I INTRODUCTION

Piracy is defined in Article 101 of the UNCLOS as 'any illegal act of violence or detention ... committed for private ends by the crew ... of a private ship ... directed ... against another ship ... or against persons or property on board such ship' on the high seas or in a place outside the jurisdiction of any state. This leaves open the issue as to whether incidents such as the hijack of the Fairchem Bogey from off the Salalah breakwater, or of tankers from West African anchorages are piracy incidents under the UNCLOS. As a matter of English law, according to The 'Andreas Lemos',2 there is 'no reason to limit piracy to acts outside territorial waters'. It appears apt therefore that 'piracy' is used as an overarching label covering Somali or Gulf of Aden attacks, West African and South-East Asian incidents, albeit that they are different in nature, and that the legal definition of piracy may depend on the insurance policy or contract in question.

As at March 2019, the last successful hijack of a major commercial vessel off the Somali coast was the Smyrni on 10 May 2012. A combination of armed guards, increased naval presence and adherence to best management practices (BMP) are often cited as the chief drivers behind the drop in the number of incidents, together with some improvement in stability and capacity building onshore in Somalia. The continued decline of the piracy threat in this region prompted the co-sponsors of the BMP to reduce the boundary of the high-risk area (HRA) to longitude 065˚E latitude 5˚S.3 This reduction was mirrored in part by the Joint War Committee in December 2015 when it adjusted its HRA to longitude 065˚E latitude 12˚S.4

The HRA was further reduced in March 2019, with the changes coming into effect on 1 May 2019. The revised HRA coordinates are as follows:

  1. In the Southern Red Sea: Northern Limit: latitude 15˚00'N.
  2. In the Indian Ocean a line linking from the territorial waters off the coast of East Africa at latitude 05˚00'S to 050˚00'E, then to positions:
    • Latitude:
    • Longitude:
    • Latitude:
    • Longitude:
    • Latitude:
    • Longitude: 060˚00'E.
  3. Then a bearing 310˚ to the territorial waters of the Arabian Peninsular.

That is not to say that Somali piracy and other security risks in the region are no longer a concern: the costs in terms of routing, additional premiums, hardening measures and who pays for these – the owners or the charterers – are a subject of daily debate. There have also been recent reports of pirate attacks in April 2019 against a Yemeni dhow and Korean and Spanish fishing vessels off of the Somali coast (as reported by EUNAVFOR), and in December 2018, UKMTO reported an armed security team firing on a number of skiffs near Point A of the IRTC. In some cases the aggressors are believed to have come from Yemen as opposed to Somalia.

As a response to incidents in the Southern Red Sea and Bab Al-Mandeb, and threats arising from the Yemeni conflict, the International Chamber of Shipping (ICS), BIMCO5 and Intertanko have published Interim Guidance,6 which includes steps for defending against water-borne improvised explosive devices. Further, an additional Maritime Security Transit Corridor has been established, as shown on the revised BA Chart Q6099.

There have also been numerous attacks in the Gulf of Guinea, in particular offshore from Nigeria (specifically Bonny and Brass). Precise figures are unclear due in part to suspected underreporting; however, the ICC IMB Piracy Reporting Centre has reported 79 incidents in the Gulf of Guinea in 2018, including at least 78 crew being kidnapped, as well as instances of hijack for cargo theft. This situation is compounded by the lack of a coherent regional or international naval force, coupled with the fierce opposition by the littoral states of the Gulf of Guinea to any encroachment by foreign navies of their respective maritime boundaries, alongside their inability to offer comprehensive protection against the pirate threat within their territorial waters (although, arguably, this is improving). Additionally, the prohibition on the use of foreign armed guards, the unsuitability of certain aspects of BMP in this region, the weakening naira and the lack of prosecutions contribute to favourable conditions in which pirates can prosper. Also in the region, there have been at least 21 crew kidnapped (in five incidents) so far in 2019.

The third 'hotspot' remains South East Asia, where mainly small tankers and fishing vessels are targeted, and those boarding vessels either steal possessions or cargo or kidnap the crew in conditions where the pirates appear to go relatively unchecked. Worryingly, many of these incidents have reportedly been perpetrated by Abu Sayyaf (an ISIS affiliate). This type of 'terrorist' incident gives rise to many more issues than a standard 'criminal' kidnap.

Finally, there are increasing reports of an emerging piracy threat in and around the waters of Venezuela, as the economic and political situation further deteriorates in that country.

II PRACTICAL RESPONSE

For those owners unfortunate enough to have their vessels taken by pirates, there are several immediate practical steps to be taken, always keeping in mind the need to avoid any action that might put the crew in jeopardy.

