Setting some ground rules over piracy is essential
When deploying armed guards on board, fully armed means knowing the legal boundaries that frame their use.
There has been a significant and rapid rise in the levels of piracy activity over the past few years, as pirate groups have become better resourced, better equipped and capable of attacking vessels further away fromthe coastline.
The International Maritime Bureau Piracy Reporting Centre has received
reports of 243 attacks on vessels,with 26 ships successfully hijacked between
January 1 and June 13, 2011, alone.
The perceived failure of the international community adequately to tackle the cause of the problem, or reduce the level of piracy activity, has led to
repeated calls for flag states to permit armed guards to be stationed on vessels to protect ships and their crews from the threat of piracy.
The level of the problem is so serious that the chairman of the International
Chamber of Shipping has stated many shipping companies have concluded that arming ships is a necessary alternative to avoiding the Indian Ocean completely, which would have a hugely damaging impact on the movement of world trade.
Intense international pressure for reformand guidance has recently led the
International Maritime Organization to publish a circular entitled Interim
Guidance to Shipowners, ShipOperators, and Shipmasters on the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area.
While this guidance is a welcome and much-needed reform, there are a number of complex legal issues and commercial risks that parties should be aware of before making the decision to station armed guards on a vessel. It will be necessary to give careful consideration to each of the following issues:
Underwhat circumstances can armed guards use force against pirates?
Currently, no international conventions or regulations state what force and measures can be used lawfully to defend against a pirate attack.
As a result, in international waters, the laws governing the use of
force will be those of the flag state of the vessel,which must be complied with by the master, crew and security personnel at all times.
It is advisable, following the recently published IMOguidance, that the flag
state is consulted at an early stage in the shipownersand ship operators
consideration of the decision to place armed guards on the vessel to ensure any statutory requirements are met.
On board the vessel, the security personnel must be bound by clear Rules
for the Use of Force, which should clearly set out the protocols and measures to be taken in the event of an attack by pirates. These should provide a detailed, graduated response plan to pirate attack as part of the security teams operational procedures,with the aim of preventing boarding using the minimal force necessary to do so.
In particular, the IMOguidance for the RUF states that firearms should not be
used against persons except in self defence or defence of others against the imminent threat of death or serious injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life.
Further, it will be necessary to ensure the RUF comply with the laws of the flag
state of the vesseland, ideally, should be approved or endorsed by the flag state.
It is crucial that armed personnel comply with the RUF and the laws of the
flag state,when confronted with a pirate attack. Further, in territorial waters, it will also be necessary to comply with the laws of a coastal or port state.
The dangers of not doing so are obvious; in the event of unlawful death or
injury, there is a risk that security personnel could be prosecuted for murder
or serious injury by the flag state or any other state asserting legal jurisdiction for the crime.
In regions such as the Straits of Malacca, unlawful use of force in response
to a pirate attack in the region could potentially expose the security personnel to criminal sanctions in Singapore, Indonesia or Malaysia, depending on the location of the vessel at the time.
Additionally, there is a risk that the master, the security company, or other parties could be prosecuted as accessories to any unlawful killing or injury caused by the security personnel.
Chain of command
Both the Safety of Life at Sea Convention and the International Ship and Port
Facility Security Code require that the master of the vessel has the authorityand ultimate responsibilityfor the safety and security of the ship.
However, the security personnel may wish to have discretion to use force
without the authorisation of the master if, in their view, it is necessary for their self defence. This is particularly likely to be the case if they are confronted with circumstances inwhich obtaining the authorisation of the master is not possible or practicable.
The security personnel may also wish to retain discretion so they are not
compelled to use force, despite the fact they are ordered to do so by the master. There is therefore a degree of tension between a potential demand for security personnel to have a degree of control and discretion in their use of forceand the requirement for the master to have ultimate authority and responsibility for the vessel.
While the IMO guidance requires the documented command and control
structure to include a statement that at all times the master remains in command and retains the overriding authority on board, the protocols for initiating action and responding to threats will need to be
carefully negotiated between the security company, shipowner and ship operator, and reflected in the contractual documentation and operating procedures.
Weapons licensing
The laws governing the carriage and use of weapons in a number of states are extremely complex and there are potentially serious civil and criminal
penalties if there is a breach of weapons licensing laws. Given that there are
significant international concerns about the proliferation of arms, with fears that weapons could end up being used in crime, terrorism, or in civil war, companies should tread carefully.
It will be necessary to take appropriate legal advice to ensure that both the
security personnel carrying weapons and the company owning the weapons acquire all the necessary licences and consents for the possession and carriage of weapons from all relevant legal jurisdictions in the course of a voyage.
It is also important to bewary of the possibility that a change in routefor example, to repair the ship, or to acquire suppliesmay bring the ship into the territory of a new legal jurisdiction in which the existing weapons licences are not adequate.
Other security measures
It is important to bear in mind that armed guards should be used only in conjunction with, and not instead of, other security measures. Following a risk assessment to assess the likelihood and consequences of piracy attacks to the vessel, it will be necessary to consider what security measures will need to be implemented.
The Best Management Practices Guidelines, BMP3, have been produced
with the input of major industry bodies and naval forces, and suggest a number of measures for implementation in order to protect the vessel and reduce the threat of piracy. The measures include the use of high-tensile razorwire, anti-climb paint, water spray and foam monitors. Further,
on some vessels, it may be appropriate to consider the use electrified barriers, or to establish a citadel; an area purpose built into the vessel where the crew can seek protection from a pirate attack.
Shipowners should also consider registering with the UK Maritime Trade
Operations and the Maritime Security CentreHorn of Africa. These
organisations provide support and information to the maritime industry, and
in particular work with naval forces in the high-risk area, such as EUNavfor, to
reduce piracy.
Choosing a security company
Due to the current lack of international regulation and accreditation for maritime security companies, there are considerable concerns about the maturity and capability of security companies and concerns about industry cowboys.
However, both the IMOand several P&I clubs have issued guidance to shipowners and ship operators on the due diligence that should be conducted in relation to choosing a security company. It is hoped
this guidance will also help serve as a minimum standard for the maritime
security industry, and encourage existing operators to ensure their procedures meet this standard.
It will be necessary for all security companies to undertake adequate vetting
of personnel, including criminal background checks and ensure all security
personnel are properly trained, licensed and certificated in the use of weapons in a marine environment, as well has having adequate insurance cover for themselves, their personnel and third-party liability.
Similarly, it is important shipowners and ship operators only employ reputable
firms that implement appropriate procedures rigorously to screen and train
their employees and can demonstrate they have all the necessary consents and licences to deploy armed guards.
Between the shipowner, ship operator and the security company, it will be
necessary to consider carefully the role and use of armed guards on the vessel. In particular, the role and presence of the security guards should be incorporated into the Ship Security Plan following discussions with the master.
Further, it will be necessary to ensure all parties are aware of, and follow, all
relevant international and flag state guidelines, in particular taking great care to adhere to the IMO Guidance and BMP3 Guidelines.
Andrew Preston & Nick Purnell
This article appeared in Lloyd’s List on 13 July 2011.For more information visit www.lloydslist.com
