Combating Maritime Perils in the Global Supply
Chain: An Analysis of Force Majeure Clauses and
the Doctrine of Commercial Impracticability in
The Wake of “State-Sponsored Piracy”
Glenys P. Spence*
ABSTRACT
The laws of the oceans and seas have developed around the twin pillars of
Maritime law and commercial law.
1
These two legal spaces are inextricably
linked because these laws were born in the same medieval space and developed
apart from the common law.
2
Commercial law as we know it today has its gene-
sis in the Lex Mercatoria or law merchant, which governed various commercial
relationships.
3
Maritime law evolved from several medieval sea codes, chief
among them being the Laws of Oleron, which governed freight and the relation-
ships between the ship, seamen and merchants.
4
In medieval times, much like
today, a significant portion of goods were shipped by sea. As a result, laws
were needed to apply to the commercial disputes between merchants, most of
which arose due to certain perils of the sea.
5
In particular, piracy was a
* Glenys P. Spence, J.D. LL.M., Admiralty and Maritime Law, Assistant Professor of Law, University
of Toledo College of Law. © 2025, Glenys P. Spence.
1. See generally FREDERICK ROCKWELL SANBORN, ORIGINS OF THE EARLY ENGLISH MARITIME AND
COMMERCIAL LAW 268-69 (Century Co. 1930) (“In the earlier part of the Middle Ages there were many
of these towns, and they had jurisdiction both in maritime and in commercial causes. Such was the case
at Ipswich, and the Red Book of Bristol says that the Lex Mercatoria applies to markets and instances
ports as among the various sorts of places where markets are held. Pleas of merchants and sailors were
tried in the Bristol Courts before 1241, and the maritime court of Yarmouth was in existence before the
reign of Edward III. These local courts, then, were like the Continental courts and must have been
the archetype for the later Admiralty Court since they had cognizance of both commercial and maritime
cases.”).
2. See generally id. at 268 n. 39 (“From very early times there had been in existence in some of the
seaport towns ‘port’ or ‘marine’ courts which, sitting from tide to tide and administering the law
maritime to merchants and mariners, had some of the characteristics of the Admiralty Court of later
times.”).
3. Id.
4. See generally THOMAS K. HEEBOL-HOLM, PORTS, PIRACY, AND MARITIME WAR: PIRACY IN THE
ENGLISH CHANNEL AND THE ATLANTIC C.1280—C.1330, 127-29 (Brill 2013) (analyzing which laws
regulated behavior at sea); see also SANBORN, supra note 1, at 269 n.54 (“There is no doubt that [the
laws of Oleron] were the recognized code in matters within their scope in the courts of the boroughs
long before those of the admirals came into being.. . . England based its maritime law also upon the laws
of Oleron.”).
5. See SANBORN, supra note 1, at 262 (“It was in the XVI Century that the results of the discoveries in
the New World began to be felt in the redistribution of medieval trade along new routes. The overland
routes began to decline, and transport on the sea received a new and a greater impetus. As never before,
commerce took to the water, and voyages of commerce and of discovery were undertaken to the most
distant parts of the globe. The old mercantile society underwent a metamorphosis, the Middle Ages
came to an end, and the modern era began. The field of commerce was greatly extended; with improved
267
constant thorn in the maritime trade of the Middle Ages, and defining piracy
and punishing pirates have challenged the maritime world ever since.
6
This article examines the resurgence of maritime piracy as a threat to both
international commercial transactions and the national security of the United
States. I argue that this new wave of State-sponsored piracy will hamper the
reasonable expectations of contracting parties because of the way piracy is tra-
ditionally defined in the general maritime law, U.S. statutes and international
law.
7
For contracting parties, this definition does not serve their interests
because this State-sponsored form of piracy by the Houthi rebels is not perpe-
trated for private gain as contemplated in the definition of piracy. Rather, the
attacks on ships in the Red Sea are solely for a political purpose.
I. INTRODUCTION
The maritime industry is facing an old peril that threatens to disrupt global
trade, and impact national and global security.
8
See DEF. INTEL. AGENCY, YEMEN: HOUTHI ATTACKS PLACING PRESSURE ON INTERNATIONAL
TRADE (Apr. 5, 2024) (“Since November 2023, the Houthis have conducted dozens of attacks on
commercial ships transiting the Red Sea, endangering civilian crews and threatening freedom of
navigation through a critical global transportation route. The Houthis are non-state actors in Yemen who
have used Iran’s support to gradually expand their military capabilities since at least 2015. In early
December 2023, the Houthis threatened to attack any ships that they believed were heading to Israeli
ports, though many of their attacks both before and since have been against civilian ships with either
tenuous or no known Israeli affiliations or port calls. Since mid-December 2023, the Houthis have also
threatened to attack ships affiliated with the United States and its allies, including members of Operation
PROSPERITY GUARDIAN, a multinational initiative to protect international freedom of navigation in
the Red Sea. Despite seeking international legitimacy, Houthi actions have damaged regional security,
impeded international humanitarian relief efforts, and put stress on global maritime trade.”); see also
The Lloyd’s List Podcast, Can Navies Protect Shipping? LLOYD’S LIST (Aug. 9, 2024), https://perma.cc/
U5M2-2GRH (“Since November we’ve seen nearly 90 incidents related to the Red Sea crisis and
multiple piracy incidents, including hijackings in the Somali basin, and an uptick in events that could
potentially become piracy attacks. Significant resources have been deployed in response to the Houthi
attacks in the Red Sea, yet, transits through the Bab el Mandeb are consistently down 60% on normal
volumes and ships are repeatedly coming under fire.”).
