Ship Piracy

In some circumstances, ship’s master could ask help of coast guard, navy at anchorage or police at pier. However, a ship is responsible for its own security against pirates, thieves and others. A kidnapped ship might be used in connection with a terrorist action. Lately, there has been an upsurge in public awareness of piracy in the last few years because of movie Captain Phillips about pirate attacks against the container ship MV Maersk Alabama. Therefore, governments around the world adopted new ship security measures through increased port and cargo security requirements.

A ship’s captain is ultimately responsible for ship’s security and all matters affecting the ship. Ship security has been a matter of government regulation for many years. After 1985 Italian cruise ship MS Achille Lauro terrorist attack, passenger ship security was specifically improved. September 11, World Trade Center terrorist attacks triggered international action to protect ships from terrorist attack and prevent ships from being used by terrorists to conduct attacks.

United States Congress passed the Maritime Transportation Security Act of 2002 (MTSA) and the United Nations (UN) International Maritime Organization (IMO) adopted the 2002 Amendments to the Safety of Life at Sea Convention, 1974 (SOLAS) containing requirements known as the International Ship and Port Facility Security (ISPS) Code.

Maritime Transportation Security Act of 2002 (MTSA) authorized the United States Coast Guard to implement its provisions by an interim regulation which the Coast Guard promulgated on 1 July 2003 and finalized in 2007. International Ship and Port Facility Security (ISPS) took effect on 1 July 2004. International Ship and Port Facility Security (ISPS) is binding on all nations that are signatories to Safety of Life at Sea Convention (SOLAS), including the United States.

Main purpose of both Maritime Transportation Security Act of 2002 (MTSA) and International Ship and Port Facility Security (ISPS):

  • to promote heightened security of ships and ports
  • to prevent terrorist and criminal acts against shipping
  • to prevent ocean shipping and its modalities from being used for terrorist attacks
  • International Ship and Port Facility Security (ISPS) also promotes uniformity amongst ship and port security practices and facilitates the efficient exchange of security-related information.

Maritime Transportation Security Act of 2002 (MTSA) authorizes some federal government funding support for the adoption of security measures. Maritime Transportation Security Act of 2002 (MTSA) places most of the responsibility for security on private parties.

Affected ships and port facilities are required to develop security plans, submit those plans to the federal government, adopt measures in accordance with those plans and report security incidents to the federal government. United States Coast Guard is the federal agency charged with administering Maritime Transportation Security Act of 2002 (MTSA).

International Ship and Port Facility Security (ISPS) directs countries to adopt security requirements applicable to port facilities in their territories, ships they register and ships entering their ports. United States Coast Guard incorporated by reference International Ship and Port Facility Security (ISPS) into its security regulations on 22 October 2003. If a commercial cargo and passenger ship is registered in the United States or intend to enter United Sates waters, a ship must have a security plan. United States Coast Guard inspects ships under its Port State Control (PSC) regime for compliance with security and safety requirements. Ships must undergo security assessment to identify potential vulnerabilities and risks. Ship security plan lays out methods of protecting against these vulnerabilities and risks. Ship security plan also appoints trained security officer both for the ship and for the ship operating company. Ships must also undergo periodic inspections to ensure compliance with their security plan. International Ship Security Certificate is an evidence for compliance with International Ship and Port Facility Security (ISPS) requirements. When a ship that arrives in a port without valid International Ship Security Certificate, ship may be required to wait at anchorage until such a certificate is obtained. Hence, a ship may be subject to increased inspection and scrutiny. Maritime Transportation Security Act of 2002 (MTSA) established new requirements for the identification and verification of crew members. Maritime Transportation Security Act of 2002 (MTSA) also established a regime requiring persons seeking unescorted access to port facilities and ships to hold transportation security cards issued by the United States Department of Transportation (DOT). Transportation Security Cards are called Transportation Worker Identification Credential (TWIC) cards. Transportation Worker Identification Credential (TWIC) cards are only issued after a background check is undertaken by United States Government. Foreign crew members are unlikely to hold Transportation Worker Identification Credential (TWIC) cards. Foreign crew members ability to go ashore is more limited.

Seafarers are granted shore leave by the Immigration Officers. Ship operator will be required to hire  minibus with an approved Transportation Worker Identification Credential (TWIC) card holding driver.  Approved driver pick up seafarers from terminals and then to drive them to the city.

Required documents from ships arriving in United States waters:

  • advance Notice of Arrival with the United States Coast Guard
  • crew and cargo manifests with United States Customs and Border Protection

Piracy has long been an international crime. Piracy is the first universally recognized international crime. Piracy definition set out in Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS). According to Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS)’s piracy definition piracy consists of any of the following acts:

  • any illegal acts of violence or detention
  • any act of depredation, committed for private ends by the crew or the passenger of a private ship or a private aircraft and directed:
  • On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft
  • Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.

United States is not a party to United Nations Convention on the Law of the Sea (UNCLOS). However, United States is a party to the 1958 United Nations Convention on the High Seas. United Nations Convention on the High Seas has almost identical definition of piracy.

Piracy has existed since start of commercial seagoing commerce and has remained as peril of the sea. Before 2004, piracy was a significant threat in the Straits of Malacca. In the Straits of Malacca regional governments engaged in a concerted effort to remedy the piracy problem. ln Somalia, piracy surged between 2005 and 2011. In Somalia, 149 ships have reportedly been ransomed for an estimated total of  around $385 million.

United States laws about piracy:

  • Article I, Section 8 of the United States Constitution expressly grants the United States Congress the authority: To define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations.
  • United States Federal law also states: Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

United States Congress in 2010 amended United States law with regard to U.S.flag ships and piracy and, and defined piracy as any act of aggression, search, restraint, depredation or  seizure attempted against a ship of the United States by an unauthorized person.

United States Constitution grants the United States Government the right to prosecute and punish acts of piracy outside of United States territorial jurisdiction on the high seas. Such extraterritorial jurisdiction is sanctioned under customary international law on the basis that piracy is a crime against all nations. Hence, each maritime nation has the right to punish perpetrators, without regard to whether their actions have any connection to that nation, to prevent lawlessness on the high seas.

U.S.-flag ships have an express right of self-defense from piracy. Under United States law, crew members may oppose and defend against any aggression, search, restraint, depredation or seizure, which shall be attempted by pirates.

United States Coast Guard issued Maritime Security (MARSEC) Directives and according to United States laws, all U.S.-flag ships must comply with Maritime Security (MARSEC) Directives. Maritime Security (MARSEC) Directive (104-6) mandates that Ship Security Plans include anti-piracy measures. United States Federal law was amended in 2012.and require federal agencies shipping cargoes through high risk areas to provide U.S.-flag ships with armed personnel or reimburse ship owners for the cost of providing such armed personnel.

Ship owners can obtain insurance to cover ransom payments. Generally, war risk insurance coverage covers the payment of ransom to recover damage to ship and crew members. Specific kidnap and ransom insurance is also available. Specific kidnap and ransom insurance may duplicate the war risk coverage. Ransom payments may be illegal in certain situations.

Fraudulent practices undertaken by captain or crew members of a ship against the interests of the ship owner is called barratry. Barratry occurs if captain or crew members engage in smuggling, trading with enemy, plunder or destroy cargo or a ship.

A person who hides aboard a ship for the purpose of obtaining unauthorized passage aboard the vessel is called stowaway. Ship charters generally allocate responsibility for stowaways among in charter parties. Generally, ship owner is the person who is responsible for securing discovered stowaways. When a stowaway is found on board of a ship, ship owner afford stowaway reasonable treatment until stowaway can be turned over to the responsible authorities at the ship’s next port of call.