The recent news that the United Kingdom asked in April 2010 for a “technical hold” to be placed on a U.S. proposal to add Abshir Abdillahi and Mohamed Abdi Garaad to the list of people subject to sanctions under U.N. Security Council Resolution 1844, has highlighted the very different concerns of the UK and US governments as far as Somalia is concerned. The US Government appears to be almost wholly focused on an “anti-terrorism” agenda which would deny the possibility, however remote, that money sent to Somalia could end up in the hands of Al Shabaab, a Somali group which has now closely associated itself with Al Qaeda, thus pushing all the hot buttons in the US intelligence community. It is not clear how the U.S. plans to proceed in Somalia, but it has given a great deal of support to the Transitional Federal Government (TFG), which is, according to reports from the UN Monitoring Group corrupt and incompetent. However, the TFG, which is fighting Al Shabaab with support from 8,000 African Union soldiers based in Mogadishu, has suffered a number of setbacks, the most recent being the defection of three members of the TFG Presidential Guard to Al Shabaab in July and reports that a large percentage of the 80 tons of arms supplied to it last year were sold on the Mogadishu arms market.

The background to any U.S. move in Somalia is that the last major U.S.-backed intervention, the Ethiopian invasion of 2006 was a social and political disaster, killing many civilians and radicalizing a group of Somalis, who now run Al Shabaab; which was the devil’s spawn of that conflict. Adam Serwer recently wrote of that intervention, “the U.S. helped empower a terrorist organization that has shown an uncanny ability to recruit Americans — even for high-profile leadership positions.”[1] Robert Wright writing in the New York Times also made the point that recent US military interventions have actually proved to be effective in making things worse. The U.S. is, however, very concerned that the U.S. Somali community is becoming radicalized and 14 people, many of them United States citizens, were indicted in the US in early August 2010, accused of funnelling “money, personnel and services” to Al Shabaab. The danger is that U.S. policy is being determined entirely by the military and intelligence community, and that the interests of the shipping industry have been discounted.

In contrast the United Kingdom has focused on the problem of piracy in its dealings with Somalia.  Britain’s interest is in protecting the shipping industry and ensuring that insurers can continue to pay ransoms to Somali pirates in order to free hijacked ships and their crews. The “technical hold”, requested in April and in effect indefinitely, gives the British government time to look into the legal implications of implementing the measures and stops the U.S. extending U.N. sanctions against two major pirate leaders. The ramifications of placing these men on the U.N. list would be that the E.U. and therefore the United Kingdom would have to also add their names to the eight individuals and one organization, Al-Shabaab currently included in the U.N. list; which was issued by the United Nations Security Council Committee on Somalia and Eritrea on the 12^th April 2010, under paragraph 8 of Resolution 1844 (2008).^[2]

The U.N. list of eight individuals included Fares Mohammed Mana’a, who Jane Novak described as a “leading regional arms smuggler”, who had also been “the Yemeni government’s prime negotiator with the Houthi rebels.”^[3] There is one man with pirate connections, in the U.N. list, Mohamed Sa’iid ‘Atom’ who commands the militia group known as the Eastern Sanaag Mujahidicen and who has publically said that he is allied to Al Shabaab^[4]. Of the other six on the U.N. list, all are seen as threats to the TFG. Two are members of Al-Itihaad Al-Islamiya and three are leaders of Al-Shabaab. Finally Yasin Ali Baynah is accused by the U.N. of attacking the Transitional Federal Government and rejecting the Djibouti Agreement. Hassan Abdullah Hersi Al-Turki is believed to have terrorism connections, and is one of the leaders of Al-Itihaad Al-Islamiya, as is Hassan Dahir Aweys. Sheikh Ahmed Abdi Aw Mohamed is the Emir of Al-Shabaab, Fuad Mohamed Khalaf has raised money for and worked for Al-Shabaab, Bashir Mohamed Mahamoud is a military commander of Al-Shabaab and a member of its leadership council.

On the 13^th April 2010 President Obama signed a Presidential Order dealing with the payment of ransoms by U.S. persons. This Presidential Order included all the individuals listed in the U.N. list and Al Shabaab, but also included three more people; Abshir Abdillahi, Mohamed Abdi Garaad and Yemene Ghebreab. Jay Bahadur has described Mohamed Abdi Garaad as the “Pirate King of Somalia” in an article in the Globe and Mail^[5]. On the 8^th April 2009, pirates under Garaad`s command also attacked the MV Maersk Alabama.^[6] The second individual, listed only by the U.S., with pirate connections is Abshir Abdillahi, otherwise known as “Boyah”, who according to the UN Monitoring Group has publicly admitted “to being the commander of a maritime militia consisting of approximately 500 pirates. By Boyah’s own account, his militia is responsible for hijacking between 25 and 60 shipping vessels since the mid-1990s.”^[7] It is no surprise that the Americans are keen to deny him the fruits of his labour. In addition the Americans included Yemene Ghebreab, Head of Political Affairs and Presidential Adviser at the People’s Front for Democracy and Justice (PFDJ), the only political party in Eritrea. Eritrea has been heavily involved in arming groups in Somalia and opposes the TFG, largely because of the support that Ethiopia gives it.

Abshir Abdillahi and Mohamed Abdi Garaad are therefore very important in the piracy “business” and this was the reason that the United Kingdom resisted their inclusion in the U.N. prohibited list, because it would have been impossible to pay any ransoms for ships where the money, or part of it, may end up in their hands. If such restrictions were generally imposed this could effectively make the payment of ransoms to Somali pirates illegal and condemn hijacked seamen to semi-permanent imprisonment in Somalia. Where Asian fishermen and other seamen have been abandoned by shipowners the crews have suffered badly, some men have died of neglect and there was even a story that the pirates planned to sell the organs of the crew of one vessel when it became clear that no ransom would be forthcoming. Shipowners and their insurers would also face having to write off large merchant ships and their cargoes.

There is, however, increasing uncertainty in the shipping and insurance industry as to the actual importance of the fact that these two men are including under the U.S. Presidential Order, but not under the U.N. list, or under European Union Council Order No 356/2010 which enacted the U.N. restrictions in the European Union. Since the Presidential Order was published there has been a real concern that the effects of the Order are that anyone providing Somali pirates with financial support, for example by paying ransoms, could be subject to fines and criminal sanctions in the United States. Given the wide definition of US person to include any organization or individual with US links, the tendency of American courts to claim universal jurisdiction, and the ease of extradition from the UK to the USA, a number of people have become very uncomfortable. It has also been said that the effect of the Order will be restrict the ransoming of seafarers; the International Chamber of Shipping and the International Shipping Federation said, “The U.S. does not appreciate the potentially life- threatening impact of the order on the lives of over 250 seafarers currently being held captive.”^[8]

There is real concern that insurers and shipowners could be caught by U.S. courts’ interpretations of the Order, which is broadly drafted. Only when there have been a few incidents will it become clear whether this Order will in practice have an adverse effect of the payment of ransoms by any party with American connections. At present it would be wise those involved in any hijack case with US connections to consult with The Office of Foreign Assets Control (“OFAC”) of the US Department of the Treasury, before making any ransom payments in Somalia; although this may not be sufficient to absolve them of responsibility. The drafting of Section 1(b), the determination that “acts of piracy or armed robbery at sea threaten the peace, security, or stability of Somalia”, and the prohibition on the making of “donations”, by which it appears the order means ransoms, for the benefit of any person who is listed under Section 1(a), needs to be carefully considered. There as yet is no defence of acting reasonably, or a procedure for checking with the American authorities.

There is also a real concern over the correct interpretation of Section 4 of the Order, as it appears to suggest that individuals and organizations can be added to the prohibited list without prior notice, i.e. “there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order”, in which case it would be possible to be in breach of the Order without knowing it. This has created an impossible situation for the insurance and shipping industries, there can be no certainties.

In this situation insurers and shipowners now need to seek the best legal advice and also work closely with their governments before paying any ransom demand, because of the possibility of problems with the American authorites. This is a complex state of affairs and there are no easy answers. This Order heightens the uncertainties faced by the insurance and shipping industries and may mean that insurance policies written by U.S. companies and international companies with U.S. offices will need to be reassessed; in particular many K&R policies are written by U.S. insurers, who may now refuse to make payments because of the possibility that they are in breach of this Order. The U.S. Government now needs to bring in procedures and processes so that the insurance and shipping industries (and their professional advisors) can know what they can and what they cannot do.

It is important that the shipping and insurance industries understand the import of the differing UK and US approaches to this problem and ensure that those governments with major shipping interests make representations to the American government and the United Nations. There is no clear course to the establishment of peace in Somalia, there are no simple answers and support for the TFG is at best clutching at a straw. What is, however, clear is that if these issues are not fully debated we could end up with a situation where the payment of ransoms becomes very difficult if not impossible.

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[1] http://www.progressiverealist.org/blogpost/american-interference-somalia-blowback-101

[2] United Nations, Security Council, “List of Individuals Identified Pursuant to Paragraph 8 of Resolution 1844” (2008)SC/9904, Department of Public Information, News and Media Division, 12 April 2010, New York

[3] Jane Novak – “US Treasury Freezes Fares Manna’s Assets”, Armies of Liberation, 14 April 2010, http://armiesofliberation.com/archives/2010/04/14/us-treasury-freezes-fares-mannas-assets/

[4] Abdi Sheikh – “Islamist Rebels Vow Jihad on Somalia’s Puntland”, Reuters, 28 July 2010

[5] Jay Bahadur – “The Pirate King of Somalia”, Globe and Mail, April 26, 2009

[6] UN Monitoring Somalia Group report, March 2010

[7] UN Monitoring Somalia Group report, March 2010

[8] “Obama piracy order ‘unhelpful,’ ship owner groups say”, Bloomberg, 31 May 2010

The global shipping industry carries the bulk of the world’s goods and much of its food and fuel.

The amount of cargo transported by sea virtually doubled in the 18 years from 1990 to 2008, and grew by approximately 43% between 2000 and 2008. However, the impact of the global economic crisis started to affect the shipping industry by 2008. In October 2008 the average earnings for bulk carriers (the Baltic Dry Index, or “BDI”) were 80% lower than the levels in April 2008. In fact on the 20^th May 2008 the BDI was 11,793 and by 5^th December 2008 it had fallen to 663, a fall of 94%. Jeremy Penn, the Baltic’s Chief Executive said, “The violence of the movement, the violence of the correction are unprecedented, particularly in the Capesize market ….The sudden and extreme lack of demand for freight has left everybody stunned, I suppose is the best word to use.”[1]

The volatility of the BDI continued into 2009 and 2010. On the 15^th July 2010 the BDI reached 1,700, whereas it had been 4,209 on the 25^th May 2010, the index dropped to 40% of its previous value in less than eight weeks. There was a small recovery, a “dead-cat bounce” in early August and by 2^nd August 2010 the BDI stood at around 2,000.[2] In such conditions it is virtually impossible for shipowners to plan and very tempting for charters to renege or renegotiate contracts and thus impose severe losses on shipowners.

Bulk carrier fleets have also had to deal with uncertainty over fuel prices, additional war insurance cover to cover piracy in the Indian Ocean and the demand for compensation from near mutinous crews afraid of being hijacked. In such extreme conditions it is hardly surprising that they have resisted pressures to spend money on anti-piracy precautions; urgent though the need may be. Bankruptcies have become a normal occurrence in the shipping industry and yet new capacity, ordered in the boom years, still rolls down the slipways of the Far East. International pressures on the industry to reduce its CO₂ output and to burn low-sulphur fuel are also on the horizon, yet few in the industry can see how shipowners will be able to finance such demands in the current climate.

