J Transp Secur (2012) 5:157–167 DOI 10.1007/s12198-012-0088-5
The use of armed guards on board merchant vessels Ruwantissa Abeyratne
Received: 19 January 2012 / Accepted: 23 January 2012 / Published online: 8 February 2012 # Springer Science+Business Media, LLC 2012
Abstract At the forefront of the subject of piracy at sea have been the United Kingdom and several other countries who have initiated legislation and rules that would enable the use of armed guards in merchant vessels who would protect them from acts of piracy. This approach brings to bear several issues such as the effect of the measures, the guidelines to be followed and the rights and liabilities of the ship operators in protecting their vessels, crew, passengers and property. This article discusses the various instances around the world of legislation and regulations pertaining to the use of armed guards on board sea faring vessels as well as some guidelines already issued by States. It identifies the key determinants connected to the issue such as risk assessment and management, the establishment of a security culture as well as the significance of corporate management and foresight. The article also discusses legal issues that pertain to corporate liability and accountability. Keywords Piracy . Armed guards . Risk management . Corporate foresight . Security culture . Law of the sea . Corporate manslaughter
DCL, Ph.D, LL.M, FRAeS, FCILT. The author has worked in the field of aviation law and management for 30 years. He has published 20 books and numerous leading journal articles on international law, aerospace law and maritime law, in addition to many papers presented to conferences. Some of his books are Aviation in Crisis, Strategic Issues in Air Transport, Aviation and the Environment, Aeropolitics, Aviation and Diplomacy, Aviation Security Law, Space Security Law, and Airport Business Law. As Senior Legal Officer at the International Civil Aviation Organization he has written this article in his personal capacity. R. Abeyratne (*) International Civil Aviation Organization, Montreal, QC, CANADA e-mail:
[email protected]
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Introduction Piracy1 at sea has been a worrying issue for the international community in general and the maritime community in particular. According to the International Maritime Organization (IMO) 316 people and 15 vessels were being held hostage as of early October 2011.2 At the present time, there are no binding international rules that govern the use and selection of private armed security guards in merchant vessels. The main hotspots of maritime piracy are the coastal waters off Southeast Asia, West Africa, Somalia, South America, The Caribbean Islands and some areas bordering countries in the eastern Mediterranean. In the centre of attention have been the Somali pirates who mainly operate off the coast of Somalia where commercial shipping vessels transiting off the coast continue to be frequent targets for pirates.3 The BBC reports that 49 of the 53 instances of piracy and hijackings of ships took place off the coast of Somalia.4 There have been various instances of piracy at sea elsewhere over the past few years which have prompted countries to mull the introduction of legislation that would enable the use of armed guards on ships. Taiwan is one of them.5 The problem is so acute for Taiwanese ships that leading shipping firms Evergreen Marine Corp and Yangming Marine Transport Corp have both already taken steps to protect their vessels by hiring armed guards from a French company, deploying three on each ship travelling through risky waters near Somalia.6 Additionally, other nations have also commenced measures in this regard. In August 2011, the Egyptian Ministry of Defence withdrew an earlier announcement that imposed a prohibition on the carriage of armed guards, weapons and ammunition on vessels in transit in the Suez and Egyptian territorial waters. The new measure requires that vessels carrying armed guards, weapons or ammunition must submit to the Suez Canal Authority in advance or transit a letter endorsed by the flag state certain critical information.7 Guidelines issued by the Mumbai Ports authority in India require all vessels intending to carry security personnel through the high risk waters of the Indian Ocean 1 According to Article 101 of the United Nations Law of the Sea Convention of 1982, piracy consists of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). 2 Current Efforts to Stem Piracy off Somali Coast Must be Strengthened, UN News Centre, http://www.un. org/apps/news/story.asp?NewsID040263&Cr0somali&Cr10 3 The monetary total of ransoms demanded runs into hundreds of millions of dollars a year, with the total cost of piracy to the global economy estimated to be in the billions. See Ruwantissa I.R. Abeyratne.The Responsibility of Somalia for the Acts of the Somali Pirates. Journal of Transportation Security, Vol.2, No.3; September 2009: p. 63–76. 4 http://www.bbc.co.uk/news/uk-15510467 5 http://www.bar-kulan.com/2012/01/04/taiwan-mulls-armed-guards-on-ships-against-pirates/ 6 Ibid. 7 The information required is: names of the vessels and owners; quantity and description of weapons and ammunition on board; number of armed guards on board; identity of the armed guards’ employer, and confirmation that the weapons will not be used while the vessel is in Egyptian territorial waters. See http:// www.skuld.com/Insight/Piracy/Armed-Guards/National-regulations-on-the-use-of-armed-guards/
