Protection of Cyprus flag ships from Acts of Piracy and other unlawful Acts, Law 77(I) 2012
Piracy is an issue that has escalated during recent years and threatens the peaceful passage of vessels in the seas and the normal carry out of commercial activities.
The new Law defines “Piracy” as follows:
(a) any unlawful act of violence or detention or any act of arrest for a private purpose carried out by the crew or by the passengers of a private ship which is navigating:
(i) in international sea against another ship or against persons or property that is on board of such ship,
(ii) against a ship or persons or property that are located outside a state jurisdiction
(b) any act of voluntary participation to a ship's operation with the knowledge that that operation constitutes piracy,
(c) any act of soliciting or intentionally facilitating one of the acts described above in (a) and (b).
The International Maritime Bureau (IMB) maintains that the use of armed forces for the protection of ships and those on board against piracy is a matter to be decided by each Flag state. With this in mind the House of Representatives in the Republic of Cyprus has enacted the recent Anti-Piracy Law as part of a national policy in connection to that issue.
The aim of the new law goes beyond mere acts of piracy and expands further by including all unlawful acts against the security of a Cyprus vessel. It aims at providing the necessary legal framework for the regulated use of armed or unarmed maritime security forces for the protection of the ships from piracy and other unlawful acts in high risk areas. “Unlawful acts” as defined in Part I of the Law as “acts or suspicious acts or circumstances, which by their nature or context threaten the security of the ship or may cause damage to the ship and/or to the persons on board or the ship's cargo”.
The main provisions of the Law are analysed below:
1. Provisions related to security and protection of the ship: obligations and rights (Part II)
The new Law states that the ship operator and the ship master are under obligation to take all necessary measures and precautions for the safety of the vessel and the prevention of unlawful acts, provided those do not contravene the law. The operator should routinely follow the provisions of the International Convention for the Safety of Life at Sea (SOLAS) Chapter XI-2, the International Ship and Port facility Security (ISPS) Code and Regulation (EC) 725/2004, on enhanced ship and port facility security. Furthernore, in areas of high risk the master of the ship should undertake the additional measures and precautions as outlined in the Law.
In that manner, the Law underlines the powers of the ship master and expands them further by stating that the armed forces or security companies can use their weapons only following an explicit order by the ship master. Also, any unlawful acts or attempts should be reported to the relevant Authority. In the event of piracy, the master of the ship is under duty to keep informed/updated the relatives of persons subdued to acts of violence.
2. Private maritime security services (Part III)
The Law allows the operator of the ship to carry out a risk assessment and if necessary engage in the use of armed maritime security companies. Any such company that wishes to provide security services should hold a relevant certificate of approval and a valid indemnity insurance.
When those conditions are met, the ship operator can submit to the Department of Merchant Shipping (“DMS”) a relevant application and be issued with a licence for the use of the services of a private maritime security company. The Law lays out the conditions regarding the issuing, suspension and cancellation of the certificates. The applicant security company should fulfill certain criteria, mainly being a Cyprus legal entity or a legal entity of any other Member State, with the condition that during the validity of the certificate it maintains in Cyprus an authorised representative. It can also be a legal entity registered in a third state as that approved on an individual basis by the Ministry of Communications and Works, provided again an authorised representative is present in Cyprus. The Law also extensively lists all relevant prohibitions for those individuals that cannot be granted permission to work for a maritime security company. However, for applications that do not obtain approval by the Ministry, the law provides a right of appeal.
(i) The private maritime security company is under obligation to follow the legislation of Cyprus and the lawful orders of the ship's master.
(ii) The provision of services by the company is regulated by the Law.
(iii) The Firearms and Non-Firearms Law of 2004 does not apply in relation to the weapons mentioned in the Law.
(iv) The liability of the security company towards the personnel of the ship is applicable in an event of a negligent act or omission by the security company. However, that liability can either be fully or partly waived by the ship owner by a clause in their contract or it can be limited by the company itself according to the provisions of the Convention on Limitation of Liability for Maritime Claims (LLMC) 1976/96. In the event of contributory negligence from the operator, the master or personnel, the ship owner is under obligation to indemnify accordingly the persons on board.
