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Industry delegates at the 2011 annual conference of the International Union of Maritime Insurance (IUMI) said there were more than 20,000 transits a year in the Gulf of Aden and the Indian Ocean.
Attacks by Somali pirates could rise to 250 in 2011 from about 200 in each of the two previous years, and pirates’ profits have already outstripped last year’s $80 million by reaching some $120 million in the year as of September,
BACKGROUND
Dr K Sumser-LupsonCapt. J Titahena
1. Legal aspects (Is it legal for there to be armed guards on board the vessel in the first place?)
2. What types of licenses which will need to be obtained? 3. In the event of hostilities involving pirates, how much force are the armed guards
allowed to use, and how will this affect the crew? 4. Will the presence of armed guards adversely affect any insurance cover currently
in place? 5. If the decision is made to use armed guards, which stakeholders need to be
informed? 6. What are the current legislations for the development and implementations for
placing armed private security guards on board commercial vessels?
SIX POINTSTo be considered by owners placing
armed guards on a vessel.
Dr K Sumser-LupsonCapt. J Titahena
1.Legal Aspects
(a) The Law of the Flag State provision in article 94(1) of the United Nations Convention on the Law of the Sea (“UNCLOS”) that each state must exercise jurisdiction and control over vessels flying its flag
(b) The law of the state where the vessel’s Owners and/or Managers are incorporated or have their seat of commercial operations
(c) The law of the coastal states and/or ports where the vessel will call Article 17 of UNCLOS entitles a merchant vessel to innocent passage through the territorial waters of a coastal state. Passage is classed as innocent if it is not prejudicial to the peace, good order or security of that state
Dr K Sumser-LupsonCapt. J Titahena
2. Awareness of necessary licences by contracting parties. (vessel owners, security companies)
(a) the flag state; (b) the port of embarkation; (c) all areas of transit; (d) any ports at which the vessel will anchor; (e) the port of disembarkation
Dr K Sumser-LupsonCapt. J Titahena
3. In the event of hostilities involving pirates, forces armed guards allowed to use, and are all parties fully aware? (i.e. Vessel’s Owners, Managers, insurers, Master, crew & security )
(a) The law of the flag state
(c) The law of the coastal states and/or ports where the vessel will call
(b) The law of the state where the vessel’s Owners and/or Managers are incorporated or have their seat of commercial operations
Dr K Sumser-LupsonCapt. J Titahena
4. Will the presence of armed guards affect insurance cover?
(a) Will include H&M & war risk policies as well as P&I cover.
International Group of P&I Clubs “Piracy FAQs” cover is prejudiced will depend on an analysis of the loss and causation on a case by case basis
(b) Deployment of armed guards itself will create insurance issues
P&I policies contain exclusions relating to the use of “weapons of war”, and cover - However claims could be covered under a war risks policy.
(c) SOLAS and ISPS code
SOLAS Regulations and the ISPS Code are clear on the fact that the Master must have the ultimate deciding role when it comes to the safety of the vessel and its crew.
Dr K Sumser-LupsonCapt. J Titahena
5. If decision to use armed guards, all concerned parties must be
informed
Charterers may seek to raise an argument against Owners that a voyage was not prosecuted with utmost despatch, or that an unauthorised deviation took place, if a security firm seeks to agree a route which is not the quickest or most usual route that the vessel could take.
Such arguments could amount to a breach of the charter party and so Charterers should be kept informed of the decision to deploy armed guards and any subsequent decisions taken as to the route the vessel is due to take
Dr K Sumser-LupsonCapt. J Titahena
6.State of Play [2011] for placing armed private security guards on board commercial vessels?
Date 2011
IMO -GUIDANCE DOCUMENTS
16th Sept MSC.1/Circ.1405/Rev.1 on Revised interim recommendations for flag States regarding the use of privately contracted armed security personnel on board ships in the High Risk Area
23rd May MSC.1/Circ.1406 Interim IMO Guidance on the use of privately contracted armed security personnel. On board Ships in the high risk areas. (based on Republic of Liberia issued Maritime Security Advisory 03/2011 for interim IMO Guidance)
20th May IMO Adopts interim guidance on use of privately contracted armed security personnel on board ships. Approved on Maritime Safety Committee 89th session
State of Play [2011] regulation
Dr K Sumser-LupsonCapt. J Titahena
Piracy Bill - H. R. 2839To suppress the threat of piracy on the high seas,
and for other purposes
‘‘SEC. 4297. PENALTY FOR PIRACY; SEIZURE AND CONDEMNATION OF VESSELS.
7 ‘‘(a) PENALTY FOR PIRACY.—8 ‘‘(1) CRIME.—Whoever commits an act of piracy shall be punished by death or imprisoned for life.
State of Play [2011] regulation. Interesting US response!
Dr K Sumser-LupsonCapt. J Titahena
Ship owner associations, have called on the United Nations to create an armed military force to be deployed on vessels to counter
piracy and restrict the growth of unregulated private contractors
The use of private security avoids the need for intervention by Navies but is likely to lead to pirates to change tactics and use
greater violence
PRESSING CONCERNS
Dr K Sumser-LupsonCapt. J Titahena
