By Emeka Akabogu
Introduction
Let’s put it bluntly – voyaging in West African waters, particularly the Gulf of Guinea, is considered dangerous. Question – is a ship owner entitled to put armed guards on board his vessel to protect same from attack by arms bearing third parties?
In view of reported attacks by armed robbers at sea, kidnappers for ransom and other criminal elements in Nigerian waters, ship owners and operators have actively explored options to optimise the protection of both ships and cargo.
IMO Position
The International Maritime Organisation neither endorses nor condemns the use of armed personnel on board merchant ships, but leaves the decision to the ship owner subject to the law of flag State. However, by its Circular 1405, it has published guidance to assist shipowners, operators and masters when selecting armed security.
Shorn of political correctitude, the position is that IMO tacitly permits use of armed guards on board ships. However, the ship owner should obey local law.
What is the Position in Nigeria?
It depends on which part of Nigerian waters the ship is located, and where it is going. If you’re within the Exclusive Economic Zone and not Territorial Waters, you may not necessarily be bound by Nigerian laws unless you’re exploiting the natural resources. But if you’re within the territorial sea you will be bound unless you’re on innocent passage. I’m actually concerned with those who are bound for Nigerian destinations and within Nigerian territorial waters properly so called, so we’ll leave the analysis on location for another day.
Generally, possession of a firearm is prohibited in Nigeria without a license from the President of the Federal Republic of Nigeria or from the Inspector General of Police, unless you are of the Armed Forces. Licensed private guard companies may provide guard services, but cannot carry arms in the course of their duties. NIMASA, though with statutory mandate which includes maritime security, cannot carry arms and has to rely on the Nigerian Navy under an inter-agency collaboration agreement to provide security for enforcement of its mandates.
Nigerian Navy in the Picture
So it seems it’s really just the Nigerian Navy that can bear arms validly in Nigerian waters. In practice many ‘arrangements’ are on between ship owners and the Navy for protection. In truth, most of these ‘arrangements’ are illegal, and may not stand the scrutiny of a serious probe.
The Nigerian Navy is exclusively mandated to enforce national and international maritime, customs, fishery and immigration laws amongst others. Their duties are not wide enough to cover provision of individual security for merchant ships. Despite various initiatives, neither the Ministry of Defence nor the Nigerian Navy has given formal approval for Nigerian Navy-led initiative for individual protection of merchant ships. All cases where the Navy is involved in providing security cover for individual vessels for a fee are outside the mandate and operational scope of Navy, and therefore illegal. Yet that is the practice.
Implication on Ship Operation
Where a naval officer or private armed guard is in charge of the ship in event of an attack, what are the implications?
The assumption in a contractual relationship between the ship owner, carrier and cargo interest is that the Master is in charge of the vessel with responsibility over the commercial, safety and security interests thereof. The certainty of this expectation is the foundation of most terms in the charterparty and bill of lading. The Master must always remain in control of decision making. Where decisions have to be made which will impact the immediate destination of the vessel, integrity of the cargo, marine environment or liability to other parties, it is expected that the Master is in a position to 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 his decisions, which could suggest un-seaworthiness of the ship.
Conclusion
The better option may be to have a licensed bearer of arms as a member of ship’s crew who has also met the vetting requirements of IMO’s Circular 1405. Pending that, or a formal initiative of the government, current ‘arrangements’ with Navy could backfire.
*Emeka Akabogu is Senior Partner at Akabogu & Associates
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