[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Notices]
[Pages 39411-39413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16890]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
[Docket No. USCG-2011-0012]
Self-Defense of Vessels of the United States
AGENCY: Coast Guard, DHS.
ACTION: Notice of policy.
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SUMMARY: The Coast Guard has completed a review of policy and public
comments received regarding standard rules for the use of force for
self-defense of vessels of the United States as described in the Coast
Guard Authorization Act of 2010. It has determined that the existing
guidance regarding the use of force provides an adequate framework for
standard rules for the use of force for self-defense against piracy.
DATES: This notice is effective on July 6, 2011.
ADDRESSES: The policy letter and other documents mentioned in this
preamble as being available in the docket, are part of docket USCG-
2011-0012 and are available for inspection or copying at the Docket
Management Facility, U.S. Department of Transportation, West Building
Ground floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC
20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. You may also find this docket on the Internet at
http://www.regulations.gov.
This policy is also available on the U.S. Coast Guard's Homeport
Web site at http://homeport.uscg.mil by clicking the International Port
Security Program tab > Port Security Advisory > Port Security Advisory
(03-09).
FOR FURTHER INFORMATION CONTACT: If you have questions concerning the
policy, please call LCDR John Reardon, Office of Maritime and
International Law, United States Coast Guard; telephone 202-372-1129,
e-mail [email protected]. If you have questions on viewing the
docket, call Ms. Renee V. Wright, Program Manager, Docket Operations,
telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Background and Purpose
The Coast Guard is publishing this notice to affirm that guidance
published by the Coast Guard, in Port Security Advisory (PSA) 03-09,
provides adequate guidance on conduct relating to section 912 of the
Coast Guard Authorization Act of 2010 (CGAA). Section 912 of the CGAA
states that an owner, operator, time charterer, master, mariner, or
individual who uses force or authorizes the use of force to defend a
vessel of the United States against an act of piracy shall not be
liable for monetary damages for any injury or death caused by such
force to any person engaging in an act of piracy if such force was in
accordance with standard rules for the use of force in self-defense of
vessels prescribed by the Secretary.
In accordance with Section 912 of the CGAA, the Coast Guard
requested input from the public and representatives of industry and
labor in order to determine if the current authorization in 33 U.S.C.
383, Resistance of Pirates by Merchant Vessels, and Coast Guard
guidance in PSA 3-09 provides an adequate framework for standard rules
for the use of force for self-defense of vessels of the United States.
76 FR 4706. The Coast Guard received eleven comments, which are
available in the public docket found on http://www.regulations.gov.
After review of the comments received, the Coast Guard has determined
the policy regarding standard rules for the
[[Page 39412]]
use of force for self-defense or defense of others is sufficient.
The majority of the comments were supportive of the overall current
guidance and stated the well-established rights of self-defense of
seafarers in 33 U.S.C. 383, accompanied by the advisory guidelines of
PSA 3-09, are an adequate framework. One comment stated that PSA 3-09
constitutes sufficient information to be considered standard rules and
requires no alteration. Another comment stated that PSA 3-09 adequately
describes the masters' authority and discretion in the use of self-
defense and did not believe more specific guidance was necessary. The
comment further stated that 33 U.S.C. 383 and the Coast Guard
Authorization Act of 2010 section 912 provided sufficient immunity for
persons defending vessels.
Of the eleven comments received, several were outside the scope of
the guidance, but were constructive suggestions on potential tactics
and operations. These comments are helpful and will be considered
during routine reviews and updates to other advisories and guidance.
For example, three comments urged further deployment of heavier weapons
and suggested a legal exemption for merchant vessels to carry machine
guns and rocket propelled grenades and for the use of military weapons
not permitted under U.S. law. Another urged that restrictions on
import/export of weapons be lifted and the international community be
pressured to allow deployment of weapons. One commenter suggested that
the Coast Guard provide additional guidance on the use of non-deadly
force options, including pepper spray and other chemical repellants.
Additionally, one comment encouraged the use of Special Forces to
respond to hostage situations. One comment noted that armed security
teams onboard its vessels had successfully deterred attacks. Other
comments noted that the safe room concept (``citadel'') should be
reviewed. The Coast Guard continues to examine these and other issues
in consultation with interagency and industry partners to ensure the
continued development of guidance in responding to piracy.
Given the existing guidance and the public support for that
guidance as revealed in the comments, the Coast Guard has determined
that the current authorization in 33 U.S.C. 383, Resistance of Pirates
by Merchant Vessels, and the guidance published by the Coast Guard in
Port Security Advisory 3-09 provide an adequate framework for standard
rules for the use of force for self-defense. We have reproduced the
text of Port Security Advisory 03-09 below.
