The past week has seen several high-profile declarations by owners, especially tanker operators, that they intend to re-route their vessels via the Cape of Good Hope. To date, Odfjell, Svitzer, Maersk and Nobu Su have all indicated that they will not use the Gulf of Aden while the risk of pirate attack subsists. Yesterday, BIMCO issued a note advising owners of “vulnerable vessels” to avoid the Gulf of Aden. It seems this too was written with tankers in mind, although BIMCO’s advice was cast in general terms.  

However, BIMCO have also noted that an owner’s decision to divert round the Cape will often not be supported by the applicable War Risks clause. Other voices have pointed out that the risk of a successful hi-jacking is still statistically insignificant – less than 0.25%.  

None of this is to disparage the very real concern owners and crews must feel when facing a transit through the Gulf of Aden. When a decision is made to divert a vessel from a voyage through the Gulf, two legal questions arise: (i) who, as between the owners and charterers bears the costs of substitute passage; and (ii) whether owners are exposed to deviation claims by charterers (in circumstances where an owner’s P&I cover may also be impaired as a result of the deviation).  

The answer to these questions depends on which War Risks clause governs the charter. In this regard, tanker operators are particularly ill-served by their standard forms. Clause 35 of Shelltime 4, for example, (i) does not cover danger caused by piracy, and (ii) arguably applies only to ports and the approaches to ports rather than seaways/routes used for transit between ports (such as the Gulf of Aden).  

By contrast, owners who have contracted on Conwartime or Conwarvoy terms may be in a much better position.  

Under the Conwar clauses, the judgment which the Master or owners must reach, is that there is “likely to be” or “may be” danger if the vessel proceeds. They do not need to prove that actual danger exists at the time the decision is made or that the danger is “imminent”. The test requires that owners act as other reasonable owners would, faced with the same orders.  

Until recently, even under Conwartime, it has been difficult to say that a decision not to proceed via the Gulf of Aden could be made safely, in circumstances where there had been no public refusals by owners to use the route. As always, the first owner to refuse to enter the area was taking the biggest risk vis-à-vis his charterers. Now, for tanker owners who have chartered on Conwartime terms at least, there is a certain safety in numbers. Given Odfjell, Nobu Su and Maersk’s refusals, and BIMCO’s advice aimed principally at tankers yesterday, it seems to us that there may now be sufficient consensus amongst tanker operators to justify a conclusion that an exposure to piracy “may” occur, thereby triggering the 2nd limb of the Conwar test.  

The same may also be true for bulk or containership operators, who have chartered on Conwar terms, and can show that their vessel is vulnerable to attack – whether by reference to its speed when laden, its freeboard or other factors.  

By contrast, tanker owners who have not chartered on Conwar or similar terms may not have this contractual protection.  

There can be no hard and fast rule. A risk assessment needs to be carried out each time a vessel is faced with a transit through the Gulf.  

However, owners who are not covered by the Conwar regime may still be able legitimately to wait for convoy protection (which may, ultimately, be the only lasting solution to the problem, given the international community’s seeming reluctance to deal with the pirate problem at source).

Owners are responsible for safe navigation. The Master has the right to take such steps as are necessary to reduce the risk of pirate attack. In circumstances where there is an international effort to protect merchant shipping going through the Gulf of Aden with a convoy system, an owner should be entitled to take advantage of this – even though a lack of escort vessels is likely to lead to some delay. In fact, it might even be argued (by bill of lading holders for example) that a Master, who failed to maximise the prospects of a safe transit by his failure to avail himself of the protection offered by attending naval forces, thereby rendered the vessel unseaworthy.