H) Maritime Incidents and Survival at Sea

H.9 Jurisdiction at sea

Details

Published: 09 January 2022

KATINKA SVANBERG

Introduction

Jurisdiction refers to the ability of a country to make and to enforce its laws. There are two basic types of jurisdiction: prescriptive jurisdiction and enforcement jurisdiction. Prescriptive jurisdiction is the power to regulate people and situations regardless of their location. Enforcement jurisdiction is described as the ability of a country to legally arrest, try, convict and imprison an individual for a breach of its laws.^[1]

When a crime is committed on board, the legal position is complicated and the rights of individual countries to prosecute will be different, not only ship by ship, but for every individual crime. This is because several factors determine/complicate jurisdiction over the crime. Factors to be considered to determine which countries may have jurisdiction over an incident include:^[2]

• the location of the ship at the time of the incident,
• its previous and next port,
• its flag state,
• the citizenship of the accused and victim,
• what type of incident and sometimes, what type of ship is involved,
• the respective domestic laws of all countries involved to determine which countries may have jurisdiction over the crime.^[3]

United Nations Convention on the Law of the Sea

International law governs various types of claims of jurisdiction over acts on board ships at sea. Jurisdiction is based on the Law of the Sea. In the UN Convention on the Law of the Sea, (UNCLOS),^[4]distinction in jurisdiction is made between the high seas, a state’s economic exclusion zone (EEZ), and its territorial and inland waters. The rules set out on jurisdiction in UNCLOS are considered customary international law and hence ruling. Under UNCLOS, the most prominent head of jurisdiction is flag State jurisdiction, although it also entitles port States, with inland waters, and coastal States with territorial sea, to claim jurisdiction in certain circumstances.^[5] Jurisdiction can also be found in the domestic legislation of a particular state, which is seeking to apply its laws to the crime on board, based on, for example, the citizenship of the victim or perpetrator, the nature of the crime, or the position of the ship. Thus, there is the possibility of many concurring jurisdictions!

UNCLOS also sets out the rule in its art.97 and art.94 (7):

 ‘Each state shall cause an inquiry into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment’.

 In the case of collision or any incident of navigation on the high seas, UNCLOS gives jurisdiction to both the flag State and the state whose nationals are responsible, such as crew or Master.^[6] The jurisdiction in case of collisions and incidents between ships on the high seas follows the following rule set out by the International Tribunal, the Permanent Court of Justice (PCIJ), in the famous S.S.Lotus case: that the ships on the high seas are deemed to be the same as the territory of their respective flag states, and if the illegal behavior of one ship affects any other ship, the affected ship’s flag state may exercise its jurisdiction.^[7]

Further information on UNCLOS is available in Ch 3.4.

Flag State Jurisdiction

UNCLOS art.92 provides that on the high seas, the flag State has ‘exclusive jurisdiction’ over incidents on board. ‘Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.’ However, there can in some instances be concurring jurisdiction, meaning overlapping jurisdiction with another state on the high seas. This can be the case when ships are registered in open registries that lack sufficient resources to investigate and prosecute all crimes or investigate a death or other incident on board ships flying their flag. Thus, it is desirable to have a concurrent jurisdiction in another state with the will and resources to prosecute, but of course, that other state must be able to support its claim for jurisdiction.^[8] Still, on the high seas or sea outside the jurisdiction of any other state, the main rule is flag State jurisdiction, because there is no international coastguard patrolling the high seas.

Port State Jurisdiction

In territorial and internal waters the coastal State and the port State can claim jurisdiction over incidents on board a foreign vessel but punishable by the coastal State’s (port State) domestic laws. In UNCLOS the territorial sea has a breath of nautical 12 miles. Here the coastal state’s coastguard and police have jurisdiction and can force a foreign ship to dock at its ports for investigation of a crime suspected to be committed on board. For example, if a dead body is cast overboard from the ship or an oil spill occurs.^[9] It should be noted that the coastal State has criminal jurisdiction under Art.27 in UNCLOS if:

a) the consequences of the crime extend to the coastal State

b) the crime is of a kind to disturb the peace of the country or the good order of the territorial sea

c) the assistance of the local authorities has been requested by the Master of the ship or by the diplomatic agent or consular officer of the flag State, or

d) such measures are necessary for the suppression of illicit traffic in narcotic drugs of psychotropic substances.

Moreover, UNCLOS gives the right to the coastal State to take any steps authorised by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. An exception to coastal State jurisdiction is if the vessel is only passing through the territorial sea, with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. Then the coastal State shall not arrest any person or to conduct any investigation on board, see UNCLOS art.27 (5).

If the coastal State assert jurisdiction, the vessel will be escorted by the coast guard to port for an investigation of the incident and management of the crime scene. The local authorities can claim a right to investigate and prosecute. They can also intercede where a ship has left a port but is within 12 nautical miles, if the intercession concerns a crime that occurred in internal waters or the territorial sea.^[10] On the other hand, petty crimes committed on board, such as stealing a bottle of wine or cigarettes from crew or passenger, will be dealt with by the Master of the ship, the so called ‘internal economy’ of the ship.

A coastal State has very limited rights to assert jurisdiction over its contiguous zone, EEZ, that is, the belt of water between 12 nm and 24 nm beyond its baseline. UNCLOS provides that the coastal State has jurisdiction over its EEZ and Continental Shelf for purposes relating to economic exploitation and environmental protection, while international illegal fishing could be under its jurisdiction. Likewise, the coastal State may exercise control necessary to prevent or punish infringement of its customs, fiscal immigration or sanitary laws and regulations within its territory or territorial sea. However, if a coastal State will claim jurisdiction over criminal acts on board ships in the seas beyond the territorial sea, it needs to use international law beyond UNCLOS.

When an incident has occurred on board a ship on the high seas, it is common for the Master to report it to the authorities in the next port. International law recognises that the ‘next port’ may claim jurisdiction on the basis that the ‘effect’ of the incident will be need to be dealt with in that State. This is an example of the general principle of objective territory jurisdiction, namely where acts committed abroad give rise to an effect in the State claiming jurisdiction.^[11] The State may claim jurisdiction to prosecute the case, subject to consultation with the flag State. Thus, the authorities at the next port have the right to deal with the evidentiary and investigative elements of the crime scene as well as the detention of the accused. On the other hand, they can also refuse to deal with the crime, and then the vessel needs to proceed on its journey.

Jurisdiction of Other States

Most likely, passengers and crew of a ship are not nationals of the flag State. It could be that the State whose nationals they are wants to assert jurisdiction over a crime committed against them on board.  When a criminal act is committed against a citizen of the state, in some circumstances the victim’s State claims a right to prosecute. Today, such broad jurisdiction, called universal jurisdiction is not accepted under international law, except for certain grave international crimes accepted in conventions dealing with serious international crimes such as terrorism and hostage taking.^[12] The United States has unusually broad jurisdiction, and asserts jurisdiction over stateless vessels and for crimes committed against US citizens. This is discussed further in Ch 9.6. 

The type of ship, such as a cruise ship or a war ship, also is considered. For example, on a cruise ship flagged in an open registry, the crime against one of its passengers, could give rise to jurisdiction in a state that relies on passive personality principles to ground an assertion of jurisdiction over a particular crime, in circumstances where the flag state does not intend to prosecute. Then the crime can be prosecuted in the state where the passenger is a national.

Rights of Port State to Board and Inspect a Vessel

As has been highlighted above, the coastal State or the port State, can intercept or force a vessel to dock for investigation of a crime scene when a crime occurs in internal waters or its territorial sea and the crime is supposed to be of some dignity. In addition, the Master should report a crime committed on board to the next port of destination.

An enquiry or investigation by the vessel’s flag State or by the vessel’s owners is required and the Master, crew and contractors, are obliged to assist in the investigation and make formal written records if national law so requires. If a dead body is present, the next port State have a right to examine it, but does not need to accept it. Further information on death at sea is available in Ch. 9.6.

Examples of Criminal Acts and Jurisdiction in International Tribunals

As shown above, most criminal acts occurring on board are investigated and prosecuted under national jurisdiction in national courts. In addition, international extradition treaties may be in place between states, moving the perpetrator to another state for trial or imprisonment. Also, choice of law issues, are often decided in contractual shipping agreements, where usually jurisdiction is taken care of and the torts claims might be proceeded through international arbitration. In crimes occurring on the high seas, or a state’s EEZ, and when states cannot agree on jurisdiction, an international tribunal might settle the case, if the states that are party to the dispute accept the tribunal’s jurisdiction, by either treaty or acceptance in the individual case.

Cases

Fishers mistaken for being pirates

In a recent international case, two Italian vessel protection detachments (VPDs) killed two Indian fishermen when the VPD’s fired upon a fishing boat in India’s Economic Exclusion Zone, thinking it was a pirate ship. Subsequently, the Indian Navy intercepted the Italian vessel, and forced it to dock at an Indian port, where a forensic investigation was done. Then, the two VPDs were brought into custody and charged with murder in India. Subsequently, one was released after two years based on his physical health and cardiovascular disease.

 The incident was brought to the Permanent Court of Arbitration, according to UNCLOS provisions, which found that Italy, as the flag state of the VPDs had jurisdiction, based on the fact that the crime occurred in India’s EEZ , that is outside India’s territorial waters. Also, the UNSC resolutions on maritime piracy made an exemption for piracy attacks committed in that area. However, Italy was required to compensate for the two deaths and for damages and society losses suffered in interfering with the navigation of the Indian fishing vessel in India’s EEZ.^[13]

The M/V Saiga No. 2 Case

Another example is the M/V "Saiga" No.2 Case (Saint Vincent and The Grenadines v. Guinea in 1999. This judgement is from the International Tribunal for the Law of the Sea (ITLOS).^[14] It concerns a supply vessel registered in Saint Vincent and the Grenadines that gave gas and oil to fishing vessels legally fishing in Guineas EEZ in 1997. The ship was fired at by Guinea patrol boats in Guineas EEZ, two persons onboard were wounded and the ship was arrested off the coast of Sierra Leone. The Master was prosecuted for customs violations and the crew detained. ITLOS found Guinea had no right to exercise its customs laws in the EEZ and held that Guinea did not satisfy the requirements of hot pursuit under Article 111 of UNCLOS. By firing ammunition from high caliber weapons at the oil tanker, Guinea used excessive force in its arrest. ITLOS particularly noted that warning shots and other non-lethal options should have been exhausted before lethal options were considered.

