Wednesday, May 6, 2009

Shipowner: The Lawyers Won't Let Us Fight Pirates

"The right of self defense cannot be exercised with the benefit of firearms under existing law" against Somali pirates, testified Philip Shapiro, CEO of Liberty Maritime Corporation, on May 5 before the Surface Transportation and Merchant Marine Infrastructure, Safety, and Security subcommittee of the U.S. Senate Commerce, Science, and Transportation Committee.

Liberty Maritime Corporation owns the Liberty Sun, a US flag ship that Somali pirates fired upon April 14 off the Somali coast.

Citing difficulties in securing shipping, Shapiro stated:

Given these conditions, our company and other U.S.-flag companies have renewed our focus on the issue of fire arms and the use of specially trained security personnel whether employed by the U.S. Government or by private contractors....[I]t has become obvious that that prohibitions contained in U.S. and foreign laws and existing legal liability make arming crew members or having armed private security very difficult if we are to abide by current law.

I have also heard it said that there should be no issue because the vessel and its crew have an unquestioned right of self-defense....

Today's U.S. legal framework actually prevents ship owners from arming their vessels for self defense. While the maritime right of self defense is enshrined in U.S. law in a statute dating from 1817, more recently enacted State Department arms export regulations effectively prohibit the arming of vessels. Additionally, ship owners risk being second-guessed in U.S. courts for self defensive measure s that were common in 1817....

I believe that U.S. flag ship owners have done all they can within the law to protect their crews. The safety of our crews is paramount.....

The two cited obstacles that prevent Mr. Shapiro from doing more are "more recently enacted State Department arms export regulations" and the risk of "being second-guessed in U.S. courts for self defensive measures that were common in 1817."

Shapiro apparently is citing the State Departments International Traffic in Arms Regulations (ITAR). These regulations have frustrated Xe ( the corporation formerly known as Blackwater ) from its plans to market a pirate hunting ship. Why these regulations should also bar crews from arming themselves is less clear.

As for the dreaded "risk" of being "second-guessed in U.S. courts for self defensive measure s that were common in 1817," we can only speculate that Mr. Shapiro fears that running a pirate through with a cutlass could give rise to novel liability issues. Apparently liability insurance against such risks would be more expensive that insuring against theft of the vessel and kidnap of the crew. In any event Mr. Shapiro apparently repudiates the doctrine that "It is better to be tried by twelve than buried by six."

However, we are not satisfied that Mr. Shapiro is doing all he can within the law to protect his crews. Nor are we fully convinced that their safety, to him, is "paramount."

We urge Mr. Shapiro henceforth to join his crews when they venture into Somali waters. Then he would be better able to evaluate whether he actually is doing everything he can to protect them.

Update: Regarding Liberty Maritime's access to liability insurance, we should note that liability insurance policies typically include an "intentional injury exclusion," which would bar coverage for intentional acts, such as deliberately running someone through with a cutlass. However, a quick Google search suggests there is legal authority holding that this exclusion does not apply to acts of self-defense, presumably including repelling Somali pirate attacks.

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