piracy, mediation & seafarers

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Piracy at sea Helen Tung Barrister, One Temple Avenue Chambers 2014

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Piracy, Mediation & seafarers

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Page 1: Piracy, Mediation & seafarers

Piracy at sea  !

Helen Tung   Barrister, One Temple Avenue Chambers 2014

Page 2: Piracy, Mediation & seafarers

INTRODUCTION!

1. What is mediation? !

2. What is piracy? 3. What is kidnap and ransom?! 4. What are the consequences?! 5. What is the impact on seafarers?! 6. How could mediation be used here?! 7. What are the views in the shipping industry?!

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○  What is your definition? ○  How do you use it? ○  What are the benefits? ○  What are the disadvantages? ○  Would you use it here?!

○  1. What is the mediation? !

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2. What is piracy?!

○  How did piracy start? ○  Result of illegal overfishing - Taiwan, China, Japan,

South Korea and Spain (flags of convenience) ○  Impact of 2004 Indian Ocean Tsunami and impact on

Somali fishermen (Mason, 2014)

○  Piracy = crime against ships and boats outside territorial waters

○  1982 UNCLOS, piracy definition: ‘..any illegal acts of violence or detention..committed for private ends by he crew or passengers of a private ship 1. on high seas; 2. against a ship, aircraft or property in a place outside the jurisdiction of any state.’!

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-­‐  Piracy  at  sea  =  Old  phenomenon  -­‐  Kidnapping  &  ransom  of  the  ship  and  the  seafarers  is  new    -­‐  From  2008  to  2012  almost  1,900  piracy  attacks  were  counted  worldwide    2010:  32  line  vessels  attacked,  6  hijacked  2011:  439  pirate  attacks,  45  merchant  vessels  hijacked.  62  liner  vessels,  1  hijacked  237  attacks  and  28  hijacks  occurred  Gulf  of  Aden.  1st  3  months  of  2013,  4  vessels  were  hijacked,  51  were  boarded,  7  were  Oired  upon  and  4  reported  attempted  attacks.  Seventy-­‐Oive  crew  members  were  taken  hostage,  14  kidnapped  and  1  killed  (ICC-­‐CCS.org)  ○ ‘Piracy  has  cost  the  world  around  18b  USD’  J.F.  Hansen  of  Danish  Shipowners’  Association’!

2. What is piracy?!

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6 http://www.lsansimon.com/wp-content/uploads/2013_Q3_IMB_Piracy_Report.pdf

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○  High speed skiffs ○  Automatic weapons ○  Rocket propelled grenades (RPGs) ○  Consequences ○  Risk of life ○  Economic: US $3.9 and US $8.3 b ( Geopolicity & Marsh) ○  v $165 b (Abrahamsen & Williams, 2009) ○  Social ○  Political: close to int. security industry (Briggs 2001) ○  Personal: Traumatic physical & psychological experience

(Zannoni 2003)Time av. 2010 (205 days) 2011 (214 days)!

2. What is piracy?

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○  UK : kidnap = common-law offence ○  triable upon indictment only ○  ‘aggravated form of false imprisonment’ (Warburton,

2007) ○  Definition, Lord Brandon in R v D ([1984] AC 778) is

committed by the taking or carrying away of persons without their consent, by force or fraud, and without lawful excuse.’

○  not straight forward (M.K.Noor-Mohamed 2014)!

3. What is kidnap and ransom?!

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3. What is kidnap and ransom?!Ransom - Somali context = millions of dollars since 2—5 - ransom payments to Somali pirates est. b/w $339 to $413 (USD) m b/w 2005-2012 (UNODC & World Bank); - Focus Somalia, Djibouti, Ethiopia, Kenya and Seychelles -b/w 2005-2012, 179 ships hijacked off coast of Somalia and Horn of Africa -Average pay $2.7m USD, ordinary receiving $30,000 to $75,000 each + bonuses for weapons & boarding ship (Nikolić - 2013 )

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3. What is kidnap and ransom?!○  1. Hijack for transportation ○  2. Extortion hijacking (Holden, 1986)!

