By Peter A. Buxbaum, AJOTOnce upon a time, carrying guards and weapons aboard a cargo vessel would have breached the doctrine embodied in the United Nations Convention on the Law of the Sea that “the high seas shall be reserved for peaceful purposes.” These days, with the explosion of piracy, especially off the Horn of Africa, hiring armed guards to defend vessels has become more commonplace, and governments and the maritime community are making accommodations to deal with the new reality and the potential problems that it presents. Just in the last few weeks both the United Nations and the United States Congress have taken action with respect to armed security personnel on board ships. At the United Nations on November 22, the Security Council, as part of a resolution condemning piracy and armed robbery against vessels off the coast of Somalia, recognized the International Maritime Organization’s role concerning privately contracted armed security personnel on board ships in high-risk areas. The IMO is has issued guidance to shipowners in this area. On November 29, the U.S. House of Representatives passed the Coast Guard and Maritime Transportation Act, which, among other things, would allow ships transporting cargo for U.S. government agencies to carry armed guards through high-risk waters. The bill also includes a provision to improve training for seafarers on the acceptable use of force against pirates, as well as tactics and procedures if taken hostage. The bill is currently pending in the U.S. Senate. The governments of the United Kingdom and Germany are also reported to be reviewing their positions on the issue of carrying armed security personnel on board ships sailing under their flags. The current policy of both governments is against this practice. According to the most recent figures from the International Maritime Bureau, Somali pirates are currently holding captive eleven vessels and 194 hostages. There were 489 reports of piracy and armed robbery against ships in 2010, according to the IMB, up by 20 percent over 2009. In the first six months of 2011, pirates attacked 266 vessels, taking of 495 hostages. About one in ten vessels off the Somali coast already carry armed guards, according to the IMB. “Piracy has become ever more of a scourge to contemporary maritime trade, especially in the high risk area off Somalia,” said Graham Walker, a maritime attorney with the firm of Borden Ladner Gervais in Montreal. “Understandably, shipowners have had their fill of such calamities and are casting about for solutions.” “The use of armed guards remains a controversial policy but more owners are being pushed in that direction as they compete for business in a difficult market,” said Stephen Askins, an attorney with Ince & Co. in London. “The selling point for the security companies is that to date no ship with armed guards has been hijacked. However the potential escalation of the use of force remains one of the arguments raised against the use of armed guards on ships.” The presence of armed guards aboard a vessel presents several other problems as well. These range from questions about who has ultimate command of the ship, to who is liable in the event a guard causes injury or death, to the proper vetting of security companies. “For a ship owner, employing the services of an armed maritime security provider is an exceptionally serious proposition,” James Wilkes, managing director, Gray Page, a maritime intelligence, investigation and crisis management company. “The logical consequence of putting men with arms on board a ship is, fundamentally, to sanction the potential use of lethal force to defend the crew and vessel.” “If armed guards are on board, a question arises as to who authorizes the use of force,” said Askins. “Security companies seek to insert clauses which appear to provide that the master may not have overall control or the final decision in whether weapons will be deployed and used. That decision may rest with the security team, on terms that the