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8th MARITIME LAW SEMINAR FOR JUDGESOF THE SUPERIOR COURTS OF JUDICATURE ,
11TH OCTOBER 2012, COCONIT GROOVE
REGENT HOTEL, ACCRA
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INTRODUCTION
DEFINITIONS
ACTS OF MARITIME TERRORISM
LEGAL FRAMEWORK
CONCLUSIONS
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9/11 New Yorks World Trade Center 3/11 Madrid, Spain
Bali, Indonesia London, England Cairo, Egypt
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Luis Diaz Monclus
Terrorism is neither anideology nor a politicaldoctrine; it is the use of
political violence byradicals againsteverybody andeverything within thewhole politicalspectrum. It is notmerely a method; it alsoimplies a tendencytowards violence
Bali, Indonesia
London, England
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Also defined as An act carried out
to achieve an
inhuman and corrupt(mufsid) objective,and involving athreat to security ofany kind and
violation of rightsacknowledged byreligion andmankind.
3/11 Madrid, Spain
Cairo, Egypt
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US Department ofDefense: The unlawful use of or
threatened use of force
or violence againstindividuals or propertyto coerce or intimidategovernments orsocieties, often toachieve political,religious or ideologicalobjectives.
Diff between terrorismand just struggles
9/11 New Yorks
World Trade Center
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Definition of Maritime Terrorism
Any person or group acting outside thejurisdiction of a sovereign state, for a
political motive who executes or plots toexecute an attack against a ship, port facilityor offshore facility, or attempts to furthertheir political motives by utilising elements in
the maritime environment to execute an actof terrorism.
Emphasis on Port and Ship
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MARITIME THREATS
Unauthorised personnelaccess to ship and port
areasAccess of terrorists andthieves and their effects toships through lawfulmeansUnauthorised access ofships to port areasUse of ships as weaponsin ports or critical
waterways
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Use of containers asweapons or means ofsmuggling people andunlawful or dangerous
cargoes Theft of information that
could identify maritimeinstallations of
vulnerability Attacks on transport
infrastructure andinstallations, bridges,pipelines, rail networks,etc
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ACTS OF MARITIME TERRORISM
Piracy
Armed robberyHijackingHigh Profile:
Achille Lauro19854 PLO hijackers
Egypt, Italy, USSurrender for safe rangeF14 FightersSettlement and freeing of hijackers
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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 NigerDelta (MEND)
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2003
Stealing of Australian customs servers fromhigh security area
Attacks off the Somali Coast
The Seabourn Spirit
November 2005
Distance 160 km and high tech
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Terror GroupsJemaah Islamiyah (JI) and the MILFs SpecialUrban Terrorist Groups (Sutag) allegedbombing of Sasa Wharf in Davao City last 02April 2003.
the explosion/ fire incidenton board MV Super Ferry 14lost 27 February 2004.
Abu Sayyaf Group (ASG)Movement for the Emancipation ofthe Niger Delta (MEND)Jemaah Islamiya (JI)
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Jemaah Islamiyah (JI) and the MILFs SpecialUrban Terrorist Groups (Sutag) alleged bombingof Sasa Wharf in Davao City 02 April 2003.
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The ASG claimed responsibility over theexplosion/ fire incident on board MV SuperFerry 14 lost 27 February 2004.
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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
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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
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THE ALONDRA RAINBOW
Suspect ship flying Belize flag MegaRama
Attack and submission INVESTIGATIONS
Nanda and Mintando
M.V. Sanho - Jakarta Sailed for Stern of Alondra
Capture and transfer
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THE ALONDRA RAINBOW
Change of name Global Venture
Transfer of 3000 metric tons to Bonsoon II
Changed name again to Mega Rama
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THE INTERNATIONAL LEGAL FRAMEWORK
THE CONSTITUTION OF THE SEAS -
THE UNITED NATIONS CONVENTION ONTHE LAW OF THE SEA (UNCLOS) 1982
THE SUA TREATIES THE TERRORIST BOMBING CONVENTION
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THE INTERNATIONAL LEGAL FRAMEWORK
SOLAS CHAPTER 11 - THE ISPS Code
International Ship and Port Facility SecurityCode
Code Specifies :
Minimum protective measures all times
Additional period of time-heightened risk
Specific when incident is probable orimminent
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Objectives
To establish roles and responsibilities
Early and efficient collation and exchange ofinformation
Security assessments and plans
Procedures to react to changing securitylevels
To ensure confidence .
