Canada: Armed Guards On Ships To Fight Pirates

Guidance from the IMO on how to hire guards to protect a ship from pirates.

Piracy has become ever more of a scourge to contemporary maritime trade, especially in the "High Risk Area" off Somalia. In the first six months of 2011, pirates attacked 266 vessels (163 of them near Somalia), resulting in the taking of 495 seamen as hostages and the payment of untold sums of ransom. Understandably, shipowners have had their fill of such calamities and are casting about for solutions. One option is to hire armed security guards to protect their ships when transiting pirate-infested waters. This practice, although not endorsed by the International Maritime Organization (IMO), was addressed at the 89th session of its Maritime Safety Committee, held in London from May 11 to 20 last. The Committee approved and the Council authorized the convening of an intersessional meeting of the Maritime Security and Piracy Working Group (September 13 to 15, 2011) to update the guidance. The result is a document, entitled Revised 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 (September 16, 2011). See link here.

The Maritime Safety Committee stresses in this document that hiring "privately contracted armed security personnel" (PCASP) working for "private maritime security companies" (PMSC's) must not be considered as an alternative to following the "Best Management Practices" developed by the industry to combat piracy in the waters concerned. Moreover, such hiring should occur only after the shipowner has conducted a comprehensive risk assessment and has observed port state, flag state and coastal state laws governing the carriage and use of firearms.

A PMSC should be selected by using "the usual due diligence". Factors to be evaluated include the company's structure and place of registration; its ownership and financial position; the extent of its insurance cover (especially applying to third-party risks); its senior management experience and any quality management indicators such as ISO accreditation. The PMSC should be able to produce documents attesting to its maritime experience, its management procedures, and its understanding of flag state, port state and coastal state requirements regarding the carriage and use of firearms. It should be able to produce written references from previous clients and evidence that firearms are procured, transported, embarked and disembarked legally. The company should show that it understands the Somalia-based piracy threat and the Best Management Practices and that it has access to legal advice seven days a week at all hours.

As regards the all-important matter of selecting the armed personnel, the Revised Interim Guidance recommends that PMSCs be able to provide documentary evidence as to the onboard teams of PCASP, including evidence as to background checks by the PMSC into criminal, past employment and (where applicable) military and law enforcement records of those employees. Documentary evidence should be available, including personnel records of the employees' medical, physical and mental fitness, and the system established to ensure their continued suitability for employment, as well evidence of their relevant experience and certification in using and carrying firearms to be deployed.

Shipowners should verify that PMSCs have adequate training procedures in place for the PCASP. PMSCs should be able to provide comprehensive and detailed records of their employees' initial training and refresher courses, their shipboard familiarization training, their training in the use of force according to flag state principles and their knowledge of the operation of specific firearms and other security equipment to be used on the vessels concerned. Documentary evidence as to the giving of medical training, up to a recognized international standard, should also be available. Training or briefings of the PCASP on vessel types and trading places and on the International Ship and Port Facility Security (ISPS) Code, the International Safety Management (ISM) Code and the Best Management Practices may also have to be documented.

The Revised Interim Guidance further recommends that shipowners verify that PMSCs have insurance coverage for themselves, their personnel and third-party liability and that the terms of engagement do not prejudice (actually or potentially) the owners' own coverage. Owners should consult with their underwriters to assess the potential impact on their insurance coverage, particularly as it relates to armed engagements and the PMSCs' liability insurance. PMSCs should provide evidence that they hold and will maintain for the duration of the contract: 1) public and employers' liability insurance cover to an appropriate level and as required by the shipowner; and 2) personal accident, medical expenses, hospitalization and repatriation insurance. PMSCs should insure their own personnel against liability claims arising from the carriage and use of firearms on the high seas and territorial waters. Owners, charterers and underwriters should review charters and policies in relation to these matters.

The IMO document further stresses the importance of discussing and agreeing to the size, composition and equipment of the proposed PCASP team, considering factors such as the estimated transit time, the latest threat assessment, the team's duties, the size and type of vessel, the crew size limitation set by the ship's safety certificate, the equipment requirements and team leader's qualifications.

Owners and managers thinking of engaging armed guards to protect their ships from pirates should study carefully this Revised Interim Guidance from the IMO before contracting for such services. BLG can assist its clients in this process.

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