Gulf of Guinea Piracy – A Continuing Threat not on Lockdown

Michael Ritter

Gulf of Guinea Piracy – A Continuing Threat not on Lockdown

by Michael Ritter*

1. Whilst global shipping comes to terms with the impact of COVID-19 and the impact of restricted movement on international trade, some pre-existing threats remain prevalent, not least that of piracy and kidnap for ransom in the Gulf of Guinea. Whilst governments in coastal states such as Nigeria have enacted lockdown measures and restricted both international travel and travel within States, there has been no downturn in pirate attacks either at anchorage or offshore.
2. Owners and charterers trading in the Gulf of Guinea, need bear in mind these existing risks alongside the new challenges posed by COVID-19. The Greek ship owning industry is no exception, and regrettably many owners, charterers and managers with offices in Greece have first-hand experience of such incidents.  The IMB Piracy Report 2019 identifies 25 of 162 incidents as being Greek managed / controlled (second only to Singapore and double Hong Kong the third ranking country).
3. Whilst one may have assumed the risk might have decreased since COVID-19, if anything the opposite is true, with successful attacks reported offshore Nigeria on 30 April 2020 which led to the kidnap of 10 crew members and two kidnappings in Equatorial Guinea on 9 May 2020. Cotonou anchorage in Benin has also emerged as a recent hotspot, with at least 3 incidents resulting in crew members being kidnapped this year.
4. The industry has responded and there are preventative measures that Owners can take. In particular, BMP West Africa[1] was launched in March 2020 by the ICS, BIMCO, IG PI Clubs, Intercargo, Intertanko and OCIMF building on the Best Management Practices developed in Somalia.  However, even well run and well protected vessel have, nonetheless been impacted by this problem.  In such circumstances, and whilst usually supported by their insurers, external assistance will be required to resolve the situation.
5. Such a response should be coordinated between a small, crisis management team (“CMT“) established by the Owners and/or Managers and experienced external support. In particular, a professional response consultant (to assist with negotiating strategy and communications – a negotiation with pirates is a unique experience removed from the rules of commercial negotiations) should be retained together with legal advisors (to assist with legal, compliance, funding, contractual and logistical arrangements).  This is alongside the commercial issues arising under any contracts of carriage or charter arrangements.
6. On the legal side, the payment of ransom is generally legal, at least under English law, a position reflected in most countries “there is no legislation against the payment of ransoms, which is therefore not illegal’ nor is there any ‘universal morality against the payment of ransom, the act not of the aggressor but of the victim of piratical threats, performed in order to save property and the liberty or life of hostages’ Masefield AG v. Amlin [2011] EWCA Civ 24. However, a payment to terrorists is not lawful and due diligence should be completed to avoid falling foul of the Terrorism Act 2000.  English, Greek and Nigerian law advice (including in respect of Nigerian legislation enacted in 2019) may be needed, as may notifications to relevant authorities in respect of any anticipated payment.
7. The other fundamental points to address alongside the negotiation are the practicalities of encashment and delivery of the ransom and extraction and repatriation of the crew. There are a handful of trusted operators, both European and Nigerian in this field, and as you can imagine service providers do not advertise and are not available off the shelf.  The CMT and response consultant will need to be satisfied by the practical proposals, and once agreed this should be evidenced by bespoke contracts prepared by the lawyers, allocating risk and responsibility and clearly recording the agreed commercial terms to avoid the surprise of additional costs.
8. Whereas there has been no downturn in respect of kidnap incidents since COVID-19, COVID-19 has made resolving such incidents more complicated. Whether in (i) making it more difficult for the CMT and professional response consultant to meet in person (ii) reducing the availability of US Dollar bills in Nigeria (iii) potentially restricting the movement of the delivery contractor and others involved in the delivery and extraction operation within Nigeria, or indeed (iv) the repatriation of the crew post release given the lack of international flights.
9. Seeking external assistance from experienced professionals is even more important in present circumstances. There is a clear potential for COVID-19 to dramatically increase the costs of resolving such incidents.  Therefore the need for a suitable contractual frame work and risk / cost allocation behind the operational aspects has also increased.  Further against changing daily landscapes, lateral thinking and the ability to respond quickly as a team to unforeseen developments has become an even more important skill.  Positively, where the correct support is sought, ultimately the crew is safely released, returns home and more often than not, when afforded appropriate post release care returns to sea with the same company.

*Mike Ritter is a senior associate in the HFW shipping and transport team, specialising in admiralty and crisis response.  He was recognised as a “rising star” in 2019 by Legal 500.  Last year, Mike was heavily involved in advising in respect of (a) the release of the crew of 8 vessels kidnapped in the Gulf of Guinea and (b) two of the attacks on vessels at Fujairah anchorage on 12 May 2019.

[1] https://www.ics-shipping.org/docs/default-source/resources/bmp-west-africa-best-management-practices-to-deter-piracy-and-enhance-maritime-security-off-the-coast-of-west-africa-including-the-gulf-of-guinea.pdf?sfvrsn=10