The Nave Andromeda and the seven stowaways

Written by

On 25 October 2020, an incident involving seven stowaways occurred on the Nave Andromeda (IMO: 9580405), a crude oil tanker flying the flag of Liberia. The vessel was on its way from Lagos, Nigeria (having left the port of Lagos on 6 October 2020) to Southampton, United Kingdom (UK). This blog post describes the incident in more detail and provides an initial analysis of some of the legal issues surrounding the incident.

The incident and intervention by the UK’s Special Boat Service

The incident reportedly occurred while the Nave Andromeda sailed, and then dropped anchor, approximately six miles off the coast of the Isle of Wight in the English Channel. The master requested assistance, sending out a Mayday on the morning of 25 October, to which the Hampshire police and coastguard responded.

The UK Home Secretary and Defence Secretary (presumably having the flag state’s consent) then authorised a special forces unit that is part of the Royal Navy (‘Special Boat Service’) to board the Nave Andromeda ‘to safeguard life and secure a ship that was subject to suspected hijacking’. The operation happened on the evening of 25 October, included eight helicopters, 40 personnel, and 16 Special Boat Service members, and lasted less than 10 minutes. The seven Nigerian stowaways were subsequently arrested by the police ‘for seizing or exercising control of a ship by use of threats or force’ under Sections 9(1) and (3) of the Aviation and Maritime and Security Act 1990 (AMSA).

The seven stowaways and the issue of who had control of the vessel

The seven stowaways are likely to have boarded the Nave Andromeda in Lagos. The crew had apparently been aware of the stowaways ‘for some time’, and attempted to lock them in a cabin while sailing in the English Channel, after which the stowaways are said to have become aggressive and made ‘verbal threats’ to the crew. It is unclear whether the crew’s or master’s life were in (immediate) danger, however. Although the situation might have been frightening, both the master (who was on the bridge) and the crew (who took shelter in the citadel as a safety precaution) seem to have been safe, while awaiting assistance from shore. The operator of the vessel also confirmed that ‘no crew members were injured’ at any point.

However, the master did request the UK’s assistance. Protecting human rights, and more specifically protecting the right to life, including from violations by private actors, is an obligation both under the European Convention on Human Rights (ECHR), and under UK human rights law. This includes protecting individuals that are within the UK’s territorial sea. Under international law, the UK as a coastal state has sovereignty over its territorial sea. This means that the UK is entitled to prescribe laws and exercise enforcement jurisdiction in its territorial sea (although there is the exception of the right of innocent passage, and possibly the right of transit passage, Article 17 et seq., and Article 38 et seq., of the 1982 United Nations Convention on the Law of the Sea (LOSC)).

There have been contradicting reports as to how to classify this (security) incident, and whether the stowaways attempted to hijack the vessel. Although the Nave Andromeda is reported to have been sailing in an ‘erratic zig-zagging pattern’, there is currently no evidence that the stowaways were attempting to ‘take control of the vessel’. It also seems, based on the available information, that the master remained in control of the vessel. First, the master himself stated that the stowaways could not come inside the bridge; he remained on the bridge and in control of the vessel ‘at all times’. Second, the Nave Andromeda’s operator also confirmed it ‘had been under the master’s control’. Third, the master and the crew had detailed communications with officials in Liberia (i.e. the flag state), which suggests that ‘they were still in control of the ship throughout’.

The (inaccurate) description of the incident and the (alleged) role of France and Spain

Media reports concerning the incident immediately referred to ‘pirates’, and to stowaways having ‘hijacked’ the vessel. Statements by UK officials, while commenting on the incident as it was evolving, and once the facts became clearer, also chose not to classify this incident in a perhaps more neutral way, for instance, as a (security) incident, or an incident involving stowaways.

