The shipping trade is heavily affected by the increase in piracy attacks off the coast of Somalia and in the Indian Ocean. Norwegian shipowners have demanded political initiative and change of laws that better protects the vessel and its crew against pirate attacks. The cry for protection was met by the legislators who passed a regulation on 29 June 2011 allowing armed guards on board Norwegian vessels. However, the use of armed guards is a controversial measure to avoid piracy attacks.
It is up to the individual flag state to allow the use of armed guards on board ships. There is no international law preventing this. Up until June this year, the use of armed guards was forbidden in Norway. Before passing the regulations, the Ministry of Trade and Industry issued an invitation to comment on the regulation on the use of armed guards on board ships registered in Norway. The regulations were passed on 29 June 2011 and entered into force on 1 July 2011. Following the implementation of the new regulations the Norwegian Maritime Directorate has issued provisional guidelines on the use of armed guards on board Norwegian ships based on the guidelines published by the International Maritime Organization (IMO). The guidelines are not exhaustive, but offer explanatory comments on relevant provisions of the Security Regulations and the Firearms Regulations. The guidelines recommend shipowners to engage professional advisers to establish the scope of the legal rules which they are subject to under Norwegian law.
Applicable rules and regulations
The use of armed guards on board Norwegian flagged vessels required adaptations and implementations in various regulations, hereunder the rules regulating security, anti-terrorism and anti-piracy (the Security Regulations) and the rules concerning firearms, firearm parts and ammunition (the Firearm Regulations). The Security Regulations is based on the Ship Security Act, Section 40 cf. section 39. These sections open up for implementation of preventive measures by way of regulations, with the objective to protect the vessel against “unlawful actions”.
Armed guards - not the only means
The Ministry of Trade and Industry stresses that the use of armed guards shall be considered an addition to already implemented preventive measures as suggested in the Best Management Practice 4. This means that passive and other unarmed security measures cannot be replaced by armed guards on board the ship. The choice of using armed guards or not is left entirely up to the shipowner. The Security Regulations controls the use of armed guards in order to provide high professional and ethical standards.
The choice of Private Security Companies
An issue when considering whether to allow the use of armed guards is what qualifications should be required when employing a private security company. Since there is no current international framework that regulates the qualifications of private security companies there are great concerns about industry “cowboys”. Companies that want to hire a private security company are required to complete a thorough risk assessment cf. Section 20 of the Security Regulations. The regulations impose requirements to provide the Norwegian Maritime Directorate with a statement of reason why there is a need for armed guards on board and an assessment of the suitability of the security company and their guards. Further, the Regulations require taking into account the IMO guidelines when selecting and using a private security company. Finally the Norwegian Maritime Directorate has the authority to decide that companies regarded as unsuitable are not permitted to be hired. If the armed guards are unqualified and not aware of the necessary precautions needed on board a ship, this can make an already bad situation worse. There has been examples where hired guards turn out to be unqualified teenagers that have never carried a weapon before.
According to section 21 of the Security Regulations the shipowner has a duty to notify the insurers. The provision re-quires the shipowner to give reasonable notice to the insurers covering liability, losses, expenses or expenditure resulting from piracy, and to provide any information required by an individual insurer in order to clarify matters relating to its insurance policy. If the ship is insured in the Norwegian insurance market this would be the war risk insurer, whereas under the English insurance market this would be the marine risk insurer. The IMO guidelines also require the shipowner to investigate whether the private security company itself is insured. This is a good test to rule out industry “cowboys”.
Use of force
The presence of armed guards on board a ship requires regulations concerning the storage of weapons and when weapons can be used. Use of force is permitted “when necessary to prevent or protect against acts of terrorism and piracy, cf. section 17. A fundamental question in this respect when having a private security company on board the ship is clarifying who has the final word of command. The Security Regulations establish that the master has the final command at all times, also in a situation where use of force is necessary. It is important to note that the chain of command is a mandatory rule of law that is not optional by contract. The industry has already seen examples of contracts used by private security companies that give the armed guards final word of command if the vessel is being attacked.
Further, it is stated that force, including the use of firearms, may only be employed against a threat which is direct, immediate, significant and otherwise unavoidable. The use of force must also be avoided wherever possible and when it is necessary it must be proportionate in view of the scope of the threat and the conditions otherwise. This means that other preventive measures must be attempted before use of force is implemented in order to be lawful. This is further emphasized by section 17, third paragraph which may trigger criminal liability under the General Civil Penal Code if the use of force is unlawful. Pursuant to section 24 the master shall approve arming and the implementation of procedures for the use of firearms “in each individual case”. However, pursuant to the guidelines the master may issue standing orders regarding the use of firearms in accordance with the established procedures in this regard, for example in connection with the night watch. Regardless of the masters command, each individual is responsible for ensuring that their use of firearms complies with section 17 and 22 of the Security Regulations.
Firearms permit
According to Norwegian law persons holding a weapon need to have a firearms license. Shipowners that want to employ private security companies must apply for a firearms permit pursuant to section 23 a of the Firearms Regulations. The application can be made even if no contract has been signed with a specific security company. Pursuant to section 23 of the Firearms Regulations, shipowners can be granted a general, time-limited permit for holding firearms by hired security companies on board ISPS ships registered in Norway. The permit is made general meaning that the permit will not be linked to each individual firearm. The firearms permit is also linked to a geographical limit. The permit applies to ships in foreign waters which are sailing in, to or from an area subject to security level 2 or 3, but only when sailing south of 30 degrees north latitude. This means that the hired security company can only be brought on board the ship when sailing south of 30 degrees north latitude.
Procedures
The Security Regulations requires the shipowner to establish procedures for the use of armed guards and firearms on board the ship, cf. section 22. Such procedures must also be established by the security company before embarking on the vessel, cf. section 20 second paragraph. The established procedures must be used and implemented by the master. The guidelines further stress the importance of these procedures being in place, in order to avoid any doubt in a situation when use of force can be necessary. Pursuant to the Firearms Regulations the firearms must be stored in a safe manner that prevents unauthorized personnel to gain access to firearms. The crew is at no time authorized to access firearms on board the ship. In this respect it is relevant to note that the crew on board the ship is at no time allowed to handle firearms.
Reporting of incidents
If there has been a situation that has led to the use of force, this incident must be reported to the Norwegian Maritime Directorate within 72 hours. The report shall describe the incident and specify the persons involved and the use of force. If there is a reason to believe that the use of force has resulted in personal injury or death, a report shall be made immediately to the Norwegian National Criminal Investigation Service (Kripos). The master would be responsible for the reporting although this is not made explicit by the provision, cf. section 18.
Consequences?
The debate on the use of armed guards and the role of the private security companies will continue. However, the biggest question of all is how this will affect the crew on board the ship. At this stage it we do not know how the pirates will react to the use of weapons.
Weapons on board the ships will at least increase the risk of brutal behavior from the pirates. However, we have yet to see a ship with armed guards on board being successfully hijacked. Reported numbers from the Norwegian Shipowners` Association and the Norwegian Maritime Directorate indicates that 20-25% of Norwegian flagged vessel have already hired armed guards. In the end, it would be illusory to believe that this is the long term solution to the piracy problem. A solution to the piracy problem is dependent on stability on shore in Somalia.