Firearms – The importance of clause 10 of GUARDCON

Standard Club has informed Members that 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.

Standard noted that in the past couple of years more than 200 private maritime security companies (PMSCs) had entered the market in order to cover the increasing demand of the owners for security services following various piracy incidents. The Club said that “not all of those companies seem to meet the required standard for legitimately operating in the shipping industry”.

Specifically, Standard said that there were PMSCs that were using weapons ‘rented’ or ‘borrowed’ from other security companies. This is an illegal practice because the weapons are not legitimately licensed to the end user.

Standard reminds Members 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.”

A mutual obligation arises out of clause 10 of GUARDCON which provides for both contractors and owners  to obtain all necessary permits and to maintain them during the transit. Clause 10 states that owners must 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.

The government agency of the exporting country will usually need to authorize the use of weapons and the end user certificate. The ship’s flag state needs to verify the authenticity of the certificates prior to issuing the relevant letters of authority. “This is a significant legal obligation on flag states which should ensure that everyone complies with the legal framework”, said Standard.

If a vessel’s flag state fails to verify the authenticity of firearms and end user certificates, it could result in significant delays to the ship or even the ship’s detention.