and justice for all? an analysis of a shipowner's duty of care in armed robbery and piracy...

Journal of Maritime Law & Commerce, Vol. 47, No. 4, October, 2016

501

. . . And Justice for All? An Analysis of a Shipowner’s Duty of Care in Piracy and

Armed Robbery Attacks

Megen Gold *

I INTRODUCTION

Picture this: a tanker fully laden with oil navigates the Gulf of Guinea off the West Coast of Africa. Suddenly, gunshots fire upon the bridge and armed robbers board the vessel, taking crew, officers, and engineers hostage. The armed robbers steal the oil by siphoning it onto another ship or tanks on land to be sold in the black market. The armed robbers kidnap the seafarers and hold them hostage on shore until the shipowner meets the armed robbers’ ransom demands.1 During the attack, the armed robbers physically harm the seafarers who consequently suffer injury and Post-Traumatic Stress Disorder. This picture represents an all-too-common and troubling problem in the shipping industry.2

--------------------

*LL.M. Maritime Law, University of Southampton 2016 (pending); J.D.,

Admiralty & Maritime Law Certificate, Tulane University Law School 2015. The

author may be reached at [email protected]. 1Max Bearak, Falling oil prices spark a rise in kidnappings by West African

pirates (THE WASHINGTON POST, 10 May 2016) <https://www.washingtonpost.com/

news/worldviews/wp/2016/05/10/falling-oil-prices-spark-a-rise-in-kidnappings-by-west-

african-pirates/> accessed 14 July 2016. 2London and Kuala Lumpur, IMB: Maritime piracy hotspots persist worldwide

despite reductions in key areas (International Chamber of Commerce, 02 February

2016) <http://www.iccwbo.org/News/Articles/2016/IMB-Maritime-piracy-hotspots-

persist-worldwide-despite-reductions-in-key-areas/> accessed 14 July 2016; 44

Seafarers Captured as Violence Rises in West Africa (World Maritime News, 27 April

2016) <http://worldmaritimenews.com/archives/190155/44-seafarers-captured-as-

violence-rises-in-west-africa/> accessed 14 July 2016; Pirate attack on a Suezmax indicates possible ‘change of tactic’ in the Gulf of Guinea (Humans at Sea, 09 July

502 Journal of Maritime Law & Commerce Vol. 47, No. 4

Although armed robbery attacks3 in Somalia have drastically decreased due to aggressive efforts by Navies and European Union-task forces patrolling the area and arming vessels with guards, attacks have increased in West Africa and Southeast Asia.4

The above scenario, which will be referred to in this article as ‘Scenario 1,’ raises multiple legal issues, particularly in tort law. The first question: can a seafarer bring a cause of action under the tort of negligence against the shipowner for physical injury and psychiatric illness inflicted by the armed robbers?5 If so, the next question becomes: does the shipowner owe a duty of care to the seafarers to: first, warn them of the voyage through known violent waters; second, take all reasonable steps necessary to prevent an attack, such as training the crew, hiring armed guards, and equipping the vessel with other anti-piracy mechanisms and surveillance; third, deviate from the prescribed route to a safer route; fourth, if the attackers successfully hijack the vessel and kidnap the seafarers, take all reasonable steps necessary to rescue the seafarers, such as paying ransom and repatriating the

--------------------

2016) <http://humansatsea.com/2016/07/09/pirate-attack-suezmax-indicates-possible-

change-tactics-gulf-guinea/> accessed 14 July 2016; Sam Chambers, Three taken hostage in the Celebes Sea (SPLASH 24/7, 11 July 2016) <http://splash247.com/three-

taken-hostage-in-the-celebes-sea/> accessed 14 July 2016. 3This article will utilize the United Nations Convention on the Law of the Sea

1982 (‘UNCLOS’) definition of piracy and armed robbery in Article 101 and

Resolution A.1025(26) (Annex, paragraph 2.2), specifically that ‘piracy’ takes place on

the high seas and ‘armed robbery’ takes place within a State’s internal waters,

archipelagic waters and territorial seas. 4S.C.S., What happened to Somalia’s pirates? (THE ECONOMIST, 19 May 2013)

<http://www.economist.com/blogs/economist-explains/2013/05/economist-explains-11>

accessed 14 July 2016; Max Bearak, Falling oil prices spark a rise in kidnappings by West African pirates (THE WASHINGTON POST, 10 May 2016)

<https://www.washingtonpost.com/news/worldviews/wp/2016/05/10/falling-oil-prices-

spark-a-rise-in-kidnappings-by-west-african-pirates/> accessed 14 July 2016; MI News

Network, Crew Kidnapping on the Rise in Gulf of Guinea – Dryad Maritime Report (MARINE INSIGHT, 2 August 2016 <http://www.marineinsight.com/shipping-

news/crew-kidnapping-rise-gulf-guinea-dryad-maritime-report/> accessed 3 August

2016. 5‘Shipowner’ includes bareboat charterer for the purposes of this article.

October 2016 Crew Claims and Piracy 503

503

seafarers; or fifth, pay the seafarers compensation for personal injury committed by the attackers?

Generally, seafarers would claim compensation as a contractual remedy under the employment contract and collective bargaining agreement.6 Such agreements, however, may not account for piracy, armed robbery attacks or hostage situations and may not stipulate the shipowner’s duty of care before, during and after an attack. Common law countries, particularly the United States of America and the United Kingdom, require four elements for the tort of negligence, stated broadly: (1) duty of care; (2) breach of that duty; (3) that breach caused damages; and (4) injury resulted. The duty of reasonable care between employer and employee represents well-established law. However, the extent of that duty of care in relation to Scenario 1 remains unclear. Whether a seafarer can claim from a shipowner in tort law following an armed robbery or piracy incident represents an important issue for several reasons. First, such attacks, unfortunately, remain ubiquitous and prevalent. Second, seafarers should be aware of their rights and shipowners’ duties and non-duties. Third, shipowners should be aware of their responsibilities and liabilities, particularly with respect to the type of insurance policies they must obtain. This article examines a shipowner’s duty of care owed to employed seafarers against the background of volatile armed robbery and piracy ‘businesses’ around the world. Although decreasing in certain well-known areas, armed robbery and piracy attacks have increased in previously innocuous areas. As such, these attacks remain a crucial problem begging for resolution and creating significant uncertainty in these troubled waters of the law. Seeking justice for all, this article endeavours to provide clarity regarding a shipowner’s duty of care and advocates for increased certainty in a legal system still plagued by armed robbers and pirates.

The following chapter of this article will examine the extent of the shipowner’s duty of care, taking into account various national

-------------------- 6Introductory guide to P&I Cover (UK P&I CLUB) <http://www.ukpandi.com/

about-us/rules-cover/introductory-guide-to-pi-cover/> accessed 14 July 2016.


laws generally, in addition to international law and guidelines for shipowners in armed robbery and piracy situations. The third chapter will analyse the extent of the shipowner’s duty of care as a whole, providing suggestions and potential solutions to this legal and moral uncertainty.

