Piracy, Armed Guards & BIMCO GUARDCON Naples 8 October 2012 Christopher South

THE UNIQUE PROBLEM ■ It is a unique situation where merchant vessels are having to employ armed guards (usually civilians) on board ■ It is unique that these civilians are employed to potentially use lethal force ■ Over 200+ Armed Guard Companies – SAMI at least 172 members (Security Association for Maritime Industry ) ■ Need for standardisation of contract ■ Marine security industry unregulated as to standards of operation Next Year ? The standard, ISO 28007, Ships and marine technology Guidelines for private maritime security companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships

IMO The standard by which owners may be judged

IMO 1443 – Guidance to PMSC – 25 May 2012

BMP & IMO Guidance Documents ■ IMO 1405 addressed to owners Section 1.5 The use of PCASP (PMSC) should not be considered as an alternative to Best Management Practices (BMP) and other protective measures ■ IMO 1443 addressed to PMSC Section 5.15 on Use of Force all reasonable steps should be taken to avoid the use of force and, if force is used, that force should be used as part of a graduated response plan, in particular including the strict implementation of the latest version of BMP

Legality ■ The employment of armed guards must be legal ■ Wrongful or unlawful employment would invalidate insurance ■ Wrongful employment may be criminal ■ Public Policy – Can’t insure against consequences of committing a crime ■ Flag State and PMSC Licences

Number of Guards - Risk Assessment IMO 1443 Section for PMSC Duration of the ship transit, the size and type of ship, its speed and freeboard, the owner’s risk assessment, agreed duties of the team and minimum number of persons that should form the security team, taking into account the need for continuity of protection in the event of injury and illness; IMO 1405 Section for Owners Size of the team – influenced by factors including: length of the estimated time of the ship transit, latest threat assessment, the agreed duties of the PCASP team (e.g. will they act as additional lookouts and assist with rigging self-protection measures?) and the size and type of ship, its speed and freeboard. The analysis should indicate the minimum number of persons that should form the security team, taking into account the need for continuity of protection in the event of injury or illness

Why GUARDCON ? - Urgent need for Standard Contract ■ Owners and PMSC know exactly terms being agreed ■ Establish clear undertakings as to who are the guards (Supports owners due diligence obligation under IMO 1405) ■ Establish uniform Command Regime (Protect the Master from involvement in any shooting) ■ Establish clear and balanced liability regime (Knock for Knock – except for wrongful use of weapons) ■ Establish clear insurance requirements for PMSC (Essential as PMSC insurances were initially very inadequate) ■ Guidance to Rules for Use of Force ■ A Contract acceptable to owner’s P&I Club

BIMCO GUARDCON 2012 ■ Published 28 March 2012 ■ Working committee of BIMCO, Owners, lawyers, underwriters and P&I (West of England represented the IG) ■ Consulted PMSCs, Lloyds Underwriters ■ Sought advice from UK Crown Prosecution Service ■ BIMCO Documentary Committee ■ Does not provide for standard Rules for Use of Force but has detailed Guidance

GUARDCON - Front Owners MUST be a party to contract

Significant Clauses (Should NOT BE amended) ■ No.3 The number of security guards ? ■ No.6 Contractors obligations & responsibilities ■ No.7 Owner’s obligations ■ No.8 Master’s Authority & Division of Responsibilities ■ No.10 Permits & Licences ■ No.12 Insurances (PMSC $5 million liability & contractual indemnity) ■ No.15 Legal Liabilities (knock for knock except negligent use of firearms)

IMO Requirements - Command and Control ■ IMO 1443 Section 5.6 Command and Control clear statement recognizing that at all times the master remains in command and is the overriding authority on board a clear statement recognizing that at all times the master remains in command and is the overriding authority on board, and an agreed procedure in the event of the master being unavailable; ■ IMO 1405 Section 5.9 Command and Control In order to provide the required clarity, the documented command and control structure should provide: a clear statement recognizing that at all times the Master remains in command and retains the overriding authority a clear statement recognizing that at all times the Master remains in command and retains the overriding authority on board, and an agreed procedure in the event of the Master being unavailable

Master’s Authority, Division of Responsibilities and Hijacking

IMO Section 3.4 PMSC Insurance Insurance cover 3.4 PMSC should hold and 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. 3.5 As firearms and other security-related equipment are to be part of the contracted plan, PMSC should insure their personnel to carry and use firearms on such voyages for accident, injury and damage arising from the use of firearms and liability for any claim that might arise from the carriage and/or negligent or intentional misuse of firearms

Established Uniform PMSC’s insurance requirements ■ Contractor must have US$5 million liability and Professional Indemnity cover ■ Contractor must have US$250,000 personal accident cover ■ Contractor must have not only liability insurance BUT ALSO Contractual Indemnity Insurance ■ Liability Insurance only covers claims arising from contractors and their employees own fault – negligence ■ Contractual Indemnity covers Contractor’s undertaking in the contract to indemnify owners for claims made against them e.g. under knock for knock provisions

Guidance for the Rules for the Use of Force ONLY GUIDANCE Look at IMO 1405

Pirate or Fisherman? Is it self defence?

Use of Force – legality of the use of force ■ IMO 1405 & 1443 Guidance ■ Should be approved by Flag State graduated ■ Must be a graduated response proportionate ■ Must be proportionate necessary ■ Must be necessary ■ Use of force and self defence governed by Criminal Law but which? ■ Law of Flag State ■ Law of Territorial waters ■ Law of the Victims ■ Law of the person using force ■ Law of any court taking jurisdiction ■ If the RUF are inappropriate cover might be prejudiced

Conclusion –Armed Guards ■ Beware of illegality ■ Comply with Flag State law ■ Due diligence IMO 1405 & 1443 ■ Licenses ■ Contract (GUARDCON) ■ Insurance ■ Rules for Use of Force ■ NOT SUBSTITUTE FOR BMP

Best Advice BMP and BE VIGILANT