Piracy BIMCO s GUARDCON and the Rules for the Use of Force (RUF)

Transcription

1 Piracy BIMCO s GUARDCON and the Rules for the Use of Force (RUF) Chairman: The Hon. Sir Anthony Colman Speakers: Grant Hunter / Giles Noakes BIMCO Capt. Peter Cook SAMI Ruth Hosking - Quadrant Chambers John Turner UK P & I Club Venue: Thomas Miller & Co., 90 Fenchurch Street, London, EC3M 4ST Date: Tuesday 20 th October 2015 LSLC - MARITIME BUSINESS FORUM Quadrant House, 10 Fleet Street, London, EC4Y 1AU Tel: ~ shipping@shippinglbc.com Chairman s Tel: ~ Chairman s asheppard@shippinglbc.com Web-site: LSLC 2015

2 The issues for discussion include: Introduction To protect ships, cargoes and crew, commercial ships are increasingly deploying private armed guards in high risk areas. IMO Guidelines, BIMCO GUARDCON and the 100 Series Rules for the Use of Force (RUF) provide some guidance on what armed guards can do in specific circumstances. The possibility of civil proceedings arising from the use of force which may result in deaths, pollution and other liabilities is foreseen, including disputes between owners and cargo owners, insurers, and the armed guards companies. There are undoubtedly legal complexities and, as yet, there is no clear picture about the interrelation between Guardcon and RUF and the consequences of conflict between the various parties involved. This event will explore the following issues/questions inter alios: 1. How should the authority to act against pirates be allocated between the Master and the armed guards leader? 2. What are the legal consequences arising from the guards failure to act in accordance with the RUF and the IMO Guidelines? 3. Do the RUF cover pre-emptive and responsive action? 4. What is the effect of the knock for knock provision of the Guardcon? 5. What is the legal position of shipowners vis-a vis contracting as well as other parties with regard to losses incurred in the event of an unlawful act performed on board by the Guards? 6. What is the extent of exposure of P & I Clubs? Practical examples of how piracy incidents were dealt with prior to the GUARDON will also be explored. LSLC - MARITIME BUSINESS FORUM Quadrant House, 10 Fleet Street, London, EC4Y 1AU Tel: ~ shipping@shippinglbc.com Chairman s Tel: ~ Chairman s asheppard@shippinglbc.com Web-site: LSLC 2015

3 Part A The BIMCO Overview Grant Hunter / Giles Noakes BIMCO Part B Piracy BIMCO s GUARDCON and the Rules for the Use of Force (RUF) Capt. Peter Cook SAMI Part C Clause 15 of the GUARDCON Form - whose liability is it anyway? Ruth Hosking - Quadrant Chambers Part D A P & I Perspective John Turner UK P & I Club Part E Curricula Vitae Part F APPENDICES (separate document) LSLC - MARITIME BUSINESS FORUM Quadrant House, 10 Fleet Street, London, EC4Y 1AU Tel: ~ shipping@shippinglbc.com Chairman s Tel: ~ Chairman s asheppard@shippinglbc.com Web-site: LSLC 2015

4 Part A The BIMCO Overview Grant Hunter / Giles Noakes BIMCO Please refer to Appendices I, II & III LSLC - MARITIME BUSINESS FORUM Quadrant House, 10 Fleet Street, London, EC4Y 1AU Tel: ~ shipping@shippinglbc.com Chairman s Tel: ~ Chairman s asheppard@shippinglbc.com Web-site: LSLC 2015

5 Part B Piracy BIMCO s GUARDCON and the Rules for the Use of Force (RUF) Capt. Peter Cook SAMI A power-point presentation with the following documents: i. An East African Legal Review of the Application of the 100 Series Rules for the Use of Force Raphael Kamuli ii. RUF live case study (Port-2-Port)

6 19/10/2015 Piracy BIMCO s GUARDCON and the Rules for the Use of Force (RUF) London Shipping Law Centre 20 th October 2015 Peter Cook CEO Security Association for the Maritime Industry Private Maritime Security: Growth Industry? Short introduction to the Security Association for the Maritime Industry (SAMI) Current Privately Contracted Armed Security Personnel (PCASP) activities in High Risk Area. Procedures and processes for the engagement of a PCASP, deployment to theatre, operational transit and recovery. Rules for the Use of Force (RUF) including alternatives. What is over the horizon? 1

7 19/10/2015 SAMI International members from 31 countries Independent Non Governmental Organisation and Not-for-profit Impartial Integrated into the Maritime Industry 2

8 19/10/2015 Distribution of SAMI Members UK & Scotland % Africa & ME % Asia & Australasia % Europe % Americas 8.57% International Representation SAMI accesses the IMO as part of the Marshall Islands Delegation. SAMI is part of the International Contact Group for Piracy off the Coast of Somalia (CGPCS). SAMI is a member of the European Commission s Stakeholders Advisory Group for Maritime Security (SAGMaS). Part of UNHCR Working Group on RUF Handbook. Part of G7++ Friends of Gulf of Guinea Group (FOGG). Class A Liaison status with International Organisation for Standards (ISO) Technical Committee 8 responsible for Ships and Marine Technology. Longstanding supporter of Human Rights at Sea. Observer status with ICoCA. 3

9 PCASP # 19/10/2015 PCASPs Embarked in the HRA Jan Sep 2015 Agreed by BIMCO & EUNAVFOR in Jun 15, 35-40% still carry PCASP # #PCASP # Revised HRA (effective from 1 st Dec 15) 4

10 19/10/2015 Procedures and processes for the engagement of a PCASP, deployment to theatre, operational transit and recovery. Shipowners risk assessment. PMSC selection, contractual negotiations and confirmation. PMSC transit pre-deployment planning process. Operational Transit. Recovery. Shipowners Risk Assessment Cargo, (Charterers requirements). Route (merits of avoiding HRA, use of IRTC etc) Physical characteristics of the vessel (speed, height of freeboard, BMP 4 measures). Flag State requirements. Naval Vessel Protection Detachment (VPD) v PCASP. 5

11 19/10/2015 VPD v PCASP VPD Size of team (8-12) Deployment (logistics of weapons etc, over flight to deploy and recover) Rules of Engagement (ROE) Insurance (?) Medical cover (?) Team availability & flexibility Cost PCASP Size of team (4) Deploy by civil air as Seafarers Rules for the Use of Force (RUF) Contract & Insurance Medical cover Team availability & flexibility Cost Shipowners Risk Assessment Cargo, (Charterers requirements). Route (merits of avoiding HRA, use of IRTC etc) Physical characteristics of the vessel (speed, height of freeboard, BMP 4 measures). Flag State requirements. Naval Vessel Protection Detachment (VPD) v PCASP. 6

12 19/10/2015 PMSC Selection Area of operations. Where based (UK, US, Greece, China, South Korea etc). Flag State authorisations. Certificates (ISO etc) PMSC Selection 7