II EXTENT OF THE SHIPOWNER’S DUTY OF CARE

A. The Law in General Regarding the Extent of the Duty of Care

To claim under the tort of negligence, the seafarer in Scenario 1 must look specifically to his jurisdiction’s laws, as there exist certain nuances in every country. The extent of the duty of care under the tort of negligence may be examined more generally. In the case of Scenario 1, the following questions arise, whether a shipowner owes the duties to: train the seafarers for piracy attacks; warn the seafarers of the potential for attacks; hire armed guards; equip the vessel with anti-piracy equipment and surveillance; deviate from the prescribed route; repatriate the seafarers; or pay ransom for the release of the seafarers.

The English courts have examined whether a master has a duty to deviate from the commanded route, and have held that a master may deviate from the prescribed route for the purpose of saving life.7 However, the master typically is not the shipowner and therefore, the shipowner possesses no control over the master’s decision to deviate or not.

Likewise, in a typical carriage of goods by sea case, the charterer gives orders to the shipowner regarding the ultimate port and route for the voyage so the shipowner has no control in this respect either. Nevertheless, the shipowner may refuse to follow a charterer’s orders regarding the route to take in certain situations.8

-------------------- 7Dunkan v. Koster (The Teutonia) (1871-73) L.R. 4 P.C. 171 (Judicial

Committee); Scaramanga & Co. v. Stamp and Another (1880) 5 C.P.D. 295 (CA). 8Pacific Basin v. Bulkhandling Handymax (The Triton Lark) [2012] 1 L.R. 151

(Comm); Taokas Navigation SA v. Solym Carriers Ltd. (The Paiwan Wisdom) [2012]

2 L.R. 416 (Comm).


505

For example, in The Triton Lark, the disponent owner of the vessel refused the charterer’s order to proceed through the Gulf of Aden due to the risk of pirate attacks, and instead proceeded around the Cape of Good Hope.9 The issue before the court in that case turned on the construction of the charter party clause allowing the shipowner to refuse orders if the vessel had a real likelihood, at the reasonable judgment of the shipowner, of being exposed to war risks.10 ‘War risks’ in the clause included acts of piracy which may be dangerous to the crew on the vessel.11 The court held that what constitutes ‘dangerous’ depends on the facts of each case and should be determined by taking into account the degree of likelihood that a particular peril may occur and the seriousness of the consequences of that peril to the crew if it occurred.12

Another issue arises if the master does not refuse the charterer’s orders even if the prescribed route has been proven as dangerous. Assuming that the shipowner has a duty of care to deviate and refuse the charterer’s orders, if the master does not deviate and complies with the charterer’s orders, the shipowner may be held liable to the seafarer under vicarious liability. Thus, the seafarer in Scenario 1 may submit that the shipowner and the master owed a duty of care to refuse the charterer’s orders to proceed through the Gulf of Guinea and should have proceeded via a safer route. However, none of the cited case law holds that the shipowner has a duty to refuse the charterer’s orders if following them could result in danger to the crew; only that the shipowner may refuse the orders. Thus, the shipowner likely has an effective rebuttal against the seafarer’s argument in this respect, especially if the shipowner could prove no likelihood of danger existed or that there actually existed a likelihood of danger in refusing the orders and deviating.13

-------------------- 9The Triton Lark, ibid.

10Ibid.

11Ibid, para 3.

12Ibid, para 12.

13However, proving that no likelihood of danger existed would be difficult,

considering the numerous reports of attacks in that area.


The English courts have further held, in The Salvital,14 in which a missile struck a tug operating in a war zone, that the shipowners owed a duty of care to the claimant to exercise reasonable skill and care in the circumstances for the claimant’s safety.15 Furthermore, the Court determined that the shipowners knew they were sending the tug into a war zone and therefore, that the exercise of reasonable care required the shipowners to make ‘reasonable enquiries’ into the way the missiles operated and to give proper written instructions and information to the claimant regarding the best practices to utilize to minimise the risk of a missile attack.16 Moreover, the Court held that all shipowners should provide written instructions to their ships because shipowners are in a better position to assess the types of risks their ships will potentially be exposed to and to provide instructions to reduce or eliminate such risks.17 The Salvital can be analogised to Scenario 1 in that pirate-infested waters, like war zones, constitute continuous sporadic threats and therefore, the seafarer can maintain that the shipowner had a duty to exercise reasonable care to determine how the armed robbers operated in that area and to give appropriate instructions to the seafarers regarding how to reduce the risk of and combat an attack. If the seafarer can prove the shipowner did not do so, then that would constitute a breach by the shipowner. In addition, if a reasonable shipowner in Scenario 1 would have warned the seafarers of their voyage through attack-prone waters, trained the seafarers for such a situation, deviated to a safer route, and otherwise reasonably prevented an attack—for example by providing armed guards and anti-piracy measures on board the ship—then if the actual shipowner failed to do so, the seafarer can likely prove a breach of the duty.

Causation represents the most difficult element for the seafarer in Scenario 1; to prove causation the seafarer must make an

-------------------- 14

Tarrant v Ramage and Others (The Salvital) [1998] 1 L.R. 185 (Admiralty

Court). 15

Ibid. 16

Ibid, 191. 17

Ibid.


507

extremely compelling argument that the shipowner’s breach actually caused the armed robbers to board the vessel and kidnap the crew. This is a very difficult burden to meet. The seafarer would have to prove that the shipowner should reasonably have foreseen that the armed robbers would hijack the vessel and kidnap the crew if the owner failed to: warn of the voyage through pirate-infested waters; train the seafarers for such a situation; deviate to a safer route; and provide anti-piracy measures. Nevertheless, in The Salvital, the English Court held that the shipowner’s breach of his duty to give written instructions providing the best practices to minimize the risk of a missile attack—upon warning of an attack, to take shelter in a position behind the tanker the tug was salvaging—caused the claimant’s injuries.18 The Court determined that had the shipowner fulfilled his duty of care, the tugmasters would have complied with the instructions to move behind the tanker and thus, the missile would have hit the tanker rather than the tug, and the plaintiff would not have suffered injuries.19 Thus, particularly in terms of causation, Scenario 1 exemplifies a tricky, if not impossible, situation arguable by both sides.

For instance, an argument by the seafarer that the hijacking of the vessel, kidnapping of the crew, and the personal injury to the seafarer would have been prevented had the shipowner provided adequate warning, training and instructions, will be countered by the shipowner arguing that he could not be expected to predict an attack, and that the attack would have occurred even if he fulfilled these duties.

