International Maritime Organization (IMO), Maritime Safety Committee (MSC) 90 report.

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1 Insurance Bulletin Issue 15 - May 2012 Welcome The International Maritime Organization s 90th session of its maritime safety committee tackled the difficult issue of creating further guidance for the use of armed guards. During the opening days of MSC90, the IMO reported that an intense debate took place, finally ending with the agreement to issue guidance and make some more certain decisions regarding a standard for private maritime security companies. We will look at the guidance and the implications in more depth in this issue of the Seacurus Monthly bulletin, but in essence the IMO guidance covers: Private Maritime Security Company (PMSC) professional certification. Company requirements. Advice on management, including recommendations on selection, vetting and training of team personnel. It covers information on deployment, addressing the PMSC s role in ensuring efficient and successful deployment, including communicating with the shipowner or operator and making recommendations on management of firearms and ammunition from embarkation to disembarkation and use of force. Captain Thomas Brown Managing Director Seacurus Limited International Maritime Organization (IMO), Maritime Safety Committee (MSC) 90 report. Throughout the MSC, a Working Group on maritime security including piracy and armed robbery against ships, met to work on a number of key areas which could then be presented for action and approval by the main committee. The Group was instructed to develop interim guidance for private maritime security companies (PMSCs) for adoption at MSC90, which would then be debated by the wider IMO membership.

2 Development of guidance for Private Maritime Security Companies (PMSCs) In keeping with the ongoing industry debate, the Group agreed it was important to provide guidance to PMSCs on the complex legal framework in which they were operating. This has moved the IMO from its more traditional view of developing guidance for owners and flag States, and firmly shows the need to guide PMSCs as it moves them towards professional certification. The interim guidance for PMSCs is intended to assist in the development of an international standard and certification process for the industry, as well as to assist PMSCs in demonstrating their competence and professionalism to shipowners/ship operators in the interim. In developing the guidance, the Group has ensured that reference to the guidance in both the Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict (The Montreux Document), and the International Code of Conduct (ICoC) are used. These are seen as providing extremely useful information, and a large number of PMSCs are already signatories to the ICoC. However, the fact that these documents are only intended for land-based security providers in the context of armed conflict, and in the latter case, in the context of self-regulation for private security companies, means that they are only useful up to a point. The Group agreed on the general provisions on PMSC requirements in relation to the existing provisions stated in MSC.1/Circ.1405/Rev.1, and added further details related to applicable law, insurance cover, piracy awareness and operational competence from the point of view of the PMSC. The Group discussed the need for maritime expertise for PMSC, noting that the Group had previously agreed that it was important to stress the need for maritime expertise given the special nature and requirements related to providing security on board ships as opposed to on land. The Group clarified that the intent and purpose of this was to require that the personnel of the security company have

3 maritime expertise. In further expanding this vision, the Group stated their expectations that security companies not having previously engaged in maritime service and wishing to offer their services to shipowners/ship operators would hire in the maritime competency needed to deal with the special requirements of the maritime industry. It was also the belief of the Group that these specialised skills, knowledge and competencies would be required both on board and ashore. In developing the guidance, there was some concern about the requirement for testimonials or references as some delegations expressed concern that the requirements could restrict the ability of a new PMSC to demonstrate their capability to shipowners/ship operators. The European Commission believed that certain provisions would be likely to restrict free competition between companies as it tends to favour those PMSCs existing at the date of adoption of the text. The majority of the Group, however, was of the view that the list of documentary evidence that may be requested by those seeking to hire PMSCs was not prescriptive but rather was intended to provide guidance to the PMSC on what they may be required to demonstrate to those considering employing their services, (as previously agreed in circular MSC.1/Circ.1405/Rev.1), and it was agreed that the guidance would be retained. In the section related to management, it was agreed that the aspects related to the selection and vetting of PCASP (Privately Contracted Armed Security Personnel), as well as PCASP team training, should be consistent with the guidance in MSC.1/Circ.1405/Rev.1. The Group further decided to strengthen the recommendations on drug and alcohol testing by including the need for regular testing procedures, in order to avoid any interpretation that such testing referred only to an initial test. In examining the recommendations related to the deployment of PCASP, the Group agreed to include references to the latest version of the Best Management Practices (BMP), and, in particular, that an armed team should only be seen as a supplement to full BMP implementation and in no way replaces the need for BMP to be implemented. It was also agreed that the guidance related to the ship safety certificate provided in MSC.1/Circ.1405/ Rev.1 was not a PMSC issue and thus it was not appropriate to address it in guidance to PMSCs. The Group further agreed that it would be appropriate to include, within the section on management of firearms and ammunition from embarkation to disembarkation, references to policy and procedures for the inventory of both firearms and ammunition and the maintenance of firearms. The Group agreed this was of particular importance given that the guidance was to be used to assist in the development of an international standard for PMSCs.

