The recent announcement by the UK Government that weapons will be allowed on UK-flagged vessels is not perhaps as revolutionary as it might first appear. Under the relevant firearms legislation, shot guns and single shot rifles were already permitted, subject to the appropriate certification having been obtained. Rather, the new government guidelines and the headlines they have generated have been about the use of previously prohibited weapons (such as fully automatic "assault" rifles) and equipment. Notwithstanding this change of stance from the discouragement of the deployment of armed guards on ships to a position where accepted, their deployment is subject always to the regime laid down in the Firearms Act 1968. The debate has been given a further boost by the findings of the UK Foreign Affairs Committee ("FAC"), which issued a far-reaching report on 5 January 2012, concluding that the UK Government was right to change its position, but that more guidance was now needed on the lethal use of force and self-defence.
In his evidence to the FAC, the then-head of EU NAVFOR (European Union Naval Force), General Buster Howes said that to police the Indian Ocean and to have the capability to respond to an attack anywhere within the first "golden" hour would require 85 helicopter-carrying war ships. The combined fleet deployed in such cases so far seems to vary between around 15 to 20 vessels and, in these times of austerity, governments seem content to push the problem back onto the commercial sector. A number of European countries, including Norway and Cyprus, are also putting in place legislation that will allow armed guards on vessels. Other nations, such as Greece and Germany, are likely to follow suit.
The mantra of the private security world is that there has still been no vessel hijacked with armed guards on board. This remains this sector's unique selling point and has gained acceptance within the shipping industry. Statistically, however, more vessels avoid capture through the use of good seamanship and adherence to the Best Management Practice ("BMP"). Armed guards on ships are found on board an estimated 35% of vessels transiting through the high risk areas and this has no doubt contributed to the year-on-year decrease in successful hijackings. Implementation and a greater awareness of BMP4, as well as simply routing vessels closer to India, must also account in part for the decrease in attacks. The statistics for the past few months show only three hijackings, compared with 14 for the corresponding period last year. The pendulum appears to have swung, at least for the moment, away from the pirates. Only time will tell whether the pirates will adapt their tactics, with the obvious next step being a change of weaponry or location. There may well be implications for those vessels taken, in terms of the monetary demands made by pirates, whose stream of income has been significantly reduced.
What is the position now, however, under English law following the recent publication of the interim guidelines by the Home Office ("HO") in respect of the deployment of armed guards?
The interim guidelines
The guidelines are thankfully described as "interim" because, as currently drafted, they may give rise to real practical difficulties for a UK-registered ship-owner who wants armed guards - almost certainly at short notice. First, it should be noted that the guidelines only apply to the high-risk areas associated with Somali pirates and not, therefore, to the emerging problems off the Gulf of Guinea. In short, the main requirement is that all Private Security Companies ("PSCs") wanting to put armed teams on UK ships must apply for a Section 5 (Firearms Act 1968) certificate. This will at least mean that the individuals employed by that company will not have to have their own individual certificates.
The burden is then on the PSC, which must support its application with an existing contract with a ship-owner. The ship-owner, in turn, must also submit a counter-piracy plan and a signed statement that the detailed Guidance issued by the Department for Transport ("DfT") on the Use of Armed Guards1 has been followed. That Guidance provides that a detailed risk assessment must have been carried out with regard to the ship's vulnerability and routing and lays down detailed criteria against which to measure the competence of the PSC and the individuals deployed. The details of each guard have also to be submitted to the HO, to allow checks to be carried out by the police. It is envisaged that guards are employed, rather than sub–contracted, so that if the guard ceases to be "employed" during the validity of the Section 5 certificate, then the HO must be informed. It would seem likely that the HO will have to build up a database of individual guards to reflect the fact that many work for different firms on a freelance basis.
It is likely that any such application by a PSC would take up to three months, which puts UK-flagged vessels in a short-term quandary whilst the certification process catches up with what is likely to be happening in reality.
Master's authority and self-defence
The DfT Guidance goes into some detail on the vexed issue of the Master's authority and control. The Guidance acknowledges the fact that the Master has ultimate authority to decide whether armed guards should be deployed or used on a particular voyage and that any contract must include a "...clearly defined command and control structure which confirms [that]...". This is something that should be reflected in BIMCO's new GUARDCON contract when it is finally rolled out in January/February 2012. Much has been written on the issue of self-defence in the situation where a vessel is attacked and it is not surprising that the FAC has asked the government for further guidance on this. The interim guidelines refer to "minimum force necessary" to prevent the illegal boarding of a vessel and to protect the lives of those on board. They further state that the Rules for the Use of Force ("RUF") should provide for a "graduated response each stage of which is considered to be reasonable and proportionate to the force being used by the attackers". Significantly, they go on to say:
"Neither the Master nor the security team leader can command a member of the security team against that person's own judgement to use lethal force or to not use lethal force".