A Danish case, The Danica White, may be useful in the shipowner’s defense. In this case, Somali pirates seized the ship and held hostage the crew members for 83 days until the shipowner paid ransom.20 The crew members claimed damages in negligence

-------------------- 18

The Salvital (n 14). 19

Ibid. 20Judgment was given in favour of a shipping company in a case concerning tort

liability in connection with the seizure of the cargo ship Danica White (MWB LAW, 13

December 2010) <http://www.mwblaw.dk/en/Nyheder/Nyheder%202010/2010-12-

08%20Rederi%20frifundet%20for%20erstatningsansvar%20ifm%20kapringen%20af%


from the shipowner, arguing that the shipowner did not properly inform the crew of the dangers of the voyage, nor were the crew instructed as to the appropriate precautions.21 Though the Danish High Court found that the captain did not sufficiently guard the bridge and did not activate the alarm during the attack, it held that even if there had been better guarding, the crew members would not have noticed the pirates in time to protect themselves and the activation of the alarm would not have prevented the hijacking.22 Thus, this case failed on causation, further epitomizing the difficulty of the situation. In Scenario 1, the shipowner could rely on The Danica White to support a defense that even if he had warned and trained the seafarers and provided armed guards, surveillance or other anti-piracy measures on board the vessel, the attack by the armed robbers could not have been prevented.

Another defense available to the shipowner is the doctrine of an intervening cause: a break in the chain of causation resulting from an independent act of a third party. In Scenario 1, the chain of causation between the shipowner’s negligent actions or omissions and the seafarer’s injuries could be considered to have been severed by the independent acts of the armed robbers in boarding the vessel, kidnapping the crew, and causing personal injury to the seafarer.

The shipowner may also claim assumption of the risk as a defense against the seafarer’s claim. Under this defense, the seafarer in Scenario 1 would not succeed in a suit against the shipowner if the shipowner could prove that the seafarer knew of the risk he could be injured by pirates, and nevertheless voluntarily agreed to sail. The shipowner could support the defense of assumption of the risk if it has executed a mutually signed employment contract outlining the voyage to be undertaken which explicitly described the dangers of the voyage. In the example set forth in Scenario 1, the seafarer could argue that, even though he agreed in the contract of employment to work on a ship transiting

--------------------

20fragtskibet%20Danica%20White.aspx> accessed 14 July 2016; Graham Caldwell,

Piracy and the zero incentive approach (2012) SHIPPING AND TRADE LAW 12(3), 1–3. 21

Ibid. 22

Ibid.


509

the Gulf of Guinea and knew of previous attacks in that area, he did not agree to the particular danger of incurring personal injury from such an attack and did not agree to the consequences of the shipowner’s negligence. The shipowner would counter that because the contract clearly set forth: the nature and extent of the voyage; the potential for attacks; provided for extra compensation for transiting the Gulf of Guinea area and treatment for personal injury; and because the shipowner had provided training to the seafarer tailored to deterring attacks, the seafarer must have agreed to face that particular danger and voluntarily accepted the risk.

The shipowner in Scenario 1 would not be able to avoid liability by delegating its duties—to warn and train the seafarers, organize anti-piracy measures on the ship and determine the best routes to transit—to the master. The doctrine of vicarious liability, wherein an employer is vicariously liable for an employee’s actions in the course of his employment, would prevent a shipowner from succeeding with such a claim. The well-known case of The Maersk Alabama, (which was resolved via a confidential settlement) exemplifies the question of vicarious liability in a piracy attack. It was alleged that Maersk Line, Ltd. did not inform the crew that they would be traveling through pirate-infested waters and did not provide armed guards to protect the crew. The captain had the option to transit 600 nautical miles away from the shore, where vessels were generally safe from attacks.23 Instead, the captain decided it would be too expensive and time-consuming, and thus transited merely 250 nautical miles away from the shore, where several pirate attacks had occurred the week before.24 As is well known, pirates hijacked the ship and held the crew members hostage.25 The crew members filed a lawsuit against Maersk Line, Ltd. alleging a breach of the duty of care to protect the crew from harm, and for intentionally inflicting emotional distress by sending them into pirate-infested waters

-------------------- 23

Brian Beckcom, Maersk Settles Lawsuit Brought By Victims of Somali Piracy

(VB Attorneys) <http://www.vbattorneys.com/case_results/maersk-settles-lawsuit-

brought-by-victims-of-somali-piracy.cfm> accessed 14 July 2016. 24

Ibid. 25

Ibid.


with no protection and no warning.26 The crew members also alleged that the captain wrongfully transited too close to shore and because of his wrongdoing, Maersk Line, Ltd. should be held liable under the doctrine of vicarious liability.27 As in the Maersk Alabama case, the shipowner in Scenario 1, and is not likely to prevail with a claim that it delegated the duty of care to the master, particularly considering that the employer’s duty of care is generally considered non-delegable and that the doctrine of vicarious liability would hold the shipowner liable for the master’s actions.28

One last potential defense that the shipowner in Scenario 1 could raise is that certain claims could be subject to reduction on the basis of contributory negligence. For example, in the Maersk Alabama case, the captain offered himself as a hostage to the pirates.29 Had the captain sued for personal injury inflicted by the pirates, an argument could be made that any award in his favor should be reduced because he partly contributed to his own loss by voluntarily giving himself to the pirates.

B. International Law Regarding Duty Of Care

1. The Maritime Labour Convention 2006

The Maritime Labour Convention 2006 (‘MLC’), praised as the ‘seafarers’ bill of rights,’ provides minimum requirements for working and living conditions for seafarers.30 Under the MLC, ‘[e]very seafarer has the right ‘to a safe and secure workplace that complies with safety standards.’31 Further, seafarers must be

-------------------- 26

Ibid. 27

Ibid. 28

Wilsons (n. 11); McBride (n. 7) 273. 29

VB Attorneys (n. 23); Erin Fuchs, This Lawsuit Supposedly Tells the ‘True Story’ of Captain Richard Phillips’ Pirates Ship (BUSINESS INSIDER, 11 October 2013)

<http://www.businessinsider.com/lawsuit-against-maersk-line-over-captain-phillips-ship-

2013-10?IR=T> accessed 14 July 2016. 30Seafarers’ Rights Under the MLC: Key Facts <http://seafarersrights.org/

seafarers-rights-under-the-mlc-key-facts/> accessed 14 July 2016. 31

MLC Regulation 4.1.


511

sufficiently trained to perform their duties and for personal safety on board the ship, incorporating training under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 (‘STCW’) and the 2010 Manila Amendments.32 Furthermore, seafarers must be afforded sufficient hours of rest to minimise fatigue,33 and the vessel must be adequately manned to ensure the safety of the crew.34 Seafarers additionally have the right under the MLC to be repatriated at the shipowner’s cost if the seafarer’s employment contract expires, the shipowner terminates the contract, or the seafarer is no longer able to carry out his employment duties under the contract.35 Moreover, under the MLC, the seafarer has the right to compensation for injury caused in the service of the vessel under an employment agreement, including medical care and treatment,36 as long as that injury occurs between the commencement of the employment agreement and the date ‘upon which [the seafarer is] deemed duly repatriated.’37 Furthermore, under the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014 (‘Minimum Requirements Regulations’), the shipowner must obtain adequate insurance to ensure compensation for death or long-term disability of the seafarer due to injury or illness.38

Although not explicitly aimed at reducing and preventing armed robbery and piracy attacks, the International Labour Organization (‘ILO’) stated that the MLC provisions relating to occupational health and safety and repatriation would apply to protect seafarers from the consequences of armed robbery and

-------------------- 32

MLC Regulation 1.3; Seafarers’ Rights (n. 84). 33

MLC Regulation 2.3; Hours of Work Regulations (n. 85) Regulation 4. 34

MLC Regulation 2.7. 35

Ibid Regulation 2.5; Minimum Requirements Regulations (n. 85) Regulation 19.