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bound for Mumbai or Jawaharlal Nehru port, to notify authorities at least 96 h before ship’s arrival. Notification is required even if guards are not armed. Italy has already in place general principles of the deployment of military forces8 or private security guards onboard Italian Ships.9 In June 2011 the Norwegian Government announced a new framework10 on the use of armed guards. This framework allows Norwegian owners to have armed guards onboard in a certain geographical area within the legal limits laid down. South Africa has a requirement that imposes a 21 day period to obtain a permit to allow weapons to be on a vessel in a South African port, this seems not to be the case anymore. This has been extended in application from a local to a national level.11 At the time of writing, Cyprus was preparing legislation that will allow armed guards onboard merchant ships. Greece was also preparing legislation which will allow armed guards on Greek flagged ships12 which would be authorized to carry up to six armed guards in a ship.13 The United States has also taken meaningful steps forward to respond to piracy off the Horn of Africa. The authorities are reportedly working closely with industry and transit countries to make it less burdensome for privately contracted security personnel to transit foreign ports with weapons intended for the self-defence of ships.14 In pursuance of this approach a national policy encouraging countries to allow commercial ships transiting high-risk waters to have armed security teams on board has been adopted. The United States has recognized correctly that no ship that has armed guards on board has ever been the subject of successful pirate attacks.15 Arguably, the most significant recent initiative in this area has been in the United Kingdom where, in November 2011 the British Prime Minister David Cameron announced that ships carrying the British ensign would be able to carry armed guards on board to protect them against piracy. Under the plan, the Home Secretary would be given the power to license armed guards for ships. The BBC reports that the Prime Minister, in an interview was vehement about the need for this measure when he said: Frankly, the extent of the hijack and ransom of ships round the Horn of Africa is a complete stain on our world. The fact that a bunch of pirates in Somalia are managing to hold to ransom the rest of the world and our trading system is a 8
Decree no. 107, dated 12 July 2011. On 12 October 2011, The Italian Ministry of Finance agreed to make military personnel available for Italian flagged ships passing through the Gulf of Aden. 10 Regulations concerning amendments to the Regulation of 22 June 2004 No. 972 concerning protective security measures on board ships and mobile offshore drilling units. 11 http://www.skuld.com/News/News/South-Africa-Guns-and-ammunition-on-ships-calling-at-SouthAfrican-ports/ 12 The draft law is reported to allow ship owners to hire a minimum of six armed guards per ship when sailing through pirate-infested areas including the Red Sea, the Gulf of Aden and parts of the Indian Ocean. Greek owned ships flying non-Greek flags will also be allowed to carry armed guards. 13 Katerina Kerr, Greece Plans Armed Guards on Ships to Protect Against Piracy, IFW, http://www. ifw-net.com/freightpubs/ifw/index/greece-plans-armed-guards-on-ships-to-protect-against-piracy/ 20017923136.htm 14 See Remarks to the Defence Advisory Group, US Department of State, 9 November 2011 at http://www. state.gov/t/pm/rls/rm/176925.htm 15 Ibid. 9
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complete insult and the rest of the world needs to come together with much more vigour.16 This leaves Netherlands, France and Japan the only countries to ban the use of armed guards on board merchant vessels.17 The above notwithstanding, one must issue a note of caution. The use of armed guards on ships should not replace the critical role played by the naval forces in curbing piracy. The Secretary General of the International Transport Forum18 David Cockroft has observed: Somali-based piracy has been allowed to become so successful, savage and wide-ranging that seafarers’ and seafaring organisations’ worries about armed guards have had to be set aside. However, guards can never be anything but a supplement to the sorely tried existing naval presence, which is now trying to cover an entire ocean.19 On Thursday 10 November 2011 the Indian Navy patrolling the Gulf of Aden successfully repulsed and frustrated the efforts of pirates who launched a multi-boat attack on merchant vessels. The Navy apprehended 26 Somali pirates and confiscated arms and ammunition. This was its fifth successful anti-piracy operation since September 2011.20
