WHO IS IN CHARGE OF ARMED GUARDS ?

By John A.C.Cartner

Excerpt from SIDELIGHTS – February 2011, the magazine of  CAMM: The Council of American Master Mariners, Inc.

John A. C. Cartner is a practicing maritime lawyer in Washington, D.C. and also enrolled as a solicitor in England & Wales. He holds a current unrestricted USCG license. He is the principal author of John A.C. Cartner, R.P. Fiske & T.L. Leiter, The International Law of the Shipmaster (2009) Informa/Lloyds and is a coauthor of C.W.J. Cartner, J.A.C. Cartner & R.P. Fiske, The Carriage of Small Arms Aboard Vessels in Oceanic Trade for Defense Against Pirates (February 2011), Shipmasterlaw Press [www.Shipmasterlaw.com; jacc@cflaw.net].

The question arises amongst those ignorant in our ways: “Who controls armed guards on board?” The culture of the contracted security business requires ‘taking control’ of matters as the team leader sees it.

This may be by brandishing guns, making loud noises and dancing silly choreographies replete with shouting and sing-song jargon if he wishes. That business often conflates internal discipline of their own kind with control by lawful authority.

Masters and armed guards are creatures of law. A vessel is an extra-territorial chattel of the flag state and by law it is controlled and administered by the master. Only he or she has the warrant of the flag state to do so. This warrant is a sovereign matter of delegation of authority and responsibility to the Master by the state. Armed guards are neither  warranted nor delegated by a sovereign.

The status of armed guards may be of three kinds. They may be put aboard

·       as seafarers on the crew list;

·       as riding crew; or

·       as the expression of the powers of a sovereign boarding military or civil persons.

The first two are regulated in law similarly. The third is governed otherwise. I will discuss the first two.

The master in law may hire whomever he wants to prosecute the voyage, subject to the rules of the flag state and his contract with the company. In law there is no difference between a person having some imputed facility with firing guns and an able seaman or a boatswain with seamanship skills.

Neither has any special privilege. Each has skills the master deems necessary to assist him in performing his duty to prosecute the voyage safely while taking care of his other duties. Each is aboard to assist the master as the master sees fit. The master may delegate some of his authority to those competent in law to accept the delegation.

However, he may only delegate to certificated officers because only certificated officers are competent to take the delegation. Therefore in flag state law, the chief engineer, for example, is certificated as being legally competent to accept the delegation to manage all other engineers aboard for the master.

The holding of a certificate or license of the flag state is prima fascia evidence of the competence to accept the master’s delegation within the certificate’s or license’s constraints of the flag state. Holding a contract with a company as a mercenary sailor is not such evidence.

Thus, the master commands by law. Officers and ratings assist the master and his delegated officers. What does this make an armed guard? The short but accurate answer in the law of command is “not very much.” The guard has no certificate. Therefore he is incompetent in law to accept any delegation of the master’s duties or authorities. He may be directed in lawful orders coming from the master or his delegated officers.

That delegate may be the greenest of third mates. He, however, is competent to order armed guards as a delegate of the master if so ordered by the master. An armed guard cannot be the delegate of the master. An armed guard is as any other uncertificated person aboard. He is always, without exception, under the dominion, control, authority and responsibility of the master at all times and in all places afloat or ashore as long as he is in the master’s employ.

The company may hire riding crew for technical work. Riding crew are not paying passengers but contracted workers. The riding crew as situated are passengers and under the command, dominion and control of the master by law. They differ from no other person aboard who is incompetent to accept delegated authority. Even if one or all of the riding crew is certificated, he or she is not of the officers of the vessel and remains incompetent for delegation.

This is also the case of any rating or an armed guard who has a certificate. The certificate is exercisable if the person is hired by the master to exercise it. Otherwise it means nothing aboard. Thus, in the case of an armed guard with a certificate, he is as riding crew and under the dominion, control and command of the master as any other incompetent uncertificated person.

In day to day piracy how does this work? For example, who gives the order to fire and to cease fire? The master is responsible for the acts of his officers and crew unless an officer or crew commits an illegal act against his order or commits an illegal act without his knowledge. The master may not  delegate authority to an uncertificated armed guard. Hence, the master has the responsibility of firing and must give the order himself or through a lawful delegate.

The order may be in the future or contingent such as an order book which says “When you [armed guard] see a person in a funny pirate suit who fires his gun at us from a small craft you may fire at him at will.’’ Hence, the local ‘rules of engagement’ are the master’s to provide or to approve or disapprove or modify if given by his company – but not the armed guard’s company.

The master is not an agent of the guard company but is the commander of the armed guards aboard. He may violate his company’s contract with the armed mercenaries if he wishes if his duties call for it and he may do so with impunity in that case. His duties supersede contracts with hired guns executed by the owner.

Does the riding crew leader or rating in charge of the armed guards have any authority aboard? The short but accurate answer is “No.” He remains under the dominion, control and command of the master from the time he boards until he leaves as do his assistants.

Thus, the company may give lawful orders to the master about armed guards. The master may agree if these orders do not violate his five principal duties. The master is under a duty at law to exercise his professional judgment. To the extent there is a conflict, his on-the-scene professional expertise is the deciding factor.

