The defencelessness of ships to attack depends on the ship type, size, speed and the type of voyage it is undertaking. Pirates usually exploit vessels with low freeboard travelling slowly or at anchor. Due to the increasing perils of pirate-based attacks arranged for hijacking vessels and kidnapping their crews for the sole purpose of extorting a hefty ransom, ship owners have been experiencing numerous losses as the ships are delayed, detained or destroyed. In such hijacking, the concerned parties are expending monies for high ransoms for crew held hostages, which has led to a rapid rise of insurance premiums and even more unfortunate cases, with the losses of lives.
It has become necessary for the owners to arrange for and provide security to avoid the overwhelming impacts on stakeholders in the maritime arena. After the famous hijacking of the cruise vessel “Achille Lauro” in 1985, the International Maritime Organization (IMO) executed the 1988 Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), among other resolutions, protocols and treaties to prevent unlawful acts which pose terrorizations to the security of ships and safety of crew members and passengers alike. In July 2004, the IMO amended the 1974 Convention on the Safety of Lives at Sea (SOLAS) to complement the International Ship and Port Security (ISPS) Code.
The direct core costs associated with Piracy are the loss of cargo and injury to vessels, ransoms, increased rates and payments of insurance, the charges of re-routing vessels away from high-risk zones, extended voyage times, increased fuel consumption of faster steaming, reduced number of voyages per Vessel, onboard preventive equipment and the hire of private armed security personnel, marine placements in piracy hot spots, law implementation, prosecution and imprisonment of offenders, and the functioning costs of multi-national organizations devoted to monitoring and reducing Piracy.
The indirect costs of Piracy include reduced regional trade, disruption of local industries, inflated food prices, humanitarian crises or civil unrest through food shortages, and loss of foreign investment diverted to alternative, less volatile regions.
A Vessel is mainly concerned only with safely conveying its cargo and nothing else. Its primary opponent is the weather and other natural forces that influence the environment in which it operates. Survivability, weaponry and speed take precedence over cargo manipulation and fuel economy. In the absence of any inbuilt defence mechanisms, it becomes effortless for pirates to take control of the Vessel. Till the execution of any substantial step to fight the growing piracy activities in oceans and pirate zones like the Indian Ocean, Strait of Malacca, and Somalia waters, merchant ships remain an easy target of modern-day pirates. Present-day pirates have shown substantial skill and audacity in boarding ships, suppressing opposition, and controlling the bridge and engine room. They also use the finest of up-to-date technology to support them in their piracy outbreaks. Armed with the most modern and automatic weapons such as AK-47 rifles and rocket-propelled grenades (RPGs), the pirates harshly and meaninglessly fire on the targeted ship. Though massive in size, the ships are both defenceless and helpless in front of these lethal weapons. The Vessel’s master has no choice other than reducing the ship’s speed or stopping it in case of a ruthless attack, permitting the pirates to come on board.
Due to the rising levels of Piracy in the Western Indian Ocean and the Gulf of Aden, privately contracted armed security personnel (PCASP) have been employed for protection on board some merchant vessels operating in or navigating through the region.
Consequently, civilian shipping companies rely on the services of PMSCs. PMSC’s are Private Maritime Security Companies that escort services to protect against potential pirate attacks. PMSC’s offer a wide selection of services ranging from risk assessment to training, including anti-piracy and breach exercises to armed escorts. Due to the heavy reliance on PMSCs by commercial ships and mounting pressure from the shipping industry for guidance on the proper use of PMSCs, the IMO has striven to regulate private armed contractors on board merchant ships. Many of the rules on the use of PMSC’s specify that they should have access to competent maritime legal advice at all times, given the vague position of armed guards under various national jurisdictions and international law’ and ‘the complexity of applicable laws concerning the carriage and use of firearms and security-related equipment on board merchant ships.’
