Pirates? Call the Marines … Er, the Lawyers

BY Herschel Smith
7 years, 10 months ago

Pirates?  Call the U.S. Marines … er, the lawyers.

Piracy off Somalia’s coast has plagued shipping companies for years, but the number and boldness of attacks has increased in recent months. While that has given fits to shipowners, cruise operators and navies, it also has kept a relatively obscure set of lawyers busy.

London’s Holman Fenwick has received more work as pirate attacks have increased off Somalia, where a French Navy frigate patrolled Saturday.

Among the most prominent is London maritime firm Holman Fenwick Willan. Partner Toby Stephens says lawyers at the firm have been awakened “at all hours” by ship owners calling the firm’s 24-hour hot line. “They’re often quite panicked, and understandably so,” he says.

Over the past three months, the rise in piracy has kept about a half-dozen lawyers at Holman Fenwick working nearly full-time for clients with potentially dozens of lives and tens of millions of dollars at stake in hijackings. To some degree, the work has helped Holman Fenwick offset other maritime practices hurt by the global economic slowdown.

Through the end of last month, the waters off Somalia had been the site of 96 pirate attacks this year, 40 of which had led to pirates boarding a ship, taking control and demanding a ransom, according to the International Maritime Bureau in London. World-wide there were 83 reported pirate attacks in the third quarter, up from 53 and 63 in the first and second quarters, respectively, the bureau says. In recent months, pirates have broadened their targets to include bigger vessels, including oil tankers and, so far unsuccessfully, cruise ships. In most cases ransom demands have been in the $1 million-$2 million range. But lawyers say hijackers have demanded as much as $25 million for the release of the Sirius Star, a Saudi oil tanker captured 450 miles off the Somali coast carrying cargo valued at more than $100 million.

On Tuesday several cruise-ship operators said they would shift or cancel tours or reroute passengers by plane to avoid the Gulf of Aden off Somalia. Also, the European Union said it would station armed guards on cargo ships in the area.

Mr. Stephens says his firm is working on “over a dozen” of the roughly 20 Somalia-area attacks in which the ships haven’t been freed.

“This year we’ve seen a definite uptick in piracy work,” says James Huckle, who is in charge of business development for the firm.

Business in Holman Fenwick’s casualty practice, usually dealing with shipping collisions, and its ship-financing practice have slipped as the world economy has slowed. Mr. Huckle says piracy cases have helped “counterbalance” that downturn but he is unable to provide specific figures.

Stephen Askins, a maritime lawyer at London’s Ince & Co. says he is handling “a few” piracy cases, but that Holman Fenwick “is really leading the way” in representing shipowners in piracy matters.

Piracy expertise at Holman Fenwick, which was founded in 1883, grew out of the firm’s history representing clients following shipwrecks and collisions. The firm represented the salvage companies that cleaned up after the oil tanker Prestige broke up off the coast of Spain in 2002. The firm also represents the owners and insurers of the MSC Napoli, a container ship severely damaged in an English Channel storm last year. In addition to about 290 lawyers, the firm employs about 30 nonlawyer experts, such as former ship captains, marine engineers and naval architects.

A firm’s initial role after a hijacking often is to ease a client’s fears. “No one’s been hurt, and the ransoms have so far been small enough for shipowners to pay,” says Duncan McDonald, a lawyer at London-based Stephenson Harwood. His firm represents owners of two ships hijacked and released earlier this year.

Then, a firm moves to determining where a ship is registered and the location of the hijacking. These factors affect the laws that will govern the case and the haggling over liability that often follows. A U.N. resolution passed in June allows a navy to enter Somalia’s territorial waters to repress an attack.

Shipowners and insurance underwriters are reluctant to speak publicly about their hijacking situations. But the managing director of a large insurance syndicate in London says that when a ship partly underwritten by his firm was hijacked several weeks ago, his first question to lawyers at Holman Fenwick was whether the payment of ransom was even legal. It was under U.K. law, Mr. Stephens says, which typically applies because that’s where insurance underwriters are usually based. If a ransom payment is illegal, the firm might have to negotiate with the country exercising jurisdiction.

The insurance-syndicate executive says the negotiations, which are continuing, have been stressful. “I know we’re in good hands…but there are still times when you feel like you have no control at all,” he says.

“The lawyer’s pen and the swashbluckling pirate’s sword met with a mighty crash as all the children heard and watched the brave battle ensue” … actually, scratch that.  We’re only on good hands if the Marines are killing pirates.  The Captain’s Journal has made it known what needs to be done.

TCJ has weighed in saying:

This is easy. We tell the LOAC and ROE lawyers that they’re special and that they should go to their rooms and write high-sounding platitudes about compassion in war so that they’re out of the way, we land the Marines on the ship, and we kill every last pirate. Then we hunt down his domiciles in Somali and destroy them, and then we find his financiers and buyers and kill them. Regardless of the unfortunate potential loss of Ukrainian or Russian civilian life upon assaulting the ship, this weaponry and ordnance should never have been shipped in this part of the world without escort (and perhaps it shouldn’t have been shipped even with escort). Negotiations will only serve to confirm the pirates in their methods. It’s killing time. It’s time to turn the United States Marines loose.

Ralph Peters has weighed in saying:

Piracy must be exterminated. Pirates aren’t folk heroes or champions of the oppressed. They’re terrorists and violent criminals whose ransom demands start at a million bucks. And they’re not impressed by the prospect of trials in a velvet-gloved Western court. The response to piracy must be the same as it was when the British brought an end to the profession’s “golden age:” Sink them or board them, kill them or hang them.

Lt. Col. P at OpFor has weighed in saying:

Kill all of the pirates.

Seriously. Why do we allow a handful of khat-addled assholes to dominate one of the world’s most important sea lanes? We, the western powers, have sufficient naval units in the area to take care of the problem in very quick order. What we lack is the will. We apply an idiotically high standard of judicial due process to a situation that doesn’t lend itself well to a judicial solution. Anyone who has dealt with Somalis can tell you that they laugh at western legalisms, and what they perceive as western weaknesses. And then they redouble their violent efforts to take what they want from you. They do react very well to a boot on their necks, and a gun to their heads. Then they tend to wise up quickly.

Here’s how it needs to be done. Oil tanker sends distress call, takes evasive actions insofar as it is capable. (Or better yet, armed men aboard oil tanker defend by fire.) Coalition forces despatch (sic) vessels and boarding parties. Pirates who survive ensuing gun battle are lined up by the rail and shot in the head, then dumped overboard. Pirate boats are burned. If their bases or villages on the coast can be identified, said bases are raided and destroyed. No fuss no muss, no ransom, no hostages, no skyrocketing costs.

So who has the trust?  The lawyers or U.S. Marines?  Should we pay ransom or kill the pirates?  We have a poll where the reader can weigh in on this question.

You are currently reading "Pirates? Call the Marines … Er, the Lawyers", entry #1700 on The Captain's Journal.

This article is filed under the category(s) Lawfare,Marine Corps,Piracy and was published December 12th, 2008 by Herschel Smith.

If you're interested in what else the The Captain's Journal has to say, you might try thumbing through the archives and visiting the main index, or; perhaps you would like to learn more about TCJ.

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