13 19/10/2015 PMSC Selection Area of operations. Where based (UK, US, Greece, China, South Korea etc). Flag State authorisations. Certificates (ISO etc) Availability Cost Negotiations (GUARDCON, RUF, terms etc) PMSC transit pre-deployment planning process. Team member selection, confirmation of availability and contractual process. Identification of weapons, ammunition and security related equipment location. 8

14 19/10/2015 Floating Armoury Clusters PMSC transit pre-deployment planning process. Team selection, confirmation of availability and contractual process. Identification of weapons, ammunition and security related equipment location. Briefing of team Booking of flights, accommodation and transfers, use of shipping agents etc Final confirmation from CSO and deployment. 9

15 19/10/2015 Operational Transit Meeting with the Master and ensuring that all parties understand the role that will be played by the PCASP incl RUF and hopefully alleviate any concerns the Master may have. Inspection of the vessel to identify any potential security weaknesses (BMP 4) and mitigate as necessary before entering HRA. Train and rehearse the crew in drills for a piracy attack. Commence security watches. Transit completion and recovery Disembarkation of team from vessel at Floating Armoury or port. Transit report written and submitted by Team Leader to PMSC then to CSO. De-service and re-service of kit and personnel for next deployment. 10

16 19/10/2015 Rules of Engagement (ROE) v Rules for the Use of Force (RUF) ROE Rules or directives used by national military forces and thereby national responsibility. Define degrees and manner (ships, aircraft, UAV, personnel) in which force is used. ROE may allow force to be used without warning and to mitigate a perceived threat. ROE does not override the right of self defence RUF RUF based on the inherent right of self defence. Use of reasonable and necessary force only in defence of life. Force used must proportionate and graduated. Lethal force is the last resort. Individual user of force has to justify his/her actions. Ethos of RUF Many PMSCs were using forms of ROE as RUF without understanding the legal complexities which could place company directors of PMSCs and individual PCASP in an invidious position. Individuals could be unknowingly committing murder. SAMI decided that Guidelines were insufficient for one armed private citizen to defend himself against another armed private citizen wanting to kill him. 11

17 19/10/2015 Development of RUF SAMI worked with Barrister David Hammond to draft a set of RUF. SAMI worked with International Chamber of Shipping (ICS) and the Marshall Islands Registry to co-sponsor the RUF. There was some resistance from the SAMI membership as they saw their RUF as their commercial IP that gave them a commercial advantage. Some shipping associations and ship owners were reticent to embrace the 100 Series RUF. RULE Series Rules In the event of any actual, perceived or threatened attack by third parties the Team Leader (TL) or, in the TL s absence, other PCASP, shall advise the Master or (in the Master s absence) the Officer of the Watch that he intends to invoke these Rules for the Use of Force. 12

18 19/10/ Series Rules RULE 101 Non-kinetic warnings may be used where there is a reasonable belief that a craft is displaying behaviour(s) assessed to be similar to those of a potential attacker. RULE Series Rules Firearms may be used to fire aimed Warning Shots when it is assessed by the TL or in the TL s absence, other PCASP, that Warning Shots may deter an actual, perceived or threatened attack. 13

19 19/10/ Series Rules RULE 103 When under attack or when an attack is imminent, reasonable and necessary use of force may be used in self-defence, including, as a last resort, lethal force. 14

20 19/10/ Series Rules for the Use of Force Not Rules of Engagement (ROE) but Rules for the Use of Force (RUF). Clear concise guidance on the use of reasonable and necessary for used in self defence. Designed to complement GUARDCON and the RUF Guidance. Looks after three parties: PCASP Master & Crew Pirate/fisherman/smuggler Model 100 Series Rules Review UBUNTU Institute for Social Justice looks at the 100 Series Rules from an East African perspective (Kenya & Tanzania) and believe: The Rules are broadly in line with the statutory position and common law concerning the use of force in the defence of person 15

21 19/10/2015 Case Study 17 Jan 14 just south of the Bab el Mandeb (southern mouth of the Red Sea). GUARDCON used. PMSC certified ISO PCASP used 100 Series RUF. m/uploads/p2p_ruf_live _Case_Study.pdf Where do we stand with 100 Series Rules Soft Law Model rules Some PMSCs and shipping companies use it, some don t. Some flag States require it some don t. UNODC RUF Handbook remains in DRAFT format. 16

22 19/10/2015 Over the horizon As at 18 Oct incidents globally Piracy is global! As at 18 Oct incidents globally 17

23 19/10/2015 Piracy is a Tropical disease! As at 18 Oct incidents globally Over the horizon Documents already established: BMP 4 (Global BMP with regional annexes) GUARDCON ISO (for use on high seas) 100 Series RUF (UNODC RUF Handbook) Complacency is our greatest enemy (HRA). Challenges and complexities of Gulf of Guinea. Increasing concerns over level of incidents in South China Sea. 18

24 19/10/2015 Summary SAMI represents 80% of the private maritime security industry and thereby have unique access to this new and evolving industry. Piracy off the Horn of Africa is at a manageable level, but complacency is the greatest enemy. Procedures and processes for the engagement of a PCASP are complex but well established, flexible and relatively robust. Rules for the Use of Force (RUF) including alternatives. What is over the horizon? Maritime Security seems incredibly simple, but is in fact astonishingly complex. Questions? enquiries@seasecurity.org 19

25 AN EAST AFRICAN LEGAL REVIEW OF THE APPLICATION OF THE 100 SERIES RULES FOR THE USE OF FORCE Mr. Raphael Kamuli Copyright All Rights Reserved. 1

26 INDEX General Overview 3 International Genesis of the Rules 4 Domestic Applicability of the Rules 6 The Jurisdictional Challenge 16 The Rules as an aspect of Human Rights 17 Conclusion 18 About the author 19 Ubunta Institute of Social Justice 19 Copyright All Rights Reserved. 2

27 1.0. General Overview The 100 Series Rules for the Use of Force (the Rules ) stem from the inherent right to self defence. The latter is widely recognized by laws at both international and domestic levels. These newly adopted rules are specially crafted to suit the piracy, armed robbery at sea and hijacking phenomena. Owing to the nature of the situation they intend to accommodate, the Rules are a sort of harmonized version of the right to self defence. However, since they apply to non-state actors Privately Contracted Armed Security Personnel (PCASP), the Rules do not coincide with the provisions of the use of force and inherent right to self-defence under the UN Charter which exclusively apply to States. Moreover, since the context in which the Rules apply is criminal in nature, the right as well as the liability thereof is personal (individual) in nature. This suggests that that the theme of the Rules is not a subject of normal international treaties. This is even more relevant as the Rome Statute of the International Criminal Court does not cover crimes of piracy, armed robbery at sea or hijacking. However, even though the Rome Statute does not apply to other crimes than genocide, war crimes, crimes against humanity and the crime of aggression, it recognizes the right to self defence and defence of person. According to Article 31 (1) (d) of the Rome Statute a person shall not be criminally liable if he or she acts reasonably to defend herself against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person. In the absence of international comprehensive rules of use of force and self defence that Copyright All Rights Reserved. 3

