Κατεύθυνση Ναυτικό ΔίκαιοLibrary of the School of Law
Γαρυφαλία Ι. Αθανασίου, Καθηγήτρια Εμπορικού Δικαίου, Νομική Σχολή Πανεπιστημίου Αθηνών
Το νομικό καθεστώς του ναυτικού σε περίπτωση πειρατείας
The regime of seamen in case of piracy
Piracy is a great danger to the sea adventure that causes not only economic loss but also loss in human lives. This is the reason why the international community has composed a variety of regulations and codes either mandatory, such as the International Security Management Code, known as ISM Code, or recommended, such as the Best Management Practices for protection against Somalia based piracy, known as BMP4. All these documents contain a huge number of suggested measures that can be taken so as to deter a capture by pirates, such as the placement of razor wires on the ship or the fire hoses and foam monitors to make it difficult for the pirates to approach the ships.
The solution of employing armed guards to protect the ships is a measure of great importance. The maritime community was very suspicious against the application of the aforementioned measure, but gradually accepted it as it was proved that it contributed really strongly in the reduction of the pirate attacks. For reasonable causes the maritime community was also suspicious –and fortunately fully rejected – against the solution of the seafarers’ bearing arms. The main cause of this rejection is the inexperience of the seamen in using weapons, as they are just civilians and they are not familiar with guns.
If all these measures fail to deter a pirate capture of a ship and its crew, it is time to negotiate with the pirates whose target is to ask for ransom payment in order to release the ship, its cargo and its crew. Is it legal to pay the amount of money that the pirates ask as ransom or not? The main argument in favor of the legality of the ransom payment is the protection of human life and dignity. In the other side, the argument in favor of the criminalization of the ransom payment is the financial support of terrorism.
Concerning the insurance coverage of the ransom payment, there is not a clear answer in this subject because of the character of piracy as a common maritime danger or as a war danger. A suggested solution is the application of a new form of insurance that is called Kidnap and Ransom Insurance, which is extremely expensive though, and that is the reason why the most common practice is the application of Sue and Labor Clause or the solution of “common average”.
At this moment it is very important to analyze the consequences of piracy in the labor sector. What is going to happen with the wages of the seafarers that are kept as hostages by the pirates? Unfortunately, the Maritime Labor Convention (MLC 2006) does not give any answers to this subject and that’s the reason why there is need for some amendments. The suggested solution is to consider the duration of the capture as time of real work and to keep active the work contracts till the seamen’s release. Concerning their repatriation, it is suggested to secure their right to repatriation through a regulation in the MLC.
Last but not least, this thesis tries to find out the way of receiving compensation for the damages on the basis of the provisions concerning the maritime accident according to law 551/1915 and the 66th article of the Code of Private Maritime Law. Their compensation can be also based in the common civil law, while they are also entitled to compensation because of moral damages.
Main subject category:
Law and Legislation
Other subject categories:
Piracy, pirates, seafarers, hostages, ransom, maritime law, Maritime Labour Convention
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