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Maersk Alabama Mariner Sues for Pirate Attack

A Maersk Alabama mariner, Richard Hicks, has brought suit against Maersk for negligence, maintenance and cure and other damages allegedly suffered during the piratical attacks off Somalia recently. 

The suit was brought in Houston, Texas.  Thanks to gCaptain for the tip and Terry Bryant for posting the complaint online.

Complaint available here.

Somali Pirate - Criminal Complaint Outlines Charges

The criminal complaint outlining the charges against Somali pirate, Abduwali Abdukhadir Muse is available here.  Based on the charges, he faces life imprisonment.

The four charges he faces are:

1.  Piracy, 18 U.S.C. 1651, related to the seizure and robbery of the Maersk Alabama.

2.  Violence against maritime navigation, 18 U.S.C. 2280(e), which criminalizes acts which, among other things, destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship.

3. Use and carriage of a firearm in the commission of a crime of violence (specifically, violence against maritime navigation), 18 U.S.C. 924.  This carries a mandatory minimum sentence of 10 years if the firearm is discharged.

4. Hostage taking, 18 U.S.C. 1203.

5.  Use of a firearm during the hostage taking in violation of 18 U.S.C. 924.

Because piratical acts in U.S. waters are unheard of, this case will be the first piracy prosecution in a long time.  I would be cautious about saying that it is the first piracy case in 100 years because the crime could have been charged as murder or robbery or the crime may have not been reported on or decided in a published opinion. 

The exercise of criminal jurisdiction over extraterritorial crimes is not unprecedented.  As the complaint notes, the United States successfully asserted jurisdiction over Ramzi Yousef, Osama Bin Laden (tried in absentia) and Shi Lei.  The Ninth Circuit decision in Shi Lei is the only reported case interpreting the Violence Against Maritime Navigation statute.  [Disclosure: while serving as a Coast Guard JAG, I was a Special Assistant U.S. Attorney and worked on the Shi Lei case]. 

Per the Ninth Circuit in Shi Lei:

Article I, Section 8, Clause 10 of the United States Constitution (the “Offense Clause”) empowers Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Because the high seas, by definition, lie outside United States territory, see United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990), the Offense Clause grants Congress the authority to apply federal law beyond the borders of the United States, see EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).

Section 2280 is an exercise of Congress’s constitutional authority to define and punish “Felonies on the high Seas” because it proscribes felony offenses and expressly applies to international waters. See 18 U.S.C. § 2280(e). In addition, § 2280(a)(1)(A) and (B), the provisions under which Shi was charged, proscribe offenses which meet the definition of piracy. “Piracy” traditionally has been defined as “robbery, or forcible depredations upon the sea.” United States v. Smith, 18 U.S. 153, 161 (1820). “Depredation” is “the act of plundering, robbing, or pillaging.” Black’s Law Dictionary 397 (5th ed. 1979).

All three acts require the use of force.3 Section 2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof,” and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship.” Because such offenses involve interference with property on the open sea through the use of force, they are within Congress’s power to define and to punish crimes of piracy. See Smith, 18 U.S. at 158-59 (treating “Piracies,” “Felonies on the high Seas,” and “Offenses against the Laws of Nations” as three separate offenses).

My earlier posts on Somali piracy are: here, here, here, here, here, here.  This list is getting long, I'll put together a resource page later.

History of Piracy - Speech by Professor Andrew Jameson

I was fortunate to attend a lecture by Professor Andrew Jameson at Honolulu's Pacific Club on April 22.

Professor Jameson is a renowned expert on Near Asia. With a Harvard PhD, he was a longtime professor at the University of California-Berkeley and has consulted throughout the world.

He traced the history of piracy from its first written mention in Homer's Iliad through the golden era in the late 1600's. 

He traced today's notion of the swashbuckling pirate from Robert Louis Stevenson's Treasure Island and expressed some criticism of the romanticized notion of pirates.  In truth, pirates are, and have always been, criminals bent on unlawfully obtaining prize (whether treasure or the victim ship) by force, often involving murder, rape and mayhem. 