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○  Case study 1: ○  MV Faina, loaded with Soviet era tanks and other

heavy weapons ○  cargo ship seized Sept 25 2008 ○  Navy did not take action, as pirates still hold many

hostages from other ships: Cmdr. Jane Campbell (U.S Navy’s Bahrain based 5th Fleet)

○  147 hostages ○  concern for well being ○  ‘..Somali piracy no longer affected just small coastal

vessels but important and dangerous cargos’ (Roger Middleton, Analyst. SkyNews)!

3. What & who -kidnapped?

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3. What & who is kidnapped?!○  Case study 2: MV Biscaglia ○  Nov 28, 2008 ○  chemical tanker under attack ○  Gulf of Aden ○  security= two unarmed men ○  tons of highly flammable palm oil (Carl Mason, Pirate Hunter)!

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3. What & who - kidnapped?

○  Case study 3: ○  MV Orna hijacked in Dec 2010 ○  400 nautical miles NE of Seychelles ○  pirates hold 6 ships, some 170 crew (Huffington Post, 2012) ○  $600,000 ransom paid ○  - 6 hostages still held by pirates on land ○  P shot and killed on elf ships crews in Aug 2012

over delayed ransom payment!

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4. What are the consequences?!

○  Loss of or damage to ship ○  Ransom to secure release seized ship, crew & cargo-

who pays? ○  ship’s hull & machinery (M&M) marine Risk ○  war risks insurance policy ○  Kidnap & ransom (K&R) insurance ○  issues relating to payment of ransom ○  loss of hire ○  protection and indemnity (P&I) position ○  implications of employing PMSCs !

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○  ‘I think the best way to actually fight the piracy is to tackle these things from the land’ (Somali PM Omar A.A. Sharmarke)

○  non functioning national Gov. since 1991 ○  Islamist insurgents control much of south and centre

of country (Int. Maritime Bureau) ○  Warships: US, India, UK, France, Germany, China,

SK!

4. What are the consequences?!

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5. What is the impact on seafarers?!

○  Post-traumatic stress disorder (PTSD) syndrome ○  obsessive compulsive behaviour ○  paranoid ideation ○  generalised anxiety ○  social phobia ○  depression ○  comparison on victims of political conflicts, war prisoners ○  impact on victims not yet fully investigated (ansa.it) ○  ‘Now I don’t have another choice, it’s my job, my mlife,

[I] miss my wife and child.’ (N. Gerasimos, Ship Assistant)

○  ‘[impact] because of it they will never come back to sea again.’ (Reverend Peter Ellis, Mission to Seamen (HK))!

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○ Findings 2011 Oceans Beyond Piracy Report ○ human cost to piracy • 3,863  seafarers  were  Oired  upon  by  Somali  pirates  with  assault  riOles  and  rocket  propelled  grenades;  • 968  seafarers  came  into  close  contact  with  pirates,  who  managed  to  board  their  vessels;  • 413  seafarers  were  rescued  from  citadels;  • 1,206  hostages  were  held  captive  by  Somali  pirates;  • 555  seafarers  were  taken  hostage  in  2011;  645  hostages  were  captured  in  2010  and  remained  captive  during  2011;  6  tourists  and  aid  workers  were  kidnapped  on  land;  • 35  hostages  died  as  a  result  of  pirate  captivity  in  2011;  • Average  length  of  captivity  was  8  months.  

5. What is the impact on seafarers?!

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○ Save Our Seafarers: The Cost of Piracy SaveOurSeafarers was established in March 2011 and is calling for unified action to raise awareness of the human and economic cost of piracy. We are one of the biggest ever maritime industry groupings, comprising twenty-eight organisations that have joined together to raise awareness of the human and economic cost of piracy. Our campaign has gained support worldwide including, the Philippines, South Africa, the Netherlands, the United Arab Emirates and from many other countries within Europe. We understand the problems Somalia faces (the most prolific area for attacks) after 20 years of vicious civil war but we believe our innocent seafarers and the global economy have the right to protection. We are asking Governments to take a firmer stance to help tackle piracy by prioritising six key actions: -Reducing the effectiveness of the easily-identifiable motherships -Authorising naval forces to hold pirates and deliver them for prosecution and punishment -Fully criminalising all acts of piracy and intent to commit piracy under national laws, in accordance with their mandatory duty to co-operate to suppress piracy under international conventions -Increasing naval assets available in this area -Providing greater protection and support for seafarers -Tracing and criminalising the organisers and financiers behind the criminal networks. http://www.saveourseafarers.com This film was produced by YourFilm and won the Tyne Tees & Borders Royal Television Society Award 2011 for Best Promotion or Commercial.http://www.youtube.com/watch?v=ykKQJkMkyfQ!

