353
1 INTRODUCTION
The global economy is based on the movement and
transport of goods by sea, air, railway stations, and
highways. The constant flow of materials and
products is often not taken into consideration. The
domestic and international construction and the trade
of goods through their transportation are relied upon
and facilitated by the shipping industry. At the same
time, it provides for the delivery of the products
directly to the consumer. It is a fact that with the
dominion of the shipping industry in the transport
market, various methods of transportation of goods
have emerged, some of which allow for the
transportation of illegal goods along with commercial
goods [1].
Over the years, the trade in illegal goods, apart
from those considered generally unlawful goods, has
been included in legal trade with some specifications.
The phrase "legal trade" refers explicitly to cargoes
and, more generally, goods transported by the laws of
the country concerned and with the international
regulations related to the transport of cargoes. A
typical example of the legal transport of cargoes
considered illegal is the transportation of drugs for
pharmaceutical reasons. Legalising drug shipments
Legal Assessment of the Present Status and Effects of
I
llicit Trade of Drug Substances in Maritime Transport
M. Boviatsis & G. Vlachos
University of
Piraeus, Athens, Greece
ABSTRACT: The aim of this research is to assess the present status and effects of the illicit trade of drug
substances in maritime transport.
Initially, the concept of lawful cargo is explored, followed by the analysis of
illegal ca
rgo. Finally, it is concluded that the cargo's legality is subject to each jurisdiction's laws and regulations
along with the fulfilment of required processes, such as paying the required taxes, maintaining proper licenses,
or keeping the necessary documentation.
The analysis continues with the assessment of the effects of drug substances when found on board a ship. Drug
substances may be deemed legal under certain circumstances but, on most occasions, are the common cargo for
illicit trafficking. The outcome of locating such unlawful transportation is the vessel's arrest in most cases. The
ship-owning company is deemed liable unless proven innocent or due diligence while operating the ship. The
crew is also liable and faces both civil and criminal charges.
The arrest leads to the ship's layoff under the supervision of competent authorities until the vessel is released by
court order after the proof of the innocence of the shipping company and crew, the insurance coverage of claims
or the ship's acquisition by a new owner.
The methodology utilised for this research is based on the legal doctrine assessing legislation and relevant case
law, such as the case of Atlasnavios, as the primary source of data and exploring the legal intricacies and gaps of
the issue in question.
http://www.transnav.eu
the
International Journal
on Marine Navigation
and Safety of Sea Transportation
Volume 16
Number 2
June 2022
DOI: 10.12716/1001.16.02.18
354
depends on the means of use and the documents
necessary to be on board while transporting them [2].
It is understood that over the last decade, there has
been a rapid increase in the trafficking of illegal
goods, which vexes the international community and
the port authorities, the world governments of the
countries and, at the same time, the police. In the
global shipping industry, there is a robust
phenomenon of the transfer of illegal trade, which is
happening. There is a risk of the necessary tax duties
being imposed, respectively, because most
jurisdictions prohibit the trade, in addition to a
license, of many types of drugs through drug-ban
laws [3]. More specifically, the illegal drug trade
belongs to the international black market, which
includes the cultivation of substances, distribution,
and the prohibited sales of drug substances. Their use
and the ways of trafficking are constantly changing
because complex organisation and techniques are
necessary due to their illegal use. Every year the
citizens of the European Union waste billions of euros
buying drugs. It is estimated by the departments of
the United Nations offices, specialised in the
disappearance of the drug trade, that in the year 2019,
the amount of the international drug trafficking
concerns approached three hundred and twenty-one
billion U.S. dollars with a global GDP of thirty-six
trillion dollars that year. In addition, it is estimated
that 6% of world trade belongs to the transport of
illegal cargoes [4].
It is a fact that the transport of illegal shipments of
drugs has increased rapidly in recent years with the
risk that the authorities will not be able to control it
because a large percentage of people use them.
Therefore, inspections and port state controls are
carried out more often on every type of ship to detect
the legality of cargo. However, if the competent
authorities find illegal cargo, the ship and the crew
will be detained until judicial intervention clarifies the
situation. Then, when the ship is released from the
competent authorities, there is the possibility that the
ship will no longer be used [5].
