Jonathan Moss takes a look at piracy and the role of armed security guards.
Back in April the Dongfang Glory, a Malaysian-owned tanker, was attacked by pirates. After detaining the crew, the assailants offloaded fuel stored in the hold. After three hours of siphoning the cargo, the pirates destroyed the ship’s communications systems and escaped with around $100,000 worth of petroleum1.
In light of such attacks vessel owners have to consider what measures are most effective for their protection and to repel such occurrences. In 2010 armed guards went from being a risky prospect to the industry standard for many of the world’s big shipping firms2. The industry has been dominated by British firms and guards who have had careers in the military, particularly highly experienced former Royal Marines and there are now hundreds of armed guards at sea every day.
However, the transition to the use of armed guards has not been without resistance and the potential escalation of the use of force remains one of the bedrocks of the argument against their deployment. Permitting the use of weapons also heightens the risk of serious injury to people, property, the ship itself and the surrounding area. Historically, the main concerns have been:
- The fear of escalating violence;
- Identity of the guards;
- Issues of jurisdiction in foreign waters; and
- The issues of control and who will have final say.
Despite the associated angst and the armed guard option appearing particularly excessive when compared to alternative measures including; water cannons, lasers, foul smelling liquid deterrents and nets3, their use has proved effective4.
The risks associated with the use of armed guards should in no way be underestimated. There are serious concerns about the potential for unforeseen accidents, the misuse of firearms, the escalation of violence and the subsequent criminal and civil litigation arising from any potential unlawful death or injury.
There can be complications with the use the firearms in foreign waters with countries often wanting to try guards who falsely use weapons and kill or injure their nationals. The mistaken use of weapons can lead to jurisdictional complications, for example India’s decision to use anti-piracy law against two Italian marines accused of killing two Indian fishermen in 2012 whom they claim they mistook for pirates, which led to a diplomatic row with Italy.
The lack of clarity over regulations and standards brings with it uncertainty as to what armed guards have authority to do. There is also the risk that the pirates may adapt and enhance their ship-hijacking capabilities, which would bring forward new and more difficult challenges.
Permission to operate?
Under the 1982 United Nations Convention on the Law of the Sea every ship is subject to the jurisdiction of the country whose flag it carries. The ships must also comply with the rules of the territories and applicable ports that they enter. Even if permitted to carry weapons by their flagged state, they will often be prevented from entering into certain waters with these weapons.
To bypass the complication and expense of certain international laws, certain maritime security companies use floating armouries. These allow ships to offload controlled goods onto the floating armoury before entering into territorial waters and to collect them once again when they return to international waters. But this method is not without risk. It brings with it the concern that the floating vessel may be used to store controlled goods and by doing so the ship could be acting illegally.
Before contracting with (or deploying) armed security, ship owners should consult their flag state to ensure that any statutory requirements are complied with.
The force they are allowed to use
The scale of force permissible is largely dictated by individual country regulations. Under the law of England and Wales, the force used must be proportionate and reasonable and must be for self-defence, protection of others, protection of property or prevention of crime .
According to maritime law, the ship’s Master has ultimate responsibility for the operation of the ship and for the safety and security of its passengers, cargoes and crew. It is essential that all armed guards fully understand the rules for the use of force as agreed with the shipowner and Master. 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 midst of an attack. It has been widely contended that armed guards have a right to use force in instances where it is necessary in their self-defence. As a result this is usually allowed for in the terms of security contracts.
It remains that the providers of maritime security should require their personnel to take all reasonable steps to avoid the use of force. If force is used, it should be in a manner consistent with applicable law. In no case should the use of force exceed what is strictly necessary and reasonable in the circumstances. Care should be taken to minimise damage and injury and preserve human life.
Impact on insurance
The type of insurance required to cover piracy includes Hull & Marine, War, Kidnap & Ransom and P&I cover. When considering whether to deploy armed guards, shipowners should carefully check the terms of their insurance policies to determine whether their cover could be affected by the presence of such guards. If the use of armed guards is in breach of any law or regulation, cover could be prejudiced.
Shipowners must also contemplate any potential problems, which may arise out of the action taken by those guards. Many P&I policies exclude the use of ‘Weapons of War’, and cover could be prejudiced in respect of any damage caused by such weapons.
The IMO recommends that shipowners should verify and seek evidence that the maritime security company maintain insurance cover for themselves, their personnel and third-party liability cover as well as ensuring that their terms of engagement do not prejudice the shipowner’s insurance cover.
As can be seen any incident can have severe consequences and it is strongly advised that shipowners contact their insurers before contracting with security providers in order to assess the potential impact on their insurance cover.
By employing armed guards, vessel owners are making a calculated trade off: a perceived decrease in the risk of the ship being hijacked and the subsequent exposure to further risks it brings, against the possible chance of the vessel being damaged, cargo stolen and the crew harmed. 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 using the minimal force necessary to do so.
What must be remembered by vessel owners however is that flag State jurisdiction and thus any laws and regulations imposed by the flag State concerning the use of private maritime security companies and arm guards apply to their ships.
MAST (a leading maritime security company) acknowledges that any incident involving the lethal use of force will undoubtedly be scrutinised by third parties and maintain that the carriage, storage, handling and use of firearms should be carried out in a professional, discrete and safe manner at all times. Notwithstanding the divergent views, and despite a recent trend in users of armed guards potentially seeking a move away from their employment, it seems that so long as piracy remains an issue for shipowners, then so too will the debate remain live regarding the deployment of armed guards.
Jonathan Moss is Partner and Head of Transport, DWF. Jamie Hoffman carried out additional research. DWF’s Transport group brings together a national network of over 50 lawyers, offering a full range of legal services to government and private sector clients across the automotive, rail, maritime, and logistics industries. The firm helps its clients navigate the challenges of the dynamic national business environment, providing counsel on issues related to insurance, employment, asset finance, and government procurement, and advising on issues as diverse as intellectual property rights and supply-chain risk management. www.dwf.co.uk
9 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/204123/use-of-armed-guards-to-defend-against-piracy.pdf. Para 5.
10 The Master’s authority is defined in SOLAS XI-2 regulation 8(1) which forms part of annex 1 to European Regulation (EC) No 725/2004.