Seafarers likewise have this right of repatriation under the Merchant Shipping Act

1995 Section 73. 36

MLC Regulation 4.2; Minimum Requirements (n. 85) Regulation 43. 37

MLC Standard A4.2(1)(a). 38

Regulation 49 implementing MLC Standard A4.2(1)(b).


piracy.39 Thus, the MLC can and should be used by the seafarer in Scenario 1 to argue the extent of the shipowner’s duty of care and to show that the shipowner breached that duty of care. The seafarer could use the MLC as authority to support a claim with respect to the shipowner’s duty to train the crew, and that a failure by the shipowner to properly train the crew how to respond to pirate attacks could be argued as causing the attack and capture by the armed robbers.

2. The STCW and Manila Amendments

The STCW, and the Manila Amendments to the STCW, provide manning and training requirements that must be abided by all shipowners and seafarers. This section will not focus on the specific provisions and technicalities of the STCW and Manila Amendments, but will only discuss in general how they relate to the shipowner’s duty of care. Adequate manning, training and watchkeeping constitute crucial elements in combatting armed robbery and piracy attacks. As previously discussed, the seafarer in Scenario 1 could claim that the shipowner’s duty of care included providing proper training related to how to respond to dangerous attacks, sufficiently manning the vessel and arranging adequate rest so that the seafarers are able to properly keep watch for dangerous situations. The 2010 amendments to the STCW Convention and the STCW Code specifically took armed robbery and piracy into account and urged governments and members of the shipping industry to implement the International Maritime Organization (‘IMO’) Guidelines to prevent and reduce armed robbery and piracy.40 Under the STCW Code, all seafarers must comply with the International Ship and Port Facility Security Code (‘ISPS Code’)41 and must receive ‘security-related

-------------------- 39MLC 2006 – Frequently Asked Questions (FAQs) – May 2013, A38 (UK P&I

CLUB, 28 November 2012) <http://www.ukpandi.com/knowledge/article/mlc-2006-

frequently-asked-questions-faqs-may-2013-5666/> accessed 14 July 2016. 40

Attachment 3 to the Final Act of the 2010 STCW Conference, STCW

Resolution 18(6)(2). 41

The ISPS Code will be discussed in the next section.


513

familiarization training.’ These Codes instruct seafarers how to report piracy or armed robbery threats or attacks, to learn the procedures to follow when such a threat exists and which emergency procedures they should implement.42 Thus, under the STCW Code, shipowners have a duty to prepare seafarers for such attacks, and seafarers have a duty to prepare for an attack by armed robbers or pirates.

3. The ISPS Code

The ISPS Code, an amendment to the Safety of Life at Sea Convention 1974 (‘SOLAS’), provides minimum standards for security and safety arrangements on ships. SOLAS Chapter XI-2 requires shipowners to comply with the requirements set out in Part A and to take into account the guidelines in Part B of the ISPS Code.43 Part A of the ISPS Code requires the shipowner to ensure that the necessary ship security plan contains a statement that the master has overriding authority and responsibility with respect to making decisions regarding the safety and security of the ship and to request the assistance of the shipowner or the flag state when necessary.44 This means that the shipowner might not be responsible for failing to guard against an attack such as in Scenario 1, at least under the ISPS Code.45 Assuming the master has overriding authority and responsibility, it may be difficult for the seafarer in Scenario 1 to prove fault on the part of the shipowner in this respect, other than possibly arguing negligent hiring of an incompetent master. Ultimately, however, the shipowner is responsible for the operation of his ship and

-------------------- 42

STCW Code Section A-VI/6, Section 1; ‘International Convention on Standards

of Training, Certification and Watchkeeping for Seafarers, 1978 (IMO, 2016)

<http://www.imo.org/en/OurWork/HumanElement/TrainingCertification/Pages/STCW

-Convention.aspx> accessed 14 July 2016; ITF Seafarers, ‘STCW: A Guide for

Seafarers’ (International Transport Workers’ Federation) <http://www.mptusa.com/

pdf/STCW_guide_english.pdf> accessed 14 July 2016. 43

ISPS Code Regulation 4.1. 44

ISPS (n. 109) Regulation 6. 45

Contrary to the vicarious liability discussion in Section II A.


compliance with the ISPS Code and thus, the shipowner is likely liable for the master’s actions.46

Further, under Part A, the company security officer, assigned by the shipowner and reporting to the master,47 must arrange for a ship security assessment to identify: (1) existing security measures and procedures; (2) crucial operations on board the ship necessary to protect; (3) potential threats to the operations on board and the likelihood of such occurrences; and (4) weaknesses in the infrastructure and procedures.48 The company security officer must also arrange for the creation of a ship security plan to be carried on board the ship.49 The ship security plan must address, amongst other things: the procedures for responding to security threats, maintaining the crucial operations on board the ship, evacuating in the case of security threats or breaches and the procedures for training, drills and exercises related to the security plan, identifying the location of the ship security alert system activation points, the duties of those assigned security responsibilities and ensuring inspection, testing and maintenance of security equipment on board the ship.50

Under Part B of the ISPS Code, the ship’s crew should have the ability to monitor situations on board the ship and areas surrounding the ship, which would include the use of adequate lighting, watchkeepers, security guards, patrols and surveillance equipment such as intrusion detection devices.51 Moreover, the ship security plan should establish additional security measures to be applied when a heightened security risk exists, such as increasing security patrols and security and surveillance equipment, assigning additional security lookouts, and coordinating with boat patrols and patrols on shore.52 Likewise, the ship security plan should detail the security measures to be taken when an imminent or probable

-------------------- 46

Michael Molloy, Piracy and the ISPS Code (SAFETY4SEA, 5 July 2012)

<http://www.safety4sea.com/piracy-and-the-isps-code/> accessed 14 July 2016. 47

ISPS Code (n. 9) Regulation 2.6. 48

Ibid Regulation 8.4. 49

Ibid Regulation 9. 50

Ibid. 51


Ibid Regulation 9.47.


515

security threat exists, such as illuminating the area around the ship, activating all of the surveillance equipment and deterring underwater access to the hull of the ship.53 If the company security officer fails in his duties and an attack occurs as a result, the shipowner may be vicariously liable and the master jointly and severally liable for not ensuring a proper ship security plan and ship security assessment were created.54

Thus, in Scenario 1, there is a good chance a seafarer could prevail with a claim that the shipowner’s duty of compliance with the ISPS Code, which requires procedures to identify and prevent potential armed robbery and pirate attacks, represents a significant part of the shipowner’s duty of care to the seafarers, and that non-compliance by the shipowner would constitute a breach of those duties. Shipowners should pay particular attention to the ISPS Code when considering the extent of their duty of care, as the ISPS Code provides a comprehensive and reasonable mechanism to ensure the safety of seafarers.

