Introduction
It is clear that piracy is a serious threat to shipping across large parts of the Indian Ocean and Arabian Sea, as pirate groups grow in strength, resources and expertise. In the first nine months of 2011, 346 attacks on vessels had been reported to the IMB Piracy Reporting Centre, while 277 hostages and 15 vessels are held captive by Somalian pirates at the time of writing. It has become apparent that a number of pirate groups are using captured vessels to act as motherships to increase their operational range, and of particular concern it appears that pirates are becoming increasingly aggressive in their use of weapons, and willing to make threats to harm the crew of hijacked vessels.
In this context, there have been a number of international responses to the threat of piracy. Firstly, in high risk areas naval forces, including EU and NATO forces, are present to deter and protect vessels from acts of piracy. Secondly, shipowners are advised to implement protective measures on vessels and to follow the recommendations in the latest version of the Best Management Practices for Protection against Somalia Based Piracy (BMP4).
In addition, an increasing body of opinion has developed in favour of the view that the deployment of armed guards on board vessels should be an option left to the discretion of the shipowners. This is primarily down to concerns that the ability of naval forces to protect shipping across such a large geographical area is limited, and doubts that compliance with the Best Management Practices alone may not be enough to ensure that vessels have adequate protection from pirate attacks, particularly if naval forces are not in close proximity at the time of the attack. The IMO has recently published revised guidance on the issue, and a number of flag states (such as the UK) are currently considering legislative proposals that will allow shipowners to station armed guards on their vessels, while other countries, such as Norway, have already implemented reforms.
However, the use of armed guards raises a significant number of legal and practical issues. There are serious concerns about the potential for unforeseen accidents, the misuse of firearms and the escalation of violence. As a result, there are questions over the rules and protocols governing actions of armed security personnel and specifically under what conditions the use of force is permissible in order to defend against an attack. There are also widespread concerns that, in a rapidly increasing and unregulated market, a number of operators may not hold the expertise and capability necessary to carry out armed maritime security services, particularly as there are currently no binding international standards governing the use of privately contracted armed security personnel.
Ship Security Measures and the BMP4 Guidelines
When considering the suitability of security measures for a vessel travelling through an area at risk of piracy, it is important to carry out a thorough risk assessment. There is no "one size fits all" policy of the appropriate security measures for a vessel, given that the risk assessment should be tailored according to the specifications of the ship, and should be voyage specific, taking into account the latest information on pirate activity on the proposed route. The BMP4 Guidelines suggest a number of Ship Protection Measures (SPM) which should be considered, including razor wire, water spray and ballistic protection for crew located on the bridge. Each of these suggestions should be considered on a case-by-case basis following the risk assessment.
One potential measure recommended in the BMP4 Guidelines, which has proven to be effective against pirate attacks is the use of a "citadel"; an area purpose-built into the vessel where in the event of imminent boarding by pirates, the crew can seek refuge as a last line of defence. Once inside this safe haven the crew are able to protect themselves and communicate with naval forces in the area, prompting a military intervention against the pirates. Although the use of citadels has achieved considerable success, there are still concerns with their use. The ICC International Maritime Bureau report on piracy and armed robbery against ships for the period 1 January - 30 June 2011 states that citadels "are not foolproof, and a badly planned and equipped citadel may ultimately prove to have a worse outcome than no citadel at all". The effectiveness of a citadel will also be dependent on an appropriate and prompt naval response forthcoming from a military vessel in close proximity, which as pointed out in the BMP4 Guidelines, cannot be guaranteed. The IMB report notes that if a naval response is not forthcoming, there is a danger that the crew could be trapped in the citadel with "no means of knowing when it is safe to emerge". Further, there is the possibility that pirate groups may be able to breach the defences of a citadel and capture the crew regardless.
The BMP4 Guidelines also state it is a "fundamental requirement" for vessels to register with MSCHOA prior to entering the High Risk Area. Vessels are also strongly recommended to report daily to UKMTO when in areas at risk of piracy, as it acts as the primary point of contact for merchant vessels in the area and liaises with naval forces in the region.
It is clear that effective use of ship protection measures in the BMP Guidelines, including the use of citadels, has contributed to the reduced success rate of pirate attacks to successful hijacks, which has declined from one in four in the first half in 2010 to one in eight in the first half of 2011. The more detailed and comprehensive guidelines included in the latest version of the BMP Guidelines, as well as greater awareness of the importance of compliance with the guidelines, seems likely to reduce this further. Nevertheless, there is a concern that compliance with the BMP Guidelines alone may not be enough to protect ships from pirate attacks, given that pirates are becoming better armed, more skilled and increasingly aggressive in their use of firearms, and naval forces remain thinly spread across the region.
