Introduction
Today, the world is highly globalized and interconnected through various routes that facilitate trade and movement. Sea transport accounts for the most significant portion of the transportation of goods needed to sustain livelihoods and for other purposes. Despite the preference for the sea channels, the vast nature of the oceans and seas provides ample ground for attack from people with malicious intentions.
Despite efforts to contain the situation, order and security at sea have increasingly come under threat due to illegal and criminal activities, including piracy and armed robbery. The unlawful acts against ships have thrived and continued to plague the maritime domain for centuries. The two pose some of the greatest threats and co-occurring challenges facing the international community, as well as states found along the coastline for decades.
Facts of the Case
The case pertains to an ambush executed on an Italian tanker, M/V Victory, by pirates (Machine Gun and Mafia) in the Strait of Otranto. The attack resulted in other unanticipated events that complicate the process of finding the appropriate legal ramifications for the pirates. One of the issues is the collision with another ship that resulted in the death of one crew member due to a heart attack.
The crew member had been ill for some time with a heart condition, while a second crew member died as a result of the accident, and three others were injured when their lifeboat capsized. The authorities later determined that the crew members had not received adequate training in security and safety. The ship did not have any fire extinguishers on board, and the lifeboats on board were not seaworthy.
The pirates were eventually caught after refusing to stop as directed by the Coast Guard, who became suspicious when conducting random spot checks in the vicinity of the accident and ordered them to stop. Even as they admit that they robbed the ship, they do not admit liability and argue that the ship was in breach of SOLAS safety standards. They hold that the sailor would have died whether or not the ship was hijacked.
Therefore, the case raises several points of interest that require analysis of their impact in light of the applicable international conventions and cases. Cases involving maritime security and safety can be complicated due to the intricate legal frameworks and conventions that are involved. International conventions and case laws help to illuminate the legal hurdles and contribute to a deeper understanding of how legal frameworks can effectively combat piracy and armed robbery threats.
Definition of Maritime Terms
The term “pirate” is derived from Latin and Greek terminology. In Latin, it is derived from the word pīrāta, which forms the origin of the notion of a sea robber. The related Greek term is peirātés, meaning marauder or attacker. Therefore, by inference, a pirate is a person who carries out an attack or attempts to attack another person.
According to Tsioufis et al. (2023), piracy refers to the act perpetrated by a pirate, even as the specific context in which it applies has continuously evolved throughout history. For the most part, piracy has been linked to acts committed at sea. Still, its meaning has been expanded to encompass the domains of intellectual property, air transportation, software, and broadcasting, among others.
The term generally refers to unlawful doings and unauthorized actions. The term still carries its original meaning and close association with illegal acts covering the maritime sphere, such as robbery, acts of hostility, violence, or depredation committed at sea. Actions of piracy are commonly perpetrated against a ship, persons traveling with the ship (crew member or passenger), or property carried on board.
International conventions and laws have adopted the term. Piracy was introduced officially into maritime terminology through the Convention on the High Seas (CHS) (1958) and the United Nations Conventions on the Law of the Sea (UNCLOS) (1982) (Tseng et al., 2021). As people became increasingly aware of the issues related to maritime piracy, it needed to be defined as an offense on the high seas or outside the jurisdiction of any State. This necessitated the authorities to find an alternative term to describe similar acts committed in internal waters, within the territorial sea, or within the jurisdiction of a State.
The phrase “armed robbery” was adopted by the International Maritime Organization (IMO) through various resolutions it developed on maritime piracy. Therefore, the two terms refer to the same thing, differing only in their technical application. Piracy and armed robbery at sea continue to endanger shipping across different regions, including the attack that was carried out at the Strait of Otranto. The specific region is located between Italy to the west and Albania to the east, which qualifies it as part of international waters.
Case Analysis
The case of the attack on the Italian tanker M/V Victory raises several legal issues. The pirate attack is the primary issue, while the other two issues relate to the equipment (fire extinguishers and lifeboats) and the crew’s training. The actions collectively led to the collision with another ship and the demise of some crew members.
Several international conventions and laws apply to the case. They include the Safety of Life at Sea (SOLAS) convention, the International Ship and Port Facility Security (ISPS) code, the United Nations Convention on the Law of the Sea (UNCLOS), and the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention).
SOLAS
SOLAS outlines safety standards for a myriad of aspects of life at sea to ensure the safety and security of the ship, crew, and related components. The major areas include collision, flooding, heavy weather, grounding, fire, and drowning, along with numerous minor dangers that can pose a risk to life in the water. Anish (2022) indicates that SOLAS is a creation of the IMO, developed following the collision and subsequent sinking of the Titanic. The tragedy revealed that the ship lacked adequate life-saving appliances and arrangements for the emergency evacuation of passengers.
SOLAS establishes minimum safety standards applicable to the construction, operation, and equipment required on ships. The standards are outlined across fourteen chapters, with each chapter focusing on a specific component, such as life-saving appliances, fire protection, and navigation equipment, among others. The framework, ratified by 164 states, underscores its significance in enhancing maritime safety globally (Beckman, 2021). M/V Victory may not have complied with SOLAS regulations to guarantee its safe navigation at sea, specifically as it relates to the competence and training of the crew.
The human aspect has traditionally remained the center of focus in enhancing maritime security, as it accounts for the majority of casualties that occur at sea. Alsawalqa and Venter (2021) indicate that the deaths arise from poor crew competence, poor judgment, inadequate maintenance, insufficient training, inadequate communication, and the failure to apply safety or other procedures, among other factors. SOLAS provides explicit conditions for crew competence and training onboard a ship.