He highlighted the hotspots of piracy today:  Somalia, the Strait of Malacca and the Phillipines.

Jameson is rather unique for pirate historians because he actually was on a ship that narrowly escaped Somali pirates in 2005.  He was an instructor on the ship Seaborne Spirit.  This cruise ship was assaulted with automatic rifles and rocket propelled grenades but was able to outrun the pirates.

U.S. = +1 Captain, Somalia = -3 Pirates

More resources on the Maersk Alabama piratical attack and hostage-taking incident. 

• Admiral Thad Allen, Commandant of the U.S. Coast Guard was interviewed on ABC's This Week (transcript here).  At issue is his call for an international framework to address Somali piracy.  This appears to call for a need to address the "endgame" or what-do-we-do-with-the pirates we capture.  While this is probably more of a political issue than a legal one, the shipping nations of the world must take steps to protect their fleets.  In my mind, a practical endgame is that the top 20 shipping nations agree that for any pirate apprehended by any naval force, the shipping nation agrees to prosecute the offenders.  When conceiving criminal prosecutions in domestic courts, however, there are certainly practical concerns (i.e. envision Indian Navy personnel testifying in U.S. courtrooms about how Somali pirates were apprehended, 5th Amendment warnings, etc).  Kenya appears to be emerging as an option for prosecution with the benefit of proximity to the pirate area.  The effectiveness of the Kenya option is certainly an issue to watch.

• Survey of the blogs, news outlets:  Marinelog article here, gCaptain live press conference here, New ABCNews article.

• Reflecting on our nation's early brush with piracy in Africa, the NY Times has an interesting piece about the Barbary pirates, here. 

My initial thoughts on the Maersk Alabama incident here. 

Somali Pirates and American Shipping Interests - Messing with the Wrong Target?

The pirate attack on the Maersk Alabama is unfolding in dramatic proportions. 

My thoughts, in no particular order: 

Mariners are wising up to the reality of Somali piracy.  Americans are a bit more sensitive about letting violence happen to them.  Perhaps a lesson from 9/11 and Flight 93?

America is extraordinarily restrained when it comes to exercising its powers of violence.  I disagree with the tone of the NY Times article which somehow equates these events as showing a "limit" on U.S. power.  NY Times here.

You, and not the Navy or any government, are your best weapon, note the escape attempt here.

Anti-piracy patrols need a small boat, beefy tactical response.  If the Navy ships do not already have them, Coast Guard LEDETS or shipboard Marine Detachments could be used by patrolling vessels. Incidents requiring a more violent response would require Coast Guard MSRT or SEAL, resources which can take time to mobilize. Any forcible takedown will be very difficult, though, given the target "vessel"  (lifeboat here).

The U.S. Coast Guard is getting organized to handle these missions:

Blogs and other social media are instantaneous news sources, seegCaptain's live blog here. 

In the short term, negotiation provides the best option for a peaceful ending, but with the caveat that ransom payments do not deter future attacks.

Finally, the United States needs to ratify the Law of the Sea.  Based on the U.N. resolutions, customary international law and robust domestic authority, the United States has every bit of legal authority to combat these pirates, but as the world creeps towards global financial crisis, criminal elements in coastal areas can take advantage of the vulnerabilities of merchant vessels for financial gain.  Ratification of the Law of the Sea will assist in the U.S. efforts to address boundary disputes and these events of violence in a cogent, rational framework.

Somali Pirates - Laws of the United States

In dealing with Somali pirates, from a U.S. law perspective, the pirates can be prosecuted in American courts.

The SUA Treaty is a start. In the wake of the Achille Lauro murders, many countries signed and ratified the Suppression of Unlawful Acts (or SUA) Treaty (a.k.a. Rome Treaty). The Commandant of the Coast Guard’s blog has some good insight into the geo-political issues, vis a vis, the Rome Treaty (a.k.a. SUA) The SUA treaty required signatories to enact domestic legislation to fulfill its aims.

