Armed Guards: Hopefully Image Is Everything!

By Dr Jean-Pie Gauci-Maistre Advocate

B.A., MICS, MSc (WMU), LL.D.

The evidence is that ships with armed guards

dont get attacked, dont get taken for hostage or for ransom, and so we think this is a very important step forward. A statement of intent made by the British Prime Minister last October in the build-up to the decision to start allowing armed guards onboard UK flagged vessels; a decision which shortly after was endorsed by Transport Malta (TM) and other States. At no time should we underestimate the seriousness with which this decision was taken and the important legal implications which are attached to this endorsement. Privately Contracted Armed Security Personnel (PCASP) could find themselves entering the territory of no less than three countries on any mission; excluding any territorial seas entered by the vessel en route. The civil and criminal law implications within each and every state need to be considered and proper representatives in the different States have to be consulted in order to ensure that no law is being breached. Nonetheless, the reality is that whilst concerns were raised by those who advocate that armed guards onboard vessels only serve to escalate matters, many in the industry quickly sat down and started submitting their applications to the respective flag administrations to get armed guards onboard their vessels transiting the Gulf of Aden. It does not necessarily mean that the international concerted effort, through EU NAVFOR, Operation Ocean Shield and CTF 151 was a failure but it gave a clear sign that shipowners wanted to grab the bull by the horns and tackle the threat of piracy head on. Transport Malta, soon put together their own requirements for allowing PCASP onboard Malta flagged vessels which are based on the Revised Interim Recommendations for flag states regarding the use of privately contracted armed security personnel onboard ships in the high risk area (MSC.1/Circ.1406/Rev.1), in conjunction with the other MSC notices and MS Notices 71 and 82.

The Malta flag administration did not take the pressure to accept armed guards onboard lightly and this is evident by the stringent procedures which they require applicants to abide by. Furthermore, despite the newly adopted stance the message must be clear; each application is thoroughly vetted and accepted on a case by case basis. Apart from requiring that all the documentation is in order and all policies are abided by, applications are accepted based on a risk analysis basis. This is a very reasonable stance given the legal uncertainties that may still arise. Also, the acceptance of PCASP is strictly an additional measure which can be added to the Additional Ship Protection Measures such as additional look outs and enhanced bridge protection as outlined in the Best Management Practices for Protection against Somalia Based Piracy (BMP 4). With regard to insurance issues, the policy adopted by Transport Malta, in line with the MSC circulars, is that the private maritime security companies (PMSC) must hold and will maintain for the duration of the contract public and employers liability insurance cover to an appropriate level and as required by the shipowner; and personal accident, medical expenses, hospitalization and repatriation insurance. It also advises shipowners to verify that PMSC terms of engagement do not prejudice or potentially prejudice the shipowners insurance cover. The Rules of Engagement (RoE) of the PMSC offer a good insight as to how the flag administration perceives the use of PCASP. Now obviously, what is stated in the RoE and what actually happens in a hostile situation are sometimes worlds apart; however based on the premise that the RoE is abided by, a flag administration would be content to see that procedures include that a PMSC must take all reasonable precautions not to injure any person(s) onboard a hostile targets vessel(s) and that at no time should a person be deliberately targeted. Rather the engines and the hull should be targeted to disable the approaching boat and reasonable force must be used. Ultimately, one could say that the frame of mind must be to prevent or subdue an attack (in that order) above all else by show of force rather than actual force. The truth of the matter is that like every crime, piracy cannot be eradicated but only subdued. What is even more worrisome is how to tackle a problem when the root cause of that problem cannot even be agreed upon by the various stakeholders. There are those who argue that the problem is at sea and should be dealt with accordingly whilst there are those who uphold that once the issue on land is resolved, the issues at sea will sort themselves out. But whilst that debate goes on, shipowners and cargo owners alike want to protect their interests at sea. The reality is that flag

administrations found themselves between a rock and a hard place and for those that did accept the use of PCASP, creating the framework within which to operate was no easy feat. The MSC circulars are quick to state that the recommendations do not address all the legal issues that may arise when placing PCASPs onboard vessels. Therefore, the legislative and procedural implications for each State cannot be underestimated and for this TM must be commended for doing its utmost to strike a balance between its obligations to the State and to shipowners. One can only hope that the acceptance of armed guards onboard will not slow down the international efforts to find other solutions to curb acts of piracy. The use of PCASP should be seen as a temporary solution and the onus is now on the flag States and the IMO to keep the momentum going to identify these other resolutions. 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.