By Captain Glenn Mathias

PIRACY is flourishing in the Red Sea, Gulf of Aden and the Indian Ocean off Somalia – the RSGAI area – because leaders of countries who could prevent such activity are looking for leadership in establishing an international force to eliminate such activity. That leadership is best provided by the International Maritime Organization, which is MIA.

The purpose of this article is two-fold: first, to highlight the impacts of piracy on two classes of people viz the seafarer and the common man or woman at the end of the supply chain. Secondly, to recommend a strategy to eliminate piracy in the RSGAI area. Elimination of piracy would ensure seafarer safety and security of supply chains.

Impacts of piracy – seafarers

Shipowners have known for years that seafarers have been injured and taken hostage by pirates. Despite such knowledge, the question is: what actions have shipowners taken to eliminate piracy and protect seafarers? None!

Shipowners cannot protest the answer because their inaction demonstrates that their business models accept such injuries and hostage-taking as the cost of doing business. If shipowners believed that seafarer welfare and safety was important – because without seafarers there would be no ships and no shipping industry – they would have forced the IMO to take action to eliminate piracy years ago; they have not done so. The shame of ignoring seafarer welfare and safety is not limited to shipowners, but to other organisations whose livelihoods are directly dependent upon ships, including P&I clubs; International Transport Workers’ Federation; International Chamber of Shipping; and not the least, the IMO.

Shipowners need only look to the courts to understand the reasons seafarers are a special class of persons demanding of protection of the law. Lord Stowell’s seminal judgement in The Minerva (1825) I Hagg 347, resulted in the High Court of Admiralty exercising sole authority over wage claims by seafarers, regardless of the nature of the contract. In the US case of Harden v Gordon, 11 F Cas 480, 500 (1823), Story J said this about seafarers:

Every court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached. But courts of maritime law have been in the constant habit of extending towards them a peculiar, protecting favor and guardianship. They are emphatically the wards of the admiralty …

More recently, in the ANL Progress [20 Feb 2002] HC, NZ, AD1/02 [28], Salmon J noted:

There is obviously a disparity of power between them [seafarers] and the owners of the ship. It is appropriate to continue to adopt a benevolent and protective attitude.

Although the cases related to seafarers’ claims for wages, generally, the statements reflect the special protection afforded by the law to seafarers. Despite their favoured and unique position in law, the fact that seafarers are not so regarded by shipowners indicates that seafarer welfare and safety are not factored into shipowners’ business models.

Impacts of piracy – Common man and woman

Turning now to the common man and woman at the end of the supply chain. As a consequence of covid-19, the common man and woman endured shortages of food and other basic necessities, and the burden of exorbitant prices. (Those in the upper socio-economic brackets were less affected by such prices). Ironically, container companies made astronomical profits due to covid-19, as Drewry noted in December 2021:

DMFR, the investment research arm of global shipping consultancy Drewry, remains bullish about continued high stock prices and rising profitability in the booming container carrier sector. The strong performance in the global container shipping sector has generated very handsome spill-over benefits for stock investors. The returns since the start of 2020 have been astronomical. Asian liner operators were the top performers; with Yang Ming up by 1,583% (as of mid-December 2021), followed by Evergreen Marine’s gain of 987% and Wan Hai’s 976%. HMM generated returns of 621%. More modest growth was seen in Europe, where Hapag-Lloyd shares increased by 192% and Maersk’s by 123%. Clearly the pandemic and ensuing supply chain crisis that supercharged carrier profits has been the primary driver for the share price bonanza. (emphasis added)

While shipping companies reaped astronomical profits during the supply chain crisis, the contributions towards those profits fell hardest on society’s common man and woman at the end of the supply chain. With piracy prompting shipowners to re-route their ships away from the RSGAI area and around South Africa, such re-routing could cause another supply chain crisis. And there is no prize for guessing which members of our society would shoulder the heavier burden of profits flowing from such a crisis. But then again, the welfare of the common man and woman is not factored into shipowners’ business models.

Previous actions to deal with piracy

Much is currently being written about the UN/IMO issuing resolutions about the piracy in the RSGAI area; however, resolutions are not a language pirates understand.