28 specifically cover private persons, the Rules partly draw their legitimacy from international instruments that partially cover the theme and, for a larger extent, draw legitimacy in settled rules of self defence in domestic jurisdictions. The latter scenario, however, subject the Rules to some exceptions as to jurisdiction ratione materiae and jurisdiction ratione loci. This is so even though the crime of piracy attract universal jurisdiction in many countries. However, most domestic statutes recognize the universality of piracy and not the right to self defence thereof International genesis of the Rules At the international level, the Rules draw their legitimacy in the IMO Maritime Safety Committee (MSC) Circulars, ISO PAS and established international law. ISO PAS was developed as an initiative by the maritime industry and based on a request by the International Maritime Organization (IMO) to provide guidelines for certified companies deploying PCASP on board ships. It was specifically developed for organizations operating in the Piracy High Risk Area including the Indian Ocean. Although ISO PAS was a private maritime industry initiative, it was undertaken on the request and aegis of the IMO. Hence, it is binding upon member states to the Convention on the International Maritime Organization. To become a member of the IMO, a state must ratify a multilateral treaty known as the Convention on the International Maritime Organization (IMO Convention). Among the member states of the East African Community, only Rwanda and Burundi are not members of the IMO. Article 28 (a) of the IMO Convention gives powers to the Maritime Safety Committee to Copyright All Rights Reserved. 4

29 make rules for any matter directly affecting maritime safety. It is from this basis ISO PAS was adopted. Moreover, the Rules passed through the IMO as an INF paper for MSC 92 (Wednesday 24 April 2013) and were submitted as guidance in ISO PAS Guidelines for Private Maritime Security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships (and pro forma contract). Since the Rules draw their source from a treaty, they may be applied by courts in a member state to the IMO Convention. However, the ISO PAS is not applied uniformly and is not the sole applicable rules at sea. Certified Maritime Security Companies do apply different practices to their operations in places other than Piracy High Risk Areas. 1 Lack of uniformity deprives the Rules of the legal customary legal basis. It is a settled principle that for a rule to attain the status of a custom, a rule must inter alia, be applied uniformly. 2 Moreover, although the Rules draw their source from ISO PAS 28007, the latter does not adopt the International Code of Conduct principles, which were developed for land-based private security operations rather than for the maritime environment. This adds to the possible challenge of the Rules as a customary norm. However, this is remedied if it is established (as it is) that the Rules draw a source from a codified norm. Being a norm that draws a source from a treaty, the Rules would be applicable in the East African jurisdictions because international law is generally accepted as source of law in East African countries. For instance, Article 2-(5) of the Constitution of the Kenya of 2010 provides that: The general rules of international law shall form part of the law of Kenya. 1 However, the Rules are endorsed by the Marshall Islands flag State in Marine Notice Shaw, Malcolm N., International Law (5 th Ed), Cambridge University Press, p. 72. Copyright All Rights Reserved. 5

30 Moreover, Article 2-(6) of the same Constitution provides that: Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. Although the Constitution of the United Republic of Tanzania, 1977 does not have a similar provision to that of its Kenyan counterpart, rules of international law are accepted as part of domestic law in Tanzania. 3 Both Tanzania and Kenya are members of the IMO. Hence they are bound by the Rules since the Rules draw their source from the IMO Convention as shown above Domestic Applicability of the Rules 3.1. Statutory Position In principle, the Rules fall in the category of the right to self-defence and defence of others or property. In East Africa, the right to defence is recognized under statute and under common law. The Penal Code of Tanzania (Cap. 16 of the Laws of Tanzania) provides that: Section 18: a person is not criminally liable for an act done in the exercise of the right of self defence or the defence of another or the defence of property 3 Helen Kijo-Bisimba and Chris Maina Peter, Justice and Rule of Law in Tanzania: Selected Judgements and Writings of Justice James L. Mwalusanya and Commentaries, LHRC, 2005, p. 45. Copyright All Rights Reserved. 6

31 Section 18A: every person has the right (a) to defend himself or any other person against any unlawful act or assault or violence to the body; or (b) to defend his own property or any property in his lawful possession, custody or under his care or the property of any other person against any unlawful act of seizure or destruction or violence. Moreover, statutory law regulates the use of force when a person exercises the right to defence. Like the Rules, statutory law in Tanzania stresses that in exercising the right to defence a person should use reasonable force and such force should only be used where necessary for that defence. In this regard, the Penal Code of Tanzania (Cap. 16 of the Laws of Tanzania) provides as follows: 18B. - (1): In exercising the right of self defence or in defence of another or in defence of property, a person shall be entitled to use only such reasonable force as may be necessary for that defence. Section 18B (1) of the Penal Code of Tanzania is essentially similar to Rule 103 of the Rules. The latter provides that: When under attack or when an attack is imminent, reasonable and necessary use of force may be used in self-defence, including, as a last resort, lethal Copyright All Rights Reserved. 7

32 force While the Rules are more elaborative than the Penal Code of Tanzania as to when exactly force should be used, both provisions establish the right to use force where necessary, or in more specific terms of the Rules, where when an attack is imminent. Since the two provisions generally apply mutatis mutandis, the courts in Tanzania would more likely be willing to apply the Rules in interpreting the statutory laws in Tanzania, especially the Penal Code when the matter in question is maritime in nature. The courts in Tanzania tend to apply norms that are similar to domestic rules and principles as supporting sources (commonly referred as persuasive authorities ) Actually, permission to use lethal force as provided by the Rules is shared by the Penal Code of Tanzania. Section 18C enlists situations where a person is permitted to use force which may result to death or grievous bodily harm: These situations include: (a) where the act of the aggressor raise a reasonable apprehension that death of a person will occur; (b) where the act of the aggressor raise a reasonable apprehension that grievous bodily harm will occur; (c) where the aggressor intends to abduct or kidnap a person; or (d) where the act of the aggressor endangers life or property These situations are similar or relate to piratical acts. Most piratical acts endanger life or property and mostly raise a reasonable apprehension that death or grievous bodily harm will occur in the particular scene. The following extract from the case of Republic v. Liban Ahmed Ali & 10 Others (Criminal Case No. 1374/09) in the Chief Copyright All Rights Reserved. 8

33 Magistrate s Court at Mombasa (Kenya) demonstrates a piratical scene: Upon the high seas of Indian Ocean, jointly being armed with offensive weapons, namely four AK 47 Rifles, 199 rounds of ammunitions, and three knives, the pirates attacked a merchant ship namely Safmarine Asia and at the time off such act put in fear the lives of the crew of the vessel Safmarime Asia was moving from Dar es salaam to Salala in Oman. The master of the ship moved it to about 600 nautical miles from the Somali Coast because of threat of piracy. It was attacked by pirates in three boats one of which was bigger and others smaller. As they tried to board the ship, the master maneuvered it until they failed. They made three attempts during the course of which the two smaller boats refueled from the big one and chased the merchant ship. The third time they shot at the ship using AK 47 rifles and rocket propelled grenades, hitting the ship s main mast and damaging it. In such a situation, courts in Tanzania would be willing to apply the Rules as a supporting norm since the domestic jurisprudence coincides with the Rules. According to the Court of Appeal of Tanzania, killing another person in self-defence or defence of another person is justifiable only where the defender believes that a person's life is in imminent danger and that his or her action is absolutely necessary for the preservation of life. 4 Hence, the jurisprudence in Tanzania suggests that the court would conclude that the right to self defence or defence of another was rightly exercised where the 4 Seif Mohamed Senzagala v. Republic [1994] TLR 122. Copyright All Rights Reserved. 9

