The Legal Loophole Pirates Used to Nab Captain Phillips - Pacific Standard

The Legal Loophole Pirates Used to Nab Captain Phillips

Why was an aid ship sailing through pirate-infested waters without an escort?
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A still from the new Captain Phillips film. (IMAGE: COURTESY OF COLUMBIA PICTURES)

A still from the new Captain Phillips film. (IMAGE: COURTESY OF COLUMBIA PICTURES)

The Maersk Alabama incident is back in the news, thanks to a new Tom Hanks movie about the ship carrying U.N. food aid that was seized by pirates off Somalia in 2009. At the time of the incident one question that kept popping up was how a ship with an American captain—a valuable target for ransom seekers—and a cargo of expensive humanitarian aid paid for by the World Food Program, part of the United Nations, would find itself sailing through some of the world's most dangerous waters without an escort. The new discussion sparked by the movie hasn't addressed that either, and for good reason—the explanation is more ridiculous than cinematic. At the time, working for another magazine, I had a chance to ask about it; reading the positive reviews of the movie, it seemed worth looking back at what the U.N. said about the incident at the time.

“We have relatively small tonnages going to Somalia. Mombasa is a regional hub. We would split the shipments up, Kenya and Uganda would go by road, then we’d put some on another boat going to Somalia, and that would receive an escort.”

Piracy on the high seas is an exciting topic, but the rules the pirates are breaking, international maritime law, are the very opposite of exciting. In the case of the Maersk Alabama, the doomed journey of famous Captain Phillips and his crew actually came amid a steep drop in successful pirate attacks off Somalia, after the signing of an agreement between the food aid program, NATO, and the European Union, which lent their navies to protect the relief ships. But the agreement only covered ships bringing aid directly to Somalia, and in the case of the Alabama, they were actually heading past Somalia to a UN/WFP distribution hub in Mombassa, Kenya.

At the time, I asked the WFP's man in Kenya, a really decent-seeming type named Peter Smerdon, about that. Here's what he said back in 2009, while the pirates were still holding the crew: “We have relatively small tonnages going to Somalia. Mombasa is a regional hub. We would split the shipments up, Kenya and Uganda would go by road, then we’d put some on another boat going to Somalia, and that would receive an escort.”

What that meant at the time is that the ship had protection, or didn't, based on whether it was on the Somali or Kenyan legs of a journey. A reasonable person could ask: "But the pirates don't care where you're going. They care where you are. Specifically, they care if you're near them and have valuable stuff on your boat." Perhaps the new Hanks movie, which is not out yet, will explore that, though it's an odd legal detail. But, it's the detail that means the difference between a bunch of desperate people with machine guns having the ability to take over a large ship, and an imposing Dutch destroyer full of cannons and well-trained sailors lying between them and the loot.

At the time I also had a chance to ask why they didn't just cover the Kenya-bound boats too. The explanation was that there were too many. Mombassa was receiving a relief shipment by sea roughly every other day in 2009, to serve crises throughout the horn of Africa and as far south as Rwanda. So really, Captain Phillips was a victim not only of pirates, and perhaps his own hubris by some reports. (What was he doing that close to Somalia, anyway? Saving time?) He was a victim of a supply chain system for aid that made it impossible to guard the ships heading to the largest port.

Before the Alabama incident, the system had worked well enough. The Alabama was the first aid ship taken by pirates that year, and the first since the escorts had started. The pirates, apparently, learned what was going on, and figured out how to target the ship left unguarded.

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