“Roll on, thou deep and dark blue ocean—roll!” wrote Byron in a comradely salute to the last great romantic wilderness on the planet. “…Man marks the earth with ruin—his control/ Stops with the shore….” In 1818, he could hardly have foreseen that it would not be very long before man would mark the ocean, too, with ruin, poisoning whole seas with his industrial effluent, or fishing them out with vast synthetic nets deployed by immensely powerful hydraulic winches. Yet the sea is still wild: as global warming takes hold, shipwrecking storms are beginning to blow more fiercely, and with greater frequency, than they did in Byron’s time, and the reach of the law of the land over the anarchy of the sea is, if anything, even more tenuous now than it was then. Mankind has always had much to fear from the ungovernable sea, and never more so than in this period of international terrorism, when who knows what abominations may soon arrive on our shores from the lawless terrain of the world’s oceans.
The application of national law to events on the high seas was dealt with in a highly readable book by A.W. Brian Simpson, Cannibalism and the Common Law, published in 1984.* Simpson, now a professor of law at the University of Michigan, concentrated chiefly on the landmark case of Regina v. Dudley and Stephens (1884), which arose from the unhappy last voyage of the yacht Mignonette.
In mid-May 1884, Mignonette sailed from Southampton, England, bound for Sydney, Australia, with a crew of four professional seamen who were commissioned to deliver the boat to her new Australian owner. On July 5 she was wallowing in a violent storm in the South Atlantic when a poorly timed maneuver put her broadside-on to a huge breaking sea. The force of the wave broke away the bulwarks and a section of planking on the leeward side; as the yacht quickly sank, the crew scrambled into a cockleshell dinghy, taking with them basic navigational instruments and two cans of turnips as their only provisions. They had heaved a half-full water cask into the sea, hoping to pick it up later, but it disappeared from sight.
On July 9, they caught a passing turtle and ate it, bones and all. By July 21 there was talk of drawing lots to decide which of themselves should be killed for food, though it seems that no draw probably took place. On July 24, the captain, Tom Dudley, a devout Anglican churchgoer, took his penknife to the throat of the seventeen-year-old cabin boy, Richard Parker, severing the jugular vein and catching his blood in the ship’s chronometer case. On July 29, while the survivors were still dining on the remains of young Parker, they were spotted by a passing German ship, and taken back to England, where the captain and mate (the deckhand escaped prosecution because he was needed as a witness for the Crown) were put on trial for murder.
Legally speaking, a ship is much like a floating embassy, a detached chunk of the land whose flag it flies, so that seamen aboard a British ship are subject to the same laws that govern their brethren ashore. Mignonette was a registered British ship, and had the act of cannibalism taken place aboard the yacht, there would have been no question about whether an English court had jurisdiction in the matter. But, as the defense counsel for the crew argued, Richard Parker had been killed in the dinghy, not a registered ship, in international waters, so that no court, English or otherwise, could rightly try a case concerning an act committed in a wilderness without laws. This ingenious proposition was not well stated by the defense counsel, Arthur—soon to be Sir Arthur—Collins, QC, who bungled most of his best arguments in the trial. The judges made no sense of it at all, but in his book Brian Simpson gives that first line of defense more weight than it was credited with at the time.
The second line of defense (again far better put by Simpson than by counsel) was that the situation in which the men found themselves at sea was so extreme that the law of the land could hardly apply to it:
In desperate conditions, such as those confronting Dudley and Stephens [the mate aboard Mignonette], men are reduced by circumstances to a state in which it is incongruous to think of laws applying at all. They are in a state of nature, where there are no legal rights, duties, or crimes…. Laws exist to regulate social arrangements in normal conditions, not in wholly abnormal conditions when society breaks down. Arthur Collins toyed with this approach, but he never formulated the idea at all clearly. The judges seem to have been quite incapable of grasping it….
