In my article in Issue 35 of Ocean Magazine titled “Fire In The Hold” I discussed the issue of piracy as a re-emerging phenomenon and whether private boat-owners should choose to arm themselves as a means of protection. Since this article, reports from the International Maritime Bureau (IMB) indicate that the frequency of piracy incidents have not waned. In fact, at the time of writing, there have been 162 such incidents so far in 2012. While most attacks are reported off the coast of Somalia and in the Gulf of Arden, piracy incidents are also widespread in parts of the Indian and Pacific Oceans.
The Wall Street Journal reported in January 2010 that large shipping and fishing companies have been forced to resort to employing private security firms to protect their vessels when travelling through high-risk waters. While companies are reluctant to engage in armed conflicts with pirate vessels, the practice of carrying armed guards on board has grown and is deemed by some to be imperative.
The problem with this emerging practice, and the reason many companies have been reluctant to embrace it, is that it opens a Pandora’s Box of potential legal dilemmas. Issues of civil and even criminal liability arise, as do questions of jurisdiction given that these boats are moving between the territorial waters of multiple countries. These issues also raise questions as to the traditional responsibilities of a ship’s captain and how these responsibilities apply in the current climate.
So what does this mean for the innocent owner of a private pleasure craft? They may still be at risk of piracy. So what happens if they choose to embrace the trend of carrying armed guards on board for protection? Putting aside the issue of self-defence against acts of piracy, this article looks at illegal actions that may be taken by a security guard and the potential consequences for a ship’s owner and captain.
Consider this situation: You own a large vessel and are about to embark on a fishing voyage from Darwin to the Philippines. You hire a private security firm who provide an armed security guard to travel with you on your journey. You encounter a small, unmarked vessel several miles off the coast of the Philippines which appears to have set its course directly for you. You signal for the vessel to identify itself however, it does not respond as the vessel looms closer and anticipating the worst the security guards open fire believing there are pirates on board the vessel. One of the men on board the stray ship is killed and another two are injured. You continue on your voyage and return home safely.
You may now be thinking the money spent hiring the security firm was a solid investment. What you might not have considered are the legal ramifications of the incident if in fact it was not an attempted pirate attack. The security guard has potentially carried out an illegal act and you may be liable for it.
The other problem this raises relates to the responsibilities of the Captain. We all know captains and ship owners have responsibilities to ensure the safety and security of the people and cargo on board their vessel. But what happens when such responsibilities are outsourced to a private security firm? To what extent can the legal obligations of the Captain be passed on?
The parties involved
The first issue to consider is the relationship of the various parties that may be involved in the safety and security of a vessel. On the one hand, we have the relationship between the owner of the vessel (“the Company”) and the captain (“the Master”) and the differing responsibilities which may be assigned to each of these parties. On the other hand, we have the independent contractor who is providing security services for the vessel. This party may be contracted on behalf of the Company or the Master and their obligations will be largely controlled by the contract itself.
What is clear is that there is an intertwining relationship between the main actors involved in the security of any vessel which, like an unruly web of entangled rope, must be untangled to decipher where the liability of one party ends and the other begins.
The Captain’s responsibilities
As mentioned above, when security firms are contracted to provide protection on ocean-bound voyages, a question can arise regarding the responsibilities of the Captain for the safety of the passengers on board and whether these responsibilities can be passed on to the travelling security guard.
To answer this question it will often be necessary to look at the actual contract between the ship’s owner and the security provider. This will often contain extensive exclusion of liability clauses that seek to protect the contractor from liability for loss or damage sustained by the ship. The result of such clauses may be that, whilst the security firm is contracted to provide security services, the ship’s captain ultimately remains legally responsible for the safety of those on board. It would always be prudent to ensure, however, that any contract of this sort contains a clause that protects the Captain from liability for patently illegal conduct on the part of the security contractor.
