Private Ship Security Companies and their Certification under the “Anti-Piracy” Law of Cyprus

Presentation by Sonia Ajini of L.G. Zambartas LLC

Mini-Conference held at the premises of L.G. Zambartas LLC on 7 October 2013

Limassol, Cyprus

A Brief Introduction to the “Anti-Piracy” LawThe Protection of Cyprus Ships Against Acts of Piracy and Other Unlawful Acts Law of 2012 (Law 77(I) of 2012) (the “Law”)1. The Law was published in the Official Gazette of the Republic of Cyprus No. 4339,

Supplement I(I)

2. The Law came into force on 15th June 2012

3. The Law is based and incorporates the recommendations guidance developed by the IMO. It took around 1½ years to discuss and finalise; the governmental bodies involved in the drafting process (inter alia) were: the Department of Merchant Shipping, police, customs, Ministry of Foreign Affairs and Ministry of Interior. The Law takes into account the provisions of the United Nations Convention on the Law of the Sea and in particular the rights of a State as a port and a coastal State within its internal waters, territorial sea and contiguous zone.

4. The Law is divided into 14 parts and 6 schedules

5. The main aim of the Law is: to enhance the security of ships flying the Cyprus flag whilst at sea and, inter alia, establishes the required legislative

framework for permitting the use, in a regulated manner,

of privately contracted unarmed and armed security personnel

on board Cyprus ships when they are sailing through high risk

areas such as the North West Indian Ocean or along the

West coast of Africa in the Gulf of Guinea

The main scope of the Law: it goes beyond acts or attempted acts of piracy and addresses all forms of unlawful acts against a ship or attempts to violate the security of the ship.

The Cyprus ships are required to implement, in addition to the special measures to enhance maritime security as set out in SOLAS chapter XI-2 and the ISPS Code and Regulation EC number 725/2004, which form the compulsory security measures when navigating through risk and high risk areas. These can be developed and implemented taking into account the related recommendations and guidelines published by them IMO and the shipping industry (i.e. best management practices to deter piracy in the Gulf of Aden and off the Coast of Somalia).

The Law addresses a variety of issues relating to (but not limited to):

a. the position of the unarmed or armed private security guards

whilst on-board

b. embarkation and disembarkation of the guards

c. movement and storage on board of their firearms, their

ammunition and other security-related equipment

d. issues of civil liability of the operator of the Cyprus ship and of

its shipboard personnel, the private ship security company and its

employees

Some Key Definitions for the purposes of the Law:

“firearm” or “arm” or “arms” means the firearm or firearms specified in the Second Schedule and includes their ammunition and their spare

parts and the equipment, instruments, tools and materials used for their maintenance and repair;

“special security equipment” means any device, apparatus, object or instrument, except firearms, which may be used for the security of the ship;

“high-risk area” means sea areas within the internal waters or the territorial sea of a State and on the high seas where they occur, or there is an increase likelihood or danger that may occur, unlawful acts which endanger the security of a ship in order to safeguard the security of ships;

“piracy” means:

(a) any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship, and directed -

(i) on the high seas, against another ship, or against persons or property on board such ship;

(ii) against a ship, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship with knowledge of facts making it a pirate ship; and

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b) above

“private ship security company” means a legal person which has been approved pursuant to the provisions of the Law and to which a certificate has been issued pursuant to the provisions of section 22(1) of the Law;

“private ship security guard” means a person who works for a private ship security company which is referred to on a certificate issued pursuant to the provisions of section 22(1) of the Law;

“security of the ship” means the combination of preventive measures taken with a view to protection of the ship, of the persons on board and of the cargo carried from threats of unlawful acts and includes the protection of the ship/port interface or of any ship-to-ship activity;

“unlawful act” means an act or suspicious act or circumstance which, by its nature or context, threatens the security of the ship or may cause damage to the ship or to the persons on board or to the cargo and includes the commissioning and attempted commissioning of following acts:

(a) the seizure of the control of the ship,

its capture, its immobilization, its

detention, its, depredation, its looting,

its kidnapping or its hostage-taking and

includes acts of piracy; or

(b) committing an act of violence against any one of the persons on board the ship or causing injury or death to them; or

(c) the destruction of the ship or causing damage to the ship or to the cargo; or

(d) the placement on board, in any way and by any means, of a device or substance which may destroy the ship or cause damage to it or to the cargo or cause bodily harm or death to any one of the persons on board; or

(e) the abduction, detention or hostage-taking of one, some or all of the persons on board; or

(f) the theft or the transportation out of the ship without prior permission of permanently installed or portable equipment or outfitting, documents, supplies, tools or of parts of the ship or of personal property or money belonging to those on board; or

(g) the exercise, or the threat, of violence or any other form of blackmail or intimidation for the commissioning or attempted commissioning of any of the acts referred to in subparagraphs (a) to (f) above; or

(h) the transmission of information that can assist in the commissioning or attempted commissioning of anyone of the acts referred to in subparagraphs (a) to (g) above.

PSSCs and their position under the Law – WHY do we need them?

The Law allows the registered owner, the registered bareboat charterer or the manager of a Cyprus ship (the operator of the Cyprus ship) to request, on the basis of a reasoned and justified security risk assessment, a permission to engage the services of a private ship security company providing unarmed or armed private ship security guards when the ship is navigating through high-risk areas, thus ensuring and maintaining the security of the ship and for preventing unlawful acts.

