Web Alert: GUARDCON and Firearms - The importance of clause 10 of GUARDCON

BIMCO has recently updated the guidance with respect to clause 10 of GUARDCON with a view to underlining the importance of validated firearms and user certificates.

In the last couple of years, more than 200 private maritime security companies (PMSCs) have entered the market in order to cover the increasing demand of the owners for security services following the various piracy incidents. Not all of those companies seem to meet the required standard for legitimately operating in the shipping industry. Specifically, there are PMSCs that are using weapons 'rented' or 'borrowed' from other security companies; a practice established solely in order to reduce the operating costs. Owners should be aware that this is an illegal practice because the weapons are not legitimately licenced to the end user.

Members are reminded that the use of GUARDCON is not in any way intended to be a substitute for the exercise of due diligence by ship owners as part of the pre-contractual process when selecting a security company to provide unarmed or armed guards for a ship. As such, Members are advised to put in place procedures for verifying the legitimacy of all permits and licences provided by the PMSCs.

This is very important bearing in mind the mutual obligation that arises out of clause 10 of GUARDCON which provides for both contractors and owners (added emphasis) to obtain all necessary permits [1] and to maintain them during the transit. It is worth noting that the clause states that owners will indemnify the PMSCs in the event of any fine, penalty, costs, legal fees and expenses as a result of the owners’ failure to perform such obligation.

According to various conventions (adopted by the United Nations and others) the government agency of the exporting country will need to authorise the use of weapons and the end user certificate. Equally, it must not be forgotten that the ship’s flag state needs to verify the authenticity of the certificates prior to issuing the letters of authority in accordance with which the ship is allowed to carry the weapons on board. This is a significant legal obligation on flag states which should ensure that everyone complies with the legal framework.

Members should be aware that, in circumstances where their flag state fails to verify the authenticity of firearms and end user certificates, it could result in significant delays to the ship and/or the ship’s detention.

[1] Including certificates, licences, authorisations, consents, permissions, approvals and visas.