The recent decision to start allowing Privately Contracted Armed Security Personnel (PCASP) onboard Maltese registered vessels immediately raised legal questions spanning across local legislation, international law, insurance and liability and jurisdiction. On an international level, serious efforts were made to avoid having to go down the route of armed guards onboard vessels and whilst operations such as EU NAVFOR, Operation Ocean Shield and CTF 151 did have an effect, they did not suffice to quash the attacks by pirates. Altogether in 2006 there were 20 reports of attempted and successful pirate attacks compared to 219 in 2011. Throughout this period a total of 828 attempted and successful pirate attacks were reported with 3,500 seafarers having been held hostage and 62 seafarers killed. Whilst the average ransom payment per vessel in 2007 was $60,000, in 2011 this rose to a staggering $4.7 million. The annual ransom total paid out in 2007 was $5 million compared to $135 million in 2011.

The decision by Transport Malta to accept PCASP onboard Maltese registered vessels was the result of serious consideration. The Merchant Shipping Directorate had to cope with the pressure from ship owners whilst simultaneously ensuring that any decision did not fall foul of a multitude of national and international laws. Transport Malta therefore put together their own requirements for allowing PCASP onboard Malta flagged vessels, based on the Revised Interim Recommendations for flag states, which was produced by the International Maritime Organisation (IMO). The message sent out by TM is clear; each application is thoroughly vetted and accepted on a case by case basis subject to stringent procedures being followed. Apart from requiring that all the documentation is in order and all policies are abided by, applications are accepted based on a risk analysis basis. This is a very reasonable stance given the untested legal territory the industry has suddenly entered. Also, the acceptance of PCASP is strictly an additional measure which may be added to the Additional Ship Protect Measures such as additional look outs and enhanced bridge protection as outlined in the Best Management Practices for Protection against Somalia Based Piracy (BMP 4), which was produced and supported by a substantial amount of international organisations.

Despite the various measures taken by various national and international stakeholders to regulate the use of PCASP onboard vessels other serious matters threatened to undo all the hard work. The acceptance of PCASP gave rise to the incorporation of countless Private Maritime Security Companies (PMSC) which due to their relative infancy, remain by and large unregulated, with each company using its own set of terms and conditions. It is believed that there are now in excess of 200 PMSC in operation. Whilst there are some very reputable firms actively operating for the common good, there are also those firms that are most likely operating without adequate insurance cover and substandard terms and conditions. Unfortunately, it only takes a few bad apples to spoil the bunch and therefore The Baltic and International Maritime Council (BIMCO) was quick to step in and draft a standard contract in order to try and weed out the subpar PMSC.

Criminal Liability

The much anticipated GUARDCON (Standard Contract for the Employment of Security Guards on Vessels) was very recently published by BIMCO. Probably the most discussed clause during the drafting stage of GUARDCON was Clause 8 and it will undoubtedly continue to be the subject of much debate. This clause clearly states that "the Master shall, at all times throughout the duration of this Contract and the performance of the Security Services, have and retain ultimate responsibility for the safe navigation and overall command of the Vessel". This is required by the Safety of Life at Sea Convention (SOLAS), to which Malta is a party. The clause goes on to state that any decision by the Master is binding and the PMSC shall instruct the security personnel to act accordingly. The master retains the ultimate control to the extent that he can order the security personnel to cease fire at any point and under any circumstances.

However, security personnel (and anyone else on board for that matter) retain the right of self-defence in accordance with the applicable national laws. In this respect were the Maltese national laws on self-defence to apply, the Criminal Code states that "No offence is committed when a homicide or a bodily harm is...permitted by law...or is imposed by actual necessity either in lawful self-defence or in the lawful defence of another person." Under the Maltese Criminal Code, a justifiable homicide is not considered as being an offence and is not punishable. For a defence of justifiable homicide to hold up in a Maltese court, certain elements must be satisfied. The person who is claiming self defence must prove that he acted in such a manner so as to protect himself from harm that was illegitimate; actual and present during the defence; and that the danger was inevitable, i.e., it could not be avoided. Furthermore, the danger must also have been grave and in this respect by adhering to Carrara's theory, Maltese law considers only harm in relation to life, the body or chastity, as that which could be considered as grave. Another crucial point to be kept in mind is that Maltese case law, with reference to an instance of excess in legitimate defence states, that self defence cannot be claimed by a person who was in fact the first aggressor.

In accordance with Carrara's theory, self-defence cannot be claimed by a person who acted in order to protect his own property, as the danger in such a situation would not be considered grave. The Criminal Code does legislate for the situation when homicide or bodily harm is committed in the act of repelling, during the night-time, the scaling or breaking of enclosures, walls, or the entrance doors of any house or inhabited apartment, or of the appurtenances thereof having a direct or an indirect communication with such house or apartment. It also legislates for situations where the homicide or bodily harm is committed in the act of defence against any person committing theft or plunder, with violence, or attempting to commit such theft or plunder. However, in such a situation, the homicide would be considered as excusable homicide which affords a reduction in punishment.

Whilst a solid defence under the first situation of excusable homicide is possible, the same could not be said where the homicide is committed against a person committing theft or plunder with violence or attempting to do so. International law makes an important distinction between piracy jure gentium, as traditionally defined in the United Nations Convention on the Law of the Sea (UNCLOS), and armed robbery at sea as contained within the provisions of several international instruments. The definition of piracy jure gentium in Article 101 of UNCLOS, which has been incorporated in the Criminal Code of Malta, does not seem to envisage theft or plunder. On the other hand the International Maritime Bureau's (IMB) definition of piracy does allow for low-level theft and crime to be included. However, it is unlikely that the same issues would arise in this situation if an attack where to happen in territorial waters, in which case such attack would be considered as "armed robbery against ships" and not piracy.

To read Part II of this article please click here

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