Anti-piracy inaction

Anti-piracy inaction Congress urges military to deploy armed guards on U.S.-flag ships in pirate-infested waters.

By Eric Kulisch

      House of Representatives members, upset at what they said was the slow pace of developing an effective anti-piracy strategy, pressured Coast Guard, Defense Department and Maritime Administration officials at a May 20 hearing to take more responsibility for protecting the U.S.-flag merchant fleet from pirates instead of placing the onus on the ship owners and crews.
      Lawmakers, backed by shipping industry and seafarer union executives, demanded that military security teams be placed on board vessels carrying U.S. military cargo and food aid in pirate-infested waters off the coast of Somalia, at least until legal complications associated with crewmembers carrying firearms or armed private security teams riding along are resolved.
      'We strongly urge the government to consider embarking a small number of U.S. government security personnel on the very few U.S.-flag vessels that transit high-risk areas at any one time,' Philip J. Shapiro, chief executive officer of Liberty Maritime Corp., testified before the Transportation and Infrastructure subcommittee on coast guard and maritime transportation. 'In our view, small embarked security teams are a more effective deterrent than patrolling large ocean areas with vessels.'
      One of the company's ships, Liberty Sun, was attacked by pirates just two days after Navy snipers rescued Capt. Richard Phillips, master of the Maersk Alabama, by killing three pirates who held him hostage for days at gunpoint. The Liberty Sun was strafed by pirate gunfire and rocket-propelled grenades, but was able to escape.

Philip J. Shapiro Chief executive officer, Liberty Maritime Corp.
'Small embarked security teams are a more effective deterrent than patrolling large ocean areas with vessels.'

      Shapiro and Phillips made a similar case for putting troops onboard U.S. commercial ships at a Senate hearing earlier in May.
      Officials from the Defense Department and other agencies countered that vessel operators are in the best position to defend against piracy because it is difficult for naval forces to prevent all attacks in an area of sea greater than 1 million square nautical miles.
      The U.S. Navy has several warships patrolling the waters off the Horn of Africa along with other coalition forces, but the low number of pirate attacks relative to overall commercial traffic levels dictates how the military allocates scarce resources, said Edward Frothingham, principal director in the Pentagon's Office of Counternarcotics and Global Threats.
      More than 50 cargo vessels transit the Gulf of Aden every day, and at any given time there are only three to seven U.S.-flag vessels plying the Gulf or Indian Ocean east of Somalia. U.S.-flag vessels are primarily engaged in transporting U.S. military cargo to Iraq and Afghanistan or U.S. humanitarian aid to Africa.
      In 2008, there were 112 pirate attacks, of which 42 were successful, out of more than 33,000 ships that moved through the Gulf, meaning fewer than 0.5 percent of vessels are attacked and only about one-third of those are captured.
      'We need to ensure that effectively addressing piracy does not come at the expense of other ongoing, critical military commitments,' Frothingham testified.
      He added ship owners are na've if they assume they don't have to take self-defense measures because of the increased international naval presence ' there are more than 34 vessels from 15 nations in the region.
      'It's regrettable that there is no clear understanding that the global military forces, much like civilian police forces, cannot always intervene if criminals strike. As a result, many shippers have been slow to invest adequately in basic low-cost, anti-piracy measures that would render their ships far less vulnerable,' he told the subcommittee.
      Motivated by the fact that most of the unsuccessful pirate attacks have been thwarted by effective action undertaken by crews, the U.S. military's main priority is working with ocean shipping companies to make their ships difficult targets. Recommended security measures include:
      '    Removing external ladders.
      '    Posting lookouts at all times.
      '    Limiting lighting.
      '    Utilizing quick course changes.
      '    Traveling at high speed.
      '    Following transit lanes established by naval forces.
      '    Rigging barriers such as barbed wire or fencing along low sides.
      '    Securing hatches.
      '    Creating 'safe rooms.'
      '    Maintaining good communications with maritime authorities.
