Thursday, January 21, 2010

Armed Defense Against Piracy

On 5 January 2010, a delegation from the Ukraine departed for Oman to meet and escort home 24 Ukrainian sailors that had been taken captive aboard their ship, the Ariana, by Somali pirates. After over eight months of captivity, and after the payment of a USD 2.8 million ransom, the mariners were released on 10 December 2009, setting course for the port of Salalah in Oman.

This latest chapter in the story of the Ariana highlights the continuing problem of piracy in the Gulf of Aden and the potential threat it poses to shipping in and out of Oman.

As more shipments are threatened, operators, shippers and crews are considering ways to protect their personnel and cargo at sea. While a few nations have put military personnel or private security forces aboard their flagged vessels, serious legal issues arise from the arming of merchant mariners. Indeed, the vast majority of shipping organizations strongly discourage such a practice. The United Nations’ maritime branch, the International Maritime Organization (IMO), strongly discourages the carrying and use of firearms by seafarers for personal protection or for the protection of a ship.

Legal problems arise because ships are subject to a host of different legal regimes including international regulations during every voyage. Flag states, coastal states and port states all may have conflicting rules about firearms, ranging from an unfettered right to carry weapons, to a complete ban, to a regulatory system of more or less complexity. Violation of coastal or port state laws may subject a seafarer to criminal sanctions, including a long prison sentence, even though his possession of arms is perfectly legal under the law of the ship’s flag or at sea. It is difficult not only to comply with these conflicting laws but also to understand the content of all of the national laws that might apply.
Legal problems relating to the carriage of firearms pale in comparison to the problems raised by their use. Key questions include:

  • What nation would have jurisdiction to resolve the question of whether or not a seafarer was criminally or civilly liable for the consequences of using weapons?

  • What legal regime will govern the question of whether or not the use of deadly force was justified in the circumstances?

  • What if the flag state, coastal state and port state all have differing views regarding the circumstances in which lethal force was used?

A mariner cannot be expected to know and correctly apply rules about the use of deadly force under all the legal regimes that might apply in the varying situations that arise in shipping, especially under the stress of an approach by a vessel that may (or may not) be operated by pirates. The possibility exists that a seafarer may find himself in prison far from home for using lethal force that was permitted by the state of his citizenship or the flag of his vessel.

On the other side of the coin, prosecution and incarceration of pirates might be impaired by giving pirates the opportunity to plead self-defense if crew aboard the vessel being attacked shot first.

Further, the safety of seafarers is compromised by the presence of weapons. Seafarers are civilians and, as such, often lack the special training and skills necessary for the safe use of firearms. A ship is not terra firma: the risk of accidents on a rocking surface in a heaving sea is great. An accidental or purposeful shot could ignite a flammable cargo or trigger an explosion of other dangerous goods.

There is the further danger of the presence of weapons in the sometimes tense environment on board a ship. Short or nonexistent shore leave may fray seafarers’ nerves and lead to irrational or dangerous conduct.

Other practical problems arise from the use of private security forces at sea. In particular, command authority is a central issue. In the heat of an attack, there can be only one final decision maker. The vast majority of maritime organizations disapprove of the use of private armed guards because of the same risks of escalation, the lack of clarity on rules of engagement, and the difficulties in accrediting and exercising due diligence responsibilities in overseeing such entities and policing their activities. There is a radical difference between supervising contracting third parties on land and doing so at sea.

The law currently governing such activities in the Sultanate of Oman – the Sultani Decree No. 34/73 – does not contemplate explicitly the arming of seamen for protective purposes or the use of private security forces at sea. Under Title Two, Part One of the law, liability for acts of the crew or for acts arising out of contracts entered into by the owner shall be borne personally by the owner, although such liability may be limited by contract in certain cases. The law also sets out the responsibilities of the master, the person responsible for commanding the merchant vessel, while at sea as well as rules relating to insurance. Such rules and responsibilities must be taken into account when considering the use of arms and/or private security forces.

Shippers seeking to protect their crews and cargo should be aware that the current law may face amendment. A new maritime law for the Sultanate is said to be under development. It is hoped that this law will shed more light on questions relating to protections against piracy.