C. International Guidelines for Shipowners

Numerous international guidelines exist relating to armed robbery and piracy. Those deemed by the author as most relevant to Scenario 1 include: (1) the IMO ‘Guidance to Shipowners and Ship Operators, Shipmasters and Crew on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships,’ which outlines recommendations for shipowners in reducing and responding to attacks;55 (2) the IMO ‘Revised Interim Guidance to Shipowners, Ship Operators and Shipmasters on the use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area,’

-------------------- 53


However, this seems unlikely to occur, as the ISPS Code requires auditing of the

ship to ensure compliance. Similarly, the ISPS Code requires the ship security plan to

be approved by the flag state government. See ibid Regulation 9; SOLAS Chapter I/2.

See ISPS Code Regulations 13 and 15. 55

MSC.1/Circ.1334, Piracy and Armed Robbery Against Ships (International

Maritime Organization, 23 June 2009) <http://www.imo.org/en/OurWork/Security/

PiracyArmedRobbery/Guidance/Documents/MSC.1-Circ.1334.pdf> accessed 14 July

2016.


which details recommendations for the hiring of private armed security guards, necessary training and the transport and use of firearms;56 (3) International Seafarers Welfare and Assistance Network (‘ISWAN’) and Maritime Piracy–Humanitarian Response (‘MPHRP’) Good Practice Guide, which takes specific account of the human element: the seafarers’ well-being before, during and after an attack and what the shipowner should do to prepare for an attack, keeping in mind the seafarers’ welfare; (4) Best Management Practices for Protection against Somalia Based Piracy (‘BMP 4’), which establishes how shipowners and crew members can best deter armed robbery and piracy attacks in the HRA and the severe consequences of not following the BMP 4, which could also be useful and applicable to non-HRA waters, such as the Gulf of Guinea; and (5) the ‘Guidelines for Owners, Operators and Masters for Protection Against Piracy in the Gulf of Guinea Region’ (‘GoG Guidelines’), which are to be read in conjunction with BMP 4 but which BIMCO, the International Chamber of Shipping, INTERCARGO and INTERTANKO have tailored to the Gulf of Guinea region and the armed robbers’ and pirates’ modus operandi, in order to assist shipowners and crew members in preventing and reducing armed robbery or piracy attacks and how to prepare for and react to such attacks.

The seafarer in Scenario 1 could point to each of these guidelines as establishing the standard of care for the shipowner. As previously discussed, however, these guidelines are not mandatory. The shipowner has no obligation to abide by them and therefore these guidelines alone would likely not be sufficient to establish negligence on the shipowner’s part. On the other hand, the guidelines could be said to amount to an established custom and practice in the maritime industry and therefore the shipowner had an obligation to comply with those guidelines when transiting dangerous waters. Moreover, the tort of negligence requires that a

-------------------- 56

MSC.1/Circ.1405/Rev.2, Revised Interim Guidance to Shipowners, Ship Operators and Shipmasters on the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area (International Maritime Organization,

25 May 2012) <http://www.imo.org/en/OurWork/Security/PiracyArmedRobbery/

Guidance/Documents/MSC.1-Circ.1405-Rev2.pdf> accessed 14 July 2016.


517

shipowner must act reasonably under the circumstances and a seafarer could argue that these guidelines exemplify how a reasonable shipowner in a similar situation should act.

The seafarer in Scenario 1 should further be aware of any specific national guidelines that may exist in his jurisdiction. For example, in the United Kingdom, armed guards may only be engaged on a vessel in exceptional circumstances.57 Such exceptional circumstances occur when: (1) the ship is transiting the high seas in the High Risk Area (‘HRA’) off the coast of West Africa; (2) the BMP is being followed but determined by the shipowner and the ship’s master as insufficient to protect against piracy; and (3) the use of armed guards will reduce the risk to those on board the ship.58 Thus, in Scenario 1, the seafarer may not be able to claim that the shipowner breached his duty of care by not employing armed guards on the vessel, because the attack occurred in the Gulf of Guinea, not the HRA. However, if the seafarer can prove that the industry recognizes the Gulf of Guinea as a new high risk area through the recent safety guidelines published for vessels transiting the Gulf of Guinea, then the seafarer likely would have a good case against the shipowner.

Scenario 1 presents another issue which is open for debate. The question arises whether the shipowner should have, at the least, lobbied the flag state jurisdiction for permission to engage armed guards on the vessel, and that its failure to do so constituted a breach of the duties owed to the seafarers.59 However, the shipowner could counter that argument because the flag jurisdiction only allows armed guards in the HRA of Somalia and has not given any approval for the use of armed guards in the Gulf

-------------------- 57

Guideline 1.4, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances Version 1.3 (Department for Transport, December 2015) <https://www.gov.uk/government/

uploads/system/uploads/attachment_data/file/480863/use-of-armed-guards-to-defend-

against-piracy.pdf> accessed 14 July 2016. 58

Ibid Guideline 1.6. 59

BIMCO, ICS, INTERTANKO & INTERCARGO, Guidelines for Owners, Operators and Masters for Protection against Piracy in the Gulf of Guinea Region

<http://www.ukpandi.com/knowledge/article/new-industry-guidelines-for-gulf-of-guinea-

published-135439/> accessed 14 July 2016.


of Guinea area. Furthermore, even if the industry considered the Gulf of Guinea as a high risk area in which employment of armed guards was allowed, the shipowner still could not engage armed guards on his vessel because of the risk of detention, particularly if the vessel was to call at a Nigerian port. The Nigerian Maritime Safety Agency (‘NMSA’) has previously given notice that it will detain vessels calling at a Nigerian port with foreign guards—armed or unarmed—on board vessels and has in fact actually detained vessels with foreign guards on board.60 Thus, it could be considered unreasonable to require the shipowner to engage armed guards on the vessel in these circumstances. The seafarer may have a better position (to argue that the shipowner should provide armed guards) if the vessel was simply transiting the Gulf of Guinea, and not calling at a Nigerian port. Moreover, the NMSA allows its own Navy to provide assistance in deterring armed robbers and pirates,61 as does the Togolese National Navy for ships calling at the port of Lome in Togo.62 Therefore, the seafarer might argue that the shipowner had a duty to engage the respective West African Navies to protect the vessel and crew and by not doing so, the shipowner breached his duty of care.

In response, the shipowner will raise that such instruments contain merely guidelines, which recommend the extent of what the shipowner should do, but do not require the shipowner to do anything and thus, no duty of care is imposed. Once again, the question to be determined is whether the guidelines are sufficiently accepted that they constitute the standard of custom and practice in the maritime industry, and thereby establish what a reasonable shipowner in similar circumstances is expected to do.