      '    Using fire hoses to repel boarders.
      Recently, the U.S. Coast Guard issued a maritime security directive requiring U.S.-flag ship owners and operators to update their vessel security plans with many of these techniques to deal with pirates when operating in high-risk areas, and recommending they supplement the crew with armed or unarmed security personnel.
      Frothingham said Congress should consider providing tax credits or other incentives to the shipping industry to invest in security measures. Tax credits could also be used to encourage insurers to reduce insurance rates for ships with enhanced security.
      The U.S. government is willing to include in its ocean carrier contracts payments to cover the cost of security measures implemented on U.S.-flag ships, said James Caponiti, acting deputy administrator for the Maritime Administration. Military commanders have indicated they will do that for military cargo and MarAd puts those costs into its 'fair and reasonable' rate calculation for food aid deliveries so that carriers don't have to bear them, he said.
      But Arthur J. Volkle Jr., vice president of American Cargo Transport Inc., told American Shipper that MarAd is still working on the rate adjustment process.
      'We're not there yet. It's something that needs to be addressed,' he said.
      'If the government is going to leave it to us to provide security for these cargoes, we believe that it is unreasonable for the government to direct us to ports where we are exposed to threats of piracy, expect enhanced security to protect those cargoes, and not bear the costs of providing that security,' he testified.
      The next step for the Coast Guard is to encourage other flag states to get their merchant fleets to adopt similar best practices for hardening their ships using the directive as a template, testified Rear Adm. Brian Salerno, assistant commandant for marine safety, security and stewardship.
      Vice Adm. Bill Gortney, the top naval commander for the region, recently reported that in 12 cases of pirate attacks on merchant ships with for-hire security teams onboard the attacks were successfully repelled, Salerno said.
      But shipping companies are uneasy about hiring armed security forces because of:
      '    Lack of appropriate standards for their conduct.
      '    Restrictions on arms aboard merchant vessels entering many foreign ports.
      '    Fear that arms onboard may escalate pirate violence.
      '    Concern for crew and vessel safety.
      '    Rules on the use of force.
      '    Design constraints of vessels to carry additional personnel.
      '    Union contract issues.
      Also unclear is how onboard armed security would impact insurance rates. Insurance companies are concerned about increased liability because of these issues, as well as whether security personnel are properly certified, and the fact that private armed security teams do not operate under clear rules for the use of force.
      Mariners, without indemnity, also face legal jeopardy if they take irresponsible actions while trying to defend themselves from an attack. There have been incidents in which marines or naval forces from several nations have fired by accident on fishermen thinking that they were pirates. A mariner, however, would be treated differently than a soldier under international law in those situations and could be sued or prosecuted by other parties that interpreted his actions as unreasonable.
      Subcommittee Chairman Elijah Cummings urged the U.S. Navy to place four-to-five person teams on all U.S.-flag merchant vessels operating in the Horn of Africa region, especially since most of the cargoes are military or food aid shipments contracted by the U.S. government. The assignment of no more than 180 armed personnel to provide onboard security would not threaten other U.S. missions and would be much cheaper and more effective than trying to respond to an attack with a token force patrolling the vast region, he said.
      The Navy does place expeditionary forces of a dozen or fewer personnel on vessels owned by Military Sealift Command as well as commercial vessels charted to carry Defense cargoes under contracts longer than six months, Frothingham said. The Pentagon does not grant sovereign status to vessels that operate under Defense contracts of less than six months and instead trains five crewmembers to defend the vessel with firearms. Vessels carrying non-military cargo are asked to rely on their own devices because pirates are considered criminals that can usually be deterred by following best practices for security.
      'Of course we will defend U.S.-flag vessels, but we have to allocate the resources based on the threat' and competing requirements issued by the president, said Charles Ikins, Defense director of East and Southern Africa policy, in response to suggestions that the U.S. military no longer considers protecting U.S. merchant vessels a priority.
      Volkle also advocated that the U.S. military deploy armed detachments aboard U.S.-flag ships as the most effective, near-term solution to piracy.
