Piracy - Watch Your Back!

An analysis of the legal regime governing the use of firearms by merchant vessels for self-defence.

The end of the monsoon season has seen a resurgence in piracy attacks in the Gulf of Aden, and there is every reason to believe that these attacks will continue in the coming months.

While there is compelling evidence to suggest that international naval cooperative efforts have contributed to a reduction in the number of successful attacks, owners and managers of vessels operating in the area are asking themselves whether the use of armed guards, or armed crew, is the only logical next step to deter pirates, and protect both vessel and crew. The carriage and use of firearms raise potentially serious issues of criminal liability for owners and crew, but another key consideration will be whether the carriage and use of defensive weapons, on board, will impact on the owners' insurance cover.

Below, we consider which laws will govern the carriage and use of firearms, and the potential impact on owners' cover of an unlawful act involving the defensive use of firearms.

International law of the seas

International law lays down rules on how vessels should use their freedom to navigate on the high seas, the most important of which is the United Nations Convention 1982 on the Law of the Sea ("UNCLOS"). Article 100 places the duty to combat piracy at state level, and various UN initiatives have seen warships operating in the Gulf of Aden, in order to protect merchant shipping, with some degree of success.

UNCLOS does not regulate the carriage or use of firearms for defensive purposes by merchant vessels. However, the International Maritime Organisation has strongly discouraged the carriage and use of firearms by seafarers for this purpose. The IMO has observed that, while the use of armed guards is a matter for flag states to legislate, seafarers are civilians who may well lack the degree of skill and training required for the safe use of firearms. The IMO further notes that the use of firearms in self-defence may escalate an already dangerous situation, and will pose an even greater danger if used on board a vessel carrying flammable or otherwise dangerous cargo. Other than the risk of physical danger, the IMO has noted that seafarers may find themselves facing unforeseen penal consequences under foreign laws. Many nations do reduce or absolve criminal liability where a criminal act is committed in self-defence. However, if someone is killed in the...