PMSCs and Civil Liability

OP-ED: Private Maritime Security Companies and Civil Liability

By Greg A. Keef

Piracy, one of the hottest topics being discussed amongst management teams in today’s Maritime Industry. The issue of piracy in the Indian Ocean Region has the attention of a Global Audience. We know the effects have a global impact on the world’s economy to the tune $5 to $12 billion dollars (USD), depending on which study you are reading. Who has the solution to this problem? Certainly, the answer or solution will not come from a maritime security company, nor does this article address a viable solution to piracy.

The Maritime Industry has taken a proactive approach in response to the armed threats currently affecting vessels and crew members transiting the Indian Ocean Region. Security measures such as the utilization of citadels and prudent ship hardening tactics are routine measures for vessels transiting designated High Risk Areas (HRA’s). Documents such as BMP4 have been written as guidance for ship’s to utilize when implementing these non-lethal security measures in HRA’s. However, nearly half of all vessels transiting HRA’s are also using Privately Contracted Armed Security Personnel (PCASP) in addition to the non-lethal tactics. In September of 2011, the International Maritime Organization released MSC.1/Circ.1405/Rev.1, which provides guidance for the vessels utilizing PCASP on deployments transiting HRA’s. This era of Somali based piracy has drastically changed normal operating procedures of the Maritime Industry.

Piracy has created an opportunity for Private Maritime Security Companies (PMSC) offering Anti-Piracy services. Force Protection at sea is not a new topic, however; Force Protection offered by civilian security companies in the Indian Ocean, as a standard operating procedure, is fairly new. The Maritime Industry and Flag States have scrambled to write guidelines relating to the selection and operation of PMSC providing Anti-Piracy services. The Maritime Industry has been forced to learn about the laws governing firearms, and use of force. One of the most challenging areas to address is the legality relating to the use of force by a PMSC. What would happen if a PMSC uses deadly force to defend a vessel or its crew in International Waters? Will the presence of PMSC cause an escalation of weaponry and tactics on the part of the pirates? Which country has jurisdiction over the PMSC, with respect to licensing and the carriage of arms? These are all legitimate questions and still to this day are creating some confusion. Just as some of these questions do not have crystal clear answers, there are also relevant questions that have not even been brought up, and that is the purpose of this article.

For the most part, Anti-Piracy Services are provided by Private Security Companies, where most personnel have some type of military experience. Several of these security firms were developed to support the coalition efforts in the wars of Iraq and Afghanistan, where military expertise was crucially needed. This relatively new era of Anti-Piracy Services has occurred during the wind-down period of land-based security contracts available in Iraq and Afghanistan. This has caused a large number of Private Security Companies providing force protection services on land in Iraq and Afghanistan to switch gears and start offering maritime security services. Unfortunately, some of these companies are operating under their same policies and procedures they were using in conflict zones. Piracy is criminal activity and the motive is financial gain. The attacks are not occurring in war zones by enemy combatants. There is concern relating to a lack of, or minimal amount of attention, following a use of force incident. One possible reason for this may be the larger Private Security Companies that provided force protection on land in conflict zones, have largely shaped the footprint of maritime security and Anti-Piracy Services. The liability concerns in a conflict zone are completely different than the liability concerns of a PMSC preventing criminal activity at sea.

Military training, whether it is basic enlistment or special force training, generally is not geared toward civilian security operations. Military training prepares an individual for operations in conflict zones, absent of civil liability. Unfortunately, too many PMSC’s do not have the proper training and management experience to recognize the need for civil liability training as it pertains to the use of force in civilian applications. Due to the minimal standards governing PMSC’s, licensing requirements are fairly lenient. Even some of the larger prominent security companies from the U.S. and Britain have obtained their security licensing from foreign countries where the criteria is minimal. Military experience alone will often meet the minimum requirements for a security license. Some companies have obtained their corporation status or LLC formation under general guidelines for a standard company in the U.S. or Britain, and then obtained a security license from a foreign country, and market themselves as a “licensed security company.” This is creating a false sense of security for the Maritime Industry.

If a company in the United States wants to be licensed as a security company, there is a strict vetting process governed by the State where the company will be licensed. For example, in California, you will need to file an application and submit finger prints to the FBI for a thorough background check. Then there is a written examination covering employment law, business law, civil liability, tax laws, contract laws, and security operations. Upon verification of required experience, passing the background check, and a passing score on the written test, a security license is issued. Once a license is issued, there will be audits by the State to ensure ongoing compliance with the required regulations. This type of oversight is not always required by some of the foreign countries that have issued security licensing to some PMSC’s.

The next area of concern has to do with the use of force. For the purpose of this article, we will assume there was a proper risk analysis completed, that supported a viable need to embark PCASP onboard a vessel for Anti-Piracy services. It is worth mentioning however, the PMSC should be upfront with the shipping company about the risks involved with utilizing a PCASP. The key point here is the risks without armed protection is greater than the risk created by armed protection. The better trained and more experience the security team has, the less risk created when embarked on a vessel for Anti-Piracy Services.

