Piracy is a crime
As an employer, the shipowner, shipoperator or manager has an obligation to offer a safe and secure working environment. A ship trading internationally however has an added challenge. The Master is the representative of the employer and must ascertain that the ship is safe and secure, and he is largely dependent on individual states and the territory through which the ship passes or the international community in respect of trading on the high seas, in order find protection against piracy. Any BIMCO view or action described in the following position serves the primary purpose of protecting the crew, ship and cargo, in that order of rank, against such criminal activity. The freedom of navigation on the high seas is enshrined in the UN Convention on the Law of the Sea (UNCLOS), leaving contracting governments with an obligation to cooperate to the fullest possible extent in the repression of piracy on the high seas. Despite the deployment of naval assets to affected areas by contracting and other states, the current anti-piracy resources continue to be inadequate in deterring and defeating piracy.
Arrest and Prosecution: Piracy is a crime, and in accordance with UNCLOS and the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation 1988 (SUA) it is subject to universal jurisdiction. To ensure effective arrest, prosecution and incarceration of pirates, all states should implement and enforce the relevant international conventions in their national laws, as requested by four successive UN Security Council Resolutions. All entities involved in the operation of ships on the high seas should cooperate with the relevant agencies in securing a steady flow of information and intelligence, contributing to the successful arrest and prosecution of pirates.
BMP
For the majority of ships the effective implementation of the industry developed Best Management Practices (BMP) measures (onboard non-lethal security measures, other pre-voyage preparations, group transits and the option to use national military convoys where available) whilst transiting the piracy high risk areas of the Gulf Of Aden (GOA) and the NW Indian Ocean is currently sufficient to deter and repel a pirate attack.
Citadels
BIMCO only recommends the use of citadels as a potential rescue option when the Master has established and can maintain communications with a nearby naval unit.
Armed Guards
BIMCO supports the use of armed guards as a supplement to the recommended non-lethal BMPs but only after detailed risk assessment. This would depend on factors such as e.g. routing, the ship’s design, manning, speed, planned operations, and the commercial, along with criminal liability, risks. Whilst assessing the risk to the crew and ship and the level of defence measures to be taken to mitigate such risks, shipowners should also take into account counter-measures potentially taken by pirates as a consequence of having armed guards on board, including the escalation in weaponry and violence. To protect the shipowner and Master against what could become a minefield of liabilities when employing armed guards, BIMCO sees a requirement to have a standard contract available for use between shipowners and Maritime Security Companies.
As a preferred solution BIMCO advocates the use of armed, government provided, vessel protection detachments (VPDs) as it is assumes it resolves a number of the liability and legal issues albeit with the same physical risks. Use of Privately Contracted Armed Security Personnel (PCASP) should be considered only after a detailed due diligence process on the company, its services, and after having obtained the permission of the flag state; all in accordance with IMO MSC.1 Circulars 1405 and 1406. This development is a direct consequence of the inaction by governments and ship operators acknowledging their responsibility for the crews they employ, and must be seen as a temporary measure until governments fulfill their obligations under UNCLOS. BIMCO is keen to avoid an unnecessary proliferation of Private Maritime Security Companies (PMSCs) and their institutionalization. Under no circumstance should the use of PCASP prompt governments to be less alert and reactive to piracy by reducing assets in the area. The international community has developed international regulatory instruments and treaties for governments to fulfill and governments must acknowledge these obligations on their part.
Ransoms
As long as seafarers are held to ransom, BIMCO believes that the option of paying ransom for the release of the crew and ship is an owner’s right and should not be hindered. Any restriction on this option leaves the owner and his crew severely exposed. Any action taken by governments to make ransom payments illegal should coincide with their acceptance and assumption of responsibility for the seafarers held for ransom and for any consequential risk and potential collateral damage.
Source: BIMCO