The befuddled judges in the courtroom were anxiously trying to counter popular opinion expressed in the dockside pubs of England, where there was little doubt that the trial was an outrage. The lore, as opposed to the law, of the sea was quite clear: so long as lots had been properly drawn beforehand, the crew of Mignonette had obeyed the rules and could not be guilty of a crime. Public sympathy was with the men and against the lawyers. The sea had its own code of justice, and the lubberly invasion of men in wigs and gowns was resented as an impertinent trespass on hallowed maritime tradition, in which “survival cannibalism” was an accepted social practice.
The newspapers of the time sided with the judges: the idea that the sea was a realm beyond law, at a time when the sea afforded the arterial highway system of the British Empire, was a dangerous affront to the order of things. As the Spectator editorialized,
The conviction that such murders are justified by the law of self-defence, and are not, therefore, illegal, is so general amongst seafaring men, and has so infected naval literature, that a solemn judgement to the contrary, pronounced by more than one judge, has become indispensable.
The jury found the men guilty of murder as charged, but pleaded for mercy on their behalf. The judge then sentenced them to death—though he did not put on the traditional black cap while doing so. The sentence was almost immediately commuted to one of six months’ imprisonment without hard labor. So society was protected from the wild customs of the sea by the most solemn pronouncement in the English lawbook (“You [will] be taken to the prison where you came, and that on a day appointed for the purpose of your execution you be there hanged by the neck until you be dead”), while the sea-lawyers in the pubs were mollified by the shortness of the jail time actually served for the offense. Captain Tom Dudley earned the ultimate accolade of Victorian celebrity: Madame Tussaud’s found space for his wax effigy.
Simpson’s book, which ranges far and wide in its discussion of gory tales of men in dire straits at sea, memorably documents the fraying of law as it reaches out into international waters. The cherished principle of “the freedom of the high seas” is barely separable from the troubling fact that the ocean is a licentious wilderness where people have always been able to get away with doing things they could not do on land.
Fresh from reporting on chaos at the site of the Twin Towers in American Ground, William Langewiesche has taken on the rampant legal chaos of the sea in the twenty-first century. The Outlaw Sea is in part a sequence of lucid and often thrilling stories about recent founderings, groundings, and acts of piracy. It is also an unsettling appraisal of the laws, treaties, conventions, traditions, and organizations which, meant to regulate the sea, succeed largely in creating myriad loopholes for ingenious rogues to exploit. According to Langewiesche, the watery seven tenths of the globe are littered with some 143,000 ships: most sail under “flags of convenience,” registered in such countries as the island state of Tuvalu in the Pacific; many are dangerous rustbuckets, nearly all are undermanned, with crews on third-world wages. The owners of these vessels, hidden behind multiple fronts and shell companies, are hard—and sometimes impossible—to trace. Though there now exists an International Law of the Sea (still not ratified by the US) and its enforcing body, the International Maritime Organization, the best efforts to police the sea have so far proved alarmingly ineffective. Meanwhile, as Langewiesche dryly notes, Osama bin Laden and his associates “are in the shipping business,” with a considerable fleet of elderly freighters. The whereabouts and identities of these much-sought-after ships are unknown: in the way of the sea, their present names, and the flags they now sail under, are buried so deep in an ocean of misleading paperwork that they are beyond discovery.
The flag of convenience—that flimsiest of legal fictions—bears much of the blame for the lawless state of the sea. Few ships engaged in international trade have ever come within sight of the port of registration displayed on their sterns. Vessels owned and operated by entities within the US and the European Union go about the world as detached chunks of Liberia or Belize, subject to the tolerant provisions of Liberian or Belizian law on manning, pay, maintenance, and safety. Owners of fishing boats have lately taken to reflagging in order to evade onerous conservation measures enacted by their actual home countries. It is a marvelous, Alice in Wonderland– like system, and irresistible to prudently cost-conscious shipowners and scheming lawbreakers alike.
Langewiesche says that the practice
began in the early days of World War II as an American invention sanctioned by the United States government to circumvent its own neutrality laws. The idea was to allow American-owned ships to be re-flagged as Panamian and used to deliver materials to Britain without concern that their action (or loss) would drag the United States unintentionally into war.
