Fighting Fire With Fire: The Debate Over Arming Merchant Vessels
As pirate attacks mount, armed security teams can protect you in more ways than one.
By Darren Friedman, Esq. and Lauren Smith, Esq.
For many people the term “pirate” brings to mind images of Captain Hook and Jack Sparrow or other swashbuckling scallywags who commandeered wooden ships with swords and cannons. But pirates are no longer buried in history books or fantasized on the big screen. Instead, they are front-page news as the waters off the east coast of Africa, particularly in and around the Gulf of Aden, have spawned a new breed, who boldly attempt to hijack large oil tankers and merchant ships carrying millions of dollars’ worth of cargo. These pirates don’t use swords and cannons; their weapons of choice are AK-47s and Rocket-Propelled Grenades. In response, many in the shipping industry have turned to armed security guards to fight fire with fire. This article will discuss (1) the growing trend of arming merchant vessels to defend against attacks and (2) how the use of armed guards could lessen shipowners’ potential civil liability for injuries sustained by crewmembers during a pirate attack.
The Pros and Cons of Lethal Force
Modern-day piracy came to the attention of many Americans in April 2009 when the U.S.-flagged cargo ship, M/V Maersk Alabama, was attacked off the coast of Somalia. The crew fired flares, maneuvered the ship’s rudder and locked themselves in the ship’s safe room in an attempt to thwart the attack. Nonetheless, the ship’s captain, Richard Phillips, was taken captive and held for several days on the pirates’ skiff. The attack ended in a dramatic rescue of Captain Phillips by the U.S. Navy, which resulted in the death of three pirates and the capture and subsequent prosecution of one more. Yet the number of attacks globally continued to increase. The next year it reached 489, a 20 percent increase over 2009. While the general practice in the shipping community at the time of the Maersk Alabama incident was to use nonlethal methods against an attack, including evasive maneuvering and fire hoses, since then – and in response to the increasing number of attacks – the use of lethal force has become more common.
For a ship looking to fight fire with fire, there are two ways to utilize arms onboard. First, it can provide arms to its crewmembers. However, many crewmembers are not properly trained in weaponry and already have specific job functions that do not allow them to devote proper time and attention to security detail. Second, and the more utilized option, is to hire private security companies to provide professional, armed guards onboard. Because these services can be expensive, with some estimates at nearly $21,000 a day for a three-man security team, many ships will load the team at ports closer to the Gulf of Aden and utilize it only while traversing high-risk waters.
The use of arms to combat piracy has not been internationally endorsed. For example, the International Maritime Organization (IMO), a specialized agency of the United Nations, does not endorse the use of armed guards. In support of its stance, the IMO cites the possibility of escalation of violence, possible prohibitive regulations at ports of call, and the unforeseen consequences of killing a national. Likewise, a set of best practices promulgated by several prominent organizations in the international shipping industry and updated in August does not expressly encourage the use of armed guards but recognizes it is a decision that must be made by individual ship operators. However, this represented a change from the previous best practices, which specifically stated that the use of armed guards was not encouraged.
Some port states do not allow arms to be carried onboard vessels when transiting their territorial waters. The variation between laws can make it very difficult for shipping companies. For example, South African authorities have detained a number of vessels and personnel that have violated their laws against carrying weapons onboard.
Where the U.S. Stands
Unlike the stance taken by the above-mentioned organizations and the hard-line opposition to the carrying of weapons demonstrated by some countries, the U.S. seems to have moved toward a policy of accepting the use of armed security guards aboard U.S.-flagged vessels. After the attack on the Alabama, the U.S. Coast Guard issued a number of port security advisories discussing piracy in general and the use of armed guards specifically. In one advisory, it provided guidance to U.S.-flagged commercial vessels regarding self-defense during a pirate attack, including when deadly force is necessary and proper. In a subsequent advisory, it provided guidance on the use of firearms onboard ships. The guidance included regulations that must be complied with and the different ways in which firearms may be legally carried onboard.
The Coast Guard also provided minimum guidelines for contracted security services in high-risk waters, including certain credentials that must be met by each guard and certain training that should be completed. In an effort to help U.S.-flagged vessels comply with port state requirements, the Coast Guard has reached out to several countries in and around the Gulf of Aden to determine their local laws and policies on carrying weapons onboard. Since October 2009, several port states have responded and provided guidelines on how merchant ships can meet their requirements.
