Shipping Update - October 2011

Introduction

It is clear that piracy is a serious threat to shipping across large parts of the Indian Ocean and Arabian Sea, as pirate groups grow in strength, resources and expertise. In the first nine months of 2011, 346 attacks on vessels had been reported to the IMB Piracy Reporting Centre, while 277 hostages and 15 vessels are held captive by Somalian pirates at the time of writing. It has become apparent that a number of pirate groups are using captured vessels to act as motherships to increase their operational range, and of particular concern it appears that pirates are becoming increasingly aggressive in their use of weapons, and willing to make threats to harm the crew of hijacked vessels.

In this context, there have been a number of international responses to the threat of piracy. Firstly, in high risk areas naval forces, including EU and NATO forces, are present to deter and protect vessels from acts of piracy. Secondly, shipowners are advised to implement protective measures on vessels and to follow the recommendations in the latest version of the Best Management Practices for Protection against Somalia Based Piracy (BMP4).

In addition, an increasing body of opinion has developed in favour of the view that the deployment of armed guards on board vessels should be an option left to the discretion of the shipowners. This is primarily down to concerns that the ability of naval forces to protect shipping across such a large geographical area is limited, and doubts that compliance with the Best Management Practices alone may not be enough to ensure that vessels have adequate protection from pirate attacks, particularly if naval forces are not in close proximity at the time of the attack. The IMO has recently published revised guidance on the issue, and a number of flag states (such as the UK) are currently considering legislative proposals that will allow shipowners to station armed guards on their vessels, while other countries, such as Norway, have already implemented reforms.

However, the use of armed guards raises a significant number of legal and practical issues. There are serious concerns about the potential for unforeseen accidents, the misuse of firearms and the escalation of violence. As a result, there are questions over the rules and protocols governing actions of armed security personnel and specifically under what conditions the use of force is permissible in order to defend against an attack. There are also widespread concerns that, in a rapidly increasing and unregulated market, a number of operators may not hold the expertise and capability necessary to carry out armed maritime...