Bryant’s Maritime Blog – 6 July 2009

Headlines: Special issue on piracy and armed robbery against ships.

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There have been an unusually large number of recent developments relating to addressing the problems posed to the maritime industry by the continuing threat of piracy and armed robbery against ships. This issue will focus almost solely on those developments.

IMO – guidance re piracy off the coast of Somalia

The IMO issued a circular relating to piracy and armed robbery against ships in waters off the coast of Somalia. The circular forwards an updated set of best management practices to deter piracy in the Gulf of Aden and off the coast of Somalia, which was developed by a working group of industry organizations. The practices are intended to address the unique challenges presented in this area. Additional guidance is provided for vessels engaged in fishing in these waters. MSC.1/Circ.1332 (6/16/09).

IMO – recommendations to Governments re piracy

The IMO issued a circular providing recommendations to Governments for preventing and suppressing piracy and armed robbery against ships. For a variety of reasons, the IMO recommends that flag States strongly discourage the carrying and use of firearms by seafarers for personal protection or for the protection of the ship. Seafarers are civilians and use of firearms requires special training and aptitudes. The risk of accidents with firearms carried on board ship is great. Personally, I concur in this sentiment. The circular provides advice on the investigation of piratical attacks and the prosecution of those involved, as well as a draft agreement for enhanced regional cooperation in preventing and suppressing acts of piracy and armed robbery against ships. MSC.1/Circ.1333 (6/26/09).

IMO – guidance to shipowners and masters re piracy

The IMO issued a circular providing guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships. Among other things, it recommends carriage of additional crewmembers when the ship is scheduled to operate in waters at high risk of piratical attack and increased emphasis on security training and drills. These views are also espoused in my article linked below. MSC.1/Circ.1334 (6/23/09).

USCG – Port Security Advisories re self-defense, etc.

The US Coast Guard issued three closely-related Port Security Advisories. The first, PSA 3-09, provides guidance on self-defense or defense of others by US-flag commercial vessels operating in high risk waters. The second, PSA 4-09, addresses compliance with the US International Traffic in Arms Regulations (ITAR) when placing weapons on board US-flag commercial vessels intending to operate outside the United States. The third, PSA 5-09, establishes minimum guidelines for contracted security services on US-flag commercial vessels operating in high risk waters. Note: These documents provide important and valuable information regarding protection of the crew and vessel from piratical attacks and from armed robbery against ships. The documents also provide a good explanation of the US common law of self-defense and defense of others. An area not covered by the documents is the law of self-defense and defense of others in foreign jurisdictions. Under international law, piracy can only occur on the high seas (e.g., more than 12 nautical miles offshore). Unlawful attacks against a ship occurring within the territorial sea or internal waters of a country are generally defined as armed robbery, and local law applies. It should be remembered that the Coast Guard definition of high risk waters is not limited to the high seas. What self-defense standards would be applied in a court in Somalia, Yemen, Indonesia, Nigeria, or elsewhere if a US master or crewmember is arrested there for shooting a local citizen? In addition, what local laws apply to having weapons on board a ship calling in a port of that country or even transiting the territorial sea? Finally, there are numerous contractual issues involving owners, operators, charterers, unions, insurers, and cargo interests that will need to be considered. This is a complex issue for which there are no easy answers. The US Coast Guard has provided useful information on some important issues, but a variety of others must be resolved as the industry works through this difficult problem. (6/25/09).

Defense of US vessels and cargoes against piracy

The National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647) was approved by the House of Representatives on June 25, 2009. It is now being sent to the Senate for consideration. Among its 848 pages, the bill includes two anti-piracy provisions. Section 3505 addresses defense measures against unauthorized seizures of Maritime Security Fleet (MSF) vessels. It would require that new or renewed operating agreements for MSF vessels require any such vessel engaged in hazardous carriage be equipped with appropriate non-lethal defense measures to protect the vessel, crew, and cargo from unauthorized seizure at sea. “Hazardous carriage” would mean the carriage of cargo for the Department of Defense in an area that is designated by the Coast Guard or the International Maritime Bureau as an area of high risk of piracy. Section 3506 addresses defense of vessels and cargoes against piracy generally. It would require the Secretary of Defense to embark military personnel on board a US-flag vessel carrying Government-impelled cargoes if the vessel is both operating in an area designated by the Coast Guard or the International Maritime Bureau as an area of high risk of piracy; and determined by the Coast Guard to be at risk of being boarded by pirates. Section 3506 would not apply to an area designated as an area of high risk of piracy on the earlier of September 30, 2011 or the date on which the Secretary of Defense notifies Congress that the Secretary believes that there is not a credible threat to US-flag vessels carrying Government-impelled cargoes operating in such area.

Bill introduced re defense against piracy

Representative LoBiondo (R-NJ) introduced the United States Mariner and Vessel Protection Act of 2009 (H.R. 2984) to amend title 46, United States Code, to assist in the defense of United States mariners and vessels against piracy, to ensure the traditional right of self-defense of those vessels against piracy, and for other purposes. If enacted into law, the bill goes a long way to provide legal protection for US mariners and owners of US vessels engaged in good faith defense against piracy. There is room for improvement, though. The bill does not address armed robbery against vessels. It also does nothing to ease the onerous requirements for getting weapons of self-defense onboard US vessels. (6/19/09).

UNOSAT – spatial analysis of Somali piracy activity

The United Nations Operational Satellite Applications Program (UNOSAT) released a spatial analysis of Somali pirate activity for the period 1 January through 20 April 2009. Although this information is somewhat dated, it provides useful data for placing a perspective on the piracy problem. (4/23/09).

IMO – summary of Council session

The IMO issued a news release stating that the IMO Council agreed that the theme for next year’s World Maritime Day will be “2020: Year of the Seafarer”. The Council agreed to award the International Maritime Prize for 2009 to Mr. Alberto Aleman Zubieta, Administrator of the Panama Canal Authority. The Council agreed that the 2009 Award for Exceptional Bravery at Sea should go to two nominees: (1) Mr. Maurice Conti and Mrs. Sophie Conti for the rescue in rough seas of three crewmembers of a yacht that had sunk off a remote South Pacific coral reef; and (2) AST2 Abram A. Heller, US Coast Guard, for rescuing eight crewmembers of a fishing vessel that foundered in severe winter weather conditions in the Bering Sea. Finally, on a point relevant to the theme of this special issue of the newsletter, the Council also agreed to recognize the exceptional services rendered to shipping and mankind by the commanding officers, officers, petty officers, and crews of navy ships from a wide range of countries patrolling in the western Indian Ocean to prevent and repress piracy. (7/3/09).

Ratcheting down the risk of piracy

Through the kind permission of the editors of Maritime Reporter and Engineering News, attached is the article that I wrote for the June 2009 issue of that magazine, entitled Ratcheting down the risk of piracy.

Further information

Additional information regarding the countering of the threats posed by piracy and armed robbery against ships may be found on the “Piracy” page of my website Bryant’s Maritime Consulting.

If you have questions regarding the above items, please contact the editor:

Dennis L. Bryant

Bryant’s Maritime Consulting

4845 SW 91^st Way
Gainesville, FL 32608-8135

USA

1-352-692-5493
dennis.l.bryant@gmail.com

http://brymar-consulting.com

© Dennis L. Bryant – July 2009

Redistribution permitted with attribution