International measures and guidelines In November 2011, the United Nations Security Council adopted a Resolution21 condemning and deploring all acts of piracy and armed robbery against vessels in the waters off the coast of Somalia and extended for 12 months its authorizations granted to States and regional organizations cooperating with the Transitional Federal Government of Somalia in the fight against such acts. In its Resolving Clauses the Resolution reiterated that it condemns and deplores all acts of piracy and armed robbery against vessels in the waters off the coast of Somalia and recognized that the ongoing instability in Somalia is one of the underlying causes of the problem of piracy and contributes to the problem of piracy and armed robbery at sea off the coast of Somalia. The Resolution stressed the need for a comprehensive response to repress 16
http://www.bbc.co.uk/news/uk-15510467. See Also, Hellen Warrell and Robert Wright, Armed Guards on UK Vessels to Counter Piracy, http://www.google.ca/search?sourceid0navclient&aq0f&oq0Armed+ Guards+on+UK+Vessels+to+Counter+Piracy&ie0UTF-8&rlz01T4GGLL_enCA320CA366&q0Armed+ Guards+on+UK+Vessels+to+Counter+Piracy&gs_upl00l0l3l609848lllllllllll0 17 Bruse Narnard, UK to allow Armed Guards on Ships, Journal of Commerce, http://www.joc.com/piracy/ uk-allow-ships-carry-armed-guards-fight-piracy 18 The International Transport Forum at the OECD is an intergovernmental organisation with 53 member countries. It acts as a strategic think tank for transport policy and organises an annual summit of ministers. See http://www.internationaltransportforum.org/about/about.html 19 http://www.itfglobal.org/news-online/index.cfm/newsdetail/6642/region/0/section/0/order/1 20 See Indian Navy prevents multi-boat attack in Gulf of Aden, The Hindu News, http://huntofthesea wolves.net/blog/?p03364 21 Resolution 2020 Extending for 12 Months Authorizatiion for those Cooperating with the Somali Government to Use All Necessary Means to Combat Piracy, SC 10454, Security Council 6663rd Meeting (AM).
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piracy and tackle its underlying causes by the international community and recognized the need to investigate and prosecute not only suspects captured at sea, but also anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who illicitly plan, organize, facilitate, or finance and profit from such attacks. It called upon States to cooperate also, as appropriate, on the issue of hostage-taking, and the prosecution of suspected pirates for taking hostages. Finally the UN member States of the Security Council renewed its call upon States and regional organizations that have the capacity to do so, to take part in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with the Resolution and international law, by deploying naval vessels, arms and military aircraft and through seizures and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery at sea off the coast of Somalia, or for which there are reasonable grounds for suspecting such use. Earlier in 2009, the IMO Assembly adopted a Resolution22 encouraging Governments inter alia to increase their efforts to prevent and suppress, within the provisions of international law, acts of piracy and armed robbery against ships irrespective of where such acts occur and, in particular, to co-operate with other Governments and international organizations in the interests of the rule of law, safety of life at sea and environmental protection, in relation to acts occurring or likely to occur in the waters off the coast of Somalia. The Maritime Safety Committee of IMO, at its 89th Session in May 2011 approved interim guidance to ship owners, ship operators and shipmasters on the use of privately contracted armed security personnel on board ships in the high risk area.23 This guidance24 provides inter alia that it is essential that all Privately Contracted Armed Security Personnel (PCASP) have a complete understanding of the rules for the use of force as agreed between ship owner, Private Maritime Security Companies (PMSC) and Master and fully comply with them. The guidance goes on to say that PCASP should be fully aware that their primary function is the prevention of boarding using the minimal force necessary to do so. The guidance recommends that PMSC should provide a detailed graduated response plan to a pirate attack as part of its teams’ operational procedures and that PMSC should require their personnel to take all reasonable steps to avoid the use of force. If force is used, it should be in a manner consistent with applicable law. In no case should the use of force exceed what is strictly necessary, and in all cases should be proportionate to the threat and appropriate to the situation. Of significance is the provision that PMSC should require that their personnel not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation adopted in Rome on 10 March 1988 has several provisions of relevance to the topic under discussion. According to Article 3 of the Convention a 22 Resolution A 1026(26) Adopted on 2 December 2009 (Agenda item 10) Piracy and Armed Robbery Against Ships in Waters Off the Coast of Somalia. 23 A High Risk Area is an area defined in the Best Management Practices unless otherwise defined by the flag State. See IMO MSC.1/Circ 1405, 23 May 2011, Annex, Page 1. 24 MSC.1/Circ. 1405 and 1406 Annex.
