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.

Conclusions

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.

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

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

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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