2 MATERIALS AND METHODS
This paper aims to evaluate the concept of lawful
trade, specifically the case of the transport of legal
drugs by sea. In addition, the processes of a ship's
arrest and the point where the illegal cargo is found
on board the vessel are assessed. The methodology
utilised is based on the legal doctrine, the
predominant method in most legal research, aiming to
provide a systematic presentation of the legal
framework and expose every legal issue and legal
gaps between the present legal framework and
shipping practice [6].
This research method is considered qualitative and
is carried out by evaluating current and past case laws
and regulations. Essentially, qualitative research is
used to a greater extent in the social sciences and aims
to explore and interpret in-depth social phenomena. It
is considered suitable for studies based on analysing a
specific subject while exploring the etiology of the
phenomenon's existence [7].
Moreover, a key objective in qualitative research
such as this is a holistic understanding of the issue.
Finally, the present research is carried out to provide
valuable and reflective solutions to the stated legal
issues and justify why the proposed solutions are
considered more sequential [8].
3 EVALUATION OF THE CONCEPT OF LAWFUL
CARGO
In the era of globalisation, transport is understood to
have been an important sector for developing
globalisation. In the economic and commercial
spheres, transportation is often referred to as any
movement of passengers and cargo from one location
to another. Transportation is therefore considered a
commercial operation with an economic benefit.
Lawful trade is the execution of transport, following
the country's regulations where the trade is
conducted, the cargo it carries, and the commercial
alignment that justifies the expectation that they will
be respected in relation to the transactions it carries
out [9].
Legal trade of cargoes or passengers is considered
the trade that operates and complies with the laws
imposed by the respective state to which it belongs
and by the Unified Commercial Code. In addition,
trade must follow international rules regarding the
conditions and regulations they impose on cargoes.
International trade law contains relevant regulations
and terms related to handling trade between countries
worldwide [10]. In addition, international trade law
refers to the body of rules and regulations governing
the relations of states to regulate their domestic
markets with regard to international trade. The
General Agreement on Tariffs and Trade (GATT), a
multilateral treaty on the trade of goods, contains
several rules on international trade. Trade regulations
are laws issued by the state concerned to ensure a free
and competitive economy. The U.S. Constitution
approves trade clauses to give Congress exclusive
powers over trade activities between the country and
foreign countries. These regulations promote free
trade and fair competition and prohibit business
practices related to fair Competition [11].
The essential rules in any system, specifically in
the transport sector, define, distribute, and enforce
property rights, regulations and contracts that define
permissible and unauthorised forms of trade and
competition (standards, contract rules, fair trades, etc.)
[12]. Increasingly, consumer and commercial
operators such as the E.U. are forcing the disclosure of
more and more information about the cargo carried
by ships. In particular, these efforts revolve around
packaging, labelling and information. In addition,
there are bodies responsible for cargo inspection on a
vessel and carried out frequently to ensure the legality
of the shipment. [13].
355
4 UNLAWFUL TRADE AND THE CASE OF
ILLEGAL CARGO TRANSPORTS
The transport or handling of cargoes regarded as
medical products is essential in integrating supply
chain management. Nowadays, the network
concerning the transportation of medical products or
products requiring special conditions has become
quite complex, and the controls carried out are
numerous. Drugs are included in the loads of cargo
that require special requirements. It is a fact that there
are goods considered illegal in most countries
worldwide but also have a different use under certain
conditions deemed legal, suggesting that they can be
transported legally. A case such as this is considered
to be drugs which, even though their use and trade
are illegal and prosecuted, their pharmaceutical use is
deemed legal. Thus, the cargo owners must be taxed
and controlled by the competent authorities for their
legal transfer or use. In addition, drugs can be used as
a therapeutic for any disease against the psychotic.
[10]
Essentially, certain drugs help fight either
psychotic diseases or neurological diseases. Also,
drugs involving therapeutic use are produced on
request from pharmacies or hospitals to distribute
these products to their customers or for
pharmaceutical research. In addition, the drug
shipments require special conditions to be transferred.
