Piracy

Issues  arising  from  the  use  

of  armed  guards
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By March 2011 the average duration of the hijacking of the most recent six ships released
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to calculate from open sources, but is estimated to be approximately US$4 million. These
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the corresponding periods last year. Despite the best efforts of the limited military resources,
the pirates seem unstoppable and, notwithstanding a greater use of citadels, vessels continue
to be hijacked. The use of armed guards remains a controversial policy but more owners are
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shocking events on the Beluga Nomination and the yacht Quest have again highlighted the
ruthlessness of the Somali pirates, particularly when threatened by military action.

D U B A I   |   H A M B U R G   |   H O N G   K O N G   |   L E   H A V R E   |   L O N D O N   |   P A R I S   |   P I R A E U S   |   S H A N G H A I   |   S I N G A P O R E
 P I R AC Y
Those in favour of the use of weapons were
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when the International Chamber of Shipping
(“ICS”) announced a change of stance on armed
guards, recognising that they were being used
off Somalia. The ICS also called on the military
to do more to disable hijacked “mother ships”
being used by the pirates. It is not clear whether
the ICS will be followed by other industry bodies.
Whilst the guidance in Best Management Practice
3 (BMP3) remains to discourage the use of armed
security, the UK and German governments are
understood to be reviewing their own position on
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respective registries. Both governments have been
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The debate on armed guards on board vessels
and the role of private security companies is
ongoing. The unique selling point for the security
companies is that to date no ship with armed
guards has been hijacked. However the potential
escalation of the use of force remains one of the
bedrocks of the argument raised against the use
of armed guards on ships. By employing armed
guards on board a vessel an owner is making
a calculated trade-off: a perceived decrease in
the risk of the vessel being hijacked and the
subsequent exposure to the losses this brings,
against a possible increase in the chance of the
crew being harmed or the vessel damaged should
pirates attack or invade the ship.
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responding?
The attempts by the maritime security industry
to regulate itself is a welcome initiative. In
particular the efforts of the Security Association
for the Maritime Industry (SAMI) who are seeking
members to join and to set minimum standards
of conduct and procedures. All companies are
being encouraged to adopt the new International
Code of Conduct for Private Security Companies.
Though this is primarily aimed at land based
security companies, a maritime annex is being
drafted. It is likely that those companies prepared
to separate themselves from the pack in this way
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The danger to owners and insurers is that an
increase in demand for armed guards will lead to
a decrease in quality.
Who  is  in  charge  of  the  ship?     overall authority on board. Owners, charterers
If armed guards are onboard, a fundamental
question arises as to who authorises the use of
force. Security companies still seek to insert
clauses which appear to provide that the master
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in whether weapons will be deployed and used.
That decision may rest with the security team, on
terms that the master only need be consulted “if
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with a lethal threat, the right to self defence
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crew and the environment.
In other words, the master may not have full
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something which impacts directly on the safety of
the crew and the vessel. Indeed there may be a
contractual obligation for him to obey “security”
instructions from the guards which extend to the
routing of the vessel, possibly without regard to
any contractual obligations to charterers and/or
cargo interests.
The use of armed force on a vessel must relate
to the safety of the crew and the protection of
the environment and yet, by employing armed
guards, owners may be forcing masters to give up
that discretion in breach of SOLAS Regulations.
This could lead to issues arising under SOLAS,
which at Article 34-1 provides:
“The Owner, Charterer, the Company operating
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This message is reinforced in the ISPS Code which
states:
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ship….”
This was reinforced graphically after the Maersk
#NCDCOC case in 2009, where Captain Phillips
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Committee said:
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His comments seem to support the belief that
masters will not be happy to give up any of their
and others should therefore give serious thought
as to how they would deal with the issue of
authority on board the vessel when considering
employing armed guards.
Armed  escort  ships
Using an armed escort in a high risk area may
seem easy in theory. However the practicalities
are causing real problems as the status of these
companies and therefore their vessels is not
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both in terms of responsibility to the master of
the ship under escort and under international law
as, under Article 107 of UNCLOS, power is given
only to military vessels to seize ships involved
in piracy. Questions have been raised as to the
legitimacy for these private gun boats. Some
arguments have even arisen as to whether the
armed intervention of a gun boat is in itself piracy.
 