The U.S.’s recognition of the use of private security guards seems representative of the shipping industry as a whole as more and more shipowners are countering pirate attacks with armed guards. For example, on June 7, 2011, while traversing the Gulf of Aden, the bulk carrier Achilleas was fired upon by pirates. The vessel was protected by a team of armed security guards who fired warning shots, causing the pirates to abort the attack. On May 17, the fishing vessel Alakrantxu was attacked by pirates off the coast of Tanzania. It too was protected by armed security who exchanged fire with the pirates, causing them to abort the attack.
The Liability Issue
The effectiveness of armed security guards may, from a liability standpoint, tip the balance in favor of their use. Under the general maritime law of the U.S., which would apply in a civil lawsuit brought in response to damage and/or bodily injury caused by a pirate attack, there are two theories under which a shipowner may be liable to a crewmember. The first is under the Jones Act, which allows crewmembers to sue their employer for negligence. The second is for breach of the warranty of seaworthiness, which requires the shipowner to furnish a fit vessel.
Although no U.S. case has been tried concerning liability for pirate attacks, a case is pending against Maersk Line, the owner of the Maersk Alabama, as a result of the April 2009 attack. Eight crewmembers who were onboard during the attack are suing Maersk for damages under both the Jones Act and for unseaworthiness. The crewmembers allege that Maersk was negligent and took inadequate steps to provide appropriate levels of security. In an interview after the filing of the lawsuit, one crewmember explained that, prior to the attack on the Alabama, he had asked Maersk to provide armed security guards or to allow crewmembers to carry weapons but that these requests were ignored. While the outcome of this lawsuit could impact the debate on whether armed security guards are necessary and appropriate, their increased use since the Maersk Alabama incident changes the liability analysis for future attacks.
The Jones Act requires employers to provide a reasonably safe place for crewmembers to work. In order for a crewmember to recover damages under this act, he must show that (1) his employer breached its duty to provide a reasonably safe place to work, (2) had notice of the dangerous condition that caused him to be injured, and (3) the breach of this duty was the cause of his injury. Because of the prevalence of pirate attacks in recent years, it can no longer be said that a shipowner sending a ship along the east coast of Africa does not have notice of this dangerous condition, and assumption of the risk by crewmembers is not a defense under the Jones Act. In other words, even if a crewmember knows of the possibility of being hijacked and decides to work on a vessel despite that risk, he is still entitled to recover damages for injuries resulting from an attack.
In determining what constitutes a safe place to work, courts will often look at conformity with customary practice in the industry. Today, with the increased number of ships using armed guards, the presence of such security could be beneficial evidence for a shipowner in the event of a pirate attack. Conversely, the lack of such security could be found to constitute negligence.
As to the warranty of seaworthiness, this requires a shipowner to provide a vessel that is reasonably fit for its intended purpose. Examples of conditions that can cause a vessel to be unseaworthy include defective equipment and insufficient crew. If a crewmember can prove the existence of an unseaworthy condition and that this condition caused him to be injured, he is entitled to recover damages from the shipowner. As discussed previously, with the increased number of attacks and the growing use and effectiveness of armed guards, it is foreseeable that a court could find a vessel travelling the east coast of Africa to be unseaworthy because of the absence of appropriate security measures, including armed guards. Thus the use of armed guards may again provide beneficial evidence for a shipowner in the event of a pirate attack and ensuing lawsuit.
An Emerging Consensus
While controversy remains, the trend is clearly to utilize arms to defend against attacks. From a liability standpoint, this may mean that in order to satisfy their duty to crewmembers to provide a fit vessel and a safe place to work, shipowners need to begin hiring armed guards to protect crewmembers while their vessels are travelling in high-risk waters. Of course, this is a decision that should only be made after a comprehensive risk analysis has been carried out. Shipowners should contact local attorneys before adding firearms or armed security to their vessels. Finally, it is important to note that, while the use of armed guards may be beneficial evidence in a lawsuit brought by victims of a pirate attack, it will not prevent a lawsuit from being filed. – MarEx
Darren Friedman is a founding partner of Foreman Friedman, P.A., a full-service, civil litigation firm with offices in Miami and Chicago. Lauren Smith is an associate with the firm.