Ghana Shippers' Authority Maritime Law Seminar on Terrorism and Piracy

DR KOFI MBIAH
www.ghanashippersauthority.com info@shippers-gh.com
Ghana Shippers Authority Providing Shipping Solutions
8th MARITIME LAW SEMINAR FOR JUDGES OF THE SUPERIOR COURTS OF JUDICATURE , 11TH OCTOBER 2012, COCONIT GROOVE REGENT HOTEL, ACCRA
Ghana Shippers Authority -
Providing Shipping Solutions
OUTLINE

INTRODUCTION DEFINITIONS
ACTS OF MARITIME TERRORISM

LEGAL FRAMEWORK CONCLUSIONS
9/11 New Yorks World Trade Center
3/11 Madrid, Spain
Bali, Indonesia
London, England
Cairo, Egypt
Luis Diaz Monclus
Bali, Indonesia
Terrorism is neither an ideology nor a political doctrine; it is the use of political violence by radicals against everybody and everything within the whole political spectrum. It is not merely a method; it also implies a tendency towards violence
London, England
3/11 Madrid, Spain
Also defined as
Cairo, Egypt
An act carried out to achieve an inhuman and corrupt (mufsid) objective, and involving a threat to security of any kind and violation of rights acknowledged by religion and mankind.
9/11 New Yorks World Trade Center
US Department of Defense: The unlawful use of or threatened use of force or violence against individuals or property to coerce or intimidate governments or societies, often to achieve political, religious or ideological objectives. Diff between terrorism and just struggles
Definition of Maritime Terrorism Any person or group acting outside the
jurisdiction of a sovereign state, for a political motive who executes or plots to execute an attack against a ship, port facility or offshore facility, or attempts to further their political motives by utilising elements in the maritime environment to execute an act of terrorism.
Emphasis on Port and Ship

MARITIME THREATS
Unauthorised personnel access to ship and port areas Access of terrorists and thieves and their effects to ships through lawful means Unauthorised access of ships to port areas Use of ships as weapons in ports or critical waterways Ghana Shippers Authority -
Use of containers as weapons or means of smuggling people and unlawful or dangerous cargoes Theft of information that could identify maritime installations of vulnerability Attacks on transport infrastructure and installations, bridges, pipelines, rail networks, etc
ACTS
OF MARITIME TERRORISM
Piracy Armed robbery Hijacking High Profile:
Achille Lauro 1985 4 PLO hijackers Egypt, Italy, US Surrender for safe range F14 Fighters Settlement and freeing of hijackers
Hijackings and Maritime Violence

The
Vory Karachi (1974) The Petro Ranger (1998) The Han Wei (2002) Mujahid Dokubo-Asari Niger Delta Peoples Volunteer Force (NDPVF) Movement for the Emancipation of the Niger Delta (MEND)
Bombings
The
USS Cole (2000) Our Lady of Mediatrix (2002) MV Limburg (2002) MV [Superferry] Manila (2004)
2001
Al
Qaeda in Freight Container Gioia Tauro Laptops, cameras, phones Identity documents
2003
Stealing
of Australian customs servers from high security area Attacks off the Somali Coast The Seabourn Spirit
November 2005
Distance
160 km and high tech
Jemaah Islamiyah (JI) and the MILFs Special Urban Terrorist Groups (Sutag) alleged bombing of Sasa Wharf in Davao City last 02 April 2003.
Terror
Groups
the explosion/ fire incident on board MV Super Ferry 14 lost 27 February 2004.
Abu Sayyaf Group (ASG) Movement for the Emancipation of the Niger Delta (MEND) Jemaah Islamiya (JI)
Jemaah Islamiyah (JI) and the MILFs Special Urban Terrorist Groups (Sutag) alleged bombing of Sasa Wharf in Davao City 02 April 2003.
The ASG claimed responsibility over the explosion/ fire incident on board MV Super Ferry 14 lost 27 February 2004.
NEW THREATS Political, Social and Technological Changes Proliferation of weapons of mass destruction Chemical and biological www easy access Situation fuelled by
Religious fundamentalism Cold war Increasing desire to use force
Single superpower
THE ALONDRA RAINBOW
Panamanian Flagged Sailed From Tanjung to Miike Oct 1999 Vessel attacked Crew Transfer and held captive for a week Message alerts IMB Piracy Reporting Centre Indian Coast Guard
THE ALONDRA RAINBOW Suspect ship flying Belize flag Mega Rama Attack and submission INVESTIGATIONS Nanda and Mintando M.V. Sanho - Jakarta Sailed for Stern of Alondra Capture and transfer
THE ALONDRA RAINBOW
Change of name Global Venture Transfer of 3000 metric tons to Bonsoon II Changed name again to Mega Rama
THE INTERNATIONAL LEGAL FRAMEWORK THE CONSTITUTION OF THE SEAS -
THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS) 1982 THE SUA TREATIES THE TERRORIST BOMBING CONVENTION
THE INTERNATIONAL LEGAL FRAMEWORK
SOLAS CHAPTER 11
International
- THE ISPS Code
Ship and Port Facility Security
Code Code Specifies : Minimum protective measures all times Additional period of time-heightened risk Specific when incident is probable or imminent
Objectives To establish roles and responsibilities
Early and efficient collation and exchange of information Security assessments and plans Procedures to react to changing security levels To ensure confidence .
Adopted in Rome in March 1988 Entered into force in 1992
SUA CONVENTION (a response to Achille Lauro)
Contracting States 142 92.24% of world tonnage ( Ghana)