Therefore, the distributor must maintain a constant
supply chain of the consignments concerned based on
the requirements established by each country
involved. In addition, during their transportation,
they need to be in safe, dedicated containers inside the
ship because these cargoes are regarded as dangerous
goods. In addition, when transported by ship, it is
necessary to move them in containers that do not
negatively affect the quality of the cargo and provide
the essential protection from any external influence,
including contamination [14, 15].
Complying with the storage conditions indicated
on each consignment containing drugs is necessary. In
particular, the distributor must ensure the equipment
and conditions the cargoes will have during transport
and be available to allow for control and inspections
whenever needed. In addition, storage areas when the
goods are on board a ship must be separated and
accessible only by authorised personnel. The legality
of a cargo that includes drugs usually depends on
how it is used and on the particular papers held on-
board the ship during its transportation. Based on the
governments of each country and the laws issued by
the competent authorities regarding the transport of
legal drugs, it is necessary that during the transport of
the cargo, the name and address of the sender, the
quantity and quality of the shipments involved in the
transit of the shipment of drugs should be stated [16].
Customs custody of drugs in transit is only
permissible at specific customs offices of the country
concerned that the government has decided. In
addition, they are always kept in a particular area due
to the danger of the cargo. Of course, it is necessary to
present a certificate that must have been issued by the
competent authorities of the country concerned.
According to the European Commission, the parallel
import and export of drugs is a legal, commercial
form in the free market. However, Member States may
sometimes restrict parallel trade where the measures
are justified, reasonable and proportionate to
safeguard a legitimate public interest. For example,
ensure an adequate and continuous supply of
medicinal products to the population [17].
5 THE UNLAWFUL TRADE OF DRUG
SUBSTANCES
Despite being an overwhelming success story, the
"War on Drugs" conducted by governments over the
last 40 years is everlasting. The drug trade and drug
abuse are among the most significant social threats.
Drug trafficking is a vast criminal enterprise with
huge sums of money and a complex international
network of often violent and highly organised cartels.
Therefore, the shipping industry has a shared
collective responsibility to assist in the fight against
this illegal traffic [18]. Drug abuse is also a severe
threat to ships' crews, exacerbated by the direct link
between intravenous drug use and the associated
health risks. In addition to the apparent impact of
illegal drug use on the health of seafarers, it affects
suitability for work and endangers the ship's safety. It
also exposes crews to the broader implications of the
association with serious criminal activity, a danger in
those parts of the world where the strict rule of law
cannot be taken into account or when the death
penalty for drug trafficking is still in force [19].
Cooperation with customs authorities is essential
to combat drug trafficking. To this end, the
International Chamber of Shipping (ICS) and the
World Customs Organisation (WCO) signed a
Memorandum of Understanding 30 years ago on the
principles of this cooperation. The International
Conference on Drug Abuse and Illicit Trafficking,
held under the auspices of the U.N. in 1987,
welcomed the adoption of such agreements and called
on organisations such as the ICS to prepare "standards
or codes of conduct ... with a view to curbing drug
trafficking". As a result, the guidelines describing how
shipping companies and customs authorities can
cooperate were developed in cooperation with the
WCO. The current version of these Guidelines
complements these essential tips with more practical
information, updated to reflect recent developments
[20].
In preparing the current and previous versions of
these Directives, the ICS sought advice from various
sources. Particular recognition is given to the U.N.
Office on Drugs and Crime in Vienna, the WTO and
customs authorities in the United Kingdom, the
United States and Hong Kong, China, the United
States and Hong Kong, China. The United States and
Hong Kong, China. Attention is drawn to countries
where the possession of cannabis for personal use has
been legalised. This may conflict with the laws of the
flag State of the ship, which prohibits the ship's
possession on board; if so, the law of the flag State
prevails [21].
