U.S. Coast Guard issues new anti-piracy requirements

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.