The impact of the global financial crisis was also felt in the container shipping market. The buoyant growth of the previous twenty years ended abruptly in 2008, and the industry, which ordered new capacity before the crisis faces over-capacity in its market for some years to come, with the inevitable impact on profitability. At the end of 2009 UNCTAD said that over 10% of container ship capacity was idle.[3] Until September 2008 the total of tonnage on order was still increasing, and over half the new orders were in the dry bulk sector, the collapse of the BDI saw a halt to new orders. As of 31 March 2009 289.8 million dwt of dry bulk carriers were on order (52.5% of the total order book), 130.8 million dwt of oil tankers (23.7% of the total) and 65.6 million dwt tons of container ships (11.9% of the total).[4] The demand for all vessel types reached a peak in demand between mid-2007 and the end of 2008, thereafter demand fell away and prices for new builds plummeted, reflecting the savage drop in freight rates. March 2008 probably represents the peak of the ship-building cycle, and at that time, 1,139 tankers were on order (average 112,492 dwt), 2,804 bulk carriers (average 86,876 dwt) and 1,419 container ships (average 54,998 dwt). Including other classes of vessel this was a total of 10,731 ships on order.[5] As yards tried to gain new orders in this chaotic market prices for new builds fell, by 22% in the period 2007-2008 for a 72,000 dwt bulker, and by 46% for a 4,000 TEU container ship, although prices for some types of vessel held and the prices for the largest LNG carriers actually increased by 11% in the same period. However, few new orders were received and in March 2009 only 13 new orders for ships larger than 1,000 gross tonnage were signed.[6]

For older vessels there were dramatic falls in value for some types of vessel; bulk carriers, reflecting the BDI, saw their values drop by around 70% in a year, although tanker values declined by a more reasonable 15% to 20%.[7]

Scrapping older ships is one response to the fall in income, but scrap prices are low, tempting some owners to try and wait. The capacity of the breakers’ yards is also limited and environmental concerns mean that some of the practices of the past are being abandoned. In the first five months of 2009 1.2% of the world fleet was scrapped, but this did nothing to reduce numbers, as large numbers of new and larger vessels left the builders’ yards, freshly painted and with little profitable business for their owners to look forward to. At the end of April 2009 506 container ships were idle, or 10.6% of the total world capacity.[8]

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[1] Robert Wright – “Collapse in dry bulk shipping rates unprecedented in its severity”, Financial Times, London, 1 December 2008

[2] Data from Bloomsbergs

[3] (UNCTAD Secretariat 2009), page 26

[4] (UNCTAD Secretariat 2009), page 65

[5] (UNCTAD Secretariat 2009), pages 66-67

[6] (UNCTAD Secretariat 2009), page 70

[7] (UNCTAD Secretariat 2009), page 69

[8](UNCTAD Secretariat 2009), page 72

By John Knott, of Holman Fenwick Willan LLP

Somali piracy has had variable results.  At first, the pirates met virtually no opposition.  Then, merchant ships started to develop a range of defensive measures, some more successful than others.  Next, warships from several nations intervened and established a safety corridor through the Gulf of Aden, and started detaining pirates.  The pirates reacted by enlarging their area of operations and now roam across almost the whole of the Indian Ocean.  Recently, they have detained up to twenty ships and their crews at one time.  There are signs that new strategies are being used against piracy, and several hijacked vessels have been rescued after military intervention.  However, some rescues have created additional problems, and there is still a long way to go before Somali piracy is solved.  This article looks at these matters, at piracy prosecutions and human rights issues.

The Figures

Among the most comprehensive statistics about Somali piracy are those maintained by the International Maritime Bureau (“the IMB”) at its Piracy Reporting Centre in Kuala Lumpur and at its London headquarters.  The figures do not make pleasant reading.  They reveal that hijackings and unsuccessful attacks attributed to Somali pirates rose from 22 in 2006, to 51 in 2007, to 111 in 2008, and to 217 in 2009.  During the first half of 2010 there have been 100.  In 2009 over 850 crew members were taken hostage by Somali pirates; four were reported as killed, a further ten were injured, and one was missing.  There were 48 actual hijackings by Somali pirates during 2009, out of 49 for that year world-wide.  From January to June 2010 Somali pirates took 544 seafarers hostage; one was reported killed and ten were injured.  During this period there were 27 Somali hijackings, out of 31 world-wide.  But even these details do not provide the complete picture, as many attacks go unreported.[1]

The Danger Area for Somali Piracy

Whereas for some time it was the Gulf of Aden which saw the most attacks by Somali pirates, the danger area now stretches from Somalia north-west into the Red Sea; north-east to beyond the coast of Oman; more than 1,200 nautical miles east, almost to the west coast of India; south-east to beyond the Seychelles; and south to Kenya, Tanzania and the Mozambique Channel.  This is such a large area that it is impossible for the naval forces to give adequate protection to all vessels at all times.  One consequence of the pirates operating further and further from the coast of Somalia is that they are increasing the risk of running out of fuel and provisions if they do not hijack a vessel.  This in turn is likely to make them more desperate and will encourage them to attack vessels in unfavourable circumstances and in a more determined way.  Already, many pirates are believed to have perished at sea—some sources putting the losses at many hundreds.  But the potential rewards continue to be attractive, compared with the possibilities for employment in Somalia.  There, less than 40 per cent of adults are literate; it is estimated that nearly half of the population is starving; and with the country’s economy based largely on agriculture, including livestock, the estimated annual gross domestic product is equivalent to under £300 a head.[2]

The Cost of Defence

Organisations and bodies which are spending money either to discourage, or react against, piracy off Somalia include the more than thirty countries directly maintaining counter-piracy activity through EU NAVFOR’s Operation Atalanta[3], the Combined Maritime Forces’ Combined Task Force 151 (“CTF-151″)[4], NATO’s Operation Ocean Shield[5], and other naval and military forces in the area[6]; shipowners; charterers; cargo owners; various classes of underwriters; several United Nations organisations[7]; the criminal justice departments of countries where pirates are prosecuted and imprisoned; other government departments and people involved in seminars, think tanks, and in other professional bodies where solutions are being sought.  In addition, many nations, and consumers worldwide, are affected financially.  The actual cost during each of the last few years is beyond precise calculation but is clearly equivalent to at least several billions of US dollars.  Despite that enormous cost, the problem still continues.[8]

Less tangible in terms of money, but no less real, are the deprivations and sufferings endured by seafarers and others who are hijacked and held in captivity, often for several months, and the effect on their families, friends and colleagues; quite apart from any continuing psychological trauma, and the cost of medical and sometimes long-term health treatment for seafarers who survive the ordeal.[9]

The Cost of Attack

On the other side of the equation, the financial cost to the pirates themselves and their sponsors of various kinds has been amply recouped in the form of ransom payments generally estimated to be in the order of US$100-150 million during the last two years.  The cost of equipping pirate expeditions, while clearly not on the scale of the cost to the nations providing warships and other facilities, is not insignificant; which is why pirates ask backers and supporters for finance and other forms of assistance.  The money that the pirates receive from ransoms represents only a small portion of the cost they inflict on the world economy.  This means that, despite first impressions, piracy is not a very efficient method of transferring money to Somalia, particularly as many pirates have died at sea or have been imprisoned.  A related consideration is that not all the ransom money benefits the Somali people, or even stays in Somalia.  Some estimates put the amount that stays with the pirates who conduct a hijacking, or who subsequently act as guards or in some other capacity, at about 25-30 per cent of a ransom payment.[10]

Redistribution of Resources

Viewed overall in terms of the investment in money and in human effort and well-being, piracy is so wasteful of resources that it would be more economical if part of the costs of maintaining the naval and other military forces on station in the Gulf of Aden and the Indian Ocean, and part of the costs of the disruption caused by piracy, were to be paid to communities and organisations in Somalia, possibly in the form of increased aid and services, in exchange for pirates not hijacking merchant vessels.  An initial step to be taken by the Puntland authorities to show their good faith would be for them to secure the release of the vessels and seafarers currently held.[11]

The aim would be to discourage piracy by removing any need for it, rather than just reacting to it.  Repugnant though such a course of action may at first appear, and difficult though it might be to operate, it could, given adequate supervision, supplement existing aid, and help to address in an efficient way the underlying humanitarian and other situations in Somalia which give rise to piracy.  It would also be similar to policies being experimented with in other trouble-spots in the world, notably Afghanistan.  And a broad justification for such an approach is the almost universal recognition that Somali piracy cannot be defeated at sea alone, and that the root causes on land need to be tackled in a more robust, organised, and sustained manner than has been attempted during the last twenty years.[12]

This can not, of course, be achieved in isolation.  It would need support from the Puntland authorities and from the tribal elders, and would build upon recent efforts by NATO and others to tackle the problems on land.[13] In coordination with such a plan would be the need to establish a fully effective coastguard service in Puntland—from where almost all the piracy in the Gulf of Aden and the Indian Ocean originates—in the same way that an effective service has been established in the breakaway province Somaliland[14]; and a reliable security force on land.[15] And in conjunction with that, there would be a need for proper regulation of Somalia’s fishing industry, including preventing the resumption of illegal and intensive fishing by foreign fleets—which has been identified as one of the factors triggering the recent rise in piracy off Somalia.[16]

Arrests and Prosecutions of Pirates

After the euphoria created by the detention by French special forces in April 2008 of six of the pirates involved in the hijacking of the luxury yacht Le Ponant, and the capture in September 2008 of six more pirates who had hijacked the yacht Carré d’As IV, problems began to accumulate with the prosecution of pirates.  Where were pirates to be prosecuted, and under which law?  How were their human rights to be respected?  (Yes—even pirates have rights, including the right to humane treatment and a fair trial.[17])  Where, and at whose cost, were any convicted pirates to be imprisoned?

It soon became clear that many countries did not have adequate domestic laws under which to prosecute suspected pirates, particularly where a country’s national interests were not at risk.[18] And not only was it impractical to transfer hundreds of suspects from the Indian Ocean to northern European countries for trial, but many countries were reluctant to receive captured persons suspected of piracy because of fears, real or imagined, that they would be leaving themselves open to claims for asylum.  The consequence has been that hundreds of pirates and suspected pirates, including many who have been detained while attacking merchant ships, have been released without trial.  By way of example, during the two-month period March and April 2010, EU naval forces captured 275 suspected pirates but released 235 of them (more than 85 per cent) after taking their weapons.  Of the remainder, eleven were sent to the Seychelles for prosecution, the ten who attacked a German merchant ship went to Hamburg, and nineteen were handed over to Puntland.  During the same period, out of 39 suspects captured by US naval vessels, 18 (more than 46 per cent) were released.[19] Overall, the proportion of captured pirates who have been released is high.  From August 2008 until early July 2010 the naval forces encountered 1,129 pirates.  Of these, 638 (56.5 per cent) were apprehended but later released; 478 were detained; and 13 were killed.  During the same period, 78 pirate vessels were destroyed and 20 were confiscated, and a large number of weapons were destroyed.[20]

Trials in Kenya

The UK Government, with a view to avoiding the embarrassment of releasing captured pirates without trial, and also avoiding perceived procedural and political complications associated with bringing suspects to trial in the UK, on 11 December 2008 reached agreement with Kenya that the Kenyan authorities would accept and prosecute suspected pirates who were detained by UK forces.  Previously, there was an ad hoc arrangement in relation to eight alleged pirates who were captured in November 2008 by a boarding party from HMS Cumberland, under which the accused were put on trial in Mombasa.[21] Even earlier, there was a one-off understanding which enabled the United States to transfer ten suspected pirates to Kenya in January 2006.[22] Subsequently, the United States established a similar, permanent arrangement with Kenya, on 16 January 2009.  An agreement to the same effect, for the benefit of vessels taking part in EU NAVFOR’s Operation Atalanta, was signed in Nairobi on 6 March 2009.  Later, approaches for a similar facility were made to Kenya by Canada, Denmark, China, India, Japan and NATO.[23]

All seemed to be going well until, on 30 March 2010, after 19 pirates had been convicted in Mombasa, and a further 99 suspects were awaiting trial, Kenya announced that it would not be able to accept any more suspects because of the high cost of trials and the disruption they caused to the judicial system.[24] In consequence, a number of suspects who had been captured by warships were released.  Subsequently, on 22 May, after a combination of intense diplomatic pressure and promises of increased funding, Kenya agreed to resume prosecutions.[25]

The latest development in Kenya has been the opening on 24 June 2010 of a new high-security courtroom in Shimo La Tewa, Mombasa, where cases of maritime piracy and other serious crimes will be heard.  The court was built by the UNODC Counter-Piracy Programme through contributions of its donor states: Australia, Canada, the European Union, France, Germany and the United States.[26]

Trials Elsewhere

Meanwhile, the EU initiated an agreement with the Seychelles on 30 October 2009 for the trial of suspected pirates, and trials have already been held[27]; agreement in principle was reached with Tanzania in May 2010; and Mauritius announced on 12 June that it also would prosecute suspected pirates.  There have been prosecutions and convictions secured in the Somali semi-autonomous region Puntland, where piracy originates; in Somaliland; and in Yemen.  The surviving pirate who attacked the container ship Maersk Alabama on 8 April 2009 was prosecuted in the United States and, having pleaded guilty, faces a minimum of 27 years imprisonment[28]; and trials of eleven suspects, alleged to have fired upon US warships and a US Navy helicopter, are due to take place in the Virginia, Norfolk, Federal Court.[29] On 4 June 2010 the Amsterdam District Court ordered the extradition to Germany of ten Somalis accused of hijacking the German container ship Taipan; and on 17 June, in the first modern-day conviction in Europe for maritime piracy, the Rotterdam District Court sentenced each of five Somalis to five years imprisonment for attacking the Dutch Antilles general cargo ship Samanyolu in the Gulf of Aden on 2 January 2009.[30] Further suspects have been arraigned for trial in France and Spain.  As at mid-May 2010, approximately 500 pirates were held in detention, about half within and half outside Somalia.[31]

Human Rights Issues in relation to Prosecutions

Among key factors governing the ability of naval forces to hand over suspected pirates for prosecution are the effectiveness or otherwise of the laws of a potential host country, and the likelihood or otherwise that the suspects will receive a fair trial, that their human rights will be respected, and that any sentence will not include the possibility of capital punishment.