34 defender acted with an honest and reasonable belief that: (i) his or another person s life is in imminent danger; (ii) his action is absolutely necessary to save the life. In Daudi Sabaya v. Republic 5, the Court of Appeal exemplified the situation where person s life is in imminent danger is where the aggressor threatens to attack a person with a knife. Hence the defender would be justified in taking a harmful action to the aggressor since it is necessary for the preservation of life against the aggressor's threatened act of violence to the defender s or another person s body. Both Statutory and case law in Tanzania requires the use of force to be necessary. However, there are little guidelines as to where exactly a conduct becomes necessary. If called to decide in a particular context, the courts in Tanzania would find the Rules of vital assistance since the Rules are relatively more comprehensive in impliedly prescribing a necessary conduct. A conduct would definitely become necessary where the aggressor persists after warnings. Rule 101 reads that: Non-kinetic warnings may be used where there is a reasonable belief that a craft is displaying behaviour(s) assessed to be similar to those of a potential attacker. Use of force in self-defence or defence of another would definitely be necessary if the aggressor would persist after non-kinetic warnings have been used by the defender. If the aggressor so persists, his act would be a clear manifestation of a danger to life. Therefore, the defender s conduct would absolutely qualify as an act necessary to save 5 [1995] TLR 148 Copyright All Rights Reserved. 10

35 life. The Rules exhaust all reasonable precautions that fit in the maritime context. Note 1 and 2 to Rule 101 provides that: Note 1: Non-kinetic warnings may include, but are not limited to, the use of VHF, loud-hailers and/or recorded defensive messaging equipment projected by electronic means (Long / Medium Range Acoustic Devices (L/MRAD)) and evasive ship actions. Non-kinetic warnings by visual signal means may include, but are not limited to, the use of flashing lights, flares and nonlethal eye-safe lasers as per manufacturer s instructions. Non-kinetic warnings including the use of water cannon and/or high pressure water hoses may also be appropriate. Note 2: Firearms may be held up and visually shown to a potential attacker as part of a non-kinetic warning and an accompanying verbal warning given by PCASP. Normal safety procedures shall be conducted on all firearms and the TL shall command the PCASP to Load the firearms with ammunition at the designated loading bay. Loaded firearms should have safety catches applied. If well used these precautions are very reasonable and necessary. In this regard, the Rules coincide with the jurisprudence of the courts in Tanzania which recognize the use of force to be justifiable only where the conduct of the defender was sensible and where it was an act of last resort. The precautions also do away the possibility that the defender was the original aggressor. The jurisprudence of the courts in Tanzania suggests that the use of force is not justifiable where the aggressor ceases to be aggressive. 6 As such, 6 Salum Abdallah Kihonyile v. Republic [1992] TLR 349. Copyright All Rights Reserved. 11

36 deterrence is one of the necessary measures that the defender may employ before resorting to the use of force against the aggressor. The Rules provide the mode of deterrence that may be employed. Rule 102 provides that: Firearms may be used to fire aimed Warning Shots when it is assessed by the TL or in the TL s absence, other PCASP, that Warning Shots may deter an actual, perceived or threatened attack. Explanatory Note 2 to Rule 102 expressly insists that these should only be used as deterrence. The Note partly reads: They are solely intended to further reinforce the deterrence of a perceived attack (Emphasis added) This is very important in a jurisdiction like that of Tanzania where an original aggressor is not excused in using force even if he is subsequently overwhelmed by the victim Common Law Position As hinted above, In East Africa, the right to defence of person and property is based on statutes and common law. In Kenya, for example, the rules governing the right to defence are wholly based under common law. This is provided under section 17 of the Penal Code of Kenya (Cap. 63 of the Laws of Kenya): criminal responsibility for the use of force in the defence of person or property shall be determined according to the Copyright All Rights Reserved. 12

37 principles of English Common Law English common law principles regarding use of force in the defence of person or property are also applicable in Tanzania. Rules of common law were received in Tanzania (then Tanganyika) pursuant to Tanganyika Order-in-Council of 1920 which accorded the status of applicable laws to English common law, principles of equity and statutes of general application which were in force in England as of 22 nd July That position is maintained to-date. 7 However, English common law is applicable in Tanzania only where the respective matter is not codified. Hence, with regard the use of force in self defence, the court would only resort to the English common law if the matter is not provided by a written law (statute). Hence, its role is only supplementary The English common law regarding use of force in the defence of person or property As explained above, unless where the matter is codified English common law regarding use of force in the defence of person or property is applicable in Tanzania. In Kenya, English common law rules governing the right to defence are wholly based under common law. Hence, the courts in the two countries would be willing to apply the Rules to the extent they coincide with the common law. The general theme contained in the Rules coincide with the general common law principle that a defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. 8 Both the Rules and common law seem to 7 See section 2-(2) of the Judicature and Application of Laws Act (Cap. 358 of the Laws of Tanzania) 8 See R v. Beckford (1988) 1 AC 130. Copyright All Rights Reserved. 13

38 emphasize on the reasonableness of the force used by the defender. There is no thumb rule as to what exactly constitutes reasonable force and each case must be determined on its own merits. However, the Rules put a clear criteria as to what may be considered as a reasonable force. According to Rule 103 of the Rules, a reasonable force is that which is used to counter an imminent attack. According to Explanatory Note 2 to Rule 103, an attack is imminent when the need to defend against it is manifest, instant and overwhelming. This coincides with the common law principle held in Palmer v. The Queen [1971] A.C. 814, 832: If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or may be pure aggression The contexts under which piratical attacks occur do justify the use of force in self defence or defence of others or defence of property, in the sense that most of the attacks are imminent. This may be exemplified by the following passage extracted from the case of Hassan M. Ahmed v. Republic, Criminal Appeal Nos. 198, 199, 200, 201, 202, 203, 204, 205, 206, and 207 of 2008, High Court of Kenya at Mombasa: Al Bisarat a cargo ship, flying an Indian flag set sail from Dubai heading to Kismayu in Somalia. The ship offloaded its cargo at Kismayu on 7 th January 2006 and was loaded with charcoal and set off for Dubai on 14 th January While at sea, the Copyright All Rights Reserved. 14

