February 1, 2013
Although fewer pirate attacks make news headlines, this scourge has not diminished. The global shipping industry lost an estimated US$5.6 billion to pirate attacks off the Somali Coast in 2011 and Intertanko, the association of independent tanker owners, recorded 71 attempted incidents and 13 hijackings as at October 2012. Joseph Angelo, Intertanko's Deputy Managing Director, described these violent attacks as "extended duration robbery".
Ship owners operating in the Gulf of Aden and other at-risk routes understandably look to means other than international navies to ensure the right of free passage and to protect detachments on their ships. As more commercial ships adopted self-protection measures and employed private armed guards on board, there was initial concern at the prospect of floating armouries. To address this, the Maritime Safety Committee of the International Maritime Organisation (IMO) issued the following interim advice:
- MSC.1/Circ.1405 - Interim Guidance to Shipowners, Ship Operators and Ship Masters on the use of Privately Contracted Armed Security Personnel (PCASP) on Board Ships in the High Risk Area.
- MSC.1/Circ.1406 - Interim Recommendations for Flag States regarding the use of PCASP on Board Ships in the High Risk Area.
- MSC.1/Circ.1408 - Interim Recommendations for Port and Coastal States regarding the use of PCASP on Board Ships in the High Risk Area.
- MSC.1/Circ.1443 - Interim Guidance to Private Maritime Security Companies providing PCASP on Board Ships in the High Risk Area.
- MSC.1/Circ.1444 - Interim Guidance for Flag States on Measures to Prevent and Mitigate Somalia-Based Piracy (compilation, in a single reference document, the Best Practices, Codes and Standards Developed by IMO to date).
The IMO Maritime Safety Committee has also tasked the International Organisation for Standards (ISO) to develop standard guidelines for the certification of private maritime security companies providing PCASP. The ISO has recently announced the development of the Publicly Available Specification 28007 (ISO PAS 28007) and has circulated it for balloting. Giles Noakes, Chief Maritime Security Officer at The Baltic and International Maritime Council (BIMCO) has expressed BIMCO's support as well as his confidence in the standards to be imposed and of the checks and balances involved in this ISO system. On its part, BIMCO has developed Guardcon, a standard contract for the employment of security guards on vessels, and the Guidance on Rules for the Use of Force by Privately Contracted Armed Security Personnel, which supplements Guardcon.
The ISO PAS 28007 will be supplemented with the 100 Series Rules - An International Benchmark for Commercial Maritime Rules for the Use of Force. Drafted by barrister David Harmond, an agreed framework document has been submitted to industry stakeholders for their scrutiny towards final refinement of the rules. In its latest form, the document contains provisions for self defence, which is recognised as a "universal concept of law and an inherent right that permits a person to protect himself or to intervene to protect another", according to David Harmond. These draft rules aim to give legal certainty to self-defence, which is defined "as a person acting in lawful self-defence of himself or another when he has an honest belief that he or another person is under attack, or imminently to be attacked, so that it is necessary to defend himself or the other person by using no more force than is reasonably necessary to repel the attack or threatened attack".
Vessels registered under the Singapore flag have for reference both the Maritime and Port Authority (MPA) Shipping Circular No. 11 of 2011 and the Singapore law for guidance on self defence and the employment of private armed guards.
The MPA recommends the guidance contained in the MSC.1/Circ.1405 and where ships intend to use armed guards while travelling through high risk areas, the MPA refers to the IMO MSC.1/Circ.1334 as well as the MPA's advisory contained in Best Management Practice (version 3) in Shipping Circular No. 6 of 2011 and Shipping Circular No. 14 of 2010.
The MPA notes that, while Singapore law does not prohibit the use of armed security personnel on board Singapore-registered ships, "the carriage and use of firearms and ammunition on board Singapore-registered ships is not encouraged given the potential escalation of violence and increased risks of crew injury and fatality". The MPA cautions that while the crew of a Singapore-registered ship, or their hired armed security personnel, may lawfully bear arms, "they will still be liable under Singapore's laws if they use their arms on board the ship without lawful excuse, as a person on board is not exempted from criminal liability in respect of any offence that he commits on the ship."
As for the particular laws, owners of Singapore flagged vessels should consider the following in the context of use of arms on board their vessels:
- the Singapore High Court has jurisdiction to try offences committed on board any Singapore registered ship;
- piracy is an offence under Singapore law;
- it is an offence to steal a Singapore ship or steal, lose or damage property on board a ship or to counsel or procure a person to do such things;
- there are severe penalties under Singapore law for offences affecting the life of a person, including the death penalty; and
- there is a defence of protection of life and property.
These laws, when applied to a particular situation in the use of arms or death of a person on board a Singapore-flagged ship, will determine whether the owners and masters of, or crew and security personnel on board, such ships incur any criminal liability.