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pirate in the classic mould of a Somali pirate fits the description of an offender who is any person who commits an offence if that person unlawfully and intentionally: (a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or (b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship. The Convention, in Article 7 implicitly legitimises the placement by a State of private security personnel in its flagship and provides that, upon being satisfied that the circumstances so warrant, any State Party in the territory of which the offender or the alleged offender is present shall, in accordance with its law, take him into custody or take other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted. A. Guidance to UK flagships Guidance to UK Flagshipping on Measures to Counter Piracy, Armed Robbery and Other Aspects of Volence Against Merchant Shipping was issued by the UK Department of Transport in November 2011. According to this Guidance, the UK government recognises that the engagement of armed guards is an option to protect human life onboard UK registered ships from the threat of piracy, but only in exceptional circumstances and where it is lawful to do so. Exceptional circumstances are defined as: a) when the ship is transiting the high seas throughout the High Risk Area (HRA) (an area bounded by Suez and the Straits of Hormuz to the North, 10°S and 78°E); b) the latest best management practice is being followed fully but, on its own, is not deemed by the shipping company and the ship’s master as sufficient to protect against acts of piracy; and c) the use of armed guards is assessed to reduce the risk to the lives and well being of those onboard the ship. The Guidance strongly discourages the use of armed guards in any other circumstances, and also identifies as unlawful the possession of prohibited firearms without valid authorisation from the Home Office. The Government proposes to continuously review these exceptional circumstances and inform the shipping industry if they change. Shipping companies that decide to use armed guards onboard UK flagged ships must refer and adhere to the Government’s Interim Guidance to UK flagged shipping on the use of armed guards to defend against the threat of piracy in exceptional circumstances. A Counter-Piracy Plan is recommended as well to all UK flagged ships operating in waters where incidents of piracy may occur. This Policy recommends that the plan should be prepared having regard to the risks that may be faced, the crew numbers available, their capability and training, the ability to establish secure areas on board the ship and should also cover the surveillance and detection equipment that has been provided. The plan should cover: the need for enhanced watch keeping; the use of lighting and surveillance, detection or perimeter protection equipment; the need for high speed and evasive manoeuvres; crew and passenger response if a potential attack is detected or an attack is underway; the radio and alarm procedures to be followed; the reports that should be made after an attack, or an attempted attack; training to ensure crew react consistently to an incident; and specific procedures to register the ship with naval authorities if transiting through the Gulf of Aden / off the coast of Somalia, if appropriate. There is also strong recommendation in the Policy on risk assessment where the Guidance says that, if possible, appropriate risk assessments should be conducted by the Company/Ship Security Officers or Master, prior to a ship entering areas with a