39 ship was attacked by the [pirates] who approached the ship in high speed boats as they fired in the air. Eight of them gained entry onto the ship via ladders. They were armed with AK -47 Rifles and revolvers. Two pirates remained in the boat. The pirates roughed up the crew on the ship and demanded to be given USD 50, 000 and an International mobile phone. The pirates took control of the ship from 16 th January 2006 up to 21 st January 2006 when American Navy officers intercepted them. Before the interception, the pirates had launched attacks on three other ships one of which had made a distress call which was picked by the American Navy officers hence the interception In such a situation a court in Tanzania and Kenya will be willing to apply the Rules since they have similar taste as the English common law, the latter being the applicable law in courts of law The Jurisdictional Challenge The applicability of the Rules is mainly stumbled by the fact that the offences upon which the courts may be called to determine the issue of use of force in defence are not within the jurisdiction ratione materiae of the courts. It is crystal clear that courts in Copyright All Rights Reserved. 15

40 Tanzania and Kenya have jurisdiction over the offence of piracy. 9 However, the person relying on the defence of person or property is not the offender of piracy but a victim. Hence he or she would rely on the defence when he is charged with the offences of murder or assault. However, courts in Kenya and Tanzania have no jurisdiction over the offences of murder and assault occurring in High Seas unless offenders are nationals of the country exercising jurisdiction or that the act took place within the territorial waters of the respective state. This seems to render the applicability of the Rules impracticable. However, the Rules may undoubtedly still be applied in civil cases where loss of life or personal injury results from the use of force in defence of person. According to section 363 of the Merchant Shipping Act of 2003 (Tanzania) a person may rely on the right of defence when he or she is sued for loss of life or personal injury which occurred on board a vessel. There is a word-to-word similarity between section 363 of the Merchant Shipping Act of 2003 (Tanzania) and section 404 of the Merchant Shipping Act of 2009 (Kenya). However, the term on board in the provisions impliedly exclude contexts under which piratical attacks occur. A few piratical attacks would be executed by persons on board. Even the Rules seem to exclude the possibility of the attack from within the vessel The Rules as an aspect of Human Rights The Rules are recognized around the world as an example of lawful maritime norm upholding basic human rights. 10 This is so because they protect the inviolable right to 9 Section 341 of the Merchant Shipping Act of 2003 (Tanzania) and section 371 of the Merchant Shipping Act of 2009 (Kenya) last visited on 7 July 2012, 10:39 AM Copyright All Rights Reserved. 16

41 life. The right to life is often seen as the most important human right (Universal Declaration of Human Rights 1948, Article 3 Everyone has the right to life, liberty and security of person ). Although the Universal Declaration of Human Rights (UDHR) is not a treaty, it is recognized universally as a cornerstone human rights norm. In Tanzania for example, the UDHR is domestically applicable. According to Article 9 (f) of the Constitution of the United Republic of Tanzania of 1977: the state authority and all its agencies are obliged to direct their policies and programmes towards ensuring (f) that human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights; (emphasis added) The right to life is also enshrined in Article 6 of the International Covenant on Civil and Political Rights 1966 (ICCPR) and Article 4 of the African Charter on Human and People s Rights 1981 (ACHPR). Both Tanzania and Kenya have ratified the ICCPR and ACHPR. Hence, both countries are obliged to respect and promote the right to life. In light of that, the courts in the two countries would be willing to apply the Rules under the spirit of protecting the right to life. The right to life is a justiciable right in Tanzania and Kenya. Article 14 of the Constitution of the United Republic of Tanzania 1977 and Article 26 (1) of the Constitution of Kenya 2010 provide for the right to life. As such, a person may invoke self-defence or defence of person to establish that he did not kill arbitrarily or summarily. This is actually the spirit of the Rules. Implicit in that, the courts in Copyright All Rights Reserved. 17

42 Tanzania and Kenya may apply the Rules in that context Conclusion Although the Rules have not been considered before in piracy trials, they may be applied in the future. The Rules are likely to be accepted by East African courts as part of the applicable law due to their concurrence with the acceptable norms for the use of force in the defence of person or property. The Rules are broadly in line with the statutory position and common law position concerning the use of force in the defence of person or property. Owing to their treaty-oriented genesis, the Rules may be applied in East African courts as part of the duty of the East African states to respect treaties. Lastly, the applicability of the Rules may well be upheld due to their protection of human rights, particularly the right to life. However, the Rules may only be applied in East Africa in matters that East African courts have jurisdiction over. Copyright All Rights Reserved. 18

43 About the author Raphael Kamuli is the Founder of Ubuntu Institute of Social Justice; Advocate of the High Court of Tanzania; and author in Sea Piracy Law, Human Rights Law and International Criminal Justice. He is also the Tanzanian Correspondent for the Human Rights at Sea UK-based charity. Ubunta Institute of Social Justice Research. The Institute is a dedicated think tank that undertakes independent research projects and provides an in-depth analysis of conventional and nonconventional issues related to human rights, social justice, peace and conflict resolution. The approach taken involves examining thematic and specific matters. In this context, the research prioritizes existing legal and non-legal solutions to specific social conflicts and problems. In particular, studies on the occurring social consequences of implementation of the law or other norms and on the developments of social justice phenomenon are undertaken to test the efficacy of law and other forces in protecting and promoting the inviolability of humanity founded on justice, people's inherent equality and entitlement to the same rights, privileges, accessibility and opportunities. Copyright All Rights Reserved. 19

44 TRANSPARENCY CLARITY ACCOUNTABILITY 9 Bedford Row LONDON WC1R 4AZ UK Human Rights at Sea is a Registered Charity in England and Wales, No ISBN: Copyright All Rights Reserved. 20

