Magnitsky’s Mother Appeals to Moscow Bar Association For All Lawyers To Boycott the Posthumous Trial of Her Son

Magnitsky's Mother Appeals to Moscow Bar Association For All Lawyers To Boycott the Posthumous Trial of Her Son

Sri Lankan Bar Association Calls For Strike to Protect LCJ

UK Govt Supports ISO for PSCs

Swiss Money Laundering Investigation in the Magnitsky Case Widens With New Requests Sent to Multiple Swiss Financial Institutions and Accounts Frozen

Bangladesh ICT: Meeting with Lord Avebury at the House of Lords

Bangladesh ICT: Meeting with Lord Avebury at the House of Lords

Insurance for Private Maritime Security Companies: Liability Relating to Misuse of Lethal Force Remains Unclear

As the International Organization for Standardization reviews the issue of insurance for private maritime security companies, liability in key circumstances such as the misuse of lethal force remains unclear and untested.

The most pressing issue, as highlighted by the Enrica Lexie case, is the potential for misuse of lethal force, in which a ship’s armed guard kills someone who was not a pirate. Holman Fenwick Wilan partner Elinor Dautlich explains that in the case of misuse of lethal force the individual guard, the PMSC and the shipowner could be sued by dead third party’s estate in a civil and criminal claim. The merits of arguing self defence, she says, would depend on jurisdiction.

Ms Dautlich suggests that there may be a question mark over whether P&I cover would respond. There may be express exclusion of piracy, whether exclusion of cover because of presence of weapons of war or an exclusion of cover because liabilities arise from terrorism.

In relation to negligent discharge in which a guard injures or kills a crew member, BIMCO’s Guardcon’s “knock for knock” principle (clause 15), establishes that each party is responsible for the death and injury of its own personnel. However, there is an exception, whereby the PMSC is liable for “all claims liabilities… to crew and third parties... whatsoever and howsoever, arising out of and in connection with the accidental and negligent discharge of any firearm by the security personnel”.

Under the knock for knock principle, negligent discharge damaging the vessel would result in owners being liable for vessel damage, but this does not cover cargo, unless the cargo is owned by an owners’ group.

Debate continues as to whether unlicensed weapons on board a vessel could prove problematic for a shipowner, with a risk that their presence prejudices insurance cover.

For the full article, please see Lloyd’s List.

Draft Standard for Private Maritime Security Companies Discussed at European Commission in Brussels

Last week, the European Commission in Brussels hosted the International Organization for Standardization’s second meeting on ISO PAS 28007, its draft standard for private maritime security companies.

The meeting was chaired by Robin Townsend of Lloyd’s Register, the ISO project leader for piracy. Attendees included senior representatives from the Commission, the International Maritime Organization secretariat, Nato, the Security Association for the Maritime Industry, BIMCO, the African Maritime Safety and Security Agency, marine insurers and specialist lawyers.

A panel of experts led the debate, examining in detail the latest draft of ISO PAS 28007. The panel also analysed the implications for insurance within the standard; rules for the use of force; the selection and control of firearms; the size of teams on board and issues surrounding command and control.

According to Mr Townsend, the group focused on, “the crucial elements of the ISO PAS, such as the planning, control and operation of PMSC activities when they place armed guards on board ships and, most importantly, how they identify all the various legal requirements that they have to comply with and how they demonstrate that they are acting correctly in all cases.”

“When the text is accepted, PMSCs can finalise their plans for certification and the critical aspects of accreditation can be agreed. The first accredited certification remains therefore on track for the middle of next year,” said Mr Townsend.

Commission representative Christian Dupont closed the meeting, welcoming the steps being taken to ensure armed guards operated to defined standards.

The draft standard is to be delivered to the IMO Maritime Safety Committee on 26 November 2012, however, many questions remain unanswered in respect of the implications for insurance coverage.

For the full article, please see Lloyd’s List.

Piracy: Self Defence is a Universal Concept of Law

Steven Kay QC and Peter Glenser Review of the 100 Series Rules for the Use of Force

Legal Review of the 100 Series Rules©

1. Introduction

1.1 The threat to the seas and specifically international maritime trade posed by piracy that has necessitated the private sector to protect their right to trade can only be addressed by measures that are lawful. The need to employ security personnel with arms to protect commercial interests and persons on board requires that employers and all others with concurrent responsibility operate within an internationally recognized legal standard so as to prevent themselves from being held liable in criminal law or civil law for any acts carried out on their behalf. Privately Contracted Armed Security Personnel (PCASP) given the responsibility to protect must follow internationally recognized laws to ensure that the steps taken by them do not also expose them to criminal or civil liability.

1.2 The Rules for the Use of Force to protect merchant Vessels, their Crew, passengers, cargo and security personnel, are a graduated series of responses to ensure adequate and appropriate measures are taken to safeguard those at risk from unlawful and criminal acts whilst on board a Vessel. The 100 Series Rules provide owners of Vessels, owners of cargo, charterers, contractors, insurers, underwriters and other interested parties with a lawful framework and example international benchmark upon which those charged with ensuring the security of a Vessel and all those aboard may act.

2. Jurisdiction

2.1 A Vessel, owners, charterers and those on board will be subject to the laws of several jurisdictions at any one time during a passage being: flag state, coastal state, port of state and in certain circumstances the laws of the national state of an individual.

2.2 If a crime is committed on board a ship, flag state laws apply but if the crime is within the jurisdiction of the coastal state the criminal jurisdiction of the coastal state may prevail. If a pirate is killed in the territorial waters of a state or port, the perpetrator of the killing may become subject to the criminal laws of the coastal state. This emphasizes the need to ensure all acts and conduct that fall within the scope of the Rules for the Use of Force comply with the 100 Series Rules that have as their aim the objective to ensure at all times, lawfulness.

2.3 The carrying of weapons on board will involve compliance with coastal state and port of state laws that are to be regarded as paramount.

3. Law of self-defence

3.1 Self-defence is a universal concept of law and inherent right that permits a person to protect himself or to intervene to protect another. A person acts in lawful self-defence of himself or another when he has an honest belief that he or the other person is under attack or imminently to be attacked so that it is necessary to defend himself or the other person by using no more force than is reasonably necessary to repel the attack or threatened attack.

3.2 The use of force must be proportionate to the degree of danger faced. Once the attack or imminent threat of attack has been repelled, the use of force in self-defence must cease. If a person exceeds the amount of force reasonably necessary to stop or prevent an attack they will be exposed to criminal responsibility for their conduct. Their superiors may also be at risk of being held criminally responsible for any failures in their supervision.

3.3 It is important that those charged with the responsibility to protect Vessels and persons on board attempt to defuse a potentially hostile situation by taking measures to deter hostile elements, as the 100 Series Rules rightly seek to ensure that use of lethal force is that of last resort.

4. Measures to ensure proper compliance

4.1 The use of security personnel carrying weapons requires all parties responsible for their contracting to ensure that such personnel and those interacting with them in the discharge of security duties are trained in the use of the 100 Series Rules. It is important that these duties are properly discharged and records maintained to show that they have been discharged to prevent vicarious liability. Once training has taken place, regular checks on the competence of all those with duties arising from the Rules will be necessary to ensure they are fully aware of their obligations and apply them in practice.

4.2 The need for proper compliance and the duties to record, inform, report and supervise apply throughout the management chain of responsibility and all involved need to ensure they perform to the highest standards to protect themselves from liability.

Steven Kay QC & Peter Glenser

2 September 2012