To ensure that courts in the region of Somalia have adequate powers to try suspected pirates, UNODC have been heavily engaged in helping countries who are signatories to the 29 January 2009 Djibouti Code of Conduct, to make any necessary revisions to their domestic laws, to ensure that they are adequate to respond to maritime piracy. Early signatories were Djibouti, Ethiopia (the only non-coastal state), Kenya, Madagascar, the Maldives, the Seychelles, Somalia, Tanzania, and Yemen.[32]

On the subject of human rights, in January 2009 the then UK Secretary of State for Defence gave an assurance in the House of Commons that where the UK transfers prisoners to third party states it will do so “in accordance with its international law obligations and will always seek assurances of fair treatment and international standards of human rights.”[33] More recently, the agreement between the EU and Kenya also provided that no pirates who are transferred there will suffer a death sentence.  Among the provisions of the agreement which govern the treatment of prisoners are the following:

2(c) The signatories confirm that they will treat persons transferred under this Exchange of Letters, both prior to and following transfer, humanely and in accordance with international human rights obligations, including the prohibition against torture and cruel, inhumane and degrading treatment or punishment, the prohibition of arbitrary detention and in accordance with the requirement to have a fair trial.

3(a) Any transferred person will be treated humanely and will not be subjected to torture or cruel, inhuman or degrading treatment or punishment, will receive adequate accommodation and nourishment, access to medical treatment and will be able to carry out religious observance.

(b) Any transferred person will be brought promptly before a judge or other officer authorised by law to exercise judicial power, who will decide without delay on the lawfulness of his detention and will order his release if the detention is not lawful.

(e)  Any transferred person charged with a criminal offence will be presumed innocent until proved guilty according to law.

4.    No transferred person will be liable to suffer the death sentence. Kenya will, in accordance with the applicable laws, take steps to ensure that any death sentence is commuted to a sentence of imprisonment.[34]

Grounds for Concern

Somewhat similar safeguards are built into the agreements reached between Kenya and other parties.  But the same cannot be said for arrangements under which some countries have handed over suspects to authorities in Yemen, where on 18 May 2010 the Specialised Penal Court at Sana’a sentenced six Somali pirates to death and six more to ten years imprisonment for hijacking the Yemeni oil tanker Qana on 26 April 2009.[35] Among the more publicised incidents, Denmark on 4 December 2008 handed over to Yemen seven suspects who had been located by HDMS Absalon drifting in a boat with a failed engine, and in possession of a number of rocket-propelled grenade launchers and AK-47 rifles.  In another incident, on 12 February 2009 the Russian cruiser Peter the Great captured ten suspected pirates who had been in speedboats approaching an Iranian fishing trawler.[36] And on 28 April 2009 the Russian destroyer Admiral Panteleyev captured a suspected pirate mother ship with 29 people on board, some of whom turned out to have been hostages.[37] The suspects were released to Yemeni authorities, Russia not having the benefit of an agreement with Kenya.[38]

Among other matters of relevance to the ability of a state capturing alleged pirates to hand them over to another state for prosecution, are the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT 1984″)[39], and the European Convention on Human Rights (“ECHR 1950″)[40].  Accordingly, a capturing state needs to be certain that captured persons handed over to another state for trial (and punishment, if found guilty) will receive humane treatment.

Russia was recently in the news again, when on 5 May 2010 Somali pirates hijacked the Crude Oil Tanker Moscow University, with 23 Russian crewmembers on board and loaded with 86,000 mt of oil, at a position approximately 350 miles east of the Gulf of Aden.  The Russian anti-submarine warship Marshal Shaposhnikov, which with two support vessels had arrived in the Gulf of Aden on 29 March 2010, intercepted the tanker on 6 May.  It was known that the crew had retreated to a secure place on the tanker.  The Russian warship deployed speedboats and its two helicopters.  The Russian Ministry of Defence reported that during an operation lasting 22 minutes there was an exchange of fire, during which one pirate was killed.  The remaining ten pirates were captured by Special Forces, who found weapons that the pirates had in their possession, including what were described as large calibre grenade launchers, together with a ladder and grappling hooks which the pirates had used when they boarded the tanker.  Subsequently, a spokesman for the Russian Investigative Committee said that the Committee had “begun measures to send the detained pirates to Moscow for investigations and launch proceedings under Russian law and international legal norms”.[41] And at the request of President Dmitry Medvedev, awards were being prepared for those who took part in the rescue.[42]

So far, this sounded like a success story.  But what happened next is deeply disturbing.   A Russian Defence Ministry source was reported as saying that the pirates were disarmed and put in a small inflatable boat without any navigation equipment, as it was not possible to try the suspects in Russia.[43] A few days later, a Defence Ministry source was reported as saying that the boat disappeared from radar screens an hour after the suspects had been released, and that the ten men had apparently perished at sea.[44]

Editor-in-chief of the Maritime Bulletin magazine, Mikhail Voitenko, told the Russian daily newspaper Gazeta that the pirates had obviously been “killed”.  “When they [the military officials] realized there would be difficulties, they invented the story about the release. And now, to bring the story to a close, they added this information about the pirates perishing at sea,” Gazeta quoted Voitentko as saying.  “If they did perish at sea, that would also be murder, just in a more sophisticated form,” he said, adding that fighting pirates off the Somali coast has become a kind of “safari” for the military, “with zero danger and the chance of rewards and glory.” [45]

Perhaps an explanation lies in the words of President Medvedev, who was reported as saying: “We will have to act as our forefathers did when they met pirates.” [46]

Other Rescues

Among other recent instances of military intervention was that undertaken by Danish forces from the command and support warship HDMS Absalon on 5 February 2010, when they stormed the Ariella, which had been hijacked by pirates earlier that day.  This resulted from a remarkable cooperation between the Indian frigate Tabar, which received a distress call from the crew of Ariella and broadcast a general alert on the Mercury communications system.  As a result, a French maritime reconnaissance plane over-flew the vessel, confirmed the presence of pirates on board, and contacted the Absalon.  The Ariella, with a crew of 25, and carrying a cargo of 30,000 mt of steel, was in the Gulf of Aden within the Internationally Recommended Transit Corridor (“IRTC” [47]), and so within range of support from warships stationed there.  A helicopter from Absalon approached the vessel and subsequently ten Special Forces from Absalon boarded the Ariella from inflatable boats.  No pirates were found on the ship, and it is assumed that they had left when they realised what was about to happen.  The Ariella’s crew then emerged from a secure compartment into which they had retreated when attacked.  This was one of the few occasions when military intervention has been taken after a merchant ship has been hijacked.  It has generally been considered that rescue attempts are too dangerous.[48]

Also rare are occasions when the crew of a hijacked vessel have been able to regain control.  A widely-publicised incident of this nature involved the containership Maersk Alabama[49].  The latest reported occasion was on 2 June 2010, when the crew of the Libyan-owned, North Korean-flagged, general cargo ship Rim managed to overpower their captors.  The 1973-built vessel had been hijacked on 3 February 2010 in the Gulf of Aden, to the north of the IRTC, while on the way to be scrapped, and as such did not represent a very attractive target for pirates.

Other Initiatives

Among other recent efforts to curb piracy has been increased surveillance, by maritime aircraft operating in the Gulf of Aden and the Indian Ocean, and by warships stationed near the coast of Somalia.  The intention is to detect pirate motherships, gain additional intelligence relating to the launching of pirate missions, and when possible intercept pirate boats as they leave the coast.  This amounts to an unofficial blockade of pirate bases—something long advocated.  A full and effective blockade will, however, be extremely difficult to achieve, as the pirates do not rely upon major ports—as did French warships which were blockaded by the British Fleet during the Napoleonic Wars—but are able to launch missions from almost anywhere along the parts of the coastline where they exercise power.  Another factor is that their boats can be well camouflaged among fishing craft of similar appearance.

For locating motherships, fixed wing aircraft offer advantages over warships in their ability to cover large areas more rapidly, and advantages over helicopters in their higher speed and much greater endurance.  But they need to cooperate with warships in order that pirates may be intercepted at sea.  A recent example of such cooperation occurred after a Swedish maritime patrol aircraft participating in EU NAVFOR’s Operation Atalanta spotted a whaler and two skiffs, about 500 nautical miles east of Somalia, on 27 May 2010.  As a result, a Seychelles coastguard patrol boat was able to intercept the whaler two days later, about 250 nautical miles northwest of the islands.  The coastguards discovered weapons and equipment typically used by pirates.  They destroyed these and the two skiffs.  However, they released the nine suspected pirates, presumably because it was considered that there was insufficient evidence to secure a conviction.[50]

Other resources being deployed in the fight against piracy include remotely piloted aircraft such as the ScanEagle drone, which gathered intelligence during the operation to rescue Maersk Alabama.  The 18kg ScanEagle, which can be launched and recovered from a ship, has an endurance of more than 20 hours, can reach a height of 16,000 feet, and is able to track fixed and moving targets with its inertially-stabilised camera turret and then transmit electro-optical and infrared acquired data.  Currently, NATO aims at the long-term deployment of an Airborne Warning and Control System (“AWACS”) aircraft in the Gulf region, which would be available for a variety of roles including counter-piracy.  And at NATO’s request the Netherlands will station a submarine in the Indian Ocean from September to November 2010, mainly in an intelligence-gathering role.[51]

Meanwhile, from 3 June 2010, the Best Management Practices (“BMP”), setting out recommendations to shipowners and seafarers on ways and procedures to counter the risk of hijackings, have been revised and are in their third edition.  Taking account of the pirates’ increased area of operations, BMP3 define the danger region as bordered by Suez to the north, 10° South, and 78° East.  The recommendation is that BMP3 are applied throughout this high risk area.[52]

Impact of Piracy on other Countries and Peoples

The attacks carried out by pirates based in Somalia are having a noticeable effect on the economy of a number of other coastal states in the immediate area, mainly Kenya, Tanzania, Mozambique, Madagascar, the Seychelles and Mauritius, as well as inland countries such as Ethiopia, Uganda and Zambia, which rely on access to ports in Eastern Africa.  For all these countries, the cost of sending and receiving goods by sea has been increased because of piracy, and many of the countries are also suffering from reduced tourism.  Even Egypt, with the Suez Canal about 2,000 miles away from the pirate bases in Puntland, is directly affected, through reduced revenues.

Other countries directly affected by piracy are those which supply the world’s seafarers, such as the Philippines (with about 350,000 seafarers, one-fifth of the world’s total), Russia, Indonesia and Ukraine, among others.  At most times in the last few years several hundred seafarers have been held by Somali pirates while ransoms were being negotiated.  Periods of captivity typically range from a few weeks to four or five months or even longer.  During this time the seafarers are usually kept in poor conditions, often without adequate food, water, proper sanitary arrangements, and the opportunity for exercise.  Some seafarers have been beaten, some have suffered mock executions, and some—fortunately, not many—have been killed.[53] Their plights, and that of their families anxiously awaiting news, are often overlooked when the consequences of piracy are examined.  Since the year 2003, pirates worldwide have kidnapped or taken hostage more than 4,000 seafarers.  Some seafarers who have been captured by pirates are so traumatised by their experience that they are unable to go back to sea after their release[54], while the possibility of a hijacking is one of the factors contributing to a general shortage of merchant sailors.[55]

The Future

The assistance by way of hosting piracy trials now being offered by regional countries results partly from political pressure combined with aid, and partly from a realisation in those countries that this is one of the few ways in which they can seek to combat maritime piracy.  This assistance will be important, because the fact that NATO’s Operation Ocean Shield and EU NAVFOR’s Operation Atalanta have both been extended until December 2012, indicates that those organisations are not expecting Somali piracy to be resolved in the near future.  And in recognition of the need for more consistency of treatment of alleged pirates, the United Nations Security Council on 27 April 2010 unanimously adopted the Russian-sponsored Resolution 1918 (2010), which called on all states to criminalise piracy under their domestic law.  The Resolution also asked the Secretary-General to report to the Security Council within three months on “possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy.”

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ENDNOTES

[1]  Details from the IMB’s reports “Piracy and Armed Robbery against Ships”, for 2009 and for the period 1 January to 30 June 2010.  Some estimates put the number of unsuccessful pirate attacks that are not reported as high as 50 per cent globally, rising to perhaps 80 per cent for Nigeria.  These estimates include incidents that under international law would be classed as armed robbery rather than piracy.  Moderate estimates put the proportion of unsuccessful attempts at hijacking by Somali pirates that are not reported, in the order of 20 to 25 per cent.  Among the reasons for non-reporting are fear that insurance premiums would otherwise be increased; and the belief that an owner’s image would be adversely affected if details were made public.  The main disadvantage of non-reporting is that the full extent of the problem is not recognised, and that consequently insufficient defensive resources are likely to be made available.

