The history of piracy is a long one, and piracy remains a threat in modern times. The potential for pirate attack may exist in any waters, but during the past decade it is Somali pirates along the east coast of Africa and in the Indian Ocean who receive the headlines. Billions of dollars in international maritime trade has been lost due to cancelled or delayed shipments and higher expenses. The pirates have attacked ships, often taking prisoners for ransom and keeping the ships to sell or use in future attacks. There are a number of theories as to why the number of Somali pirates has risen to such a level. One theory is that Somali fishermen resort to piracy because the dumping of toxic waste by other countries has made fishing for a living impossible for Somali nationals. Other factors include decades of political unrest, war, and ineffectual government leadership, which make it easier for organized crime to move in and take advantage of a desperate situation.
In 2009, Combined Anti-piracy Task Force 151 (CTF 151) was formed to combat the increasing boldness of the pirates. CTF 151 is an international force which has been commanded by members of various navies from 25 countries, including the U.S., Pakistan, Turkey, South Korea, and New Zealand. The mission of CTF 151 is to protect shipping lanes from piracy and to restore freedom of navigation and legitimate maritime commerce.
A valuable and well known resource is the updated 2011 publication called “Best Management Practices, Version 4” (BMP4), which has been endorsed by NATO Shipping Centre, Maritime Security Centre Horn-of-Africa (MSCHOA), and others. It outlines ways in which ship owners and captains should implement self-protective measures in order to deter piracy. The measures laid out in this publication may have a central role in deciding whether employers of seamen have done enough to protect their employees sailing vessels through waters rife with pirates.
A well-known incident off Somalia, which occurred on April 8, 2009, involved the American-flagged M/V MAERSK ALABAMA, a 508-foot container ship. At that time, there was an advisory that ships keep at least 600 nautical miles (nearly 690.5 miles) from the Somali coast. MAERSK ALABAMA was 240 nautical miles off the coast when pirates boarded her. Miguel Ruiz, John Cronan, and Richard E. Hicks were crewmembers who were confined and roughed up by the pirates; these men sought compensation under the Jones Act and General Maritime Law for personal injuries resultant of the pirates’ treatment of them. Ruiz, et al. v Waterman Steamship Corporation and Maersk Line Limited – 2011 WL 4089416 (Tex.App.-Houston [1st Dist.] 2011). Under the Jones Act, the plaintiffs in Ruiz seek to recover damages by showing employer negligence. That case has not yet been resolved and the final outcome is uncertain.
There have not been many cases decided by courts facing the question of employers’ duties to protect employee seamen sailing in areas known for pirate activity. Some of the questions likely to arise at trial include: What were the duties of the employer (Maersk in the Ruiz case) toward its crew in waters known for pirate attacks? Did the employers ignore advisories and warnings? Had the employers implemented any of the self-protection measures discussed in BMP4? Could they definitely have avoided attack and capture by sailing a different route? Were the crew trained – and should they have been trained – for such an emergency? In other words, was the employer negligent toward its crew, and thus liable for the injuries caused by the pirates?
Our guess is that courts will rule that the employer must take reasonable steps to protect employees sailing in dangerous situations. This may require special training for the crew. It may require hiring of guards. Employers may have to modify their vessels in some way. We will keep an eye on this developing area of law and report what we find.