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Why the Mercer Street attack should be classed as terrorism

Designating attacks to allow for compensation is important and politics should not get in the way of doing the right thing by crew or supernumeraries such as security guards killed in this way

G7 states are unanimous — the drone strike on the Liberia-flagged product tanker Mercer Street was a deliberate and targeted attack, and a clear violation of international law by Iran. But the UK has stopped short of classifying the attack as terrorism. Lawyer Stephen Askins argues that calling out cowardly attacks on ships and designating them for what they are would send a strong signal to those perpetrating them

THE tit-for-tat conflict being played at sea between Israel and Iran has been described as a war “without the lights on”.

Crew members, whose plight over the past 18 months of the coronavirus pandemic have been well documented, find themselves as the collateral damage of attacks against the vessels they serve on.

The most recent bring the drone attack on Mercer Street (IMO: 9539585) has been widely blamed on the Iran’s Revolutionary Guard, an organisation proscribed as a terrorist group by the US but not yet by the UK.

It is a significant escalation that exposes crew to an unacceptable risk and certainly not one they signed up to.

The Mercer Street attack is the latest in a series of attacks that have taken place during the past two years by both Iran and Israel, with many being undertaken by the Israeli special forces.

Iran continues to deny any involvement in any of the attacks, but the evidence assessed by US and UK investigators has left G7 states in no doubt — this was “a deliberate and targeted attack, and a clear violation of international law” and “all available evidence clearly points to Iran”.

As the British Security guard killed has been identified as ex British military from Fiji, one question that perhaps should be posed is whether the UK foreign secretary will designate such attacks on ships as terrorist attacks.

One immediate benefit of this would be that the attacks would be covered by the Victims of Overseas Terrorism Compensation Scheme.

The scheme is provided for by the Crime and Security Act 2010 and turns on whether the act falls under S.1 of the Terrorism Act 2000. Each attack will of course be assessed on its facts. More importantly, it would send a strong signal of support to beleaguered crew worldwide.

An act of terrorism is defined as an act of serious violence against a person or involves serious damage to property. It would normally be an act motivated by politics, religion, or ideology.

This definition explains why attacks by pirates are categorised only as criminal acts motivated as they are by money. It is unsurprising that the Israeli government has condemned the attack as an act of terrorism.

It is interesting that the UK have stopped short of that, saying that it was not clear if the crew were deliberately targeted.

However, that should not be relevant to the legal test of what constitutes terrorism. There may be a debate has to whether those controlling Iranian drones can direct the flight of any rocket or missile but the images of the bridge roof show there was at the very least serious damage to property. Firing a missile at a vessel at sea with reckless disregard to those who are on board which results in death must constitute serious violence against a person.

Designating attacks to allow for compensation may have more relevance to victims caught up in attacks on beaches of Tunisia or in shopping malls in Kenya. It could be argued that injured crew can fall back on their employment contracts and owners on their P&I insurance or more likely war risk insurers. But that misses the point.

The cost would be minimal but the message it would send to the crew would be immeasurable.

In any event, security guards are usually contracted under GUARDCON which includes a knock-for-knock regime which means an owner has no liability to the guard or his dependants in the event of death or injury even where there has been negligence on the part of the owner.

As always, the attacks on shipping by Israel and Iran have to be placed in the geo-political context of the decades long struggle in the region with the background of a proxy war in Yemen and at a time when the US, Israel and Iran have (or in the case of Iran will have) a new leader.

Perhaps the bigger picture is the attempt of the Joe Biden regime to bring Iran back into the fold.

But in recent months crew have died at the hands of pirates as well of coronavirus in circumstances where they find themselves too far away from emergency care. There may be an underlying political imperative here but that should not get in the way of doing the right thing by crew or supernumeraries, such as security guards, killed in this way.

Calling out cowardly attacks on ships and designating them for what they are would send a strong signal to those perpetrating them. In the meantime, we await to see what the UK’s response will be to the attack on Mercer Street, which left the Romanian captain and a British guard dead and the rest of the crew traumatised.

Stephen Askins is a partner at maritime solicitors Tatham & Co

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