[2] See, e.g., the current author’s January 2009 article, “Somalia, the Gulf of Aden, and Piracy: An overview, and recent developments”, for a glimpse of life in Somalia. http://wp.hfw.com/somalia-the-gulf-of-aden-and-piracy-an-overview-and-recent-developments/

[3] Currently, 6 ships and 5 aircraft participate in Operation Atalanta.  From 8 December 2008 until 13 June 2010 Atalanta’s warships provided 73 escorts to Somali ports for merchant ships chartered by the World Food Programme, and 51 escorts for ships resupplying the AMISON troops from Uganda and Burundi helping to defend Mogadishu.  More than 414,000 mt of food were delivered.  No such escorted vessel has been hijacked.  On 14 June 2010 the EU Foreign Affairs Council agreed to extend Operation Atalanta until December 2012.  (Council of the European Union website).  Although food aid has safely reached Somali ports, much of it has allegedly been stolen on arrival, or diverted for unintended purposes: Rasna Warah, “Did the Aid Industry Fuel the Mayhem?”, The Nation (Nairobi) 28 June 2010, citing Michael Maren, “The Road to Hell” (1997) and an unidentified UN report.

[4] CTF-151, formed in January 2009, is a multi-national, counter-piracy task force operating in the Gulf of Aden, the Arabian Sea, the Indian Ocean and the Red Sea—an area of over 2 million square miles.

[5] NATO’s Operation Ocean Shield, using the warships of Standing NATO Maritime Group 2 (“SNMG2″, which from 30 June 2010 comprises the frigates HNLMS De Zeven Provinciën and TCG Gelibolu, and the destroyer USS Cole as NATO Task Force 508), started on 17 August 2009, replacing NATO’s earlier Operation Allied Protector.  SNMG2 conducted the Operation until 9 November 2009 and resumed conduct from SNMG1 on 12 March 2010.  NATO recently announced its commitment to extending Operation Ocean Shield until December 2012.

[6] Warships acting independently have been provided by several nations including China, India, Iran, Japan, Malaysia, the Republic of Korea, Russia, and Saudi Arabia.  These predominantly seek to safeguard merchant vessels of their own nations, but in the spirit of international cooperation have also intervened or assisted in preventing hijackings of non-national vessels.  During these operations, China—whose task forces had until 30 June 2010 helped to escort 2,248 Chinese and other merchant vessels–has gained experience of naval action outside its immediate environment, and has built on its existing relationship with Oman; the Seychelles and Mauritius have accepted support packages from India, while India has added to its experience of working with Western navies; and Russia has been given fleet replenishment facilities by Djibouti.  All these are developments that have produced benefits for nations providing counter-piracy forces.  Also working against piracy are the coastguard services of Somaliland and Yemen.

[7] The United Nations Office on Drugs and Crime (“UNODC”) is heavily involved in a number of counter-piracy measures is, particularly through the EU-UNODC liaison office in Nairobi.

[8] Various sources put estimates of US$16 billion on the annual cost of piracy at sea, without any attempted breakdown of the figure.  This is suspiciously similar to estimates of annual losses from pirated computer software, and also from counterfeit parts for motor cars.   Once a figure like this appears, it is copied from place to place and soon acquires the semblance of a proven fact.  Clearly, the figure is just a guess.  Very likely, there has also been confusion between different forms of piracy.  The annual budget of the warships operating in the Indian Ocean was put by the executive director of UNODC at US$1.5 billion: Address to the United Nations General Assembly, 14 May 2010, GA/10940.

[9] The prospects of surviving a hijacking and detention by Somali pirates are extremely high.  Over the last few years they were better than 100:1 on.  Nevertheless, this is not the absolute certainty that seafarers want.

[10] Estimate made in UNODC report “The Globalization of Crime”, June 2010.  Fiscal measures taken recently by the US administration and by the EU, intended to restrict the payment of ransoms to specified persons are well-intentioned, but are not the best method of curbing piracy in the short-term, and are likely to hinder the release of ships and seafarers currently in captivity.  It will be interesting to see what happens if the owners of any US-registered hijacked ships are prevented from paying a ransom because of the US order.

[11] The Puntland authorities showed that they can act against piracy when, on 3 June 2010, troops from Puntland secured the release of the Panama-flagged general cargo ship QSM Dubai, which had been hijacked the previous day.  The ship had been on passage from Brazil to Bossasso with a cargo of sugar.  Unfortunately, the ship’s master was killed either before or during the operation.

[12] In a statement at the conclusion of an international conference held at Istanbul during May 2010, the United Nations Secretary-General Ban Ki-moon said “If we do not tackle the basic causes onshore we will never be able to stop piracy offshore.”  And Antonio Maria Costa, the executive director of UNODC, reported on that conference, in the New York Times on 8 June 2010, under the heading “The War on Piracy Must Start on Land”.

[13] On 27 May 2010 HMS Chatham, until 30 June 2010 Operation Ocean Shield’s flag ship, hosted a meeting off the Port of Bossasso between a team led by Commodore Steve Chick, and 25 senior officials from Puntland’s Bari, Karkaar, Nugal and Mudug regions, to exchange information and discuss measures for combatting piracy.  This was the latest in a series of meetings between NATO and Puntland officials, going back to August 2009.

[14] Somaliland, an autonomous region in the north-west of Somalia, bordering the Gulf of Aden, was until 1960 a British protectorate and was known as British Somaliland.  In 1960 it joined with the region that immediately previously had been a United Nations Trust Territory administered by Italy, to form the Republic of Somalia.  Somaliland declared independence in 1991 after General Siad Barre was deposed as ruler of the Republic.  Since then, Somaliland has been seeking formal international recognition as an independent State.  Somaliland is relatively the most stable region of Somalia.  An election, which was considered by independent observers to have met the standards of a free election, was held on 26 June 2010 (having been deferred for many months), and resulted in a victory for the previous, leading opposition party—an unusual event in Africa.  The president elect, Ahmed Mahmoud Silanyo, was due to be sworn in as president on 26 July.

[15] Various training initiatives by a number of European nations are currently underway, mainly in Uganda.  In the past, many Somalis who have been trained for security duties have defected, and have either joined the Islamist insurgents or become pirates, because they were not being paid.  Part of the funds should be used to pay the security forces.

[16] There are several theories which seek to account for the rise in piracy out of Somalia, ranging from efforts by individuals to curb illegal foreign fishing and the dumping of toxic waste, to activity organised by corrupt members of the administration.  Now, Somali piracy is in effect run by criminal syndicates with backers, equivalent to shareholders, resident both within and outside the country.  It is run on a business basis and relies on the supply of arms, ammunition, skiffs, outboard engines, fuel, communications and location equipment, night-vision glasses, and all the paraphernalia that enables the pirates to operate so successfully many hundreds of miles from their homeland.  They have various intelligence methods and sources, they have their training programmes, and they operate a form of injury insurance.  They are virtually indistinguishable from many other business, save that they lack legitimacy.

[17] A point emphasised in Recommendation 1913 (2010) adopted by the Parliamentary Assembly of the Council of Europe on 28 April 2010.  The Assembly also recommended to the Council of Ministers the preparation of “a code of conduct on how to deal with suspected pirates in full compliance with international human rights standards”, and the conclusion of “international agreements clearly specifying state responsibility for the prosecution of pirates”.

[18] That this should be so, stems from the consideration that, despite the European Union and 160 nations having ratified UNCLOS 1982, many countries have not enacted adequate domestic legislation to deal with maritime piracy.  This in turn reflects the belief held by many nations, at least until recently, that piracy was not likely to affect them.

[19] The Washington Post, 24 May 2010, citing Commander Anders Kallin, EU NAVFOR spokesman.

[20] Press Association report, 8 July 2010, citing Commodore Tim Lowe, RN, former commander of Royal Navy forces in the Middle East.

[21] The suspects were detained by a Royal Marine boarding party on 11 November 2008 and were handed over to Kenyan authorities on 18 November.  During an exchange of fire two of the suspects, who had captured a Yemeni-registered dhow, were shot and killed.  A Yemeni national was found injured on the dhow, and later died.  In March 2010 the accused were convicted of piracy and were each sentenced to twenty years imprisonment.  (UK Ministry of Defence news report, 18 November 2008,  and UK Foreign & Commonwealth Office statement, 12 March 2010).

[22] The suspects were captured by USS Winston S. Churchill on 21 January 2006 after they hijacked the Indian-registered dhow Safina Al Bisarat and its crew of 16 Indian nationals.  The suspects were handed over to the Kenyan authorities on 29 January after the authorities confirmed that they would hold the suspects pending a final determination as to jurisdiction.  In November 2006 the ten Somalis were each sentenced to seven years imprisonment.  (US Embassy, Nairobi, press release, 2 February 2006, and BBC News, 1 November 2006).

[23] Agreements were signed with Denmark on 9 July 2009; with China on 21 December 2009; and with Canada on 12 January 2010.

[24] Attorney-General Amos Wako told Kenya’s Defence and Foreign Relations Committee that he had not been involved in the drafting of international agreements for the trial of suspects in Kenyan courts, and that agreements had been entered into against his advice: Daily Nation online, 30 March 2010.

[25] Kenya’s Foreign Affairs Minister, Moses Wetang’ula, announced the resumption following a meeting with an EU delegation led by Baroness Catherine Ashton, vice president of the EU: Daily Nation online, 21 May 2010.  Kenya had apparently given six months’ notice to terminate the agreement reached with the EU.  Withdrawal of the notice was dependent upon funds and security guarantees being received:  Reuters (Nairobi), 19 May 2010.  Alan Cole, the UNODC Counter-Piracy Programme Co-ordinator, based in Nairobi, reported on 15 June 2010 that Kenya and the Seychelles would receive US$9.3 million over the next 18 months, which would cover the cost of securing the attendance of witnesses at trials, and would also be available for equipment and other improvements to the countries’ criminal justice systems.  In addition, the Seychelles Coastguard is receiving assistance from the EU, India, the United Arab Emirates (“UAE”), the UK, US and China in its fight against maritime piracy.  On 12 July 2010 the British High Commissioner handed over to the Seychelles Coastguard service at their Bois de Roses base, a 47-foot Tyne Class lifeboat formerly owned by the Royal National Lifeboat Institute, for use in anti-piracy patrols and search and rescue duties.  (Seychelles Tourism Board Press Release).  And the President of the Seychelles has announced the signing of a US$15 million agreement with the UAE (which has substantial property links in the Islands), aimed at further improving the local coastguard service by the construction of a new base and the provision of five more patrol boats.  (Agence France Presse, 15 July 2010).

[26] UNODC report, 25 June 2010.

[27] UNODC reported on 11 May 2010 that the Seychelles intended to establish a dedicated piracy chamber within its court system, for the trial of suspects captured by its coastguards or by forces operating within Operation Atalanta.  But because of limited prison facilities, the Seychelles would be seeking the option to transfer convicted pirates to prisons elsewhere.  A UK prosecutor has been seconded to the Seychelles, to help the Attorney General’s office in piracy trials.  And on 14 July 2010 the Seychelles signed an agreement with the US, governing the prosecution of suspected pirates.  (BBC Monitoring Service, 15 July 2010).

[28] Pirates boarded the containership Maersk Alabama on 8 April 2009 while the vessel was approaching Mombasa.  At the end of a complex series of events, during which the crew captured one of the pirates, and US Navy SEALs on board USS Bainbridge killed three pirates who were holding Maersk Alabama’s Capt. Phillips in a lifeboat, a young Somali, Abdiwali Abdiqadir Muse, who had been receiving medical treatment, was arrested and transferred to America for trial.  He was alleged to have been the pirates’ leader.  On 18 May 2010, at New York’s Federal Court, he pleaded guilty to piracy.  (Fox News, 18 May 2010)

[29] The trial dates are 9 September 2010 (5 suspects), and 19 October 2010 (6 suspects).

[30] The pirates were captured by the Danish Command and Support ship HDMS Absalon. The crew of the Samanyolu had fired flares at the pirates’ boat, setting fire to it.  The five pirates jumped overboard and were rescued by Absalon.  On 10 February 2009 they were handed over to the Netherlands to be prosecuted, pursuant to an ad hoc agreement reached between the two countries, following the issue of an arrest warrant by the Netherlands.  The trial judge held that the delay of 40 days in bringing the suspects before the court was too long, and constituted a breach of article 5 of the European Convention on Human Rights, but that no consequences followed from that within the proceedings.

[31] Address by the executive director of UNODC to the United Nations General Assembly, 14 May 2010, GA/10940.

[32] UNODC’s projects in Eastern Africa are summarised at http://www.unodc.org/easternafrica/en/about-unodc-eastern-africa/ongoing-projects.html

[33] Hansard House of Commons, 12 January 2009, column 108W.

[34] The full terms of the agreement of 6 March 2009 between the EU and Kenya are set out in the Official Journal of the European Union at L 79/49 – L 79/59.  A copy of the agreement has been posted at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:079:0049:0059:EN:PDF

[35] Saba News Agency (Yemen), 18 May 2010.

[36] Reuters (Moscow) 13 February 2009.

[37] RIA Novosti News & Information Agency (Moscow), 28 and 30 April 2009.  The mother ship contained 7 Kalashnikov rifles, pistols, a large quantity of ammunition, satellite navigation equipment and an aluminium ladder.