The use of the unarmed or armed private ship security guards is an additional protective measure which the operator of the Cyprus ship may desire to put in place beyond meeting its obligation in relation to the compulsory requirements.

However, the private ship security company and its security personnel should be one of those the Government of the Republic (the Government) has vetted and certified as being allowed to provide security-related services to the Cyprus ships: as at today there are 42 fully certified PSSCs by the Competent Authority and 186 transits.

Section 12 of the Law: use of the services of a private ship security company.

The ship’s operator through a written agreement may ensure implementation of the security measures – when the ship is in the high risk areas, the PSSC may use firearms and/or special security equipment for the protection of the security of the ship.

However, before this additional security measures can be fully implemented, 2-tier level of applications for the issue of the certificates to be filed with the Competent Authority:

a) Application for the issue of the certificate for the use of the services of the PSSC filed by the ship’s operator or its representative in Cyprus:

* no measures can be implemented on board the ship before the issue of the certificate following filing of the application by the ship’s operator or after its cancellation/suspension/expiration

* no such certificate will be issued unless the PSSC holds a certificate issued by the Competent Authority (the below referred certificate)

* no such certificate will be issued if the below certificate is expired, cancelled, suspended or will be suspended/cancelled or if the Competent Authority

intends to amend or replace the below certificate

* the ship’s operator has the obligation to ensure (when signing the agreement with the PSSC) that the PSSC holds a valid certificate

b) Application for the issue of the certificate attesting that the PSSC is allowed to implement security measures on the ships using their private ship security guards is filed by the PSSC or its authorized representative in Cyprus

Pre-conditions for the approval of the PSSCs

filing of the above application including all documents/information/data stated in the 6th Schedule of the Law

the PSSCs may have:• the registered office in Cyprus (registered as legal person in Cyprus) • the registered office/central administration/principal place of business in a Member State

(registered as legal person in a Member state) provided it will establish, maintain for the duration of the certificate an authorized representative in Cyprus

• the registered office in any other State, subject to the permission of the Minister of Communications and Works provided it will establish, maintain for the duration of the certificate an authorized representative of Cyprus

the Law states the circumstances when the certificate will not be issued - natural/legal persons connected/controlled/owned in any way with the PSSC:

sanctions of the UN Security Council, the EU institutions convictions, arrest warrant of the Criminal Court user of drugs, narcotics, other psychotropic substances mental illness etc.

payment of fees

Approval of the PSSCs

the Application is filed by the legal person of the PSSC or authorized representative in the official language of Cyprus or the language understood by the Competent Authority including information and supporting documents stated in the 6th Schedule

the Competent Authority will issue the certificate once it is fully satisfied by the application and data and information filed

the certificate is valid for 2 years the Competent Authority may, and has the power, to refuse to review an application and to

suspend the examination of an application until the submission of all information, documents, evidence and/or declarations that it requires or until the completion of a written and/or oral examination and/or interview

the Competent Authority may, and has the power:

(i) to extend the period of the validity of a certificate; or

(ii) to suspend or cancel the validity of a certificate and

to specify the scope or the period of the suspension

or cancellation; or

(iii) to replace a certificate with a new one; or

(iv) to amend the particulars referred to on a certificate; or

(v) to amend the terms or conditions or the information referred to on a certificate; The Competent Authority has the obligation and the power to suspend and/or cancel the validity a

certificate where it finds non-compliance with the provisions of this Law or with the terms or conditions referred to therein; and may determine the date or time or time interval from which the decision applies and the scope or the period of the suspension of the validity of a certificate.

Authorized Representatives of the PSSCs - WHO ?

a) a Cypriot citizen/a citizen of a Member state who is a resident of Cyprus;

OR

b) a partnership (established and registered in accordance with the Partnership and Business Name Law, Cap. 116 and Laws of 1977 to 2011) - having its place of business in Cyprus and employs permanent personnel in Cyprus;

OR

c) a company (established and incorporated

in accordance with the Companies Law,

Cap 113 and Laws 1968 to 2011)

having its place of business in Cyprus

and employs permanent personnel in

Cyprus

The authorized representative is

NOT responsible for the acts or omissions of the appointing PSSC Obligation of the PSSC and authorized representative to immediately notify the

Competent Authority of their intention to mutually or unilaterally terminate the arrangements for the purposes of the Law

Termination of the appointment or services of the authorized representatives is prohibited before the appointment of the new authorized representative or before completion of the implementation of the obligations of the PSSCs

Conclusion

Certification process of the PSSCs under the Law which results in the issuance of the certificate by the Competent Authority is the “TOOL” and “MEANS” by virtue of which the PSSC can implement security measures on the Cypriot flagged ships passing though the high-risk areas. The Competent Authority makes a proper check of the data and information filed by the PSSC or its authorized representative ensuring that the certification is granted to the companies which are fully capable to implement the Law (inter alia) into their rules of use of force manuals.

As long as there is a real threat of the piracy attacks and unlawful acts to the ships, cargo and personnel as well as the significant commercial benefit in the “security”

industry, we will be, without any doubt, witnessing a steady and continuing “float” of the application forms for the certification purpose of the PSSCs under the Law.

PRIVATE SHIP SECURITY COMPANY CERTIFICATE

EXCELLENT!

Awarded this 7th day of October 2013

“You can't cross the sea merely by standing and staring at the water.”

Rabindranath Tagore