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16 January 2019
Voyaging in West African waters, particularly the Gulf of Guinea, is considered dangerous and raises the question of whether shipowners are entitled to put armed guards on board their vessels to protect them from attacks by arms-bearing third parties. Considering reported attacks of armed robbers at sea, kidnappings for ransom and other criminal occurrences in Nigerian waters, shipowners and operators have explored how to optimise the protection of both ships and cargo.
The International Maritime Organisation (IMO) neither endorses nor condemns the use of armed personnel on board merchant ships, but leaves the decision to the shipowner subject to the law of the flag state. However, in Circular 1405, the IMO published guidance to assist shipowners, operators and masters when selecting armed security. Avoiding political correctitude, the IMO tacitly permits the use of armed guards on board ships. However, shipowners must obey local law.
If a ship is located in the exclusive economic zone and not territorial waters, the shipowner may not be bound by Nigerian law unless they are exploiting the country's natural resources. However, if the ship is located in territorial waters, the shipowner will be bound by Nigerian law unless it is on innocent passage. In general, the possession of a firearm – without a licence from the Nigerian president or the inspector general of police, unless the individual is in the armed forces – is prohibited in Nigeria. Licensed private guard companies may provide guard services, but cannot carry arms during their duties. Although the Nigerian Maritime Administration and Safety Agency's statutory mandate includes maritime security, it cannot carry arms and must rely on the Nigerian Navy under an inter-agency collaboration agreement to provide security for the enforcement of its mandates.
It appears that only the Nigerian Navy can legally bear arms in Nigerian waters. In practice many arrangements exist between shipowners and the navy for protection. The navy and a security company or ship will often enter into a memorandum of understanding, under which naval officers will be placed on board either the merchant ship or an escort vessel that flanks the merchant ship during the voyage. These arrangements are not provided for under the law and, if not illegal, are certainly extralegal. The Nigerian Navy is exclusively mandated to enforce national and international maritime, customs, fishery and immigration laws among others. Its duties are not wide enough to cover the provision of individual security for merchant ships. Despite various initiatives, neither the Ministry of Defence nor the Nigerian Navy has given formal approval for the Nigerian Navy-led initiative for the protection of individual merchant ships. Each case in which the navy provides security cover for individual vessels (for a fee) is outside the mandate and operational scope of the navy. Nonetheless, in the absence of any other options for securing merchant vessels in waters that are notorious for insecurity, shipowners have little choice. The navy may justify these functions as routine patrols within the area of its mandate. To the extent that mutual expectations under the memorandum of understanding are met, there may not be a complainant. As such circumstances have become a norm, the government must issue formal guidelines for the navy's provision of private security on board vessels.
What are the implications where a naval officer or private armed guard oversees a ship in the event of an attack? The assumption in a contractual relationship between a shipowner, carrier and cargo interest is that the master oversees the vessel and has responsibility for the commercial, safety and security interests thereof. The certainty of this expectation is the foundation of most terms in a charterparty and bill of lading. A ship's master must remain in control of decision making. Where decisions must be made which will affect the immediate destination of the vessel, the integrity of the cargo, the marine environment or the vessel's liability to other parties, it is expected that the master will have the final say; otherwise, the fate of the ship and its cargo could be resting on a private guard or naval officer who has no understanding of the implications of their decisions, which could suggest the unseaworthiness of the ship.
For further information on this topic please contact Emeka Akabogu at Akabogu & Associates by telephone (+234 704 329 3271) or email (firstname.lastname@example.org). The Akabogu & Associates website can be accessed at www.akabogulaw.com.
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