[38] Alexander Zvyagintsev, a Russian deputy general prosecutor, had confirmed that the suspects could have been prosecuted under Russian law.  Article 227 of the Russian Criminal Code provides for a penalty for piracy of between 5 and 15 years imprisonment and a fine of 500,000 roubles (about US$15,000): RIA Novosti News & Information Agency (Moscow), 12 May 2009.

[39] Article 3 of UNCAT 1984 provides:

1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

[40] Article 3 of ECHR 1950 provides: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

[41] RIA Novosti News & Information Agency (Moscow), 6 May 2010.

[42] RIA Novosti News & Information Agency (Moscow), 7 May 2010.  Seven weeks after the incident, the Russian Ministry of Defence’s Zveda television channel showed film of part of the rescue and also pictures of pirates face down on the deck of the tanker, with their hands tied behind their backs: BBC Monitoring Services, 26 June 2010.

[43] RIA Novosti News & Information Agency (Moscow), 7 May 2010.  Despite the fact that Moscow University was registered in Liberia, the claim that Russia did not have jurisdiction to try the pirates is a curious one, given that Russia has ratified both the 1982 United Nations Convention on the Law of the Sea (the “UNCLOS Convention”) and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation  (the “SUA Convention”); and that Russian nationals had in effect been captured by the pirates (albeit they were hiding in a secure compartment); and that military forces from a Russian warship intervened to secure the crew’s release.

[44] RIA Novosti News & Information Agency (Moscow), 11 May 2010.  This report refers to “inflatable boats”.

[45] RIA Novosti News & Information Agency (Moscow), 12 May 2010.

[46] RIA Novosti News & Information Agency (Moscow), 7 May 2010.

[47] The IRTC became effective on 1 February 2009, when it replaced an earlier corridor nearer the coast of Yemen.  The IRTC is 464 miles long and runs roughly east to west, with westbound vessels using the northern part of the corridor, nearest to the southern coast of Yemen, and eastbound vessels using the southern portion.  Full details are shown on a non-navigational Chart Q6099, titled “Anti-Piracy Planning Chart—Red Sea, Gulf of Aden and Arabian Sea”, which has been available since June 2009 from the UK Hydrographic Office: http://www.ukho.gov.uk/. The chart is extremely useful as it also includes brief guidance for masters, and contact details for the United Kingdom’s Maritime Trade Organisation (“UKMTO”) office in Dubai; EU NAVFOR’s Maritime Security Centre (Horn of Africa) (“MSCHOA”); and the US Maritime Liaison Office (“MARLO”) in Bahrain.  It would be sensible to have a copy of the chart on board every ship transiting those areas.  Despite what one might expect, vessels transiting the Gulf of Aden after registering with the naval authorities, and making daily progress reports, are generally not accompanied by warships in the same way that many Second World War convoys were escorted.  The distances involved, and the numbers of commercial vessels in the area, are simply too great for the available naval forces.  A convoy’s progress is monitored visually and on radar by warships patrolling, or stationed at intervals, along the IRTC.  Sometimes, special arrangements are made for particularly vulnerable vessels; but generally, vessels are grouped with others of similar speed, and dispatched in loose convoy formations, timed to converge at the danger time of dawn in the vicinity of naval units.  A potential drawback is that this produces a target-rich environment at that time.

[48] Earlier interventions involving yachts, and the incident involving Maersk Alabama, are mentioned above.  Initial reports were by Associated Press (Nairobi), and NATO Operation Ocean Shield’s News Release, both dated 5 February 2010.  At the time of the incident, HDMS Absalon was acting as flagship of Standing NATO Maritime Group 1, which also included the frigates USS Boone and FGS Karlsruhe, and the tanker FGS Spessart.  In a previous deployment Absalon had participated in CTF-151.  The vessel has been extremely active in counter-piracy work: see, e.g., the current author’s January 2010 article “Piracy off Somalia: Prosecutions, Procrastination and Progress”, http://www.idaratmaritime.com/wordpress/?p=259 .

[49] See note 28, above.

[50] EU NAVFOR press release, 30 May 2010.

[51] Dutch News and BBC News, 22 June 2010.

[52] BMP3 are published in booklet form, and a pdf version can be downloaded from numerous websites.  BMP3 are widely supported by the shipping industry and by the naval forces countering piracy.  Signatories comprise BIMCO, the International Chamber of Shipping, the International Group of P&I Clubs, the IMB, INTERCARGO, INTERTANKO, the International Shipping Federation, the International Transport Workers’ Federation, the International Parcel Tankers Association, the Joint Hull Committee, the Joint War Committee, the Oil Companies International Marine Forum, and the Society of International Gas Tanker and Terminal Operators.  Organisations specifically supporting BMP3 include EU NAVFOR, MARLO, MSCHOA, Operation Ocean Shield, NATO Shipping Centre, and UKMTO.

[53] The treatment of hostages by Somali pirates has been relatively benign compared with that administered by pirates based in Nigeria, some South American countries, and in South-East Asia, where brutal behaviour and killings are proportionately greater.

[54] A revised version of “Preliminary Guidelines for Post-Piracy Care for Seafarers” was published on 4 March 2010 by The Seamen’s Church Institute, New York, and on 14 May 2010 Douglas B. Stevenson, the Director of the Center for Seafarers’ Rights, addressed an informal meeting of the United Nations General Assembly on the subject post-piracy care.  Currently, a clinical study to assess the effects of piracy on seafarers, initiated by the Seamen’s Church Institute, is being carried out by the Disaster Psychiatry Outreach at the Mount Sinai School of Medicine and the New York Psychoanalytic Society and Institute.

[55] On 11 May 2010, at a Japan International Transport Institute Seminar on the subject “Problem of the Global Shortage of Seafarers and the role of the Shipping Industry through CSR activities”, Efthimios Mitropoulos, the IMO Secretary-General, suggested that “the unique hazards confronting seafarers nowadays—pirate attacks, unwarranted detention and abandonment, to mention some of them—serve as a disincentive to recruitment.”

© Copyright John Knott, 2010.

The author is a consultant at the London head office of Holman Fenwick Willan LLP, who, by mid-2010, have been instructed in relation to over 50 hijackings off Somalia, in addition to similar incidents elsewhere.  This article, which does not represent legal advice, is republished here with permission.

Report by IRIN MOGADISHU, 21 July 2010 (IRIN) – As Islamist insurgents battle it out with government troops backed by African Union forces (AMISOM) in Somalia’s capital, civilians face continuous danger from above in the form of the mortar shells used by most parties to the conflict. Shelling accounted for many of the injuries to the 160 people admitted in the first three weeks of July to Madina hospital, the largest hospital in Mogadishu, according to its director-general, Mohamed Yusuf. Over roughly the same period, some 11,500 Mogadishu residents were displaced by the fighting, according to the UN Refugee Agency. “Most of the patients admitted are those on whom surgery was performed, such as those with stomach injuries,” Yusuf said. “Patients with chest, head and bone fractures are also admitted. About 60 percent of the injuries are due to explosives, shelling using heavy mortars and exploded bombs.” He said a few required specialized surgery only available out of the country but “we tackle most of the others here as we have been doing in the past 20 or so years” since the fall of the country’s last functioning government. Yusuf said 40 percent of those in the hospital were women and children, most of whom had been caught up in mortar attacks in places such as markets. Most of the patients treated at Madina were too poor to afford the charges and are often treated for free. The hospital depends on contributions from well-wishers and fees paid by patients who can afford them, he said. Keysaney hospital In early July, the International Committee of the Red Cross (ICRC) decried the shelling of Keysaney, another hospital in Mogadishu. “We are shocked about the situation at Keysaney,” Pascal Mauchle, the head the Somalia ICRC delegation, said in a statement on 1 July. Photo: Abdisamad Abdulakdir/IRIN Radio An injured civilian being treated at Madina Hospital (file photo) “Despite our repeated calls to all warring parties to respect international humanitarian law and spare medical facilities, nothing seems to have changed on the ground. The situation is becoming more and more dangerous for patients and medical staff by the day.” ICRC said since the beginning of 2010, some 1,400 “war patients” had been treated at the hospital, including at least 300 women and around 200 children. While the ICRC did not point any fingers, UN Secretary-General Ban Ki-moon, in his latest report to the Security Council on Somalia noted that “civilians were increasingly caught in crossfire, mortar attacks and artillery shelling between insurgents and Government forces”, and went on to express concern about the “shelling of civilian areas and indiscriminate return fire by Government and AMISOM troops”. Night-time shelling In the Mogadishu district of Dayniile, home to many internally displaced persons (IDPs), one resident told IRIN: “There has been heavy shelling of civilian areas, mostly at night, coming from government and AMISOM controlled areas. We don’t know why they are shelling civilian areas.” He named Hodan, Howlwadag and Wardhigley as other areas affected by shelling. Information Ministry spokesman Sheikh Abdirizak Mohammed Qeylow told IRIN that Al Shabab insurgents, not government forces, “are the ones who attack peaceful areas resulting in the civilian casualties which we are now witnessing, with many Somalis being forced to flee to IDP camps. AMISOM spokesman Gaffel Nkolokosa said the force’s troops had “always avoided shelling of civilian areas. It is not involved in shelling civilian areas even if provoked by the other parties”. “AMISOM troops undergo thorough training in their home countries before deployment. They are conversant with relevant aspects such as international humanitarian law and as such would not shell civilian areas,” he told IRIN. aa-mg/js/am/cb Themes: (IRIN) Conflict, (IRIN) Health & Nutrition

[ENDS]

Report can be found online at: http://www.irinnews.org/Report.aspx?ReportId=89905

by Peter Eichstaedt

“It was only a matter of time.

Some 74 innocent people are now dead in the Ugandan capital of Kampala in the wake of two vicious suicide bombing attacks by the al-Shabaab militia, which controls almost all of southern Somalia.

This is the kind of deadly disaster that I feared would happen in my forthcoming book, Pirate State: Inside Somalia’s Terrorism at Sea. Sadly, it won’t be the last.

Although Pirate State is ostensibly about Somalia’s pirate horde, the pirates and the al-Shabaab militia have emerged from the smoldering chaos that has gripped Somalia for the past two decades.

Remember Black Hawk Down? Al-Shabaab does. But they’re not waiting for another invasion of U.S. marines. They’ve exported their war. Expect it to get worse.

That al-Shabaab attacked two locations in Kampala, Uganda, is no surprise. Uganda provides the bulk of the African Union’s 4,000 or so troops now hunkered down in the Somali capital of Mogadishu.

These Ugandan soldiers, accompanied by a much smaller contingent of soldiers from Burundi, are all that prevents a complete take-over of southern Somalia by the fundamentalist al-Shabaab militia.

The Ugandan soldiers are kept alive by a life-line of military and logistical support from the U.S. and protect the fragile and pro-western Transitional Federal Government that is holed up in corner of Mogadishu.

This is not the first time that Uganda has been hit by al-Shabaab. On September 17, 2009, al-Shabaab militants, some of whom were reportedly American converts, drove a couple of stolen UN vehicles into the Ugandan’s compound and detonated themselves, killing more than 20 people.

Because of the notorious Black Hawk Down debacle, the U.S. has been more than happy to let the Ugandans hold out as the final bulwark of defence for the teetering transitional government.

But clearly there is a price to pay, while Ugandan President Yoweri Museveni relishes his role as the pro-western posterboy for the few African governments that still claim to be “democratic.”

After altering the constitution to allow himself unlimited terms, Museveni faces yet another re-election bid in early 2012. Uganda’s presence in Somalia has already been challenged, and this bloody tragedy will certainly rouse Museveni’s opposition.

The suicide bombing at the private club in Kampala where hundreds had gathered to watch the World Cup final only underscores al-Shabaab’s fundamentalist doctrine, which has forbidden such entertainment as anti-Islam.

The attack on an Ethiopian restaurant was also a reprisal, since Ethiopian forces, with U.S. help, defeated the Islamic Courts Union and occupied much of southern Somalia for a couple of years after.

Al-Shabaab, which means “the youth,” grew out of the former Islamic Courts Union, which controlled southern Somalia for most of 2006 and at the time was the only law and order the country had known in 15 years.

Al-Shabaab was the ICU’s militia. When the ICU was defeated in the opening weeks of 2007, the al-Shabaab scattered, licked its wounds, and regrouped.

Despite the defeat, the militia had established strong ties with the militant and deeply fundamentalist Islamic network that grips the region, including Yemen, Afghanistan, and Pakistan.

Using suspected links with the Somali pirate clans that control the coasts, al-Shabaab has been supplied and staffed by a cadre of seasoned militants who serve as instructors and mentors for the al-Shabaab recruits.

These recruits have included disenchanted American converts, some from the Minneapolis area, but also many from Nairobi, Kenya’s sprawling Somali neighborhoods.

I spoke at length with a former al-Shabaab soldier in September of last year. The man had volunteered, been trained by al-Qaeda- and Taliban-linked commanders, then fought for more than a year against the Ugandans in Mogadishu and other towns in Somalia.