-------------------- 60Nigeria and Foreign Guards (INTERTANKO, 13 February 2015)

<http://www.gard.no/Content/20817221/INTERTANKO_Nigeria_foreign_guards.pdf>

accessed 14 July 2016. 61

Ibid. 62Togo Implements New Anti-Piracy Measures in a joint-venture with Ocean and

Land Security (OLS) (Budd Group, 21 February 2013) <http://www.budd-pni.com/

news-art-the-budd-group.asp?ID_A=1231> accessed 14 July 2016.


519

III CONSIDERATIONS, PROPOSALS AND SOLUTIONS

Focusing on the law, it is apparent that a shipowner owes a duty of reasonable care to the seafarers working on his vessel to keep them safe. The extent of the duty of care remains debatable as the aforementioned guidelines do not constitute mandatory law to be followed by shipowners. This chapter will examine the practical considerations of this issue.

Deterring armed robbery and piracy attacks requires clear laws and standards so that shipowners and seafarers know exactly what they are required to do and how they are to act in dangerous situations. The various guidelines discussed in Section II provide exemplary and comprehensive standards for shipowners to follow when determining their duties of care to seafarers in armed robbery and piracy situations. However, such standards must be made binding if they are to have any practical effect in favor of seafarers injured by piracy. Seafarers would no doubt argue that a shipowner would at least be required to warn and train seafarers about piracy, to deviate from a dangerous route and provide anti-piracy measures, surveillance and armed guards, and to repatriate the seafarers if necessary. As a practical matter, shipowners cannot be required to guarantee the safety of their crew members, but only to do what is reasonable.

As previously discussed, armed guards and other similar security measures have proved useful in deterring and combatting attacks. Unfortunately, not all countries and ports allow vessels with armed guards to enter their territorial waters or call at their ports.63 This presents a greater problem because most violent attacks occur in a country’s territorial waters, rather than on the

-------------------- 63

However, several other countries have enacted legislation permitting armed

guards on board ships, subject to specific requirements. See Insight: Piracy – Gulf of Aden and Indian Ocean (SKULD, 16 April 2015) <https://www.skuld.com/

topics/voyage--port-risks/piracy/overall/piracy1/armed-guards/> accessed 4 August

2016.


high seas.64 For example, even if the shipowner engaged armed guards for a voyage from country A to country B, if country B does not allow armed guards65 and consequently, country B demands the armed guards remain outside the territorial waters, the vessel would still be left unguarded and unprotected in the territorial waters. Thus, even though the shipowner complied with his duty of care and the various guidelines, the laws of the port state took the protection of the seafarers out of the shipowner’s hands. In this situation, it would be wholly unreasonable and unjust to hold the shipowner liable if an attack occurred, especially if he warned and trained the crew for a potential attack and equipped the vessel with anti-piracy measures.66 The shipowner should not have to breach another country’s laws to fulfil his duty of care.

An ongoing case on this issue proves the gravity of illegally carrying armed guards. The case involves AdvanFort, an American private maritime security firm and shipowner that employs armed guards to escort vessels through the HRA. In this case, the Indian Police boarded one of AdvanFort’s vessels that was transporting security guards between missions.67 The Indian Police arrested the crew of 35 seafarers and guards for illegally possessing weapons because they did not have the correct permits, and detained them in jail for two years.68 The High Court of India dropped the charges but confiscated the crew’s passports.69 One

-------------------- 64

IMB Piracy & Armed Robbery Map 2016 <https://www.icc-ccs.org/piracy-

reporting-centre/live-piracy-map> accessed 14 July 2016. 65

Or if the shipowner engaged armed guards for a voyage from country A to

country C, country C allowing armed guards, but the ship having to deviate to country

B for technical failures, country B not allowing armed guards. 66

Raunek, 18 Anti-Piracy Weapons for Ships to Fight Pirates (MARINE INSIGHT,

12 July 2016) <http://www.marineinsight.com/marine-piracy-marine/18-anti-piracy-

weapons-for-ships-to-fight-pirates/> accessed 14 July 2016. 67Advanfort accused of abandoning British men facing India trial (BBC NEWS, 7

September 2015) <http://www.bbc.co.uk/news/uk-england-34095843> accessed 14

July 2016. 68

Ibid; Philipho Yuan, Seaman Guard Ohio: Who is Paying? (MARITIME

EXECUTIVE, 07 March 2016) <http://www.maritime-executive.com/features/seaman-

guard-ohio-owners-contact-families> accessed 14 July 2016. 69

Ibid.


521

year later, the Supreme Court of India upheld the charges and ordered a trial for the crew.70 The Court sentenced the crew to five years of hard labour in India.71 AdvanFort, as shipowner and employer, owed the crew a reasonable duty of care to keep them safe. AdvanFort, in allowing illegal weapons and ammunition on board the ship, arguably breached that duty of care and the seafarers suffered the consequences. Thus, even though carrying armed guards on board a vessel has proven to reduce attacks, a shipowner should not be forced to employ guards in all circumstances. Too many different scenarios exist to establish a bright-line duty for a shipowner to fulfil and more exceptions to the rule would exist than provisions to the rule itself. Therefore, prior to transiting dangerous waters, a shipowner should only be duty-bound to equip the vessel with anti-piracy measures, using the guidelines discussed in Section II to determine the standard of care normally followed in the industry and which best deters armed robbers and pirates, and to train the seafarers how to use such equipment. Typical anti-piracy devices include items such as: long-range acoustic devices; anti-piracy laser devices; water cannons; electric secure fences; nets and boat traps; slippery foam or anti-traction material; foul smelling liquid as a liquid deterrent system; razor wire canister as an anti-boarding device; compressed air cannons; P-trap anti-piracy lines; stun grenades; rubber ball grenades; Active Denial System Pain Ray; fire hoses; tasers; and more recently, unmanned drones.72 The shipowner may also be required to hire additional unarmed watchkeepers specifically trained to protect the crew and the vessel through the use of the anti-piracy devices, and to equip the vessel with adequate surveillance equipment, such as radar, night vision

-------------------- 70

Ibid. 71

Ibid. 72

18 Anti-Piracy Weapons (n 134); Will Ross, Drones scour the sea for pirates

(BBC NEWS, 10 November 2009) <http://news.bbc.co.uk/1/hi/world/africa/

8352631.stm> accessed 14 July 2016; Anti Piracy UAV (ATAC Global)

<http://atacglobal.com/anti-piracy-uav/> accessed 14 July 2016.


binoculars and CCTV cameras, as required under the ISPS Code.73

A recent development is the use of drones equipped with cameras. Drones could prove to be one of the most effective surveillance tools, as they can travel extensive distances from the ship.74 Although drones could present problems for ships in territorial seas with respect to air space and port state sovereignty, drones would be extremely beneficial and unlikely to cause sovereignty problems to ships on the high seas in preparing for an attack. Drones could additionally be equipped with some of the previously discussed anti-piracy measures to stop the pirates before they reach the ship.75