The M/V Seaman Guard Ohio Case

In 2013, the M/V Seaman Guard Ohio, a US-owned and Sierra Leone-flagged ship was arrested in  by the Indian coast guard.^[15] The ship, owned by a US-based maritime security firm was intercepted off the coast of Tamil Nadu and later escorted to Tuticorin, India. India’s coast guard detained 10 crew and 25 PCASPs for carrying 35 assault rifles and around 5,680 rounds of ammunition in Indian waters without valid permits, for alleged offences under the Essential Commodities Act 1955, as well as the Indian Arms Act 1959.  The owner of Seaman Guard Ohio stated that the arms and ammunition on the ship were purchased legally and meant for use in counterpiracy operations, to safeguard vessels in piracy high-risk areas in the Indian Ocean. The case raised jurisdictional issues when the owner argued that the ship was outside India’s territorial waters when it was intercepted by the coast guard. According to a coast guard official, the ship was 15 nautical miles off the coast when it was intercepted, but outside the 12 nautical mile-limit for India’s territorial waters. The Indian government labelled the vessel a floating armory, the company’s spokesperson denied the categorization saying the ship serves as an escort vessel that was unable to dispose of its weapons prior to entering port due to the sudden nature of the detainment by the Indian coast guard. After detention and investigation, the Madras High Court set the multinational crews free, but their passports were taken due to an appeal by the Indian police. In 2016, the judge of Tuticorin District Principal Sessions Court sentenced all the 10 crew and 25 guards to undergo 5 years of imprisonment and a fine. However, the Madras High Court acquitted them in 2017, after 4 years of actual imprisonment. A key finding of the High Court supporting the acquittal was that anti-piracy operations were legitimate and the ship, even if it was in Indian coastal waters, was in ‘innocent passage’. According to UNCLOS ‘Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.’ However, under UNCLOS all ships carrying arms are not considered to be in innocent passage^[16].

Piracy off the Nigerian coast

In Nigeria in 2020, a Greek owned ship flying a Liberian flag was ordered by the Nigerian Port authorities to anchor 1,5 km from the Nigerian Port where its cargo was to be delivered. At night, pirates entered the ship, kidnapped nine of its crew, and demanded a ransom. All crew were from the Philippines, and those kidnapped included the Master. The Port authorities refused to call the police or do any investigation, as they claimed the incident had not been reported. The pirates then contacted the ship owner and the insurance company to negotiate a ransom. The case was solved through these private negotiations, so that the Filipino crew and Master were released upon the payment of a huge ransom by the insurance company. Upon release, the hostages were medically reviewed and then  then repatriated to the Philippines. The ship left Nigeria with a new crew, but with fines because they had to dock in Nigeria during the process. The pirates were never brought to justice.^[17]

The Example of US Jurisdiction Claims

In the United States, its torts law opens the way for huge compensation claims for action at sea to be brought in US courts by US nationals but also by foreigners, as long as US law governs. However, jurisdiction is usually denied when all parties involved are aliens, as the flag state jurisdiction applies even if the incident happened in US territorial waters.^[18] In Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster A/I7, the Fifth Circuit held that where none of the vessels are owned, operated, chartered, or otherwise controlled by any entity with a significant link to the United States, the matter may be dismissed pursuant to the doctrine of forum non conveniens.^[19]. However, the Alien Torts Act, allows for pirate incidents and terrorism being tried in the US.^[20]

When it comes to death at sea, that is usually an Admiralty case in the US. In 1920, the US Government enacted the Death on the High Seas Act (DOHSA) and in its territorial waters, the Jones Act applies, both to seafarers that are employees and also non US citizens.^[21] In DOHSA, the death, or the incident causing a wrongful death, must have taken place at sea three miles out from the shore of any state, while the Jones Act provides for remedies for death of a seafarer inside the US territorial waters up to three miles from the shore.

In addition, legal remedies can be brought under general maritime law,  that is customary rules and principles of domestic maritime law and international maritime law.^[22] However, there is also a Statute of Limitation Act, available for vessel owners that limits a ship owner's liability in many cases, to the value of the ship and its freight after the accident.^[23]

^[1] Natalie Klein , Legal Limitations on Ensuring Australia’s Maritime Security,  Melbourne Journal of International Law,  2006:7:.1-25.

^[2]Kate Lewins, Jurisdiction over prosecution of criminal acts on cruise ships and regulation of the cruise ship industry, Background paper on behalf of MLAANZ, Perth Australia, 2013 Available from:file:///C:/Users/katin/Downloads/http___www.aphref.aph.gov.au_house_committee_spla_crimes%20at%20sea_subs_sub001.pdf.

^[3]Kate Lewins,  Jurisdiction over prosecution of criminal acts on cruise ships and regulation of the cruise ship industry, Background paper on behalf of MLAANZ,Perth Australia, 2013 [file:///C:/Users/katin/Downloads/http___www.aphref.aph.gov.au_house_committee_spla_crimes%20at%20sea_subs_sub001.pdf}.

^[4] https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

^[5] Ibid., p.3.

^[6]Changwoo Ha, Criminal jurisdiction for ship collision and marine pollution in high seas-Focused on the 2015 judgement on M/V Ernest Hemingway case, Journal of International Maritime Safety, Environmental Affairs, and Shipping, Vol. 4:1, 2020, pp. 8-15DOI: 10.1080/25725084.2020.1717304.  UNCLOS art. 97(1):” 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.”

^[7] S.S. Lotus Case, Permanent Court of Justice, France v. Turkey, Judgment, 7 Sep. 1927.

^[8] Ibid. P.4.

^[9] See for example the case, Mali v Keeper of the Common Jail 120 US 1 (1887), where the US Supreme court exercised jurisdiction over an on board murder of one crew by another, on a Belgian flagged ship, whilst the ship was at dock in a US port, on the basis it had disturbed the peace of the US.

^[10] Lewins, supra, p.8.

^[11] Ibid.

^[12] See the Achille Lauro incident, supra. Since the 2002 Bali bombings, It is now an offence to kill or seriously hurt an Australian citizen or resident whilst out of Australian territory. The French have a similar provision in their Penal Code, as do the US.

^[13] PCA Case No. 2015-28, An Arbitral Tribunal Constituted Under Annex VII to the 1982 UNCLOS, Italian Republic v. The Republic of India - concerning - The “ENRICA LEXIE” Incident, Award, 21 May 2020, para.6b).

^[14] M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, ITLOS Reports 1999, p. 10,

^[15] Srilatha Vallabu. Privately Contracted Armed Security Personnel in Indian Ocean Region. Patrick Chaumette, (ed) ESPACES MARINS: SURVEILLANCE ET PRÉVENTION DES TRAFICS ILLICITES EN MER, Gomylex, (2016), pp.265-279, p.270.

^[16] UNCLOS Art.19:2(b)

^[17] The grim realities of a ship hijacking in the Gulf of Guinea, IJMCS, 2021:2(1), to be published.

^[18] Paul W. Glenn, Jones Act. Jurisdiction: Application to Alien Seamen and Shipowners, California Law Review, 1970:58(2): 491-510

^[19]In a Collision occurred in Chinese waters between a Panamanian-owned container ship chartered by a Swiss corporation ( "MSC Shipping") and a dredge owned and chartered by Netherlands corporations ("Boskalis"). MSC Shipping filed suit with the Tianjin Admiralty Court, where the limitation fund was significantly less than MSC Shipping's loss, while Boskalis filed eight claims in US courts. The US case was dismissed as interested parties had no  significant relationship to the United States, dismissal was appropriate pursuant to the doctrine of forum non conveniens, because none of the parties, nor applicable law (Chinese law) was American, Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster A/I7,. Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster A/I7,569 F3d 189 (4th Cir. 2009).

^[20]Anthony J. Bellia Jr, Bradford R. Clark, The Alien Tort Statute and the Law of Nations, The University of Chicago Law Review, Spring 2011, Vol. 78: 2 , 2011, pp. 445-552

^[21] The United States Death on the High Seas Act of 1920 (DOHSA) (46 U.S.C. app. §§ 761–768) is a United States admiralty law enacted by the United States Congress, See Robert J. Brown, Is the Death on the High Seas Act Jetsam or Flotsam:State nd Federal Wrongful Death Statutes Collide Over the High Seas, Tort & Insurance Law Journal: 1986:21(2): 296-320.

^[22] Michael J. Daly, Louis R. Koerner Jr., Anne L. Kulesa, Joseph F. Kulesa, Laurie Sands, RecentDevelopments in Adminrality and Maritime Law Tort Trial & Insurance Practice Law Journal , 2010:45(2):119-147,130.

^[23] Ibid., p.136

H.7 Crime at sea

Details

Published: 09 January 2022

KATINKA SVANBERG

Introduction

International crime at sea is frequent and includes:

• piracy,
• illegal, unreported and unregulated fishing (IUU),
• smuggling of narcotic drugs, agricultural products and other goods,
• trafficking in humans,
• dumping and pollution.

Often, they are transnational organized crimes that undermine local and national economies, destroy the environment, and jeopardize the health and wellbeing of the public. When committed at sea these maritime crimes can be divided into four categories:^[1]

1. Criminal actions directed at vessels or maritime structures, such as piracy and sea robbery.

2. Criminal actions enabled through the use of the seas such as trafficking and smuggling of people and goods.

3. Criminal actions violating coast states sovereignty such as illegal fishing and unauthorized entrance of a state’s internal waters.

4. Criminal actions violating international law, such as dumping and pollution.

Organized crimes are big business, with drug trafficking, piracy, small arms & light weapons, human trafficking and organ trafficking being the most profitable along with illegal, unregulated fishing.

Maritime Piracy

Introduction

Perhaps it was thought that pirates belonged to a bygone era embodied by pirates such as Jack Sparrow and Long John Silver. However, piracy in modern times is a lucrative business performed with automatic weapons and high-speed motorboats. The piracy in the Gulf of Aden and the Indian Ocean, conducted by Somali pirates against international shipping, suddenly highlighted the problem of piracy and paved the way for an international intervention by the UN Security Council in 2008.  

Today, the most dangerous piracy attacks occur in the Gulf of Guinea in West Africa but piracy is also on the rise in Asia, Indonesia, the Singapore straits, the Bay of Bengal, the South China Sea, the Sulu Sea and Sulawesi (Celebes), as well as in South America and in the Caribbean. ^[2]

What is Maritime Piracy

Maritime piracy is an international crime, defined in the United Nations Law of the Sea Convention (UNCLOS), Art.101 as ‘acts of  violence  or  detention,  or  depredation, committed  for  private  ends  by  the  crew  or  passengers  of  a  private  ship or a private aircraft; directed  against  another  ship, or aircraft;  on the  high  seas  or  outside  the  jurisdiction  of  any  state’.

Thus, the definition of  maritime  piracy  in  the United Nations Conference on the Law of the Seas (UNCLOS)  only  covers  acts  committed  on  the  high  seas  or  outside  the  jurisdiction  of  any state. UNCLOS  has  been  ratified  or  acceded  to  by 168 parties, which  makes  it  one  of  the  most  widely accepted international conventions.  Moreover, the prohibition on maritime piracy is a peremptory norm in public international law, jus cogens.^[3] Jus cogens are peremptory  rules  from which  no  derogation  is  permitted,  and  that  take  primacy  over all other norms in international law, to cite from the widely accepted definition of jus cogens norms in the Vienna Convention on the Law of Treaties, from 1969, Art.53.