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high incidence of piracy. The aim of the assessment is to determine whether additional security personnel and/or measures are required over and above the mandatory security measures specified in the Ship Security Plan for the given Security Level. It cautions that attacks on ships whilst underway can often be more threatening and dangerous for a ship’s crew than an attack taking place in port, as the attack is likely to be planned and the attackers will almost certainly be armed. Another caution is that under cover of darkness, again most often between dusk and dawn, one or more high speed, low profile craft come alongside the intended target often utilising any blind spots such as approaching from the stern, but also the sides if the ship has a low freeboard. A point of significance is that ships travelling at slow speeds, especially if this is combined with a low freeboard, are more vulnerable to attack. Another noteworthy recommendation is that irrespective of whether or not armed guards are used in a ship, in case of attack which can pose an immediate threat to the safety and security of the ship and its inmates, when preparing to respond, or when responding to attacks, masters and crews should seek to minimise the risk to those on board and seek to maintain effective control over the safe navigation of the ship. In any balance that has to be struck between resistance and safety, actions which secure the greatest level of safety must take priority. B. Norwegian guidelines Guidelines for Norwegian flagships were issued in August 2011.25 The fundamental premise of the Norwegian guidelines is that, in accordance with customary international law, the use of force is restricted to cases of necessity or self-defence, i.e. cases in which there is no other way out and in which the requirements of necessity, reasonableness and proportionality are observed in connection with the use of force. Section 22 of the Security Regulations requires that a company must have established procedures for the use of armed guards,26 firearms,27 etc. In addition, security firms selected for releasing their armed guards to be on duty in merchant vessels must have in place their own procedures for the use of firearms (Rules of Force)28 The 25 These regulations amend existing rules such as Regulations of 22 June 2004 No. 972 concerning security, anti-terrorism and anti-piracy measures and the use of force on board ships and mobile offshore drilling units (the Security Regulations) and the Regulations of 25 June 2009 No. 904 concerning firearms, firearm parts and ammunition, etc. (the Firearms Regulations). The amendments entered into force on 1 July 2011 26 The Security Act of 5 January 2001 No. 1 relating to security guard services (the Security Guard Services Act), regulates the use of commercial security guard services and private security guard schemes. The Act is intended to help to ensure that guard services are of a high quality, and to protect the legal rights of persons who are the subject of actions by guards and of the users of such services. Guards are not permitted to use force in excess of the general right granted by the self-defence provision in section 48 of the General Civil Penal Code of 1902. Interestingly the Act does not permit guards to use firearms, and so amendments were necessary this year to ensure that the Act did not apply to security guard activities on board ships in foreign waters (referred to as “ISPS ships”). 27 The Firearms Act of 9 June 1961 No. 1 relating to firearms and ammunition, etc. regulates all trade and acquisition of civilian firearms. The Act establishes that any person intending to acquire, own or hold firearms requires a permit from the chief of police (a firearm licence). The Act is primarily formulated to regulate firearms on Norwegian soil, and is little suited to the special conditions which apply in the present case. On the other hand, the presence of firearms on board Norwegian ships has not been particularly relevant since the passing of the Act, until now. 28 See section 20, second paragraph, sub-paragraph b), item 2), of the regulations. Section 3.5 of the IMO guidelines (Rules for the Use of Force).
