In the context of providing personnel on board for the protection against threats of
violence as a security service, some dissent exists as to the applicable ‘command of
the vessel’ protocol in the event of a threat to security. A prevalent view is that the
PCASPs even in a situation of threat, are under the command of the master of the
vessel and as such cannot engage the use of force without his approval. This opinion
is founded on the provisions of the Code,
68 and the SOLAS Convention
69 which
provide specifically that the master has overriding authority and responsibility for
the security of the vessel. By implication, a clear line of superiority of the master
subsists irrespective of the existence a security threat to which a PCASP responds.
However, a contrary view hinged on general self defence principles highlights an
individual right of self defence in situations of grave danger allows for a proportionate response to mitigate a threat including the use of force, even without the
master’s authorisation.
70 In such situations, security personnel on board a vessel may
disobey a master’s decision to withhold the use of force against a threat or treat a
particular situation as an exemption or extenuating circumstance. The diverse
opinions create a legal conundrum which several states choose to resolve by
re-affirming clearly in national regulation, the overarching position of the master
over PMSCs on board a vessel even in security threat situations.
71 The United
Kingdom in its Interim Guidance to UK Flagged Shipping on the Use of Armed
Guards to Defend against the Threat of Piracy in Exceptional Circumstances, for
instance, affirms the master’s authority. Similarly, the existing commercial contract
template (GUARDCON) also emphasises the superiority of the master’s decision on
board the vessel.
72 Where parties to the contract agree, the template moves a step
further to accommodate the possibility of PCASP acting outside the orders of the
master and the conventional SOLAS and ISPS position.
73
68 ISPS Code, Part A, sec. 6.
69 SOLAS, XI-2, Reg. 8.
70 On the right to individual self defence, see Ashworth (1975), pp. 282–284; Priddy and CaseyMaslen (2012), pp. 844–845. The right to self defence or defence of others does not negate the
possibility of criminal prosecution, depending on the jurisdiction, if the amount of force is more
than lawfully necessary at the time. See Priddy and Casey-Maslen (2012), p. 845.
71 For instance, see Bahama Maritime Authority (2011) Guidance to shipowners on carriage of
armed personnel for vessel protection, Rule 3.2; UK Department for Transport, Interim Guidance
to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in
Exceptional Circumstances, (Updated May 2013), Rule 5.1; U.S. Department of Homeland Security, United States Coast Guard, Port Security Advisory (3-09), Guidance on Self-Defense or
Defense of Others by U.S. Flagged Commercial Vessels Operating in High Risk Waters, Rule 3(a).
72 Interview with Maritime Security Expert, 12 April, 2017; BIMCO (2012a) Section 4 & Annex D.
73 BIMCO (2012b) Section 4(8)(d).
Private Maritime Security Companies Within the International Legal. . .
185
violence as a security service, some dissent exists as to the applicable ‘command of
the vessel’ protocol in the event of a threat to security. A prevalent view is that the
PCASPs even in a situation of threat, are under the command of the master of the
vessel and as such cannot engage the use of force without his approval. This opinion
is founded on the provisions of the Code,
68 and the SOLAS Convention
69 which
provide specifically that the master has overriding authority and responsibility for
the security of the vessel. By implication, a clear line of superiority of the master
subsists irrespective of the existence a security threat to which a PCASP responds.
However, a contrary view hinged on general self defence principles highlights an
individual right of self defence in situations of grave danger allows for a proportionate response to mitigate a threat including the use of force, even without the
master’s authorisation.
70 In such situations, security personnel on board a vessel may
disobey a master’s decision to withhold the use of force against a threat or treat a
particular situation as an exemption or extenuating circumstance. The diverse
opinions create a legal conundrum which several states choose to resolve by
re-affirming clearly in national regulation, the overarching position of the master
over PMSCs on board a vessel even in security threat situations.
71 The United
Kingdom in its Interim Guidance to UK Flagged Shipping on the Use of Armed
Guards to Defend against the Threat of Piracy in Exceptional Circumstances, for
instance, affirms the master’s authority. Similarly, the existing commercial contract
template (GUARDCON) also emphasises the superiority of the master’s decision on
board the vessel.
72 Where parties to the contract agree, the template moves a step
further to accommodate the possibility of PCASP acting outside the orders of the
master and the conventional SOLAS and ISPS position.
73
68 ISPS Code, Part A, sec. 6.
69 SOLAS, XI-2, Reg. 8.
70 On the right to individual self defence, see Ashworth (1975), pp. 282–284; Priddy and CaseyMaslen (2012), pp. 844–845. The right to self defence or defence of others does not negate the
possibility of criminal prosecution, depending on the jurisdiction, if the amount of force is more
than lawfully necessary at the time. See Priddy and Casey-Maslen (2012), p. 845.
71 For instance, see Bahama Maritime Authority (2011) Guidance to shipowners on carriage of
armed personnel for vessel protection, Rule 3.2; UK Department for Transport, Interim Guidance
to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in
Exceptional Circumstances, (Updated May 2013), Rule 5.1; U.S. Department of Homeland Security, United States Coast Guard, Port Security Advisory (3-09), Guidance on Self-Defense or
Defense of Others by U.S. Flagged Commercial Vessels Operating in High Risk Waters, Rule 3(a).
72 Interview with Maritime Security Expert, 12 April, 2017; BIMCO (2012a) Section 4 & Annex D.
73 BIMCO (2012b) Section 4(8)(d).
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185