В публикации детально анализируются положения проформы GUARDCON, разработанного БИМКО и утвержденного 28.03.2012. В частности эта проформа рассматривается в поле национального права Германии, в плоскостях лицензирования и страхования, причем стандарты охранной деятельности исследуются как с точки зрения судовладельческих компаний, так и с точки зрения охранных фирм.
Тhe threat of pirates in the sea passages of Horn of Africa, West Coast of Africa (Gulf of Aden) and Nigeria remains imminent. In 2012 there have been more than 120 attacks by pirates worldwide and 13 vessels have been hijacked. Currently there are 12 vessels held by Somali pirates and there have been 173 hostages. Therefore, the need of maritime industry to develop effective protection mechanisms against criminal acts of pirates is obvious.
The Baltic and International Maritime Council (BIMCO) has responded to this scenario with the draft of the new standard contract GUARDCON. By this standard contract parties can conclude agreements for armed and unarmed security services on board vessels. The contract does not cover the use of security escort vessels, as in this case different principles would apply.
Raising standards of private security companies
Currently, more than 200 private maritime security companies are working in the sector. Each of these companies works with their own set of terms and conditions of employment. There is no generally recognised accreditation system to ensure a minimum standard of companies so far. Both the legal insecurity and the imminent risk of inadequate insurance cover of security companies if they lack sufficient financial funding to allow them to provide for necessary insurance cover for their risks, a minimum standard of the companies will thus be maintained.
It is important to note, however, that the private security companies are intended only as a supplement and not as an alternative to existing anti-piracy measures.
Layout of GUARDCON, ANNEXES and RUF
The layout of GUARDCON follows the usual BIMCO pattern of a box layout in part I and a part II with terms and conditions. Several annexes covering matters such as instruction notices, security equipment, Rules of Forces and individual waivers are attached to the standard contract form. In parallel, BIMCO has developed a guidance set on the Rules of Force (RUF). The content of such rules are a matter of (national) law, thereby allowing parties of the standard contract to amend the rules as the individual case and national law of the parties my require. The guidance of RUF by BIMCO, may, however, be of great assistance to owners and security companies when drawing and agreeing on their own RUF.
Details of GUARDCON agreement
Parties of the contract are intended to be shipowners and security companies. In case the charterer becomes party of the contract its name should be added to ‘Owner’ box in part I or contract should be signed ‘for and behalf of Owners’. The duration of the contract is envisaged to be either ‘evergreen’ or ‘single-transit’. If concluded on an ‘evergreen’ basis the standard contract will continue beyond the initial 12-month period until terminated by either party with a 30-days’ notice. If used as a framework agreement contract, it allows a flexibility of owners as they are free to work with different security companies; the standard contract does not provide an exclusivity clause for any of the security companies. If the contract is concluded on a ‘single-transit’ basis the duration ends when guards disembark the vessel at the end of the transit.
The recommended number of guards on board each vessel is four. This number reflects the result of the risk analysis conducted by BIMCO in which is shown that in the majority of cases the recommended minimum of guards on board a vessel will be four. The main reason for this number is that the four quarters of the vessel can be well protected and the set-up of a proper round-the-clock watch system is possible.
The mission of a security company starts with the instruction note which is to be given on each occasion at least 72 hours in advance. The location of the security companies’ operations is not constrained to current high-risk areas; security companies can be used within any defined geographical area agreed between parties. This reflects the expectation of maritime industry that, apart from the existing high-risk areas, there might be additional areas with a piracy threat in the future. This might namely be the Northeast Passage. The standard contract further provides for a clause that insures that any new legal and regularity requirements which may be necessary to implement after conclusion of the contract will not have the effect of reduction of the number of guards on board or increasing fees.
Contractor’s obligations
The contractor’s obligations and responsibilities comprise of crew training in security and hardening of the vessel, meaning implementing security
measures. The contractor is also responsible for shore-based resources, such as, operational and administrative back-up. Further, the contractor is responsible for sick and/or injured personnel, but the owner is obliged to deviate the vessel to evacuate personnel as the case may be. The contractor is responsible for medical care of its personnel as well as the standards of a training, certification and watch-keeping, including fire fighting and personal safety. In the high-risk area of Somalia the best management practices for protection against Somalia-based piracy also apply. The contractor is also responsible for insurance cover and that the security equipment complies with relevant (national) rules and regulations including, for example, the German Weapon Act and the German War Weapon Control Act.