5. What is the impact on seafarers?!

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6. How could mediation be used here?!

○  Would you mediate? ○  When would you consider it? ○  How would you initiate it? ○  What does it mean to mediate? ○  Between which parties would you mediate? ○  What possible outcomes would you envisage?!

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6. How could mediation be used here?!Case Study 4: Spanish trawler ‘Alakrana’& 36 crew ○ Spanish warship looked on as $3.3 m ransom delivered to Somali pirates

○ ‘The government did what it had to do,’ PM Jose L.R.Zapatero. ‘The important thing is that the sailors will be back with us. The first obligation of a country, of the government of a state, is to save the lives of its countrymen.’ (Huffington Post 09)!

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7. What are the views in the shipping industry? !

‘The  pirates  also  have  the  power  to  corrupt  the  regional  and  international  economies”  (Stuart  Yikona,  World  Bank)    ‘Shipowners  could  do  nothing  but  sit  and  wait.’  ‘The  crew  are  foremost  for  us,  so  when  we  heard  the  captain’s  distress  it  was  difOicult.’    (Per  Gullstrup,  CEO  of  Clipper  Projects)!

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7. What are the views in the shipping industry?!○  Case study 5: Savina Caylyn and crew ○  Long captivity 316 days ○  Italian maritime traffics -most attacked ○  41 ships attacked in Indian Ocean (2005-2012) and

4 kidnapped (2011 to 2015) (ICC-CCS.org)!

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7. What are the views in the shipping industry?!

○  Case study 6: South Korean ship operating off Somalia (2000) operating off coast of Somalia

○  S.K’s Joint Chiefs of Staff, 4,500 ton class

warship sent a Lynx helicopter to assist N.K vessel

○  took place 37 km south of Yemeni port of Aden!

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7. What are the views in the shipping industry?!

○  11 Somali pirates captured 900km east of the Kenyan port of Mombasa by French warship taken to Kenya for trial (French MoD)

○  International Tribunal? Britain, US and EU signed MoU with Nairobi that Kenya act as tribunal

○  Issues? Short of funds?!

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7. What are the views in the shipping industry? !

○  World Shipping Council (WSC) ○  International Chamber of Shipping (ICS) ○  International Maritime Organisation (IMO) ○  Best Management Practices (BMPs): avoid, deter,

delay

○  International Transport Workers’ Federation (ITF) ‘Save our Seafarers’ campaign’

○  ID mother ship ○  naval forces to detain pirates & for prosecution and

punishment ○  co-operation under international convention!

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○  Private Maritime Security Companies ○  Montreux Document ○  PSC1 ○  ICoC ○  ISO 20078 ○  SOLAS, Art 34-1 ‘The Owner, Charter, the Company

operating the ship as defined in Reg. 1X/1 or an other person shall not prevent or restrict the Master of the ship from taking or executing any decision which, in the Master’s professional judgement, is necessary for the safety of life at sea and protection of the marine environment.’

○  ISPS code: ’At all times the master of a ship has the ultimate responsibility…’

○  Maersk Alabama Case 2009!

7. What are the views in the shipping industry?

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7. What are the views in the shipping industry?!○  ‘The shipping industry needs to ensure that

people who own ships are bona fide operators and can afford to protect the crews they hire.’

(Roy Paul, MPHRP)

○  Insurers: require disclosure & information ○  Cargo: legality, contract, information ○  Charters: agreeing on route, authorised acts ○  Weapons?!

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7. What are the views in the shipping industry?!

○  Resources ○  Sharing of information ○  Need for regulation? ○  Enquiry and questioning ○  Maritime Security Centre - Horn of Africa

(www.MSCHOA.org) ○  NATO Shipping Centre (www.shipping.NATO.int) ○  Internationally Recommended Transit Corridor (IRTC)!

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Thank you!○  Helen Tung!Helentung.blogspot.com!!!!!Asia-Pacific Forum for International Arbitration (AFIA)!http://afia.asia!!Upcoming!IBA Conference 2014!Maritime Committee on Vessel Regulation!!!