3. Application by the ship master for the use of a maritime security company or armed forces
All applications related to the issuance of a licence for the use of a maritime security company or armed forces must be submitted by the operator of the ship or his representative in Cyprus to DMS including the following:
(i) the name, type and particulars of the vessel
(ii) the name and details of the operator of the vessel
(iii) the address of the registrered office of the security company as well as details of the company's Cyprus representative (where applicable)
(iv) a risk assessment carried out by the vessel's operator and master in relation to the employment of such security services
(v) a detailed list of the weapons, firearms and safety equipement to be used
(vi) the place of embarkation and disembarkation of the security guards including the corresponding dates
(vii) the place and date for the loading and the unloading on the ship of the safety objects (firearms, security equipment)
(viii) a detailed list of the vessel's route
(vix) a copy of the contract between the vessel operator and the private maritime security company.
4. Rights and obligations of those on board
The Law states that the master of the ship as well as the personnel are required to take all reasonable measures and make every possible effort towards the safeguard of the ship's safety in order to minimise the risk of an unlawful act being committed against the ship, especially in the defined high risk areas. The ship master is under obligation not to abandon the crew. Before entry to a high risk area, members of the crew have the right to ask permission by the ship master to be repatriated. In an event of an unlawful act committed against them or the ship the crew maintain their right concerning their employment contract, salary/payment and damages resulting from personal injury.
5. Foreign maritime security companies (Part VIII)
The Council of Ministers in Cyprus may grant authorisation to foreign armed maritime forces or security companies to protect a Cyprus ship provided the compulsory requirements are met. The service of such forces/security companies can also be employed for the prevention or control of an unlawful act or for the release of a ship or persons carried on board.
6. Powers (Parts IX, X, XI & XII)
The Law outlines the powers of various bodies of the Republic of Cyprus, such as the powers of the Council of Ministers, of the Minister of Communications and Works, of the competent authority and of the Director of the Department of Merchant Shipping.
7. Power of arrest
The Law grants to the ship personnel the right to arrest and detain those committing (including attempting to commit) an unlawful act against the ship and seize their arms and equipment.
8. Unlawful possession of a ship (Part VI)
The term “unlawful possession” is described in the Law as “an unlawful act that leads to the seizure of the control of the ship, or the detention, looting, capture, hostage taking of a ship and/or the persons onboard and it includes piracy as that described above”.
The Law states that unlawful possession of a vessel does not result in loss of the ship, loss of the ship's Cyprus flag or loss of the contracts in place.
9. High risk areas (Parts I & II)
The Law specifies those sea areas that are considered as high risk as follows:
The area between the East coast of Africa and the North West Indian Ocean, the Arab Sea, the Gulfs of Oman and Aden, the South Red Sea, the West Coast of Africa and the Gulf of Guinea.
10. Use of firearms, weapons etc as means of protection (Part IV)
The Law stipulates that the master of the ship has the power to allow the use of certain firearms and “special safety equipment” (any device or object that can be used other than weapon) as he sees fit according to the circumstances in high risk areas. The Law categorises the firearms in groups according to their type and specifies for each class the conditions for their use. Also, the Law gives a list of non permitted arms and weapons such as certain types of firearms. It provides for the ship master's duty to personally supervise and be in charge of the loading, use and safe storage of the firearms on board the vessel.
11. Competent Courts (Part XIII)
Any person that is committing (or attempts to commit) or participates to the carrying out or facilitates or commits conspiracy to piracy and unlawful acts is committing a criminal offence and is liable to prosecution. The Law states as competent courts for the trial of those charged with piracy and unlawful acts the courts of the Republic of Cyprus.
The Law is valid as of the 15th June 2012, which is the day it has been published in the Official Gazette of the Republic No. 4339, Supplement 1(I).
The Law is applied taking into account the provisions of International law, such as:
- The SOLAS Chapter XI-2 with the title “Special Measures to enhance Maritime Security”
- The International Ship and Port facility Security (ISPS) code
- The International Maritime Organisation Bureau's (IMO) guidelines
- Article 101 United Nations Convention on the Law of the Sea (UNCLOS), 1982
- Article 3 of the Convention for the Suppression on Unlawful Acts against the safety of Maritime Navigation
The contents of the new law against acts of piracy are to be regarded as an additional protective measure towards the security of a Cyprus vessel and are in addition to the existing ship's compliance with the compulsory requirements of the international law.
The new Law aims at strengthening Cyprus's presence on the global shipping scene and contributing to the reduction of the phenomenon of sea piracy, as according to the Cyprus Shipping Chamber, Cyprus is the first European Union country that has enabled such detailed legislation in relation to counter-piracy.