HOTSPOTS

Attacks are logged on the website of Commercial Crime Services (CCS), a division of the International Chamber of Commerce. Currently, while the principal hotspots are to be found off the coasts of Indonesia, Somalia, Bangladesh and Nigeria, acts have been committed off the coasts of various South American countries and even in the Caribbean.

INSURANCE

Insurers are usually very strict about where yachts can and cannot cruise while remaining covered. Any breach of these restrictions will allow them to escape paying out in the event of a claim for absolutely anything. Once the owner has decided where he or she wishes to cruise, this must be disclosed to the insurer if it is outside the area permitted in the policy, and additional cover negotiated – the cost of which will reflect any perceived increase in risk.

In common with the IMB, the definition of ‘piracy’ used by insurers is generally much wider than that given above. This is fortunate since, statistically, attacks are more likely to occur within a state’s own territorial waters – i.e. within 12 nautical miles of the adjacent shoreline. Although piracy risks are specifically covered by the standard ‘Institute Yacht Clauses (1/11/85)’, which are the most commonly-used first-party insurance terms, the risks should still be discussed with the broker anyway. Where, unusually, the policy is not subject to English law, then it may be prudent to take independent legal advice.

INFORMATION

Patterns of worldwide piracy fluctuate with the political stability and, to a lesser extent, the economic fortunes of adjacent states. It is imperative to obtain up-to-date advice on where the current trouble spots are. Insurers can help with this, although specialist maritime security firms can often provide more detailed information. It should be noted that the security industry is not well regulated in some countries, and firms’ services vary in quality.

DEFENCE

Although the advice to all yachts travelling in high-risk areas is to maintain particular vigilance, and defences such as acoustic defence systems, satellite-alert systems and strong-rooms are options, the question most commonly raised is whether weapons are, legally, an option.

To decide what’s legal and what’s not, it’s necessary to know which countries’ laws apply to any given situation. One needs to consider both the ‘Flag State’ law and the ‘Port State’ law. The Flag State law is the law of the country where the yacht is registered: it governs what happens on board the yacht, wherever in the world the yacht is located, as if the yacht was a small, floating piece of that country. The Port State law is that of the country in whose territorial waters the yacht is located – not just in or around any particular port.

EQUIPMENT

To take the example of one of the most popular Flag States, the United Kingdom, weapons may kept on board, but not all types. Under the Firearms Act 1968, as amended, firearms (including shotguns) and associated ammunition normally require a licence for purchase and possession. A firearm and ammunition, however, can be possessed on board a yacht, if it forms part of that yacht’s ‘equipment’, without the need for such a licence. A police permit is still needed to bring the firearm to and from the yacht, and a licence required to purchase the firearm in the first place.

Section 5 of the same Act still outlaws some weapons altogether for the general public, including:

• Automatic and semi-automatic weapons,

• Pump-action weapons,

• Pistols, other than flare guns,

• Rocket launchers, other than those used for line-throwing or signalling,

• Air guns using gas cartridges, and

• Pepper sprays, TASER®s, etc.

Port States will have their own laws relating to possession and disclosure. Researching and complying with these can be difficult and expert advice is a must.

ACTION

Clearly, there is no point in having weapons on board unless someone is prepared to use them. Introducing them into the equation might change a confrontation into a shoot-out. Guns in untrained hands are not an option. It is also very difficult to work out in advance what the legal consequences of firing shots might be. Thankfully, this choice can be neatly sidestepped by placing a specialist security team on board just for the necessary passages.

Shooting at someone whilst they are on another vessel potentially constitutes an act of violence committed on both vessels. The shooter will therefore be subject to the laws of both Flag States, plus that of the Port State if the shooting occurs within 12 nautical miles of the coast (although this limit may not be respected in all countries).

Looking by way of example at the UK criminal law, which is followed in much of the world, the raising of a weapon at a suspected pirate, who in fact wasn’t, could constitute an ‘assault’, i.e. putting someone in fear of violence. Shooting a pirate (or otherwise harming him) could lead to charges of grievous bodily harm, where serious injury is caused. Where the pirate is unintentionally or intentionally killed, manslaughter or murder charges could follow. Obviously, a number of defences could be put forward in response, the most useful of which would be self-defence or the defence of another.

The accused would not need to have retreated as far as possible before the act of self-defence. Indeed, an act of self-defence or the defence of another may be pre-emptive, given reasonable apprehension. If the threat of force would have been enough, it may be unreasonable to go ahead and use force.

If one person on a yacht is threatened, all are can be seen as having been threatened. The force used in self-defence or in the defence of another must be ‘reasonable’ in the circumstances as the accused saw it. What is reasonable would be up to the jury and difficult to predict.

The main practical problem is recognising whether or not the yacht is faced with pirates. Until they raise a weapon in your direction or commit any act of violence against anyone, they are just other seafarers. Attack first, and you risk becoming the pirate.