An extract from UNCTAD’s Maritime Piracy, An Overview of Trends, Costs and Trade-Related Implications, (Studies in Transport Law & Policy, Part 1, 2014), provides a concise view of UN actions in dealing with piracy off Somalia:

Since 2008, the United Nations Security Council has adopted a number of resolutions to support counter piracy action in East African waters. The European Union, the African Union, the League of Arab States, and North Atlantic Treaty Organization (NATO) are all active in fighting piracy off the coast of Somalia. Over 40 countries are involved in counter piracy operations in East Africa, either in a national capacity or through joint forces (for example, the European Union Naval Force Somalia – Operation Atalanta; the Standing Naval Group of the North Atlantic Treaty Organization – NATO Operation Ocean Shield; and Combined Task Force 151). Reflecting actions by international navies, as well as preventive measures by merchant ships, including the deployment of privately contracted armed security personnel in the region, the share of East Africa in the total number of piracy incidents occurring in African waters, has dropped from nearly 50 per cent in 2008 to about one third in 2010 and 17.3 per cent in 2012. Yet, despite the apparent drop in incidents since 2010, maritime piracy remains a major concern, including for the shipping industry which has welcomed the “clampdown” on piracy in East African waters, but has also cautioned against any potential complacency. The fear is that pirates off the coast of Somalia may not have totally given up on maritime piracy as a source of revenue but instead, may be changing their strategy by increasingly targeting ships at anchorage.

The fact that piracy has increased in the RSGAI area indicates that the UN actions failed to eliminate or reduce piracy.

Before discussing the strategy to eliminate piracy, it is important to understand the issues that sustain piracy. First, the success of piracy is its business model: Upside – enormous profits. Downside? Almost none. (The loss of a pirate life or two is part of their business model: uncannily similar to that of shipowners – harsh, but true).

Piracy can be eliminated if their business model is broken by overwhelming, and when necessary, deadly force, that ensures only downside, no upside.

Secondly, pirates attack ships because pirates wield superior, and at times deadly force against a ship. It is well accepted that, in most situations, superior force will triumph. Recall, that Russia invaded and annexed Ukraine’s Crimea in March 2014, because of its superior military force. China engages in certain activities in the South China Sea despite protests by the IMO and some neighbouring countries because of its superior military force over those countries and the IMOs irrelevance in such situations. When Ronald Reagan was President, the then USSR feared him; those fears increased when, in November 1983, NATO forces conducted their nuclear weapons exercise Able Archer 83. This was a routine annual exercise but in 1983, the USSR put their forces on high alert, believing the exercise to be a smoke screen for a nuclear strike.

Finally, piracy could be eliminated in the RSGAI area, if the IMO exercised leadership. Its failure thus far, has caused certain countries in recent times, most recently Denmark and India, to send a warship to the area. IMOs failure has also prompted US Defence Secretary Lloyd Austin to announce the creation of a multinational operation to counter piracy in the RSGAI area.

“This is an international challenge that demands collective action. Therefore today I am announcing the establishment of Operation Prosperity Guardian, an important new multinational security initiative,” he said in a statement on 18 December. No reference to the IMO.

Strategy to eliminate piracy

Despite the US, with good reason, pre-empting the IMO, the latter must join the US and prevail upon countries who may resist joining a US-led force, to join an international force of naval vessels. IMO leadership will lend a degree of gravitas to a naval force assembled under an IMO initiative rather than a US one.

The critical aspect of an international naval force is that it presents as an overwhelming force, because that is the only language pirates understand.

The international naval force would have just one objective: the elimination of piracy. The objective could be achieved through a three-fold strategy: first, patrolling the RSGAI coastlines to detect departing pirate vessels; second, tracking those vessels and, if they approach ships, warning them against such approaches; and finally, using whatever force, including deadly force, when those vessels attempt to board ships.

If the strategy is properly implemented, piracy in the RSGAI area would cease within a month of such implementation. Its elimination would take a little longer.

To reiterate, piracy will only be eliminated through actions pirates understand: overwhelming and, when necessary, deadly force.