UK: Piracy - Watch Your Back!

Last Updated: 25 January 2010
Article by Chris Zavos and Jennifer Salmon

An analysis of the legal regime governing the use of firearms by merchant vessels for self-defence.

The end of the monsoon season has seen a resurgence in piracy attacks in the Gulf of Aden, and there is every reason to believe that these attacks will continue in the coming months.

While there is compelling evidence to suggest that international naval cooperative efforts have contributed to a reduction in the number of successful attacks, owners and managers of vessels operating in the area are asking themselves whether the use of armed guards, or armed crew, is the only logical next step to deter pirates, and protect both vessel and crew. The carriage and use of firearms raise potentially serious issues of criminal liability for owners and crew, but another key consideration will be whether the carriage and use of defensive weapons, on board, will impact on the owners' insurance cover.

Below, we consider which laws will govern the carriage and use of firearms, and the potential impact on owners' cover of an unlawful act involving the defensive use of firearms.

International law of the seas

International law lays down rules on how vessels should use their freedom to navigate on the high seas, the most important of which is the United Nations Convention 1982 on the Law of the Sea ("UNCLOS"). Article 100 places the duty to combat piracy at state level, and various UN initiatives have seen warships operating in the Gulf of Aden, in order to protect merchant shipping, with some degree of success.

UNCLOS does not regulate the carriage or use of firearms for defensive purposes by merchant vessels. However, the International Maritime Organisation has strongly discouraged the carriage and use of firearms by seafarers for this purpose. The IMO has observed that, while the use of armed guards is a matter for flag states to legislate, seafarers are civilians who may well lack the degree of skill and training required for the safe use of firearms. The IMO further notes that the use of firearms in self-defence may escalate an already dangerous situation, and will pose an even greater danger if used on board a vessel carrying flammable or otherwise dangerous cargo. Other than the risk of physical danger, the IMO has noted that seafarers may find themselves facing unforeseen penal consequences under foreign laws. Many nations do reduce or absolve criminal liability where a criminal act is committed in self-defence. However, if someone is killed in the territorial waters of a country, or in a port, the perpetrator of the killing may be subject to the criminal laws of that country (see below), and the existence, and application, of any self-defence rule cannot be guaranteed.

The International Ship and Port Facility Security (ISPS) Code requires all vessels, flagged in a signatory state of SOLAS (International Convention for the Safety of Life at Sea (SOLAS), 1974), to put in place a safety plan specific to each vessel. However, it does not prescribe the measures which should be taken, and thus neither prohibits, nor permits, the carriage, or use, of firearms for self-defence.

Flag state law

UNCLOS provides at Article 94(1) that each state must exercise jurisdiction and control over vessels flying its flag. As a corollary of this, coastal states are not permitted to exercise civil or criminal jurisdiction over vessels flying a foreign flag.

Flag state law may or may not govern whether, and what types of, firearms may be carried on board the vessels flagged by that state. However, there are likely to be criminal implications, under most national laws, if death or personal injury is caused by the use of a firearm, and not all states will exonerate the user of the firearm, on the basis that he acted in self-defence.

By way of example, a UK flagged vessel is permitted to carry a shotgun on board, but may only carry other types of handgun if these are purchased abroad, and are not subsequently brought into UK territorial waters. The UK rules, set out in section 13 of the Firearms Act 1968, allow for such a weapon to be carried, without a permit, as part of the ship's equipment, although a permit would be required if the gun were to be removed from the ship. American laws on the carriage of firearms are more relaxed.

The law of the coastal or port state

A merchant vessel is entitled under UNCLOS to innocent passage through the territorial waters of a coastal state. Passage is innocent, so long as it is not prejudicial to the peace, good order or security of the coastal state. Article 27 allows coastal states to exercise their criminal jurisdiction over a foreign flagged vessel in certain exceptional circumstances, including where the consequences of the crime extend to the coastal state, and where the crime is of a kind to disturb the peace of the country, or the good order of the territorial sea. If a pirate is killed during a defensive operation, by a merchant ship, coastal states may consider that the seafarer's defensive action would fall within either of these categories.

Port state law is likely to regulate the kinds of weapon which may be carried on board when a vessel calls at port. Certain kinds of weapon are likely to be banned altogether, while others will need to be declared to customs, and may need to be subject to stringent storage requirements.

As an example of the kind of regulation which may be encountered, the UK has implemented rules for the treatment of firearms on board vessels calling at UK ports, and these are set out in Government Circular C2-25A 'Firearms: Imports: Overall controls and policy'. The rules state that "The UK treatment of firearms, held on board ships, depends on whether they are a commercial vessel or pleasure craft, UK or foreign registered, whether the firearms are to be landed, and the perceived threat such firearms represent in the circumstances they are held on board a ship" (para. 6.12.1). In most cases, so long as the firearms are declared and secured and remain secured while the vessel is in UK waters, there will be no need for the authorities to board the ship for firearms control purposes. If a foreign vessel is authorised to remain in UK waters for longer than originally intended, the firearms will be removed into HMRC custody for safekeeping under detention procedures (para. 6.12.4).

Some port states will not allow vessels to call if there are weapons/firearms on board. Owners carrying firearms should seek to check with port authorities that they are not breaking any local laws by bringing weapons of the type they carry on board into the port in question. It may be necessary to declare the presence of firearms to customs and port authorities, and owners may then be subject to certain rules on how the weapons should be secured during the vessel's call at port.

Unlawful acts and the contract of insurance

Any express policy terms aside, section 41 Marine Insurance Act 1906 implies into every contract of insurance a warranty that the voyage is lawful and that, so far as the assured can control the matter, the voyage will be carried out in a lawful manner. If the assured decides to undertake self-defence involving potentially lethal weapons, this could amount to carrying out the voyage in an unlawful manner.

As stated above, a vessel may become subject to a range of national legal systems during the performance of any one voyage, and to a range of firearms control laws, which could potentially be infringed. However, it is probable that, for the purposes of English marine insurance law, an act must be unlawful under English law in order for the warranty to apply. Therefore, if a Liberian flagged ship carries firearms for self-defence purposes, and the carriage of those firearms is not permitted by Liberian law, this foreign illegality may not be sufficient to constitute a breach of the implied warranty, unless it would also be illegal, under English law, for the same Liberian ship to carry such firearms.

Assureds should also note that, for public policy reasons, a breach of the implied warranty of legality cannot be waived by underwriters. If the assured's self-defence measure is not lawful, then underwriters will be automatically discharged from liability under the policy, from the moment of the breach.

The International Group of P&I Clubs shares the view that neither crew, nor any on-board security personnel, should be armed. In their Frequently Asked Questions document on piracy, the risks of the use of arms as defensive weapons are highlighted and the Group observes that the use of armed guards on board may prejudice P&I cover, where this is in breach of any relevant legislation. Whatever the strict legal position, owners would be wise to seek prior confirmation, from their property and P&I insurers, that they do not object to the carriage or use of firearms on board.


In any given voyage, owners may be subject to flag state, coastal state and port state law. If a crime is committed on board a ship, as a general rule the law of the flag state will apply. However, if the crime has consequences which extend to the coastal state, or if the crime is of a kind to disturb the peace and good order of the coastal state, the criminal jurisdiction of the coastal state may be exercised. There is no rule of international law which specifically prohibits the carrying of weapons on board, but whether, and the extent to which, carrying and using such weapons is permitted remains a grey area. If an assured intends to carry firearms on board for self-defence, this may affect his insurance cover, and underwriters may ask for confirmation that doing so will not breach the laws of the vessel's flag state, or the laws of any state into whose ports or territorial waters the vessel will sail.

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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