ghana shippers’ authority - providing shipping solutions [email protected] dr kofi mbiah

Ghana Shippers’ Authority - Providing Shipping Solutions

[email protected]

DR KOFI MBIAH


8th MARITIME LAW SEMINAR FOR JUDGES OF THE SUPERIOR COURTS

OF JUDICATURE , 11TH OCTOBER 2012, COCONIT GROOVE REGENT

HOTEL, ACCRA


INTRODUCTION

DEFINITIONS

ACTS OF MARITIME TERRORISM

LEGAL FRAMEWORK

CONCLUSIONS

OUTLINE


9/11 New York’s World Trade Center 3/11 Madrid, Spain

Bali, Indonesia London, England Cairo, Egypt


Luis Diaz Monclu’s “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”

Bali, Indonesia

London, England


Also defined as “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.”

3/11 Madrid, Spain

Cairo, Egypt


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

9/11 New York’s World Trade Center


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


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•HijackingHigh Profile:

Achille Lauro – 19854 PLO hijackersEgypt, Italy, USSurrender for safe rangeF14 FightersSettlement 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


Terror GroupsJemaah Islamiyah (JI) and the MILF’s Special Urban Terrorist Group’s (Sutag) alleged bombing of Sasa Wharf in Davao City last 02 April 2003.

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 MILF’s Special Urban Terrorist Group’s (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 - THE ISPS Code International 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 .


SUA CONVENTION (a response to Achille Lauro)Adopted in Rome in March 1988

Entered into force in 1992

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

http://2.bp.blogspot.com/_bDsV9xf-Zw4/SaFzlIpefhI/AAAAAAAAAbo/Ysz0XYl6wKE/s1600-h/Saldanha+o.jpg


The factsSeized in February 2009 and held until April 2009; ship on time charterShipowner demanded hire from time chartererThe exception in clause 15 exempted hire for loss of time due to the “detention of the 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? Constructive total loss

Could 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)



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

Not illegal under English law

But what if illegal under foreign law – recent Obama’s executive order



http://upload.wikimedia.org/wikipedia/commons/7/7d/Zonmar-en.svg


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 - providing shipping solutions [email protected] dr kofi mbiah

Documents

accraghana shippers

ship ghana shippers

egypt ghana shippers

shipping solutionshijackings

shipping solutionsalso

maritime environment

maritime security threats

use of political violence