45 NAVE ATROPOS ATTACK CASE STUDY On 17 th January the NAVE ATROPOS was transiting from Muscat en route to Suez, when at 2205LT, it came under attack. Being the first of 2014 it was notable for the response by the onboard security team from Port2Port Maritime, who successfully deterred the attack using not only established protocol within the 100 Series: Rules for the Use of Force, but also the security management process contained within ISO/PAS28007, something Port2Port Maritime has been recently accredited with. This brief case study is to highlight how the security team responded to the attack, in particular, the use of proportionate force. The NAVE ATROPOS is a product carrier managed by Navios Tanker Management Inc. and at the time of the incident was transiting with 60,000mt of Gasoline in position 15 07N, E, near to the Yemeni coast, approximately 70NM from the entry point to the IRTC at point B. The attack consisted of 1 skiff containing 4 individuals carrying firearms and a ladder, supported by a Dhow Fishing Vessel (mother ship) positioned nearby. The Skiff approached the starboard side of the vessel at speed and close enough to fire at the vessel. In a post incident report, the Maritime Security Operative on watch stated that he was observing a Dhow on the forward starboard beam at a distance of approximately 3.5NM. The vessel was displaying a faint light. The Officer of the Watch was informed and the vessel was marked on radar. The MSO continued to observe and lit up the Dhow to make it aware of the NAVE s presence using a laser pointer, after which, the Dhow turned on other lights. After continued observation, the MSO then noticed a Skiff with no lights aft of the Dhow. The MSO immediately informed the TL. The MSO then lit up the Skiff with the laser pointer to make it aware of the NAVE s presence, at which point it opened fire with small arms fire, including tracer rounds, on the NAVE at 2205LT. The MSO raised the alarm and suited up with CBA, Helmet and weapon, when the Team Leader (TL) arrived on the bridge. The TL summarised the situation: At 2205 local time, I received a radio call from the on watch security operator asking that I report to the bridge immediately. As I exited my cabin I heard automatic fire coming from the starboard side. The general alarm was being sounded as I arrived on the Bridge, where I found one of my team suiting up with body armour, helmet and preparing his weapon. After a quick brief on the situation, I sent him to the starboard side to assess the threat. As he took up position the skiff closed to approximately metres and fired a burst of small arms automatic fire. I immediately authorised the operative to return proportionate fire within existing rules for the use of force. My other team member soon arrived on the bridge and also took up a position on the starboard side. I distinctly heard the sound of crack & thump of rounds passing in very close proximity. By 2215 local time, the skiff turned away and fell astern to rendezvous with a mother ship, a Dhow in the area approximately 3NM away. The Master of the vessel informed UKMTO by Satphone at the start of the attack and implemented the counter piracy action plan. It implemented the appropriate evasive maneuvers, increased to full speed and initiated water canons and fire hoses, whilst issuing a Mayday on VHF Ch.16, distress calls on Inmarsat C & DSC Systems. Following the attack, the NAVE ATROPOS, with the assistance of the embarked security team, tracked the escape route of the PAG, passing on accurate information which enabled EUNAVFOR to subsequently disrupt the PAG, approximately 35 nm from the Omani coast and 85 nm SEE from Salalah (Oman). In this incident, it was clear that the individuals on board were placed in a life- threatening situation, which enabled the security team to invoke a right to self- defence in order to preserve life of themselves and those near to them. The Rules for the Use of Force specify a proportionate response to the attackers, which on this occasion resulted in the security team firing fewer shots in their self- defence. The NAVE received at least 30 aimed shots at the Bridge wing of the vessel; the Security Team fired 29 rounds. There were no casualties or injuries on both sides and no damage to the ship on inspection the following morning.

46 In summary, the vessel, crew and embarked security team responded appropriately with established protocol, something developed through close adherence to the ISO 28000/28007 combined with application of the 100 Series Rules for the use of Force, which Port2Port Maritime use as the minimum standard to deliver an effective and proportionate deterrent.

47 Part C Clause 15 of the GUARDCON Form - whose liability is it anyway? Ruth Hosking - Quadrant Chambers

48 19/10/2015 Clause 15 of the GUARDCON form whose liability is it anyway? Ruth Hosking Looking into the future where are claims likely to arise? 1

49 19/10/2015 Clause 15 Legal and liabilities Four main parts: Knock for knock clause 15(b) Third party liability clause 15(c) Limitation of liability clause 15(d) Consequential losses clause 15(e) What is a knock for knock regime? Contractual arrangement whereby two parties agree to hold each other harmless and indemnify each other for this liability. Each party is responsible for loss of/ damage to and/or the death of/ injury to any of its own property and/or personnel or that of the entities within its defined group. Knock for knock regimes are common in other forms of contract e.g. TOWCON, TOWHIRE, HEAVYCON, PROJECTCON, SUPPLYTIME. 2

50 19/10/2015 Clause 15(b) - What is covered? Knock for knock regime applies (as between Owners and Contractors) even if loss or damage occurs due to the act, neglect or default of the [Owners/ Contractors] Group The Court s approach has been to interpret knock for knock provisions purposively and considering the underlying rationale but still applying the usual principles of construction. But the Court does characterise these clauses as forms of exclusion or exemption clause. In principle exemption clauses can extend to cover a deliberate breach or repudiatory or renunciatory breach it is all a matter of language of the clause. Applies to all claims for loss and damage except cargo damage which is specifically excluded. 3

51 19/10/2015 Possible areas for litigation? The inter-relationship between the Contractors obligations under clause 6 and the knock for knock regime. The meaning of default and whether that is sufficient to cover deliberate misconduct or deliberate non-performance of the contract. When the knock for knock regime is invalid/ when the contractual duty is not being performed i.e. no contractual service is being carried out. Clause 15(c) Third Party Liability Also a type of knock for knock provision. Contractors hold Owners harmless, defend indemnify and waive all rights of recourse against the Owners from claims made by or available to third parties arising out of any unlawful and/or negligent act or omission by the Contractor s group unless the loss or damage is caused wholly or partially by the Owners own negligence. Reciprocal provision where Owners hold Contractors harmless clause 15(c)(ii). 4

52 19/10/2015 Clause 15(c)(iii) the accidental or negligent discharge of firearm exception Notwithstanding any other clause to this Contract save for Sub-clause (d) below the Owners Group shall be indemnified by the Contractors Group for all claims, liabilities, losses, liabilities to Crew and third parties whatsoever and howsoever arising out of or in connection with the accidental and/or negligent discharge of any Firearms by the Security Personnel. Potential claims and claimants? Cargo claims against the Owners for loss of or damage to cargo may be questions of whether the loss or damage was caused by: Unseaworthiness of the vessel; Act of piracy; Act of the Contracting Group. Claims by crew for personal injury or loss of life. 5

53 19/10/2015 Possible areas for litigation? Likely to be cases on the meaning of accidental and negligent discharge of fire arm. BIMCO Guidance gives an example of a guard tripping whilst holding a loaded firearm. Note clause 16 the Security Personnel will not be liable as individuals. Clause 15(d) Limitation of liability Limited to USD 5 million or other figure stated in box 12 (whichever is the higher). Applies to any loss, damage, liability or indemnity under the contract. It is WP to the Owners right to limit their liability under any applicable national law or international convention. No reciprocal provision for the Contractors. 6

54 19/10/2015 Clause 15(e) consequential losses Consequential loss provision which has been directly taken from TOWCON Excludes Owners and Contractors from liability for: Any loss of profit, loss of use or loss of production; or Any consequential loss or damage. Possible areas for litigation? Whether a loss is a consequential loss or not does it exclude foreseeable losses (i.e. limb 1 of the Hadley v Baxendale test). Does it apply where the loss suffered is not personal injury or property damage? Does it exclude liability for damage to cargo not owned by the Owners? i.e. how do clauses 15(b) and 15(e) fit together. 7

55 19/10/2015 Useful articles/ resources The Guardcon contract, knock for knock clauses, DCFR and unfair terms by Miso Mudric Part 1 (2015) 21 JIML 51 and Part 2 (2015) 21 JIML 115 S Rainey QC The construction of mutual indemnities and knock for knock clauses in B Soyer, A Tettenborn (eds) Offshore Contracts and Liabilities (2015) R Gay Excluding consequential damages in Offshore Contracts and Liabilities (ibid) Quadrant Chambers 10 Fleet Street London EC4Y 1AU

