Lawyers are getting increasingly concerned about the issue of armed guards, and are urging clients to understand the legal boundaries that frame their use.
Writing in Lloyd’s List, Andrew Preston and Nick Purnell of Clyde & Co in London commented on the fact that flag States are being pushed to allow armed guards to be stationed on vessels to protect ships and their crews from the threat of piracy.
Despite the IMO’s Interim Guidance to Shipowners, Ship Operators, and Shipmasters on the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area, there remain a number of complex legal issues and commercial risks that parties should be aware of before making the decision to station armed guards on a vessel.
They raise a number of key questions – For instance, “under what circumstances can armed guards use force against pirates?” This sounds straightforward, in that the laws governing the use of force will be those of the flag State of the vessel, and security personnel must be bound clearly by these rules. However with many different flags, come many different rules and interpretations. This makes it actually rather complex.
It should be noted that the Security Associaton for the Maritime Industry (SAMI) is working with flag States, lawyers, maritime security companies and shipping organisations to promote and identify solutions to the rule of force conundrum. They are looking to establish blanket rules which will be tested by a barrister, and which flag States can apply – which will provide a more clear and unified view.
What of the ship’s “Chain of command” the lawyers ask? Well both SOLAS and the ISPS Code require that the master of the vessel has the authority, and ultimate responsibility, for the safety and security of the ship. Though this doesn’t paint the whole picture. Security personnel may wish to have discretion to use force without the authorisation of the master if, in their view, it is necessary for their self defence. It is perhaps easy to imagine that in the “heat of battle” stopping to obtain the authorisation of the master may not be possible nor practicable.
This creates the potential for real tension onboar, with the security personnel’s degree of control and discretion in their use of force versus the requirement for the master to have ultimate authority and responsibility for the vessel.
There are no real, clear answers at the moment it seems.
Another significant issue is that of “Weapons licensing” – there are criticims that most maritime security providers are finding it incredibly difficult to license weapons correctly. Indeed tHE laws governing the carriage and use of weapons in a number of states are extremely complex, and there are potentially serious civil and criminal penalties if there is a breach of weapons licensing laws.
Many international laws and treaties exist to stem the proliferation of arms, given this, companies should tread very carefully. It will be necessary to take appropriate legal advice to ensure that both the security personnel carrying weapons and the company owning the weapons acquire all the necessary licences and consents for the possession and carriage of weapons from all relevant legal jurisdictions in the course of a voyage.
One question on the lips of many across shipping is how do we choose a security company – with no international regulation and accreditation for maritime security companies, there are considerable concerns about the maturity and capability of security companies and concerns about industry “cowboys”.
However, help is at hand as both the IMO and several P&I clubs have issued guidance to shipowners and ship operators on the due diligence that should be conducted in relation to choosing a security company. Plus SAMI is in the process of developing a standard which will be accredited against and maritime security companies which pass the SAMI accreditation will be considered to have made every effort to ensure that their company structure, their processes, procedures, safeguards and personnel are all in order. This will be a huge and significant reassurance to the industry.