Prize or Piracy – The Capture of Vessels During Geo-Political Conflicts
By John and Yoav Harris
An Iranian Oil Tanker which was arrested and released. A British Oil Tanker which was arrested and released. An Iranian Tanker experienced two explosions in its cargo tanks and another which experienced an ingress of water into its engine. A Marshal Is. Tanker and a Panamanian Tanker which experienced explosions in June 2019. Resulting 1:1 in tankers which were arrested and released and 2:2 in tankers which were damaged- are the interim results of the maritime "cold" war between Iran and the "Rest of The World".
What are the legal grounds if any for these governmental taking over of vessels? And are we confronting with a unique new way of countries exercising strength and force? These are some of the questions we will deal with under this article.
Traditional Law Relating to Warfare at Sea.
The concept of neutrality during war was acknowledged for the first time in the year 1164, where during a war between Pisa and Genova, Pisa captured a Saracen ship that allegedly was carrying goods belonging to a citizen of Genova. The Sultan of Egypt complained of the capture arguing that the goods belonged to one of his subjects. Pisa, after determining the Saracen ownership released the ship.
However, it seems that the beginning of traditional law of naval warfare can be ascribed to the date of Paris Declaration of 1856 and the "London Declaration" of 1909. Almost 90 years later the San Remo Manuel was concluded.
According to the traditional law relating to the warfare at sea, all merchant ships, whether enemy or neutral may be stopped, visited and searched. An enemy cargo merchant ship can always be captured and seized as prize. Neutral cargo on board an enemy merchant vessel can be seized if it is contraband, or is the vessels is a blockade runner or actively resists visit and search. Enemy's property whether vessels or goods is liable to capture, and subject to a decision of a prize court to condemnation. Although the act of capture itself takes place at sea it should be upheld by a judgement of a Prize Court where the owners and the cargo interests can bring their allegations before a specialized Court. The Prize Court does not only rule on the validity of the capture itself but also gives orders in relation to the management of the Vessel, its crew and cargo, according to the principle that the property of private persons must not be converted without due process of law.
The Law of Prize After World War II
After World War II there was a rare use of the of the traditional law of Prize. One of the countries that did seize other country's vessel was Egypt, which following Kings Farouk's decree dated February 6th 1950 ordering the cargos and manifests of vessels could be inspected in order to make sure that no arms, ammunition or other goods constituting contraband for Israel are on board and referring prize court's decisions made during world war II, begun, since 1951 to intercept ships destined to Israel either at the golf of Aqaba or when seeking to pass through the Suez Canal. Although the Security Council in September 1951 characterized the Egyptian practice as an "abuse of the right of visit, search and seizure, Egypt maintained this practice until the peace treaty concluded in 1979 with Israel.
After 1945, following the international conventions of 1956 and 1960 known as "UNCLOS 1" and "UNCLOS 2" in 1982 the "Law of the Sea" convention – UNCLOS (United Nations Convention on the Law of the Sea) was concluded. UNCLOS sets out, inter alia, the freedom of navigation in the high seas (Article 87 (1) (a)) and the right of innocent passage through a costal state's territorial sea (Article 17). The UNCLOS also provides the rights of boarding ("visit") and of a hot pursuit of a foreign ship when competent authorities of the costal state have good reason to believe that the ship has violated the laws and regulations of the state (Articles 110,111).
The Blockade Running of the M/V Estelle
Against the above mentioned background the M/V Estelle on May 2012 set sail on a voyage from Finland towards Gaza attempting to break the naval blockade imposed by Israel on the Gaza Shore on January 2009- more then a year after he take-over of Hamas of Gaza and after since the year 2001 thousands of rockets and mortars have been fired into Israel in ever growing numbers from the Gaza strip. The purpose of the Israeli naval blockade was and is to prevent weapons, terrorist and financial resources from entering or exiting the Gaza strip by sea.
