jure gentium.     

A study of the role of seafarers in combating piracy off the coast of Nigeria

Piracy off the coast of Nigeria portends grave danger to the economic, security, and sociopolitical development of the country. It also threatens both international and regional trade as well as the stability of the West African sub-region. Despite Nigerian government’s attempts to curb piracy caused by poverty, unemployment, including corrupt and weak maritime regulatory and security institutions, attacks by pirates have continued to occur off the country’s coast. Consequent upon the adverse effects of piratical attacks on their day to day activities, seafarers can facilitate the suppression of piracy off the Nigerian coast. This paper uses statistics, provisions of international instruments and domestic legislations, the United Nations Security Council resolutions, soft laws, and opinions of researchers to examine the nature, causes, and effects of piracy on seafarers in Nigeria. The author argues that seafarers are necessary partners to curb piracy off the coast of Nigeria through enforcing maritime security conventions and other related instruments as well as testifying against pirates during trials. In conclusion, this paper contends that acts of piracy adversely affect crew members’ life, health, family, job, and finance thereby providing an overwhelming motivation for seafarers to play a role in suppressing piracy off the Nigerian coast.     

Piracy, navies and the law of the Sea: the case of Somalia

This contribution concentrates on the legal aspects of piracy and tries to explain some of the practical problems which modern navies experience in their fight against piracy and maritime violence off Somalia. The UN Law of the Sea Convention of 1982 provides a traditional though largely deficient set of rules for control and counter measures. Modern legal instruments such as the SUA Convention of 1988 as amended, recent resolutions of the UN Security Council and regional treaties try to fill the loopholes. Against this background the paper discusses e. g. the law of boarding and investigation of suspicious vessels, the arrest and penal prosecution of criminals and the right of self-defence in case of an imminent attack. The international mandates and the national rules of engagement in which the navies operate reflect these ambiguities that result in a loss of momentum. After all piracy is not an act of war, but a crime. In conclusion apolitical solution on land is indispensable as the navies and coast guards can only fight the symptoms and not the causes of crime and unrest in a failed State.     

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.     

A study of maritime security and piracy

This paper studies the contributing factors of maritime piracy by analyzing previous incidents that have been reported to the International Maritime Organization (IMO). Part of the analysis is to filter those ship types that are particularly vulnerable to piracy attacks. The paper also introduces the guidelines developed by the IMO and the industry envisaging to minimize the risk to ships that are exposed to attacks from pirates. It further describes the initiatives taken to develop a sustainable mechanism in the high-risk area (HRA)¹ to suppress piracy and other maritime crimes. This study reflects the fact that maritime security and piracy issues’ importance has been increasingly recognized in the 40 year history of Maritime Policy & Management.     

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…”     

Universal jurisdiction as obligation to prosecute or extradite

Before searching for new legal solutions to manage maritime piracy problems, especially those related to jurisdiction, it is essential to examine and analyse the existing international legal framework to determine whether current international legal instruments are already appropriate to face off this threat. One such principle is the “Aut dedere aut iudicare” principle, which has been also codified into SUA Convention, at art. 6 par. 4. This obligation comes from an international treaty, so it cannot be disregarded by any state (short of becoming susceptible to international liability), neither can it be amended by a national law. If a state party has inadequate law resources to establish its jurisdiction, or if unable or unwilling to prosecute the pirate, then such state party has no choice but extradite the pirate. If we consider the above principle as a conventional obligation, then it should be limited only to state parties, and it should be applied only under conditions stated by SUA Convention. Instead, if we consider it as a customary law principle, because piracy—as crimen iuris gentium—offends international community as a whole, then such principle shall be binding without any limit or condition.     

The place of the ISPS Code in the legal international regime

The adoption of the International Ship and Port Facility Security Code (ISPS Code) is the latest response of the international shipping community to the increasing threat posed by acts of terrorism at sea. The ACHILLE LAURO incident of 1985 showed that the traditional law against piracy was not adequate to deal with new types of unlawful acts against international shipping, especially those involving acts of terrorism. The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) and the technical and administrative measures adopted by the Maritime Safety Committee of IMO in 1986 and 1996 attempted to develop a broader regime to deal with unlawful acts against international shipping.However, the events of September 11, 2001 showed that additional measures were still needed to prevent terrorist attacks against ships.     

Evaluating determinants of attractiveness and their cause-effect relationships for container ports in Taiwan: users’ perspectives

The attractiveness of ports is usually a pre-requisite and necessary condition for ports to achieve competitiveness, as well as the springboard to explore the competitive advantages of ports. To determine whether a port is competitive, it is necessary to explore whether it boasts certain factors that make the port attractive to users. The main purpose of this article is to apply the Analytic Hierarchy Process (AHP) method and the Decision Making Trial and Evaluation Laboratory (DEMATEL) technique to evaluate key determinants of attractiveness and their cause/effect relationships for container ports in Taiwan. The empirical results showed that: (1) Top six determinates of attractiveness for container ports are ‘ample cargo sources,’ ‘favorable port charges,’ ‘dense ship network and routes,’ ‘low transshipment costs,’ ‘efficient wharf operations,’ and ‘adequate wharfs and back-line land,’ respectively. (2) Among the above six determinants of attractiveness, ‘ample cargo sources’ is the cause determinant. Three determinants of port attractiveness, ‘favorable port charges,’ ‘dense ship network and routes,’ ‘low transshipment costs,’ which are the effect determinants. They are affected by the determinants of attractiveness of ‘ample cargo sources’. In addition, this study discusses the above findings and expects to provide the study results to Taiwan’s port authorities for reference.     

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.     

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.     

