Piracy - A major problem in modern times

The extent of the problem:

Piracy is an extremely serious problem to shipping.   The International Maritime Bureau (IMB) has published figures for piracy and armed robbery incidents reported to the IMB in 2012.  Up to the end of January, 37 attacks worldwide were reported - read  Piracy News and Figures   Further IMB material shows that attacks are getting bolder (IMB 14th July 2011 - an article with some truly frightening information).   Nevertheless, the IMB indicated that although world piracy had a hit a new high, more ships were escaping from Somali pirates - see IMB 18th October 2011  This article stated:

"Demanding millions of dollars in ransom for captured ships and their crews, Somali pirates are intensifying operations not just off their own coastline, but further afield in the Red Sea – particularly during the monsoon season in the wider Indian Ocean. With unprecedented boldness, this August pirates also boarded and hijacked a chemical tanker at anchor in an Omani port, under the protection of coast state security.

But although Somali pirates are initiating more attacks – 199 this year, up from 126 for the first nine months of 2010 – they are managing to hijack fewer vessels. Only 24 vessels were hijacked this year compared with 35 for the same period in 2010. Hijackings were successful in just 12% of all attempts this year, down from 28% in 2011."

The IMB reported a doubling of piracy across the world in the first half of 2009 - see Maritime Terrorism Research Center 16th July 2009  and an interactive map for 2010 is also available.   See further the Piracy and Armed Robbery interactive maps for 2011 and 2012.

Legal definitions:

The United Nations Convention on the Law of the Sea 1982 (UNCLOS) places a duty on

all States to cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State (Article 100).  The Convention Article 101 defines piracy as follows:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

The Convention continues to consider piracy by a warship, government ship or government aircraft

whose crew has mutinied (Art 101);

Article 105 provides for the seizure of a pirate ship or aircraft - "On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights

of third parties acting in good faith."

A further important basic document is the International Maritime Organisation's Resolution A.1025 (26) of 2009 - "Code of Practice for the investigation of crimes of piracy and armed robbery against ships."

Piracy and English Law:

A very useful discussion of piracy is contained in written evidence to Parliament by Law lecturer Douglas Guilfoyle of University College, London -  "Piracy off the Coast of Somalia"

The Merchant Shipping and Maritime Security Act 1997 s.26 / Schedule 5 are concerned with piracy.  Section 26(1) states - "For the avoidance of doubt it is hereby declared that for the purposes of any proceedings before a court in the United Kingdom in respect of piracy, the provisions of the United Nations Convention on the Law of the Sea 1982 that are set out in Schedule 5 shall be treated as constituting part of the law of nations."

As Douglas Guilfoyle noted: 

"The offence of ‘piracy by law of nations’ or ‘piracy jure gentium’ is a common law crime recognised in many Commonwealth jurisdictions.   .... it involves judges discerning the current definition of piracy at international law and applying it as national law. The leading case  ... is Re Piracy Jure Gentium [1934] AC 586. This will, however, assist prosecutors little as the case was not a full criminal trial, but an appeal from the courts of Hong Kong to the Privy Council on a point of law. Their lordships in Re Piracy Jure Gentium, therefore, did not offer a comprehensive definition of the offence but did note that it included ‘frustrated attempt’. Piracy has been recognised as recently as 2007 in House of Lords cases as, exceptionally, being originally a crime incorporated into British law from international law without an implementing statute.  In sum, piracy is clearly an offence under English law. However, any court applying the Merchant Shipping and Maritime Security Act 1997 will have to interpret the common law offence of ‘piracy by law of nations’ to include the offence defined in Articles 101-103 of UNCLOS but otherwise with limited guidance from the case law."


The 2007 House of Lords decision referred to was Jones [2007] 1 AC 136

Piracy Trials held in the Seychelles:

For details of a number of recent trials held in the Seychelles - see Grotian Moment - Piracy Trials

Action to combat piracy:

In relation to the Gulf of Aden and Horn of Africa, naval measures have been instituted to try to combat piracy.  The videos available via NATO Counter-Piracy Operations are well worth seeing.

Defending the ship?

See UK Government guidance document on the use of armed guards against piracy - November 2011


Also of interest is Ince & Co's -"Piracy - Issues arising from use of armed guards."

Insurance?

It would be natural for the shipper to turn to Marine Insurance as a means of covering potential loss due to piracy.  This is a problematic area into which the following links offer some insight:


"Somali Piracy: The effect of ship hijacking on Marine Insurance Policies" - John Knott - Holman Fenwick Willan LLP.  This article refers to the case of Masefield AG v Amlin Corporate Member Ltd [2010] EWHC 280 (Comm) decided by Mr Justice David Steel. 


"Piracy under Marine Insurance Policy" - article by Nicola Kneizeh of the Legal Consultancy Fichte & Co - 19th July 2010.


Additional Links:

Article: Piracy Jure Gentium and International Law 

In the UK, the death penalty for piracy was abolished by the Crime and Disorder Act 1998 s.36 

See Douglas Guilfoyle's website - here 

European Journal of International Law - "Piracy, Law of the Sea, and use of force: Developments off the coast of Somalia" - Author: Tullio Treves 2009 

Addendum 22nd February:

The Guardian 22/2/12 - "Somali pirates take more risks and rethink tactics"