Any port in a storm for floating armouries?

India’s troubled past with anti-piracy operations in the Indian Ocean has reared its head again recently, with the detention of operator supply vessel SEAMAN GUARD OHIO and the imprisonment of her 35 crew since October 2013.

The rise of the floating armoury

The SEAMAN GUARD OHIO is one of an estimated 20 ships that serve the same purpose in the Red Sea, Gulf of Aden and Indian Ocean. Managed by US private maritime security firm AdvanFort, the vessel provides an accommodation platform for AdvanFort’s maritime security personnel between commercial vessel transits through the high risk area of the Indian Ocean. At the time of the incident in October 2013, the vessel was also carrying firearms and ammunition, as well as other security equipment, for deployment in counter-piracy operations – effectively, it is what is known in the trade as a “floating armoury”.

The transfer and storage of weapons and ammunition for operations in the high risk area has long been a headache for private maritime security firms. Political instability in a number of coastal states, arms embargoes and local bans on the transfer of weapons have led many private maritime security firms to resort to the use of floating armouries in international waters as the only viable option for storing weapons and conducting transfers from one commercial vessel to another.

Save for the few floating armouries operating with the express approval of a coastal state, most floating armouries must remain in international waters at all times in order to avoid an infringement of coastal state regulation and the possibility of intervention from a coastal state. In the event that floating armouries operating without local approval do have to call at port, or otherwise come into territorial waters, arrangements are made for their weapons and ammunition to be discharged. They are stored securely either in international waters onboard another floating armoury, or onshore in accordance with local regulations for the duration of the vessel’s stay in port.

However, operating in international waters but within a coastal state’s Exclusive Economic Zone (EEZ) is no guarantee that a coastal state will not take steps to try and close floating armouries down.

Any port in a storm?

In October 2013, the SEAMAN GUARD OHIO was within the Indian EEZ in international waters when, as a result of adverse weather conditions caused by Typhoon Phailin, she was forced close to Indian territorial waters during planned bunkering operations. The Indian Coast Guard approached the vessel but were unable to board as a result of adverse sea conditions and accordingly the vessel was required by the coastguard to make a rare, unplanned, port call with all weapons and security personnel still on board.

The Ministry of Shipping is clear on the formalities required before calling at ports – those formalities could not be followed in the circumstances. There was initial local press speculation that AdvanFort did hold the requisite licenses and permits for the firearms on board. Whatever the truth of the matter might be, the presence of a large cache of weapons on board certainly served to heighten tensions initially, with the Indian chief judicial magistrate reportedly saying that the incident posed a threat to national security.

A trend materialising in India?

The 10 seafarers and 25 security personnel on board the SEAMAN GUARD OHIO have since been charged with the illegal purchasing of subsidised bunkers, a charge not related to the carriage of weapons at all. It might be concluded from these proceedings that, even where companies do hold all requisite licenses on operator supply vessels, there are alternative ways to discourage the operation of floating armouries off the Indian coast.

This case appears to indicate a trend materialising in India, whereby the authorities intervene to prevent the operation of private maritime security companies and their support services near the Indian coast.

The earlier case involving the ENRICA LEXIE, in which two Italian marines serving on an Italian flagged oil tanker allegedly shot and killed two Indian fishermen they mistook for pirates 20 miles off the coast of India, continues to sour relations between India and Italy and could be said to have sparked the tensions between the Indian authorities and those offering counter-piracy services operating offshore India.

The Indian authorities’ desire to intervene where they can to prevent large caches of privately controlled weapons (entirely unregulated or controlled by Indian interests) being held within their EEZ is understandable, albeit such anxieties should be kept in check as a matter of law when operations are taking place in international waters.

Unfortunately, whilst this dispute is ongoing, all 35 men have been imprisoned in India since October 2013 and the most recent bail application was refused on 7 January 2014.

The call for regulation

There is no international law governing the operation of floating armouries. They must comply with the complex web of those laws, rules and regulations applicable to them, including those of the flag state of the floating armoury, the coastal states in which they call (or are likely to call) and the place of incorporation of the operator of the floating armoury. It is not enough for their private maritime security company clients to hold a valid licence from the country in which they are incorporated.

For example, in August 2013, the UK Department of Business Innovation and Skills began approving certain floating armouries operating in the Indian Ocean and Gulf of Aden for use by those private maritime security companies holding valid trade control licences. However, such approval does not equate to confirmation that such armouries are operated in compliance with all applicable laws. It remains up to the private maritime security companies and shipowners using the armouries to conduct their own due diligence and confirm for themselves that they are operated in compliance with all applicable laws.

There is, as yet, no uniform guidance from the International Maritime Organization on floating armouries, although calls are being made for this. As is often the case in the maritime security industry, the commercial response has evolved in the absence of a regulatory framework and regulation needs to catch up with floating armories, as it is doing in the area of armed guards.

Until addressed at an international level, as well as by port and flag states, costal states such as India will continue to be wary of an “unregulated” industry operating so close to their territorial waters.

In the absence of regulation, the private maritime security companies and the individual operators of the floating armouries will continue to set their own standards and regulations to cover the safe and secure operation of floating armouries. No doubt they too would welcome the certainty which comes with regulation if it meant avoiding the indefinite detention of their vessels and crews.

For more information please contact Sally Buckley, Associate, on +44 (0)20 7264 8558 or sally.buckley@hfw.com, or William Maclachlan, Associate, on +44 (0)20 7264 8007 or william.maclachlan@hfw.com, or your usual contact at HFW.

Reproduced with kind permission of HFW.

To read the original, which forms part of the HFW India Bulletin, please click here.

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One thought on “Any port in a storm for floating armouries?

  1. Mac Apro

    It would be great, if counties like India would start to appreciate that individual companies care about issues like piracy in international waters for the sake of everyone. No need to be afraid about a handfull armed man taking over a country of what,.. a billion people? It seems not only the British left the country a few decades ago, but common sense as well.

    Reply

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