The general club position in the use of armed guards
The first thing we should begin with is that the presence of guards (whether armed or unarmed) onboard the vessel does not in and of itself prejudice P&I cover. Certain risks though, may fall outside the scope of cover if minimum standards are not met in the terms of the contract with the Private Maritime Security Company (PMSC). Essentially, you have to conduct a thorough Voyage-Specific Risk Assessment, and that includes looking at the type of vessel or the type of operation, where you are, the specific regional threats (in terms of piracy, East/West Africa). You also have to exercise Due Diligence in choosing PMSC. Despite the development of Club approved standardized contracts you still need to leave sufficient time for the security contract to be negotiated and vetted by all the insurers (10 days) and also to look at all of the individual aspects of the contract to make sure that you are complying with all regulations.
The use of armed guards is one aspect of possible measures that can be taken in addition to a multitude of protective steps that need to be taken. So, we are going to put together all the various aspects to give you guidance in terms of the steps you need to take.
- Consult with your Flag State authority.
- Best Management Practices 4.
- Look at Region Specific guidelines - Interim Guidelines for protection against piracy in the Gulf of Guinea region (developed by BIMCO, ICS, INTERCARGO, and INTERTANKO, supported by NATO Shipping Centre).
- Ensure compliance with SOLAS (additional personnel and equipment allowed on board).
- Consult a lawyer to assist with contract and to assess potential liabilities based on the voyage-specific risk assessment.
- IMO Guidance on use of privately contracted armed security personnel when transiting high risk areas.
- Advise charterer and cargo interests (if you are going to take a different root for safety purposes as a result of your risk analysis then you need to let your charterer knows that you can avoid any possible allegations).
- Vet your contract with all your insurers - BIMCO GUARDCON has streamlined the procedure.
You have to find out from your flag state:
- Whether it is legally permissible for it to allow armed guards onboard their vessels
- Whether requires any licenses or permits for the carriage and/or use of weapons.
- Whether it has any Rules of Engagement / Rules on the Use of Force guidance
- Provide your P&I Club with Flag State's written response
Of course, due to the developments in the high-risk areas many Flag States have now pre-approved lists of armed guard companies.
COMPLIANCE with BMP4
- Armed guards are not a substitute for following BMP4, so you still need to have proper crew training, or contingency planning.
- Owners should ensure that PMSC is trained / familiar with BMP4.
- Owners should coordinate training between the Master, the crew & the PMSC team.
- Failure to comply with BMP4 can actually have serious consequences.
- May prejudice P&I cover if vessel is captured.
- Cargo or other interests may argue that vessel was unseaworthy.
- Undermines efforts to obtain contribution from cargo towards ransom or general average.
The weapons to be used by the company
You need to request the security company to specify precisely what weapons will be brought on board the vessel. It is ultimately the owner's obligation to make sure that the weapons that are carried on board are licensed. Failure can subject the Master and the crew to civil and criminal penalties and those fines would likely not be covered by P&I Cover. Also, you need to ensure that the permits are obtained from the port of embarkation of guards, the transit (Canal authorities) anchorage/mooring and the port of disembarkation. National laws of the country where the PSC is based, Flag and Port State restrictions and licensing requirements must also be met. And, in the end, although a lot of these things are dealt with in GUARDCON, it's still something that you have to make sure that you understand, you appreciate and that you comply with: the PMSC must also evidence all the licensing compliance as dictated by the country.
As concerns the security company's insurance cover, you need to request PMSC's Insurance Cover Note. There are industry minimum standards in terms of insurance cover. Also, the company should have general Third Party / Public Liability insurance, Professional Liability insurance and Maritime Employers Liability / Workers compensation. They should also have a personal accident policy for the guards on board.
Another big issue and one of the biggest topics in terms of negotiation of GUARDCON and contracts related to PMSC in general is who is in CHARGE. Who ultimately authorizes the use of force on a vessel? We all know that the Master is responsible for the overall safety of the vessel but he may not really be prepared for combat decisions and ultimately the responsibility should not be on him to make the decision whether to open fire in a situation. So you have to make sure that the contract includes clear and concise rules in the use of force and on the roles that each party plays (SOLAS and ISPS compliance must be ensured). Another big accomplishment is that GUARDCON manages to meet the balance. It recognizes that the Master is ultimately responsible for the safety of the ship, it gives him the right to ask for a cease-fire, but it doesn't override the ultimate right of the guards to use the necessary or appropriate force in a situation of self-defense.
The criteria for selecting a security company
This is a very big issue and it's very important that you follow all the steps to choose the right company. Generally, you should look at the company structure, the financial position, the extent of insurance cover, the senior management experience, ISO accreditation. As concerns background information you should look at the maritime experience, the written procedures, the understanding of Flag & coastal State requirements on licensing/carriage of firearms, the understanding of the area and the region, familiarity with BMP3 and Somalia based piracy threat, references and access to legal advice. Furthermore, you have the right to ask for and look at criminal background checks, employment history, their particular background in military or law enforcement, medical / physical / mental fitness records, evidence of certification and experience to use/carry firearms. As concerns training, you should look at how they train, records of training, what they do, look at their procedures, the shipboard experience, use of force training, specific firearms training, medical training.
If you follow all the above industry guidelines, it should take you to the right choice, to the balanced position.
There is still an inherent danger with putting weapons on the ship. Some of the downsides, the problematic areas with the armed guards are that:
- there is still an inability to consistently ensure qualities or standards of PSCs.
- there may not be enough qualified guards to go around.
- Unregulated industry.
- IMO and IG do not recommend use of weapons.
- there is uncertainty about the rules on the use of force and potential criminal liability issues of PMSCs and owners. Even when you have the rules of force clearly set out within the contract, it's not always easy to implement them.
- Can escalate violence and prompt pirates to be more aggressive in future attacks and treatment of existing hostages.
- Quagmire of various countries' laws that apply in terms of possessing or licensing of weapons carried on board a vessel.
Above article is an edited version of Mrs Dorothea Ioannou's presentation during 2013 SAFETY4SEA Athens Forum
You may view relevant video by clicking here