Amid international media reports of a US-bound Marshall Islands-flagged oil tanker being seized by Iran with 24 Indian crew members onboard, there was a silver lining from Abuja. A Nigerian court freed 26 seafarers, including 16 Indians, who had been detained for more than eight months in the MT Heroic Idun case. The court verdict eventually came in favour of the crew which also included eight Sri Lankans, a Filipino and a Pole. The very large crude carrier (VLCC) Heroic Idun – owned by Idun Maritime Ltd, a subsidiary of Ray Car Carriers – was detained on disputed charges of ‘oil theft’ in Nigeria. The vessel’s owner, Ray Car Carriers, operator OSM Ship Management, Charterer BP, the Marshall Islands as the flag state, governments of India, Sri Lanka, the Philippines and Poland, as well as the various maritime-related organisations, were negotiating for an early settlement and release of the crew.
After a few adjournments from January to April this year, the court finally ordered on April 28 to release the crew and tanker. While charges against the crew were dropped, the ship had to concede a maritime offence and therefore a fine of about US$11,000 was imposed, besides a further payment as part of a multi-million deal, as reported by some media. Though the details of the latter are not known, the huge payment was apparently for the recovery of the costs by the Nigerian Navy in connection with the detention of the oil tanker. The crew are expected to be released soon.
The Heroic Idun, a huge tanker capable of carrying two million barrels of oil, was ordered by Charterer BP to sail to Akpo Offshore Terminal, Nigeria to load a consignment of oil with a laycan of August 8. 2022 (‘laycan’ refers to the period during which the tanker is expected to arrive at the port). The vessel had apparently given its ‘Notice of Readiness’ but was requested to leave the terminal because it had not yet received all required documents, including clearance from the Nigerian National Petroleum Corporation (NNPC). Sensing a high-risk scenario, the Master decided to take the tanker to a safe drifting position, 300 nm from the Akpo Terminal. While on its way, the ship got a VHF call from the terminal indicating that a Nigerian Naval vessel would be approaching it. In continuance, the approaching vessel told the Master of Heroic Idun to stop and accompany it to the Bonny Fairway Buoy, nearly 130 nm away to await loading documentation.
However, the Master could not verify if it was a genuine navy vessel. Moreover, the vessel apparently did not have its automatic identification system (AIS) on. Since no one, including its owner or agents, could verify the authenticity of the Nigerian Naval identity, the Master was instructed by agents onshore that he should not accept ‘orders’ from the unidentified vessel given the high risk of piracy in the area. Meanwhile, the Master told the approaching vessel that he needed more time to confirm it with the agents onshore. However, the vessel, on the other hand, was reported to have threatened to use force and open fire if the tanker did not change its course and stop moving. This apparently strengthened suspicion of piracy threat, and the Master activated the tanker’s security, declared an emergency on board, and issued distress alerts across maritime platforms. His repeated calls to turn the AIS of the approaching vessel on went unheeded. The vessel also made a number of unsuccessful attempts to board the oil tanker. The Heroic Idun, then, moved to a safe zone. It was after several hours the next morning that the unidentified vessel was confirmed as belonging to the Nigerian Navy.
On August 11, 2022, the Heroic Idun received a confirmation from the Akpo Terminal that it got NNPC clearance and the laycan was rescheduled for 17 August. But on August 12, the tanker was approached by an Equatorial Guinean Navy vessel (Capitan David) in the EEC of Sao Tome and Principe (an African island nation close to the equator) and told to follow its route into Malabo, the capital of Equatorial Guinea, at gunpoint. It was soon clear that the Heroic Idun was expected to be detained at the behest of Nigeria, a friendly country of Equatorial Guinea. On August 20, the Nigerian Navy issued a press release confirming its involvement. Yet, the Nigerian authorities did not communicate the matter to the Marshall Islands as the flag state, or to the owners, operators, or charterers. Meanwhile, on 14 August, 15 of the crew members, including the Master, were taken to a detention facility at Malabo. The other seafarers were detained on the vessel under armed guard. There were complaints that the crew was detained on the vessel in violation of the requirements under the International Convention for the Safety of Life at Sea, 1974 (SOLAS). The Marshall Islands Maritime Administration expressed its deep concerns over the detention of the ship and its crew in violation of the United Nations Convention on the Law of the Sea (UNCLOS) and demanded immediate release.
