International Legal Affairs: Volume 1, Number 3

Photo of the Maersk Alabama taken by a U.S. Navy P-3 Orion during the Somali pirate incident. (U.S. Navy)

According to Mr. Shapiro’s testimony, the crew of the Liberty Sun rigged fire hoses to cover the stern of the vessel where many boarding attempts occur.  The effect created a wall of water coming off the vessel, preventing the attacking pirates from boarding the vessel.  The wall of water was so impressive that the crew of the U.S.S. Bainbridge (a U.S. flagged warship) later commented that they had never seen so much water coming off of a vessel.  Unfortunately, as the crew of the Maersk Alabama may testify, the use of fire hoses against small arms fire and rocket fire is marginally effective at repelling a motivated pirate.  The use of firearms to counter-attack and engage in self-defense would be much more effective in defending the cargo and crew.

U.S. Export Requirements
Under the International Traffic in Arms Regulations (ITAR), an export license would be required to allow the temporary export of weapons from the United States.  The license must list each port that the ship plans to visit.  Travel to ports not listed on the license would not be authorized without amending the previously approved export license.  Completion and execution of the licensing process would be incredibly time consuming, further adding to the time and cost of shipping goods.  In addition, weapons could not be possessed on ships destined to China due to the arms embargo against China.  ITAR section 126.1(a) notes that:

“It is the policy of the United States to deny licenses and other approvals for exports and imports of defense articles and defense services, destined for or originating in certain countries.  This policy applies to… countries with respect to which the United States maintains an arms embargo (e.g., Burma, China, Liberia, and Sudan) or whenever an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States.”

Applying for a temporary export license, while outwardly viable, is not cost or time effective.

U.S. crew members may temporarily export no more than three non-automatic firearms and 1,000 rounds of ammunition without a license under an exemption in ITAR section 123.17(c).

Specifically, Section 123.17 requires that a declaration by the U.S. person and an inspection by a customs officer is made; that the firearms and accompanying ammunition must be with the U.S. person’s baggage or effects, whether accompanied or unaccompanied (but not mailed); and that [the firearms and ammunition] must be for that person’s exclusive use and not for re-export or other transfer of ownership.  The foregoing exemption is not applicable to a crew-member of a vessel or aircraft unless the crew-member declares the firearms to a Customs officer upon each departure from the United States and declares that it is his or her intention to return with the firearms upon return to the United States.

In addition to the ITAR export license requirements, U.S. law requires that armed merchant ships be bonded and insured.  22 USC § 463 requires that “the owners or consignees of every armed vessel sailing out of the ports of, or under the jurisdiction of, the United States… shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of the vessel and cargo on board, including her armament…”  The value of the vessel and cargo on board will vary according to the age and condition of the vessel and the nature of the cargo on board.  Nevertheless, the need for a bond imposes an additional cost upon shipping companies in the event that they decide to arm their merchant vessels.  The practical effect is again one of cost.  It is not cost effective to arm merchant ships so that they may effectively defend themselves.

Foreign Compliance
In the event that U.S. regulatory compliance may be achieved, foreign compliance will also be required.  Foreign governments may forbid that a vessel and its crew be armed.  In the case of Belgium, Italy, Spain, and other countries that have signed the U.N. Firearms Protocol, the issuance of a “transit permit” may be required prior to the arrival of the ship.  While not impossible to obtain, the permitting process entails an additional burden, adding additional time and cost to the shipment.  Finally, recall that IMO guidelines discourage the carriage and use of firearms for fear that the use of firearms in the act of self-defense will escalate violence and put crews at increased risk of injury or death.  Given that the IMO is an agency of the United Nations with power and oversight over international ocean-borne shipping, it may not be wise for shipping companies to defy agency guidance.

Solutions?
Given the additional burdens imposed by U.S. and International law, it appears unlikely that merchant ships will be given the tools they need to effectively defend themselves.  While it may be physically and technically possible to arm a ship’s crew so that they may defend themselves from piracy, the operational, logistical, and monetary demands resulting in part from the myriad of international regulations and restrictions effectively prohibits the use of firearms.

Would several semiautomatic belt fed firearms (i.e., several semiautomatic M2HB firearms, combined with 1,000 rounds of ammunition exported under the ITAR section 123.17(c) exemption) be sufficient to defend a merchant vessel?  Perhaps.  If crewmembers were provided with correct training and sufficient resources, could several trained sharpshooters defend a merchant vessel under attack?  Again, perhaps.  While this approach may appear both economically and physically viable, it will require the additional burden of filing a declaration by each crew member to a Customs officer prior to each departure, thereby adding additional time and cost to the shipment.  As a result, implementation of this course of action may not be feasible due to cost and planned shipping schedules.

Is it legal for merchant vessels to arms themselves for the purposes of self defense?  Yes, there are legal provisions allowing merchant ships to be armed.  Nevertheless, given the legal and regulatory hurdles required to arm a merchant vessel, it appears that very few, if any commercial shipping agencies will invest the time or cost required to arm a merchant vessel.

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