UK: Shipping Update - October 2011


It is clear that piracy is a serious threat to shipping across large parts of the Indian Ocean and Arabian Sea, as pirate groups grow in strength, resources and expertise. In the first nine months of 2011, 346 attacks on vessels had been reported to the IMB Piracy Reporting Centre, while 277 hostages and 15 vessels are held captive by Somalian pirates at the time of writing. It has become apparent that a number of pirate groups are using captured vessels to act as motherships to increase their operational range, and of particular concern it appears that pirates are becoming increasingly aggressive in their use of weapons, and willing to make threats to harm the crew of hijacked vessels.

In this context, there have been a number of international responses to the threat of piracy. Firstly, in high risk areas naval forces, including EU and NATO forces, are present to deter and protect vessels from acts of piracy. Secondly, shipowners are advised to implement protective measures on vessels and to follow the recommendations in the latest version of the Best Management Practices for Protection against Somalia Based Piracy (BMP4).

In addition, an increasing body of opinion has developed in favour of the view that the deployment of armed guards on board vessels should be an option left to the discretion of the shipowners. This is primarily down to concerns that the ability of naval forces to protect shipping across such a large geographical area is limited, and doubts that compliance with the Best Management Practices alone may not be enough to ensure that vessels have adequate protection from pirate attacks, particularly if naval forces are not in close proximity at the time of the attack. The IMO has recently published revised guidance on the issue, and a number of flag states (such as the UK) are currently considering legislative proposals that will allow shipowners to station armed guards on their vessels, while other countries, such as Norway, have already implemented reforms.

However, the use of armed guards raises a significant number of legal and practical issues. There are serious concerns about the potential for unforeseen accidents, the misuse of firearms and the escalation of violence. As a result, there are questions over the rules and protocols governing actions of armed security personnel and specifically under what conditions the use of force is permissible in order to defend against an attack. There are also widespread concerns that, in a rapidly increasing and unregulated market, a number of operators may not hold the expertise and capability necessary to carry out armed maritime security services, particularly as there are currently no binding international standards governing the use of privately contracted armed security personnel.

Ship Security Measures and the BMP4 Guidelines

When considering the suitability of security measures for a vessel travelling through an area at risk of piracy, it is important to carry out a thorough risk assessment. There is no "one size fits all" policy of the appropriate security measures for a vessel, given that the risk assessment should be tailored according to the specifications of the ship, and should be voyage specific, taking into account the latest information on pirate activity on the proposed route. The BMP4 Guidelines suggest a number of Ship Protection Measures (SPM) which should be considered, including razor wire, water spray and ballistic protection for crew located on the bridge. Each of these suggestions should be considered on a case-by-case basis following the risk assessment.

One potential measure recommended in the BMP4 Guidelines, which has proven to be effective against pirate attacks is the use of a "citadel"; an area purpose-built into the vessel where in the event of imminent boarding by pirates, the crew can seek refuge as a last line of defence. Once inside this safe haven the crew are able to protect themselves and communicate with naval forces in the area, prompting a military intervention against the pirates. Although the use of citadels has achieved considerable success, there are still concerns with their use. The ICC International Maritime Bureau report on piracy and armed robbery against ships for the period 1 January - 30 June 2011 states that citadels "are not foolproof, and a badly planned and equipped citadel may ultimately prove to have a worse outcome than no citadel at all". The effectiveness of a citadel will also be dependent on an appropriate and prompt naval response forthcoming from a military vessel in close proximity, which as pointed out in the BMP4 Guidelines, cannot be guaranteed. The IMB report notes that if a naval response is not forthcoming, there is a danger that the crew could be trapped in the citadel with "no means of knowing when it is safe to emerge". Further, there is the possibility that pirate groups may be able to breach the defences of a citadel and capture the crew regardless.

The BMP4 Guidelines also state it is a "fundamental requirement" for vessels to register with MSCHOA prior to entering the High Risk Area. Vessels are also strongly recommended to report daily to UKMTO when in areas at risk of piracy, as it acts as the primary point of contact for merchant vessels in the area and liaises with naval forces in the region.

It is clear that effective use of ship protection measures in the BMP Guidelines, including the use of citadels, has contributed to the reduced success rate of pirate attacks to successful hijacks, which has declined from one in four in the first half in 2010 to one in eight in the first half of 2011. The more detailed and comprehensive guidelines included in the latest version of the BMP Guidelines, as well as greater awareness of the importance of compliance with the guidelines, seems likely to reduce this further. Nevertheless, there is a concern that compliance with the BMP Guidelines alone may not be enough to protect ships from pirate attacks, given that pirates are becoming better armed, more skilled and increasingly aggressive in their use of firearms, and naval forces remain thinly spread across the region.

