Piracy
Written by Jason M. Wong Thursday, 28 May 2009 00:00
International Shipping and Maritime Use of Self-defense
Recent reports of maritime piracy and the apparent inability of shipping crews to effectively defend their vessels have thrived in the international media. While Walt Disney has romanticized the fictional Captain Jack Sparrow in the Pirates of the Caribbean movie series, piracy is no laughing matter. Frequently, a variation of a single question is asked: Why can’t the crew defend themselves? The answer in short: U.S. and International regulations either prohibit or restrict how crews may defend themselves.
Historical piracy
Piracy is not a new phenomenon. Pirates pillaged Caribbean waters as early as the 17th Century as well as the Strait of Malacca in Southeast Asia in the 19th century. Although piracy in the Caribbean has been effectively eliminated, piracy in the Strait of Malacca and the Gulf of Aden continues.
During the 19th century, the Strait of Malacca was a critical passageway for traders and shipping companies shipping spices and tea from India and China to the West. The strait is a narrow passage, 550 miles long, between the Malay Peninsula and the islands of Indonesia. The passage contains thousands of small islands, narrow straits, and many rivers, making it an ideal location for pirates to hide and evade capture from naval forces. As a result of the geography, patrolling the Strait was, and continues to be, a difficult task.
Early European efforts to curb piracy in the late 19th century succeeded because of three factors. 1. The increased frequency of naval patrols by colonial powers. 2. Political control of Malaya was established (now Malaysia and Singapore) by the British, leading to better political stability and improved economic conditions that caused piracy to steadily lose its appeal as a way of life. 3. Naval superiority was achieved in the form of naval steamships against the predominantly wind-powered pirate sailing ships.
Modern Piracy
Merchant ships during the colonial periods could legally carry cannons as a form of defense. Weapons such as muskets, pistols, and cannons were regarded as normal commodities for trade, in the same manner as opium, silk or spices. In modern times, only vessels belonging to State navies are legally authorized to be armed with heavy weapons - i.e., weapons capable of firing projectiles greater than ½-inch in diameter, surface to surface anti-ship missiles, or torpedoes capable of sinking other vessels. In general terms, only State authorities may legally commission the manufacture or purchase of such weapons.
Pirates generally utilize small arms (that is, small caliber, hand held firearms) and do not have large caliber weapons capable of engaging in naval combat. In addition, modern day pirates appear to have taken a cue from land-based warfare by adopting asymmetric warfare tactics, masquerading as fishing or cargo transport ships performing innocent roles.
Modern Shipping Requirements
Two critical factors - time and cost, determine logistical shipping schedules and influence the routes from one destination to the next. Modern manufacturing and consumer retailing are increasingly reliant upon “just-in-time” inventory delivery. As a result, a broad spectrum of international trade is influenced by the amount of time commodities and other goods spend in transit. Any additional requirements that increase the amount of time at port or increase the cost of shipping will necessarily impact manufacturers, retailers, and consumers on a worldwide scale.
On the other end of the spectrum is the International Ship and Port Facility Security Code. Implemented by the International Maritime Organization (IMO) on July 1, 2004, the ISPS seeks to improve the safety and security of international shipping. Under the requirements of the ISPS, passenger ships and cargo vessels greater than 500 gross tons traveling between international ports of call must certify that the ship has an approved and properly implemented security plan as a means of defending against smuggling, terrorism, piracy, and stowaways.
For those unfamiliar with the organization, the IMO is a specialized agency of the United Nations responsible for implementing the ISPS on a world-wide basis. The organization is also involved in legal matters, including liability and compensation issues and the facilitation of international maritime traffic. Under current IMO guidelines, the carriage of arms is actively discouraged for fear that the use of firearms in the act of self-defense will escalate violence and put crews at increased risk of injury or death.
Engaging in security checks and compliance certifications has invariably led to increased transport times and increased costs. Combined with volatile fuel markets, commercial ships must map the quickest and most direct routes to their destinations. Commercial ships use predictable and repeated courses of travel between ports of call to deliver goods in a quick and cost effective manner. The end result: avoiding a known piracy hotspot is not a viable option in an increasingly cost conscious consumer society.
On May 5, 2009, Philip Shapiro, the Chief Executive Officer of Liberty Maritime, testified before the U.S. Senate Committee on Commerce, Science, and Transportation, Surface Transportation and Merchant Marine Infrastructure, Safety, and Security Subcommittee. Mr. Shapiro testified that Congress should allow merchant ships to effectively defend themselves by either arming the crew with small arms, or allow the hiring of armed security guards for the length of the voyage. Mr. Shapiro further noted that although a maritime right of self defense is codified in U.S. law, export regulations promulgated by the U.S. State Department effectively prohibit the arming of a U.S. flagged merchant vessel. As a result, the only effective countermeasure that merchant ships can use against a pirate attack is the use of high pressure hoses to prevent boarding. Such efforts have had mixed results, as demonstrated by the recent capture of the Maersk Alabama and the attempted capture of the Liberty Sun.
