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Considering the number of vessels captured by Somali pirates over recent years, there are relatively few reported court cases concerning the legal consequences of piracy. A judgment in one such case was, however, handed down by the Danish Eastern Court of Appeal in late 2010.
The case concerned the Danish vessel The Danica White, which was captured off the Somali coast in June 2007 and held captive for about two-and-a-half months. The crew of five each claimed compensation from the shipowner of about DKK 300,000. The claims consisted partly of lost income (including overtime because of the lack of free time during captivity) and partly non-economic losses due to mental distress and infringement of personal integrity.
The crew claimed that the shipowner was liable in damages for having failed to take the required precautionary measures against piracy attacks. The crew’s claims in this respect were based on a report by the Danish Maritime Authority following an investigation into the capture. According to the report, the shipowner could be blamed for not having provided the master with proper instructions on the selection of a safe sailing route off the Somali coast. The report further held that the master was to blame for not having kept a proper lookout (at the time of capture there was no lookout as the master was inside doing paperwork, enabling the pirates to board the vessel unnoticed). Moreover the report held that the master had insufficient knowledge of the functioning of the vessel’s Ship Security Alert System (SSAS), which caused delays in calling for assistance.
On the first of these points the Court of Appeal disagreed. At the time (June 2007), the recommendation of inter alia the Danish Shipowner’s Association was to sail 200 nm off the Somali coast. The master had complied with this by sailing 205 nm off the coast. Although the vessel was “low and slow” and as such susceptible to attack, not sailing even further out than the recommended distance was not held to be negligent. On the other points (lack of lookout and of knowledge of the alarm system) the court agreed that the master was negligent and that the shipowner would be vicariously liable for such negligence.
Nevertheless the crew’s claims failed on the basis of causation. Based on the evidence the court found that the vessel would in all likelihood have been captured even if there had been a proper lookout and the alarm system had been timely deployed. The vessel was unarmed, it was slow and easy to access, and there were no naval ships nearby that could realistically have assisted before the pirates had got aboard. This latter point was highlighted by the fact that the US navy vessel the The Carter Hall did arrive at the scene at a later stage but decided to abort a rescue attempt as the pirates successfully positioned the crew of The Danica White as human shields. According to the court this outcome would in all likelihood have been the same had the naval ship arrived sooner after the capture.
It should be noted that the case dates back to 2007, as at that time the Best Management Practices code of conduct had not yet been promulgated by the IMO and other maritime organisations. The case may serve as an illustration of the importance of following such recommended codes of conduct, not only in relation to taking appropriate measures to safeguard the vessel and crew, but also for the purposes of building up a successful defence in the event of a law suit such as The Danica White.