In the meantime, inspections were done on Heroic Idun’s cargo tanks which were found empty as it was only on its way to load crude oil. The Master and the crew had to undergo interrogation for long hours by the local prosecutor. Based on the facts ascertained, there was a feeling that the tanker and the crew would be freed soon. But, instead of releasing them, Equatorial Guinea let the Nigerian officials posted in Malabo further interrogate the Master and crew, and they did this many times without facilitating a lawyer to be present on behalf of the accused.
On September 28, 2022, authorities in Malabo said that they would release the vessel and crew upon a payment of nearly $2 million for the alleged infringements of illegal entry into the jurisdictional waters of Equatorial Guinea, as well as costs incurred during the detention operation and its custody. The Marshall Islands and owners saw this demand for payment to be both “unjustified and extortionate.” However, in the interests of the safety, security, and well-being of the crew, and the safety and security of the vessel, the decision was taken to pay the required sum, the primary and overriding concern being to get the crew and the vessel out of an increasingly precarious, insecure and uncertain situation.” But, though a sum of $2,00,132 was paid on 5 October 2022, Equatorial Guinea did not release the vessel and crew.
The Marshall Islands protested against Equatorial Guinea’s actions and sought proceedings under the UN Convention on the Law of the Sea (UNCLOS). The situation continued to be precarious with crew members falling sick with cases of malaria, typhoid fever, gastroenteritis, and other illnesses being reported from the vessel. The family members of the crew in India, Sri Lanka, and other countries were alarmed about the deteriorating conditions and appealed to the government to do their best to rescue them. However, as feared, on November 5, the authorities in Malabo said that they had decided to hand over the vessel and crew to the Nigerian authorities. On November 9, the Marshal Islands filed an application before the International Tribunal for the Law of the Sea for the prompt release of the Heroic Idun and its crew under Article 292 of the UNCLOS. But on 11 November, Equatorial Guinea transferred the vessel and its crew into the jurisdiction, control, and custody of Nigeria. Upon the action of Equatorial Guinea, which changed the circumstances of the case, the Marshall Islands filed a request before the Tribunal to discontinue the proceedings under Article 106(i) of the Rules of the Tribunal. This was obviously to help take up the matter with the Nigerian authorities, both legally and diplomatically.
Meanwhile, the Nigerian government was set to move forward with charges of offences of having entered the restricted area around the oil terminal without authorisation; illegally attempted to load crude oil without necessary documents; and falsely accusing the Nigerian Navy vessel of piracy on international maritime reporting platforms. Nigeria felt perturbed by the false piracy alarm made by Heroic Idun which amounted to “denting the international image of Nigeria and also making nonsense of the gains recorded by the country’s security agencies on the maritime sector.” It was reported that there was no piracy attack in Nigeria’s maritime environment since 2021 and the country was no longer on the list of piracy-prone states by the International Maritime Bureau in March 2022. So, according to the Nigerian Navy, the false alarm made by Heroic Idun would negatively impact Nigeria’s image as well as its insurance regime for vessels entering into the country’s maritime zone.
Thus, the seafarers were charged with offences such as attempts to load crude oil without licence and violating Nigeria’s Suppression of Piracy Act. The crew were detained on the ship under armed guard even as hearings in Port Harcourt got underway since January this year. Meanwhile, there were also attempts for an out-of-court settlement with owners and other stakeholders being involved. The detention of Heroic Idun came amid the Nigerian presidential election cycle and the opposition sought to use it to charge the government with abetting rampant corruption and oil smuggling. But the government tried to portray the seizer of Heroic Idun as a great success story in its fight against oil theft, during the election campaign.