4 Use of Force In relation to the aspects addressing the use of force, the Group agreed on the need for PMSCs to ensure: PCASP have a complete understanding of, and fully comply with, the applicable laws governing the use of force That the use of force should not exceed what is strictly necessary and reasonable in the circumstances, and Care is taken to minimise damage and injury in respect to the protection of life of persons on board and the ship from armed pirate attacks. The Group agreed that a detailed and graduated response plan including use of force should be documented and signed, prior to embarkation, by all relevant parties, including the shipowner/ operator, the Master and the PMSC. The Group also agreed that the PMSC, in consultation with the shipowner/operator, should ensure that both the Master and the PCASP team leader have had the rules for the use of force explained to them and that the Master and the PCASP team sign an undertaking that they have read and understood the rules for the use of force. Reporting Incidents The Group noted that there were a number of reports required in the case of incidents involving the use of force, and that it was important to clarify, in the guidance to PMSCs as well as the guidance to shipowners, ship operators and shipmasters, what reports were required to be produced, by whom, and to whom they should be sent. The Group noted that in the case of an incident there could be two reports produced: One by the Master for the shipowner/operator, and One by the PCASP team leader, acknowledged by the Master, for the PMSC and the shipowner/ operator. The Group agreed that both these reports should be provided by the shipowner/operator to the flag State, noting that ideally those reports would align and in some cases may be merged into one report, but that this would not always be the case.

5 Guidance on the use of PMSCs The real focus of the Group had been to view the necessary amendments to circular MSC.1/Circ.1405/ Rev.1 and to agree to the inclusion of amendments in the relevant sections of the document, including: PMSC background information; selection and vetting of PMSC; PCASP team size, composition and equipment; Command and control of the onboard security team including their relationship with the Master; Management of firearms and ammunition from embarkation to disembarkation; Rules for the use of force; (and reporting and record keeping) in order to harmonize both sets of interim guidance. Incident reporting and record keeping, following established procedures as set out in circulars MSC.1/Circ.1333 and MSC.1/Circ Supernumerary Issues One problematic area which had been reported pre-msc90 was the onboard categorisation of PCASP. In relation to consequential amendments to MSC.1/Circ.1406/Rev.1, the Group considered the issue and recalled that FAL 37 (FAL 37/17, paragraph 8.33) noted the practice of categorising PCASP as supernumeraries. The group was unable to come to an agreement, and instead the issue will now be worked through by a Correspondence Group on General review of the Convention, including harmonization with other international instruments. The Group agreed that, while it would be beneficial to make a recommendation to the Committee on this matter, it was not in a position to do so as the decision was the prerogative of the flag State. The Group noted that the current practice of the majority of flag States that had agreed the use of PCASP was to categorise them as supernumeraries. However, the future entry into force of other International Conventions (e.g. Maritime Labour Convention 2006) may have an effect on such practice, and the correspondence group is perhaps likely to create a definitive categorisation.

6 Development of an international standard for certification of PMSC The eyes of most observers and the industry were on the issue of how a standard for PMSCs would be tackled. There had been much speculation before the MSC meeting, and with a number of competing standards emerging, it was understandable that so much focus was on this aspect of the IMO sitting. The MSC had agreed the need to develop a standard, and that IMO should provide leadership in the process. It had also been agreed that there should not be self-regulation of the industry. As such, the Group considered document MSC 90/20/9 (ISO and BIMCO) and the issue of development of standards for certification of PMSC.

