Первая годовщина практики использования на контрактной основе частных наемных охранных вооруженных команд для обеспечения безопасности судна, груза и экипажа привлекла внимание к вопросу тесного взаимодействия и проявления отношений, возникающих между управляющими компаниями, экипажем и этими командами, на основе применения нового контракта БИМКО «ГАРДКОН» и о роли капитана судна в новых условиях. Рассмотрению этих отношений и посвящено настоящее исследование, предпринятое Борисом ДУНАЕВСКИМ, капитаном судов дальнего плавания, президентом Балтийской (Международной) ассоциации морских сюрвейеров и юристов, партнером Испано-английской адвокатской компании МЛ Абогадос, арбитром МАК при ТПП РФ, медиатором, действительным членом Морского Института, Лондон.
One-year period of the practical use of Privately Contracted Armed Security Personnel (PCASP) for guarding of security of the vessel, cargo and crew has lighted the attention of close co-operation under new specific relationship between shipowners, crew and private security teams on BIMCO’s new contract and about Shipmaster’s role under new conditions.
Significance of Guardon
| Back to the start: While discussions at the IMO have took place, an important step has taken by BIMCO in defining the relationship between shipboard personnel and the security team, and their respective roles on board with the publication of its Guardcon, a model contract for shipowners wishing to engage PCASPs. While Guardcon is designed as a basis for more extensive contracts, and owners are free to define their own commercial terms, BIMCO says: «We strongly recommend against any amendments to the key clauses – namely those dealing with insurance, liabilities, Master’s authority, and permits and licenses». |
While it may well be the case that it is the vessel’s charterers who arrange for and pay for the PCASPs, it is essential that the owners are identified as the contracting party. Where the contract is entered into by the charterers or ship managers, their names and details should be listed along with those of the vessel’s owners, or the contract should be signed for and on behalf of the owners.
Some of the key points covered in the contract include:
– training and background experience, including basic shipboard efficiency. The team leader must have some prior experience of providing shipboard services. Guard must be able to communicate effectively with the Master and each other in a common working language;
– responsibility of the Master and Security Team leader in the event of an attack, including in the event of capture;
– PCASPs must have and maintain adequate insurance;
– PCASPs do not have an automatic right to subcontract;
– owner’s obligations and responsibilities, including provision of a secure firearms locker and the provision of familiarization;
– permits and licences;
– investigations and claims.
Standards in the contract are set deliberately high, and are intended to raise the bar for security companies offering their services in what is still a crowded market with very little regulation. BIMCO emphasizes throughout that the use of PCASPs cannot be regarded as an alternative to existing security measures, such as BMP. Worry-ingly some security companies are apparently advertising that use of their services will enable owners to save money by transiting the high-risk areas as slower speeds.
Rules for the Use of Force
BIMCO has also produced guidance for the establishment of Rules for the Use of Force in defense of a merchant vessel. These Rules form a vital part of any security contract, but BIMCO cannot itself provide a set of such rules, as they are subject to the national law of the flag state.
The Rules are to be invoked only in response to a specific threat, and are not necessarily in force for the entire time that PCASPs are on board. BIMCO observes said: «It is very important to note that invoking the RUF does not necessarily mean the use of lethal force, or indeed force of any kind by the security guards». The Rules should detail all the stages of a graduated and proportionate response to attack, from non-violent measures through to the use of potentially lethal force. However, in the event of an attack, both crew and security team will be attempting to deal with a fast-developing and often ambiguous situation. For this reason vital to have the Rules, including the chain of command, thoroughly understood by all parties before the PCASPs embark.
The role and responsibility of the Master in an actual engagement has yet to be clearly defined by the 1MO, and will doubtless be the subject of intense discussion. However, it is vital that any set of rules on the use of must establish the respective roles of the Master and the team leader.
BIMCO recommends that it is made clear in the RUF that the Master has overall control of the vessel.
The chain of command in the event of an engagement is as follows:
– Security Team Leader makes the decision to invoke the RUF, and informs the Master where possible or responsible officer if not;
– Once the RUF have been invoked, the security team leader is responsible for all decisions on the use of force. This includes the decision to open fire;
– The Master may order a ceasefire at any time.
Under the terms of Guardon, the Master clearly cannot order a guard to shoot. While it is BIMCO’s intention that in this way, the Master is unlikely to be exposed to any criminal action at a later date, and the contract has been drafted with legal advice from the UK Crown Prosecution Service, this point has yet to be tested in law.
Full Guardon available free on BIMCO’s website:
www.bimco.org
Автор:
Captain Boris DUNAEVSKY, FNI
Baltic (international) Marine Surveyors and Jurists Association Chairman, Spain-Uk based ML Abogados partner, MAC TCC RF Arbitrator, Mediator, Fellow of The Nautical Institute,London
Источник:
Морское страхование. – 2013. – № 4. – С. 34 – 35.