В публикации приводится обзор проформы GUARDCON. Основной вопрос, который проходит красной нитью сквозь публикацию, – это контроль капитана судна над поведением вооруженной охраны.
Although piracy attacks continue, the actual number of successful hijacks has slowly begun to drop. Many feel this is due, in part, to the effectiveness of private maritime security companies, and many owners having made the difficult decision to go armed’. The armed deterrent is holding firm and provides a working, pragmatic security solution. The much vaunted’100% success rate ‘of armed teams means that thousands of seafarers have avoided capture by pirates.
However, while security is having a positive effect, it is not without its problems, complications and concerns. There is increasing unease regarding the potential liability issues facing masters on armed vessels. In an attempt to provide some much needed clarification, the Baltic and International Maritime Council (BIMCO) has produced a standardized contract between shipowners and private maritime security companies. This contract, known as ‘Guardcon’, provides clarity on a range of key issues, and defines the relationship between the Master and the security team leader on board [see lead article, page 6, for further details].
This is important, as the relationship between the Master and the team leader is vital to the protection of the vessel. According to Guardcon, the Master shall, at all times, throughout the contract, have and retain ultimate responsibility for the safe navigation and overall command of the vessel. Any decisions taken by the Master shall be binding and the contractors undertake to instruct the security personnel accordingly.
However, in light of Guardcon, the Master does not invoke the rules for the use of force (RUF).This is done by the security team leader, who must advise the Master of the intention to invoke the RUF. This is intended to protect the Master from criminal liability through ‘joint enterprise’. It should be noted that the RUF are invoked in response to an ‘actual, perceived or threatened act of piracy and/or violent robbery and/or capture/seizure by third parties’; they are not intended to be in force absent a specific threat. Each member of the security team then has sole responsibility for any decision taken to use force.
However, the Master’s authority under SOLAS cannot undermine the security personnel’s absolute right in law to defend themselves or others. That right of self defense will be set by the applicable national law. According to lawyers, the relevant law would be that of the vessel’s flag State, unless the incident takes place in territorial waters, when the law of that coastal state may apply. The law of the next state where the vessel calls after the incident may also be relevant.
When to cease fire?
One of the most quoted areas of the contract is the fact that the Master has express authority to order the security personnel to cease fire. This means that in theory the Master has absolute control over the security team. However, it is felt that the Master is unlikely to have the necessary expertise to control the use of firearms; this is the professed expertise of the trained security team. Allied to that, the Master could well be in the citadel when the perfect opportunity to cease firing occurs. Many experts believe that it is actually harder to identify the right moment to stop shooting, than it is to know when to start. Expecting the Master to recognize that point may prove problematic.
Understanding and correctly applying the use of force places a burden on the security team. As per International Maritime Organization (IMO) guidelines, the private maritime security company will have to ensure rigorous vetting and recruitment of personnel and in developing comprehensive RUF and training programs.
Legal implications
The issues of legal implications and potential liability have naturally been a concern and discussions on the issue of the Master’s responsibility and liability have been extensive. There remain concerns over the possible legal consequences a ship’s Master could face in the event of injury or death, including injury to the security team themselves, or any other damage caused to the ship or its cargo. The fact that masters are deemed to have ‘overriding authority’ could be construed to mean that they can be held ultimately responsible for any actions taken by the security personnel, even those which were beyond the Master’s control.
This is a very real and live issue – Masters are increasingly concerned abo» >t this and all too often do not get the reassurance or answers they wish. Alas, even with Guardcon in place, until something goes wrong we are all simply guessing as to the full legal ramifications of the issue of shipboard command and control. The use of weapons changes everything.
It may yet come to pass that masters are dragged into the debate, and it would appear that the issue of when to cease firing is the key. The control of engagement with pirates has been important, but as the issues evolve, it is increasingly the case that the rules for disengagement are becoming significant too.
Автор: Steven Jones MNI is the Maritime Director of SAMI, the Security Association for the Maritime Industry.
Источник: Seaways. – 2012. – June. – P. 24.