Legal and practical considerations on the use of armed guards
After carefully considering the implications of the flag state and insurance positions on the use of armed guards, 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 only using the minimal force necessary to do so. Consideration should be given to whether the guards will act as additional lookouts on the vessel or assist with rigging ship protection measures. Following this discussion, the role and function of the armed guards should be incorporated into the Ship Security Plan (SSP).
The risks associated with the use of armed guards should not be understated. The presence of firearms on a vessel may give rise to unforeseen accidents and criminal and civil litigation arising from any potential unlawful death or injury. It is therefore important that the security company's standard operating procedures and Rules for the Use of Force (RUF) are carefully drafted to give a detailed, graduated response plan to a pirate attack and provide that security personnel must take all reasonable steps to avoid the use of force. In practice, this will mean that other security measures recommended as part of the BMP4 Guidelines, such as defensive manoeuvring of the vessel, should be used before considering the use of force. Further, following the revised IMO guidance, the RUF should state that firearms should only be used against persons by security personnel in self defence or the defence of others against an imminent threat of death or serious injury.
Operational procedures and authorisation to use force
The SOLAS Convention and ISPS Code require that the master of the vessel has the overriding authority and responsibility to make decisions with respect to the safety and security of the ship. 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 heat of an attack.
It has been widely argued that security personnel have an inherent right to use force in instances where it is necessary in their self defence, and that the members of the security team should have a discretion under the RUF to use force without the master's consent in these circumstances. This concern is reflected in the drafting of a number of contracts for maritime security services, which provide that security personnel may use force in situations where the use of firearms is necessary in self-defence, despite the fact that the use of force may not be expressly authorised by the master.
Going further than this approach, it has been also been suggested that it may not be appropriate to require the security team to seek the master's express approval for the use of force in situations where an immediate response is needed and it is impractical to seek the master's authority to act. For example, it may be difficult to acquire the master's authorisation to use force where pirates are using "swarm" tactics and are attacking the vessel from different sides using multiple skiffs. In these situations, it has been suggested that it is appropriate for the master to allow the security team to take certain operational decisions based on pre-agreed security protocols.
This proposed position has resulted in considerable debate, including amongst P&I Clubs. On one side of the argument it has been suggested that it is a clear requirement of the ISPS Code and the SOLAS Convention that the master has the ultimate responsibility for security on the vessel and that it is therefore not possible for the master to delegate authority to act under any circumstances, and that any decision to use force must be the master's alone. However, there are concerns with this strict interpretation of the SOLAS Convention and ISPS Code as there may be circumstances in which the master's authority cannot be sought to act; for example, if the master is incapacitated or is not in an adequate position to be able to make a judgment call. In a situation where "swarming" tactics are used by pirates and where multiple vessels are attacking the ship, it may be difficult for a master to co-ordinate ship movements, ship protection measures and the use of force by armed guards at the same time.
As a result supporters of the view that the master should pre-approve the standard operating procedures and RUF of the security team that will be in operation for the duration of the voyage argue that in the heat of an attack, it may be more suitable to leave decisions on the use of force to professionally trained and skilled guards given the relative inexperience of a number of masters in taking decisions relating to armed engagement. Against this view, it has been argued that section 34-1 of the SOLAS Convention does not allow the master's discretion in decision making to be curtailed in this manner, as it undermines the master's ability to have full control of the vessel's security and therefore impacts on the safety of the crew.
One potential solution to this issue that has been adopted in some contracts for maritime security is that the security team is given authority to act according to certain security protocols that have been pre-agreed with the master, but the master is kept fully informed, and retains a right of veto to, at any time, remove authorisation for the use of force by the security team (although individual guards would nevertheless retain the inherent right to act in self defence, which may result in the use of force in certain situations).
There is no doubt that this debate will continue in this difficult area and many are looking to the IMO for further detailed guidance. At present, however, there can be no doubt that the issues covered in this article will need to be discussed at length between the shipowner, master and security team. Further, it will be necessary to ensure that when travelling through areas at risk of piracy, there are clearly defined security procedures and protocols which are approved by the master, and that each member of the crew, security team and the master must be fully aware of, trained in, and abide by these protocols.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