Another potential problem could arise if the shipowner lawfully employs armed guards for a voyage to a consenting port, but the vessel must unexpectedly deviate for an equipment failure or be towed to a port which does not permit armed guards. If the shipowner relies on drones rather than armed guards, there would be no such problem as the drones could be flown out of the territorial waters so as not to intrude on the port state’s sovereignty. Thus, in Scenario 1, the seafarer would probably be unsuccessful in arguing that the shipowner breached his duty of care if it did not employ armed guards, because there is too much uncertainty to reasonably impose that obligation on the shipowner. A seafarer is more likely to prevail with an argument that the shipowner had a duty to provide anti-piracy measures, watchkeepers and surveillance equipment on the vessel. In addition, because there is no reason to prevent a shipowner from

-------------------- 73

Counter piracy – Night vision and CCTV surveillance systems (TELEMAR UK

LIMITED) <https://www.telemaruk.com/cctv-pirate-surveillance/ship-safety-security/

cctv-pirate-surveillance.html> accessed 14 July 2016. See ISPS (n. 109). 74

Nick Heath, The long-range drone that can keep up with a car and fly for an hour (TECH REPUBLIC, 27 May 2015) <http://www.techrepublic.com/blog/european-

technology/the-long-range-drone-that-can-keep-up-with-a-car-and-fly-for-an-hour/>. 75

U.S. Deploys Drones Against Somali Pirates (CBS NEWS, 24 October 2009)

<http://www.cbsnews.com/news/us-deploys-drones-against-somali-pirates/> accessed

14 July 2016. The drones discussed in this news article carried missiles; however, such

drones could potentially also carry rubber grenades, laser lights, and other such non-

lethal anti-piracy devices.


523

communicating with the port state to request Naval escorts, it may be reasonable to require that a shipowner at least make the request.76

Another issue relates to the extent the shipowner has a duty to pay a ransom if the seafarers are captured and a ransom is demanded. Two related questions arise; first, whether the shipowner has a duty to pay ransom to obtain the release the seafarers; and second, whether the shipowner has a duty to obtain ransom insurance so that it can afford to pay a ransom. The issue of the duty to pay a ransom is related to the obligation under the MLC to repatriate the seafarers.77 Under many countries’ laws, the payment of ransom is legal as long as it is reasonably believed that the funds will not be used for the purposes of terrorism.78 Furthermore, shipowners can obtain war risks insurance, which covers ransom negotiations and payments.79 Likewise, ‘Kidnap and Ransom’ policies have been developed; these are generally in the form of indemnity policies which require that a shipowner

-------------------- 76

If uncertainty subsequently exists as to a corrupt government in collusion with

the armed robbers, the shipowner still would have fulfilled his duty of care. 77

MLC (n. 88). 78

Because UNCLOS defines ‘piracy’ as being accomplished for private ends, it is

not considered terrorism. Africa Programme and International Law Conference Report - Piracy and Legal Issues: Reconciling Public and Private Interests (CHATHAM

HOUSE, 1 October 2009) <http://www.maritime-executive.com/features/seaman-guard-

ohio-owners-contact-families> accessed 14 July 2016; Kashmira Gander, Isis hostage threat: Which countries pay ransoms to release their citizens? (INDEPENDENT, 03

September 2014) <http://www.independent.co.uk/news/world/politics/isis-hostage-

threat-which-countries-pay-ransoms-to-release-their-citizens-9710129.html> accessed

23 August 2016; UK Terrorism and Security Bill – does it affect ransom payments to pirates? (INCE & CO, 05 December 2014) <http://www.incelaw.com/en/knowledge-

bank/publications/uk-counter-terrorism-and-security-bill-does-it-affect-ransom-payments-

to-pirates> accessed 14 July 2016; UK Keeps Piracy Ransom Payment Legal (WORLD

MARITIME NEWS, 21 January 2015) <http://worldmaritimenews.com/

archives/150000/uk-keeps-piracy-ransom-payment-legal/> accessed 14 July 2016. This

is different from American Law, under which ransom payments are illegal. See Why America refuses to pay ransoms (THE ECONOMIST, 24 August 2014)

<http://www.economist.com/blogs/economist-explains/2014/08/economist-explains-18>

accessed 23 August 2016. 79

Risk Focus: Kidnap and Ransom (UK P&I CLUB, 30 June 2016)

<http://www.ukpandi.com/fileadmin/uploads/uk-

pi/Latest_Publications/Circulars/2016/UK_Kidnap10-2.pdf> accessed 14 July 2016.


must pay the ransom first and only then can recover from the insurer.80 As this article has noted, shipowners have a duty to repatriate seafarers under the MLC.81 A typical seafarer’s employment contract and collective bargaining agreement will incorporate the shipowner’s duty to repatriate and therefore, if the shipowner fails to do so it can be sued for breach of contract.82 The duty to repatriate morally would extend to require the payment of ransom for release of the crew. However, to impose such a duty would be practically unwise. Requiring the shipowner to pay ransom could potentially exacerbate the kidnapping-for-ransom problem. If the armed robbers and pirates knew that if they kidnapped the seafarers, the shipowner would be obligated to pay ransom or face suit from the seafarers (or their families), the pirates would be almost guaranteed payment.

If a shipowner obtains ransom insurance, the shipowner will have some degree of protection. However, requiring shipowners to obtain ransom insurance could similarly exacerbate the kidnapping problem, as armed robbers and pirates would likewise be guaranteed payment if they kidnap the crew. Moreover, payment under an insurance policy constitutes more of a guarantee than payment by a shipowner, as insurers generally have more money than shipowners and are less likely to become insolvent than shipowners. Thus, imposing a duty on the shipowner to pay ransom, or to obtain insurance to cover ransom, increases the pirates’ chances of recovery, thereby making the kidnapping of seafarers a more attractive proposition, and could also potentially generate collusion between seafarers and armed robbers and pirates. However, not imposing such a duty may create less incentive for the seafarers to want to work on a vessel transiting a dangerous area. The author suggests that the best

-------------------- 80

Chatham House Conference Report (n 50). 81

Discussed infra. 82

ITF Standard Collective Agreement (INTERNATIONAL TRANSPORT

WORKERS’ FEDERATION) <http://www.itfseafarers.org/files/seealsodocs/33559/

ITFStandardCBA2012.pdf> accessed 14 July 2016. Model Format for Seafarer Employment Agreement <http://www.mcw.gov.cy/mcw/dms/dms.nsf/0/

40FC6DBF505B0AC3C2257A0C0031824D/$file/en05f203-seafarer%20employment%

20agreement.pdf> accessed 14 July 2016.


525

solution would be not to impose any duties on the shipowner regarding ransom payments. Instead, the shipowner and seafarer should have a clear employment contract, detailing the route of the voyage, the potential for danger in the area and the limit of ransom the shipowner will pay or the limit of the insurance policy covering ransom.83 This way, the seafarer knows exactly what he is agreeing to and can negotiate with the shipowner. To address unequal bargaining power, the seafarer’s union should establish a collective bargaining agreement to be used in conjunction with the employment contract, detailing the minimum standards by which the shipowner must comply.