356
6 THE EFFECTS OF UNLAWFUL TRADE ON A
SHIP
Unfair commercial practices can be defined as any
business practice or act that is misleading or
fraudulent. In addition, these practices may include
actions considered illegal, such as those that violate
the laws of the country concerned. Therefore, an
unfair trading practice is sometimes referred to as
"misleading commercial practices" or "unfair business
practices". The statute of unfair trading practices of
most states was initially introduced between the 1960s
and 1970s. Since then, many states have adopted laws
to prevent unfair trading practices. More specifically,
the increase in the transfer of illegal trade is taking
place because those responsible are trying to avoid the
imposition of the necessary tax fees, or in most
countries, the transport of drugs is still considered
illegal and is essentially not subject to the
jurisprudence of the country concerned or in
accordance with international regulations on transport
by sea. In addition, of course, cargo holding the
appropriate documents for specific uses is excluded
[16, 17].
Illicit drug trafficking is still considered a global
industry, closely related to and assisted by maritime
trade. It is considered forbidden in most jurisdictions
because it is deemed dangerous and endangers
businesses. Its transport is carried out by sea with
cargo ships specialising in transporting large volumes
of cargoes, such as container ships, making hiding
such substances easy. Of course, they are also
transported by other means, but this is very difficult
because the control of air transport is more stringent.
In addition, the concealment of drugs on-board is
either in the cargo with some other legal good or in a
formed hideout of the goods [19].
6.1 Ship's capture
The issue of ship capture is of the utmost importance
for the international maritime and commercial
community. However, it is also an area that has
traditionally been the subject of different approaches
from different legal systems. For example, maritime
law legislation allows arrest for any claim against the
ship's owner, even if it was not maritime. In contrast,
under common law, a vessel could only be arrested
for a minimal number of maritime claims [22].
Capturing a ship is based on civil law and
essentially refers to the possibility of apprehending
either a ship or a similar sea vessel with the
appropriate court order. The procedure follows a
standard process: initially, immobilisation and later,
the vessel is detained by the competent state authority
pending the determination of the vessel's maritime
claim. While the ship is still immobilised, any claim
can be resolved by communication by the owner to
the state ports concerned by the incident or by the flag
state flying the ship. Nevertheless, in the case of
illegal drug trafficking, this is rarely the case. Usually,
the ship is laid off after her immobilisation, with the
only exception of having a small quantity of illicit
cargo. Thus the shipowner could claim that the
liability falls to certain crew members without the
knowledge of the shipping company [23].
In 77 countries, the seizure of ships is based on the
national laws implementing the 1952 Brussels
Convention on the Capture of Sea Ships ('the 1952
Convention'), while in 10 other countries, the seizure
of ships is based on the 1999 International Convention
on the Seizure of Ships 1999 ('the 1999 Convention').
In particular, the capture process prevents ships from
leaving port for any reason and is under the courts of
competent judicial authority. Of course, it differs from
the detention of a vessel under the MLC by the port
State control authorities since this is not a procedure
under the supervision of a court [24].
6.2 Ship Arrest Process
In recent years there has been an increase in ship
capture cases for various reasons, but more so for
transporting illegal cargo. This may be combined with
the general rise in inspections at a port where ships
are loading their merchandise. The authorities can
arrest the vessel until it is established that the owner
bears no responsibility and that the illegal
merchandise was loaded on board before or during
the voyage, possibly by the crew or other factors.
Thus, the competent authorities have the right to stop
its operation until the company's due diligence is
proven [25].
The concept of arrest is defined in Article 1(2). It
clarifies that the 1999 Arrest Convention concerns
only pre-trial arrest to ensure security for executing a
maritime claim. The 1999 Arrest Convention provides
a slightly broader definition than the 1952
Convention. It covers not only the detention but also
the "limitation to the removal" of a ship with a court
order to secure a maritime claim, without including
the seizure of a vessel in the execution or satisfaction
of a decision of 'or other enforceable means' [26].
However, nowadays, arrests on criminal grounds
have proved more common. The transfer of illegal
trade has increased in recent years, so controls have
become even more frequent and unexpected than in
previous years. It is well known that transporting
illegal cargo is prohibited and prosecuted. If they
discover illicit substances on board, the authorities
can stop its operation, and the ship is detained until
appropriate claims are lodged with those responsible
for the ship. In addition, there are cases when the
ship's crew was aware of the transportation of illegal
cargo. In all cases, the competent authorities have the
right to detain the vessel and its entire crew [23, 27].