It is true that Nigeria has a long history of political and military elites getting involved in illegal oil smuggling. According to NNPC, the country used to incur a loss of $700 million every month due to oil theft and unlawful activities at terminals. The pipelines around the Bonny oil export terminal witnessed several instances of illegal activities by oil smugglers. A report showed that 118 vessels were held in five years since 2015 in connection with oil theft. Nigerian Navy officials confirmed that as many as 420 ships and barges were detained during the past eight years. Many cases are pending before courts and some had dragged on for several years, if not decades. NNPC says that oil theft has resulted in a loss of 400,000 barrels per day from the country’s oil output which has badly affected the state exchequer. Obviously, the oil smuggling has led to widespread public outcry in Nigeria with several politicians and bureaucratic-military elites coming under the scanner for their involvement. In the presidential election campaign, the issue had cropped up many times and the capture of the Heroic Idun was projected as a ‘major breakthrough’ in combating oil theft.
However, the Nigerian officials themselves understood that the Heroic Idun had not loaded any oil illegally, but they seemed to be annoyed at a false claim of piracy threat by the vessel. The ship owners, the operators, and the charterer testified many times that the vessel had been cleared to load oil when it was detained. According to the International Federation of Shipmasters’ Associations (IFSMA), the Heroic Idun case was a clear instance of abuse of the rights of seafarers. IFSMA said that the crew were arrested on totally trumped-up charges” and this was “tantamount to international extortion.”
Captain Ruskin, who has wider international experience in shipping, including in the Gulf of Guinea a few years ago, told this author that there was hardly any substance in the argument that a huge vessel like Heroic Idun with a two million carrying capacity would involve in the oil theft in the said route. Though there were instances of oil theft in the Gulf of Guinea and elsewhere, internationally reputed firms and charterers cannot indulge in such activities as it would affect their reputation in maritime trade. Most importantly, Captain Ruskin pointed out, the crew in such ships cannot be held responsible as they were not aware of, nor accountable for such unlawful activities. The Master is expected to adhere to the contractual obligations between the owner and the charterers and he is, of course, well aware of the legal implications of the violations of the UNCLOS and the various international arbitration processes. He said that in international waters, ships occasionally drift and enter the territorial waters of some states due to various reasons, particularly in areas of several states sharing maritime zones. Some countries, however, impose penalties for such violations, but in areas like Europe such violations go either unnoticed or unpunished.
A commentator wrote that “The Heroic Idun arrest has once again highlighted how seafarers are used as pawns in multi-million dollar claims by littoral states; badly treated by shoddy legal systems that wrongfully criminalise them on trumped up charges. The case had been delayed and adjourned several times for no good reason, and Nigerian Navy spokesman Commodore Adedotun Ayo-Vaughan refused to concede that the process was probably flawed.”
The Heroic Idun episode showed that a modest delay in terminal clearance and document verification would result in a huge loss of money and long and excruciating agonies for seafarers. The countries that involve in maritime trade and commerce need to be aware of the rights of seafarers also. A survey conducted among them showed that more than 90% of seafarers did not have legal representation and nearly 81% of them considered that they were not treated fairly. 80% considered they had been intimidated or threatened. 88.60% did not have their legal rights explained. There are robust mechanisms and regimes for the protection of the rights of seafarers, such as IMO 2006 Guidelines, UNCLOS, etc. Yet, they are frequently exposed to risks in relation to maritime activities. Theoretically, these risks are taken care of through protection under international and national laws, but these protections are a facade, rather than realistic and effective. The Heroic Idun episode reminds us that the maritime platforms require a much more effective and coordinated network of support from different stakeholders when seafarers face multiple risks, including criminal charges.
K.M. Seethi, ICSSR Senior Fellow, is Academic Advisor to the International Centre for Polar Studies (ICPS) and Director, Inter University Centre for Social Science Research and Extension (IUCSSRE), Mahatma Gandhi University, Kerala, India.