The common (mis)use (see on this also here, at 25) of the term ‘piracy’ is, although perhaps understandable, inaccurate from a legal point of view, and should be avoided. Based on the available information, this incident is not a case of piracy under international law. For (at least) two reasons, the Nave Andromeda incident does not fall within the customary international law definition of piracy under Article 101(a) et seq. LOSC. First, the ‘high seas/location’ requirement is not met, because the incident did not occur on the high seas or in an exclusive economic zone area. Second, the ‘two ship’ requirement is also not satisfied, as the incident only involved one vessel (for a discussion of the criteria in a different context see here, especially at 22-24). It is also unclear whether an act of violence had indeed occurred on board the Nave Andromeda. Therefore, the men that were arrested are not pirates, neither under international law, nor under UK law.

Contrary to some UK government statements and press reports suggesting otherwise, there was no situation of hostage taking, nor was the incident terrorism related. The lawyers who represent the owners of the vessel also ‘insisted the incident was “100 per cent not a hijacking”’. As mentioned above, the most likely explanation for the turn of events on board is that the stowaways probably became agitated after hearing that the crew wanted to follow protocol by informing the UK authorities, and ‘[t]ension flared’, when the stowaways were about to be locked up in a cabin. However, adding a further layer to this ‘story’, are reports that both France and Spain had denied permission to disembark the stowaways prior to the incident. The master of the Nave Andromeda apparently requested to disembark the stowaways a few days prior to the incident, but French authorities refused permission. This is supported by vessel-tracking data, that shows the vessel circled offshore Nantes between 20-21 October. Later, the vessel anchored in front of the port of Las Palmas and informed the local police about the stowaways. Spanish authorities then denied the vessel entry to the port of Las Palmas, and refused the master permission to dock and disembark the stowaways. According to a Civil Guard spokesman, this is because ‘[i]f the vessel is docked, local authorities must allow the disembarkation of the stowaways, but not if the ship is anchored’.

Although there is no general obligation under the law of the sea to accept vessels or stowaways into port, Spain (and possibly France and the UK as well) might have breached an international law obligation, by refusing to disembark the stowaways after a request from the master, that is if the decision to refuse the stowaways endangered the life of the crew or safe navigation of the Nave Andromeda.

Under paragraph 5.3 of Resolution FAL.13(42) (2018) ‘Revised Guidelines on the Prevention of Access by Stowaways and the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases’ to the 1965 Convention on Facilitation of International Maritime Traffic, the first port of call on the voyage plan after discovering a stowaway is obliged to ‘accept the stowaway for examination’ (para. 5.3.1), and to ‘favourably consider allowing disembarkation’ when ‘a stowaway’s presence on board would endanger the safe and secure operation of the ship, the health of the crew or the stowaway’ (para. 5.3.2.3). This was arguably the case here, considering the master’s request for assistance. In the present case, this paragraph might have been applicable to France, although it has not been confirmed when exactly the crew became aware of the stowaways and if France had indeed denied permission. Paragraph 5.4 of Resolution FAL.13(42) provides for the situation in which disembarking a stowaway was not ‘possible at the first port of call’. Then, the Guidelines provide that the next port of call must ‘follow the guidance provided in paragraph 5.3’, i.e. arguably accept the stowaways under the present circumstances. This suggests that Spain seems to have acted contrary to its obligation under Resolution FAL.13(42), regardless of whether it was the first or second state that was approached by the master for permission to disembark the stowaways. It is unclear why France and Spain decided to refuse disembarkation of the stowaways in this case. Three questions do arise, however. First, were France and Spain entitled to refuse disembarkation under the present circumstances? Second, could these decisions possibly have (further) endangered the lives of the crew and master of the vessel, or the safe navigation of the vessel? Third, have the prior refusals by France and Spain led or contributed to the tensions rising on board while the Nave Andromeda sailed in the English Channel?

