The Navy Times is reporting that the US Coast Guard updated
anti-piracy guidelines Tuesday for U.S. Flagged commercial vessels operating
off the coast of Somalia
. The new requirements mandate the use of guards
on vessels transiting around the Horn of Africa but allow ship owners to decide
whether to use armed or unarmed guards.
According to the Navy Times article:
All U.S.-flagged vessels must submit plans for combating
terrorism and piracy that incorporate the guidelines by May 25.
Most vessels that move through high-risk areas such as the
Gulf of Aden
have had some type of plan, but the measures
now must be approved by the Coast Guard, said Rear Adm. Brian Salerno,
assistant commandant for marine safety, security and stewardship.
The directive requires that ship owners “assess and plan for
their vulnerabilities,” he said. “If they haven’t taken adequate measures, then
we can suggest they take more stringent ones.”
There are multiple issues involved with placing armed
guards on board commercial vessels. The
basic areas of concern include but are not limited to: liability issues
involving crewmembers; international regulatory requirements; and insurance related issues as well as union issues concerning the crewing contracts with
vessel operators.
Liability Issues:
The use of armed personnel while at sea might give rise to
Jones Act negligence for failure to provide a "reasonably safe place to
work" or numerous other bases for findings of negligence by the employer in personam. Further, it might result in a finding of
unseaworthiness, creating claims against the vessel operator in personam and against the vessel in rem as improper operations by
contractors has been found to create an unseaworthy condition.
A seaman assumes the risks normally incident to his perilous
calling but as to perils resulting from unreasonably unsafe working conditions
and/or negligence of fellow employees, the common law doctrine of “assumption
of risk” has been eliminated by the Federal Employees Liability Act (“FELA”)
which is made applicable to seamen by the Jones Act. While liability for injury caused by
combating pirates (or incidental to the combating of pirates) is novel in the
modern age, it should be noted that soon after the M/V MAERSK ALABAMA was
hijacked, numerous websites of law firms specializing in plaintiffs’ seamans’
claims began listing themselves with tags to piracy related matters and calls
for carriers to “ensure” the safety of the crew from piracy and Richard E. Hicks,
Chief Cook aboard the vessel, filed suit in Texas claiming unseaworthiness of
the vessel for failing to better protect the crew from pirates.
International
Regulatory Requirements:
A decision to carry armed guards aboard commercial vessels
will require a review and potentially modifications to the vessel’s
International Ship and Port Facility Security Code (“ISPS”) plan. Additionally, these vessels are required to
have a designated Ship Security Officer (“SSO”) to oversee implementation of
the vessel’s security plan and both the plan and the SSO will likely need a
greater level of knowledge to manage a plan which includes armed response to
security concerns.
Nowhere in the ISPS Code is there a discussion of the engagement
or use of armed guards or the use of firearms on board vessels, whether by
members of the crew or hired guards, although the ISPS Code recognizes that
ships will employ outside contractors to provide security services, especially
in port. Additionally, the ISPS Code recognizes that "[a]t all times the
Master of a ship has the ultimate responsibility for the safety and security of
the ship." Presumably any
limitations as to how this responsibility is carried out would be dictated by
other authorities, such as the
Flag
State
. The ISPS Code appears to contemplate the
situation that while ship's personnel (and any locally-hired security service)
will keep a close watch on the vessel, the response to acts of violence will
necessarily have to be made by governmental authorities, a presumption which
makes sense in the context of a vessel in port.
Specifically related to piracy and armed robbery against
ships, the International Maritime Organization (“IMO”), the United Nations
Agency concerned with the safety of shipping and cleaner oceans, has issued written
guidance to the maritime industry suggesting that an armed response to any
attack is discouraged: "Aggressive responses, once an attack is underway
and, in particular, once the attackers have boarded the ship, could
significantly increase the risk to the ship and those on board…The carrying and
use of firearms for personnel protection or protection of a ship is strongly
discouraged ... Carriage of arms on board ship may encourage attackers to carry
firearms thereby escalating an already dangerous situation, and any firearms on
board may themselves become an attractive target for an attacker. The use of
firearms requires special training and aptitude and the risk of accident with
firearms on board ship is great. In some jurisdictions, killing a national may
have unforeseen consequences even for a person who believes he has acted in
self-defense.”
Insurance
Related Issues:
The carrying of armed personnel may violate the rules of
the basic insurance that vessel owners have in place including cover from
Protection and Indemnity Associations (“P&I Clubs”) and
Hull
and Machinery Insurance Policies. Some brokers have suggested in articles and
promotional materials and that hull underwriters may give a discount to owners
who employ armed guards to protect their assets. However, the use of these guards may in fact
violate some rules of the P&I Club and written opinions from P&I Clubs
would be warranted prior to the use of such guards.
Requiring the use of guards, armed or otherwise and the
updating of security plans certainly makes sense in this age of increased
frequency of piratical attacks. However,
owners of US Flagged assets will need to give significant attention to these
and other issues before submitting their plans in the next 12 days. It will also be interesting to see if other
Flag States follow suit with the imposition of similar requirements on their
fleets.
