Ian Short and Sam Jones of CJC Law have advised that, with the maritime industry continually improving anti-narcotics operations around the world, traffickers were finding increasingly novel and ingenious ways of smuggling drugs. The writers explored the indirect legal and commercial consequences to shipowners and charterers arising out of delays and losses caused.
The point of a ship’s sea chest in an underwater shell and fitted with a portable strainer plate is to provide a water intake reservoir from which the vessel’s piping system can draw water. However, in recent cases, space had also been found for other uses. By cutting through the plate, narcotics can be stored inside for an entire voyage.
Short and Jones said that this was just one of the novel ways traffickers continued to find to conceal drugs on board ships, in this case at a location on the hull and below the waterline that can be exploited without the knowledge or cooperation of the crew.
They said that divers could covertly cut open the area around the sea chest at the points of departure and destination without needing to rely on or pay off dock workers and crew, while also rendering conventional board and search techniques redundant.
However, where narcotics are discovered on a vessel, it would most likely be detained to allow for an extensive forensic investigation to take place. Fines could be imposed and, if the crew were deemed to be involved, arrests and criminal charges could be made, with criminal sanctions to follow.
The criminal aspects of the drug smuggling attempt would be subject to the laws and jurisdiction of the country in which the drugs were discovered, where the vessel and the drugs were located and, possibly, where the drugs were first concealed on board.
For the owner, the resulting delays could lead to periods of loss of hire and could give rise to claims from cargo interests, especially where the cargo was perishable. Subsequent fixtures might also be missed if the delays prevented the vessel from meeting its next laycan.
Short and Jones said that resolving these types of claims between vessel interests (owners, charterers, sub-charterers etc) could become particularly contentious where there was an absence of specific wording in any charterparty.
Determination of liability
Determination of liability between the shipowners and charterers was critical. Much would turn on the specific wording agreed between the parties in their contracts, most usually a charterparty.
One issue that could arise was the fact that many of the novel methods of smuggling narcotics were not envisaged when the relevant clauses were drafted.
Under a conventional BIMCO ‘Boxtime’ charterparty, liability would be allocated according to the nature of the smuggling event. If the Master, Officers and/or crew are complicit, then the Owners accept liability (Cl.5(f)). Where the smuggling is found to have taken place as part of the goods and/or in containers on board, liability will be allocated to the Charterers.
The writers noted that, useful as these positions were, and which were not uncommon in charterparties generally, they do not account for narcotics trafficking in the manner such as that discussed above, where the Master, Officers and/or crew were not complicit and the narcotics were not smuggled as part of the goods and/or in containers on board.
Where the BIMCO US Anti-Drug Abuse Act 1986 Clause for Time Charter Parties 2013 has been incorporated, Charterers will be generally liable for the costs and delays caused by narcotics concealed on board the vessel.
The issue is covered in considerably greater depth at: