Piracy off the coast of Somalia
On 15 October Holman Fenwick Willan held a seminar centred on the increasing concern within the shipping and insurance industries about the hijacking of vessels and the kidnapping of crews, particularly off the coast of Somalia. Speakers gave valuable insights into the strict legal positions of parties affected by hijackings, and what practical remedies and solutions are available. Click here to see a post-event interview with James Gosling or alternatively, look at the recent article by John Knott and Toby Stephens.
This blog is designed to facilitate discussion on the topic of piracy, and to find solutions. We would be interested to hear your views.
Welcome to HFW’s piracy blog!
We look forward to reading your comments. Please remember this is a moderated forum, so your comment will not immediately appear.
You may be interested in reading John Knott and Toby Stephen’s recent article Piracy and Terrorism at Sea on our website.
Posted on November 12th, 2008 at 2:10 pm byJust been asked by a member who has ships transiting the Gulf of Aden corridor on a regular basis whether (a) they would be advised to use a private securty firm and (b) if so, who they should contact. The company they have been steered towards is based in Seoul and is called Shield Consulting Co.
My initial instinct is that if the deployed task force cannot protect them, there may not be much a private firm can do (apart from encourage an escalation in the level of hostile measures taken against them). But, out of interest, I wonder what the general view is on this and, in particular, what is the considered view on Shield and the like.
Posted on November 12th, 2008 at 3:39 pm byAnswering this one back to front, (b) don’t know a thing about Shield and (a) is a bit more complicated.
(b)
It’s not that naval vessels cannot protect ships - they can if they so choose. The best evidence of that is the World Food Programme. Not a single WFP chartered vessel has ever come under attack - despite calling at Mog and Merca in Somalia - while it has a naval escort.
Naval vessels of CTF 150 don’t routinely escort shipping because there is a lot of Gulf of Aden and comparatively few ships. About six CTF 150 ships dedicated but up to 18 or 20 from time to time. Their primary mission is counter terrorism, not counter piracy. Plus they have other work to do, such as counter-narcotics and counter-human trafficking.
To secure the Maritime Security Patrol Area - about 500 miles long - would need one naval ship to be put within the visual range of a pirate, which is about five miles from skiff-level. That means commanders would have to put one ship every ten miles, plus extra vessels for rotation out of line, attending to miscellaneous duties, extra ships to cover gaps in the event of a diversion and so on. Commanders would need somewhere in the region of 60 to 75 warships. It ain’t going to happen.
Of course, and I do want to emphasise this, naval vessels from the Combined Maritime Forces and, no doubt, also NATO will respond to any distress call they receive. It’s just that they will likely be way too far away to render practical assistance. I was aboard a naval warship when the Bunga Melati Dua was hijacked. We were about 150 to 160 n-miles away, if I remember rightly. By the time we turned the ship around, the hijackers were onboard and, from that point on, it’s a hostage situation that needs the deployment of special forces to resolve it - if it is to be resolved by force at all. (Private security companies will invariably tell you to just pay the ransom).
As for private security - it depends. There’s a lot that can be done. Analysis by the Office of Naval Intelligence (US) is revealing. No ship that travels at 16 knots or faster has been successfully hijacked. No ship, bar one, that transits Aden during darkness has been hijacked. The one that did was hijacked during a full, and very bright, moon. Ships that conduct ziz-zag manoeuvers are more difficult to board owing to the wake and swell (I can confirm this - I saw this with my own eyes during a research trip to the Gulf of Aden and I saw a Canadian Marine being swept into the sea during a boarding operation. I was about two feet away from her).
Security teams will be able to tell suspicious approaches, operate advanced counter-boarding devices (such as the super-bright lights, acoustic disabling devices), even down to simple measures such as installing barbed wire and greasing up handholds.
There is a huge amount that can be done by the crew to defend itself under the guidance of a knowledgable, expert eye, that would prevent pirates from getting onboard. It seems to me that employing security teams is a sensible precaution. The other options are to deviate around the Cape or do nothing at all.
I’d be curious to hear from a lawyer what the legal ramifications are of ‘doing nothing’ yet transiting across the Gulf. Is there a duty of care to protect crew against pirates and, if so, would doing nothing be in breach of it? Could crew claim in negligence against the owner/operator for ‘nervous shock’?
Posted on November 13th, 2008 at 12:59 pm byRecently, there have been calls from senior officers in the Royal Navy and the US Navy for merchant vessels to contribute towards their own safety in the Gulf of Aden by hiring armed guards. As Nick Milner points out, however, a potential drawback is the likelihood of escalation of a conflict, with increased risks for a vessel and its crew. Other considerations are compliance with the law of a vessel’s flag, and the laws applying in the countries where cargo is loaded and discharged, regarding the carrying of firearms.
Our own view is that there are better ways of trying to avoid hijacking, for example (where it is safe to do so) by increasing speed, making aggressive manoeuvres, the use of fire-hoses etc. These actions have proved effective in many situations. Some other measures are mentioned in our article. We regret that we are not able to comment on the suitability of specific ship-board security companies.
Posted on November 13th, 2008 at 1:18 pm byIt is interesting to see the Royal Navy’s change in policy towards the Somali pirates as reported on the front page of the Times and in Lloyd’s List today.