My understanding is that reflagging for base commercial reasons began well before World War II, and seamen’s unions in the US fought against it in the 1930s. Interestingly, Conrad’s Typhoon (1902) begins with the ominous reflagging of the steamship the Nan-Shan, whose colonial British owners, Messrs. Sigg and Son, “judged it expedient to transfer her to the Siamese flag.” Mr. Jukes, the first mate, is affronted by the new flag, which tellingly sports a white elephant on a red ground, though the dim and literal-minded Captain MacWhirr—Conrad’s model of the new breed of machine-age captains—sees nothing wrong with it. Determined to keep to schedule and save Messrs. Sigg the cost of the extra coal required to steam around the edge of the storm, MacWhirr insists on driving his ship straight through the center of the typhoon. It’s part of Conrad’s purpose that we associate the multiple misfortunes that befall the Nan-Shan, and her miserable cargo of two hundred Chinese coolies, with the “queer flag” under which she sails, beyond the reach and protection of English law. At the end of the story, Jukes writes a letter to a friend, complaining that the reflagging had left the ship in a situation of precarious legal solitude:
It is an infernally lonely state for a ship to be going about the China seas with no proper consul, not even a gunboat of her own anywhere, nor a body to go to in case of some trouble.
As Conrad clearly saw more than a hundred years ago, reflagging turns ships into lawless orphans—unruly ragamuffins of the sea.
At least there was (in the wishful phrase of the International Law of the Sea) a genuine link between the Nan-Shan and her flag state of Siam. No such link usually exists now. Langewiesche nicely outlines the blithe comedy of convenience flagging:
Panama is the largest maritime nation on earth, followed by bloody Liberia, which hardly exists. No coastline is required either. There are ships that hail from La Paz, in landlocked Bolivia. There are ships that hail from the Mongolian desert. Moreover, the registries themselves are rarely based in the countries whose names they carry: Panama is considered to be an old-fashioned “flag” because its consulates handle the paperwork and collect the registration fees, but “Liberia” is run by a company in Virginia, “Cambodia” by another in South Korea, and the proud and independent “Bahamas” by a group in the City of London.
During the course of its career, a ship is likely to run through a string of names and flag states, changing its identity at the owner’s whim, quite conceivably during the course of a single voyage, so that the freighter Jane might leave Baltimore harbor registered in Tuvalu and arrive in Marseilles as the Emma of the Cayman Islands. One story that regularly makes the rounds of the docks is of the ship (locally owned, and you’re supposed to have heard of it) that sailed away a few months ago and was reported lost at sea; in fact, as the storyteller happens to know, it was in a mid-ocean calm when the crew brought out the paint pots and the new flag. The insurance money added up to many millions. The ship is sailing under a new alias and nationality. True or not, the story isn’t half as implausible as it ought to be.
If the identity of a ship is potentially fluid in the extreme, the identity of its owner is hardly less so. Langewiesche cites the case of the Erika, an aging tanker, registered in Malta, that broke in two off the Brittany coast while it was transporting 22,000 tons of oil from Dunkirk to Livorno in Italy, coating miles of French beaches in black sludge. The captain claimed “that he himself had no idea who the owners were”; his only dealings had been with a management company in Ravenna, Panship Management & Services:
Panship worked for the ship’s registered owner, Tevere Shipping of Valletta, Malta, which in turn was held by two other companies, Agosta Investments and Financiers Shipping, both of 80 Broad Street, Monrovia, Liberia. Somehow in the constellation of names behind this single ship there appeared to be still other companies—in Switzerland, the Bahamas, Panama, and England. There were various banks too, including one in Scotland and a Swiss branch of France’s Credit Agricole. After a month of trying to follow these connections, the official French inquiry admitted defeat.
Eventually the shipping newspaper Lloyd’s List traced ownership of the Erika to a cheerful Italian named Giuseppe Savarese who professed to be “bemused” by the hue and cry, and boasted of the excellent condition of the ship at the time she broke up at sea. (A month later, in January 2000, Savarese was in trouble again with another badly corroded vessel, the Maltese-registered Maria S., which was detained in Sicily. By August 2000, when she was impounded in Amsterdam, the Maria S. had become the Mauritian-owned, Bolivian-registered Sandrien.)