In the case of larger passenger vessels and cargo ships, the International Convention for the Safety of Life at Sea (1974) (“SOLAS”) recognises that the authority of the Master of any ship extends beyond any other person and that the Master will have the ultimate discretion regarding safety measures to be taken on board. In the case of smaller private vessels which are subject to less regulation, the situation is much less clear.
Civil liability
The next issue is whether the ship’s Captain may be liable in a civil suit against the injured fishermen. There are two main questions here. The first is what jurisdiction applies to the determination of the Captain’s liability. The second is whether the Captain can be liable for the actions of the contractor.
- JurisdictionGenerally, the law applicable in relation to any tort (or civil claim) is the law of the place where the tort occurred (the ‘lex loci delicti’). Therefore, if a tort occurs in New South Wales, the laws of New South Wales will apply to the determination of the defendant’s liability.Maritime torts, however, pose an interesting dilemma as they can occur outside the strict jurisdiction of any one place. Where the tort is committed inside the territorial waters of a particular country, the lex loci delicti rule will apply as that country’s jurisdiction will extend over those waters. A country’s territorial sea is the body of water extending 12 nautical miles off the country’s coast.Where the tort is committed on the high seas, however, we have a different situation. In this case, the laws that govern the tort will be those of the place or country in which the vessel is registered. This means that, regardless of where the injured fishermen bring their civil claim, the laws of the jurisdiction of registration will be used to determine the liability of the Captain.
- Liability of the Captain for the actions of the security guardCivil law recognises certain situations where one person (A) may be liable for the actions of another (B). The main category of such liability is the case of an employer. It is generally recognised that employers are liable for the tortious acts of their employees. This liability does not, however, extend to the situation where A hires an independent contractor. Therefore, the ship’s captain in the example given above would, strictly speaking, not be liable for the actions of the security guard as the guard was hired as an independent contractor. The matter becomes complicated, however, when the lines between independent contractor and employee become blurred.
Criminal liability
The last issue is whether the Captain may be criminally responsible for the acts of the security guard.
Crimes committed within the territorial sea of any state will generally be governed by the laws of that state. For example, in Australia, the Crimes at Sea Act 2000 (Cth) and the State and Territory equivalents, extend the criminal jurisdiction of the Commonwealth and that of the States and Territories to Australia’s territorial sea. This criminal jurisdiction applies to foreign ships in Australia’s territorial waters as well as Australian ships.
So, in the example given above, if the acts of the security guard occurred in the territorial sea of say the Philippines, can the Captain be liable for criminal prosecution? Putting to one side the specific rules of criminal law that may apply in the Philippines, criminal liability (like civil liability) can in some situations be imputed onto one person (A) for the acts of another (B). This can occur when A and B form an agreement to commit a particular crime. Even if B carries out all the necessary acts involved in the crime on their own, A may still be criminally responsible. Furthermore, A can still be liable for other crimes that are committed by B if it was reasonably foreseeable that such crimes could occur during the course of carrying out the agreed crime.
As an interesting twist on our Philippine fishing voyage example, consider this: Before embarking you agree with the security guard that they will bring with them on board several automatic machine guns. In forming this agreement you both know that bringing these on board will breach arms control laws (thereby forming an agreement to commit a crime). The security guard then uses these weapons to kill and injure the fishermen. Was such a result reasonably foreseeable when the agreement was made to carry the arms on board?
The situation is much less clear when we consider crimes committed on the high seas outside the jurisdiction of any one country. Certain international crimes do exist; however, generally speaking they relate to broader and more serious acts such as genocide and crimes against humanity.
Conclusion
As is apparent from the above discussion, the hurricane of potential legal dilemmas that is stirred up when armed security guards are taken on board any vessel is vast and dangerous. The difficulty for a ship’s captain is that while they are ultimately responsible for the welfare of the ship, her cargo and all that sail upon her, inadvertently the Captain may find themselves in hot water when armed security guards adopt potentially unlawful actions when protecting themselves from suspected pirates.