PMSC’s do not rely on a standard weapon kit. Some use a single type of firearms whilst others rely on a combination of several specialized weapons. PMSC’s that equip their personnel with a single type of firearm most commonly use assault rifles or shotguns. The range of this type of weapon does not exceed 300 to 400 metres at sea. The strategy of these PMSCs is primarily to deter attacks, an effect offered by the mere presence of armed guards, prompting the alleged pirates to refrain from an attack and seek softer targets. Often the decision on which type of weapon to rely on is the result of strict port, coastal or flag State law limiting the types of weapons carried on their ships or ships navigating in their waters. PMSCs using a combination of more specialized arms generally equip their personnel with weapons having a range of 20 to 1200 metres, such as pistols and shotguns (20 metres), light machine guns (400 to 600 metres), general-purpose machine guns and sniper rifles (1000 to 1200 metres). Having such a variety of weapons allows for both a more graduated and an earlier response.
A wide range of security issues arises due to armed private security personnel on merchant ships and vessels. They apply, among other things, to the procurement and movement of weapons by PMSCs, to requirements regarding the embarkation and disembarkation of arms and armed guards, and conditions concerning the onboard carriage, storage and management of weapons. Domestic law addresses these issues In the absence of a system of harmonized domestic law or comprehensive international rules on the use of armed guards on board merchant ships, the matter is, then, subject to—often differing— domestic legal requirements. The result is a patchwork of domestic law which may apply cumulatively and consecutively, depending upon the actual locus of the ship.
On the high seas, the State’s law, whose flag the merchant vessel using PMSC’s is flying, governs the arms. Flag State law on the procurement, movement, carriage and onboard management of arms by PMSC personnel varies considerably, ranging from very permissive rules to outright prohibitions of embarking arms and armed guards on board merchant ships. In jurisdictions without PMSC-specific legislation, general rules govern arms and armed guards on board merchant ships. The application of general rules potentially results in legal uncertainty or does not provide for satisfactory outcomes. In addition to flag State law, PMSCs and their personnel may be obliged to observe regulations of the State wherever the company is incorporated. A PMSC and its personnel onboard a merchant vessel navigating the high seas are potentially bound by several laws simultaneously, containing differing and conflicting rules on arms. If a commercial ship relying on private armed guards passes through the territorial waters of a third State or calls into a port in a foreign State, compliance with the coastal and port State laws on arms must also be ensured, and these may again differ from the relevant law of the flag State.
Floating Armouries (FAs) are vessels that offer offshore storage of weapons, ammunition, and security equipment designed by private maritime security companies engaged in protecting commercial ships from pirate attacks. Floating Armouries need to provide accommodation to the privately contracted security personnel onboard their vessels for the period between their transits across the High-Risk Area. The conduct of the operation of the floating armouries are as under:
Embarkation from port: The Personnel’s usually fly from their home locations to the port of embarkation, where they assemble. They then embark on a shuttle, which takes them to a floating armoury, where they remain provided with an operational equipment package belonging to their contracting PMSC. If they are to remain on board the floating armoury for some time, accommodation is provided to them while they await tasking from their PMSC.
Embarkation from the floating armoury to a client’s Vessel on task: When its PMSC has tasked the private PCASP to join a client Vessel for a voyage, the team prepares their operational equipment package and personal kit. The PMSC/PCASP team leader makes arrangements with the floating armoury staff for a boat transfer from the floating armoury.
Disembarkation from a client’s Vessel: At the end of a PCASP task on a client’s Vessel, the PCASP team will prepare for disembarkation. The transfer is to be carried out if weather conditions are safe. On arrival at the floating armoury, the PCASP will secure their operational equipment package and, if staying on board, be allocated accommodation on the floating armoury. PCASP may likewise be transported back to a home port if and when possible or remain on board the FA in anticipation of subsequent tasking.
Disembarkation to port: Upon completing their job(s), the PCASP may be returned to a port by support vessel (shuttle), leaving their operational equipment package onboard the floating armoury. They will either fly back to their home locations, stay at temporary accommodation ashore awaiting retasking, or relocate in the theatre.