According to Mr. Shapiro’s testimony, the crew of the Liberty Sun rigged fire hoses to cover the stern of the vessel where many boarding attempts occur. The effect created a wall of water coming off the vessel, preventing the attacking pirates from boarding the vessel. The wall of water was so impressive that the crew of the U.S.S. Bainbridge (a U.S. flagged warship) later commented that they had never seen so much water coming off of a vessel. Unfortunately, as the crew of the Maersk Alabama may testify, the use of fire hoses against small arms fire and rocket fire is marginally effective at repelling a motivated pirate. The use of firearms to counter-attack and engage in self-defense would be much more effective in defending the cargo and crew.
U.S. Export Requirements
Under the International Traffic in Arms Regulations (ITAR), an export license would be required to allow the temporary export of weapons from the United States. The license must list each port that the ship plans to visit. Travel to ports not listed on the license would not be authorized without amending the previously approved export license. Completion and execution of the licensing process would be incredibly time consuming, further adding to the time and cost of shipping goods. In addition, weapons could not be possessed on ships destined to China, due to the arms embargo against China. ITAR section 126.1(a) notes that:
“it is the policy of the United States to deny licenses and other approvals for exports and imports of defense articles and defense services, destined for or originating in certain countries. This policy applies to… countries with respect to which the United States maintains an arms embargo (e.g., Burma, China, Liberia, and Sudan) or whenever an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States. ”
Applying for a temporary export license, while outwardly viable, is not cost or time effective.
U.S. crew members may temporarily export no more than three non-automatic firearms and 1000 rounds of ammunition without a license under an exemption in ITAR section 123.17(c).
Specifically, Section 123.17 requires that a declaration by the U.S. person and an inspection by a customs officer is made; that the firearms and accompanying ammunition must be with the U.S. person’s baggage or effects, whether accompanied or unaccompanied (but not mailed); and that [the firearms and ammunition] must be for that person’s exclusive use and not for re-export or other transfer of ownership. The foregoing exemption is not applicable to a crew-member of a vessel or aircraft unless the crew-member declares the firearms to a Customs officer upon each departure from the United States and declares that it is his or her intention to return with the firearms upon return to the United States.
In addition to the ITAR export license requirements, U.S. law requires that armed merchant ships be bonded and insured. 22 USC § 463 requires that “the owners or consignees of every armed vessel sailing out of the ports of, or under the jurisdiction of, the United States… shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of the vessel and cargo on board, including her armament…” The value of the vessel and cargo on board will vary according to the age and condition of the vessel and the nature of the cargo on board. Nevertheless, the need for a bond imposes an additional cost upon shipping companies in the event that they decide to arm their merchant vessels. The practical effect is again one of cost. It is not cost effective to arm merchant ships so that they may effectively defend themselves.
Foreign Compliance
In the event that U.S. regulatory compliance may be achieved, foreign compliance will also be required. Foreign governments may forbid that a vessel and its crew be armed. In the case of Belgium, Italy, Spain, and other countries that have signed the U.N. Firearms Protocol, the issuance of a “transit permit” may be required prior to the arrival of the ship. While not impossible to obtain, the permitting process entails an additional burden, adding additional time and cost to the shipment. Finally, recall that IMO guidelines discourage the carriage and use of firearms for fear that the use of firearms in the act of self-defense will escalate violence and put crews at increased risk of injury or death. Given that the IMO is an agency of the United Nations with power and oversight over international ocean-borne shipping, it may not be wise for shipping companies to defy agency guidance.
Solutions?
Given the additional burdens imposed by U.S. and International law, it appears unlikely that merchant ships will be given the tools they need to effectively defend themselves. While it may be physically and technically possible to arm a ship’s crew so that they may defend themselves from piracy, the operational, logistical, and monetary demands resulting in part from the myriad of international regulations and restrictions effectively prohibits the use of firearms.
Would several semi-automatic belt fed firearms (i.e., several semi-automatic M2HB firearms, combined with 1,000 rounds of ammunition exported under the ITAR section 123.17(c) exemption) be sufficient to defend a merchant vessel? Perhaps. If crewmembers were provided with correct training and sufficient resources, could several trained sharpshooters defend a merchant vessel under attack? Again, perhaps. While this approach may appear both economically and physically viable, it will require the additional burden of filing a declaration by each crew member to a Customs officer prior to each departure, thereby adding additional time and cost to the shipment. As a result, implementation of this course of action may not be feasible due to cost and planned shipping schedules.
Is it legal for merchant vessels to arms themselves for the purposes of self defense? Yes, there are legal provisions allowing merchant ships to be armed. Nevertheless, given the legal and regulatory hurdles required to arm a merchant vessel, it appears that very few, if any commercial shipping agencies will invest the time or cost required to arm a merchant vessel.
Jason M. Wong is an attorney licensed in the State of Washington. Mr. Wong is the managing partner of the Firearms Law Group, a law firm that represents manufacturers, importers, and exporters in the firearm and defense industries. The firm currently maintains offices in Washington, D.C., and Tacoma, Washington.