56 Part D A P & I Perspective John Turner UK P & I Club

57 Piracy a P&I Perspective John Turner Senior Claims Director Thomas Miller P&I 20 th October 2015 Introduction Piracy continues to be a thorn in the side of modern shipping Reduction in number of pirate attacks in Indian Ocean Reduction in High Risk Area for piracy recently announced However, a serious threat remains and correct reporting and vigilance remains critical Focus now shifted to West Africa where there has been an increase in hijacking, robberies and cargo theft a different business model Setting the standard 2 Setting the standard 1

58 Overview Piracy in Gulf of Guinea is different Insurance coverage issues Potential P&I claims arising from Piracy BIMCO Guardcon - practical guidance to Members Case example Setting the standard 3 Piracy in Gulf of Guinea is different Increasing Ships attacked when approaching, drifting or anchored off ports Usually violent Cargo theft (predominantly in STS transfer areas) Cargo theft intelligence led Setting the standard 4 Setting the standard 2

59 Piracy in Gulf of Guinea is different Kidnapping No on-board security guards Ship movement reporting less effective No established policing mechanism by international navies Setting the standard 5 Insurance coverage issues Who covers what? War risks excluded from H&M, Loss of Hire and P&I this includes terrorism But piracy exception to P&I exclusion Arms typically used by pirates do not trigger the war exclusion. Heavier weapons might Double insurance P&I Excess War Risk cover Setting the standard 6 Setting the standard 3

60 P&I claims arising from piracy Crew claims Injury and death Claims for PTSD Repatriation / substitution Crew wages Loss of or damage to effects Medical care to stabilise crew post release Setting the standard 7 P&I claims arising from piracy Air ambulance may be required Security guards to protect hostages post release Post repatriation assistance Possible compensation claims under crew contracts or in tort Claims for ex gratia payments Setting the standard 8 Setting the standard 4

61 P&I claims arising from piracy Other P&I liabilities Loss of or damage to cargo Pollution Wreck removal Collision Property damage Setting the standard 9 BIMCO Guardcon - practical guidance to Members Guardcon has considerably improved terms upon which providers of maritime security have been engaged Contractual terms should be knock-for knock with reciprocal indemnities for assumed liabilities A thorough voyage-specific risk assessment should be conducted Members should exercise due diligence in the selection of maritime security companies Follow IMO s Interim Guidance to Shipowners, Ship Operators and Shipmasters on use of PCASP Setting the standard 10 Setting the standard 5

62 BIMCO Guardcon - practical guidance to Members Shipowners should take all lawful, prudent and appropriate measures to harden the ship against attack as outlined in BMP Master should remain ultimately responsible for overall safety of the ship Guardcon in its unamended form not suitable for engagement of PMSCs off West Africa IG clubs have produced an amended wording of contract - GUARDCON West Africa Local military forces should be included in the contractual group Setting the standard 11 Case study A supertanker with a full cargo of crude oil bound for USA hijacked by heavily armed pirates off Oman No security guards on board Crew - 7 Greeks, 17 Filipinos and 1 Georgian national on board Ship held captive for 58 days Crew confined to bridge and subjected to several acts of aggression and threats on their lives Master and Chief Engineer subjected to a mock execution One crewmember allegedly subjected to a sexual assault by a pirate Setting the standard 12 Setting the standard 6

63 Case study Claims arising Loss of effects Crew illness / PTSD Medical treatment, including psychiatric counselling Some compensation claims Ex gratia payments to crew (sue & labour) Repatriation and substitute costs Setting the standard 13 Thank you John Turner Senior Claims Director Thomas Miller P&I 20 th October 2015 Setting the standard 14 Setting the standard 7

64 Part E CURRICULA VITAE

65 Sir Anthony Colman 24 Lincoln s Inn Fields London WC2A 3EG Tel: Fax: acolman@essexcourt.net and at The Arbitration Chambers 32 Maxwell Road #02-03 Singapore Tel: (65) Fax: (65) Appointments/Memberships Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators Deputy Chief Justice, DIFC Court, Dubai Commissioner to the Enquiry appointed by Government of Trinidad and Tobago re CLICO/HCU Member of Panel of Arbitrators of China International Economic and Trade Arbitration Commission (CIETAC) Member of Singapore International Arbitration Centre (SIAC) Singapore Chamber of Maritime Arbitration Career as an International Arbitrator (from 2007) Disputes arbitrated include issues of: Primary Insurance Reinsurance Banking: Banking Services and Derivatives Joint-Venture Sport Shipping: Charterparty disputes, shipbuilding and Bills of Lading Intellectual Property Oil, Gas, International Coal Sale Contracts and Coke Rice Trading Franchise concessions Hospital reconstruction IT and Software

66 Judicial Career Judge of the Commercial Court, in the High Court, London from 1992 to 2007, specialising in commercial litigation of all kinds, including in particular (i) international oil and gas industry disputes, (ii) international sole agency, sole distributorship and joint-venture disputes, (iii) primary insurance and reinsurance disputes, including marine and aircraft insurance, (iv) international banking and credit disputes, (v) commercial fraud, (vi) cases involving issues of American Law (vii) Sale and chartering of ships and hearing innumerable cases on arbitration law and practice, including the applicability of the New York Convention eg. Westacre Investments v. Jugoimport SDPR Holding Co Ltd [1999] QB 740 and A v. B [2007] All ER (Comm) p.571 Judge in Charge of the Commercial Court (1996-7) Report of the Re-Opened Investigation into the Loss of MV Derbyshire 2000 Special Adviser to the Ministry of Justice of the Czech Republic on civil procedure ( ), Consultant to the European Commission on Czech Republic s accession to the EU (2002) and on Slovakia s accession to the EU (2003). Co-founder and member of the management committee of the European Commercial Judges Forum ( ). Honorary President of the Italian Society for Mediation (2002-present). Award by the Czech Republic (Gratias Agit Award) for services to Czech judicial reform and judicial education (2006). Principal of the Faculty of Mediation and Vice President of the Academy of Experts, London, (2002-present). Fellow of the Chartered Institute of Arbitrators Publications and Lectures Author and co-editor of The Practice and Procedure of the Commercial Court (LLP); General Editor and contributor to the Encyclopedia of International Commercial Litigation (Kluwer Law). Numerous lectures and talks throughout the World on inter alia: (i) the conduct of commercial courts, (ii) the use of mediation in commercial litigation and arbitration, (iii) international arbitration: court supervisory jurisdiction, (iv) case management in commercial litigation, (v) the New York Convention. Report to the UK and Czech Republic Governments on the state of Commercial Litigation in the Czech Republic and the need for change in Czech Procedural Law Education Educated Harrogate Grammar School and Trinity Hall, Cambridge, scholar and Double First in Law Tripos. Career at the English Bar Practised as a barrister of Gray s Inn at the Commercial Bar , specialising in primary insurance and reinsurance including marine insurance, maritime disputes, banking and international trade and distributorship agreements, ICC and ICSID arbitrations, including acting as ICC, LCIA and ICSID arbitrator. Appointed Queen s Counsel 1977, Master of the Bench of Gray s Inn, (1986-present), Chairman of the Commercial Bar Association (COMBAR)