Prior to the M/V Estelle's attempt to bread the naval blockade, during 2009-2010 a number of attempts were made by various vessels. On two occasions after having been warned by the Israeli Navy, the vessels withdraw and turned back (the vessels "Iran Shhed and "Spirit of Humanity"). On other two occasions where vessels did not pay attention to the Israeli Navy's warnings the vessels were taken over by force, brought to Ashdod Port and released to their owners. On May 2010 the attempt of a flotilla of six vessels -one of which was the "Mavi Marmara" resulted also in taking over by force and releasing the vessels after been brought to Haifa and Ashdod port to their owners. Including the release of the Mavi Marmara where the Israeli Defense force personal faced significant, organized and violent resistance which led to nine passengers losing their lives and to injuries to many other passengers and soldiers.
On October 2012, after anchoring in Spain and Italy, the M/V Estelle reached the naval blockades area and where she did not pay attention to the Israeli Navy's warnings (which included messages to the Owners that humanitarian cargo can be discharged at Ashdod port and transferred through the land passage to Gaza) is was taken over by the blockading force on 22 October 2012, with no resistance. The vessel was taken to Ashdod port where its passengers and crew were questioned and deported from Israel. The cargo was checked and then transferred to Gaza (part of the cargo -cement was given to the Palestinian Authority and the other part was given to UNRWA).
The Awakening of the Prize Court
However, contrary to the previous incidents it was returned to its Owners. It was held by the Israeli Navy and after 10 months of detention the State of Israel applied to the Haifa Maritime Court and requested it to exercise its alleged authority as a Prize Court and order confiscation of the vessel (Folio No. 26861-08-13 the State of Israel Vs. the M/V Estelle.). It was the first time after the World War II that the question of a Maritime Court acting as a prize Court was ever dealt -at least at the western world and the first time ever this question was dealt after the conclusion of the UNCLOS in 1982.
The Establishment of the Haifa Maritime Court
The Israeli Maritime Court is a legacy from the British Mandate over Palestine (Israel) which in fact began after the end of the First World War (and formally in 1922) and ended on 15 May 1948. By a King's-Order-in-Council dated 2 February 1937, The Supreme Court of Jerusalem was constituted as a Maritime Court under the Colonial Court's of Admiralty Act, 1890 (the "Colonial Act") - which established Maritime Courts in Her Majesty's dominions and elsewhere out of the United Kingdom. However, under clause 2 (2) of the Colonial Act, a Colonial Court of Admiralty shall have the authorities to act as a prize Court (under the Naval Prize Act 1864) only if been dully authorized. In other words, the Colonial Courts of Admiralty Jurisdiction and authority to act as a prize Court should be "trigged" by a specific authorization on behalf of Her Majesty.
Under a short act named the Admiralty Court Act, 1952 enacted after the establishment of the State of Israel all the authorities of the Supreme Court e to act as a maritime court were transferred "as is" to the Haifa District Court- from now on acting as the Israeli Maritime Court. Later, in 1960, the Israeli Shipping Act was enacted, which elaborated on the Maritime Liens and their classifications (following the 1926 Brussel's Convention) but did not refer to any prize act of prize authority.
Does the Haifa Maritime Court Has the Authority to Act as A Prize Court?
Accordingly, the first question the Haifa Maritime Court dealt with in the matter of the M/V Estelle, was, if the colonial maritime Court established in the Supreme Court in Jerusalem was "trigged" by a specific authorization after its establishment to act as a Prize Court- which such an authority was transferred to the Haifa Maritime Court when receiving the Authorities, or not?
The State of Israel argued that such an authority was given to the Supreme Court of Jerusalem under an Order given by the High Lord Admiral of the United Kingdom to the Senior Judge of the Supreme Court of Jerusalem published in 10 October 1939 ordering him that "when an announcement is made in Palestine stating a war has commenced between her Majesty's and any foreign country, to pay attention to all kinds of captures and prizes of all kinds of ships, vessels, aircrafts and cargos which will be taken and will be brought to the Supreme Court of Palestine (Israel) to rule over them, to judge and to confiscate them…".
The response to this argument was that in fact the specific announcement mentioned in the Order was not presented at it seems that authorities to act as a prize court were given only for the purpose and the period of World War II which had ended and so had the British Mandate -four years before 1952. Therefore, on the year 1952 -when authorities were transferred to the established Haifa Maritime Court the Supreme Court in Jerusalem did not have- as a colonial admiralty court the authorities to act as a prize court and therefore no such authority could have been received by the Haifa Maritime Court.