A crisis management team should be established and, where a marine kidnap-for-ransom negotiation ensues, the assistance of a professional response consultant should be sought. Insurers should be alerted and the families appropriately informed. Press comment should be kept to a minimum. In cargo theft cases, up-to-date vessel positions and the close monitoring of any other vessels in the vicinity might also prove important. To this end, and with a view to future prosecutions, there is additional benefit in maintaining links with various international organisations and law enforcement agencies.

Once a deal is reached in principle, the cashing and transportation of any ransom is a complicated operation, as is the resupply and recovery operation in situations where a vessel has been held for a long period. Both require careful planning, operational security and, often, bespoke contracts.

III COMPLIANCE AND LEGAL

Under English law, the payment of ransom to pirates is not unlawful. This has been affirmed by the Court of Appeal in Masefield AG v. Amlin,7 in which Lord Justice Rix held that 'there is no legislation against the payment of ransoms, which is therefore not illegal' nor is there any 'universal morality against the payment of ransom, the act not of the aggressor but of the victim of piratical threats, performed in order to save property and the liberty or life of hostages'. It is also widely accepted that 'if the crews of the vessels are to be taken out of harm's way, the only option is to pay the ransom' (Justice Steel, at first instance).8 Unfortunately, the payment of ransom is invariably the only viable option to secure the safe release of vessel, cargo and crew; however, as the judgment acknowledges, the position may be different in relation to terrorism and there are also sanction regimes in place that can have an effect on this issue.

Under Sections 15 to 18 of the Terrorism Act 2000, it is illegal to cause money to be paid to any person if there is 'reasonable cause to suspect' that the payment will or may be used for the purposes of terrorism, or to become concerned in an arrangement where such money is paid. There are certain defences available, including that of authorised disclosure; this is a complex area in which specific advice should be sought.

Despite rhetoric from certain quarters, no substantiated link between Somali pirates and al-Shabaab has been made. Indeed, Dr Campbell McCafferty9 confirmed in June 2011, when Somali piracy and ransom payments were at their peak, that 'there has not been any evidence of a link between the pirates and al-Shabaab, the terrorists in Somalia'.10 However, owners considering paying a ransom must carry out due diligence in each case to ensure that they have no reasonable cause to suspect terrorist involvement.

In July 2018, the Supreme Court considered the meaning of 'reasonable cause to suspect' under Section 17(b) of the Terrorism Act 2000, in R v. Lane and Letts [2018] UKSC 36. The Court held that 'the requirement that there exist objectively assessed cause for suspicion focuses attention on what information the accused had. As the Crown agreed before this court, that requirement is satisfied when, on the information available to the accused, a reasonable person would (not might or could) suspect that the money might be used for terrorism.'

The Proceeds of Crime Act 2002 also falls for consideration under this head; however, in our view, the narrow definition of 'criminal property' under Section 340 means it is likely to be of very limited application. As made clear in R v. GH [2015] UKSC 24, the Section 327, 328 and 329 offences are not triggered until the property alleged to be criminal property is in fact 'criminal property'. To quote the Supreme Court:

it is that pre-existing quality which makes it an offence for a person to deal with the property, or to arrange for it to be dealt with, in any of the prohibited ways. To put it in other words, criminal property for the purposes of Sections 327, 328 and 329 means property obtained as a result of or in connection with criminal activity separate from that which is the subject of the charge itself. In everyday language, the sections are aimed at various forms of dealing with dirty money (or other property). They are not aimed at the use of clean money for the purposes of a criminal offence, which is a matter for the substantive law relating to that offence.

Additionally, the Counter Terrorism and Security Act 2015, which came into force on 16 February 2015, makes it an explicit offence (as Section 17A Terrorism Act 2000) for insurers to reimburse a payment made by the assured to a person where they have reasonable cause to suspect that the money paid by the assured was handed over in response to a demand made wholly or partly for the purposes of terrorism. This makes it even more important for the assured to ensure they carry out appropriate due diligence on any hostage taker.11 As noted above, the incidents off Yemen and in South-East Asia involving Abu Sayyaf mean such due diligence is as important as ever where there is an English nexus. However, even for Nigerian incidents, this should be carried out to avoid contravention of English law.

One must also be mindful of other relevant legal regimes, including any jurisdiction the ransom might pass through, and the United States. President Obama issued Executive Order 13536 on 12 April 2010 addressing the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia. As amended, this Order names various individuals and one organisation (al-Shabaab). By a notice of 10 April 2019, President Trump extended Executive Order 13536 for a further year.12

IV SHIPPING OPERATIONS

Piracy does not just affect those unfortunate enough to be hijacked, but the daily operations of all owners and charterers transiting areas with a risk of piracy. Questions of responsibility for costs arising from piracy will usually depend on the wording of the charter party.