Trying to impose order on this world is like tidying spilled mercury. As Langewiesche amply illustrates, mandatory inspections of seaworthiness are commonly passed with honors by ships that should properly be classified as hazardous waste. After September 11 the Bush administration made the US Coast Guard a branch of the Department of Homeland Security, and since then American efforts to regulate shipping bound for US ports have taken on an air of panicked urgency. So far, though, these efforts have produced little more than piles of new forms for captains to fill in, along with airy assurances that all will soon be well:
There is unembarrassed talk in Washington of a future under control, in which sailors will undergo meaningful background checks and will be supplied with unforgeable, biometrically verifiable IDs by honest, appropriately equipped, and cooperative governments. Panama, for instance, will vouch for the integrity of, say, an Indonesian deckhand working on a ship operated by a Cayman Island company on behalf of an anonymous Greek. This is a vision so disconnected from reality that it might raise questions about the sanity of the United States.
In Rotterdam, Langewiesche spoke to a Dutch maritime official who had watched the recently introduced American system of preinspection of containers before they are craned aboard:
“Look, if you want to send a bomb through, it’s so simple! The chances of it being filtered out are almost nil!” He was not being critical so much as flatly descriptive. As a believer in good government, but long exposed to the chaos of the ocean, he seemed to have learned the hard lesson that government tools might simply not apply.
Most readers of Langewiesche’s book will come away with vivid memories of particular disasters at sea: the breaking up of the Maltese-registered Kristal off the Atlantic coast of Spain in 2001; the boarding by pirates of the Japanese-registered Alondra Rainbow in the Malacca Straits in 1999, and the subsequent reappearance of that ship as the Belize-flagged Mega Rama off the coast of India a few weeks later; and, most spectacularly, the foundering of the huge car ferry Estonia in the Baltic in 1994 with a loss of at least 852 lives. A shipwreck—or an act of piracy—is a complex sequence of events, requiring the author who describes it to be everywhere at once, as well as to be in confident possession of arcane technical knowledge about ship design and construction, navigation and shiphandling, and the effects of wind on water in heavy weather. In addition, the author needs to have a novelist’s ability to sketch the responses of individual characters to situations of extreme stress.
The literature of the sea is filled with examples of writers who have failed to measure up to these exacting demands, and it’s a pleasure to report that Langewiesche’s book satisfies on every count. He has the enviable ability to distill from an intimidating mass of information, derived from official inquiries and interviews with survivors, narratives of extraordinary clarity with-out a trace of jargon, and laced with detached wit. He appears to be equally at home in the wheelhouse of a violently pitching ship and in the mazy outer reaches of maritime law.
His account of the sinking of the Estonia, and of the international inquiry that followed, is a magnificently succinct piece of bravura reporting. One might compare it to Walter Lord’s excellent book on the Titanic, A Night to Remember (1955), but Langewiesche is a more accomplished prose stylist than Lord, and his grasp of technical detail is surer. He is also a cunning literary architect: even as we’re engrossed in the page-turning drama of the loss of a great ship in a storm, we are never allowed to lose sight of the fact that the drama is just one more strand of a larger argument about the failure of the land to comprehend, let alone control, the chaotic nature of the sea.
The Estonia (formerly the Viking Sally, Silja Star, and Wasa King), built in Germany, registered both in Tallinn, the Estonian capital, and in Cyprus, and owned jointly by a company fronting for the Estonian state and a Swedish shipping line, went down off the archipelagic coast of southwest Finland while en route from Tallinn to Stockholm. The governments of Sweden, Finland, and Estonia immediately set up a Joint Accident Investigation Commission to establish the cause of the disaster; not, at first sight, a very difficult task, since it soon became clear that the hinged bow visor—the portion of the bow that swings upward to allow vehicles to drive on or off—had sheared off, allowing the sea unhindered access to the car decks. In the event, the commission, with its panels of experts from all three nations, sat for three long and inconclusive years, listening to lawyers telling rival stories.
