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16Maritime Reporter & Engineering News The recent incident involving the MV Enrica Lexie off the coast of India highlights the increas-ing carriage on merchant ves- sels of armed security guards (whethermilitary personnel or private contractors) to ward off attacks by pirates and robbers. I will not speculate as to what may have occurred on board the tanker or on the fishing vessel where two individuals un- fortunately lost their lives. Suffice it to say that this is a tragic incident for all in-volved. The International Maritime Organiza- tion (IMO) has reluctantly acquiesced tothis trend of weaponizing merchant ves- sels by promulgating guidelines for flag states, coastal states, and ship owners/op- erators regarding use of privately con- tracted armed security personnel. The guidance empathically states that themaster retains overriding authority for acts undertaken on board the vessel. It also states that the security personnelshould have rules for the use of force, as agreed between the ship owner, the mas- ter, and the security personnel. Unfortunately, there is very little guid- ance available to the owner and the mas- ter to judge whether a particular securitycompanys rules for the use of force are adequate and appropriate.Since the master and, to a lesser extent, the ship owner are ultimately responsible for everything that occurs on a merchant vessel, it behooves them to understand the rules for use of force that are to be im-plemented by the armed security guards.It is also important that the master andowner be able to distinguish between ad- equate and inadequate rules.The principles discussed below gener- ally apply in common-law countries. For legal principles in specific jurisdictions, expert legal advice should be sought. The basic construct of this discussioninvolves the right of self-defense and/or the defense of others. An individual is entitled to use force, up to and includingdeadly force, to thwart an attack upon that individual or another when and only when the attack poses an imminent threatof great bodily harm or death. In other words, you may not shoot someone who merely slaps your face. You may, though, be entitled to use deadly force against someone who attacks you with a gun,knife, or other deadly instrument (e.g., acrowbar). Whether the attack poses an imminent threat of great bodily harm ordeath depends in large part on weapon being employed. For example, a crowbar being wielded by an attacker 100 meters away would not be considered an immi- nent threat, whereas an attacker with an AK-47 at the same distance would con- stitute an imminent threat. Even when an imminent threat is presented, that doesnot mean you are required to use deadlyforce in such circumstance, only that theuse of deadly force may be reasonable inthose circumstances.Your resistance to an attack must be proportional to the threat presented. If you can safely retreat, you should do so.For example, if pirates in a skiff attack your vessel and fire their weapons, you should (if able) increase speed andchange course to evade the pirates. If that is not feasible, you should warn the pi- rates off. If warning shots are to be fired, it is important the shots be fired so as not to result in unintended injury. Several years ago, military personnel on a USvessel fired warning shots in front of a small boat that was approaching the US vessel. The shots were fired in front of the approaching boat. Unfortunately, one of the rounds skipped on the surface of the water and struck an individual on the boat, killing him. It was then learned that the small boat was approaching the US vessel in hopes of selling trinkets ? no harm had been intended. In other in- stances, local fishermen fire their weapons for the purpose of alerting apassing vessel that it is approaching their fishing nets. Again, they are not pirates and are not intending to attack the vessel. Use of deadly force in such circumstancewould be inappropriate. Persons using deadly force in either instance would be operating outside the usual and acceptedbounds. They and the master could pos- sibly be held responsible for any injuries or damages incurred by an innocentparty. Non-deadly force may be used for self-defense or defense of others; for defenseof the vessel; or to prevent theft or dam- age to property that one is authorized toprotect. Non-deadly force may include such things as: maneuvering the vessel to place an attacking boat in its wake; use of sonic booms or dazzling lights; use offire hoses or monitors; deployment of barbed or concertina wire; and deploy- ment of an electrified fence around the vessels gunwales. The goal of non- deadly force is for the attacker to be de- terred, without killing or severely injur- ing the attacker. Masters should carefully consider allcircumstances when employing force and resort to the use of deadly force or to au-thorizing armed security guards on boardthe vessel to use deadly force only when there is imminent danger of death or greatbodily harm. The inappropriate use of deadly force may result in civil and/or criminal charges against the armed secu- rity personnel, the master, and the owner. Reasonable care and careful considera- tion is required before one exercises or authorizes the use of deadly force. Mas- ters and owners should also carefully re- view the rules for use of force by armed security guards prior to embarkation ofthose guards on the vessel. The rules should fully address the restrictions onuse of force, including a provision that deadly force may only be used with theexpress permission of the master. GOVERNMENT UPDATE Maritime SecurityDennis L. Bryant, Maritime Regulatory Consulting,Gainesville, FL, Tel: 352-692-5493 Email: [email protected] Legal Definition and Consequences Surrounding the Use of Force (Image: Courtesy Transas Anti-Piracy Simulator)