The guidelines are supplemented by procedures outlined in various national laws and other bodies, such as the International Safety Management (ISM) Code and the Standards of Training, Certification, and Watchkeeping (STCW). Regulation 15 of the General Provisions Chapter of SOLAS is designed to mitigate the impact of fire by establishing guidelines for training and drills for all personnel on board, emphasizing the proper procedures to follow during emergencies (Klein, 2022). The crew must be equipped with the knowledge and skills essential to manage fire emergencies, as well as the care of passengers.
ISPS Code
The ISPS code is an integral part of maritime safety and security, covering various components, including ships, cargo, ports, and crew. The code is related to SOLAS, which primarily focuses on the safety of ships at sea. The ISPS code expanded the scope of SOLAS by introducing various topics that led to amendments of the regulation. This led to the division of Chapter XI under SOLAS into two: Chapter XI-1 and Chapter XI-2, which focus on maritime security. The new chapter outlines the regulations that companies must follow in the ISPS Code (International Maritime Organization, n.d.).
In this case, the code applies to the lack of fire extinguishers on board, which is a requirement under Chapter II-1, Part B, Regulation 10 of the SOLAS. Section three of the regulation underscores the need for a ship to have a portable fire extinguisher. Regulation 18 of the chapter on general provisions points out the need for a ship to have lifeboats alongside other life-saving appliances as a requirement for the qualification of certificates (Kyrychenko, 2018). These are just excerpts from the SOLAS indicating that the ship failed to observe the fundamental safety standards.
UNCLOS
The regulation focuses on maintaining law and order in the waters. It establishes rules governing all uses of the oceans, seas, and their resources. The convention was adopted in 1982 and came into force comprehensively in 1992 (Ma, 2019). UNCLOS defines the rights and responsibilities of States Parties concerning the maritime environment. Its primary role is to provide a legal framework that facilitates the peaceful use of the waters by prescribing the appropriate usage of marine resources.
UNCLOS also promotes the preservation of the marine environment by advocating for the conservation of living resources and developing guidelines for development undertakings in specific marine areas. The convention defines the coastal and maritime boundaries. It regulates the exploration of the seabed that is not within territorial claims, as well as the distribution of revenue generated from such activities. In the case of M/V Victory, UNCLOS would apply to the right of the ship to use international waters for transportation purposes, and there is no infringement relating to this matter.
SUA Convention
The primary goal of maritime security measures is to protect vessels and cargo from outside threats, such as piracy. Maritime safety focuses on protecting people and, to some extent, the environment from hazards that can occur naturally or as a result of accidents. Bunga (2021) indicates that the SUA Convention specifically addresses unlawful acts that threaten maritime security, which may include piracy, acts of terrorism, and other criminal activities on the high seas. The international treaty aims to enhance the safety of maritime transportation and prevent incidents that could endanger ships and their crews (Jacobsen & Larsen, 2019). The convention can be adopted by individual states, after which it becomes binding upon ratification by those states.
One of the specific issues that the SUA convention addresses is criminal acts, encompassing the individuals it applies to, the jurisdiction of individual nations, and the penalties and offenses available to perpetrators. All ships traveling over the high seas must abide by the SUA convention.
Article 2 outlines exceptions to the types of ships covered by the SUA Convention, which include warships and state-operated ships for specific purposes, such as police, customs, or naval activities (Ahmad, 2020). Article 3 defines the unlawful acts that would be dealt with as offenses. They include assuming control of a ship through unlawful actions or force, causing damage to the ship or its cargo, which puts the vessel’s safety at risk.
The other key offenses include causing damage or destruction to a ship’s navigation facilities or interfering with its operation in a manner that jeopardizes the ship’s safety and security. According to Hough (2023), violence against a person on a ship and compelling someone to use threats that can risk the safety of the ship is also not allowed. Another offense pertains to communicating incorrect information to the nation regarding a ship that may pose a threat to navigation safety. According to the article, harming or killing any person while committing any of the above offenses or being an accomplice to any of the offenses can lead to possible punishment.
Punishments for these offenses vary by jurisdiction and can include imprisonment and fines. Article 5 requires each State Party to make the offenses outlined in Article 3 punishable by appropriate penalties which take into account the grave nature of those offenses (Eski, 2018). Article 6 of the SUA convention requires individual states to define their jurisdiction regarding offenses committed against or on board a ship flying the flag. This includes offenses committed in the territory (or territorial waters) of the state and by a national of the state. For instance, the United States can arrest and try pirates who attack foreign-owned ships registered in the country, as they fall under its jurisdiction.
Conclusion
Safety and security are critical considerations in maritime operations, encompassing various aspects of activities carried out at sea and in the oceans, including the exploitation of resources. However, piracy hinders the effective execution of various operations conducted in international waters. This led to the creation of different international conventions to manage and control piracy. They include the SUA convention, SOLAS, ISPS Code, and UNCLOS.
The crew on board M/V Victory seems to have been ill-prepared to deal with a pirate attack on the ship, which was a contravention of SOLAS. The captain could not avoid colliding with another ship, leading to the death and injury of several crew members, who were also not trained in security and safety. There was no fire extinguisher on board, and the lifeboats were not seaworthy, which contravened the requirements under the ISPS Code. Finally, going by the provisions in Article 3 of the SUA convention, the pirates committed an offense as they caused violence against the captain of the ship, leading to an accident that destroyed the ship and caused the injury and death of several crew members. Therefore, the pirates could be held liable; however, further research is needed to establish the causal link between piracy, the health of the crew members, and the resulting consequences.
References
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