Maritime Attorneys Deal With High Seas Piracy

Source: Law

Norwalk, Conn., maritime attorney Matthew Marion is no stranger to piracy on the high seas.

In his more than 22 years practicing law in New York and now Connecticut, he has represented insurance companies that have had to pay out on two ships stolen at sea and never returned. And he has been involved from a legal standpoint in numerous instances of pirates stealing cargo from ships and then demanding ransom payments from insurers.

"Cargo theft happens more often than one would like to think," said Marion, a member of the Maritime Law Association of the United States. "My insurance underwriters would like to keep that quiet, but it's an experience that a number of maritime lawyers have had to deal with."

So Marion was not surprised earlier this month when a band of four Somalian pirates armed with automatic weapons hijacked a U.S. container ship, the Maersk Alabama, in the Gulf of Aden in a failed attempt to hold the 20-man crew for ransom.

The Gulf of Aden, which links the Suez Canal and the Red Sea to the Indian Ocean, is one of the world's most prominent trade routes, crossed by more than 20,000 ships each year filled with hundreds of millions of dollars in cargo and equipment.

Pirate attacks in that region have been increasing every year, and the International Maritime Bureau (IMB) has long warned of the dangers lurking off the coastline of Somalia, a country that hasn't had a structured government since the early 1990s.

Now that an American ship has fallen victim, "it's got everyone's attention," Marion said. "[Piracy] has gone from being an issue for commercial shipping to an issue that's now on the front page of newspapers everywhere."

Before that, many in this country viewed piracy as either silver screen entertainment or a problem that hasn't surfaced since the 19th century. And, in fact, today's piracy doesn't involve sword-carrying swashbucklers on three-masted ships.

Attacks on the large, slow-moving cargo ships passing through the Gulf of Aden and the East coast of Somalia come from pirates in small boats with outboard motors that can easily catch up in open waters. Often these skiffs are launched from larger, previously hijacked ships that can carry pirates further out to sea.

The odds of an attack on an American ship are lower because relatively few ships fly under an American flag due to higher costs of operation related to U.S. laws; however, plenty of ships are controlled by U.S. financial interests.

"Pirates don't care whose flag it is," said Joseph Sweeney, a maritime and international law professor at Fordham Law School and a former maritime lawyer in New York. "They're going to go after it."

PLEASURE BOATING

Commercial shipping isn't the only target. Those who travel in private yachts also are being preyed upon in the Gulf of Aden and other parts of the world.

New Haven maritime attorney David Bohonnon represents private yacht owners and builders worldwide in an array of boat ownership and production matters, including insurance and the legalities of yacht management.

He said his well-heeled clients are feeling the effects of piracy. "It has been an increasing issue between California and the Pacific Coast of Mexico," Bohonnon said. "You really have to be careful."

Clients who are sport fishermen chasing trophy fish from Cabo San Lucas to Central America have been targeted by thieves, including one group that ran ashore and found their yacht stripped less than 24 hours later.

Bohonnon noted that in the last 20 years, yacht ownership has increased as people retire and sail the world. He said more people are getting into larger yachts with less experience, and the high demand for captains and crew also leads to less experienced navigators who may be less adept at avoiding pirates.

But there's one major difference between commercial shippers and private yacht owners: those on a yacht can carry weapons. "Now captains and crew are being trained for attacks in piracy," Bohonnon said. "That's something that real acts of piracy have brought to the yachting industry."

Because international law prohibits crews of commercial vessels from carrying weapons, only alertness and expert navigation allows a ship to avoid pirates. Some hijacking attempts have been thwarted on board the cargo ship; others have been snuffed out by a flotilla of warships from nearly a dozen countries that has patrolled the Gulf of Aden and nearby Indian Ocean waters for the past several months.

Last week, the IMB reported that pirates have attacked 78 ships this year, hijacking 19 of them, and 17 ships with more than 300 crew members still remain in pirates' hands. Pirate attacks spiked by 10 percent between 2007 and 2008. Each boat carries the potential of a million-dollar ransom.

PROSECUTING PIRATES

Marion has been in the middle of those ransom negotiations for the maritime insurers, often based in London, who offer policies on the ship and its cargo, plus war risk protection, which covers pirate attacks on a per-voyage basis.

Depending on what the pirates control and how urgent the situation is, "a number of these negotiations take as long as two months," Marion said. Communications often take place on the bridge of the hijacked ship and can involve the head pirate, the captain of the ship, insurance underwriters and sometimes military personnel.

Negotiations are "especially stressful if human lives are involved," Marion said. "It's a dynamic and unpredictable situation with enormous amounts of capital involved, and add to that human life and heavily armed teenagers."

It's not uncommon for insurance companies to pay cash ransoms. "Every time you put ransom money back in the coffers, [pirates] have the capital to increase the sophistication" of their operation, Marion said. In the Gulf of Aden, "it's a collision of well-developed capitalist countries and a country living in near anarchy."

All of which drives up the cost of operation for shippers, Marion noted. And there are few options for those shippers. If vessels avoid the Gulf of Aden, they must be rerouted via the Cape of Good Hope in South Africa, which can add thousands of miles and higher expenses to a voyage.

In response, the United Nations Security Council has broadened the powers of any nation patrolling the Gulf of Aden to pursue pirates and bring them to justice. Britain, for example, has struck an agreement with Kenya to permit pirates captured by the Royal Navy to be tried in Kenyan courts.

But so far there's been no activity in the courts. Often, ransoms are paid, boats and cargo are handed over and pirates go free.

"The nations patrolling the Gulf of Aden have chosen not to prosecute pirates because of the anticipated difficulty and expense," Northwestern University law professor Eugene Kontorovi wrote in a recent publication of The American Society of International Law. "It is unlikely that piracy can be stopped if pirates are not prosecuted and punished."