According to the United Kingdom, the ship was
undoubtedly detained after the seizure of drugs in the
United Kingdom to investigate the crime. The vessel
can also be seized under the Proceeds of Crime Act
2002 (POCA). POCA provides for a civil regime under
which the prosecutor can confiscate the proceeds of
the crime if the shipowner is deemed liable. Until
2008, under international maritime law, the crew was
also arrested, and if there was no evidence of offences,
it was released. To address this issue, the U.S. Drug
Trafficking Prohibition Act in September 2008 made it
a "felony for those who operate knowingly or
intentionally or start on a self-propelled semi-
submarine (SPSS) without nationality and/or hand
navigated international waters, with the aim of
357
avoiding detection." The sentence is a prison sentence
of up to twenty years in the U.S [28].
6.3 Case of "Atlasnavios"
While no official statistics are collected on the extent
to which the shipping industry is used to transport
drugs illegally, empirical evidence shows that the
number of incidents and the amount of drugs on
board is increasing, the consequences of which will be
of concern among shipowners and their creditors. A
typical example is the case of the "Atlasnavios" case,
which is related to the arrest for carrying cargo
containing illegal substances (drugs). More
specifically, on 13 August 2007, the ship was
operating its regular voyage to Venezuela. However,
when the ship was being loaded from Venezuela, a
team of divers of the competent authorities carried
out an unexpected inspection-control of the vessel.
The underwater inspection from divers discovered
three bags of cocaine weighing 132 kilograms tied to
the boat's hull near the rudder, 10 meters below the
waterline. This concealment regarding the cargo
contents was a criminal offence, contrary to
Venezuelan law, so it was necessary to detain the ship
and the crew until either the claim was distributed to
them or their innocence was proved [29].
One day before the commencement of the voyage,
during an inspection, the divers noticed that an
underwater mask on the hull was loose and various
objects that did not belong to the boat were present.
The inspector in charge warned those responsible that
the company should make a more extensive
inspection of the ship and alert the local authorities
because there was a risk of drug trafficking, which
took place. As a result, the next day, the inspection by
the authorities was carried out, the cocaine was found,
and the ship and the crew were automatically
detained. (Moore, 2016) According to the insurance
contract, after the detention of 6 months, the owner
made a notice of abandonment to the insurance
company, stating that the vessel was a constructive
total loss. The court initially ruled that the
concealment of the cocaine was a malicious act and
entailed a restriction order for customs violations that
occurred due to the malicious act [30].
Based on the Supreme Court's decision, the captain
and the second officer were accused of complicity in
drug trafficking. On 31 October 2007, a Venezuelan
judge sent them to trial and ordered the continuation
of the preventive detention of the vessel under
Venezuelan law. The ship remained in custody until
August 2010. After a jury trial, the two officers were
sentenced to 9 years in prison. In addition, the court
ordered the final confiscation of the vessel, which the
owner had abandoned in September 2009. In addition,
the owner filed a claim for the loss of the ship to the
war risk insurers [31].
6.4 Ship release procedure
Article 4(1) of the 1999 Arrest Convention lays down
mandatory rules for releasing the ship from capture
by providing adequate security in an acceptable form.
The question of "adequate safety" or "satisfactory
form" is left to the relevant parties to decide. If,
however, there is no "agreement between the parties
on the adequacy and form of the security, the Court
shall determine its nature and amount, without
exceeding the value of the captured ship" (Article 4(2))
[24].
A proposal was submitted to the UN/IMO
Diplomatic Conference by the Greek delegation and
supported by the International Chamber of Shipping
(ICS) to include provisions specifying that the
acceptable form could consist of a "guarantee, bank
guarantee or security provided by a financial
institution, P&I Associations or similar institutions. It
was argued that the proposal would avoid courts
considering cash as the only acceptable form of
security in some jurisdictions. However, the
Conference did not accept the proposal [25].