Port Security Advisory (03-09)
Subject: Guidance on Self-Defense or Defense of Others by U.S. Flagged
Commercial Vessels Operating in High Risk Waters
1. Purpose
This document is intended to provide guidance to U.S. flagged
commercial vessels and embarked personnel, including contract security
personnel, not entitled to sovereign immunity and operating in High
Risk Waters (HRW),\1\ for employment of force in self-defense or
defense of others, as well as defense of the vessel. This guidance does
not apply to U.S. flagged vessels entitled to sovereign immunity. It
does not apply to U.S. Government personnel, civilian or military,
embarked on non-sovereign-immune U.S. flagged commercial vessels to
provide vessel security. This document restates existing law in this
area. It does not establish new standards or duties with respect to the
right of self-defense or defense of others. The examples provided
herein are included merely to illustrate how the outlined principles
could apply to the issue of piracy. Actual situations will vary, based
on the specific circumstances of a ship's defensive measures and
capabilities at hand, and the facts of the situation confronted. This
document does not prescribe rules of engagement. Rather, it provides
guidance intended to aid companies in the development of their vessel
security plan submissions for operating within HRW. This guidance
should not be read to mandate specific actions at particular points of
time. Nothing in this document prevents an individual from acting in
self-defense or defense of others. In addition to the right of self-
defense and defense of others, 33 U.S.C. 383 provides authority for the
master and crew to respond to a piratical attack, authorizing them to
``oppose and defend against any aggression, search, restraint,
depredation, or seizure, which shall be attempted upon such vessel * *
*''
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\1\ This guidance anticipates that contracted security personnel
may be embarked on U.S. flagged merchant ships operating in HRW, but
may also or alternatively be embarked on U.S. flagged vessels (not
entitled to sovereign immunity) providing a security escort for a
U.S. flagged merchant ship operating in HRW. See USCG Minimum
Guidelines for Contracted Security Services in High Risk Waters for
additional guidance relevant to contracted security personnel.
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2. Definitions
The following definitions apply for the purpose of this guidance:
a. Self-defense or defense of others means the act of thwarting an
attack upon oneself, another person, or both by using force, up to and
including deadly force.
b. Defense of the vessel means the act of using force to prevent
damage to or theft of a vessel or its property. It is a concept
separate from defending individuals embarked aboard the vessel. That is
intended to be covered within the definition self-defense or defense of
others.
c. Imminent means may occur at any moment, ready to take place,
impending, threateningly or menacingly near or at hand.
d. Imminent danger means an attacker poses an imminent threat of
great bodily harm or death to oneself or others.
Examples of imminent danger include, but are not limited to, aiming
or firing weapons at a U.S. flagged vessel with individuals embarked,
or an attempted armed, non-consensual boarding, without legal
authority, of a U.S. flagged vessel by another vessel (other than U.S.
or foreign warships, law enforcement vessels, or other vessels clearly
marked as being on non-commercial government service). It might also
include the act of brandishing weapons directed at crewmembers or
security personnel, where there is a reasonable belief that the
attacker(s) also has the means and opportunity to inflict great bodily
harm or death on the individual or others in the vicinity. The
determination of imminent danger is fact dependent, and the law may be
broader than the paradigm outlined above. Although the law may allow
for other considerations, or use slightly differing terminology based
on an individual's particular circumstances, the Coast Guard uses the
following as a helpful training tool for its members to explain the
concept: Imminent danger would exist when an attacker manifests
apparent intent to cause great bodily harm or death to oneself or
others, as demonstrated by the following elements, each of which is
present at the same time:
(1) Means. The attacker has the apparent ability, either physically
(relative size, strength, expertise, or other attributes) or through
the use of an object(s), to inflict great bodily harm or death to
oneself or others. Physical means can include in some circumstances the
use of hands or feet to choke or beat an individual. Objects can
include weapons e.g., firearms, explosives, knives, etc.), as well as
other devices under the control of the attacker;
(2) Opportunity. The combination of circumstances by which an
attacker
[[Page 39413]]
apparently can cause great bodily harm or death to oneself or others
(e.g., access to a weapon that is within range to be used against
oneself or others); and
(3) Act. The attacker makes an overt movement which induces one to
reasonably believe that he is manifesting a threat to cause great
bodily harm or death to oneself or others (e.g., an attacker points or
discharges a firearm or other weapon at crewmembers or security
personnel, or employs or prepares to employ climbing gear for an armed,
non-consensual boarding).