If you were to look at the scope of experience and training a person would have with an elite military background, and compare that to the needed skill set of a PCASP onboard a vessel providing Anti-Piracy Services, there is a major difference. I would suggest one first consider the elements of a piracy attack on a vessel. We all know that the pirates are utilizing automatic weapons, RPG’s, and GPS as basic tools of the trade. However, just because the weaponry utilized by the pirates have military applications, does not classify the attack as a military event in a conflict zone. The act of piracy is a criminal event, often occurring in International Waters, subject to International law. The importance of this understanding has to do with the response utilized in preventing the pirate attack. The rules governing the use of force must comply with the applicable laws within the jurisdiction of the crime, and the Flag State of the vessel. This is fairly straight forward, but already we are starting to expand beyond the scope of military training. Now, in the event justifiable force is utilized in defense of the vessel and crew, there will be an active crime scene. What are the policies of the PMSC with respect to crime scenes? Do their personnel have proper training with respect to processing a crime scene, evidence collection, and report writing? Why is this even important? Going back to the previous statement, the classification of piracy is a criminal event. Criminal events are subject to an investigation by the appropriate law enforcement agency. It would certainly benefit the shipping company and PMSC if there was proper documentation of the crime scene, along with the collection of evidence, using procedures that would stand up in a court of law.

The next area worth discussing could very well be one of the most important, Civil Liability. A punitive judgment can quickly exceed the sums of money a shipping company would expect to pay for a ransom demand if their ship were to be taken. At this point in time, it appears everyone is only focusing on events up to a pirate attack, and not beyond the attack. There does not appear to be a legitimate focus on the mitigation of civil liability involving PCASP and the use of force. I know from past experience, this will become a hot topic as soon as a shipping company is summoned by a court of law due to a claim of excessive force utilized by PCASP. The mitigation of liability following a use of force appears to be absent from risk assessments due to the lack of experience in this area on the part of PMSC. Being prepared for a civil lawsuit requires you to predict what may occur well into the future. The defendant in a civil suit may not be notified up to one year from the date of incident. This is where experience is critical. The PCASP should have an in depth knowledge on use of force and the intricacies of a civil lawsuit claiming excessive force. The planning for a civil lawsuit defense must start with the proper policies and procedures. The challenge is not only the operational readiness for the defense of the vessel against criminal threats, but also for the battle that will inevitably take place in a court room if force is utilized during an operation. The defense of your actions are challenging even when you have done everything correctly. Proper training, mindset, report writing, policies and procedures, command and control, court room testimony, and an in depth knowledge on the use of force in a civilian application are critical if you are going to survive a civil lawsuit. In a civil lawsuit, the individual PCASP can also be held liable for punitive damages.

The attorneys, who will take civil lawsuits on behalf of their clients, have all the time in the world to find things wrong with your operation. They will subpoena training records and scrutinize personnel records looking for anything that will bring discredit to the individuals involved in the use of force incident. This will inevitably expose the shipping company to possible liability if they have hired, what a jury deems, an inadequately trained PMSC. Familiarity in the courtroom and the process of a civil lawsuit are critical. The maritime industry is no stranger to civil litigation, and goes to great lengths in defending themselves against other areas of civil liability. However, civil liability as it pertains to the use of force by a PMSC is a relatively new area of concern.

Imagine the owner of a vessel receiving notification that they are being sued for an incident that occurred nine months ago. The suit alleges one of the security team members on their vessel shot an innocent fisherman in the leg approximately 400 nautical miles offshore from Somalia. The complaining party has evidence of a gunshot wound to his upper left leg, which is supported by medical records and photographs. The dates given in the suit correspond with the ship’s position nine months ago. The vessel owners research the ship’s logs and discover in fact, there was a security related incident that occurred during voyage. The complaining party and his attorney have a well rehearsed and documented description of what occurred that particular day. Their version of the story indicates the hard working fisherman approached the large ship in a small unstable skiff in an effort to sell fish. For no reason at all, the armed guards started firing automatic weapons at him, and he received a gunshot wound to his leg. The fisherman claims there were no warnings or any indication that he should stop his approach toward the ship, and in fact, he had sold fish to several passing vessels in the past without a problem. The suit goes on to claim the fisherman can no longer support his large family, and has suffered from a great deal of pain and psychological problems.

Had the above incident actually occurred to one of your vessels, what type of documentation would your current PMSC have done? Would the documentation be thorough enough to provide accurate details to counter the claim, or support the use of force utilized? Does your current PMSC have well documented training records that support proper utilization of force? Does your PMSC have procedures for command and control involving an incident as described? Do they have policies and procedures involving a crime scene, and the ability to document and collect evidence per court standards? This described event could add up to millions of dollars in punitive damages if the PMSC did not have the training and experience relating to the use of force as it pertains to a civilian security operator. It is imperative PMSC’s are prepared beyond a pirate attack, and can defend their actions competently in a courtroom setting.

Risk assessments need to include possible events beyond a pirated attack. This is the reason experience with the use of force, as it applies to PCASP, is so important. There needs to be specific training and experience relating to civil liability on the part of your PMSC. Without this training and experience, a shipping company may be simply moving risk from one area of their operation to another area, instead of reducing the risk all together. Vessel owners and managers need to demand this level of expertise from their PMSC, ensuring the expertise goes beyond the ability to provide force protection.

This article is not written in an attempt to discredit military training, as I am a veteran myself. The intent is to bring attention to the real threat of civil liability involved with the use of force in a civilian application. I have testified in both criminal and civil cases involving the use of force, and recognize the importance of this experience. There is a real possibility of a PCASP being sued as an individual, along with the PMSC, and the vessel owners. Even if there is not a deployment of force, one has to be prepared to defend allegations of wrong doing.

About the Author: Greg Keef is a retired Law Enforcement Officer with more than two decades of experience. Mr. Keef spent the majority of his career involved with Special Weapons and Tactics. He has held various positions on the SWAT Team as an operator, assistant team-leader, team-leader, and team-commander assignments. Mr. Keef has testified in court on various use of force incidents, and recognized as a use of force expert. Mr. Keef is now the President and CEO of Triton Global Services, Inc., located in Irvine California.

Source: The Maritime Executive

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