Legal and practical considerations on the use of armed guards

After carefully considering the implications of the flag state and insurance positions on the use of armed guards, if a shipowner chooses to station armed guards on a vessel, their role and function should primarily be to act as a deterrent to piracy attacks and to complement, rather than replace, existing security measures, and to prevent boarding only using the minimal force necessary to do so. Consideration should be given to whether the guards will act as additional lookouts on the vessel or assist with rigging ship protection measures. Following this discussion, the role and function of the armed guards should be incorporated into the Ship Security Plan (SSP).

The risks associated with the use of armed guards should not be understated. The presence of firearms on a vessel may give rise to unforeseen accidents and criminal and civil litigation arising from any potential unlawful death or injury. It is therefore important that the security company's standard operating procedures and Rules for the Use of Force (RUF) are carefully drafted to give a detailed, graduated response plan to a pirate attack and provide that security personnel must take all reasonable steps to avoid the use of force. In practice, this will mean that other security measures recommended as part of the BMP4 Guidelines, such as defensive manoeuvring of the vessel, should be used before considering the use of force. Further, following the revised IMO guidance, the RUF should state that firearms should only be used against persons by security personnel in self defence or the defence of others against an imminent threat of death or serious injury.

Operational procedures and authorisation to use force

The SOLAS Convention and ISPS Code require that the master of the vessel has the overriding authority and responsibility to make decisions with respect to the safety and security of the ship. However, there are questions as to how the master's overall responsibility for security issues interplays with the need for a professionally trained security team to take quick and immediate decisions in the heat of an attack.

It has been widely argued that security personnel have an inherent right to use force in instances where it is necessary in their self defence, and that the members of the security team should have a discretion under the RUF to use force without the master's consent in these circumstances. This concern is reflected in the drafting of a number of contracts for maritime security services, which provide that security personnel may use force in situations where the use of firearms is necessary in self-defence, despite the fact that the use of force may not be expressly authorised by the master.

Going further than this approach, it has been also been suggested that it may not be appropriate to require the security team to seek the master's express approval for the use of force in situations where an immediate response is needed and it is impractical to seek the master's authority to act. For example, it may be difficult to acquire the master's authorisation to use force where pirates are using "swarm" tactics and are attacking the vessel from different sides using multiple skiffs. In these situations, it has been suggested that it is appropriate for the master to allow the security team to take certain operational decisions based on pre-agreed security protocols.

This proposed position has resulted in considerable debate, including amongst P&I Clubs. On one side of the argument it has been suggested that it is a clear requirement of the ISPS Code and the SOLAS Convention that the master has the ultimate responsibility for security on the vessel and that it is therefore not possible for the master to delegate authority to act under any circumstances, and that any decision to use force must be the master's alone. However, there are concerns with this strict interpretation of the SOLAS Convention and ISPS Code as there may be circumstances in which the master's authority cannot be sought to act; for example, if the master is incapacitated or is not in an adequate position to be able to make a judgment call. In a situation where "swarming" tactics are used by pirates and where multiple vessels are attacking the ship, it may be difficult for a master to co-ordinate ship movements, ship protection measures and the use of force by armed guards at the same time.

As a result supporters of the view that the master should pre-approve the standard operating procedures and RUF of the security team that will be in operation for the duration of the voyage argue that in the heat of an attack, it may be more suitable to leave decisions on the use of force to professionally trained and skilled guards given the relative inexperience of a number of masters in taking decisions relating to armed engagement. Against this view, it has been argued that section 34-1 of the SOLAS Convention does not allow the master's discretion in decision making to be curtailed in this manner, as it undermines the master's ability to have full control of the vessel's security and therefore impacts on the safety of the crew.

One potential solution to this issue that has been adopted in some contracts for maritime security is that the security team is given authority to act according to certain security protocols that have been pre-agreed with the master, but the master is kept fully informed, and retains a right of veto to, at any time, remove authorisation for the use of force by the security team (although individual guards would nevertheless retain the inherent right to act in self defence, which may result in the use of force in certain situations).

There is no doubt that this debate will continue in this difficult area and many are looking to the IMO for further detailed guidance. At present, however, there can be no doubt that the issues covered in this article will need to be discussed at length between the shipowner, master and security team. Further, it will be necessary to ensure that when travelling through areas at risk of piracy, there are clearly defined security procedures and protocols which are approved by the master, and that each member of the crew, security team and the master must be fully aware of, trained in, and abide by these protocols.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.