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15 February 2012
In 2011, 397 pirate attacks on ships were reported worldwide; out of these, 39 ships were hijacked. To meet the increasing threat from pirates operating in the Gulf of Aden and the Indian Ocean, Norway has adopted new rules applicable to Norwegian registered ships and drilling units. The rules set out when force can be used in self-defence, and allow the use of armed guards and firearms on board ships and units when they are operating in certain geographic areas.
No international legislation governs the use of armed guards on board ships, although the International Maritime Organisation (IMO) has issued non-binding guidelines, which provided the basis for the new Norwegian rules. The rules were adopted on July 1 2011 through amendments to the existing Security Regulation for Ships 2004 and the Weapons Regulation 2009, and entered into force immediately. At present, 20% to 25% of Norwegian registered vessels have armed guards on board.
Both the Norwegian government and the Norwegian maritime industry have emphasised that armed guards should be used in addition to, not in place of, the international maritime industry's Best Management Practices on non-violent protective measures against hijacking. The Norwegian Maritime Officers Association has estimated that over 80% of Norwegian vessels sailing in high-risk areas implement security measures which exceed the Best Management Practices level, which may explain why so few Norwegian vessels have been hijacked.
Under the new Safety Regulation, armed guards can be used only in areas where there are increased alert levels (alert levels 2 and 3) and south of 30 degrees north latitude. Norwegian authorities classify high-risk geographical areas from time to time and inform shipowners accordingly.
It is the shipowner which decides whether to employ armed guards on board. The Safety Regulation requires the owner to carry out a risk assessment and consult with the master in advance. Once on board, the armed guards are under the master's command and the master must approve any use of force. The master also decides when guards should be armed and, when not in use, weapons must be securely stored pursuant to the Weapons Regulation.
Before armed guards are put on board, the shipowner must:
The shipowner must submit an application for a weapons permit to the local police office. Such permit will generally allow weapons to be carried on board a vessel for a period of six months, and will not be limited to specific voyages. However, the geographic limitations on when weapons can be deployed will apply. In certain circumstances the police may allow shipowners to use automatic weapons, which are otherwise prohibited under Norwegian law.
The documentation to be submitted to the Norwegian Maritime Directorate must include a description of why alternative preventive measures (eg, the Best Management Practices) are insufficient – in other words, the need to employ armed guards must be justified. The documentation submitted should also include the shipowner's assessment of the elected security firm and provide details of the firm's personnel, training procedures and procedures for handling weapons. Norwegian authorities may ban security firms deemed 'unsuited' from Norwegian vessels.
On-board procedures must be established, but need not be approved in advance by the authorities. These procedures cover the secure storage of firearms, and the shipowner or master is required to keep records of all weapons and ammunition taken on and off board, and to account for any missing weapons.
The Safety Regulation also states that the war insurers are to be notified "within a reasonable time" before the employment of armed guards. Such information may also be a direct requirement of the insurer itself.
The use of force as an act of self-defence is generally permitted under the Criminal Code, but this right has now been endorsed in the Safety Regulation. Force can be used only where there is a direct, imminent, substantial and in other ways unavoidable threat, and the force used must be proportionate given the circumstances. The master must approve the actual use of force, and persons on board (including crew, passengers and security guards) are required to respect the master's decisions and assist if necessary.
In addition, the Safety Regulation contains specific rules on the use of firearms. As with the use of force in general, the master must approve each instance of carrying or using firearms. It is explicitly stated that if possible, attackers should be warned through light and sound signals, as well as warning shots, before firing any direct shots.
Incidents involving the use of force must be reported to the Norwegian Maritime Directorate within 72 hours. The report shall include a description of the event, identify the persons involved and state whether weapons were used. Documenting incidents through video or sound recordings is recommended. If there is reason to believe that the use of force has caused personal injury or death, the incident must be reported immediately to the Norwegian police.
If the crew or guards on board the vessel exceed their right of self-defence by using unnecessary force, the individual in question and the master may face criminal proceedings. In principle, the shipowner could also be prosecuted under Norwegian rules on corporate criminal liability.
A shipowner is generally liable towards third parties for mistakes and negligence by its employees and servants, including the security firm. Proper measures should be taken to ensure contractual recourse rights towards the security firm and to check the security firm's liability insurance.
Pirates used to be the stuff of fairy tales, but increasingly they have become a reality of day-to-day life. The new rules do not license the use of force, but rather codify and regulate the circumstances in which a ship comes under attack and must use force as a protective action. Although pirates have become ever more emboldened in their activities, and ships continue to be attacked and hijacked, to date no ship with armed guards on board has been successfully seized.
For further information on this topic please contact Ena Aarseth Barder, Greta Hollmén, Trond Eilertsen or Gaute Gjelsten at Wikborg Rein by telephone (+47 22 82 75 00), fax (+47 22 82 75 01) or email (firstname.lastname@example.org, email@example.com, firstname.lastname@example.org or email@example.com).
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