[1] The prohibition on piracy give rise to universal jurisdiction being an erga omnes obligation. Erga omnes means that all states can claim jurisdiction over acts of piracy. All this shows how important the prohibition on piracy is.

The distinction between territorial waters and  international  waters  is crucial  in  establishing whether  a  criminal  act  against  a vessel  constitutes  piracy  under  international  law.  This is because intervention against pirates in the territorial waters of a state is subject  to  national  laws  and  the  criminal  act  is  defined  as ‘armed robbery at sea’. The International Maritime Organization (IMO) provides an established definition of ‘armed robbery at sea’ as

1. Any illegal act of  violence  or detention  or  any  act  of  depredation,  or  threat  thereof,  other  than  an  act  of  piracy,  committed  for  private ends  and  directed against a ship or against persons or property on board such a ship, within a State’s internal waters, archipelagic waters and territorial sea;
2. Any act of inciting or of intentionally facilitating an act described above.^[4]

Actions akin to piracy conducted within a state’s internal waters, archipelagic waters and territorial sea thus constitute armed robbery at sea and the coastal state will have jurisdiction over such a crime.

Big Business

Maritime piracy is an organized crime and a lucrative business conducted by piracy groups and networks. The global damage caused by piracy is estimated at annual $6.6 to $6.9 billion through commercial fraud, loss of cargo and delays.^[5]  Pirates can cause political instability due to the corruption of state officials or by providing a source of income for insurgents and terrorists.^[6] As highlighted by the United Nations Security Council (UNSC), there is an established link between piracy and other maritime crimes, such as illegal, unreported and unregulated fishing (IUU) and the smuggling of oil, drugs, agricultural products and other goods.

Piracy is directly enabled by the socio-economic conditions of coastal states. The presence of weak governments  embroiled  in  political  violence, widespread  economic  hardship  and  easy access to weapons, are conditions that pave the  way for  piracy.^[7] A vivid example is Somalia, where law and order broke down 30 years ago and a recent example is Venezuela, where 20 years of an authoritarian regime has led to economic hardship and the dismantling of democratic institutions.^[8]

Pirates  are  often  from  a  poor background and/or  fishermen,  organized  by  criminal  networks.  It is estimated that only  about  30%  of  the  loot  or  ransom paid  goes  to  the  individual  pirates,  while  the main  share  is  taken  by  the  piracy  group or network. In cases of armed conflicts when terrorists or insurgents are involved in piracy, such as in Somalia, or in areas of the Middle East and North Africa (MENA) region, such as in Yemen, or in the Philippines, piracy serves as a source of income that feeds their struggle.^[9] Most of the UNSC resolutions on Somalia emphasize the need for peace and a functioning state with law and order, as a precondition for the elimination of piracy.

There is a growing trend in violence with pirates using machine guns, grenade launchers, machetes and knifes.^[10] Cargo robbery and ship high jacking, as well as crew kidnappings for ransoms are common business for the pirates.^[11] It has been suggested that informants are providing pirates with access to ship information making it possible for pirates to locate specific target vessels, which may have cargo of value, in the vast expanses of the sea. 

Piracy Hot Spots

Known hotspots for maritime piracy include Africa and the Red Sea, South East Asia and the Indian Sub-Continent, Latin America and the Caribbean. The East and West African coasts are notorious for the  most  dangerous  piracy  attacks,  carried  out  with automatic  weapons  and  fast-moving  motorboats and with  the  aim  of hijacking vessels  and crew  to obtain  a  high  ransom,  often more than 1  million  USD.^[12] These so-called ‘high risk areas’ are in the Red Sea, the Gulf of Aden, the Indian Ocean, the Arabian Sea and the Gulf of Guinea.^[13]

Although there was an overall decline in piracy incidents in 2019, in 2020-21 there was a sharp rise of 25% in piracy attacks. According to the annual report of the International Maritime Bureau (IMB) 195 incidents of piracy and armed robbery were reported in 2020, up from 162 in 2019.^[14] The incidents included 3 hijacked vessels, 11 vessels fired upon, 20 attempted attacks, and 161 vessels boarded. Of 135 sailors abducted globally last year, 130 of them were recorded in the Gulf of Guinea off West Africa, the highest ever number of seafarers kidnapped in the region.^[15] It is believed that the COVID-19 pandemic is one reason for the rise in piracy.^[16]

Combatting Maritime Piracy

There are different ways to fight maritime piracy. One way is by military and law enforcement forces deployed in the area. Such forces can be the coastal state ́s own military and law enforcement that are alerted voluntarily by a ship upon entering a piracy prone area or Voluntary  Reporting  Area (VRA). Examples of this are the Chinese Navy Vessels Escort Arrangement of protection, as well as the Nigerian Navy’s vessel protection.  In some highrisk areas (HRA), a ship can alert joint international military forces deployed due to an international mandate, such as from the United Nations Security Council (UNSC). The only example of this hitherto, is the international naval forces deployed through UNSC resolutions in Somalia, such as the European Union Naval forces (EUNAVFOR) in the Gulf of Aden. With international agreement between coastal states in a piracy prone area, regional naval forces could also be deployed, based on the ‘Yaoundé Process’ that aims to tackle maritime criminal activity in a regionally coordinated fashion - one example is the regional navy surveillance in the Gulf of Guinea.  

However, it has largely been left to the shipping industry to take precautionary measures against piracy. In the highrisk areas of East Africa, such as the Gulf of Aden, the Arabian Sea and parts of the Indian ocean, the shipping industry has adopted Best Management Practices (BMP), the most up-to-date is BMP5, to be adopted by ships to mitigate the risk of piracy attacks. These are measures that include risk assessment, planning and drills. An active lookout to identify the course of any suspicious craft in vicinity needs to be in place on board and other ship protection measures may be used, such as,

• nets,
• wire,
• hoses,
• high intensity sound sources,
• citadels,
• CCTV ^[17]

In addition, the shipping industry is inclined to hire its own vessel protection services. A state can allow for hire security escort vessel (SEV) services using civilian boats or armed navy service members to operate in their waters, such as is the case in Nigeria.^[18]  Another method, is that a ship carries its own enforcement protection team to deter and defend against piracy attacks. This may be a team of privately armed security personnel (PCASPs), hired directly by the shipping company, or a vessel protection detachment (VPD),of uniformed military personnel embarked on a vessel with the explicit approval of the Flag State

It is important to note that PCASP are not law enforcement officials, their rules of engagement only allow for self-defence and that their deployment is dependent on flag-state permission. In addition, they need consent to operate from the governments of all states (littoral states) through whose waters the ship may pass. VPD’s are less frequently used but are sometimes provided for in the flag-states national laws as preferrable to PCASPs, because VPD’s are members of    the state’s regular armed forces. The usual number of personnel in PCASPs or VPD’s is two on each ship and they are paid for by the shipowner. Both types of security personnel have repeatedly been shown to be effective against piracy attacks.

Piracy Attacks and the Use of Force

A piracy attack can cause death and severe injuries onboard as a result of the actions of the pirates or security personnel. It is important that armed security personnel are vetted before employment and the maritime industry’s self-regulations contain detailed information on the selection of PCASPs that should include a check of

• criminal background
• security and law enforcement service previous employment history
• medical, physical and mental fitness including any history of drug and alcohol abuse.^[19]

It is recommended that one of the PCASP be qualified as the team medic.

Any incident involving the use of force in a piracy or armed robbery attack should generate a post incident report. Any attack against the vessel should be reported immediately to authorities, such as the flag state, and the owner. Soft-law documents on armed security state that any attack should be reported immediately to the UK Maritime Trade Operations Office (UKMTO) in Dubai, and other authorities, as appropriate. The use of firearms needs to be reported to the flag state and a formal written report of the incident shall be completed immediately after the incident for the shipowner/operator to forward to the flag state.  The PMSC is obliged to assist in the investigation, and make formal written records if national law so requires. ^[20]

Maritime Terrorism

The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) from 1988 was created by the IMO to target maritime terrorism. The SUA responded  to  the  need  to  create jurisdiction  for  crimes  that  fell  outside  of  the definition  of  piracy or  armed  robbery  at  sea,  such  as hijacking,  hostage-taking  and  murder  and is ratified by over 160 states, but some important coastal states are not parties. ^[21]

This treaty was instigated as a reaction to the 1985 hijacking of the Italian cruise-ship Achille Lauro by politically motivated terrorists. A faction of the Palestine Liberation Front (PLO) hijacked the Italian liner, during a Mediterranean cruise and took more than 400 passengers and crew hostages. The hijackers threatened to kill the passengers unless Israel released 50 Palestinian prisoners. They also threatened to blow up the ship if a rescue mission was attempted. When their demands had not been met by the following afternoon, the hijackers shot a Jewish US citizen   in a wheelchair, throwing his body overboard . After negotiations, the terrorists sailed into port in Egypt, disembarked and were allowed to leave Egypt. However, the US military intervened and forced the  Egyptian  Aircraft  with  the  PLO terrorists  onboard  to  land  in  Italy  at  a NATO-airbase, attempting to bring  them to  the  United  States  for   trial. However, on the intervention of the Italian authorities, the Palestinians were taken into Italian custody and tried in Italy.^[22].
 

But the world’s oceans have not been a major focus of terrorist activity. According to the RAND Terrorism Database, strikes on maritime targets and assets have constituted only 2% of all international incidents .^[23] Many strikes in the 2000s were connected to al Qaeda and the Islamic State (IS), but also state terrorism from Iran in the Strait of Hormuz..  Despite its small size, the Strait of Hormuz is one of the world's most important shipping routes. It has been the scene of a series of shipping incidents in recent years and several vessels have been attacked or seized by Iran. Whilst Iran is a state with territorial waters in the straits, it is not allowed to interfere with the right to innocent passage of international commercial vessels. In the spring of 2019, Iran conducted limpet mine attacks against several merchant vessels in the Gulf of Oman. In July 2019, it seized a UK-flagged oil tanker in the Strait of Hormuz after the UK seized an Iranian-flagged oil tanker near Gibraltar. In 2021Iran seized a Korean oil tanker in the Strait, accusing it of ‘repeated violations of marine environmental laws’. The real reason for the incidents is likely to be the rising tension between Iran and the US as well as with other Gulf States.

Trafficking and Illegal Goods

Narcotic Drugs and Psychotropic Substances

Drug trafficking is a global illicit trade involving the cultivation, manufacture, distribution and sale of substances subject to drug prohibition laws.  The illegal drug trade is estimated as nearly 1% of total global trade, with around 269 million people using drugs worldwide in 2018.^[24] . In 2020, the drug market had grown by 35%, with both organic and synthetic drugs rising markedly.^[25] Vulnerable and marginalized groups, youth, women and the poor, pay the price for the world drug problem. The COVID-19 crisis and economic downturn threaten to compound drug dangers further still, when health and social systems have been brought to the brink and societies are struggling to cope. Cannabis was the most used substance in 2018, with an estimated 192 million people using it worldwide. Opioids remain the most harmful and Afghanistan is the producer of 90% of the world’s opium poppy.^[26]

Although a wide variety of methods are utilized by drug traffickers in plying their trade, the use of private and commercial vessels has long been significant. The large quantities of illicit substances that make their way across oceans and continents every day, in containers, small boats, and even semi-submergible vessels, make maritime trafficking in drugs a very big business and pose a particular challenge for the authorities. Such vessels are both difficult for the Coast Guard to detect and easy for seafarers to disguise, as they often prefer losing their illegal cargo to being caught.