7 As requested by the Group, ISO explained the process of a publicly available specification (PAS), which is a fast-track process to development of a standard. A PAS has all the service attributes of a standard in that it is certifiable, actionable and auditable. A PAS is, in effect, a beta test that is good for three years, to be used and commented on, after which if accepted it becomes a standard. ISO indicated it was their intention to complete the PAS by MSC 91 in November Recognising the urgent need to develop a standard and mindful of the need not to duplicate work, the Group agreed that the most effective and expeditious approach would be to provide the interim guidance for Private Maritime Security Companies providing privately contracted personnel in the High Risk Area to ISO, to be used as a base document by ISO in developing its standard. Much of the hard work in creating a standard has already been done, and this means that we are already seeing many PMSCs using what will be very close to the final ISO. The shipping industry is also increasingly aware of the make-up of these standards, and so by the time the ISO is ready to be launched, then much of the shipping and security industries will already be working in a joined-up manner. The representative from ISO stated that ISO appreciated the opportunity to clarify to the Group the distinction between accreditation and certification, the understanding and importance of the option of independent third-party certification, and the recognition that regulatory requirements are the exclusive responsibility of IMO, noting that ISO standards are voluntary industry standards to facilitate a uniform international implementation. The Group noted that ISO encourages parties to be certified by a body accredited by a Government to carry out such certification, with a goal of credited certification under a government recognised scheme with government recognised companies. The Group agreed that the final responsibility lies with Member States, and encouraged all to participate in the process. The Group agreed to forward the new interim guidance to ISO as the base document to be used in developing the standard, and further agreed to include, in the package to be sent to ISO, a range of documents from a number of flag States and NGOs. Those who have studied these various documents will note much commonality, and this suggests that not only will the PAS be fairly straightforward to produce, but that it will swiftly gain acceptance. For existing schemes such as the SAMI accreditation which is already up and running, it seems that aside from a few amendments and additions then it should be fit for purpose.

8 Customs and the movement of arms Another problematic issue surrounding the use of PMSCs and PCASP has been the customs related aspects of the carriage, embarkation and disembarkation of PCASP firearm and security equipment. The Group considered document MSC 90/20/12 (WCO) on the short questionnaire produced by the World Customs Organization (WCO) Secretariat which focused on two key issues: the role of customs in the control of firearms and ammunition entering or leaving the customs territory for use by PCASP; and the information required related to firearms. Unfortunately the WCO clarified that, from the 36 replies it had received, four or five of those responses were from countries within the High Risk Area (HRA). This was not seen as being a sufficient response, and so the customs issue is still in limbo. The Group requested, and WCO agreed, to seek further responses from countries in the HRA, taking into account the concerns expressed by Member States on the need to address their national requirements in relation to the implementation of IMO interim recommendations on the use of PCASP on board ships and issues related to embarkation and disembarkation of PCASP, their firearms and equipment. The Group noted that WCO would be publishing, on its public website, all the responses authorised to be published by the respondent States. The Group also agreed to revisit this issue once the information had been posted, and an analysis had been made of the responses.

9 Implications for the armed response and PMSCs On the whole the implications of MSC90 were fairly positive. For PMSCs, and for the shipowners wishing to use an armed response the pathway seems to be a clearer. The fact that so much work has been ongoing since the last MSC and the subsequent intercessional meetings meant that the maritime security industry was seemingly able to stress its commitment and credentials in a far more impressive manner than perhaps had previously been the case. The past guidelines have been shown to be close to a workable model, and aside from some clarifications and minor amendments, the standards and accreditation mechanisms are still workable models. There will be some changes in the way in which accreditations are accepted, and it is thought that maritime administrations will have to play more of a role - however, it seems that we are very much on track to have a pragmatic and workable system, which provides owners, crews and the industry with the reassurance it needs. Mental Health Issues According to Lloyd s List, which is developing an unhealthy fascination in this armed arena, research is being undertaken to view the mental health (or otherwise) of private maritime security personnel. Much has been made of the requirements of various standards, such as the International Code of Conduct for Private Security Service Providers (ICoC), requiring employers to implement a range of policies to support a safe and healthy working environment, which includes the psychological health of staff. As is perhaps to be expected of such a new industry, very little research has been carried out on the mental health of armed guards and that it is likely (according to Lloyd s List) that a wide range of mental health provisions exist across the industry.

10 One academic is looking to address the issue, and occupational psychiatrist Professor Neil Greenberg is currently conducting some research in this area. According to Greenberg, the fact that guards have to perform high-risk tasks, including convoy duties and the close protection of individuals at risk of suffering harm, it is a concern that so little is known about their mental health. According to Professor Greenberg, only two scientific papers have explored the issue of mental health and maritime security. The first was a US study that examined a group of security contractors who worked in war zones. The study found that around 20% of respondents reported having suffered from depression, almost one in three were suffering significant symptoms of psychological distress, including symptoms that strongly suggested posttraumatic stress disorder, and around 15% were drinking to excess. The second study interviewed a small sample of UK PMSCs in detail about their occupational experiences working in a war zone and about mental health. This study showed up some interesting elements, with contractors reporting: They liked the work because it was challenging and offered a good salary and a military-style social network. They reported being very aware of their vulnerability They felt they had little back-up if things went wrong, which was a source of anxiety. They felt compelled to continue in their role even if they were feeling distressed. They feared seeking help with mental health issues as this could threaten their employment. His study hopes to find good evidence that the industry is taking the mental health of armed guards seriously...and if not, then it is hoped that means of mitigating the burden of psychological problems can be found.