Among the causes advanced were: that the bow visor had been badly designed by the German shipbuilder; that it had been poorly maintained by the Estonians, who had allowed its rubber seal to rot, and thereby destroyed the integrity of the bow structure; that the Soviet-trained Estonian captain could not tell port from starboard, and had driven his ship with reckless disregard for sea and weather and with callous lack of concern for his passengers; that negligent safety inspectors (Estonians again) were to blame; that a bomb had blown the bow visor out of the ship, and that another had put a hole below the waterline on her starboard side. A German journalist and filmmaker, Jutta Rabe, had the most elaborate explanation. In Langewiesche’s words:
Rogue elements in Russia had sold a secret weapon to the Pentagon and were getting it to the United States by smuggling it to Stockholm in a truck on the ferry. A Russian scientist with a briefcase full of sensitive documents was along for the ride. To keep the deal from going through, former KGB agents boarded the ship, and shot the scientist, the captain, and a sailor on the car deck. Then they placed charges against the bow door locks and the hull, detonated them, and escaped in a lifeboat. Afterward, the Swedes, Finns, and Estonians caved in to an American-led cover-up so intense that it included the need to “disappear” the ship’s relief captain, who had survived but somehow knew too much.
Ms. Rabe, who has made a string of short documentaries and a full-length feature film (Baltic Storm) about the Estonia, was matched in her obsessive zealotry by Peter Holtappels, the lawyer representing the shipbuilders, whose splendidly detailed account of the sinking exonerated his clients from the least scintilla of blame. The Holtappels story also allowed for the possibility of a bomb.
So the Estonia sank for the second time, in a sea of paper. The Joint Accident Investigation Commission found out many things but was unable to reconcile them into a coherent explanation of why the tragedy had happened. It made its recommendations, few of which would ever be acted upon. What mainly emerged from its proceedings was, as usual, the shady and irregular character of the sea and everything that happens there.
Langewiesche repeatedly touches on but does not discuss in any great detail the issue of maritime terrorism. Plausible fears of a seaborne dirty bomb, dispersing a toxic cloud of ricin or cesium-137 across a city, are rapidly changing the culture of American ports. Seattle, where I live, is a prime example.
Before September 11, Seattle, squatting possessively on its long and placid fjord, looked to the sea for good news: for immense hauls of Pacific salmon, for Klondike miners (fools easily parted from their money), for all the benefits of trade with Asia. The city lay innocently open to the sea, seeing in every next container ship, as it rounded West Point and made the turn into Elliott Bay, the prospect of more money in Seattle’s coffers.
That is no longer so. The container terminal on Harbor Island, once the place where parents took their children for their first driving lessons on its wide and empty spaces, has become a for-tress of new concrete walls, new razor wire, new chain-link fencing. Armed Coast Guard vessels patrol Elliott Bay. Each arriving ship is scrutinized as a potential bearer of very bad news.
Seattle is a target—at least the Department of Homeland Security believes it to be so. In the first round of federal grants to “high risk, high density urban areas,” Seattle was one of seven cities singled out for largesse (the others were New York, Chicago, Washington, D.C., Houston, Los Angeles, and San Francisco). Last May, Homeland Security, the Justice Department, the FBI, and several other agencies mounted a dress rehearsal for terrorist catastrophe codenamed TOPOFF 2 and designed to test the preparedness of the emergency services. Chicago and Seattle were selected for the exercise. In Chicago, the attack came from the air, with a crop sprayer dropping the germs of pneumonic plague over the city; in Seattle it came from the sea, as a dirty bomb hidden in a container blew up on Harbor Island. Several city blocks were cordoned off and littered with broken glass, overturned buses, and smoking wreckage to simulate the effects of the blast. The victims were played by actors and volunteers: the “dead” were carted off on gurneys to the morgue, while “survivors” were taken to Harborview Hospital to be decontaminated. The two-city exercise (in which much went wrong) was monitored via satellite in Washington, D.C.