At the most basic level, these costs take the form of increased insurance premiums and, as with most issues, the question is 'who pays?'. London Arbitration 4/13 considered the wording of the BIMCO Piracy Clause for Time Charter Parties 2009, which reads: 'If the underwriters of the owners' insurances require additional premiums or additional insurance cover is necessary because the Vessel proceeds to or through an Area exposed to risk of Piracy, then such additional insurance costs shall be reimbursed by the charterers.' Contrary to the brokers' position and market interpretation, the tribunal held that kidnap and ransom, and loss of hire insurance were not 'necessary' and so charterers were not required to reimburse the cost of the premium to the owners. In response, BIMCO amended the 2009 Piracy Clause in 2013 and placed these costs specifically on charterers.

To avoid the areas of highest risk, vessels will often change their route, whether by way of slight alterations or, in the most extreme cases, by passing via the Cape of Good Hope as opposed to the Suez Canal. This raises the issue of whether the vessel has deviated and who pays for the additional time and bunkers.

In the absence of any specific contractual right, the owners are obliged to proceed via the quickest or shortest route unless they can demonstrate that the charterers' orders would jeopardise the safety of the vessel in accordance with the common law principles set out in The 'Hill Harmony'.13 Otherwise, it is likely that the owners will be found to have breached their duty to proceed with utmost despatch and so be liable for damages.

In a piracy context, the High Court offered guidance on the Conwartime 1993 clause in The 'Triton Lark',14 holding that the owners could refuse such an order only if there was a real risk of a piracy event occurring in respect of that specific vessel. Before refusing such an order, the owners are required to carry out an assessment of the risk to the vessel and whether this risk could be mitigated by adopting suitable anti-piracy measures. If a real likelihood of a risk of a piracy event occurring is established, the owners are entitled to take an alternative route at the charterers' expense. This will not amount to a deviation.

The 'Paiwan Wisdom' 15 considered the more recent Conwartime 2004 clause. The court held that there was no requirement that the level of piracy or war risk had to have grown between the date of execution of the charter party and the voyage orders being issued before the owners were entitled to refuse a routing order. Further, while naming the Gulf of Aden committed the owners to proceeding via the Gulf, it did not automatically commit them to calling at unnamed ports in the region, in that case Mombasa.

Whether a vessel is on or off hire has also been the subject of litigation. Again, this depends on the terms of the charter party. To claim that the vessel is off-hire, the burden is on the charterer to show they come within the listed events. As a result of The 'Saldanha',16 piracy is not an off-hire event under an unamended NYPE17 1946 Clause 15, although the addition of 'whatsoever' to the clause may lead to a different result. However, following The 'Captain Stefanos',18 it is clear that piracy is highly likely to be caught by a 'capture/seizure' provision under an amended NYPE 1946.

The leading 2014 piracy case was The 'Longchamp',19 in which Stephen Hofmeyr QC sitting as a Deputy High Court Judge held that various expenses, including crew wages and bunkers consumed during the period of the hijacking, were recoverable as part of an owner's general average claim. This was a departure from average adjusting practice. The decision was successfully appealed to the Court of Appeal [2016] EWCA Civ 708, with the crew and bunker costs being disallowed from the owners' general average claim on the basis that there was no true alternative course of action and a delay (and so the crew and bunker costs) would have resulted in any event. As mentioned in the previous edition, the Supreme Court20 has now considered the case and by a majority of 4:1 overturned the Court of Appeal, holding that the bunkers and crew wages were recoverable by owners as substituted expenses under Rule F of the York-Antwerp Rules 1974.

Finally, in 2019 the English High Court in Eleni Shipping Limited v. Transgrain Shipping BV21 looked again at off-hire in the context of the Somali hijack of the 'ELENI P' over a period of about seven months. In short, Mr Justice Popplewell held that (1) 'capture' in the context of the off-hire events only applied to a capture by an authority (and not pirates), but that (2) under Clause 101 of the Charter (the piracy clause) the obligation to pay hire was suspended where the vessel was kidnapped by reason of piracy.

V RECOVERY

Obtaining clear and comprehensive evidence immediately following the release of a vessel and crew is vital to ensuring any future recovery or defending any claim, as well as bringing pirates to justice. For this reason, we usually advise that a lawyer or master mariner (or both) attend the port of refuge to debrief the crew and collect evidence relevant to any future legal action. We also recommend that appropriate law enforcement agencies be invited by the owners to attend the vessel at the port of refuge.