67 List of my Judgments upheld by the Court of Appeal and/or House of Lords The Mercantile Group (Europe) AC v. Victor Aiyela & Ors [1994] QB 366 Appeal dismissed Airbus Industries v. J Patel [1998] UKHL 12 Restored on appeal to H of L 2 April 98 Society of Lloyd s v. D Leighs, Wilkinson & Others [1997] CLC 759 Appeal dismissed by CA [1997] EWCA Civ 2283 Alfred McAlpine Plc v. BAI (Run off) Ltd [1998] 2 Lloyd s Rep 694 Appeal dismissed by CA [2000] EWCA Civ 40 Ocarina Marine Ltd v. Marcard Stein & Co Appeal dismissed by CA [1999] EWCA Civ 2003 Westacre Investments v. Jugoimport SDPR Holding Co Ltd [1999] QB 740 Appeal dismissed CA [1999] EWCA Civ 1401 Owners of cargo lately laden on board the ship or vessel "Starsin" and others (Original Respondents and Cross-appellants) v. Owners and/or demise charterers of the ship or vessel "Starsin" (Original Appellants and Cross-respondents) and two other actions CA 23 Jan 01 reversed on appeal. Main part of judgment restored by HL 13 March 2003 Commissioners of Customs & Excise v. Barclays Bank Plc [2004] EWHC 122 (Comm) [2006] 2 All ER (Comm) 831 Reversed on appeal by CA [2004] EWCA Civ 1555 HL restored judgment [2006] UKHL 28 Konkola Copper Mines plc v. Coromin [2006] EWHC 1093 (Comm) Konkola Copper Mines Plc v. Coromin [2005] EWHC 898 (Comm) CA Reinsurers Appeal Dismissed [2006] EWCA Civ 5 [2006] 2 All ER (Comm) 400 North Star Shipping v. Sphere Drake [2005] EWHC 665 (Comm) [2005] All ER (D) 312 Appeal dismissed CA [2006] EWCA Civ 378 Sukuman Ltd v. The Commonwealth Secretariat [2006] EWHC 304 (Comm) 27 February 2006 Court of Appeal upheld decision on 18 April 2007

68 GRANT HUNTER Grant Hunter is BIMCO s Chief Officer for Legal and Contractual Affairs, responsible for overseeing the development, revision and promotion of BIMCO s wide range of internationally used standard contracts and clauses. He has worked for BIMCO since Previous careers include five years at sea with the Ben Line and eight years working ashore in the commercial and operations department of P&O Bulk Shipping in London. Grant has a Master s degree in maritime policy and law from the London School of Economics ~~~~~~ GILES NOAKES Giles is the BIMCO Chief Maritime Security Officer (CMSO). BIMCO aims to provide a first class service to its cross shipping industry membership through the provision of quality information, advice, documentation and effective interventions, as well as actions promoting fairness in the international shipping industry. The security department focuses on providing security services/advice to ship owner/manager members and also advocates on their behalf. He has been heavily involved over the last eight years with the shipping industry input into dealing with piracy off the coast of Somalia, from both a practical and advocacy position. Giles sits on the CGPCS and three of its Working Groups. He advises in many other fora, and has been intimately involved in the drafting of much of the current counter Piracy guidance including; the drafting and updates of industry BMP, guidelines on From Capture to Release, guidelines on the Use and Construction of Citadels and the BIMCO GUARDCON. Current focus has shifted more recently to the Gulf of Guinea and South East Asia. As an ISO nominated first class liaison officer he was a member of the drafting working group of the recently published ISO Guidelines for Private Maritime Security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships. BIMCO is currently providing an informal oversight mechanism by allowing PMSCs to join as Associate Members. In addition to Piracy the current security focus of BIMCO is to address the growing prevalence of Stowaways where Giles is assisting the International Maritime Organisation (IMO). BIMCO is also actively involved with shipping aspects of counter narcotics through the World Customs Organisation (WCO) and the revitalizing of BIMCO MOUs with a number of global Customs Authorities/Border Agencies. On leaving the Royal Marines 18 years ago he completed an MBA and became the CEO of Multistar Container Transport, a container leasing company. Since 9/11 and as; the CEO of Jigsaw Container Logistics Security (JCLS)s, working a Security MD with Dubai Ports World and now as the CMSO of BIMCO, he has been involved and specialised in all aspects of maritime security, including; container transport and the supply chain, shipping and port security operations, consultancy and auditing. He is a respected commentator on all aspects of security within the Maritime Domain.

69 Peter Cook, Chief Executive Officer Security Association for the Maritime Industry Peter Cook is the Chief Executive Officer for the Security Association for Maritime Industry (SAMI), A former Royal Marines Officer, he spent a significant part of his 24-year career involved in aspects of maritime security from maritime counter terrorism to formulating counter piracy policy and procedures for the UK Ministry of Defence. The Security Association for Maritime Industry (SAMI) provides an international, independent non-governmental organization that is impartial and fully integrated with the maritime industry. SAMI also acts as a focal point for global maritime security matters representing the industry at the UN (CGPCS), IMO and European Commission (SAGMaS) and now the G7++ Friends of Gulf of Guinea Group (FOGG). The SAMI membership is made up of over 100 international maritime security providers from more than 30 different nations, as well as equipment, technology and hardware companies exploring technological and non-lethal maritime security solutions. In September 2012 SAMI was awarded Newsmaker of the Year by Lloyd s List. Peter has also been named in 2012 and 2013 as one of the most influential people in the shipping industry in the Lloyd s List Top 100 List. Peter is a Visiting Lecturer at University of Greenwich having also lectured at Oxford, Portsmouth and the World Maritime University. He writes regularly on maritime topics, often commenting in the media on maritime security related issues. E: pwjc@seasecurity.org Security Association for the Maritime Industry (SAMI) Limited Registered Company Limited by Guarantee HQS Wellington, Temple Stairs, Victoria Embankment, London, WC2R 2PN, UK Tel: +44 (0)

70 Ruth Hosking Academic MA (Oxon) LLM (Lon) Academic Prizes / Scholarships Lincoln s Inn Hardwicke, Denning & Droop Scholarships Publications Article published in LMAA Autumn Newsletter entitled The Right to a Fair Arbitration ;. Co-author with Simon Rainey QC of the chapter on Bills of Lading in Butterworths Commercial Court & Arbitration Pleadings. Presentations Ruth regularly lectures and gives seminars on numerous topics including bills of lading, charterparties, construing contracts, international and domestic contracts of sale, arbitration (in particular appeals under sections 68 & 69 of the 1996 Act) and procedural issues such as the report and recommendations of the long trials working party. Memberships British Insurance Law Association; COMBAR (Vice-Chair of the Equality and Diversity Committee; ICC YAF; London Shipping Law Centre; LCIA Young International Arbitration Group; Young Maritime Professionals Group