Seeing the futility of the killing, he had left, and was on the run in Kenya, convinced that al-Shabaab agents, bent on revenge, would soon kill him.

He told me that al-Shabaab militants permeated Kenyan society and it was only a matter of time before the would begin to strike.

At the time, it was widely rumored that Kenyan authorities has barely been able to foil an al-Shabaab plot to strike hotels in downtown Nairobi during Secretary of State Hillary Clinton’s visit in August 2009.

The attack on Uganda shows that al-Shabaab has a long reach that extends through Kenya, Uganda’s strongest ally and neighbor. Is Burundi next? Or is Kenya?”

……………………………………………………………………………………………………………

(c) Peter Eichstaedt, 2010, reproduced with permission

http://petereichstaedt.blogspot.com/2010/07/al-shabaabs-deadly-strike.html

by John Knott, of Holman Fenwick Willan LLP

Shipping has been described by the International Maritime Organisation as perhaps the most international of all the world’s great industries, and also one of the most dangerous.  The numerous safety features incorporated into modern ships did not come about by chance or simply by the foresight of the more diligent shipowners: they resulted from rules imposed by classification societies and flag states, or by legislation.  Otherwise, some shipowners might have found it expedient not to incorporate them all.  Currently, international shipping is facing severe risks from piracy and armed robbery, in response to which prudent shipowners are voluntarily taking measures that may soon have to be enforced for the benefit of all.  Meanwhile, all shipowners need to consider carefully how to make their ships safe for voyages through the danger areas off Somalia and in the Indian Ocean and elsewhere.

Overloading and Construction

Efforts to prevent merchant ships from being overloaded were very haphazard until the Middle Ages, when enforcement measures were taken by the Venetian Republic,  and in Northern Europe by the Hanseatic League; and later were imposed by the major maritime nations when longer voyages became commonplace.  Rules governing construction and seaworthiness were also gradually developed.  In 1835 a rule to avoid overloading, specifying a relationship between freeboard and the depth of the hold, was introduced by Lloyd’s Register of British and Foreign Shipping, as it then was, for vessels registered with that organisation.  By the Merchant Shipping Act of 1876 load lines became compulsory for all British ships; but it was not until 1894, when the position of the line was fixed, that the full benefit of what is known as the Plimsoll Line was felt.  Eventually, international uniformity resulted from the 1930 and 1966 Load Lines Conventions.

Collision

Another major risk for merchant shipping is the danger of collision, in relation to which navigation and ship construction are key features.  Navigation regulations for the avoidance of collisions have been in force since the late 18^th century, and important safety construction features were imposed during the 1850s, including the requirement that iron ships be fitted with a collision bulkhead and an engine-room bulkhead.  The introduction of navigation lights enabled the navigation regulations to be developed further, first by Trinity House and then by the Steam Navigation Act, 1846.  During the second half of the 19^th century the rules went through several phases within the Merchant Shipping Acts and culminated in the Maritime Conventions Act 1911.  Subsequently, navigation rules have been refined in various ways and are currently based on the 1972 Collision Convention, adopted by 153 countries for over 98 per cent of the world’s tonnage.[1]

Fire

The Safety of Life at Sea (“SOLAS”) Convention of 1914 highlighted the need for measures designed to minimise the risk and the consequences of fire, among other hazards.  Implementation of its recommendations was prevented by the First World War, but subsequent Conventions—SOLAS 1929 and later—led to the introduction of more safety features, including the use of non-combustible construction materials.  Even so, the measures proved to be inadequate for passenger ships, as illustrated by a series of fires during the 1960s.  Later regulations imposed enhanced requirements for fire and explosion prevention, fire detection, and fire suppression.  Currently, operators of some of the older passenger vessels are facing a deadline of October 2010 for the removal of almost all combustible materials.

Equipment

The first SOLAS Convention was a response to the sinking of the White Star liner Titanic, with the loss of over 1,500 lives.  Among the concepts emerging from that Convention was that not only should merchant vessels carry an adequate number of lifeboats and lifejackets, but that the lifeboats should afford protection against the elements.  Other measures related to stability standards, fire-resistant bulkheads, and the installation of a public address system.  Later SOLAS Conventions called for additional safety equipment.  Currently, attention is focusing on ensuring that lifeboat release mechanisms are improved, to avoid further incidents when lifeboats have dropped unexpectedly, sometimes with fatal consequences.

Crew Training and Competency

The importance of having a competent and properly trained crew on board a merchant ship can scarcely be over-stated.  Indeed, it is estimated that the human factor is a significant component of around 80 per cent of all casualties at sea.[2] This covers poor crew competence, lack of communication, lack of proper maintenance, lack of application of safety or other procedures, inadequate training, poor judgment, etc.[3] The SOLAS Conventions; the Conventions on Standards of Training, Certification and Watchkeeping; the International Safety Management (“ISM”) Code; and the Merchant Shipping Acts, have all influenced the requirements for crew competence and training, and are supplemented by procedures laid down by flag states and classification societies, among other bodies.

State Intervention

The measures summarised above, which have been adopted internationally to achieve greater safety at sea by better construction; by preventing ships being overloaded; by minimising the risk of collisions and fires; and by seeking to eliminate poor equipment and inadequate crewing standards; have a particular element in common.  They can all be enforced by law, or by bodies such as classification societies and flag states.  In every case, and often following the lead of the British  Merchant Shipping Acts and other legislation, there has been intervention in order to establish and enforce adequate standards.  Previously, industry practices were not consistent, and were not adequate until made obligatory, because some shipowners did not follow them.

Piracy

Among the most serious of the hazards that have been faced by merchant vessels in recent years are piracy and armed robbery[4], particularly off the coasts of Somalia, in the Indian Ocean, and, to a lesser extent, in South-East Asia, and off Nigeria, and elsewhere in the Gulf of Guinea.  Figures published by the International Maritime Bureau disclose that hijackings and unsuccessful attacks attributed to Somali pirates rose from 22 in 2006, to 51 in 2007, to 111 in 2008, and to 217 in 2009.  In 2009 over 850 crew members were taken hostage by Somali pirates; four were reported as killed, a further ten injured, and one missing.  The most dangerous area for injuries was Nigeria, with 44 reported instances.  There were 48 actual hijackings by Somali pirates during 2009, out of 49 for that year world-wide.  Of ships reported to have been attacked world-wide during the year, 10 were controlled or managed in Norway; 11 in India; 14 in each of the United Kingdom and Turkey; 16 in Japan; 20 in Hong Kong; 45 in Singapore; 59 in Greece; and 64 in Germany.[5]

Naval Responses

Reactions to piracy have been mixed, and their results variable.  The ships of the EU’s Task Force 465, Operation Atalanta; the Combined Maritime Forces’ Combined Task Force 151; NATO’s Operation Ocean Shield; and the naval vessels of many countries acting independently, have had a noticeable effect within the Gulf of Aden, and have also been able to prevent some hijackings in the Indian Ocean.  However, the danger area now stretches from Somalia north-west into the Red Sea; north-east to beyond the coast of Oman; to more than 1,200 nautical miles east, almost to the west coast of India; south-east to beyond the Seychelles; and south to Kenya, Tanzania and the Mozambique Channel.  This is such a large area that it is impossible for the naval forces to give adequate protection to all vessels at all times.  A related consideration is that the original driving forces for piracy are to be found among the conditions on land, albeit that piracy has now developed into an industry in its own right.[6]

The deployment of twenty or more destroyers, frigates, and other powerful warships, complete with their crews and often specialist troops in addition, and with associated support and other facilities such as maritime aircraft, places a heavy burden on the nations providing them, in terms of money, and manpower and equipment.  Even so, because of the need for vessels to refuel and replenish provisions, and because a priority for Operation Atalanta is ensuring the safe passage of ships chartered by the World Food Programme, and maintaining supplies to the Transitional Federal Government and the troops of the African Union Mission at Mogadishu, not all those warships are available at any one time to intervene in attacks.

Shipowners’ Options

In relation to the threat of piracy off Somalia individual shipowners have been encouraged not to rely exclusively upon outside help, but to take measures for their own protection.[7] Available options include following the recommendations of the Round Table of International Shipping Associations, set out in their “Best Management Practices to Deter Piracy in the Gulf of Aden and off the Coast of Somalia” (“BMPs”), and the Oil Companies International Marine Forum (“OCIMF”)’s guide “Practical measures to Avoid, Deter or Delay Piracy Attacks”[8]; hiring security guards; and deviating around the Cape of Good Hope to avoid the Gulf of Aden and the western part of the Indian Ocean.  No single measure will guarantee that a ship will be safe from hijacking.  Some measures—such as arming private security guards—are controversial, not generally popular (save perhaps in special circumstances, such as a slow tow), can be difficult to implement, and can open a Pandora’s Box of legal complications; while for a vessel needing protection across the whole of the Indian Ocean, the cost of a security team would be high.[9] And the increased safety which diversion around the Cape of Good Hope may once have offered, is now much reduced because of the pirates’ ability to strike well over 1,000 miles from Somalia, with their operational range increasing all the time.

What is surprising in light of the clear danger from piracy is that some shipowners take only minimal precautions.  The fact that the majority of shipowners follow the BMPs, and use the Internationally Recommended Transit Corridor (“IRTC”)[10] for passage through the Gulf of Aden, was welcomed by the UN Contact Group on Piracy off the Coast of Somalia at their January 2010 session.  But they noted with concern the continued non-compliance by a minority, and they urged increased action by flag states and shipping companies to continue to minimise the risk of piracy.[11] Estimates have put the number of ships not using the IRTC when crossing the Gulf of Aden, in the order of 25 per cent.[12] One of the key features of efforts to avert hijackings is crew training.  There is a danger, with the polyglot nature of many modern-day crews, which are often assembled at short notice, that insufficient time is spent on counter-piracy drills as part of safety training.  The consequence can be confusion and even panic among crews in the event of an attack.  And even with a crew well-trained in counter-piracy measures, it will be difficult for them to maintain a high degree of alertness during the whole of the several days that a vessel will take to transit the Indian Ocean.[13]

Counter-Piracy Developments

Of particular concern nowadays, in an era of container ships and efforts by all shipowners to minimise costs, is the subject of lower manning levels, which often lead to overwork and fatigue.  In the face of threats of attack by pirates, low manning levels are not likely to allow for sufficient lookouts to be deployed continuously in the danger areas, or to allow the crew to react effectively and in good time in the critical period when an attack in threatened or underway.  Given the seriousness of the risks off Somalia, in particular the risks for the crews of ships transiting the region, it is natural that various interested bodies have taken steps to try to ensure that all shipowners act responsibly.

At a recent session of a United Nations Working Group[14], several nations and international bodies outlined their procedures and plans for counteracting piracy.  The Philippines, which is the world’s largest supplier of seafarers[15], described its anti-piracy awareness training requirements, and indicated that it was considering calling for a mandatory revision of Ship Security Plans (“SSPs”)[16] where Philippine nationals were employed.  Among state flags, Liberia and the Marshall Islands were seeking to implement BMPs through sections of SSPs, and also relevant measures through the ISPS Code.  The view was also expressed by one state that BMPs could be implemented through the ISM Code.  The United States was using the ISPS infrastructure to implement defensive measures, based partly on the BMPs, for vessels flying its flag, but also including the use of armed guards.  The US representative also reported on efforts within another Working Group[17] to develop model contractual clauses to promote the implementation of BMPs.[18]

The Future

As noted earlier, the measures adopted internationally to avert a range of  risks at sea can be enforced by law or by bodies such as classification societies and flag states.[19] It seems likely that laws and rules will ultimately exist, to ensure a comparable degree of safety for all ships in relation to piracy and armed robbery.  Vessels making their way through ice need to be specially strengthened, and nowadays each classification society has a set of rules governing this.  Similarly, it would be sensible for vessels making their way through waters infested by Somali pirates to be strengthened in ways designed to counter the serious risk of piracy.  This could entail an effective warning system of the approach of potentially hostile craft, particularly from the stern; an effective method of deterring boarding; a procedure to follow in the event that boarding cannot be prevented; and a method of alerting rescuers.  Meanwhile, a vessel’s crew should be protected as much as possible.  And voyages should be planned and executed in light of an understanding of the specific risks, based on available information.[20]

The relationships between parties affected by a hijacking are liable to become strained.  Most shipowners do, of course, take great care to ensure that their ships are seaworthy in all respects and that contemplated voyages can be undertaken safely.  But with the liberty and lives of crew at stake, as well as large sums of money, not only some underwriters but also some cargo owners and charterers and crew members may be tempted to question whether the owner of a hijacked ship had taken all reasonable precautions.  A ship should sail fit to survive the hazards likely to be encountered on a voyage.[21] In light of recent and continuing experience off Somalia, all shipowners whose vessels will transit the danger areas should take sensible and informed measures to avoid the risk of a hijacking.  A good place to start is by ensuring that they are aware of the specific risks; by maintaining an adequate and properly prepared crew to ensure alert watch-keeping at all times; by adopting the Best Management Practices and following OCIMF’s guide (both of which will be revised periodically); and by using the Internationally Recommended Transit Corridor for passage through the Gulf of Aden.