Furthermore, the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) might also be applicable. The SUA covers, for instance, a person seizing or exercising control over a vessel, threatening therewith, or acts of violence against a person on board that might endanger the vessel’s safe navigation (Article 3). If the stowaways were indeed a threat to the safety of the crew or safe navigation, under the SUA, the master may have requested any states parties to take on a person that (allegedly) committed one of the aforementioned offences on board (Articles 8 and 3 SUA). This means that if the master requested assistance under the SUA, France and Spain (which are both states parties) would have breached their obligation by not accepting the stowaways.

 Coastal states have in the past regularly refused requests to disembark migrants/refugees and have not accepted ships carrying rescued migrants into their ports, as was the case in the recent Maersk Etienne case; for a discussion elsewhere on the blog see here.

It is unclear whether the UK authorities refused permission to disembark the stowaways as well. Although not wanting to condone any verbal threats that the stowaways (allegedly) made towards the crew, if this is true, this decision might have increased tensions on board and might have contributed to the incident in some way.

Stowaways on ships posing legal questions

Resolution FAL.13(42) (2018), in section 2, provides a definition of a stowaway, that is:

‘A person who is secreted on a ship … without the consent of the shipowner or the master or any other responsible person and who is detected on board the ship after it has departed from a port … and is reported as a stowaway by the master to the appropriate authorities.’

In practice, stowaways are regularly found on board merchant vessels. In 2018, a somewhat similar incident to the one involving the Nave Andromeda happened. At that time, British forces boarded and took control of the Grande Tema (a merchant vessel which also came from Lagos), as it sailed in circles in the Thames Estuary. The four stowaways were arrested, after they reportedly threatened to kill the Grande Tema’s crew members and demanded the vessel to sail nearer to the shore (allegedly so that they could swim ashore). On that occasion, the stowaways were not found guilty of attempting to hijack the vessel, but were jailed for affray offences (and for making threats to kill).

How to deal with stowaways ‘in an efficient and humane way’ once they are found on board a vessel is a serious issue for crews and the shipping industry (see on this, for instance, here, here, and here). Stowaways pose a range of ‘legal, financial, safety and security problems’. For instance, repatriating stowaways can be very complicated and expensive, and involves several state and non-state actors. In addition, some stowaways might be minors, and/or might be entitled to protection under refugee law.

From an international law perspective, stowaways at sea and how to deal with them is a human rights issue, a (maritime) security issue, and a law of the sea issue (also involving the International Ship and Port Facility Security Code), that also involves domestic laws. The safety of stowaways, the safety of crews, and the safety of navigation are all affected, and there is a need to (re)consider how to best safeguard all of these in the future. Many questions remain unanswered, however, and incidents concerning stowaways at sea will continue to give rise to many important legal and security questions.

Print Friendly, PDF & Email

Leave a Comment

Your comment will be revised by the site if needed.

Comments

Arron Honniball says

November 12, 2020

Dear Jessica (if I may), thank you for this succinct overview and approach to the incident from many angles that I have not personally read or considered previously. Very informative.
The only thing I would add is that perhaps this incident should not as easily be dismissed from being terrorism related. This is because the failure to reach agreement on a definition of terrorism in international law has resulted in a collection of global and regional treaties combating a hodgepodge of ‘terrorist offences’. Such terrorist offences are usually defined by cross-referencing other treaties, a frequent - if not always present - example being offences under SUA 88. As you raise this incident could have been a SUA 88 offence it could then also be a terrorist offence under regional counter-terrorism conventions. This could trigger further obligations or cooperation. Here in Southeast Asia that would include the ASEAN Convention on Counter Terrorism (Art. 2(1)(g)), and in Europe it would include the Council of Europe Convention on the Prevention of Terrorism (Appendix(7)) (to which the UK is a signatory). Food for thought.

Jessica Schechinger says

November 15, 2020

Dear Arron,

Thank you for your kind remarks.

Thank you also for your comment, and for raising the point that SUA offences might be defined as terrorist offences under regional counter-terrorism conventions.

Best wishes,
Jessica