Unions Urge Stronger Rules Protecting U.S. Mariners Defending Against Piracy

April 2011

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The SIU recently joined with several other maritime unions in urging the U.S. Coast Guard to institute stronger rules protecting American mariners who may need to use force while defending themselves and their vessels against piracy.

 

Jointly submitting comments to the Coast Guard in late February were the SIU; American Maritime Officers; International Organization of Masters, Mates and Pilots (MM&P); Marine Engineers’ Beneficial Association; Marine Firemen’s Union; and Sailors’ Union of the Pacific. The agency had requested input on its policy regarding “standard rules for the use of force for self-defense of vessels of the United States.”

 

The unions pointed out that current guidance, issued in June 2009, “actually allows less force to be used than American common law and the statutory law of most states.” Therefore, they said, the Coast Guard “should develop standard rules for the use of force for self-defense of vessels of the United States when on the high seas that permit the use of deadly force by any means, including armed resistance, when the master, mariner, embarked personnel including security personnel, or individuals who use force, or authorizes the use of force, reasonably believes the vessel or a mariner is being subjected to an act of piracy.”

 

Comparing the current maritime regulations in Port Security Advisory (PSA) 3-09 to long-established U.S. laws governing shore-side conduct, the unions wrote, “Since the general introduction of firearms, the common law has recognized that one is not ‘required to retreat when he is assailed in a place where he has a right to be.’ Likewise, one may defend his domicile or his property to the extent of taking life, when necessary in defense of his property. Although any American would be justified in using deadly force to protect his home or property, [the current guideline] advises that only non-deadly force should be used in defense of the vessel or in defense of property the master and crew are authorized to protect.”

 

The union comments continued, “Of course, it is impossible for a mariner to retreat from attack when he is at sea. At the same time, the vessel is the mariner’s domicile andcontains all the property with which the mariner travels. The master is charged with the protection of both the vessel and a ship’s cargo – often valuable military and humanitarian aid owned by the U.S. government. Faced with these realities, mariners or embarked security forces must be ableto use deadly force in defense of the vessel; if pirates are permitted to board a vessel with only non-lethal resistance because the pirates were not actively threatening the crew with imminent death or great bodily harm, it will often be too late for the vessel and too late for the crew.”

 

Additionally, the unions pointed out what they described as a significant omission in current law. Specifically, left unaddressed is the use of deadly force when a mariner has a reasonable fear of kidnapping. The way the existing guidance is worded, “a mariner who reasonably fears he will be kidnapped for ransom is not entitled to use deadly force,” the unions noted. “This is a serious oversight because ransoming vessels and crew is the main motivation behind pirate attacks off the Somalia coast. Indeed, when the Maersk Alabama was attacked in 2009, the pirates were unable to seize the ship due to the valiant efforts of the crew; however, the attackers kidnapped the master as they fled the vessel.”

 

Elsewhere in their submission, the unions reiterated their shared position that the suppression of piracy “is primarily a government responsibility using embarked military security detachments under rules of engagement enforced by military command and control procedures.”

 

Moreover, they said that in the event that a U.S. shipowner, mariner or security personnel face civil or criminal liability in a foreign jurisdiction for their lawful use of force, the U.S. government “must be prepared with diplomatic and legal assistance to ensure U.S. law is applied to actions taken by U.S. ships.”


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