---

End Notes:

[1] Figures provided by the International Maritime Organisation (“IMO”) and Lloyd’s Register of Shipping.

[2] Speech given by Mr. W.A. O’Neil, Secretary-General of IMO, at the International Symposium on Safer Shipping in the Asia-Pacific Economic Cooperation Region, Sydney (Australia), 6-7 March 2001.

[3] Psaraftis, H.N. and others, “The Human Element as a Factor in Marine Accidents”, IMLA-10 Conference, St. Malo, France, September 1998 (available from the Laboratory for Maritime Transport, National Technical University of Athens).  See, generally, Hetherington, C. and others, “Safety in Shipping: The human element”, Journal of Safety Research 37 (2006), 401-411.

[4] A distinction needs to be maintained between piracy and armed robbery for the purposes of  public international law, otherwise a country would be in danger of losing exclusive control of its territorial waters.  The ability of foreign warships to pursue pirates and tackle hijackings within Somalia’s territorial waters, derives from UN Security Council Resolution 1816 (2008) and its extensions.  The International Maritime Bureau has proposed a more extensive definition of piracy, in an effort to overcome certain anomalies.

[5] A point to bear in mind with published figures is that, for any of a number of reasons, not all attacks are reported.  Some estimates put the number of unsuccessful attacks that are not reported as high as 50 per cent globally, rising to perhaps 80 per cent for Nigeria.  These estimates includes incidents that under international law would be classed as armed robbery rather than piracy.  Moderate estimates put the proportion of unsuccessful attempts at hijacking by Somali pirates that are not reported, in the order of 20 to 25 per cent.  Among the reasons for non-reporting are fear that insurance premiums would otherwise be increased; and the belief that an owner’s image would be adversely affected if details were made public.  The main disadvantage of non-reporting is that the full extent of the problem is not recognised, and that consequently insufficient defensive resources are likely to be made available.

[6] Somali piracy is in effect run by criminal syndicates with backers, equivalent to shareholders, resident both within and outside the country.  It is run on a business basis and relies on the supply of arms, ammunition, skiffs, outboard engines, fuel, communications and location equipment, night-vision glasses, and all the paraphernalia that enables the pirates to operate so successfully many hundreds of miles from their homeland.  They have various intelligence methods and sources, they have their training programmes, and they operate a form of injury insurance.  They are virtually indistinguishable from many other business, save that they lack legitimacy.

[7] This is a main theme of the American administration’s policy towards piracy, and as a self-help measure is in accordance with a fundamental principle of risk management.

[8] Those practices are supported by many shipping industry representatives and by the United Kingdom’s Maritime Trade Organisation (“UKMTO”) office in Dubai; by EU NAVFOR’s Maritime Security Centre (Horn of Africa) (“MSCHOA”); and  by the US Maritime Liaison Office (“MARLO”) in Bahrain .

[9] Some of the issues involving armed private security guards are summarised in Bateman, S., “Riding Shotgun: Armed Security Guards onboard Merchant Ships”, S. Rajaratnam School of International Studies, Singapore.

[10] The IRTC runs approximately east to west, with westbound vessels using the northern part of the corridor, nearest to the southern coast of Yemen, and eastbound vessels using the southern portion.  Full details are shown on a non-navigational Chart Q6099, titled “Anti-Piracy Planning Chart—Red Sea, Gulf of Aden and Arabian Sea”, which has been available since June 2009 from the UK Hydrographic Office: http://www.ukho.gov.uk/. The chart is extremely useful as it also includes brief guidance for masters, and contact details for UKMTO, MSCHOA, and MARLO.  It would be sensible to have a copy on board every ship transiting those areas.  Despite what one might expect, vessels transiting the Gulf of Aden after registering with the naval authorities, and making daily progress reports, are generally not accompanied by warships in the same way that many Second World War convoys were escorted.  The distances involved, and the numbers of commercial vessels in the area, are simply too great for the available naval forces.  A convoy’s progress is monitored visually and on radar by warships patrolling, or stationed at intervals, along the IRTC.  Sometimes, special arrangements are made for particularly vulnerable vessels; but generally, vessels are grouped with others of similar speed, and dispatched in loose convoy formations, timed to converge at the danger time of dawn in the vicinity of naval units.  A potential drawback is that this produces a target-rich environment at that time.

[11] Communiqué of the 5^th Plenary Session, held in New York on 28 January 2010.

[12] House of Lords’ EU Committee Report: “Combating Somali Piracy: the EU’s Naval Operation Atalanta”, April 2010, Q177.  It is generally considered that in relation to the risk of boarding, a ship speed of 16 knots marks the boundary between relative vulnerability and relative safety, particularly if a fast-moving ship has a high freeboard and conducts evasion manoeuvres.  Effecting an opposed boarding becomes more difficult in slight to moderate seas, with winds at Beaufort Scale 3-4 (11-16 knots) producing a wave height of 1.0 to 1.5 metres.  In moderate seas, with winds at Beaufort Scale 4 (17-21 knots) producing a wave height of 2.0 to 2.5 metres, the difficulty of boarding is considerable.  So a case could be made out that ships capable of sailing at high speed have less need to keep within the IRTC, particularly in rough weather.  However, safety is a relative concept.  Keeping within the IRTC gives the best prospect of securing help, which even a high-speed ship would need in the event of a breakdown or a number of other eventualities.

[13] Recently, some crews have been so concerned about the risks of piracy that they have refused to sail, particularly in vessels whose owners appear to take inadequate precautions.  This echoes the state of affairs prevailing in the 19^th century before the systematic introduction of load lines.  In 1866, when it was illegal for seafarers to refuse to sail, four sets of crews, who had all refused to sail in a ship that was clearly unseaworthy, were prosecuted and imprisoned.

[14] Report of Contact Group on Piracy off the Coast of Somalia, Working Group 3, 2^nd Session, held in London on 18-19 March 2010.

[15] Figures provided by the International Transport Workers’ Federation for 2001 give the numbers of seafarers from the leading nations as: Philippines 490,000; Russia 95,000; Indonesia 80,000; Ukraine 70,000.

[16] A counter-piracy security plan, drawn up well in advance of a vessel reaching an area of danger, will inform a master and a ship’s security officer of exactly what action they should take to maximise the prospect of a safe outcome for ship and crew.  Among the initial steps to be taken will be sounding the alarm and a piracy alert message to warn all crew members; reporting the situation to the UKMTO Dubai naval co-ordination office; activating the Ship Security Alert System to notify the Company Security Officer and the flag state; ensuring that the AIS is active (so that response units will be guided to the location); making a Mayday call on VHF Channel 16 (with Channel 08 as a backup, which naval units also monitor); sending a distress message through either the Digital Selective Calling system or Immarsat-C; and speaking with UKMTO by telephone, to explain the situation in more detail and to determine what response is available, and whether the vessel should alter course.

[17] The UN Contact Group on Piracy off the Coast of Somalia, Working Group 2.

[18] The author apologises for the proliferation of acronyms in this paragraph.

[19] Given the practice of some owners to change their flag states for tax and indeed regulations reasons, the ideal form of a standard against piracy would be a universal one, similar to the SOLAS regime.

[20] An extensive, but not exhaustive, range of defensive measures was set out in the current author’s article “The Paradox of Modern-day Piracy off Somalia: The dangers, and how to reduce them”, available at www.hfw.com  under the heading Piracy, within the sector Shipping.  See also the Best Management Practices and OCIMF’s guide,  referred to above.

[21] This is a commonsense concept, and is not an attempt to summarise the legal principle of seaworthiness—treatment of which would add considerably to the length of this article.

© Copyright John Knott, 2010.

The author is a consultant at the London head office of Holman Fenwick Willan LLP, who have been instructed in relation to over 40 hijackings off Somalia, in addition to similar incidents elsewhere.  This article, which does not represent legal advice, is republished here with permission.

In the last few weeks there has been a feeling that the international naval forces deployed in the Gulf of Aden and Indian Ocean have been having a real impact on piracy.  EUNAV recently reported on the work of the frigate Dutch HNLMS TROMP during the period from 14^th to 19th March, in which time she disrupted four separate pirate action groups in a large area of the Indian Ocean and bagged a fifth on her way to refuel.

EUNAV announced on the 22^nd March that, “Last week’s operations, with five pirate action groups (PAGs) disrupted, have shown the success of this strategy. TROMP’s impressive haul includes the destruction of several mother ships and skiffs, small boats used by pirates, as well as the confiscation of weapons and ammunition and the gathering of intelligence. A total of thirty one suspects were detained before being released with sufficient fuel and water to reach safety.” A few days earlier, on the 12^th March, EUNAV had also reported on the work of the German warship FGS EMDEN in intercepting a suspect pirate group consisting of a mother ship and two skiffs.

We have seen hopes rise before, although U.S. Rear Admiral Scott Sanders must be still regretting his words uttered before the end of the 2009 summer monsoon: “People are acting differently, behaving differently, than they were just six months ago.”

However, it became obvious as a result of the attacks during the last 48 hours that Somali piracy is not a spent force and that the large financial rewards are encouraging more and more Somalis to risk their lives at sea in pursue of merchant vessels.

On the 22^nd March a tanker, which we believe is Liberian-flagged and a German-managed Aframax, was attacked about 125 nautical miles SSE of Salalah mid-afternoon local time, the master and crew were able to successful beat off the attack. The following day, on the morning of the March 23^rd, the Maltese-flagged and Turkish owned bulk carrier the MV Frigia, 35,000 dwt was hijacked just over 500 nautical miles off the coast of India.  She was proceeding east and had passed the Gulf of Aden in a convoy escorted by the Turkish frigates the Gediz and Gelibolu, the hijacking took place one and a half days after she left the convey. The Frigia was en route to Thailand from Port Said in Egypt with a cargo of fertilizer, her crew consists of 19 Turkish and 2 Ukrainian sailors. An EUNAV official has expressed concerns that the fertilizer could be used to create explosive devices.

A few hours later a fishing vessel was attacked off the coast of Somalia, near El Dere, around noon local time. Half an hour later an unidentified vessel was reported as having been hijacked just over 300 nautical miles due east of Dar Es Salaam, this vessel may be a tug. However, there is confusion. There is also a report by EUNAV that the UAE-owned and Panama-flagged MV Almezzan successfully beat off an attack early in the morning 60 miles south of Haradere, Somalia. The MV Almezzan was previously hijacked on the  7^th November 2009, when it was claimed by some that had been carrying arms for al-Shabaab; the ship is a regular visitor to Somali waters.

Then around mid-afternoon local time another attack took place off the coast of Oman, around 150 nautical miles east of Salalah, probably by the group that had attacked the tanker about 24 hours earlier. But then the pirates (although another group) rounded off their day by hijacking the MV Talca 180 nautical miles south of Mazera Island in eastern Oman. The 11,055 dwt MV Talca is a refrigerated cargo vessel, Bermuda-flagged and British Virgin Island owned, and has a crew of 23 Sri Lankans, 1 Filipino and a Syrian. She was en route to Bushehr in Iran from Sokhna in Egypt and, like the Frigia, had passed through the International Recommended Transit Corridor.

The morale of this story is that Somali piracy is not dead, that as one group of pirates is arrested, only to be released minus their weapons, another group takes their place. There are now thousands of Somalis ready to risk all and merchant ships are now at risk all the way to the coast of India, and the east coast of Oman, not to mention in the Mozambique Channel, far outside the area that the international naval forces are able to protect.

The only effective response is for merchant ships to become more resilient and to rely on their own resources, not depend on naval forces. A message that Idarat Maritime have been repeating for over a year. In our opinion it is possible for merchant ships to defend themselves effectively without the use of armed guards.

by John Knott, of Holman Fenwick Willan LLP

The judgment of Mr Justice Steel, delivered in the English Commercial Court on 18 February 2010 in Masefield AG v. Amlin Corporate Member Ltd, [2010] EWHC 280 (Comm), resolved an issue between the parties as to whether or not the hijacking of the tanker Bunga Melati Dua by Somali pirates justified a claim under an open cover marine insurance policy for the total loss of cargo, alternatively its constructive total loss, notwithstanding that the cargo was eventually recovered.  In the course of his judgment the learned judge made a number of observations that will be of interest to anyone having to deal with legal or insurance issues arising from a ship hijacking.

The Hijacking

The chemical/palm oil tanker Bunga Melati Dua was hijacked in the Gulf of Aden on 19 August 2008, while on passage from Sumatra to Rotterdam.  During the attack one of the 39-member crew (29 Malaysians and 10 Filipinos) was killed.  The owners negotiated a ransom payment and the vessel, the remaining crew, and the cargo were released on 29 September, six weeks after capture.