The United States adopted such legislation at 18 U.S.C. 2280, which provides:

Sec. 2280. Violence against maritime navigation

(a) Offenses. -

    (1) In general. - A person who unlawfully and intentionally -

        (A) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation;

         (B) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship;

        (C) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship;

        (D) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship;

        (E) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship;

        (F) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safe navigation of a ship;

        (G) injures or kills any person in connection with the commission or the attempted commission of any of the offenses set forth in subparagraphs (A) through (F); or

        (H) attempts or conspires to do any act prohibited under subparagraphs (A) through (G), shall be fined under this title, imprisoned not more than 20 years, or both; and if the death of any person results from conduct prohibited by this paragraph, shall be punished by death or imprisoned for any term of years or for life.

    (2) Threat to navigation. - A person who threatens to do any act prohibited under paragraph (1)(B), (C) or (E), with apparent determination and will to carry the threat into execution, if the threatened act is likely to endanger the safe navigation of the ship in question, shall be fined under this title, imprisoned not more than 5 years, or both.

    (b) Jurisdiction. - There is jurisdiction over the activity prohibited in subsection (a) - (1) in the case of a covered ship, if -

        (A) such activity is committed -

            (i) against or on board a ship flying the flag of the United States at the time the prohibited activity is committed;

            (ii) in the United States; or

            (iii) by a national of the United States or by a stateless person whose habitual residence is in the United States;

        (B) during the commission of such activity, a national of the United States is seized, threatened, injured or killed; or

        (C) the offender is later found in the United States after such activity is committed;

    (2) in the case of a ship navigating or scheduled to navigate solely within the territorial sea or internal waters of a country other than the United States, if the offender is later found in the United States after such activity is committed; and

    (3) in the case of any vessel, if such activity is committed in an attempt to compel the United States to do or abstain from doing any act.

(c) Bar To Prosecution. - It is a bar to Federal prosecution under subsection (a) for conduct that occurred within the United States that the conduct involved was during or in relation to a labor dispute, and such conduct is prohibited as a felony under the law of the State in which it was committed. For purposes of this section, the term "labor dispute" has the meaning set forth in section 2(c) (!1) of the Norris-LaGuardia Act, as amended (29 U.S.C. 113(c)).

(d) Delivery of Suspected Offender. - The master of a covered ship flying the flag of the United States who has reasonable grounds to believe that there is on board that ship any person who has committed an offense under Article 3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation may deliver such person to the authorities of a State Party to that Convention. Before delivering such person to the authorities of another country, the master shall notify in an appropriate manner the Attorney General of the United States of the alleged offense and await instructions from the Attorney General as to what action to take. When delivering the person to a country which is a State Party to the Convention, the master shall, whenever practicable, and if possible before entering the territorial sea of such country, notify the authorities of such country of the master's intention to deliver such person and the reasons therefor. If the master delivers such person, the master shall furnish to the authorities of such country the evidence in the master's possession that pertains to the alleged offense.

(e) Definitions. - In this section -

    "covered ship" means a ship that is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country's territorial sea with an adjacent country.

    "national of the United States" has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).

    "territorial sea of the United States" means all waters extending seaward to 12 nautical miles from the baselines of the United States determined in accordance with international law.

    "ship" means a vessel of any type whatsoever not permanentlyattached to the sea-bed, including dynamically supported craft, submersibles or any other floating craft, but does not include a warship, a ship owned or operated by a government when being used as a naval auxiliary or for customs or police purposes, or a ship which has been withdrawn from navigation or laid up.

    "United States", when used in a geographical sense, includes the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands and all territories and possessions of the United States.

The U.S. criminal code further provides: Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the shall be imprisoned for life. 18 U.S.C. 1651.