Key to stopping the traffic is the policy of interception of vessels, both in the territorial waters of the consumer states, on the high seas and even in the territorial waters of the source or transit states. This policy has been effectuated through informal means, that is ad hoc consent of the flag state or of the vessel’s Master (consensual boarding), or through bilateral and multilateral treaties. A state can do hot pursuit of a suspected drug smuggling vessel, following it into the high seas, if the vessel is trying to escape from being boarded in the coastal state’s territorial waters.^[27] Maritime seizures of illegal drugs have been more effective than with other transport, they constitute more than 11% of all cases across all drug categories globally.

Arms

Illicit firearms are a threat to peace and security. They are big business and much of the illegal arms trade occurs at sea. Trafficked goods include arms and equipment that could be used in the development of missiles and weapons of mass destruction. In 2015, the Stockholm International Peace Research Institute revealed how arms dealers targeted western-owned maritime companies.^[28] Companies based in the West, primarily commercial lines based in Germany, Greece and the US, own most ships involved in reported cases of trafficking. ^[29]

Shipping companies can be unwittingly involved in the smuggling operation. It is easy to hide arms in containers on board without the knowledge of the ship owners or Master. A report shows that in cases where the ship owners, operators and Masters appear to have been directly involved in the trafficking attempt, the ships tended to be older and to be sailing under flags of convenience. ^[30] They regularly performed badly in safety and pollution inspections when they entered ports. However, for some types of ships, such as roll-on/roll-off (ro-ro) vehicle carriers, where weapons and military equipment, such as tanks or armored personnel carriers are transported, it is unlikely that the company is not complicit in the smuggling operation.

Although, illegal arms trafficking is forbidden, there are ways to escape liability. The company will change the name of the ship, the flag of the vessel, or even the name of the company. In some cases, these vessels are hidden under several layers of anonymity, making it impossible to trace the legal owners. Some effective measures are in place to provide a link to a specific vessel, such as the IMO number that a vessel will carry throughout its lifetime, but even that can be hidden. What is missing, is instituting measures where ships are registered to an identifiable owner with a fixed address.^[31]

Another problem is floating armories. Due to national and international laws regarding arms trade, ships are often unable to dock in foreign ports with weapons and ammunition. Thus, floating armories are used in the fight against piracy and function as weapons depots for PCASPs. They operate as weapons and ammunition storage facilities in international waters. By operating solely in international waters, floating armories avoid national and international laws regarding arms trade. There is a significant lack of regulations governing floating armories and this leads to serious safety concerns including a lack of standardized weapon storage, the lack of records documenting the transfer of weapons and ammunitions, and a lack of regulation from flags of convenience.^[32]

Human Trafficking

Human trafficking is when a person’s movement is controlled by some means, which may be violent or subtle, for the purpose of exploitation.^[33] It is forbidden according to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol),^[34] which supplements the United Nations Convention against Transnational Organized Crime, and has 190 parties.^[35]

Forced labor and sexual exploitation can be slavery when people are forced to work, without or with almost nothing as payment, or in debt bondage. It has been noted that ‘the practice of modern-day slavery is hidden under the blanket of ignorance, concealed by a widespread assumption that it was eradicated from our society hundreds of years ago.’^[36] The 2015 US State Department’s Trafficking in Persons Report in 2015, estimated that between 27- 45 million men, women, and children have become victims of modern-day slavery in its various forms, including sex trafficking, debt bondage, forced labor, and child exploitation.^[37]

Victims of human trafficking include children, women and men who are subjected to forced labour or sexual exploitation, with the use of force, fraud or coercion. Often trafficking occurs at sea, with the transportation of victims or the use of forced labor onboard ships and in fishing, as well as exploitation at seaports.

Examples include,

• when a person is forced to work on board a fishing vessel without payment for prolonged periods. One example is young teenagers from Indonesian villages who are lured into Malaysia with the false pretense that they will make money for their families working as a fishermen. However, they are sold as slave laborers.. They have to work for years onboard without any payment other than food and often at gunpoint. They are usually, too ashamed to flee and go back to their family without any money.
• forced labor in the sex industry in ports. In seaports in particular, traffickers can take advantage of discrepancies in maritime law in order to exploit their victims. Prostitution can happen at port facilities or onboard docked ships and seafarers are often potential customers.

Victims of human trafficking at sea may be recruited either in their country of origin, at seaports, or on boats of registered flag states, where victims are transferred from one vessel to another while at sea. Trafficked seafarers and fishers may find themselves aboard vessels that are un-flagged or flagged to another state, where they can be exploited by nationals of their own or other states, or suffering abuse and exploitation on the high seas or in waters that fall within the territory of one or various states.^[38]  Thus, the jurisdiction is dependent on where the crimes are committed, if on the high seas, the EEZ or in the territorial sea and internal waters. 

Migrants and Refugees

Transnational organized, illegal migration, with trafficking and smuggling of migrants is a criminal lucrative business, where individuals pay millions to be able to start a new life in a new country, but are often misled in their expectations.

The migrant crises that hit the world in 2014-15 filled the media with horrendous reports of migrants being smuggled onboard ships towards Europe and other states. It highlighted the plight of refugees and migrants, many drowning on sinking, overcrowded and non sea worthy ships, or being stranded at sea, not allowed to enter states territorial waters, although they paid large sums to smugglers and shipowners. Search and rescue operations, disembarkation, processing and the identification of solutions for those rescued are re-occurring challenges for States, international organizations, and the shipping industry. More information on migrants, refugees and stowaways can be found in Ch 9.10.

Illegal, Unreported, and Unregulated (IUU) Fishing

Illegal and unreported marine fishing generates US$15.5 to $36.4 billion annually in illicit profits, and the majority is generated off the coasts of developing countries.^[39] It has major environmental, societal, and security impacts in developing countries, particularly in areas where the local economy and the local diet depend on fishing. In other countries, unregulated fishing is a problem and a sensitive issue that can spur into ‘fishing wars’ between Governments. Examples include the cod wars between Iceland and the UK in the 1950s to the 1970s, the Pacific Salmon War, which was a period of heightened tensions between Canada and the United States over the Pacific Salmon catch.in the 1990’s, and recently the South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China) in 2016.^[40]  

However, this is to be distinguished from organized illegal and unregulated fishing by criminal organizations. Firms that participate in IUU fishing have been linked to other crimes such as the smuggling of migrants and the trafficking of drugs and persons and the poaching and smuggling of ivory and other artefacts. The primary business model uses flags of convenience that provide vessel registration for anyone in the world and typically exercise minimal oversight of the vessels or who the real owner is.^[41]

There is a growing trend to recognize the vast problem of illegal fishing. In resolution 2246 (2015) the UNSC emphasizes the link between illegal fishing in Somalia's exclusive economic zone and piracy, and noticing how illegal unregulated fishing can deplete seafood resources..^[42]

^[1] Maritime Crimes,  Centre of Trust, Peace and Social Relations of Coventry University Homepage.Available from https://www.maritimesecurity.global/multimedia/maritime-crimes/. [Accessed 15 July 2021]

^[2] K. Svanberg, The use of private maritime guards as an innovative means to fulfil states duty to cooperate in the repression of maritime piracy, Part 1 and 2, IJMCS:2020:1(2):31-53.31, Katinka Svanberg/Bring, Ove, FN-stadgan och varldspolitiken, Norstedts Juridik, Stockholm, 2019,, p.513. 

^[3] Cherif  Bassiouni,  International Crimes:  Jus  Cogens  and  Obligations  Erga  Omnes,  Law  and  Contemporary  Problems, 2006:.59( 4):, 63-74, 68. The ICJ affirmed the existence of jus cogens, in Armed Activities on the Territory of the  Congo  (New  Application;  2002)  (Democratic  Republic  of  the  Congo v. Rwanda),  Jurisdiction  and  Admissibility, Judgment, I.C.J.  Reports (2006), p..31, §. 64, see also, Ion  Diaconu,  Jus  Cogens - Developments  in  International Law, Romanian Journal of International Law, 2016:16:, 36, 40. 
.

^[4] IMO Resolution A.1025(26) (Annex,  para.  2.2), on  IMO's  Code  of  Practice  for  the  Investigation  of  the  Crimes  of Piracy  and  Armed  Robbery (18 Jan.2010). Siti  Noor  Malia  Putri,  Archipelagic State  Responsibility on  Armed Robbery at Sea, Indonesian Journal of International Law, 2017: 14(4): 477-496.  

^[5] Cuong Manh Nguyen, Tien Quoc Le, Impact of Piracy on Maritime Transport and Technical Solutions for Prevention, International Journal of Civil Engineering and Technology, 2019:10(01):958-990.

^[6] See e.g. UNSC Res. 2500 (Dec.2019), that notes the complex relationship between illegal and unregulated fishing and piracy in its preamble.

^[7] Peter Lehr, Pirates - A New History, from Vikings to Somali Raiders, Yale University Press, New Haven, 2019.

^[8] Gerver Torres, The Venezuelan Drama in 14 Charts, Center for Strategic and International Studies (CSIS),   2019.

^[9] Robert M. Shelala II, Maritime Security in the Middle East and North Africa: A Strategic Assesment, CSIS, 2016, [Available from https://csis-website-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/publication/140206_maritime_security_shelala_report.pdf. Accessed 15 July 2021].

^[10] See Cuong Manh Nguyen, Tien Quoc, supra, at p.961.

^[11] See e.g. UNSC Res. 2500 (Dec.2019) that notes the complex relationship between illegal and unregulated fishing and piracy in its preamble.

^[12] Maritime Piracy, Chapter 9,  UNODC  Report  2009,  pp.193-200  [https://www.unodc.org/documents/data-and-analysis/tocta/9.Maritime_piracy.pdf]

^[13]Katinka Svanberg, The use of private maritime guards as an innovative means to fulfil states duty to cooperate in the repression of maritime piracy. Part 1, IJMCS, 2020:2(1):30, 46, [Available from: https://www.researchgate.net/publication/349574500_The_use_of_private_maritime_guards_as_an_innovative_means_to_fulfil_states_duty_to_cooperate_in_the_repression_of_maritime_piracy_Part_1. Accessed 15 July 2021].