According to the U.S. Defense
Intelligence Agency (DIA), global trade is currently facing a potential disruption
from these activities.
9
(See Figures from the DIA at the end of this article). The
communications transactions were more rapid and larger sums of money were involved. Commerce now
became thoroughly maritime and most truly international.”).
6. See id. at 272 (“The records of this period are full of cases of piracy and of spoil at sea, and, as we
have observed, they are to become the principal concern of the future Court of Admiralty.”).
7. See, e.g., Angelo Guisado, Searching for Answers: Reprisals, Reckoning, and Recourse for
Maritime Pirates, 25 U.S.F. MAR. L.J. 121, 146-47 (2013) (“The argument is as follows: acts of violence
committed on religious or ethnic grounds or for political reasons cannot be treated as piracy. Somali
pirates could develop a political ideology or agenda that might provide mixed motivations for pirate
attacks, causing a ‘for private ends’ issue.”).
8.
9. See DEF. INTEL. AGENCY, supra note 8 (“As of mid-February, container shipping through the Red
Sea had declined by approximately 90% since December 2023; shipping via the Red Sea typically
accounts for approximately 10-15% of international maritime trade. Effects have been less severe in
other shipping sectors carrying commodities on bulkers and tankers. Alternate shipping routes around
268 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 15:267
current piratical activity in the Red Sea signals the need for a reappraisal of the
legal architecture surrounding this scourge.
10
The slow progress of international
law because of its tether to past world events retards the growth of legal evolution
for the twenty-first century. The COVID-19 pandemic exposed the fragility and
vulnerability of maritime trade in the 21
st
century. So too is the resurgence of con-
flicts in the Middle East, the Russia-Ukraine war and the proxy war being waged
by Iran with the unleashing of Houthi rebels in the Red Sea.
Currently, the shipping industry faces two old maritime perils: War and Piracy.
The Israeli/Hamas war revived the threat of piracy to global shipping and daily
reports highlight these attacks in the Red Sea, a major shipping corridor integral
to global shipping.
11
See e.g., Connor Lahey, Houthi interdictions in the Red Sea: Piracy or permissible? AM. UNIV.
COLL. OF L.: THE CRIM. L. PRAC. (Mar. 1, 2024), https://perma.cc/ENR2-KFKG (“On Nov. 19, 2023, a
Bahamian flagged automobile-carrying cargo ship named Galaxy Leader sailed for India from Turkey,
via the Red Sea, Southbound. As they made their way past the Yemeni port city of Al Hudaydah, a
helicopter operated by members of the Houthi Rebel movement descended and disgorged a team of
armed men, who proceeded to take the 25 merchant sailors aboard captive, seize control of the ship, and
sail it to the port of Al Hudayah. This was the first action in a campaign of seizure and destruction of
merchant shipping which has forced mass diversion of global shipping around the horn of Africa and
jeopardized the personal security of many merchant sailors.”).
Allegedly, the so-called pirates are backed by the Iranian
government with the stated purpose of retaliation against Israel and the West for
the conflict between Israel and Hamas, which began after the October terrorist
attack on Israel by Hamas Militants. Since then, major shipping companies have
reacted to these attacks by deviating shipments through the alternate route around
the Horn of Africa, a longer and more costly route that would disrupt the business
of shipping and pass costs onto consumers.
12
See DEF. INTEL. AGENCY, supra note 8; see also COSCO’s Decision to Quit Israel Raises
Strategic Concerns, THE MAR. EXEC. (Jan. 28, 2024), https://perma.cc/X3XH-ZTY3; Michael H.
Passman, Interpreting Sea Piracy Clauses in Marine Insurance Contracts, 40 J. MAR. L. L & COM. 59
(2009) (“Piracy at sea has plagued maritime commerce throughout the history of human civilization.
There have been a substantial number of pirate attacks in the last several years. The rise of modern
piracy has had important implications for both merchant shippers and insurance underwriters. For
example, in the Gulf of Aden, insurance premiums have increased tenfold because of rampant piracy off
the Somali coast.”).
Africa add about 11,000 nautical miles, 1-2 weeks of transit time, and approximately $1 million in fuel
costs for each voyage. For many shipping companies, the combined costs of crew bonuses, war risk
insurance (roughly 1000% more than pre-war costs), and Suez transit fees make the additional time and
financial costs traveling around Africa less expensive by comparison. Threats to Red Sea transits are
compounding ongoing stress to global maritime shipping caused by interruptions at the Panama Canal
due to drought. As of mid-February, insurance premiums for Red Sea transits have risen to 0.7-1.0% of a
ship’s total value, compared to less than 0.1% prior to December 2023. As of February, humanitarian
relief for Sudan and Yemen is being delayed by weeks and costing aid organizations more because of
longer routes around Africa.”).
10. Jordan Wilson, The Rise, The Fall, and the Eventual Return of Modern Piracy: Addressing an
Age Old Problem with Modern Solutions, 47 J. MAR. L. & COM. 297 (2016) (“Political upheaval has
paved the way for a quid-pro-quo relationship between these ‘enemies of all mankind.’ The rapid
expansion of the Islamic State into Africa only magnifies this threat. It is therefore vital for global
security interests to answer this growing threat with a robust strategy that calls upon both legal and
military action.”).
11.
12.
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