On 1 February the product tanker “MARINE EXPRESS”, with a crew of 22 and carrying 13,500 tonnes of gasoline, was presumed hijacked by pirates. This was confirmed by the vessel’s operators when she was recovered, with the crew safe and cargo intact, just five days later. Few other details have emerged about a fortunately and surprisingly brief incident which is the latest major instance of the growing threat of piracy in the Gulf of Guinea (“GOG”).
Is the GOG the new focus area?
Yes, it is. Many people think only of Somali skiffs off the Horn of Africa and in the Gulf of Aden (here, together, the “GOA”) and occasionally further afield, with the GOG still somehow attracting little notice. However, having lessened to its lowest level since 2006, Somali activity has now been overtaken by escalating GOG piracy, and moreover many incidents there probably go unreported. As well as increasing, GOG pirate activity is still developing, and countermeasures must do likewise.
Different considerations
There are five main differences between East and West Africa:
- Long wholly and still partly lawless, Somalia is just one state and long coastline. These key factors have both required and permitted the combined response of foreign navies. They have also made regular and effective provision of armed guards fairly straightforward. By contrast the GOG has seven neighbouring sovereign countries. Despite efforts, concerted action remains a challenge and (as rigorously enforced) it is unlawful for any but state military to carry weapons;
- Most Somali attacks are on the high seas, whereas GOG activity is still largely in terminals or harbours or otherwise in one state’s territorial waters;
- GOA piracy is well established, as are its counters, including convoys, escorts, guards and daytime-only navigation. However, the GOG problem is still evolving and many of the familiar measures are anyway unworkable. Having quickly moved from minor pilferage to large-scale robbery, GOG pirates then targeted hydrocarbon cargoes. However, suppression of illicit refining capacity and lower oil prices meant progressive increase in the worldwide key concern and the core of the Somali model - the capture and holding of crew for ransom - which has recently seen a marked increase and has meant more attacks on vessels other than tankers;
- GOA industry standards and terms have come far ahead of those for the GOG. As for previous versions, the latest Best Management Practices for Protection against Somalia Based Piracy - BMP4 - is of course specific to that region. Much of it can apply or is adaptable to the GOG, and specific guidelines have followed. Numerous GOA charterparty terms are in regular and familiar use, but while standard provisions have been developed, overall GOG fixture clausing is still ad hoc by comparison;
- The GOA and adjacent seas are largely transit areas alongside sometimes lawless coastline, but the GOG is a region of destinations under state governance. This presents additional issues, such as waiting at intended secure locations before fast transit when called in, the place for valid tender of NOR and the running of laytime, and in some cases perhaps the safety of the nominated port. It should also thankfully mean less scope for sustaining lengthy crew kidnap.
Charterparty matters
The main issues are crew and vessel safety and who pays and/or must insure for loss and delay, and time and voyage fixtures commonly address these matters.
Most include bespoke or standard piracy terms, such as clause 35 of BPVOY5. Otherwise, a War Risks clause could apply, though that might depend on the width of the definition: some such provisions do not include piracy.
Frequently, Owners or the Master may decline transit that is assessed to be “dangerous” or likely to give rise to the specified risks, in which case the vessel may reroute under mandatory fresh orders, with stipulated time and cost consequences, and fixture termination or some other outcome in default.
Protective steps may be taken, according to industry norms (and in some cases on pre-approved contract terms) and with provisions covering cost and risk, with demurrage running or not, or the vessel on or off-hire, according to any waiting or other operational measures, and sometimes depending on duration. All applicable local regulations and insurance requirements must be met, and usually any resulting change in transit is not deviation, so what might have been breach becomes performance.
There are also detailed provisions for response to an attack, with communication protocols to immediately alert operators’ emergency response teams, and as to liability if an attack is successful, and charterers are usually required to insert identical clausing in all Bills of Lading.
Awareness is key
GOA and GOG piracy are in some respects the same and in others greatly different, and while some wording derived from the former will suit the latter, each carriage will raise its own issues. Any draft fixture must first be read as a whole, so allocation of liability and risk can be seen and suitable piracy clausing prepared or adjusted. As well as meeting all P&I and other insurance stipulations, such must cater for the particular issues presented by vessel and crew, cargo, transit and destination.
Above all, since developments can sometimes be vital as regards the balance of risk and the interpretation of terms, parties and their advisers must be ever aware of the level and also the nature of pirate activity in what is now the world’s most hazardous region.
If you would like to discuss any point or topic in this article please contact
Maryam Taher and
Paris Pantelis.