      America Cargo Transport, which operates roll-on/roll-off vessels carrying primarily military cargoes from the United States through the Gulf of Aden to the Persian Gulf as well as tug-barge units engaged in continuous shuttle service in Persian Gulf, has used two private security companies to provide armed protective service on its vessels for several years in those regions.
      'Military security avoids regulatory shortfalls, liability concerns and international reluctance to permit armed merchant vessels into their ports,' he testified.
      And the protection offered by the Navy or Coast Guard could serve as an inducement to owners to register their ships under the U.S. flag, he suggested.
      America Cargo Transport is not interested in arming its crew, which does not have the training to provide adequate armed defense, Volkle emphasized.
      Any policy allowing armed crews should limit participation to the top eight officers on the ship who are willing to be trained and have access to a gun, said Bill Van Loo, secretary-treasurer of the Marine Engineers' Beneficial Association.
      'We don't want to bring a knife to a gunfight,' he said of mariners' interest in arming themselves.
      The Seafarers International Union has conducted small arms training for 600 sailors through a Military Sealift Command-certified course set up by notorious private security contractor Blackwater, said Augustin Tellez, the union's executive vice president.
      He cautioned that no amount of training can prepare someone for rules of engagement.
      'We can teach them how to shoot a gun, but it takes longer to learn when to shoot a gun,' he said.
      Subcommittee members, while acknowledging the complexity of the issue, castigated the officials from various departments for not having a timetable to complete a comprehensive plan to counter piracy and protect the U.S. merchant fleet. Although an interagency plan has been in place since December to guide military and diplomatic efforts, there is no policy yet addressing the use of armed personnel on commercial vessels.
      'I venture to say that if there were an incident tomorrow on a U.S.-flag vessel where U.S. citizens were harmed or killed we'd have a whole different attitude about the urgency with which we're dealing with this and the means with which we'd be willing to go to,' said ranking Republican Frank LoBiondo.
      Industry officials and lawmakers called for the administration to set standards and performance measures for armed security providers and arming crewmembers.
      The shipping executives requested that the government remove domestic and international legal obstacles that hinder ship owners from arming their vessels. They raised particular concern about recently enacted State Department regulations governing arms exports.
      Placing weapons aboard a vessel departing the United States is considered an 'export' of weapons, even if the weapons are intended as a permanent part of the ship's equipment and the weapons are intended to be brought back to the country when the vessel returns. Under the law, a carrier must obtain an export license.
      Volkle said obtaining a temporary export license 'is virtually impossible' because the State Department requires explicit consent from every country in which a vessel will call prior to issuing a permit. The only way the company can get around the rules is to let crewmembers sign to bring up to three semi-automatic rifles as personal effects. The weapons are kept in secure storage by the captain and released to the security team when required.
      The red tape involved for armed protection was underscored by a recent incident in which America Cargo Transport was loading a ship with military cargo at a military base in Charleston, S.C., but was prohibited by base security from bringing weapons on the ship ' even under guard. The company eventually had to move the ship to a commercial pier to get the weapons onboard, Volkle said.
      Congress should pass a law to allow U.S.-flag ships to carry arms as part of their equipment if the regulations cannot be changed, he said.
      The shipping executive also asked the Coast Guard to set standards for private security firms and license them as a way of reducing liability for carrying armed security. As an interim step, the sea service should provide guidelines or checklists for security firms to follow, he added.
      'I'm not going down for you not addressing these concerns because if this (another hijacking of a U.S. vessel) happens again next week, the American people are going to come to our committee and say, 'why didn't you take action.' And what I'm saying to you is I'm not carrying that boat for you,' said Rep. Laura Richardson, D-Calif., calling the lack of a date certain to develop a piracy plan as 'unacceptable.'