The Haifa Maritime Court's Decision
In its Judgement, the Haifa Maritime Court judge, Honorable Judge Ron sokol, held that considering the fact that there were some publications evidencing that during World war II the Supreme Court in Jerusalem acted as a prize court and choosing between the two possibilities it prefers that of which there is a specialized Prize-Court which is in compliance with traditional law's requirements rather than an absence thereof. Especially where there is a need that matters of Prize would be dealt promptly as the capturing authority is required to provide the vessel's documents to the Court immediately after the capture and where immediate orders as to the management of the captured vessel, its crew and cargo and third-parties rights and interest should also be given by a specialized maritime court.
Therefore, the Haifa Maritime Court held that it is authorized to act as a Prize Court.
However, in relation to the M/V Estelle itself and under the current circumstances where the State of Israel delayed the filing of proceedings for a 10 month's period which is contradictory to the principles of the traditional law requiring the capturing authority to deliver the vessel to the marshal of the Court "forthwith and without bulk broken" and also against the principles of administrative law, the vessels should be released. The release of the vessel was also justified in the current circumstances where the cargo carried by the vessel was humanitarian and the vessel did not resist the visit of the Israeli navy or its capture and arrest.
The judgment of the Haifa Maritime Court was also examined by the Supreme Court following an appeal filled by the State of Israel which after observing the traditional law authorities did not intervein.
Further Confiscation of the Marine Blockade Runners
After the matter of the M/V Estelle was decided, two more vessels owned by the same owners tried to breach the naval blockade, these were captured by the Israeli navy and proceedings were filed before the Haifa Maritime Court promptly. In these matters, the Haifa Maritime Court ordered the confiscation and judicial auction of the vessels and ordered that the amount received form the selling will be transferred to the state of Israel (the matters of M/V Marianne (2016) and the M/V Zaytouna -Oliva (2019).
The "Marine Cold War"
Not like the State of Israel which based the acts of its capture of blockade running vessels on the traditional law and the Haifa Maritime Court authorities, what seems to be an American- British cooperation took a different path for the taking over of the what resulted to be the Iranian tanker named Grace 1 on July 2019.
The justification for the capture of this tanker by British commando of shore of Gibraltar was its intended violation of Council Regulation (EU) No. 36/2012 imposing sanctions against Syria due to the continuous violation of civil rights by the Syrian Government, which were extended on the year 2014, and forbidden, inter alia, the trade with a list of Syrian companies considered to be providing financial support to the Syrian government.
The Grace 1 was carrying oil intended to the "Baniyas Refinery Company" which was listed in the 2014 extended sanctions as being a part of the Syrian Ministry of Petroleum and its capture was upheld by the Court of Gibraltar.
However, not being aware to the fact that British and associated tankers have no choice but to navigate next to the Iranian "lion's month" at the Hormuz strait, soon after they were confronted with an Iranian capture of the British tanker Stena Impero while navigating its way to Saudi Arabia which took place on 19th July 2019 - few hours after the Gibraltar Supreme Court had extended the arrest of the Grace 1.
The capture itself was explained by the Iranian authorities as due to the tankers' "crossing a route other than the shipping lane in the strait of Hormuz, switching off its transponders and not paying attention to Iran's warning when it was not seized by the Revolutionary Guards, forces".
As a result, soon after, the Gibraltar Court was satisfied with an Iranian commitment that the "grace 1" will not deliver its fuel to the Syrian refinery and released the tanker (soon after its release the tanker changed its name to "Adrian Darya", and after it switched off its tracking devices near Iskenderun, it probably delivered its 140 Million US$ worth cargo to the Syrian refinery). Few weeks later the Stena Impero was released from its Iranian detention.
The "Marine Cold War" between Iran and other countries also took place in some unexplained expositions to tankers which did only damage to their cargo holds and did not result neither in their explosions nor in any un-recoverable damage, but do violate the freedom of navigation at high seas and the right for innocent passage at a costal state's territorial sea which are well recognized principles stated in the UNCLOS and part of the international customary law.
It seems that as long as geo-political tension remains so will the marine traffic will be effected. The question will be if acts will be made under due process of (traditional) law or if piracy acts will take over.
Yoav Harris, Adv. John Harris, Adv.
Harris& Co. Maritime Law Office.