What happens if armed guards disobey and detour and frolic? They are on their own. The master may arrest them or suppress them for mutiny if warranted and that suppression, if reasonable, may employ deadly force. He may punish them within reason or restrain them. The armed guards may be liable civilly or criminally for their acts if they step outside the dominion, control and authority of the master. Armed guards get no special treatment aboard or in law.

Bottom line, armed guards have no authority aboard. They are as incompetent in law to accept the master’s delegation as an ordinary seaman. The master is in full dominion, authority and control of armed guards at all times as he has of any other person aboard. Mercenaries of any stripe aboard need to be very clear in this understanding.

EUROPEAN SEAFARER: R I P ?

Deaths can, as an American author famously experienced, be prematurely announced and obituaries often written while their subjects are still in the land of the living.

So the idea now gaining ground that the European seafarer is now on his or her deathbed might too be a false rumour, but if the subject is a certain kind of European the stories may be more credible.

Last month the head of fleet personnel at a leading shipmanager told a conference in Manila the current crisis had “killed off the north European seafarer”. At about the same time a poll on the website of Nautilus, the Anglo-Dutch officers’ (north European) union, resulted in a small majority (58% of 158 replies) answering in the negative to the question “Does the European seafarer have a long-term future?”

The distinction made by the shipmanager (a north European himself) is important. “European” can cover a wide range of nationalities: from Irish in the West to Russian in the East and from Icelanders in the North to Maltese in the South. In the context of shipping “North European” refers to “traditional maritime countries” such as the UK, Germany, The Netherlands, as well as those in Scandinavia.

Over the last 20 years seafarers from eastern and central Europe, including the Baltic States, have been increasingly employed by ship owners mainly but not exclusively in western and northern Europe, including Scandinavia. Poles, Russians and Ukrainians – all Europeans – are among the top nationalities in today’s crew lists from which the North Europeans are forecast to disappear.

With the exception of some domestic trades and specialist trades such as liquefied natural gas carriers, however, the manning of the world fleet will, according to the shipmanager, be dominated by nationalities from Asia, with China, The Philippines and India the main suppliers of labour.

The main reasons for the dwindling numbers of North European seafarers are by now familiar: earlier crises such as those of the 1970s and 1980s resulted in the loss of competitiveness that forced their employers to turn to new and cheaper sources; and the fading attraction of a seagoing career to young northwest Europeans.

Efforts – half-hearted, some might say – to reverse the decline by governments individually and through the European Union (EU) have had limited success. The current economic crisis, bigger than those before, has seen shipping companies aggressively cutting costs and replacing north Europeans with Asians. Last year, for example, sea-based workers’ remittances sent from Europe to The Philippines almost doubled to USD 1.1 billion.

The evidence pointing to terminal decline, however, is not conclusive. Earlier this year a survey of countries in the European Economic Area (the EU plus Norway, Liechtenstein and Iceland) suggested European officer numbers had, in fact, increased by 5% over the previous five years. The rise, unexpected perhaps, was attributed to improved recruitment tactics and higher investment in training.

The report, commissioned by the European Community Shipowners Association (ECSA), however, warned that the increase could be reversed as a result of the ageing of the workforce, many of whom are close to retirement. Last year the UK noted that 65% of its 11,400 certificated and active-at-sea officers were over 40 years old, with the figure for the 10,400 deck and engineroom ratings higher at 72%.

The EEA controls almost 42% of the world fleet in gross tonnage terms (almost 23% registered in EEA countries) and, according to ECSA, its shipping industry provides, in addition to 126,000 jobs ashore, 470,000 jobs at sea but only 165,000 or just over a third are held by EEA nationals.

Similarly, the recently published update of the BIMCO/ISF manpower survey suggests that the number of officers from Organisation for Economic Co-operation and Development (OECD) countries, including most of Europe, has increased significantly to 184,000 or almost 30% of the world total of 624,000. While the rise in numbers, now based on holders on STCW certificates, may be due to increased training, the latest report cautions that certificate-holders may include those who are no longer active at sea (working ashore, for example).

The report is based mainly on country-supplied data but also includes figures based on responses from around 100 companies: these put the number of OECD officers at less than 10% of the total. The caveat here is that the companies responding may not be fully representative of all those employing OECD officers.

The BIMCO/ISF report also warns that, while the decline in the number of OECD officers may have been temporarily halted, demographic trends and the 10 years it can take to produce a senior officer mean it is likely the trend to source from the Indian subcontinent and the Far East will continue.

With European governments distracted by more pressing issues, it will take loud voices to remind them of the implications of a decline in the number of their seafarers. These have already been spelled out but will no doubt be stressed again by the European Commission’s taskforce under Sir Robert Coleman when it reports next year: the dangers of over-reliance on non-European seafarers in manning not just European-flag ships but ships of any flag carrying European trade, including imports of vital energy supplies; and the gradual loss of maritime skills.

As ECSA has acknowledged, however, any government action will be influenced by the need to maintain the competitiveness of European shipping. Balancing strategic and economic needs, particularly in a time of both austerity and geopolitical uncertainty, will be a challenging task.

With government spending being ruthlessly cut, any support for training and employing nationals at sea will be difficult to justify. European seafarers, like their counterparts in other OECD countries, will be increasingly at the mercy of forces beyond their control.

Even if their governments are able to produce policies that help recruitment and training, decisions already taken by European companies to increase their reliance on non-OECD officers will be difficult to reverse. Reports of the death of the European seafarer may be greatly exaggerated but the patient is clearly in need of intensive care.