Owner’s obligations
The owner’s obligations and responsibilities comprise of the key obligation of the payment of sums due to contractor. Further, the owner has to notify the relevant authorities that the vessel will carry armed or unarmed guards. The guards will be listed as supernumeraries on board by the owner. This is done to avoid issues in certain ports as to the status of non-crew on the ship – if guards are not listed as supernumeraries they could be considered as passengers causing difficulties with employment status and carriage of weapons.
The standard contract also tackles one of the main concerns of shipowners: that of the master’s authority on board. The standard contract provides a contractual basis for use of force – including lethal force -which is unique in a commercial contract in the maritime field. Transparency and accountability are therefore fundamental. The regulations have been discussed in depth and the consensus is that the use of force must be proportionate and necessary to prevent (potential) hijacking or similar action. The key clause is that the master’s authority has to be retained at all times. The master retains at all times full command of responsibility for the vessel. However, GUARDCON recognises that the master in the majority of the cases has no experience in commanding an armed team of guards. Therefore, the guards are entitled to invoke the RUF but the master retains the right under all circumstances to order the guards to cease firing. In any case, the guard’s own right of self-defence with regard to life and health remains untouched. Since each single action of each single guard is guided by the RUF, the master is unlikely to be exposed to any criminal action at a later date. However, excess of measures or error in judging a situation remain issues which parties are well advised to consider thoroughly in advance. Regulations to tackle these issues may be included in the individual RUF.
Licences, permits and insurance
The companies are required to hold necessary licences and permits for transporting and carrying weapons. A failure to do so will lead to potentially significant delays of the vessel. This obligation is split between the contractor and the owner who has to fulfil his obligations with regard to the permits to carry and transport weapons on board. This is an important clause and parties should take careful note of its provisions in each single case. In case of failure to meet these obligations, each party is obliged to indemnify the other for the consequences.
BIMCO steps in to regulate the aspect of insurance policies which are of fundamental importance for the relation between the owners and the security company. The minimum insurance cover set out in the standard contract will raise the standards for the most security companies. The policy limit is set at US$5m; a higher figure may be agreed by the parties. Premiums may be reduced by deductibles; however, the contract provides that to avoid contractors agreeing on deductibles that in the event of a claim they may not have financial resources to meet. Any kidnap and ransom insurance will not be published as it may be invalidated as a result. If applicable, the supernumeraries are considered as crew. In the event that the guards are removed from the vessel, the kidnap and ransom insurance will not cover for any damages, meaning that the companies will have to respond to that fact by making their own arrangements.
The contract provides for clauses on liabilities and indemnities. By agreeing on a ‘knock for knock’ clause the mutual allocation of risk principles is agreed whereby each party is responsible for loss of or damage to or death or injury to any of its own property or personnel or that of the entities within its defined group. This responsibility is without recourse to the other party. Each party in respect of the losses, damages or other liabilities it has assumed responsibility for indemnifies the other party. An exception is made for third-party claims including claims from the crew in the event of accidental negligent firing of a weapon by a guard. Owners agree not to pursue individual guards but can still claim against the contractors under indemnity. With regard
to third-party liability each party indemnifies the other against claims by third parties with the exception of claims from third parties arising out of the owners’ or contractors’ own negligence. An ‘unlawful’ act is intended to cover scenarios such as a fisherman being killed by a guard using unlawful force.
Excursus: German national law
The German War Weapon Control Act constitutes that the owner commits a criminal offence if it concludes a contract providing possession and control of war weapons. War weapons are considered to be not only tanks and missiles but also semi-automatic guns which are widely used by security companies. The fact which determines the capability of the War Weapon Control Act is not the nationality of the guards but rather the flag of the vessel. Therefore, it might be sufficient for the capability of the War Weapon Control Act if the owner of the vessel is German.
Final remarks
By drafting GUARDCON, BIMCO provides for a standard contract to tackle a scenario which has been increasingly important over the last three years. When drafting the contract within three months, the drafting committee has fulfilled the task to provide this first edition of a contract which is likely to be revised as time progresses and practical experience with the regulations proves their applicability. The central component of RUF should be well considered when agreeing upon a GUARDCON as these rules remain the key to a successful defence of a vessel against piracy acts.
Авторы:
Jan Dreyer
Dabeistein & Passehl, Hamburg
Caroline Hagenberg
Dabelstein & Passehl, Hamburg
c.hagenberg® da-pa.com
Источник: Maritime and Trasport Law News. – 2012. – Vol. 8 # 2. – P. 25 – 27.