For example, the International Transport Workers’ Federation for Seafarers (‘ITF’) has created several collective bargaining agreements. The Standard Collective Agreement discusses warlike operations, including piracy, and stipulates that seafarers have a right not to proceed to a warlike operations area and a right not to be fired by the shipowner.84 Arguably, the shipowner can avoid liability under a negligence suit using this provision—assuming the seafarer knew of the dangerous voyage—because the seafarer had the option to leave at any time. Therefore, by not utilizing this right, the seafarer agreed to enter the warlike operations area and the consequences following, and cannot claim compensation from the shipowner.

In Scenario 1, the author submits that the shipowner possesses four duties: (1) warn the seafarers of the potential for armed robbery or pirate attacks on the contracted voyage; (2) train the seafarers in responding to attacks; (3) equip the vessel with anti-piracy measures compliant with the industry standard, hire additional watchkeepers and engage the port state Navies to protect the vessel; and (4) comply with national law duties, the MLC, the STCW, the ISPS Code requirements, and the employment contract in conjunction with the collective

-------------------- 83

Maritime and Coastguard Agency, MGN 477(M) Maritime Labour Convention, 2006: Seafarers’ Employment Agreements (Gov.uk, 23 September 2015)

<https://www.gov.uk/government/publications/mgn-477m-maritime-labour-convention-

2006-seafarers-employment-agreements> accessed 14 July 2016. 84

ITF (n 148) Section 20.


bargaining agreement. The shipowner does not owe a duty to deviate from a potentially dangerous area, to always employ armed guards on his vessel, or to pay ransom or obtain a ransom insurance policy. Of course, if the employment contract expires while the seafarer is still being held hostage, all of the shipowner’s duties should still apply because the hijacking and kidnapping occurred before the expiry of the contract and the seafarer would not be in that situation had he not been employed by the shipowner in the service of the shipowner’s vessel.

Seafarers should keep in mind that they signed an employment contract with the shipowner and therefore, suing the shipowner for the tort of negligence has the consequence of undermining the very purpose of the contract. The collective bargaining agreement likely will outline the remedies for the seafarers in the event of personal injury.85 Thus, generally, it will be unnecessary to sue the shipowner in tort unless the employment contract has expired, has been terminated by the shipowner or proves insufficient. Outside of the tort of negligence, if the employment contract incorporates the shipowner’s duties and the shipowner breaches those duties, the seafarer may be able to sue the shipowner for breach of contract. Shipowners should keep in mind their potential for liability and therefore, abide by the common law and statutory duty of care requirements and the various national and international guidelines for shipowners so as to dramatically reduce their potential of being sued.

IV CONCLUSION

The extent of a shipowner’s duty of care owed to seafarers before, during and after armed robbery or piracy attacks remains

-------------------- 85

ITF Seafarers, ITF Agreements (INTERNATIONAL TRANSPORT WORKERS’

FEDERATION, 2016) <http://www.itfseafarers.org/itf_agreements.cfm> accessed 14

July 2016.


527

ambiguous and this article endeavours to provide some clarity and predictability in the law. In certain circumstances, the case may be a clear contractual issue, governed by the seafarers’ employment contracts and collective bargaining agreements. Assuming that the contract does not provide answers, seafarers can rely on tort law. If seafarers wish to claim under the tort of negligence against shipowners, they must prove that shipowners owed seafarers a duty of care and breached that duty of care, which caused damages. Shipowners, as employers, owe seafarers, as employees, a duty to take reasonable care for seafarers’ safety. What this duty of care entails can be inferred from case law, national legislation and guidelines, international codes, conventions and guidelines. However, no precise laws exist with respect to armed robbery and piracy attacks. The author proposes that simple and clear mandatory legislation be created outlining: (1) the exact duties of shipowners owed to seafarers, specifically with respect to armed robbery and piracy attacks; (2) the enforcement mechanisms; and (3) the remedies of seafarers for shipowners’ breaches. To eliminate uncertainty in this area, uniform laws must be established, incorporating industry standards, as to shipowners’ obligations toward seafarers in armed robbery and piracy incidents.

This article has proposed that the extent of a shipowner’s duty of care does not require the employment of armed guards, paying ransom or deviating to a safer route. Although seemingly insensitive and severe for seafarers, such a stance proves the most practical and reasonable for the shipping industry. Shipowners are in the business to make money, incentivizing them to keep their crew and ship safe from armed robbers and pirates. However, shipowners cannot be held to an impossible duty of care. Shipowners should not be blamed for attacks and the consequences of attacks, unless their actions or omissions truly constituted negligence.

Rather than imposing liability on shipowners, it is the international legal and law enforcement systems which are at fault. Armed robbery and piracy attacks should not persist as such a significant concern to the shipping industry. There should never exist an opportunity for armed robbers or pirates to board vessels, nor should there be a market for ransom to facilitate attacks and


kidnappings. International cooperation must persevere to combat armed robbery and piracy and such cooperation must be sufficiently implemented. Regardless of the nationality of the armed robbers and pirates, and regardless of the location in territorial seas or international waters, ships and seafarers should be able to protect themselves without relying on port state Navies. For example, ships should be able to carry armed guards without the threat of their vessels being detained. The use of drones on ships for surveillance purposes has recently developed and should be allowed and encouraged by port states.86 If not practical due to sovereignty considerations, port state Navies should collaborate to implement the best methods of combatting armed robbers and pirates so the need for shipowners to protect their crew and vessel never arises. Likewise, port states must establish better surveillance and prosecution of armed robbers and pirates to eradicate the illegal acts at the source.87 If armed robbers and pirates were guaranteed to be prosecuted and receive the harshest of penalties, such attacks would drastically decrease, if not be eliminated altogether. Therefore, although these propositions may be easier stated academically than practically implemented, an in-depth discussion at the international level needs to take place, questioning why these attacks still occur at such an alarming rate, forcing shipowners to incur additional duties of care and expenses and seafarers to suffer physically and psychologically.

Picture this: a tanker fully laden with oil navigates the Gulf of Guinea off the West Coast of Africa. Suddenly, the ship experiences heavy weather. The crew skillfully manoeuvres the squall until the storm dwindles. The pilot navigates the ship into port, the stevedores discharge the cargo and the crew sets sail to the next destination with no sign of armed robbers or pirates—the new norm in all the waters of the world. International harmony and collaborative solutions will instigate this far superior scenario and empower crews and their ships to sail in peace, eliminating

-------------------- 86

Ross (n. 140). 87

Which many states are attempting to do. Maritime Security and Piracy (IMO,

2016) <http://www.imo.org/en/OurWork/Security/Pages/MaritimeSecurity.aspx>

accessed 14 July 2016.


529

the need for increased duties of care for shipowners. It is time we out-pirate the pirates and bring justice for shipowners and seafarers!88

-------------------- 88

Max Hardberger, Seized (Nicholas Brealey Publishing, 2010).