The plaintiff shipped its goods from China to Mombasa on board the motor vessel Mackinac Bridge, but they were subsequently transferred onto the motor vessel Kota Wajar, owned by the first defendant, Pacific International Lines Pte Ltd. On 15 October 2009, while on a voyage from Singapore to Mombasa the Kota Wajar was attacked and captured by pirates in the Indian Ocean. The vessel was taken to and anchored off Haradere on the East coast of Somalia. On 28 December 2009 it was released after negotiations and payment of a ransom to the pirates. In January 2010 the plaintiff was informed that general average of USD 3,000,000 had been declared in regard to the amount of ransom paid to the pirates. The plaintiff was required to procure a bank guarantee for the amount USD 102,111.92 from its banker, Diamond Trust Bank Kenya Ltd, in favour of the second defendant, Habib Bank Ltd. On those guarantees being executed the plaintiff was subsequently informed that its proportion of the declared general average was USD 76,264.50.

Plaintiff alleges that the guarantees and the general average adjustment were illegal, null and void and unenforceable both in Kenya and Singapore: 

1. Piracy is an offence under the Penal Code, Cap 224 of the Laws of the Republic of Singapore.
2. Piracy is an offence under Part XVI of the Merchant Shipping Act, Kenya.
3. Piracy is an offence under the Convention For The Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention).
4. It is illegal to pay ransom to pirates under the provisions of the English Ransom Act of 1782 applicable in Kenya as a statute of general application under the provisions of s 3(1)(c) of the Judicature Act, Cap 8, Laws of Kenya.

Plaintiff further argued that payment of the ransom by the first defendant was contrary to public policy, repugnant to justice and would encourage further hijacking of ships by pirates.

Held: Plaintiff's claim struck out.

Payment of a ransom is not illegal at Kenyan law. Plaintiff was obligated to pay the declared general average. In being so obligated, no crime was committed. The payment of the ransom was a necessity in the circumstances to ensure safety of the crew, cargo and the ship. It was an act done under the doctrine of necessity. Plaintiff’s claim that declared general average is illegal, null and void is therefore not justiciable. Even if the payment of general average was declared illegal, the plaintiff could not benefit from such declaration because the plaintiff sought out its banker to guarantee the second defendant that it would pay the declared general average.  As a consequence of obtaining that guarantee plaintiff obtained release of its cargo by the first defendant.