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SUA CONVENTION (a response to AchilleLauro)
Adopted in Rome in March 1988
Entered into force in 1992
Contracting States 142 92.24%of world tonnage ( Ghana)
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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
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The Saldanha
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The factsSeized in February 2009 and held until April2009; ship on time charter
Shipowner demanded hire from timechartererThe exception in clause 15 exempted hirefor loss of time due to the detention of the
vessel by average accidents to ship orcargo; loss of time due to the defaultand/or deficiency of men; or loss of timeby any other cause.
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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 thevessel to sail but her crew refused to do so,
except in convoy. Was the vessel off-hire? Anyother cause? Not to extend to an extraneousinterference.
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The Court held that the words "deficiency ofmen" meant "numerical insufficiency". Sincethe vessel had a full complement of crew, shipwas 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 deficiencyof men cannot mean failure of crew becauseof pirate capture
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The Bunga Melati Dua
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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 shipfinally arrived at Rotterdam without damage on 26Oct 2008
On 18 Sep 2008 Masefield served notice ofabandonment and claimed compensation frominsurer.
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Actual total loss
Is the owner irretrievably deprived of thegoods?
Constructive total lossCould the cargo be reasonably abandoned on
account that the actual total loss appearing
unavoidable? Factual test understanding the modern
threat (especially in Gulf of Aden)
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CAN RANSOM MONEY BE RECOVERED UNDER ANINSURANCE POLICY?
Can it be claimed as general average? But note TheSaldanha
it is possible that the payment of a ransom by a shipowner to secure the release of his ship can beconsidered a sue and labour expense, assuming thatthe policy covers the peril which the sue and labourexpense (ie the ransom) was paid to avoid. Hull andcargo policies generally contain a "duty of assured"
clause requiring the assured to take such measures asmay be reasonable to minimize or avert a loss whichwould be recoverable under the policy (mirroringsection 78 of the Marine Insurance Act 1906
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Not recoverable if payment illegal
Not illegal under English law
But what if illegal under foreign
law recent Obamas executiveorder
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THE ENRICA LEXIE
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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?
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THE SS LOTUS (1927)
French steamer the ss Lotus collided
with Turkish vessel the boz kourt
killing 8 crew and passengers on highseas
French vessel arrested and crew tried in Turkey
Permanent Court of International Justice
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What occurs on board a vessel on the high seas mustbe regarded as if it occurred on the territory of thestate whose flag it flies. If ,
therefore a guilty act committed on the high seasproduces its effects on a vessel flying another flag or
in a foreign territory, the same principles must beapplied as if the territories of two different stateswere concerned and the conclusion must therefore bedrawn that there is no rule of international lawprohibiting the state to which the ship on which the
offence has taken place belongs, from regarding theofence as having been committed on its territory andprosecuting accordingly, the delinquent. the effectsdoctrine
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IS A SHIP PART OF A STATES TERRITORY?
View no longer holds
The 1952 Convention for the unification ofCertain Rules Relating to PenalJurisdiction in matters of collision
Limits jurisdiction over collision on high
seas to flag state
Nationality of the crew
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The Position received the blessing ofarticle 11 of the 1958 Geneva Convention onthe High Seas
Consecreted in Article 97 of UNCLOS
The Enrica Lexie is a complex one
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Terrorism hostis humanis generis
We are all determined to fight terrorismand to do our utmost to banish it from the
face of the earth, but the force we use tofight it should always be proportional andfocused on the actual terrorist. We cannotand must not fight them by using theirmethodsby inflicting indiscriminateviolence and terror on innocent civilians,including children.Kofi Annan
Intricate and delicate balance resiliently and robustly withoutdisruption in trade and the supply chain.
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THANK YOU FOR YOUR KIND ATTENTION
THE COSTA CONCORDIA
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