Seattle offers a great temptation to terrorists. Its container terminal is more snugly integrated with its downtown than in any other port in the United States. A good pitcher, standing on the docks, could hit Safeco Stadium, where the Seattle Mariners have taken to losing on a grand scale this year. The banking and insurance towers of the business district are comfortably within a one-mile radius of the port. It’s no wonder that the city has lately broken out in a rash of anxious surveillance devices, from CCTV cameras to the nondescript gray boxes with funnels that measure pathogens in the air.
More than most places, Seattle has reason to be aware of the lawlessness of the sea. In the course of sixteen days around the turn of the millennium, the Immigration and Naturalization Service, acting on tip-offs, raided four ships arriving at Harbor Island from Hong Kong, and found a total of sixty illegal Chinese immigrants hidden in containers. It wasn’t clear who had alerted the INS and why (perhaps a gang war on the Chinese mainland had led to anonymous phone calls to the American authorities); but for just a few weeks a window was opened on a major smuggling route. The would-be immigrants were paying (or owing) around $40,000 for the trip, and the intercepted containers must have represented only a tiny fraction of what was evidently a huge and generally successful trade. As the deputy director of the INS told The Seattle Times in January 2000:
Containers are deceptively difficult. They are a problem…. Containers bring a flow of legitimate business, and criminals do learn to take advantage of them.
Even now, it is said that only 2 percent of containers have their contents inspected before they are shipped, and that is probably an optimistic estimate. A more thorough and time-consuming system of inspection would threaten to bring international trade to a standstill, and would in any case be unlikely to deter a terrorist bent on shipping, say, two flat sheets of the plastic explosive Semtex with a radiological or biological payload. A single ship can carry up to 4,000 containers, while the average container has a capacity of 2,720 cubic feet—a vast space in which to secrete an object as compact as a dirty bomb would probably be. The port cities of the United States have good reason to feel uneasy.
On July 1, the federal government’s long-trumpeted Operation Safe Commerce came into force, and of the 265 ships arriving from abroad in US ports that day, six foreign-flagged vessels were denied entry by the Coast Guard because their paperwork was not in order. Tom Ridge has described the new measures as “creating a culture of security in ports around the world,” but their real impact is more frankly characterized by William Langewiesche:
The only sure effect of the new regulations is that legitimate operators, who do not pose a threat, will comply. But it is likely that terrorists will comply as well, and that, like many shipowners today, they will evade detection not by ducking procedures and regulations, but by using them to hide. This would be very easy to do. Paradoxically, when a ship approaching US shores does not comply, it will be because it is a bumbler, and therefore almost by definition innocent.
Asymmetric or “fourth-generation” warfare pits a nation-state against an enemy who is everywhere and nowhere; who has no flag, no uniformed army, no capital city, no ascertainable geography. For such an enemy, the sea is the friendliest place on earth, the natural habitat of the stateless terrorist. Its legal ambiguities suit him perfectly; it offers secrecy, anonymity, and the ability to change identity at will; it is one enormous hiding place. The lax internationalism of the ocean might have been expressly designed to accommodate the kind of loose, far-flung, fugitive, paranational organization that may now confront us. The rusty cargo ship is a potential weapon that could deliver death on a considerably greater scale than September 11—and the chances of a ship reaching the heart of its chosen target city without being detected are so high that they hardly bear thinking about.
As Langewiesche makes frighteningly clear, there is very little that governments can do to regulate nefarious activities on the high seas. (Coastal waters are of course another matter.) The tempting first step would be a concerted international effort to end the practice of reflagging—something that might take, at best, a generation to achieve, and could well prove in the end to have been hardly worth doing, since all it would accomplish in practice would be to establish genuine “links” between ships and their flag states (and rogue states have flags too). The lesson of Langewiesche’s book is that the most rigid law turns soggy and pliable as soon as it extends beyond the twelve-mile territorial limit. And no law of the sea, ratified by however many nations, could keep al-Qaeda or its kindred spirits out of the shipping business.
August 12, 2004
A.W. Brian Simpson, Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise (University of Chicago Press, 1984), p. 353. ↩