2005 PROTOCOLS
HIGHLIGHTS New Concepts BCN Expanded category of offences Introducing Boarding provisions The Virginius (1873) self preservation and freedom of navigation 4-hour rule
The Saldanha
The
Seized in February 2009 and held until April 2009; ship on time charter Shipowner demanded hire from time charterer The exception in clause 15 exempted hire for loss of time due to the detention of the
facts
vessel by average accidents to ship or cargo; loss of time due to the default and/or deficiency of men; or loss of time by any other cause.
The
law
Average accident
damage to ship required Intentional damage not accident
default or deficiency of men
Royal Greek Government (1949), the words were

deficiency of men - the charterers ordered the vessel to sail but her crew refused to do so, except in convoy. Was the vessel off-hire? Any other cause? Not to extend to an extraneous interference.
The
Court held that the words "deficiency of men" meant "numerical insufficiency". Since the vessel had a full complement of crew, ship was not off hire. Wilful refusal to work not included In response to the case, the NYPE changed the wording to include default of men. Therefore on that basis, default or deficiency of men cannot mean failure of crew because of pirate capture
The Bunga Melati Dua
THE FACTS
Bio-diesel shipped from Malaysia to Rotterdam insured for theft and piracy MISC shipowners Masefield cargo owners Amlin insurer Seized in 28 Aug 2008; ransom agreed and the ship finally arrived at Rotterdam without damage on 26 Oct 2008 On 18 Sep 2008 Masefield served notice of abandonment and claimed compensation from insurer.
Actual total loss

Is
the owner irretrievably deprived of the goods? the cargo be reasonably abandoned on account that the actual total loss appearing unavoidable?
Constructive total loss

Could
Factual test understanding the modern threat (especially in Gulf of Aden)

CAN RANSOM MONEY BE RECOVERED UNDER AN INSURANCE POLICY? Can it be claimed as general average? But note The
Saldanha
it is possible that the payment of a ransom by a ship owner to secure the release of his ship can be considered a sue and labour expense, assuming that the policy covers the peril which the sue and labour expense (ie the ransom) was paid to avoid. Hull and cargo policies generally contain a "duty of assured" clause requiring the assured to take such measures as may be reasonable to minimize or avert a loss which would be recoverable under the policy (mirroring section 78 of the Marine Insurance Act 1906
Not
recoverable if payment illegal illegal under English law
Not
But
what if illegal under foreign law recent Obamas executive order

