Pirates... A Charterers' Peril of the Sea?

AuthorGiulia Argano
Pages169-194
S.S.L.R PiratesA Charterers‟ Peril of the Sea? Vol.1
169
Pirates… A Charterers‟ Peril of the Sea?
Giulia Argano
Can piracy be contemplated as a „peril of the sea‟? This will be the main
question that shall be addressed in this piece of work as well as any possible
ramifications. I decided to writ e my dissertation on the issue of piracy in
Maritime law as it is a very problematic topic, which is becoming a more
common occurrence with the passing of time. As I greatly enjoy Carriage of
Goods by Sea, I decided to associate piracy with charterparty issues. I looked
at off-hire and seaworthiness which were of particular interest to me and
found a common element in these two issues; that of „perils of the sea‟. This
issue is of extreme relevance as it can consider cases such as that of “The
Saldanha” and view them in a different light.
I shall endeavour to answer and research this focal point in four parts; first by
looking at the definition of piracy, and examining the difficulties found there.
Then I will investigate the phrase „perils of the sea‟ and discuss how this has
been interpr eted and where it can be found. The third and fourth part shall
deal with the two charterparty issues mentioned above; off-hire and
seaworthiness. This study will reveal how all four parts interlink and
complement each other. My initial knowledge on the subject was rather scarce
however, after working at a P&I Club I was able to experience firsthand the
great problem that is piracy. Following this experience I further enriched my
knowledge by attending presentations. These included “Protecting your
business on the high seas”, organised by Lloyd‟s of London, as well as Ince &
Co‟s Shipping brief, a section of which was dedicated to piracy. Here I listened
to talks from international security and risk mitigation specialists discussing
how to mitigate the chances of a successful pirate attack and was made aware
of the overall situation of piracy in 2010. The final part of my research was
based in the library, where I was encircled by books, journals and cases
referring to the subject at hand.
Notwithstanding the attempts made to ameliorate the situation, pir acy
remains such a problematic issue that finding an absolute solution seems
unlikely. Nowadays, suggesting a Roman-style „eradication by use of force‟
argument would not be the ideal solution, as the „use of force‟ is strictly
controlled by the United Nations. Therefore, this work will not provide a clear-
cut method to solving piracy, but rather propose possible solutions. Piracy is
the most ancient problem facing vessels in Maritime law, and is a problem
that will continue to exist. I do, however, wish to produce evidence supporting
the argument that piracy is indeed a „peril of the sea‟ and outline the possible
outcomes associated with this affirmation. The potential effect that this
interpretation may have on charterparties will also be examined, by looking in
particular at the effect it will have on off-hire and seaworthiness.
[2011] Southampton Student Law Review Vol.1
170
Introduction
iracy has always negatively affected the marine market, and is a problem
which dates back to ancient times. Cicero
1 defined it as “the common
enemy of all mankind2”, which is probably the reason for which it
became the first crime to be given universal jurisdiction3. Even in the modern
era, piracy persists and the number of attacks is increasing; between January
and September 2010, t here have been 214 pirate attacks, 17 attacks of which
were solely during the month of September4. A three to four fold increase was
observed in the month of January 2011, compared with January 2010, with 30
attacks recorded5. Not only has the number of attacks increased, but the
period the vessel and its crew and cargo are held captive has also increased. To
date the average release time is of 213 days6. Based on trend predictions from
2010, both of these statistics are only expected to increase in the future7. It
appears therefore that piracy is not only a persisting problem but also an ever
increasing one.
A completely new aspect relating to piracy will be the focal point of this
dissertation; whether piracy can be included as a „peril of the sea‟ with regar ds
to charterparties. This question shall be discussed in four parts: the concept
of piracy must initially be explored in order t o fully comprehend its meaning,
as well as the problems associated with it. Secondly, what constitutes a „peril
of the sea‟ will be analysed as well as the problematic list of exceptions found
in the Hague/Hague-Visby Rules and The Rotterdam Rules. In the event that
piracy is included in this list, the carrier would be exempt from liability. The
final two chapters will demonstrate the relevance of „perils of the sea‟ in
charterparties through the examination of off-hire and seaworthiness. The
link between the two and the concept of „peril of the sea‟ will be explained and
established in order to fully appreciate the importance of piracy as a „peril‟.
Subsequent to the examination of these four areas, whether piracy is indeed a
peril of the sea shall be assessed, taking into account arguments both for and
against as well as the problems which may flow from each answer.
Definition of Piracy
Piracy is a problem which hampers marine transactions in a variety of ways;
this work will focus on an aspect of those problems relating to charterparties.
However, piracy in itself is laced with controversies and before investigating
how it affects others, it is important to define what exactly piracy is.
1 Marcus Tull ius Cicer o Roman philosopher, lawyer and polit ical theorist
2 Communis hostis omnium used in his works De Officii s and Contra Verres II
3 Every state has the jurisdiction t o try a person(s) of an alleged crime which occurs outside
the boundaries of an y country as a result of its offensive natur e. Discussed later.
4 Int er national Mariti me Securi ty Report
5 Ince & Co International Law Firm, „Ince Quarterly Shipping Brief‟, 20th January 2011
6 Ibid
7 Supra at fn. 5; GAC and AKE Presentation, „Protecting Your Business on the High Sea‟, 20t h
October 2010
P

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