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Innocent Passage, stating:
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The provisions on the rights of transit and the
regime of local laws in middle eastern countries
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controversial. Those considering providing such
a service as an agent of a commercial ship owner
should pause for thought.
Various approaches being considered at present,
such as the recently announced initiative from
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of private escort vessels to run a Convoy Escort
Programme, mean that the issues set out above
will need to be addressed.
Can  armed  guards  or  escort  boats  use  
lethal  force?     (QTVJGTGCUQPUIKXGPCDQXGFCOCIGCTKUKPIHTQO
Any use of arms must be governed by clear Rules
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ő47(Œ6JGTGCTGCUOCP[ may give rise to an argument under the bill of
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must be some merit in trying to develop a uniform
system which all companies and operators agree
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to the contract and discussed in detail with the
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expect to govern the use of force in deterring or
preventing what is a criminal act. In the UK for
example, lethal force is normally only allowed
where there is serious and imminent threat to
life. The decision to use lethal force must be
reasonable and the force used proportionate.
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protect themselves and pirates intent on hijacking
a vessel should be possible but perhaps only at
the last moment. There has undoubtedly been at
least one incident where an armed security team
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effect.
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presence on board of military personnel, these
issues may well be more straightforward.
There is some movement in this area in the
United States, where proposals have been made
that immunisation against prosecution should be
given to those who injure or kill a pirate whilst
protecting a ship from attack.
Who  needs  to  know?  
i) Insurers
Clearly prudence dictates that the use of armed
guards should be discussed and agreed with
all underwriters. Although not a question of
“disclosure” for existing policies which are not
being extended or varied, there are many other
possible implications. We can envisage arguments
that the practice may affect the validity of a
policy, and/or the recoverability of a claim under
a valid policy. Arguably, this could be the case
even if the security providers were on board with
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through pirate-infested waters requires a variation
of a policy (for example because it involves
a change of trading limits), then disclosure
considerations also apply.
ii) Cargo interests
or caused by the use of armed forces, particularly
if the use of that force was negligent or illegal,
lading contract that the vessel was unseaworthy.
Informing cargo interests of the intention to arm
the vessel should therefore be considered.
iii) Charterers
The security providers are likely to want to agree
a route prior to transit of a high risk area. That
route may not be the normal or quickest route
and may represent a deviation or a failure to use
utmost despatch under the relevant charterparty.
An unauthorised deviation may mean a breach
of the charter and/or contract of carriage which
could then jeopardise the P&I cover. There
3
 P I R AC Y

may also be off-hire implications. Interesting signs that they many may simply be ignoring
questions could arise, for example, if the vessel these regulations. Sometimes, oblivious to the
was taken by pirates whilst deviating. UQWTEGCPFRTQXGPCPEGQHVJGYGCRQPU(NCI
States approval is then given and their lead is
What  happens  if  someone  is  killed  or  the   then followed by the underwriters. The result is
ship/cargo  is  damaged  during  a  hijack  as   that they may simply be approving unlicensed
a  result  of  the  actions  of  the  guards?     weapons on board. With recent events in the
Middle East and Africa, the whole issue of
exported equipment has become serious. The
The security contracts may have a “knock for
industry wants the option of arming their ships,
knock” type provision, which means that in the
but the licensing system, certainly in the UK,
event that a guard or crew member is killed
is cumbersome and needs streamlining. We
without negligence occurring, then the loss falls
continue to work with companies advising on
where it lies and there is no recourse between
these issues.
owner and the security company. The security
company may have some kind of “Public
Liability Insurance” to cover them in cases Conclusion  
where there has been negligence. That may not
prevent owners being sued by dependants or The issue of using armed guards on board
cargo interests if they think there is fault or some vessels will continue to be debated. The key
other breach (such as the duty of care under an concern for owners is to ensure the safety of
employment contract) on the part of owners. their crew and their vessels. In doing so it is
Anecdotal evidence suggests that there have vital for owners, charterers and underwriters
been attempts to persuade P&I Clubs to agree to review all provisions in their charters and
to treat guards as supernumeraries and therefore policies and ensure adequate attention is paid
be covered as if they were crew. to the questions raised. Shipping companies
will need to address the authority of the master
Licensing  of  weapons and crew once armed guards are onboard. The
international law-making fraternity is currently
dealing with jurisdictional issues, but it will
The licensing regime, particularly in the UK
soon need to address more formally the status
in respect of controlled weapons, casts a
of private security companies and their role
wide net and applies to UK companies and
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nationals (wherever they are) and to foreign
continue to be put on the legalities and licensing
companies set up by UK nationals, where
regimes and we continue to review and advise
the foreign company is set up for the sole
on the relevant contracts.
purpose of acquiring and moving weapons.
Given the identity of the littoral states, the
myriad of export and import regulations and Contact
the requirement to arrange bonded stores of
weapons, it is unsurprising that many grey areas (QTHWTVJGTKPHQTOCVKQPQPVJKUUWDLGEVRNGCUG
GZKUV+VKUCNGICNOKPGſGNFVJTQWIJYJKEJVJG contact Stephen Askins or your usual Ince & Co
private security companies must tread. Indeed contact or visit our website www.incelaw.com.
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Parliament that the UK had one of the strictest Stephen Askins
GZRQTVTGIKOGŏUKPVJGYQTNF6JGTGCTGYQTT[KPI Email: stephen.askins@incelaw.com
Tel: +44 20 7481 0010

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