Dangerous Waters

Lawyers are waking to the fact that using armed guards on ships could lead to unforeseen litigation.

The use of armed guards on board merchant vessels is increasing but the impact this could have on both shipowners and ships’ masters, in the event that lives are lost at sea, should not be underestimated.

Chris Grieveson a partner with Wikborg Rein in Singapore writing in Lloyd’s List has been running through a scenario that could result in criminal prosecutions being brought against the master and/or the owner, with the very real prospect of a prison sentence.

The scenario envisages that three people are killed in the events following an attack by pirates on a tanker. When the master gives permission for the armed guards on board his ship to return fire, a pirate is shot by an armed guard, one of whose colleagues also accidentally kills a member of the tanker’s crew when negligently discharging his weapon. To make matters worse, a fisherman on board a trawler going innocently about its legal business — and unwittingly caught up in the crossfire — is also killed.

The deaths of three people involved in the imaginary scenario would expose the master to potential criminal liability under the laws of the vessel’s flag state, which may allow for the private prosecution of criminal actions. Mr Grieveson states, “the consequences of the action taken by the armed guards could be imputed back to the owner”. In the case of the death of the crew member and the fisherman, any reliance on self-defence as an argument is unlikely to exonerate the master and guards.

We could be about to see criminalisation reach new highs with masters responsible for the vessel, enforcing the laws of the flag state on board, but also ultimately responsible for the actions of all those on board — including any armed guards — no matter the level of delegation of authority.

In a perfect storm of worse case scenarios, the master, may be open to the risk of prosecution from family and friends of the deceased, in addition to any state-initiated action which might be mounted against him. The master’s country of citizenship could also impose extra-territorial sanctions on its citizens abroad, plus the master could face the possibility of criminal prosecution in his home state. Added to that is the not-insignificant risk of private civil actions being brought against the master in respect of damages flowing from an alleged breach of duty of care owed by the master to the crew.

While the master is in the dock, what about the owner? The employment contract between the owner — or its technical managers — and the crew member will provide for certain payments to be made by the owner in the event of the death of the crew member. Although these payments may initially be backed by P&I club insurance, this cover could be invalidated in the event that the crew member died as the result of initiatives taken by the armed guards. In addition, it could be that health and safety considerations may be invoked, depending on the nature of the contractual relationship between the owner/manager and the crew member.

The owner is at risk of exposure to civil liability in an action brought by representatives of the crew member, the fisherman, or even the pirate. Depending on the laws of the country of their incorporation, owners may also face the possibility of criminal liability pursuant to, for example, corporate manslaughter proceedings. The directors or senior management of the shipowning company could even find themselves at risk of prosecution for criminal liability as a result of their involvement in controlling the actions of the company.

He concludes by recognising the possible need for armed guards, but stresses that owners and masters to ensure that they are legally protected. A very difficult balancing act.

While armed teams appear to be an answer to piracy, it remains clear that they are not the answer…