Discussions were also held on whether to limit the
amount of security to the value of the ship. The
Conference considered that, since security replaces the
vessels, the value of the vessel was the maximum
amount the plaintiff could receive in the event of a
forced sale of the ship. Thus, Article 4(5) specifies that
under no circumstances may the security exceed the
value of the arrested vessel [23].
6.5 Re-operating the ship
The level of fines and the extent of the port's and
criminal authorities' powers to detain ships where
illegal substances have been found varies depending
on the legislation of each jurisdiction, leaving
shipowners vulnerable to loss of lease and, in extreme
cases, high fines or resignations resulting in the loss of
the ship. Seized property may be released temporarily
before the commencement of arrest proceedings.
Under arrest legislation, a court may issue a
restraining order allowing the release of assets
(including a ship) subject to disqualification before the
commencement of judicial arrest proceedings [32].
According to USA laws, a ship may, under certain
conditions, be able to return to commercial service
before the sale process. These conditions usually
include a guarantee such as consent to the court's
continued jurisdiction over the ship and the
agreement of the owners, charterers and ship
managers to cooperate fully with the authorities.
Moreover, according to the United Kingdom
legislation, in the event that the court finds the captain
and the commander guilty of possession and
transport of drugs, the ship may be confiscated after a
few months to be put up for sale at auction. So after its
purchase, it can start operating normally [33].
In a 2015 case, the tug "MV Hamal" stopped on the
high seas of Scotland and was found carrying 3.2
tonnes of cocaine. The captain and the second
commander were convicted of drug smuggling, and
the ship was lost and sold at auction. In the event that
the court finds that those responsible for the ship did
not know of the existence of illegal substances and
that they bore no responsibility, then it is considered
that it is not malicious damage and/or damage. The
costs for coverage may be provided to them by the
P&I Clubs. Thus, the owner must be covered through
a P&I Club Association for loss of lease due to the
358
detention of a vessel resulting from an illicit drug
case. In addition, discretionary coverage for fines
(including the total value of the vessel if it has been
seized) may be provided under the rules of the P&I
Club. However, it is not ideal to rely on a specific law
to recover the total value of a vessel because the
insurer is not required to provide a reason for
withholding the cover. Moreover, this cover is also
available through Lloyds, but it could be prohibitively
expensive for many owners, but after that, the
reoperation of the vessel would be possible [34].
7 CONCLUSIONS
Maritime transport is vital for international trade, and
the volume of transferred goods increases as the
demand for commercial goods increases. Transport by
sea allows the transport of large volumes of cargo,
which enables traders to carry legal and illegal cargo,
the so-called smuggling. At the same time, shipping
laws and regulations have been enacted concerning
the smooth operation of the shipping industry, safety
in transport, the legality of cargo, and the
seaworthiness of vessels. Legal trade is the only form
of trade allowed because it complies with the
provisions and laws of each country. There are cases,
of course, that the so-called illegal cargoes can be
considered legal for specific reasons.
Drugs belong to both categories since they are used
for pharmaceutical or other activities permissible in
most states. However, this does not detract from the
fact that if there are no appropriate documents or
permission to carry them, the criminal prosecution for
the ship and the crew is unavoidable.
Cargo ships are responsible for transporting bulk
cargo and are first on the list for transporting
smuggled goods since it is a more straightforward
process to hide illegal cargo.
Therefore, if it is found that there is illegal cargo
on board the ship, the ship and the crew are
automatically arrested until proven innocent. In most
cases, the innocence of the crew and company is
subject to each case's facts and the duty of care that the
company showed during operational processes, such
as inspections during cargo loading/unloading. In
recent years, the authorities and competent bodies
have been trying to mobilise continuously to prevent
or at least reduce the transport of illegal cargo.
Of course, reducing the trade of illegal drugs is
difficult for competent authorities because millions of
citizens are using drugs worldwide, and the trend is
ever rising. This is a danger to the world community,
which is why arrests for drug trafficking are
considered both a civil and criminal offence.
If the crew is found liable for the carriage of illegal
cargo, it faces criminal charges from the competent
authorities. However, the ship may, in any case, be
operated again either through sale, through the proof
of the innocence of the responsible stakeholders, or
through the P&I Clubs' claim coverage.
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