^[14] The International Chamber of Commerce’s International Maritime Bureau (IMB)’s annual piracy Report 2020, Piracy and Armed Robbery Against Ships, 13 Jan 2021 [https://www.icc-ccs.org/index.php/1301-gulf-of-guinea-records-highest-ever-number-of-crew-kidnapped-in-2020-according-to-imb-s-annual-piracy-report].

^[15] Ibid.,

^[16] The IMB’s Piracy Reporting Centre (PRC) recorded  98  incidents  of  piracy  and  armed  robbery  in  the  first  half  of 2020, up from 78 in Q2 2019, see Crew kidnappings surge in seas off West Africa, ICC Commercial Crime Service, A Specialized Division of the International Chamber of Commerce,  [https://www.icc-ccs.org/index.php/1293-crew-kidnappings-surge-in-seas-off-west-africa-imb-reports].

^[17] , BMP5 - Best  Management  Practices  to  Deter  Piracy  and Enhance Maritime Security in the Red Sea, Gulf of Aden, Indian Ocean and Arabian Sea, adopted by the shipping industry organizations;  BIMCO,  ICS,  IGP&I  Clubs,  INTERTANKO  and  OCIMF, (2018), [https://eunavfor.eu/wp-content/uploads/2018/06/BMP5-PP.pdf].

..                                                                    

^[18] See infra on Piracy in the Gulf of Guinea.

^[20] MSC Circ. 1405, para.5.16,.GCDG at, para. 7.15, and BMP5 at p.20, The 100 Series, para.8, MSC Circ.1405, para.5.16, GUARDCON para.11,

^[21] The Suppression  of  Unlawful  Acts  Against  the  Safety  of  Maritime  Navigation,  1678  U.N.T.S.  221, 271, I.L.M.  668 (1988), entered into force March 1, 1992. In 2021 it had 166 parties.

^[22] Malvina Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety, The American Journal of International Law, 1988: 82( 2): 269-310,.269. Andrew L. Liput, An Analysis  of  the  Achille  Lauro  Affair:  Towards  an  Effective  and  Legal  Method  of  Bringing International  Terrorists  to  Justice,  Fordham  International  Law  Journal, , 1985:9(2), 328.

^[23] Peter Chalk, Terrorism, Piracy, and Challenges for the United States, in The Maritime Dimension of International Security,: RAND Corporation, 2008, p.19-20.

^[24] https://www.unodc.org/unodc/press/releases/2020/June/media-advisory---global-launch-of-the-2020-world-drug-report.html [Accessed 15 July 2021].

^[25] :Transnational Crime and the Developing World , Global Financial Integrity, Executive Summary - Global Financial Integrity [Available from https://www.gfintegrity.org/wp-content/uploads/2017/03/Transnational_Crime-final-_exec-summary.pdf].  UNODC World Drug Report 2020: Global drug use rising; while COVID-19 has far reaching impact on global drug markets, Wienna 25 June 2020, [https://www.unodc.org/unodc/press/releases/2020/June/media-advisory---global-launch-of-the-2020-world-drug-report.html].

^[26] Ibid.

^[27] Martin Ratcovich, International Law and the Rescue of Refugees at Sea, Stockholm University Press, Stockholm, 2019, p.55.

^[28]Hugh Griffiths, The new information superhighway: practical methods for sharing knowledge and stemming destabilizing arms flows, SIPRI, 2012.

^[29] Ibid.

^[30] Lydelle Joubert,, THE CONCIERGE OF VIOLENCE AND TERROR: SHIPPING COMPANIES AND WEAPONS SMUGGLING TO LIBYA, Stable seas, 23 Sep.2020 [Available from: https://www.stableseas.org/illicit-trades/shipping-companies-weapons-smuggling-libya [Accessed 15 July 2021]

^[31] Ibid.,

^[32] Alexis Wilpon, Floating Armories: A Legal Grey Area in Arms Trade and the Law of the Sea,  Georgetown Journal of International Law,2017:48:873-894,873.

^[33] John McFarlane, Transnational crime corruption, crony capitalism and nepotism in the twenty-first century, in Peter Larmour and Nick Wolanln (eds.), CORRUPTION AND ANTI-CORRUPTION, , 2000,  p.102.

^[34] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, 2237 UNTS 319; Doc. A/55/383. The Trafficking Protocol was adopted by the United Nations in 2000 and entered into force in 2003. Currently it has 155 States Parties.

^[35] United Nations Convention against Transnational Organized Crime and the Protocols Thereto,Doc.A55/25 (15 November 2000), entered into force 2003.

^[36] Zezen Z. Mutaqin, Modern-day Slavery at Sea: Human Trafficking in the Thai Fishing Industry, XI JEAIL,2018:1:75,76.

^[37] US State Department’s Trafficking in Persons Report 2015, available from [https://www.state.gov/documents/organization/245365.pdf .[Accessed 5 March 2018], cited in Mutaqin, supra, at 76.

^[38]Surtees, supra, p.99.

^[39]Transnational Crime and the Developing World, Global Financial Integrity, Executive Summary - Global Financial Integrity [https://www.gfintegrity.org/wp-content/uploads/2017/03/Transnational_Crime-final-_exec-summary.pdf].

^[40] The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), case nr 2013-

19.

^[41] Transnational Crime and the Developing World, Global Financial Integrity, supra.

^[42] UN warns illegal fishing could be related to piracy in Somalia, UNSC Res.2442 (2018), 2383 (2017), 2316 (2016).

H.8 Crime on board a vessel

Details

Published: 09 January 2022

KATINKA SVANBERG

Introduction

Crimes committed at sea present a ‘dynamic legal scenario’ where international law recognises a multitude of domestic jurisdictions existing concurrently.^[1].

Any crime that can be committed ashore can also be committed onboard, such as a theft, sexual assault, rape or murder. If there is criminal activity on board it is important to stop the criminal activity and to investigate the crime so that perpetrators may be brought to justice. Similar to the case of a piracy attack,^[2] any suspicion of criminal behaviour and certainly any crime carried out should generate a post incident report and be reported immediately to authorities, such as the flag State and the port State, if the ship is in port, and to the shipowner. Reports should also be sent to the victim’s state as well as to the state of the suspected perpetrator. Where a citizen is involved in a criminal offence, either as an alleged perpetrator or as a victim, their country of citizenship is recognised under international law as also having jurisdiction to investigate and prosecute the crime.^[3]

How to Manage a Crime Scene

The IMO has specific guidelines that emphasize that the Master is not a professional crime scene investigator and does not act in the capacity of a criminal law enforcement official.^[4] Thus, Governments are encouraged to have trained investigators available who can collect the available evidence from a vessel immediately after its release from local authorities. Failing this, every effort should be made to have an investigator available at the vessel's first port of call after an incident. The investigator shall take crew statements and there are guidelines on recovery and packaging of evidence.^[5]  Immediately after an incident, the Master, in cooperation with the PCASPs team leader if this is piracy related, should co-operate, protecting the scene of any incident including any potential forensic evidence that could lead to the later arrest and conviction of criminals/pirates as far as is practicable. The process is further outlined in the soft law regulations on PCASPs, such as the ISO standard on PCASPs.^[6]

^[1] INQUIRY INTO THE ARRANGEMENTS SURROUNDING CRIMES COMMITTED AT SEA, Chapter 3,Jurisdiction at sea: international law and domestic law, Australia Government,

^[2]See supra at Piracy Attacks and the Use of Force.

^[3] Ibid.

^[4] MSC.1/Circ.1404 (23 May 2011), Annex 1, GUIDELINES TO ASSIST IN THE INVESTIGATION OF THE CRIMES OF PIRACY AND ARMED ROBBERY AGAINST SHIPS, Introduction.

^[5] Ibid.

9.8   ^[6] ISO Standard 28007 -1:2015. Ships and marine technology — Guidelines for Private Maritime Security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships (and pro forma contract)

para 5.6.

H.6 Death at sea

Details

Published: 09 January 2022

STEVE WILLIAMS, NATALIE SHAW, KATINKA SVANBERG

Introduction

Seafaring is one of the most dangerous forms of work compared to other sectors.^[1] Seafarers, passengers and others onboard ships including refugees, migrants and unauthorized people such as stowaways or pirates, can die at sea.

A death at sea can be caused by many different factors, including accidents, drowning, illness, suicide, or of natural causes. Also, killings, such as homicide can be the cause of death. Piracy attacks or terrorism can occur.

There can be a huge loss of life when a large vessel with many passengers onboard capsizes and sinks. Recently, refugees in overcrowded boats have also become victims due to the refugee crises in the 2010’s. In 2013, the number of migrants who had died in the previous two decades trying to reach Europe was estimated to have surpassed 20,000. These official figures are based on actual bodies counted, unofficial estimates are much higher, as many of the missing are never accounted for^[2] Big accidents often result in major investigations as to the cause and responsibility, leading to trials for liability and damages.

However, many deaths at sea concern just one or a few people. Still there needs to be an investigation into the cause of death, questions of liability and of damages to be awarded. According to the Marine Casualties and Incidents records in 2014-19, the number of reported seafarer’s deaths at sea were 310, plus 467 missing, with deaths rising in 2019.^[3] One reason for the rise in fatalities is the increase in extreme weather conditions.^[4] Notably, the South China and the East Indies zones have the highest overall number of recorded seafarer deaths at sea.^[5] However, the numbers of dead seafarers should be taken in the context that an estimated  400,000 seafarers work on merchant cargo ships, 300,000 on passenger and cruise ships and approximately 200,000 crew work on other types of vessels, including commercial fishing, n especially dangerous branch, according to IHS Markit’s 2019 Report^[6]

On the other hand, the International Maritime Organization (IMO) found that the number of total shipping losses declined and was the lowest of the century in 2019, with 41 ships lost. This is due to factors such as improved ship design and technology, increased regulations, advances in risk management and more robust safety management systems and procedures on vessels.^[7] However, despite decades of improvements in maritime safety regulation, training, technology and risk management, fatal accidents at sea persist. Human behavior is often the biggest risk factor, with Masters and crews operating in an increasingly time and resource pressured industry.^[8]

Procedures in Case of a Death at Sea

Introduction

The full procedures/guidelines that should be followed will vary according to company policies and the laws of the country in which the death occurred, Flag State Laws and the laws of the country of the origin of the seafarer. Such procedures should be clearly documented and form part of the ships safety management system.

A death on board a ship should be treated as an emergency. Ship owners are always encouraged to urgently make contact with Telemedical Assistance Services (TMAS) in the event of a death and any doubt or uncertainty must be investigated and resolved as soon as possible. Once death is confirmed, the medical management of these incidents mainly relates to ensuring that the death is reported to the appropriate authorities within the prescribed time-frame and handling the local authorities at the next port of arrival, ensuring that the body is handed over in a good state and providing clinical documentation. In such an unfortunate event, the Master and crew must take all necessary steps outlined within the WHO’s International Medical Guide For Ships, an equivalent national medical guide or procedures as directed by shore side medical  personnel.