This appears to cut across the fundamental idea that the Master has ultimate control and that there is a chain of command on board akin to that which most of the operators will have encountered in the military, which should be obeyed. The individual concerned still has to adhere to national laws and following agreed RUF does not mean he will necessarily be exempt from prosecution. This is another area where additional guidance would be welcome. One possible solution might be to have a system where the RUF are agreed in advance and, at the outset of an attack (whether actual, perceived or threatened), the Master or Duty Officer agrees that their implementation has been triggered. At that point, the responsibility for the graduated response then shifts to the armed team until the attack is over or the threat recedes.
The UK has also issued welcome guidance on the obligations of the owner and the security team to complete written reports of the incident, to be sent to the UK Maritime Trade Operations office ("UKMTO") and copied to the DfT. This is important in terms of accountability, as well as fulfilling the DfT's desire to be able to assess the effectiveness of the self-protection measures provided for under BMP. The suggestion is that the Master and the security team leader should complete a formal written record of every incident where firearms are discharged. Whether this provision will be complied with in the aftermath of an incident involving lethal force remains to be seen. It will be very difficult to police and there may be some reluctance to see the vessel turned into a crime scene and if that means significant delay.
The problem for the security sector is that a patchwork of regulation is being stitched together by the international community, with different nations laying down their own regulatory framework based loosely on the IMO MSC Circular 1406 dated 16 September 2011. There is still no single system of accreditation, although The Security Association for the Maritime Industry ("SAMI") recently announced a tie-up with an independent auditor and, with over 100 signed-up members, that may yet gather the momentum that is needed.
With the recent release of the Olib G and the Savina Caylyn, the rolling average for the duration of the hijackings based on the last six ships released is now over 250 days. The crew of the Iceberg approach their unenviable second year anniversary as hostages and there are still those crew members from the Leopard and the Asphalt Venture who have been held ashore, separated from their vessels, for the best part of the year. The industry still does not have a safety net to deal with these extreme cases, with some calling for the International Transport Forum (ITF) to take a greater role in this regard. A solution which simply calls on the respective flag states to do more is unlikely to be the answer when so many governments refuse, as a matter of policy, to pay ransoms.
The pirates have moved away from the use of commercial vessels as mother ships, which was so prevalent this time last year. Presumably this is because those vessels lack manoeuvrability and because they presented the pirates with problems of maintenance and refuelling. Dhows and other fishing vessels have become the mother ships of choice, although the military have had recent successes in disrupting various Pirate Action Groups that have been identified as using them.
Recently, on the Pacific Express, a full-blown hijacking was avoided by the crew retreating to a citadel before being rescued by an Italian warship. There, the vessel was seemingly set on fire as a result of the pirates' actions, rendering the vessel a total loss. The practice of giving a discount on premium where a vessel has a citadel may not be universal but, if it leads to a general trend of torching the vessel, it will be interesting to see how the insurance market reacts. This gives rise to an interesting paradox. At the point of capture, the crew are given the option of retreating to a citadel even if it means that the ship is sacrificed and yet, once captured, the crew are at the mercy of a process where they must then wait up to eight months whilst a price is negotiated for their release. The pirates' approach, in what are for them austere times, is another unknown at the start of the new year. There is a concern that that they will be determined to get more money for each ship captured, knowing that their chances of getting another are being eroded all the time.
BMP is now said to be followed by over 80% of the shipping industry, although what that actually means and whether that simply represents the numbers registering with the UKMTO is unclear. BMP is, however, becoming increasingly mandatory in tone. Industry bodies and indeed flag states are also setting out in ever-greater detail recommendations and "guidelines" and, as is stated above, risk assessments must be produced and no doubt justified, in the context of the deployment of armed guards. The problem is that falling foul of such guidelines will become that much easier and, for owners, this represents a real issue as they find themselves defending claims from cargo interests and charterers who so often are not prepared to pay a ransom or to assist the owners in dealing with the real threat of hijackings. It surely cannot be long before the courts are asked to look at the issue of compliance with BMP in terms of causation of a hijacking, in order to assess owners' responsibility.
1.Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances : November 2011
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