THE ENRICA LEXIE
JURISDICTIONAL ISSUES THE ENRICA LEXIE italian flagged tanker detachment of six marines two marines shot & killed two indian fishermen on the st anthony vessel arrested in india Countries were parties to SUA and UNCLOS which country has jurisdiction?
THE SS LOTUS (1927)
French
steamer the ss Lotus collided with Turkish vessel the boz kourt killing 8 crew and passengers on high seas French vessel arrested and crew tried in Turkey Permanent Court of International Justice
What occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the state whose flag it flies. If , therefore a guilty act committed on the high seas produces its effects on a vessel flying another flag or in a foreign territory, the same principles must be applied as if the territories of two different states were concerned and the conclusion must therefore be drawn that there is no rule of international law prohibiting the state to which the ship on which the offence has taken place belongs, from regarding the ofence as having been committed on its territory and prosecuting accordingly, the delinquent. the effects doctrine
IS A SHIP PART OF A STATES TERRITORY? View no longer holds The 1952 Convention for the unification of Certain Rules Relating to Penal Jurisdiction in matters of collision Limits jurisdiction over collision on high seas to flag state Nationality of the crew
The Position received the blessing of article 11 of the 1958 Geneva Convention on the High Seas Consecreted in Article 97 of UNCLOS

The Enrica Lexie is a complex one
CONCLUSION
Terrorism hostis humanis generis
We are all determined to fight terrorism and to do our utmost to banish it from the face of the earth, but the force we use to fight it should always be proportional and focused on the actual terrorist. We cannot and must not fight them by using their methods by inflicting indiscriminate violence and terror on innocent civilians, including children.
Kofi Annan Intricate and delicate balance resiliently and robustly without disruption in trade and the supply chain.
THANK YOU FOR YOUR KIND ATTENTION
THE COSTA CONCORDIA

Ghana Shippers' Authority Maritime Law Seminar on Terrorism and Piracy

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DR KOFI MBIAH

Ghana Shippers Authority -

Providing Shipping Solutions

ACTS OF MARITIME TERRORISM

9/11 New Yorks World Trade Center

3/11 Madrid, Spain

Ghana Shippers Authority -

Providing Shipping Solutions

Luis Diaz Monclus

Providing Shipping Solutions

3/11 Madrid, Spain

Ghana Shippers Authority -

Providing Shipping Solutions

9/11 New Yorks World Trade Center

Ghana Shippers Authority -

Providing Shipping Solutions

Definition of Maritime Terrorism Any person or group acting outside the

Emphasis on Port and Ship

Ghana Shippers Authority -

Providing Shipping Solutions

Providing Shipping Solutions

Ghana Shippers Authority -

Providing Shipping Solutions

Piracy Armed robbery Hijacking High Profile:

Hijackings and Maritime Violence

Ghana Shippers Authority -

Providing Shipping Solutions

Ghana Shippers Authority -

Providing Shipping Solutions

160 km and high tech

Ghana Shippers Authority -

Providing Shipping Solutions

Ghana Shippers Authority -

Providing Shipping Solutions

Ghana Shippers Authority -

Providing Shipping Solutions

Religious fundamentalism Cold war Increasing desire to use force

THE ALONDRA RAINBOW

Providing Shipping Solutions

Ghana Shippers Authority Providing Shipping Solutions

THE ALONDRA RAINBOW

Ghana Shippers Authority -

Providing Shipping Solutions

THE INTERNATIONAL LEGAL FRAMEWORK THE CONSTITUTION OF THE SEAS -

Ghana Shippers Authority Providing Shipping Solutions

THE INTERNATIONAL LEGAL FRAMEWORK

- THE ISPS Code

Ship and Port Facility Security

Objectives To establish roles and responsibilities

Ghana Shippers Authority Providing Shipping Solutions

Adopted in Rome in March 1988 Entered into force in 1992

SUA CONVENTION (a response to Achille Lauro)

Contracting States 142 92.24% of world tonnage ( Ghana)

Ghana Shippers Authority -

Providing Shipping Solutions

Ghana Shippers Authority -

Providing Shipping Solutions

Ghana Shippers Authority -

Providing Shipping Solutions

default or deficiency of men

Royal Greek Government (1949), the words were

Ghana Shippers Authority -