Transcript Slide 1

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 1405 -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 5.5.1 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 5.6.1 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
5.6.1 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:
5.9.1 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 1443 - Section 3.4 PMSC Insurance
Insurance cover
3.4 PMSC should hold and maintain for the duration of the
contract:
3.4.1 public and employers liability insurance cover to an appropriate
level and as required by the shipowner; and
3.4.2 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
■ Must be a graduated response
■ Must be proportionate
■ Must be necessary
■ Use of force and self defence
governed by Criminal Law but which?
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■
■
■
■
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