In the event of work-related injury, a piracy attack or foul play on board it is essential that evidence is preserved for proper scrutiny by the authorities and so nothing should be moved or touched until permission has been given to do so. Further information on the management a potential crime scene at sea is given in Ch. 9.7.

Information gathering

The Ship’s master should gather as much information as possible about the incident along with other necessary details that are required as evidence and for the declaration of death.

Important details required as evidence include:

• Date, time, and position of the vessel when the death occurred
• Location of the death if it occurred because of an accident
• Record of the working hours of the deceased
• Details of the condition of the body and what is known to have happened
• Complete eye witness statement that is taken immediately after the incident
• Type of medical treatment given to the person before death
• Details of the person/ persons providing medical treatment
• Details on indication of intoxication, or substance abuse if found
• Details of any equipment which may have been the cause of death
• Timed photographs of the place where the deceased was found
• Details of telemedical support, if available and provided
• Any other information requested by the company

All the details of the death and actions taken should be noted in the official Ship’s log book.

Certification of death and establishing the cause of death

Typically, the shipboard physician, if there is one, can record the fact that the patient has died, but a doctor licensed in the next port of international entry will perform the actual legal certification  of death. This doctor is usually the local coroner or medical examiner.  The local port police department may insist on coming on board to conduct a forensic investigation into the manner and circumstances of the death.   If there is uncertainty over the cause of death, the vessel may be forced to delay departure until the investigation is concluded.

Notification of death at sea

When a death happens at sea, this fact must be recorded on the International Maritime Declaration of Health (MDH).  In actuality, the requirement was originally for non-accidental deaths to be reported, and this was the intent of the International Health Regulations adopted in 2005^[9].  In practice, most of the time, all deaths are noted on the form. The MDH is sent to the port health officer or the public health authority that has jurisdiction in the next port of call.

In the case of an arrival into a US port, the correct form to use is the US Center for Disease Control (CDC), Division of Migration and Quarantine’s “Maritime Conveyance Illness or Death Investigation Form”.  Under US federal regulations (42 CFR 71.21) the CDC require that any death occurring within 15 days of arrival into a US port is reported to the local quarantine station with jurisdiction over the anticipated port of entry at least 24 hours prior to arrival.

In addition to notifying the CDC there is also a requirement for all ships arriving into the US to notify the US Coast Guard if a passenger or crew member dies as the result of an accident on board.  This report should be filed to the local US Coast Guard Captain of the Port on form USCG 2692.

Within the US, the local port police, or the police department within whose geographical jurisdiction the port is located will respond to the ship, conduct the initial investigation and then refer the case to the local medical examiner.

The flag State of the ship also requires notification.  For example, the Bahamas Maritime Authority (BMA) requires the Master of a Bahamian registered vessel to notify them “immediately by the fastest mode of communication available.”  The BMA also requires the Master of a vessel registered with another flag State to notify them if a Bahamian citizen employed on a ship dies while in the “service of a vessel”.  Once the report is received, The Merchant Shipping Act of 1976 gives the BMA the authority to hold a preliminary investigation into the cause of death. Other Flag States have similar rules and requirements.

The Master must also inform the company as soon as possible and it is the responsibility of the company to inform the next-of-kin of the death of the employee. They may also inform the P&I club or other insurer.

Should an incident occur when the ship is at port or anchor, the procedures according to the laws of that particular country must be followed. The Master should inform the local agents and medical personnel. The local agent will guide the Master regarding the procedures to be followed as required by the authorities of that particular country.

Lastly, there is an expectation that the appropriate Embassy or Consulate shall also be notified of the death of one of their citizens.  Often consular offices are able to offer support with notification to the deceased’s home country and the Embassy or Consulate may also have consular officials able to meet with the family or next-of-kin to assist with documentation and other requirements.   They can also, typically, offer very useful advice on recommended funeral homes and assist family members with some of the arrangements for repatriation of the deceased.

Landing of the deceased

In most cases the local port authorities will require that the deceased is disembarked from the ship and then the local coroner or medical examiner will be involved.  However, authorities in many small ports with poorly developed infrastructures will often refuse to allow human remains off the ship, as they are not equipped to determine the cause of death or to manage the necessary arrangements for repatriation. In this situation, it may be that the body must remain on board until the next large port. If so, the body must be kept at an appropriate temperature in a morgue or large refrigerator on board. If this is not possible, it is usually possible to airlift the deceased to a suitable location ashore if there is no other solution. Other factors that may influence whether or not a body is landed in a port include:

• The circumstances surrounding the death, such as if a crime investigation might be required.
• The location of the ship at the time of death, for example on the high seas or in territorial waters, especially if there will be a crime investigation. Authorities of a coastal state in whose territorial waters the ship is in, can force the ship to go into one of its ports if they deem it necessary to investigate the death.

In the case of a passenger death on a short cruise, the family will often request that the deceased remain on board so that they can return to their original departure point together.  In most cases, the local authorities will not allow this.

Repatriation of mortal remains

Once the likely cause of death is established, a death certificate is issued and the body is taken to a local funeral home. At this point the next-of-kin or family will need to designate a funeral home in their hometown with whom the funeral home or mortuary who has the body can liaise and coordinate the repatriation of the remains.  Assistance companies, the Embassy or Consulate or the P&I club may also be involved in these arrangements.

As per the Maritime Labour Convention (MLC), all the belongings of the deceased seafarer should be packed and handed over to the agent to be forwarded to the company who will transfer them to the next-of-kin along with an inventory of belongings.

The ship owner should arrange for the repatriation of the body or the ashes of deceased seafarers, in accordance with the wishes of the next of kin and as soon as practicable.  There are a variety of reasons why burial at sea may prove problematic, including not following the spirit of the MLC advice but also because it may be more difficult to prove that foul play has not occurred. More information on burial at sea is available in xxx.

Efforts should be made to observe the customs of the deceased person’s religion wherever possible and appropriate advice sought if necessary.

Payment for repatriation can be expensive. All seafarers and persons on board merchant vessels  is often covered by the shipping company or P&I club insurer, but passengers travelling on board, for example, cruise ships are advised to have their own insurance policy as the repatriation of mortal remains is not usually covered by the consulate or the cruise line. A seafarer’s family may have the right to compensation in case of a workplace fatality. In the case of negligence or crime, a plaintiff might seek to be indemnified through filing a claim for damages in court. Specific information regarding death on a cruise ship can be found in section xxx

Burials at Sea

Introduction

Burial at sea is the disposal of human remains in the ocean, normally from a ship or boat. In the old days, more than 100 years ago, a dead body could be buried directly at sea, casting it overboard. This was convenient, as a morgue or fridge was often not available so when a contagious disease was suspected as the cause of death, or in wartime.  Nowadays in the 2000’s, burial at sea is still regularly performed by the navies of many countries and burial or the spreading of ashes is not uncommon, as below. In some regions, notably in Asia, sea burials are becoming popular and in some countries such as India, religious beliefs can pave the way for burials in internal waters, such as in the sacred Ganges River, which became a problem in the Covid Pandemic of 2020-21. Bodies were being disposed of directly into the sacred Gagnef river amid reports of wood shortages for cremation. This is illegal, as the authorities only admits ashes to be spread in the river based on the Hindu religion^[10] In wartime, attempts are made for burial at sea to follow the same procedure as in peacetime although a ship on a combat mission may not have all the necessary resources available. Today, in a war situation, it is usually possible to airlift the remains back to shore and prepare a burial ceremony on land.

Under strict rules, private citizens in many countries, can also be buried at sea. Usually, a permit is needed for the burial and this must be obtained from the authorities.  The ceremony may include burial in a casket, burial sewn in sailcloth, burial in an urn, or scattering of the cremated remains from a ship and the master of the ship or a religious representative of the deceased's religion or the state religion performs the ceremony.^[11] Different countries have different rules.^[12]

Different practices

In Australia, burial at sea within its territorial waters, exclusive economic zone (EEZ) and continental shelf is covered by the Environmental Protection (Sea Dumping Act 1981) administered by the federal Department of the Environment. Permits are usually only granted in cases of a strong connection to the sea, such as long-serving navy personnel. The body must not be embalmed or placed in a casket but may only be sewn into a weighted shroud. The burial must be in water deeper than 2,000 meters and not interfere with shipping, fishing or undersea communications. Australian Defence Force vessels engaged in armed conflicts or emergency situations are exempt from these requirements.^[13]

In the UK ashes can be freely spread at sea. For bodies, there are only a few designed areas for burial at sea and some burials at sea may be suitable for a self-service marine license. In order to qualify for such a license the intended place of burial must be one of the following locations:

• off the Needles, Isle of Wight,
• between Hastings and Newhaven,
• off Tynemouth, North Tyneside.

The following documentation is also required:

• a death certificate,
• a Certificate of Freedom from Fever and Infection (available from the deceased person’s GP or hospital doctor),
• a Notice to a Coroner of Intention to Remove a Body out of England.

Burials must take place within three months of the date the license is granted. To apply for burial at sea at a different location in England or the Northern Irish offshore area one can still apply for a license but also to provide evidence that the proposed burial location is suitable. Things like water depth, currents, pipelines and fishing will be considered.^[14]

In the US, a funeral director is not required for the burial of cremated remains at sea. However, full body burials require specific preparation to ensure the body or coffin sinks quickly, and in many states a licensed funeral director must be present. The different states have different rules with regards to granting a permit for a burial at sea. The Environmental Protection Agency regulations for full body burials at sea in the US require that the site of interment be 3 nautical miles (5.6 km; 3.5 mi) from land and at a depth of at least 600 feet (180 m).  The United States Navy requires a metal casket for intact remains, but full body burial in a suitably weighted shroud is also legal.^[15]

Many countries permit the spreading of cremation ashes within their Exclusive Economic zone (EEZ). In international waters, when spreading ashes from a ship the regulations and reporting procedures for the ship's flag State need to be complied with.