Where a ransom has been paid to secure the release of a vessel, cargo and crew, the owners will often seek to recover this and their associated release expenses in general average (GA) from cargo interests. Case precedent stretching back to Hicks v. Pallington in 1590 confirms that ransom payments can be the subject of GA. Further, the Court of Appeal, in The 'Lehmann Timber',22 held that an owner is entitled to require a GA bond and GA guarantee before releasing the cargo, and further (overturning the first instance decision) that they can recover their reasonable costs of exercising a lien until security is provided, including the cost of storage. The arbitration award (as referenced in the first instance judgment) also allowed the cost of the tow to Salalah, in addition to the ransom, in GA.

In the West African cargo theft context, it is unclear whether a cargo owner could declare GA in respect of the stolen cargo and whether this could amount to a GA sacrifice. It is likely the key battleground will be in arguing that the 'sacrifice' was voluntary and, second, whether any property other than the cargo was at risk. In the event that a ransom is paid in respect only of kidnapped crew members who have been taken ashore, this will usually not be a GA event.

Cargo interests will often allege that the owners failed to exercise due diligence to make the vessel seaworthy (e.g., by effecting appropriate training and vessel hardening) and that therefore the hijack was a result of actionable fault by the owners. As a result, they argue no GA contribution is payable. For this reason, it is important for the owners to secure evidence of the measures in place at the beginning of the voyage and the witness evidence. This unseaworthiness argument is yet to succeed before the English courts.

In the West Africa context, under their cargo insurance policies, cargo owners, as the assured, will also have various sue and labour obligations that may extend to taking reasonable steps to try to recover the cargo. In many cases, it is difficult to identify or locate the cargo or the vessels involved in the ship-to-ship transfers; however, in some cases the crew will be able to identify the lightering vessels, and in some cases the stolen cargo has been successfully located.

One difficult issue that owners face where there is no kidnap and ransom policy in place is which, if any, of their insurances will respond to a 'crew kidnap'. Unlike Somalia, in such cases there is no property at risk and any ransom paid will be in respect of individuals only. This often leads to a debate between P&I insurers and war or hull underwriters as to who, if either, should reimburse an owner in respect of the ransom and associated expenses.

Perhaps the most interesting of all the potential recovery avenues is offered by the detention of various pirates. To the extent that it is possible to piggyback the criminal prosecution with a civil claim, this may offer the owners and insurers a chance of recovery, particularly if it can be proven that money used to pay a ransom was paid into a particular bank account.

VI ARMED GUARDS

The use of privately contracted armed guards onboard merchant vessels played a key role in reducing the number of attacks off Somalia and in the Indian Ocean. Despite the unpredictable and continued threat of attack from groups based in Somalia and Yemen, some owners question whether they still need to incur the expense and administrative burden of carrying armed guards or whether they can at least carry smaller teams. Such questions must be decided on a case-by-case basis and, as long as the risk remains, it is up to each owner to conduct its own risk assessment in each case and to secure its vessel in the ways it deems appropriate.

Competition remains fierce among the private maritime security companies (PMSCs) and this combined with falling demand has driven down the rates commanded by them in the Indian Ocean. However, despite the continued threat in West Africa, the successful East African model cannot simply be transferred to the Gulf of Guinea. Nor can it be replicated in South East Asia, where there is little scope for the operation of PMSCs and demand for their services is accordingly limited.

The PMSCs are in demand in West Africa, particularly in the Gulf of Guinea; however, the operational difficulties and risks faced by them in this region are much greater. In the Gulf of Guinea, where only local constabulary and military forces23 are permitted to carry weapons, the model commonly adopted is for a PMSC to procure the deployment of (1) a vessel protection detachment (VPD) from the applicable local force either on board the merchant vessel or alongside in an escort vessel (as local law dictates), and (2) a security officer engaged by the PMSC to act as a liaison officer between the ship and the VPD and local authorities. The security officer will have no formal control over the local VPD (who will operate in accordance with their own command structure and their own rules of engagement). Various detentions in Nigeria have shown that extreme caution should be exercised when taking VPDs on board and deploying security officers. There should be no suggestion that the security officers are mentoring or training the VPD. Close attention should also be paid to the visas used by any security officer. Real care should also be had to the way in which the VPD and any escort vessels are contracted. In Nigeria, this should only be through a local company holding a valid memorandum of understanding (MOU) with the Nigerian Navy. We understand that shortly before publication of this book, the Nigerian Navy revised the terms of their MOUs making explicitly clear that (1) the MOU should not be transferred to another company without the Navy's express consent and (2) that no company holding an MOU may merge with another not holding an MOU without the express consent of the Navy. Owners operating in Nigeria should ensure that their PMSC has engaged a local company with a valid MOU and that such company is operating in compliance with the terms of its MOU. No matter the jurisdiction, they should ensure that the VPD has been drawn from the constabulary or military authority with authority over the waters in which the vessel is to pass and that all necessary permits and permissions have been obtained by the PMSC and remain up to date. Even if the owners believe they have the correct permits and permissions in place for the carriage of a VPD, matters can be further complicated by competing governmental agencies and officials, as was demonstrated by the arrest of the crew and armed guards of the Myre Seadiver for alleged arms smuggling and the detention by Nigerian authorities of certain vessels and the arrest of private security personnel for alleged illegal activity.