Somali Pirates - More on the Legal and Policy Issues Involved

On Somali pirates, my perspective. It seems there are two practical options: first, identify a neighboring state that has the capacity and political will to try and imprison suspected pirates; or second, obtain the shipping nations agreement that they will try the suspected terrorist upon apprehension by the world’s naval powers. While some nations, like the U.S., have the capability to interdict and stop pirate attacks, any comprehensive strategy must involve the endgame.

From a geo-political standpoint, naval patrols, and even interdiction and arrest, are only a small part of the solution.  The Pentagon seems to agree, here.  For sure, a robust naval presence allows for individual ships to remain unmolested by violence, but what about  then?  Pursuit ashore? The Commander of the U.S. Navy’s Fifth Fleet, Vice Admiral William E. Gortney expressed qualms about pursuing suspected pirates ashore, here.

The U.S. Naval Institute's Proceedings this month contains a timely, insightful bank of essays on this issue:  the JAG's perspective, here; the the socio-economic historical perspective, here; and the naval professional perspective,  here;

Unusual Negotiations for London Attorneys - Somalia Ransom Talks

The Wall Street Journal Law Blog posts an interesting article (here) about the role of private attorneys in the negotiation for the release of pirated vessels in Somalia.   According to the WSJ:

But there’s one job lawyers say they won’t handle. “We won’t get in that speedboat and deliver the suitcase of money,” says Stephens. “I don’t think anyone here agreed to do that when they signed on at the firm.”

My earlier post on Somalia piracy here.

Somali Pirates - Blockade? Quarantine? Universal Crimes?

On Somalia, lots of news these days and a lot of vexing issues to grapple over.  As with any complex international issue, comprehensive easy solutions are not manifest.  While military force and naval patrols may physically interdict the pirates, what then?  Somalia appears to have no functioning government or judicial system that can prosecute the offenders.  Under international law (both customary and treaty), piracy is a universal crime and any nation can prosecute the offenders.  But, the naval powers of the world, especially the United States, are understandably reluctant to exercise criminal jurisdiction over these Somali bandits (read: we don't want them in our federal courts).  As the U.S. Coast Guard Commandant's blog post notes, what is the endgame?  I will post separately about the legal authorities for such action.

Plainly, we are reaching a tipping point.  The major shipping companies are pushing for a blockade of Somalia, here.  The U.S. government likely will not stand for attacks on U.S. flagged ships, like this one.  Will the world tolerate the collateral consequences of a shooting war against the pirates (like here)? 

The U.N. just passed a resolution which looks to be a call to arms: 

Calls upon

States and regional organizations that have the capacity to do so, to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with this resolution and relevant international law, by deploying naval vessels and military aircraft, and through seizure and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery off the coast of Somalia, or for which there is reasonable ground for suspecting such use

Decides

that for a period of 12 months from the date of this resolution States and regional organizations cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary-General, may:

(a) Enter into the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and

(b) Use, within the territorial waters of Somalia, in a manner consistent withsuch action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery at sea;

More to follow.  Stay tuned.

Somali Pirates - Booming Problem with Thorny Legal Issues

Piracy off the coast of Somalia is getting a lot of press recently.  The recent piratical takeover of a ship laden with tanks and munitions is prompting concerns and debate between the world's shippers and the countries affected.  France, Ukraine, North Korea, and now Denmark all have had ships taken in the last several years.  It seems that NATO and perhaps the United States will need to have an increased maritime presence to provide security for the vital sea lane.

The United Nations has even passed resolutions which squarely infringe on the sovereignty of Somalia, such as it is.  Resolution 1816, adopted June 2008 (recently renewed by Resolution 1838, adopted October 2008 ) provided that the Security Council:

Decides that for a period of six months from the date of this resolution, States cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary-General, may:

(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and

(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery...

The Shipping coalition, in their releases here, here suggest that governmental, and not private security, response is warranted.   The world's major maritime insurer, Lloyds of London, began issuing risk policies including private security teams here.

The French have shown a willingness to go farther than the territorial sea to apprehend pirates:

Earlier Somalia pirate posts here, here and here, here.