International conventions

The International Convention for the Prevention of Pollution from Ships (MARPOL) is the main international convention that deals with the prevention of the marine environment from pollution by ships. It does not mention burial at sea specifically but it is sometimes inferred that it prohibits burials at sea if the body is covered in plastic as per Annex V.^[16] Also, the United Nations Convention on the Law of the Sea (UNCLOS), have rules about the rights of different states to impose restrictions on maritime conservation and pollution in their EEZ (Art.194), which could allow states to forbid sea burials in this area.^[17]

People can still be buried at sea of necessity, such as when a ship or a submarine sinks and it is hard or impossible to recover the bodies. Then a sunken vessel can be declared a grave with laws ensuring their peace, not to be disturbed.^[18]

It can be a crime to bury dead bodies by throwing them overboard. In 2020 a video circulated showing how two Indonesian fishermen on board a Chinese fishing vessel located outside South Korea, were ‘buried at sea’ after falling ill and dying on board the Chinese owned vessel caught operating illegally in South Korean waters.^[19] This devastating story became trending news in South Korea and led to investigations by the local authorities and the Indonesian Government. The incident exposed that the Indonesian fishermen were mistreated on board, denied medical treatment or to go to hospital. They were forced to drink filtered saltwater and work long hours with very low salary, all of which are human rights violations.^[20] The Chinese company owning the fishing vessels claimed that the families of the deceased workers had been informed about the deaths and had agreed with the subsequent burial at sea..^[21]

However, a burial at sea needs to comply with the laws of the coastal state if done inside its territorial waters. Moreover, the case highlights that a death at sea needs to be investigated and the cause of death secured before burial of the body. In this case, both South Korean, Korean territorial waters, and Chinese Law, the flag State, would apply to the Indonesian workers death at sea. The dead bodies should have been reported to the port State. Their families claimed they were not informed of the burial of their loved ones at sea, but the passive personality jurisdiction principle provided that the victim’s families could only make claims based on the contract with the Chinese fishing company, and in this case they had the right to receive insurance money of $10,000 as stipulated in the employment contract. Due to alleged human rights violations, the case also gave rise to the Indonesian foreign office complaining about the ‘sea burials’ to the Chinese Government. Evidence showed that the Chinese Fishing company had used ‘sea burials’ for several other Indonesian workers as well^[22].

Workplace Fatalities

Incidence

Among different industries, the maritime transport sector has a high workplace fatality rate. However, the global shipping industry is responsible for about 90% of the world trade.^[23] In the UK, the Merchant Navy's work-related fatality rate is 26 times higher than the national average, in Demark 11 times higher, and in China work-related fatalities at sea have been shown to be higher in seafarers than in other industrial sectors.^[24] In both developing and developed countries, workplace fatality is highly damaging to surviving families' social, financial and health conditions.^[25]

With the growing world fleet, the numbers of crew killed are high considering shipping's increased focus over the last decade on the improvement of safety and environmental performance. While many of the major incidents that result in missing or dead crew may be perceived as rare events, the pressure experienced in a stressed environment, cause human errors.^[26]A problem is that the stress can make the Master and others try to cut corners in order to meet a tight schedule. It is argued that the high occupational casualty rate of the shipping industry is a consequence of the efforts to minimize its operational costs while maximizing profit.^[27] As the industry blames 80% of accidents on human errors, seafarers are afraid to report accidents, as many of them have precarious employment contracts.^[28]The report concludes that ‘throughout the industry, mariners are genuinely frightened that if they were known to be reporting safety deficiencies, they would almost certainly lose their jobs’.^[29]

Risk assessment

Working at sea has always been demanding – the hours are long and irregular and the ocean is a risky element. The environment also has the additional risks of handling machinery, chemicals, fuels and gases, without easy access to emergency services if things go wrong.^[30] Hence, the International Convention for the Safety of Life at Sea (SOLAS), was adopted in 1948, to ensure safe conditions for seafarers.

The most frequent of all occupational fatalities and serious injuries reported are falls, including from height, on stairs, and overboard, followed by improper enclosed space entry and rescue incidents.^[31] The most common natural cause of death in seafarers is cardiac arrest. Factors such as age and sex contribute, for example men aged over 40 years more often suffer a cardiac arrest and this group is overrepresented in seafarers. Clinical and statistical studies have also identified additional contributing factors on board a working vessel – hypothermia, electrocution, trauma caused by impacts or falls, respiratory and circulation problems, metabolic changes and the effects of drugs, all significantly increase the chances of suffering a sudden cardiac arrest.^[32]  Thus, it has been suggested that an Automatic External Defibrillator (AED) should be necessary equipment on board.^[33]

Liability and compensation

In considering liability and compensation for a seafarer’s workplace death, the complexity of employer structures may increase the uncertainty of compensation outcomes, to cite Shan Desai:

 ‘Unlike land-based workers, seafarers are subject to labour and maritime laws of multiple jurisdictions, including the Flag State of the ship and the labour supplying state where employment agreements are established. The structure of employers is complex, including ship owners, operators and multi-level crew agencies. Thus, in the case of workplace fatalities, seafarers' families usually have to negotiate with these parties, as well as with ship owners' insurers.’^[34]

One problem lies in the liability and insurance regime that covers the ‘negligence of seafarers clause’ in insurance policies. It is admissible for insurance payouts that focus on negligence by the Master or crew on board the ship, but explicitly excludes the possibility of compensation for management errors.^[35]

Employment contracts and flag State laws

Many seafarers are subject to fixed-term, temporary and even freelancing precarious employment agreements. For example, seafarers in China do not have long-term employment relationships and 58.45% of seafarers are not covered by the Chinese Work related Injury Insurance.^[36] When working at sea, the health and safety conditions on board are subject to the flag State jurisdiction, which can include open registry countries, such as Panama, Liberia, the Bahamas and the Marshall Islands. Such flags of convenience may have lower standards and laws that will make it harder for claimants to sue.

Multiple jurisdictions

Following workplace fatalities at sea, there may be responses from different jurisdictions, including flag states, port states and labour supplying states. Thus, claiming compensation from the overseas employer can be challenging.^[37] Further information about the jurisdiction for incidents at sea can be found in Ch 9.9. There are many cultural, linguistic and procedural barriers including in

• accessing accident investigation reports issued abroad,
• requesting that employers transport the body of the deceased seafarer back to their homeland,
• conservation of the body,
• applying for the declaration of death when seafarers are missing at sea,
• negotiating with foreign ship owners and litigating in a foreign jurisdiction.^[38]

Many times, foreign ship owners are not obliged to comply with the seafarer’s domestic labour law to provide seafarers with work-related injury insurance, for example in many flags of convenience.^[39] Another problem is that most workplace accident laws have in common that the current compensation system is primarily focused on economic costs while ignoring the additional psychological harm suffered by families and relatives to the dead.^[40]

The management of workplace fatalities for seafarers, is complicated by the fact that several different parties are involved in handling seafarer casualties:

• crewing agencies, who recruited the seafarers involved on behalf of ship owners or charterers
• Ship owners and their representatives, heir liability insurers' claim handlers and lawyers, who manage the claims and cover compensation liabilities
• administrative and judicial authorities, who act as arbitrators or adjudicators in the justice system.^[41]

One problem can be that ship owners, shipping companies, charterers and insurers try to minimize liability, avoiding the work-related nature of fatalities.^[42] There is often an uneven battle between the victim’s family and the companies involved in the death, the latter equipped with major assets and corporate lawyers. In addition, liability can be limited in the seafarer’s contract or in that, ship owners, charterers, managers and operators of sea going ships can limit their liability for maritime claims arising from vessel operation accidents.^[43]

Additional information on liability to seafarers can be found in Ch. 2.10.

Multiple deaths from maritime disasters

When a large vessel with many passengers and crew capsizes there will most likely be lawsuits concerning criminal liability and huge compensation claims from families and relatives from the victims.

Costa Concordia

In 2012 Italy’s newest and largest cruise ship, Costa Concordia, capsized after it struck rocks off the coast of Giglio Island in the Mediterranean Sea. On board were 1023 crew and 3206 passengers. 32 people lost their lives^[44]. The ship deviated from its standard course, moving closer to the small Tuscan island for a maritime ‘salute’, a common practice that includes the ship sounding its horn. Unfortunately, this area has many outcrops of rocks. The Master,  ordered a change in course, but due to language issues, the Indonesian helmsman steered the ship in the opposite direction. The stern collided with the reef and the ship’s side suffered a 53 metre tear. An assessment of the damage revealed that five compartments, including the engine room, were flooding, and the ship soon lost power. In addition, with neither the engines nor rudder functioning, the ship could not be steered away from the island and the wind and the stuck position of the rudder caused the Concordia to turn back towards the island. While the change in direction made the later rescue easier, it caused the ship to list to the starboard side and it eventually ran aground near the shore. The Master did not warn the SAR Authority of his own initiative. The warning was received by a person calling from shore) and he later underreported the damage. When a passenger alerted the coast guard, the Master responded only with the information that the vessel had experienced a blackout. Some 10 minutes later the coast guard contacted the ship again, and, at this time, the crew admitted that the vessel was taking on water. The Master asked only for tugboats and then left the cruise ship in a lifeboat together with other Concordia officers. He refused the coast guard’s order to return to the vessel and oversee the evacuation. 25 patrol boats, 14 vessels, 4 tugs and 8 helicopters rescued over 4000 passengers over the next days.

The incident resulted in four members of the crew and the cruise line, Costa Cruises, pleading guilty to various charges, including manslaughter. The Master was charged with manslaughter as well as causing the wreck and abandoning ship. He received a sentence of 16 years. The ship owners, Costa Cruises have paid €84 million in compensation to 3586 victims, including passengers and crew. This amount includes payments made to families of 29 of the 32 fatalities. The family of one American fatality opted for a lawsuit in US courts, where the parent company of Costa, Carnival Corporation, has its headquarters.^[45]

Herald of Free Enterprise

The UK flagged ferry, the Herald of Free Enterprise, sank in 1987 when she sailed from Zeebrugge with her bow doors open and water washing into her car deck that compromised stability. The ferry sank within ninety seconds just outside the harbour with the loss of 193 passengers and crew. It became apparent that the blame did not lie solely with the unfortunate crewmember responsible for closing the doors. A coroner’s inquest jury returned a verdict of unlawful killing and there were attempts to prosecute the owners, P&O European Ferries, for manslaughter.^[46]

The Estonia

The Estonia was a large ferry, sailing from Tallinn to Stockholm when it sank in the Baltic Sea off the coast of Finland in September 1994. 852 of 989 passengers and crew, made up of 17 different nationalities lost their lives. Most, 501, were Swedish. The ferry sank within an hour, at night, in a storm. In 1997 an international investigation concluded that the disaster was caused by a problem with the bow-door locking system so that the retractable bow visor had opened in heavy seas, allowing water to flow onto the car deck and destabilize the vessel.^[47]

Survivors and relatives were compensated for material damages from Estonian ship owner Estline. In 2019 a French court rejected the claim of 1116 plaintiffs seeking more than 40 million euros ($45 million) in damages from the French certification agency and German shipbuilder for the construction of the ship as well as for failed inspections by Bureau Veritas on its seaworthiness.

In 1995, after deciding not to salvage the wreck or recover the bodies, Sweden, Estonia and Finland agreed to designate it a final resting place and make it illegal to disturb the site through diving. In 2020, two filmmakers went on trial in Sweden for violating the sanctity of the wreck of the Estonia , when they made a documentary and sent a remote-operated submersible to the ship that revealed a massive hole in the ship’s hull, casting doubt on the findings of an official investigation into the sinking.^[48] They were later acquitted. After the documentary the Swedish Accident Investigation Authority made a request to amend the law banning diving to the ferry in order to allow a re-examination of the wreck.^[49]

Drowning onboard cruise ships

At least a dozen drownings or near drownings have occurred in cruise ship pools since 2014. Many have been children, such as the drowning of a 10-year-old Singaporean boy, found dead in the pool of the Genting Dream, even though there were pool attendants and guests in the pool with him, who tried to resuscitate him. This raises the question as to who is responsible when cruise ships do not offer lifeguards?