The territorial waters of the littoral states extend to 12 nautical miles from their respective base lines and their exclusive economic zones to 200 nautical miles; however, anyone operating in the Gulf of Guinea must be alive to how these states, particularly Nigeria, interpret their territorial waters (as covering territory in excess of 12 nautical miles).

Those owners operating solely in international waters off West Africa cannot ignore the prohibition on non-local armed guards. At the time of writing, the United Kingdom does not allow armed guards on UK-flagged ships in international waters off West Africa, although it will respect the laws of the coastal states and, if local military or constabulary forces can be deployed from those states in accordance with their laws, they may be deployed on a UK vessel. In addition, the United Kingdom does not issue export control licences to UK PMSCs for the deployment of armed guards anywhere other than the high-risk area of the Indian Ocean and, while non-UK PMSCs are often not restricted in the same way in international waters, they still do not have the logistical support of a network of 'floating armouries' that they enjoy in East Africa and they run the risk of arrest for infringement of local laws in much the same way as was demonstrated off India by the detention of the Seaman Guard Ohio.

In response to what was at the time the rapid growth in the number of PMSCs offering services on a wide array of contracts, in March 2012, BIMCO launched its Standard Contract for the Employment of Security Guards on Vessels, known as GUARDCON. GUARDCON quickly became BIMCO's second most used standard contract. It set a benchmark for the provision of security services, which was rapidly adopted by the shipping industry. However, it is unsuitable for use in West Africa without considerable amendment. BIMCO declined requests to produce a revised standard contract for use in West Africa and instead issued, by Special Circular (No. 1) on 20 February 2014, a set of guidelines for owners contemplating using GUARDCON for the provision of PMSC services in this region.

In preparing the guidelines, the drafting subcommittee considered a number of issues, fundamental to which was the structured knock-for-knock liability regime and corresponding PMSC insurance provisions of GUARDCON. The key issue was whether GUARDCON could cover the liabilities and indemnities for the actions of the local forces as the need arose by means of the PMSCs' cover for liabilities and contractual indemnities under their own contracts. While some owners may prefer to go directly to a local agent to procure local guards, the advantage of using a PMSC is that it is likely the PMSC can take on some of the shipowner's risk by including local forces as part of its group for the purposes of the knock-for-knock regime and for the purposes of the PMSC's insurances. In addition, it can assist with the owners' due diligence and further 'de-risk' the situation by sourcing the local personnel itself using its expertise and contacts.

As a final note, a recurring question for the industry has been the use of floating armouries in East Africa (they are not currently an option in West Africa). While the UK Department for Business, Innovation and Skills began approving floating armouries for use by licensed PMSCs in 2013 on a case-by-case basis, there remains little clarity on the approval process and it is up to each PMSC to ensure that it has done its due diligence and that the floating armoury is operated in compliance with all applicable laws, including those of its flag state. It is worth noting that many flag states do not allow vessels registered with them to be used as floating armouries.


Footnotes

1 Michael Ritter is a senior associate and William MacLachlan is a partner at HFW.

2 [1982] 2 Lloyd's Rep 48.

5 The Baltic and International Maritime Council.

7 [2011] EWCA Civ 24.

8 [2010] 1 Lloyd's Rep 509.

9 Then Head of Counter-Terrorism and UK Operational Policy, Ministry of Defence.

13 [2001] 1 Lloyd's Rep 147].

14 [2011] EWHC 2862 (Comm) and [2012] EWHC 70 (Comm).

15 [2012] EWHC 1888 (Comm).

16 [2010] EWHC 1340.

17 New York Produce Exchange form.

18 [2012] EWHC 571 (Comm).

19 [2014] EWHC 3445 (Comm).

20 [2017] UKSC 68.

21 [2019] EWHC 910 (Comm).

22 [2013] EWCA Civ 650.

23 Exactly who is allowed to carry firearms, how and where differs between each littoral state.