亚丁湾附近海域海盗犯罪的特点、成因及对策研究

近期,亚丁湾海域及索马里沿海海盗犯罪成为此海域海上安全的严重威胁。在认清当前海盗犯罪的特点及其成因的基础上,船方必须采取相应的防范和应急处理措施,确保船舶和船员生命安全。     

Introduction to the special issue on maritime security

The terrorist attacks of 11 September 2001 heightened awareness about the vulnerability of all modes of transportation to terrorist attack. The issue of maritime security has therefore become a major concern in the international maritime sector over the past several years. Globalization has led to a strong growth in seaborne trade; however, it simultaneously increases vulnerability to not only terrorism but also international criminal activities that threaten the world's supply chain. For example, in 2008, the rise in piracy activities in the Gulf of Aden brought the issue of maritime security to the forefront of international debate. In addition to the direct impact on ships, crews and cargoes, and on the maritime industry and governments, piracy also threatens global seaborne trade, and has an impact on energy security and the environment [UNCTAD, 2009, Review of Maritime Transport 2009 (New York: United Nations)]. Maritime piracy can pose substantial risks to seaborne trades, with considerable commodities, ranging between raw materials and energy to high-value manufactured products, being shipped between global economic powerhouses [FU, X. W., NG, A. K. Y., LAU, Y. Y., forthcoming, The impacts of maritime piracy on global economic development: The case of Somalia. Maritime Policy and Management]. Maritime security management, including the definition of security, maritime risk assessment, security measures, the regulation and policy of maritime security in shipping and port-related business operations has been receiving growing attention, both in practice and research.     

Changing ownership structures in the Dutch fleet

The new Dutch shipping policy has given rise to high expectation and curiosity in the world of shipping. This, together with the obvious difficulties of an ex-post study of the effectiveness of such innovative policy, has prompted the authors to take an interest in attempting to investigate changes in ownership of the Dutch fleet 2 years after the new policy has been introduced. To do this, a rather new concept of ‘flagging out’ has been adopted, which is interpreted as a process leading to different degrees of ‘foreignness’ in a shipping operation. In this paper, a method to structure is presented, and ownership information, and changes in it are presented, that are essentially based on the theory of stochastic processes. The data used is the Dutch fleet data, which includes information on the nationality of the flag, parent ownership and management over the period 1994–1998. The results yield interesting insights in the shifts in the ownership and operational structure of shipping companies induced by the new policy. In particular, they allow one to establish the origin of new vessels, in which stage of ownership/operation it is most likely that shifts occur, and to determine the relationship between the different stages of the ‘flagging out’ process. These results, thus, enable an evaluation of the areas in which the policy can be expected to yield results.     

A “rutter for piracy” in 2012

This "rutter for piracy" begins with a brief update on contemporary piratical incidents and a short review of books and collections of articles dedicated to the topic of piracy, before presenting the ground-breaking group of scholarly essays which make up WMU Journal of Maritime Affairs' special issue on piracy at sea.     

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。     

Towards an ‘inland terminal centred’ value proposition

The two main value propositions in international container transport are ‘port-to-port’ services and ‘door-to-door’ services. In port-to-port services, buyers ‘just’ purchase maritime transport from a shipping line. Door-to-door services comprise the total transport chain and include land-based transport. Carriers as well as forwarders offer these door-to-door services. In this paper we provide a qualitative assessment of an emerging third value proposition that is centred around inland terminals (ILTs). Such a value proposition consists of transport up to the ILT, and may have advantages over port-to-port services, such as better leverage of scale economies, better repositioning of empty containers and better alignment with the business model of forwarders. This paper conceptually and empirically explores such a value proposition.     

Piracy off West Africa from 2010 to 2014: an analysis

Piracy is one of the most frequent maritime threats. However, despite the importance of how maritime piracy is to be reduced, it is substantially less investigated than maritime safety. Piracy off Somalia is the most investigated case of piracy, but those results are not necessarily generalizable. Piracy off West Africa has been shown to be more diverse, successful and dangerous. This study investigates and analyses piracy off West Africa with the aim to understand how different operations and security measures affect the consequences of piracy. This study has identified several different intents and shows that most attacks are relatively close to shore and correspond to areas of high ship density. Attacks with the intent of theft at night-time are generally performed close to shore, and more complicated attacks against ships under way are more common during daytime and farther from shore. Five types of measures are found to have high effectiveness if the attack is detected during approach; after boarding, only two measures have high effectiveness. Of the effective measures, it can be concluded that all but one are dependent on detecting the attack. Therefore, detecting the pirates is key but must be accompanied by a set of measures because no measure alone can protect a ship given the operational conditions off West Africa. The risks associated with piracy off West Africa are estimated to be of the same magnitude as the risks posed by Somali piracy at its peak.     

拒海盗于船舷之外的两道防线

由于亚丁湾海域有多个国家的军舰护航和巡逻,武装海盗已选择远离护航海区劫持商船。对于这些商船来说,应保持高度戒备,设立两道防线:早发现、早预告、早采取措施;当海盗兵临船舷下采取有效防范措施,将海盗拒之船舷之外。     

海盗防范经验探索

作为一种古老的犯罪行为,海盗曾经在相当长的时间里淡出了人们的视线。但是,20世纪90年代以来,伴随着东南亚海盗事件的上升,全球海盗事件开始急剧增加,仅登记在案的全球海盗犯罪事件就由之前的每年几起、几十起猛增到每年几百起。日益猖獗的海盗攻击事件不仅给人们的生命和财产安全带来了极大的威胁,还危及到国际海洋运输和贸易的安全与秩序。此外,装载有毒有害物质的船只如果受到海盗的攻击还可能造成海洋或邻近海岸环境生态的严重污染。因此,发现海盗行为特点,找出海盗日益猖獗原因,了解国际社会态度,采取有效措施已成为一项刻不容缓的历史重任。