UK: Legal Issues Arising From The Use Of Security Guards On Ships

What are the implications of stationing armed guards on board vessels in response to piracy?

Background

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 from the coastline. The International Maritime Bureau Piracy Reporting Centre has received reports of 243 attacks on vessels, with 26 ships successfully hijacked between 1 January and 13 June 2011 alone. The perceived failure of the international community to adequately 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 that "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 reform and guidance has recently led the International Maritime Organisation to publish a circular entitled Interim Guidance to Shipowners, Ship Operators, 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 still a considerable number of questions left unanswered.

Is the use of armed security guards effective?

It is an often repeated fact that to date, no ship has been successfully hijacked when armed guards have been stationed on board. In the view of an increasing number of shipowners, ship operators and cargo interests, armed security personnel are the most effective measure to defend against the threat of pirate attacks in high-risk areas. The logic underpinning their conclusion is simple; deterrence. It has been suggested that the presence of armed guards on board sends a clear signal to potential attackers that the vessel and crew are capable of taking strong defensive measures to protect themselves, significantly increasing the perceived risks of an assault on the vessel. In the circumstances, it has been argued that pirates will instead opt to attack ships with weaker defences, particularly in busy shipping areas.

There also appear to be economic reasons to use armed security forces to guard cargo vessels. It has been suggested that due to the greater levels of safety and security, the presence of armed guards will allow a vessel to travel through areas perceived to be a greater risk of pirate attack. This avoids the costly and time consuming diversions that a number of vessels have gone through in order to avoid high risk areas (such as the Straits of Malacca and the Gulf of Aden) where there is a greater chance of being attacked.

Secondly, shipowners and ship operators who station armed guards on their vessel may be able to obtain discounts in insurance premiums of up to 30%. The vulnerability of some vessels to piracy may potentially lead some insurers to suggest or recommend the use of armed guards for low lying, slow vessels travelling through waters at high risk of pirate attacks.

Concerns about the use of armed guards

There is currently considerable international opposition to the use of armed guards. It has been repeatedly argued that the presence of armed guards risks an escalation in violence in the event that a vessel is attacked by pirates. In particular, there is a concern that the presence of armed guards will significantly increase the risk of a firefight between the pirates and the security personnel, with fears that this could lead to the death or injury of pirates, the crew, and innocent third parties attacked in error. Further the use of firearms risks causing serious damage to the vessel, cargo, and other property, and in extreme circumstances, could ultimately result in the sinking of the vessel.

It has also been suggested that pirates are more likely to use more powerful and damaging weaponry against a vessel and its crew in order to overcome armed guards stationed on board. Further, it has been reported that some pirate groups are training to practice boarding that will be opposed by armed security personnel. The decision to use armed guards should therefore be made only after carefully considering the effect of their use following a risk assessment and after implementing all other protective measures that are appropriate following discussions with the master.

Legal issues

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:

Under what 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 IMO guidance, that the flag state is consulted at an early stage in the shipowner's, and ship operator's consideration of the decision to place armed guards on the vessel to ensure that any statutory requirements are met.

On board the vessel, the security personnel must be bound by clear Rules for the Use of Force (RUF), 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 team's operational procedures, with the aim of preventing boarding using the minimal force necessary to do so. In particular, the IMO guidance 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 vessel, and 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 SOLAS Convention and the ISPS Code require that the master of the vessel has the authority, and ultimate responsibility, for 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 where obtaining the authorisation of the master is not possible or practicable. The security personnel may also wish to retain discretion so that they are not compelled to use force despite the fact that 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 force, and 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 licenses 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 be wary of the possibility that a change in route (for example to repair the ship, or to acquire supplies), may bring the ship into the territory of a new legal jurisdiction in which the existing weapons licenses are not adequate.

Other security measures

It is important to bear in mind that armed guards should only be used 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 razor wire, 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 (UKMTO) and the Maritime Security Centre - Horn of Africa (MSCHOA). These organisations provide support and information to the maritime industry, and in particular work with naval forces in the high-risk area (such as EU NAVFOR) 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 IMO and 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 that this guidance will also help serve as a minimum standard for the maritime security industry, and encourage existing operators to ensure that 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 that 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 that shipowners and ship operators only employ reputable firms who implement appropriate procedures to rigourously screen and train their employees, and can demonstrate that they have all the necessary consents and licenses to deploy armed guards.

Between the shipowner, ship operator and the security company, it will be necessary to carefully consider 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 (SSP) following discussions with the master. Further, it will be necessary to ensure that 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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