Maritime Security 8th Judges

7/30/2019 Maritime Security 8th Judges

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Ghana Shippers Authority -Providing Shipping Solutions

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



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



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



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


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


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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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Maritime Security 8th Judges

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