Shipowners Divided Over Rules For Use Of Force

A heated row at the International Maritime Industries Forum has highlighted divisions within the shipping industry over what constitutes a proportionate response by armed guards when it comes to rules governing the use of force.

A presentation on maritime security delivered to the IMIF by Flagvictor chief executive Mark Hankey turned into a heated debate on use of force and the need to regulate private maritime security companies.

Mr Hankey showed the IMIF meeting a video of a group of US armed guards shooting at a pirate skiff.
The PMSC said that the guards were firing warning shots but there was no “onion layered” — or gradual — approach to protecting the ship and the guards continued to fire for some minutes as the vessel moved away from the pirates and the threat to the vessel became less urgent.

When Mr Hankey asked whether the audience thought the armed guards’ response was in proportion to the threat, several said they supported the PMSC’s actions.

Salvage expert and former International Salvage Union general manager John Noble said: “Let’s stop pussyfooting around. If you are being attacked, you need to get in there and defend yourself. Where is the harm in that?”

Other members of the audience agreed, using the analogy that a PMSC needs to be “the dog that barks louder”.

When Mr Hankey questioned how this approach would sit with shipowners’ lawyers and insurers, one Greek shipper said: “They can talk to me later.”

Holman Fenwick Wilan partner Elinor Dautlich said that while the standard contract has an additional advice document on rules on use of force, BIMCO’s Guardcon, which she helped to draft, did not apply internationally as every country had the right to decide its own individual rules.

She added that a “one size fits all” approach was not possible.

Speaking after the presentation, Mr Hankey said: “The audience certainly had strong views, which is to be expected on this emotive and important issue.”

IMIF chairman Jim Davies said the situation proved that rules on use of force must be clearly established, recognised by the court of human rights and defined internationally.

Speaking to Lloyd’s List separately, BIMCO chief maritime security officer Giles Noakes said many shipowners had embraced Guardcon while others perhaps had not.

“The reality of life is that the law and insurance surrounding PMSCs is difficult and it is absolutely essential to clarify this commercial risk now rather than waiting,” Mr Noakes warned.

He said that Guardcon’s main aim was to distance the master from liability for the actions of the PMSC. Mr Noakes argued that Enrica Lexie was a classic example of a master not being charged for the actions of Italian marines.

“People have had a lot to say about Guardcon but I can tell you this, it has been used more rapidly than any other BIMCO contract to date,” he said.

The International Maritime Organization will debate PMSC regulation when its Maritime Security Committee meets in May.