Posted on November 13th, 2008 at 1:32 pm byPer Gullestrup - Managing Director/C.E.O. Clipper Projects.
We had our CEC Future hijacked on friday the 7th and have since then been actively involved in trying to push for an immediate solution to this problem. It is clear, from our findings so far, that the current patrolling is not effective, evidenced by the fact that 4 vessels have been hi-jacked during a 7 day period. There are so many small crafts observed in the area and it is clear that they are well organised and only attack when at a perceived safe distance from navy vessels.
Also it is clear, as pointed out, that vessels travelling at speed in excess of 16 knots are not high risk targets, thus Im sure if we analyse the vessels passing through on a daily basis, then its probably less than 50 pct that are in the high risk range.
We believe that the most effective immediate solution is escort by navy vessels.
There are plenty of assets in the area and even if we could only get an escort, say 2 - 3 times a weeks, each direction, then that would be a lot better than what have today. Owners will be able to adjust speed to meet the slot times, thus it should be relatively cost effective.
We succeeded earlier on this week in obtaining Russian naval escort of our CEC Commander, the report from our master was very positive and it was evident that no small craft would venture close to the vessel. He actually reported arms fire and hijacking attempt 20 miles behind him. Towards the end of the escort he had company by Stena Provence.
Next week we will join a French convoy through the area, however this service is only offered infrequently.
We will continue to lobby for naval escorts.
Our vessels are generally small and with low freeboard and thus high risk.
If we can not get protection by the international community, then we will seriously consider putting armed guards on board during transit, to ensure the safety of our crews. It is obviously a risky proposition, however we do believe that we clear rules of engagement and by using reputable security firms, then this is a viable alternative, while the international community continues to talk.
Flag state needs to be consulted and approve.
Our insurance company has no objections, we are actually being somewhat encouraged….
Best regards
Per Gullestrup
Posted on November 15th, 2008 at 5:19 pm bydear all,
i am preparing this presentation (piracy, etc , insurance trends) for the forum in london on the 3rd december. It will be a pity that James Gosling cannot attend due to other commitments. Anyway, I am curious from the point of view of a c/p whereby the charterers are responsible for directing the vessel to safe ports/ safe berths. Will they according to that clause be held responsible for all expenses, costs,etc in case of piracy??? (I understand that hire will remain to be payable, since piracy does not triggered the off hire clause, but then this is anotehr issue…)
Posted on November 20th, 2008 at 12:25 pm byWithout a doubt the situation is not getting any better but only worse. We are receiving more and more calls every day from Owners and Operators requring both legal and practical advice.
Per Gullestrup and Nick Milner make very good comments. the convoy solution is working - the problem not enough convoys not available for every transit. While there are steps that can be taken as identified in some of these posts there remain a serious risk to shipping as clear from the number of attacks, attempted attacks and actual detentions that have taken place.
As to the questions raised about off hire and the right to proceed via the Cape there is no automatic or single answer. Each case has to be reviewed on its merits and the slightest change of wording in a contract can make a real difference. Now some may say that a lawyer will always say this - looking for that extra instruction - but in this case it can not be stressed enough that the legal position in any particular case will turn on the actual facts of that case.
We wonder whether owners are lobbying their flag states and governments on the issue and what if any responses they have received ?
Posted on November 26th, 2008 at 5:26 pm byHolman Fenwick Willan piracy expert James Gosling comments on the Somali situation in the Financial Times today (’Legal flaws hinder fight against piracy‘).
Posted on December 2nd, 2008 at 10:05 am byThe following is an excerpt from my posting on the Capital Link Shipping blog re piracy and the potentially salutory impact of ineffecient ship routings to another problem facing shipowners- the very weak freight markets. I have taken out the parts that deviate from the economic aspects.
Here is the excerpt from my posting, which in turn quotes communications I had with another blogger from the well known Huffington Post on maritime piracy:
QUOTE
For this of you interested in how container and tanker markets could be helped by anti-piracy measures, the following are excerpts from my communications with Huffington’s blogger Keith Thomson.
One interesting paradox- the shipping markets went to hell and a handbasket in the second half of 2008, due to over-building and recession- standard supply / demand stuff complicated by the credit crisis. In the container and tanker sectors, a few owners have announced that they will lengthen their voyages to avoid the Red Sea/ Aden/ Horn of Africa area. The most notable is Maersk, a huge container shipping company, which will now handle its Europe / Asia trade (a big big run) by going the long way around the bottom of Africa. This solution avoids the pirates (solving one problem,
sort of) and helps solve the problem of industry overcapacity by creating inefficient voyages, ie not the quickest routing. If more shipowners did this, we could restore the market equilibriums.
Nearly any thinking person in the maritime biz has “solutions”, so here is mine- which approaches the suggestions you made regarding privateers. You have a number of industry associations, very well meaning, lobbying the U.N. to “do something”……. But the associations…could organize convoys of vessels, a practice which is already happening. It is slightly inefficient (though not like going 5000 miles out of the way) and therefore beneficial to the shipping markets if the vessels take time to group and regroup in the convoys…. The associations could further… organize a billing system so that the charterers, the folks with the cargo, would pay for escorts. And, if charterers/ cargo interests balk at paying, they can be called out on the internet and in very public forums.
Posted on December 12th, 2008 at 10:03 pm byUNQUOTE