e. Great bodily harm means an injury to the body that results in
unconsciousness, protracted and obvious disfigurement, or protracted
loss or impairment of the function of a bodily member, organ, or mental
faculty. It is synonymous with ``serious bodily injury'', ``serious
bodily harm'', ``serious physical injury'', or ``grievous bodily
injury''.
f. Force means the affirmative application of techniques or
actions, typically listed within the vessel security plan, directed
against a specific vessel or person(s).
g. Non-deadly force means any force other than deadly force.
h. Deadly force means any force that is likely to cause great
bodily harm or death.
i. Warning shot means a signal to a vessel to stop. The term does
not include shots fired as a signal that the use of deadly force is
imminent, a technique that should not be employed.
3. Guidance
a. Guiding Principles
Vessel masters retain control of and authority over their vessels,
crewmembers, and embarked security personnel at all times. Any use of
force employed in accordance with the guidance set forth herein is
subject to the direction of the vessel master. Only that force
reasonably necessary under the circumstances should be used. Nothing in
the application of this guidance shall be construed as to necessarily
require personnel to meet force with equal or lesser force.
b. Self-defense or Defense of Others
In the exercise of self-defense or defense of others, crew and
security personnel may use all available means to apply that force
reasonably necessary to defend themselves or others from harm,
including the use of deadly force if required.
c. Use of Deadly Force
Subject to the above, deadly force may only be used in self-defense
or defense of others, when an individual has the reasonable belief that
the person or persons to which the deadly force would be directed poses
an imminent danger of death or great bodily harm. The objective when
using deadly force in self-defense or defense of others is defense of
life. The use of deadly force in self-defense or defense of others may
include the use of ordnance fired into a vessel, if necessary for self-
defense or defense of others. Accordingly, when confronted with a
person or vessel that poses an imminent danger of death or great bodily
harm, personnel and vessels to which this guidance applies may use
reasonable force, up to and including deadly force, in self-defense or
defense of others.
d. Use of Non-Deadly Force
Subject to the above, non-deadly force may be used in the following
circumstances:
(1) for self-defense or defense of others.
(2) for defense of the vessel.
(3) to prevent the theft or, intentional damage to, or destruction
of property (including the U.S. flagged vessel) that the master, crew,
or security personnel are authorized to protect.
Non-deadly force tactics could include maneuvers by the vessel,
deployment of sonic blasts, use of fire hoses to flood a vessel
threatening to attack, the use of disabling fire by properly trained
personnel, or other non-lethal means employed by crewmembers or
security personnel, directed at a vessel or persons threatening attack.
e. Retreat
Although not required under the law, retreat (e.g., to a safe room)
may be an appropriate alternative to the use of force and may be the
most reasonable choice under the circumstances. This is particularly
appropriate where disengaging temporarily from a confrontational
situation may reduce tensions, mitigate risk, reduce a potential
threat, and provide time for the arrival of additional assets or
personnel, including military or law enforcement assets or personnel.
U.S. flagged vessels and embarked persons, including crew and security
personnel, are not required to retreat to avoid situations in which the
use of force, including deadly force, is appropriate.
f. Defense of the Vessel and Other Property
Masters always retain the inherent right to use force in defense of
the vessel. Masters must inform the crew and security personnel of
their authority to employ force in defense of the vessel. Masters may
restrain the authority of the crew and security personnel to employ
force in defense of the vessel. If a master withholds from the crew or
security personnel any use of force authority for defense of the
vessel, the master must approve the withheld portion prior to its use
in defense of the vessel. Defense of the vessel alone does not justify
deadly force. Unless otherwise directed by a master, the crew and
security personnel may use non deadly force in defense of the vessel.
Masters should consider all the circumstances when employing force, and
resort to deadly force only when there is imminent danger of death or
great bodily harm.
g. Use of Signals
Signals, including firing of warning shots, may be employed, but
are not required. Warning shots are not a use of force, and should not
be used if they will endanger any persons or property. Moreover,
warning shots should not be used as a signal that the use of deadly
force is imminent.
4. The Conditions of Entry Applicable to Vessels Outlined in Port
Security Advisory 1-09 Remain in Effect
Conclusion
As a result of this review, there will be no change to the policy.
The Coast Guard will routinely review and update the policy as needed.
Dated: June 29, 2011.
Kevin S. Cook,
Rear Admiral, U.S. Coast Guard, Director of Prevention Policy.
[FR Doc. 2011-16890 Filed 7-5-11; 8:45 am]
BILLING CODE 9110-04-P