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.