Any international instruments do not directly address floating armouries (FAs). A diversity of hard and soft international laws and some national systems of regulation nevertheless relate to some degree to the activities of floating armouries. Overall, existing laws apply to three aspects of an FA operation, namely:
1- The Vessel, its armoury and the services it provides;
2- The services facilitated by the Vessel;
3- The individuals involved
Naturally, any typical cause for law enforcement jurisdiction over a vessel would also apply to FAs. Port and coastal States, following domestic legislation, could exercise legal authority over a vessel and arrest a vessel itself consistent with UNCLOS. One of the most important means of exercising enforcement jurisdiction over FA operations is exercising personal jurisdiction over the individuals and companies that use them. Suppose a State has mandated that its nationals and any companies registered in its territory comply with specific requirements to use FAs, that State can exercise personal jurisdiction to enforce those laws. Existing long-arm laws may also apply. For example, it may be illegal for an individual from a country to possess a specific type of weapon without a national licence, even when that individual is outside the State’s territorial jurisdiction. Enforcement in the exclusive economic zone Some State laws may also provide specific actions against the Vessel itself even if an FA is operating beyond the territorial sea. A powerful mechanism for exercising law enforcement jurisdiction in the exclusive economic zone per article 56 of UNCLOS, for example, may relate to supply, bunkering and fuelling operations.
FAs constantly need to be refueled and resupplied, and the land-maritime nexus for such operations may give long-arm jurisdiction to the State under specific liability theories in which the fuelling vessels are measured to be involved in some form of illegal association with the vessels on the high seas. The International Tribunal for the Law of the Sea in the case of the M/V “Virginia G” 2 found that coastal States have regulatory authority to govern refueling at sea when the bunkering is related with unlawful fishing activities. The enforcement, however, must be necessary to sanction non-compliance and deter future activity. International safety management Under the International Convention for the Safety of Life at Sea, 1974 (SOLAS), all flagged vessels over 500 gross tons must comply with the International Safety Management (ISM) Code. The ISM Code requires vessels, among other things, to have a procedural manual for what is done onboard the ship in normal conditions and emergencies. Given the nature of FA operations, the procedure manual would not look like an ordinary vessel in both regular and emergency procedures. However, the manual’s adequacy rests with the flag State administration, and there are currently no recognized uniform requirements or standards among flag States.
The IMO revised its interim guidance for private maritime security companies providing privately contracted armed security personnel on board ships in the High-Risk Area. Under the said interim guidance, Ship owners must ensure early consultation with the flag State to consider the decision to place PCASP on board and comply with any statutory requirements. Whether to use PCASP inside the HRA is a choice for the individual ship owner post a detailed risk assessment and safeguarding all other practical means of self-protection have been employed. The said risk assessment should include the ship and crew security, safety and protection; the possible misappropriation of firearms ensuing in physical injury or death; the potential for unexpected accidents; accountability questions; the potential for appreciation of the situation at hand; and the obedience with international and national law. They are further required to assess the capability of PMSC to carry out a proposed task.
The decision on the employment of PCASP onboard ships is a complex one for a ship owner. The absence of appropriate directive and industry self-regulation coupled with compound lawful requirements governing the genuine transport, carriage and usage of firearms gives reason for concern. This situation is further complicated by the quick evolution in the amount of private maritime security companies (PMSC) and worries about the competences and maturity of some of these companies. Important competence and quality variations are present across the spectrum of contractors offering service. The use of armed guards on Vessels does not take place in a legal vacuum. The same is subject to a scattering of international rules and regulations and a meshwork of domestic legal orders, which apply cumulatively depending on the ship’s actual position. Industry attempts to self-regulate and the issuance of guidance at the international level by the IMO is made. There is greater consistency regarding the powers of PMSC personnel, particularly the use of force in self-defence, than regarding the procurement, embarkation, disembarkation, carriage, and onboard management of arms security-related material by PMSCs. FAs are lawfully indistinguishable from other vessels and are therefore destined by the same instructions that would rule the carriage of weaponries by any merchant or government ship functioned aimed at commercial purposes. Port, coastal, and flag State jurisdiction may be exercised on numerous matters. The Vessel, the armoury, the services it delivers, the facilities it facilitates and the people involved are all forced in some way by a mix of international, national and soft law instruments.