The Claim

The claimants were the owners of two parcels of bio-diesel, with a declared value of over US$13 million, which had been shipped onboard the vessel.  The defendants were their insurers.  Masefield’s primary claim was for an actual total loss (“ATL”) in the sum of US$7 million, representing their net loss after giving credit for the proceeds from the disposal of the recovered cargo at Rotterdam.  The claimants asserted that an ATL occurred when the vessel was hijacked because, in terms of s57(1) of the Marine Insurance Act 1906, they had been “irretrievably deprived” of the cargo, notwithstanding its ultimate recovery.  In the alternative, Masefield claimed on the basis of a constructive total loss (“CTL”) within the terms of s60(1) of the 1906 Act, contending that the cargo had been reasonably abandoned because its actual loss appeared to be unavoidable.

Insurance Cover and Exclusions

The all risks insurance policy contained a war risks exclusion for “loss, damage or expense caused by … capture, seizure, arrest restraint or detainment (piracy excepted), and the consequences thereof or any attempt thereat.”  A further clause avoided cover for a CTL except where “the subject-matter insured is reasonably abandoned either on account of its actual loss appearing to be unavoidable or because the cost of recovering, reconditioning and forwarding the subject-matter to the destination to which it is insured would exceed its value on arrival.”

Main Issue

The main issue was whether, on 18 September 2008, when the claimants served notice of abandonment, they had been “irretrievably deprived” of the cargo—regardless of the fact that they recovered it after the shipowners paid a ransom.  At first sight, given that the claimants did later recover the cargo, this may seem to be a rather startling proposition.  To support it, the claimants sought to rely on a statement made by Mr Justice Rix in Kuwait Airways v Kuwait Insurance [1996] 1 Lloyd’s Rep. 664, approving a mid-19^th century decision dealing with the effect of capture of a merchant vessel by pirates, the vessel subsequently being recaptured by an English warship and treated as a prize ship in proceedings in the Admiralty Court.  Rix J had said:

“In case of capture, because the intent is from the first to take dominion over a ship, there is an actual total loss straightaway, even though there later be a recovery: see Dean v. Hornby, (1854) 3 El. & Bl. 179 (a case of piratical seizure).”

The Court’s Finding

Steel J, however, considered that this statement could not be regarded as being of universal application.  In his view, there was a fallacy in the claimants’ reliance on it, because the impact and the fact of a capture was very fact sensitive; and whereas in Dean v. Hornby title to the captured vessel passed lawfully when she became a prize ship, title to Bunga Melati Dua had not passed to the Somali pirates: they merely acquired unlawful possession of the ship.  Quite apart from that, Steel J considered that the claim in Dean v. Hornby had really been not for an ATL, but for a CTL.  And in the present case he held that there had not been a CTL, as the cargo had not been abandoned within the meaning of s60 of the Marine Insurance Act, because “the shipowners and the cargo owners had every intention of recovering their property and were fully hopeful of doing so.”  As, in light of the history of Somali hijackings, they had good reason to believe that they would be successful in achieving a recovery, there was no reasonable basis for considering that an ATL was unavoidable.

Public Policy in relation to Ransom Payments

The claimants had a further argument, which was that the recovery of the Bunga Melati Dua and its cargo by the payment of a ransom should be ignored, because the payment of the ransom, although not illegal under English law, was, in the claimants’ submission, contrary to public policy.  This, they contended, had a bearing on whether the ship and cargo should be treated as “irretrievable” in practice.

On this issue, Steel J followed the approach in Fender v. St John Mildmay [1938] AC 1, where Lord Atkin had said:

“The doctrine [of public policy] should only be invoked in clear cases in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds.”

Among the reasons why Steel J was persuaded that payment of the ransom was an appropriate action for the shipowners to take, were that a payment was not illegal, and that, although payment would encourage further hijackings—particularly where there was insurance cover—there was no other feasible method available to the shipowners to take the crew out of harm’s way.  In the circumstances, the learned judge felt that there was no clear and urgent reason for categorising the activity as contrary to public policy.  He also pointed out that a contrary finding would have a catastrophic effect upon the kidnap and ransom insurance market.

Duty to Pay a Ransom

Steel J dismissed a further argument by the claimants, who sought in the alternative to have the payment disregarded on the ground that they were not under a duty to pay a ransom.  The learned judge considered the argument to be misconceived, and that the existence or otherwise of a duty was irrelevant.  The real issue was whether a payment would or might lead to a recovery.  And a related consideration was that the amount paid was in fact reasonable, given that it represented only a small proportion of the value of the property.

Sue and Labour

In the course of his judgment, Steel J noted that a ransom payment was in principle recoverable as a sue and labour expense by reason of the decision in Royal Boskalis Westminster NV v. Mountain [1999] QB 674, where the majority of the Court of Appeal approved the view to that effect expressed in Arnould: The Law of Marine Insurance.

Conclusion

The learned judge’s robust approach to the issues in the case will give welcome reassurance to shipowners faced with the appalling situation of having a vessel attacked and captured, and their crew held hostage.

Additionally, Steel J’s observation that a shipowner has virtually no option but to pay a ransom to take his crew out of harm’s way is sound common sense, and comes as a refreshing change from the increasingly strong vocal stance taken by the American administration against the payment of ransoms to pirates, and the concern expressed by the United Nations Security Council in its Resolution 1897 passed in December 2009.  As shown in an earlier article, the payment of a ransom is not in itself illegal under English law, and concerns about money laundering and supporting terrorism by making such payments to Somali pirates, do not stand up to careful analysis.    

© Copyright John Knott, 2010

The author is a consultant at the London head office of Holman Fenwick Willan LLP, who have been instructed in relation to over 40 of the commercial vessel hijackings that have occurred off Somalia since 2008, in addition to similar incidents elsewhere.

This article, which does not constitute legal advice, is republished here with permission.

Matthew Bannister, on the BBC World Service, interviewed Peter Stapleton, the English captain of a British container ship, the Boularibank, crewed by Russians, that fought off Somali pirates in the Gulf of Aden last year (see below to listen).

This is a fascinating account of a pirate attack in the Gulf of Aden told in great detail by a Master who remained calm and in control during the whole incident. Captain Stapleton has been awarded the Merchant Navy Medal for his bravery.

The Russian destroyer Admiral Panteleyev, was alerted to the position of the pirates’ mothership by a mayday call from the Boularibank and made 29 arrests of pirates and sunk the mothership.

IML Comments:

This interview highlights the need for effective training and anti-piracy drills, we also believe that more effective non-lethal defensive equipment is essential, and that relying on improvised defences such as timber baulks may put the crew at unreasonable risk. Although we believe that Captain Stapleton obviously made the best use of the resources available to him.

We also do not advise using the bridge as a protected area for the crew and passengers, especially where there is no anti-blast protection, or bullet-proof glass (ship-hardening). IML also believes that crew should never be exposed to gunfire by going onto the decks while the vessel is under-fire. Finally we support the UK MCA’s view that armed guards have no place onboard normal merchant vessels.

The ransoming of the MV Maran Centaurus on the 18^th January 2010 has seen a new record set for the award paid to Somali pirates for the release of a ship and its crew. The ease with which this vessel was hijacked, and the relative lack of interest shown by the world’s media in its hijacking, illustrates with force the extent to which the taking of a super-tanker on the high seas has become almost a normal event, in contrast to the interest that was generated only a year ago by the hijacking of the Sirius Star.

On the 29^th November 2009 the Greek-flagged VLCC was boarded by Somali pirates 570 nautical miles NE of the Seychelles. This huge 299,900 dwt vessel, 1,090 foot long (330 metres), has 28 crew.

The Maran Centaurus left Mina Al Ahmadi in Kuwait en route for the Louisiana Offshore Oil Port, in the Gulf of Mexico, the United States. On the evening of the 24^th November it headed into the Straits of Homuz, passing the United Arab Emirates and less than five days later it was hijacked. On board the Maran Centaurus carried nearly two million barrels of crude oil, worth at then current market price of about $75 a barrel, over US$150 million. By the 2nd December the tanker was anchored 30 nautical miles south of Hobyo, Somalia and it remained on the Somali coast until it was released 47 days later, on the 18^th January 2010.

The Maran Centaurus, owned by Maran Tankers Management Inc., was only the second VLCC to be hijacked, the first being the Sirius Star, owned by Vela International, which was taken on the 15^th November 2008, 450 nautical miles southeast of the Kenyan coast; it was released after 55 days, on the 9^th January 2009. The ransom, reported to be $3 million, was dropped by parachute onto the deck of the Sirius Star.

There is some dispute about the amount of the ransom actually dropped on to the deck of the Maran Centaurus, Reuters says that it was between $5 to $7 million, we believe that it was nearer the lower end of that estimate, probably $5.5 million, but this is still the largest ransom ever paid to the Somali pirates and leaves open the question as to whether additional sums were paid to the pirates’ organizers, via more conventional routes, and of course the sizeable payments to hostage negotiators and lawyers. Ecoterra International, a Somali group based in Kenya which has good links with the pirates claims that the ransom was over $7 million in cash and that another $2 million was transferred via the banking system, a total of $9 million. Although Ecoterra often have information that other Sites lack there is no way of checking this information and IML thinks that their figure for the cash is too high.

In Haradheere, on the coast of Somalia, the size of the ransom created tension even before it was delivered. Reuters reported that rival pirate gangs fired shots at each other on the 17^th January in a dispute over how to split the ransom.  The pirates who had hijacked the vessel, who come from Puntland, refused to share the ransom with gangs from Haradheere, where the vessel was moored. However, the Maran Centaurus was under the control of gunmen from Haradheere, not the original hijackers. The Puntland gangs threatened to set the tanker ablaze if they were cut out of the deal. Their rivals countered this and the Puntland gang was outnumbered, when hundreds of well-armed pirates from Haradheere boarded the ship. After the pirates announced that they had resolved their problems an aircraft dropped the ransom onto the ship on the 17^th January. The arguments have, however, not been completely resolved, it is reported that two pirates were killed in a gun battle with a rival gang, as they returned to the shore from the Maran Centaurus. In addition Reuters were told that four pirates were killed and three others injured ashore, when one group attacked another one on the evening of the 18^th January, because they had not yet had their share of the ransom. It was reported that piracy financiers were also involved in the fighting. At the time of writing the ransom was reported to still be held in a heavily guarded house in Haradheere. There was great tension in the town while the gangs waited for the sharing of the loot.

It is clear that the operation to drop the ransom money was not straightforward. The Puntland pirates put on a display of force on the 17th January and their skiffs approached the Maran Centaurus, at this point in a totally biazarre move the pirates onboard the tanker called for assistance from the international anti-piracy force. It is reported that two helicopters from an international warship (probably from the Greek warship FS Salamis, which was in the area) hovered over attacking skiffs using the downdraft from their rotors to frighten off  the attackers, but did not open fire. It is said that the Puntland pirates had threatened to set fire to the ship, although this threat seems to have been merely a negotiating tactic, rather than a statement of intent.  After this incident two aircraft appeared overhead and the  enormous ransom in cash was parachuted out of one of them.

We can expect further reports of intra-pirate conflict over the next few days, but this does highlight the difficulties faced by owners and their agents in negotiating ransom payments for their ships. It is difficult enough trying to ensure that crews are safe and that they are removed from Somalia without delay, but when owners have to deal with two, or more, conflicting groups, this makes a bad situation even worse.

There was some confusion when the Sirius Star was freed, five of the pirates were reported to have drowned after their small boat capsized in a storm after leaving the Sirius Star with their share of the ransom. The situation around the Maran Centaurus is unprecedented, an armed stand-off by two pirate groups and threats to the vessel of this type, are a new phenomena and don’t auger well for the future. If the tanks of the ship had been beached the two million barrels of crude inside would have represented an environmental disaster on a vast scale, which would have destroyed ecosystems and fisheries along the Somalia coast, with no prospect of any help to clean up the coast.

IML believes that it vital that shipowners do all they can to avoid hijacks by making their vessels resilient. This means training the crews, and carrying effective equipment to deny attacks and to give sufficient advance warnings of possible attacks. It is not our job to criticize the performance of companies and their Masters, but we do believe that many are not given the training and tools that they need.

The International Maritime Bureau (IMB) said that there were 406 reported incidents of piracy and high seas armed robbery pirate attacks on the high seas during 2009, the highest level in six years and that attacks were becoming more frequent and violent. The figure for 2008 was 293. As IML have said before, the current deployment of international naval vessels in the Gulf of Aden is not in itself sufficient to stop, or even deter, piracy. The enormous rewards, which have attracted a growing number of pirates to risk all at sea, means that there is no sign of an abatement in piracy activity in 2010. In fact on current trends we expect 2010 to be another record year for piracy, a fact that may cause celebration in Somalia, but can only be a cause for grave concern for ships’ crews and shipowners.

FINALLY….

Maran Tankers Management Inc., owner of the Maran Centaurus said in a statement from Athens it was “delighted” the ship, its crew and cargo had been freed. They added, “Maran Tankers Management Inc. will not be releasing any details of the talks which led to the release of the vessel, as they do not wish to provide any information which might in any way encourage further criminal acts of this kind.”

The Maran Centaurus is now en route to Durban in South Africa, with its full cargo of oil.