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Guidelines also contain supplementary rules regarding the required content of the procedures, and state, among other things, that the company and the security firm should agree to these. Much responsibility devolves upon the ship’s master who should also be consulted about the drafting of the procedures regarding armed personnel on board. The prior establishment of the procedures is critical so as to effectively preclude any doubt as to the circumstances under which force may be employed, particularly in the eventuality of subsequent investigations of incidents during which force has been used. Procedures for the use of armed guards and firearms must be used and implemented by the ship’s master. The shipping company must, in consultation with the security firm and, if necessary, external advisers, establish operational procedures which satisfy the requirements of the regulations and with applicable Norwegian law. A shipping company which is considering placing armed guards on board its vessels is required as the first step to apply for a firearm permit. The company may apply for a permit at a very early stage of its intent, even if no decision has been made to conclude a contract with a specific security firm for the purchase of armed guard services. The application must be made to the chief of police in the police district in which the company or the operating company has its head office, or the police district in which the local representative of the owner has its registered address. The Police Chief grants companies a permit for a limited time period of up to 6 months. At the end of this period, the applicant company may apply for a new permit. The Norwegian Firearms Regulations permit companies to be granted a general permit for the temporary holding of firearms by hired security firms on board ISPS ships registered in Norway.29 C. Other jurisdictions Just for discussion, one can look at several other jurisdictions. For instance, under the laws of Bahamas, the use of armed guards in vessels is neither recommend nor prohibited and it remains to the company operating the ship to decide after due consideration of all risks. In Belgium, It is not per se forbidden to have security personnel and have them carry weapons either by the general applicable Belgian laws, or by the Belgian Criminal Code. In Denmark it is possible to apply for permission to use armed guards on board ships. In Finland, a private security company could be issued with a licence to perform a task where carrying a gun is necessary for self-defence. Permission for private armed guards onboard ships could be issued for so called short guns (revolvers and smaller guns) for protecting the vessel. In Germany it is not forbidden per se either by the general applicable German laws, or by the German Criminal Code. Hong Kong insists on experienced and qualified security personnel who are specialists and not mere security guards. These experts have to adhere to best management practices. As mentioned at the outset of this article, in Italy, Adoption of Decree-law n.107 of 12 July 201130 allows, in article 5, to place armed guards (governmental or in case of unavailability private 29
Granted permits will only apply in cases in which firearms are brought on board for protection against acts of terrorism and piracy. Companies may be granted a general permit to hold weapons. 30 Decree Law No..107 entered into force on 12 July 2011, the same day of its publication on The Italian Official Journal.
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contractors) on board Italian flagged vessels. Also as already mentioned, in Norway there is no prohibition. Its Act of 16 February 2007 provides that actions should be taken by the master in order to avoid and prohibit piracy and this could include the use of force, e.g. private armed guards on board flag state vessels. In Singapore there is no prohibition while Spain, by its Royal Decree 1628/ 2009 on private security and weapons allows to take on board Spanish flag ships (both merchant and fishing vessels) armed private security guards to accomplish protection tasks (preventing and repelling attacks), if such ships are outside the Spanish territorial waters and confront a situation of particular risk to persons and property. In the United States, it is at the ship owners discretion and it is governed by the principles of “self-defence” and “defence of others”. The U.S. State Department grants temporary licenses under International Traffic in Arms Regulations (ITAR) of 2011, and the Department of Homeland Security enforces the Requirements.31
Risk assessment The fundamental principle that must inevitably govern any concerted effort to repulse pirate attacks at sea is corporate foresight and responsibility on the part of the ship’s operator. The necessity for corporate foresight stems from the continuing and rapid development of science and technology which are the drivers of social and economic change. Using these two knowledge based and fact intensive fields, ship operators would be able to obtain a clear picture of challenges and opportunities confronting them. Merchant shipping is a complex, big business and its business environment is highly dynamic. Therefore this industry needs proactive measures to respond to the uncertainties of the business as well as a long term orientation to remain stable amidst imponderables. Shipping companies and operators need think tanks to mesh their technology trends and market trends to meet a growing demand for shipping services whether in the business or leisure markets. Needed foremost for this process is a far reaching and forward looking communications strategy as well as a good team of forecasters. The first step toward corporate foresight is to know what the future is going to be like by adopting a foresight-awareness culture. Corporate foresight is a process of formulation and should not be confused with a set of techniques. Through a sustained consultative process, corporate foresight involves the examination of a series of future scenarios and ideally prescribes solutions. Foresight shares common ground with risk management and evaluation of risk,32 and addresses the nature of the particular business and the uncertainties of the business environment. For example, in the airport industry, a grave uncertainty is the weather, as in the context of an unexpected 31