Legally speaking, cruise lines are protected from nearly all financial responsibility in the death of a non-wage earner, such as a child or retiree, by a US law, the Death on the High Seas Act (DOHSA) and the Jones Act. The only financial burden on the lines would be funeral costs for the victims, which does not incentivize cruise lines to post lifeguards.^[50] However, large settlements with compensation to the victim’s families have made many more cruise lines hire lifeguards.

Hospital Ships Protection Under the Laws of War

 In hostilities

Hospital ships, that is white ships clearly marked and adorned with the red cross or red crescent, are internationally recognized as protected platforms engaged exclusively in the care and treatment of the casualties of war or the victims of disaster.^[51] Most are operated by the military forces (mostly navies) of various countries. However, it is common for naval ships, especially large ships such as aircraft carriers and amphibious assault ships to have onboard hospitals. These are not protected as hospital ships, as the ships are overwhelmingly combat ships.

It is illegal to attack and sink a hospital ship or its personnel. However, in World War II several hospital ships were attacked and sunk killing many nurses, doctors and patients. Hospital ships are protected under humanitarian law, the second Geneva (II) Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1949) ‘and may in no circumstances be attacked or captured.’^[52] This language makes clear that hospital ships always retain their protected status, even if they are not at a given moment, engaged in the treatment or transport of casualties.^[53] Moreover, shipwrecked  ex-comattants, such as the wounded, as well as hospital personnel are protected as well.

The basic premise is that hospital ships are not to be used for any military purpose other than, of course, the care and transport of casualties. Wounded, sick, and shipwrecked military members, and the medical personnel who care for them, are considered non-combatants and therefore not subject to direct attack. Hospital ships caring for and transporting casualties of war enjoy immunity from deliberate attack, provided they are identifiable as such—hence the rules regarding distinctive markings, emblems, and signals.^[54]

By no means can a hospital ship be carrying out offensive attacks and used for combat. However, it shall be noted that “during and after an engagement” hospital ships “act at their own risk.”^[55] This does not mean that they can be fired upon but infers that it can be risky to sail on a hospital ship. A hospital ship can happen to collide with a mine, or by mistake be attacked. Recently, in wars on terrorism, terrorists have also illegally targeted hospitals and ambulances, but not yet hospital ships, with the loss of human life.^[56]

In Peacetime

In peacetime hospital ships can serve civilians. When the 2004 Asian tsunami struck both the US and China sent a hospital ship each to care for the victims in Indonesia. The Chinese have also deployed its hospital ship Peace-Ark on a mission to Africa with the strategic mission to provide for humanitarian assistance mission to Africa as well as the establishment of favourable relations aiming to secure important economic resources.^[57]

In connection with the COVID-19 pandemic,  the United States, deployed two of the U.S. Navy's Mercy-class hospital ships, both in the Port of Los Angeles and to New York Harbor. The Los Angeles ship helped care for people with illnesses other than COVID, when hospitals were full of COVID patients.  The Indonesian Navy hospital ship KRI Dr Soeharso was deployed to transport crew members from the infected cruise ships World Dream and Diamond Princess back to Indonesia in February–March 2020. In addition, a Mediterranean Shipping company converted one of its ferries into a hospital ship to treat covid patients in Italy.

^[1] Shan, Desai. Workplace Death at Sea: Chinese Surviving Families' Experiences of Compensation Claims, Relations Industrielles / Industrial Relations, 72, no. 1 (2017): 125-148, 125.

 Basran, infra, p.206.

^[3] The inaugural State of Maritime Safety Report, data led insights and analyzes into vessel incidents, into 2020,  IHS Markit, 2020. Available from:https://ihsmarkit.com/research-analysis/seafarer-fatalities-shows-shipping-must-do-more.html [Accessed 13 July 2021.

^[4] It has led the World Meteorological Organisation and the IMO to hold their first joint symposium, 'Extreme Maritime Weather: Towards Safety of Life at Sea and a Sustainable Blue Economy', on 23-25 October 2019.

^[5]On EU ships and in EU waters, as between 2013 and 2019, 53 seafarers lost their lives at sea and 199 seafarers were missing in marine casualties, Annual Overview of Marine Casualties and Incidents, EMSA, 2020, and the trend is declining deaths at sea, see its Preliminary Annual Overview of Marine Casualties and Incidents, EMSA, 2020. Available from: file:///C:/Users/katin/Downloads/Annual%20Overview%20of%20Marine%20Casualties%20and%20Incidents%202020%20publication.pdf. Accessed 13 July 2021]]..

^[6] State of Maritime Safety Report,  supra.

^[7] AGZ Safety and Shipping Review 2020. Available from:https://www.agcs.allianz.com/news-and-insights/reports/shipping-safety.html. [Accessed 13 July 2021].

^[8] Annual Overview of Marine Casualties and Incidents, EMSA, 2020, supra.

^[9] https://www.who.int/publications/i/item/9789241580496

^[11] Legal aspects of sea burial, Asser Institute for International and European Law, p.1, [https://www.thanos.org/uploads/documents/seaburial-fiat-ifta-march-2013-advice-1.pdf]

^[12]Ibid.

^[13] Burials at Sea, Australian Navy, [https://www.navy.gov.au/customs-and-traditions/burial-sea].

^[14] Marine Management Organisation, How to get a license for a burial at sea in the UK marine area, Gov. UK Homepage, 15 Nov. 2017. Available from:https://www.gov.uk/guidance/how-to-get-a-licence-for-a-burial-at-sea-in-england.Accessed 13 July 2021]

^[15] Legal aspects of sea burial, supra,.

^[16]Available from: https://www.imo.org/en/About/Conventions/Pages/International-Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx. [Accessed 13 July 2021]

^[18] See infra about the sunken ferry Estonia, the wreck being declared  an inviolable grave.

^[19]Ratu Ayu Asih Kusuma Putri, The Factors Behind the Disturbing ‘Burial at Sea’ of Indonesian Migrant Fishers, The Diplomat, May 11, 2020.

^[20]  Ibid.

^[21] Ibid.

^[22] China Continues Investigation Into Sea Burials of Indonesian Fishermen: Foreign Affairs Ministry, Jakarta Globe, 3 June 2020.

^[23]Shan, Desai. Workplace Death at Sea: Chinese Surviving Families' Experiences of Compensation Claims, Relations Industrielles / Industrial Relations 72, no. 1 (2017): 125-148.

^[24]Ibid., 126.

^[25] Ibid.

^[26] HIS State of Maritime Safety report , supra.

^[27] Walters, David, and Nicholas Bailey, Lives in Peril, Basingstoke: Palgrave Macmillan (2013):122.

^[28] Suresh Bhardwaj, Work Organisation, Labour & Globalisation. 2014:8(1): 22-36,.27.

^[29], Marine Accident Investigation Branch Annual Report, Maritime Accident Investigating Branch, 2001.

^[30] The Most Common Cause of Death at Sea. Martek Marine, Feb. 25, 2019. Available at https://www.martek-marine.com/blog/common-cause-of-death-at-sea/. [Accessed 13 July 2021] 

^[31], ANNUAL REPORT ON MARINE SAFETY INVESTIGATIONS 202. REPUBLIC OF THE MARSHALL ISLANDS Maritime Administrator Apr.2021.Available from:https://safety4sea.com/wp-content/uploads/2021/04/RMI-Annual-Report-on-Marine-Safety-Investigations-2020-2021_04.pdf. [Accessed 13 July 2021].

^[32] The Most Common Cause of Death at Sea, Martek Marine, supra.

^[33] The Shocking Truth: Sudden Cardiac Arrest at Sea. Martek Marine, 1 June 2018.Available from: https://www.martek-marine.com/blog/shocking-truth-sudden-cardiac-arrest-sea/. [Accessed 13 July 2021]

^[34] Desai, supra, 126.

^[35]  Bhardwaj, supra, 29-30.

^[36] Chen, Gang, Xinyan Zhu, and Yong Hao, The Application of Maritime Labour Convention (2006) in China and Standard Employment Contractual Remedies. Wuhan and Fuzho,: Wuhan University of Science and Techonology and Fujian Maritime Safety Adm, 2014:22-40..

^[37] Desai, supra, 127.

^[38] Ibid.,

^[39] Ibid,,127.

^[40] Ibid., 128. See also in US Law infra.

^[41] Densai, supra,p.127.

^[42] Lund, Henrik Lambrecht, Strategies for Sustainable Business and the Handling of Workers' Interests: Integrated Management Systems and Worker Participation, Economic and Industrial Democracy, 2004:25(1):.41 -74.

^[43]  Desai, supra,139.

^[44] MINISTRY OF INFRASTRUCTURES AND TRANSPORTS Marine Casualties Investigative Body Cruise Ship COSTA CONCORDIA Marine casualty. Report on the safety technical investigation, January 13, 2012.  Available from: https://www.mitma.gob.es/recursos_mfom/2012costaconcordia.pdf. [Accessed 13 July 2021]

^[45] Costa Concordia, victims of shipwreck receive €84 million, The MedieTelegraph, 22 Jan 2015 [https://www.themeditelegraph.com/en/shipping/cruise-and-ferries/2015/01/22/news/costa-concordia-victims-of-shipwreck-receive-84-million-1.38171567].

^[46]Barbara Tomlinson, Commemorating the Seafarer, in Tomlinson B, (ed.) Lost at sea: maritime accidents, Monuments, Memorials and Memory, ,UK, Boydell & Brewer; Boydell Press, 1988.

^[47]Final Report by the Joint Accident Investigation Commission, M/S ESTONIA, Sep. 28, 1994,THE FINAL REPORT, 14 Dec.1997. Available from:http://www.multi.fi/estonia/estorap.html#_Toc405839343 . [Accessed 13 july 2021].

^[48] Göteborgs tingsrätt (Gothenburg Court of First Instance): Case number: B 18677–19, 2019.

^[49] Sweden looks to change law so 1994 ferry disaster can be re-examined, The Guardian, 19 Dec.2020.

^[50] According to maritime attorney Michael Winkleman, cited in LipCON Blog, Available from:https://www.lipcon.com/blog/in ].Accessed 13 July 2021].

^[51] Richard J. Grunawalt,  Hospital Ships in the War on Terror, Naval War College Review2005:58:1, 88.

^[52] Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.Art.12.

^[53]Grunawalt, supra,at.96.

^[54] Grunawalt, supraat 89.

^[55] Ibid.

^[56]Ibid. p.20., See also, Arthur M. Smith, Has the Red Cross-Adorned Hopsital Ship Become Obsolete?  Naval War College Review, Vol. 58, No. 3, pp. 121-131.

^[57] Leah Averritt, Semaphore: Chinese Hospital Ships and Soft Power, Semaphore 2011:3:1-3.