      National security agencies may be working from a preliminary plan, 'but there is no plan in place to determine (what happens) if contractors shoot and kill somebody. You have not given authority for private contractors who could be on the hook if they shoot someone,' she said, referring to the lack of accountability in place at the time employees for the Blackwater private security firm killed civilians in Iraq. Congress subsequently pushed for the establishment of standards for private contractors working on behalf of the government in Iraq.
      'You have not established what those regulations are, and because you haven't that makes us liable' in the eyes of world opinion if something goes wrong, she said.
      Vessel operators and their for-hire security teams need a clear understanding of the limits of their self-defense authority so that they do not operate in a cloud of uncertainty about whether their actions will be open to subjective interpretation, Richardson said.
      Volkle explained that his company has to provide the weapons onboard its vessels for the private security teams it hires because they are prohibited by various national laws from traveling with arms to embark aboard a vessel.
      He asked the U.S. government to obtain cooperation from other governments to permit armed security to travel with their own weapons because 'we would much prefer to stay out of the arms business altogether.'
      Rep. Gene Taylor, D-Miss., said MarAd should take responsibility for clarifying the rules pertaining to firearms onboard commercial vessels so that private companies know how to legally defend their crews and vessels. The effort should include how to streamline the process for firearm export licenses, examining whether changes to U.S. law are required and reaching agreements with nations in which U.S.-flag vessels call to iron out conditions for carrying firearms, such as locking up weapons, while in port.
      The State Department recently issued a diplomatic letter to other countries asking what restrictions they have on armed security teams coming into their ports and is studying how to comply with arms export permissions in U.S. law, according to Salerno.
      Taylor said countries receiving U.S. aid should lift any restrictions on arms for self-defense of commercial vessels.
      'This is a gift of the American people to those countries. It is more than fair for us to say these are the strings attached to that gift. We're not going to put our fellow Americans or that vessel at risk to deliver this gift of food' or military cargo, he said.
      Volkle recommended that the U.S. government provide a centralized information bank listing the various port state limitations on entry with arms. He said ports in Dubai, Kuwait and Iraq do allow U.S.-flag vessels to enter with weapons on board.
      Commercial vessels, Taylor said, eventually ought to provide for their own defense once there are rules in place that remove the legal uncertainty associated with having armed security onboard. He added Congress should dictate, if the executive branch doesn't move, that ocean carriers that win military or Food for Peace program contracts have armed crews onboard their vessels. He pointed to the Defense authorization bill, which is to be considered by the House Armed Services Committee on June 17, as the first opportunity to legislate such a mandate.
      In the short term, he said, the government should place military units on U.S.-flag vessels. He said personnel could come from the Coast Guard or even Navy, Coast Guard or Marine reserves.
      'I guarantee you that if the call went out to man vessels on a temporary basis until we came up with a national program you'd have hundreds of volunteers,' Taylor said.
      His position echoed that of Shapiro, who said that 'private industry cannot switch from a no-firearms regime to an armed protection regime overnight. Our ships need protection now ' not months from now. In the interim, we will need either naval vessel escorts or government security teams for U.S.-flag vessels on high risk transits.'
      Approached after the hearing, Shapiro noted that the Coast Guard directive says ocean carriers should consider arming their vessels, but there is no clear authority to do so.
      'There's an ambiguity in the law that needs to be cleared up so we all know what we can and can't do,' he said.
      Rep. Brian Baird, D-Wash., called out the maritime industry for shifting responsibility to the military to protect its ships and socializing the cost of protection. Ship owners have determined that the cost of arming crews is high relative to the low probability of a takeover and are willing to pay a ransom as a cost of doing business, he argued.
      'So I'm wondering whether it's time to change that cost-benefit ratio. Meaning, you don't just get to say Uncle Sam is going to rescue you, you've got to put up the scratch and roll it up into the cost of your products,' he said.
      'There ought to be a bright line that says if you attack an American ship or an American crew you've got a high probability you will be killed.'
      Cummings said he expected the subcommittee to quickly draw up a list recommended policies it expects the Defense Department and Coast Guard to pursue while it considers other legislative options.