http://www.gpo.gov/fdsys/search/home.action. Blaise Pascal, in his book Ars Cogitandi states that fear of harm ought to be proportional not merely to the gravity of the harm but also to the probability of the event. It is also a fact of risk management that, under similar conditions, the occurrence (or non-occurrence) of an event in the future will follow the same pattern as was observed in the past. For a discussion on risk assessment and risk management see Niall Ferguson, The Ascent of Money, The Penguin Press: New York 2008 at 188 and Philip Bobbitt, Terror and Consent: The Wars for the Twenty First Century, Knopf: New York, 2008 at 98–179. 32
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winter storm or the eruption of a volcano which spews ash into the atmosphere. Both these events occurred in 2010 in Europe. A salient feature in foresight is leadership, which is linked inextricably to the quality of not being surprised at any unexpected event or circumstance. Essential to this process is the prompt identification of developments in the areas of security, technology and society that are likely to ensure future benefits both from a business and social perspective. Foresight has been categorized as a) anticipatory intelligence, i.e. providing background information and an early warning of recent developments; b) direction-setting, i.e. establishing broad guidelines for the corporate strategy; c) determining priorities, i.e. identifying the most desirable lines of research and development as a direct input into specific (funding) decisions; d) strategy formulation, i.e. participating in the formulation and implementation of strategic decisions; and e) innovation catalysing, i.e. stimulating and supporting innovation processes between the different partners. Shipping firms, particularly in the United Kingdom and other common law jurisdictions in general should be mindful that their negligence in not providing adequate security and safety for crew and passengers may have consequences to their boards of directors and other senior officers who have responsibility and accountability with regard to the safe passage of a ship. The Corporate Manslaughter and Corporate Homicide Act of 2007,33 provides that an organization34 is guilty of an offence if the way in which its activities are managed or organized causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organization to the deceased.35 The Act applies inter alia to a corporation. The offence is termed “corporate manslaughter”, in so far as it is an offence under the law of England and Wales or Northern Ireland; and “corporate homicide”, in so far as it is an offence under the law of Scotland. An organization that is guilty of corporate manslaughter or corporate homicide is liable on conviction to a fine and the offence of corporate homicide is indictable only in the High Court of Justiciary.36 The Act provides that the concept of “relevant duty of care”, in relation to an organization, means: a duty owed to its employees or to other persons working for the organization or performing services for it; a duty owed as occupier of premises; a duty owed in connection with the supply by the Organization of goods or services (whether for consideration or not); and the carrying on by the Organization of any construction or maintenance operations, the carrying on by the Organization of any other activity on a commercial basis, or the use or keeping by the Organization of any plant, vehicle or other thing.37 Section 8 of the Act addresses the issue of “gross breach” and provides that where it is established that an Organization owed a relevant duty of care to a person, and it falls to the jury to decide whether there was a gross breach of that duty, the jury must consider whether the evidence shows that the Organization failed to comply with any health and safety legislation that relates to the alleged breach, and if so how serious that failure was; how much of a risk of death it posed. The jury may also consider the extent to which the evidence shows that there 33
http://www.opsi.gov.uk/acts/acts2007/ukpga_20070019_en_1#pb1-l1g1 An organization that is a servant or agent of the Crown is not immune from prosecution. Id. Section 11. 35 Id. Section 1. 36 Id. Section 1.5. 37 Id. section 2.1. (a) to (c). 34
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were attitudes, policies, systems or accepted practices within the Organization that were likely to have encouraged any such failure or to have produced tolerance of it; taking into consideration any health and safety guidance that relates to the alleged breach. The provision does not prevent a jury from having regard to any other matters they consider relevant. For purposes of this provision, “health and safety guidance” means any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation.
Conclusion There are two aspects to the issue of providing armed guards to merchant vessels. The first is that, as discussed, many States are now initiating legislation that would enable ship operators to carry armed guards in their vessels. The second aspect is that ship operators may not have an excuse for not carrying armed guards in their ships in the face of such flexibility and their negligence in not making use of applicable legislation may expose them to legal liability. In the ultimate analysis the master of a ship or a director of a shipping company is in the same position of trust as a physician who is in charge of his patient’s life. The one approach that could be useful in this regard is for such categories of persons to adopt a security culture that would keep them informed of new and emerging threats and enable the company to adequately prepare for such threats and avoid liability. This culture should mesh with a risk strategy which is incorporated in the annual planning cycle, and therefore in the business strategy. It has to be approved by the board of management on the fundamental basis that the risk strategy takes into account the interests of both clients and shareholders.