We have all read about the seagoing hijacking of the U.S. container ship “Maersk Alabaman” by Somali pirates, the hostage taking of Capt. Richard Phillips and his rescue by the United States Navy and Navy Seals killing three of the pirates with one being captured.
As a former Marine officer, this saga brings back into mind the successful attack by United States Marines on the Barbary pirates ordered by President Thomas Jefferson in 1804. It is memorized in the opening words of the Marine Corps hymn in the words “From the halls of Montezuma to the shores of Tripolin.” The first Navy warship to carry Marines was the U.S.S. Enterprise which took part in the Barbary Pirate invasion. I was privileged to be given a scale model of the Enterprise by the Southeastern Admiralty Law Institute.
I have been asked to comment on the aspects of the current Somali pirate situation from a maritime law aspect. The fourth pirate, Abduwali Muse, in the “Maersk Alabaman” attack and attempted hijacking is subject to U.S. law because it is an American flagged and owned vessel with an American crew. Piracy is a crime under 18 United States Code, Section 1651, entitled Piracy Under Law of Nations and 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 United States, shall be imprisoned for life.”
As to ships engaged in piracy, the United States Courts in the early 1800s were presented cases seeking forfeiture of vessels used in piracy. In the first case the vessel was Spanish owned, and operating as a privateer under a Spanish Royal Commission. The U.S. Circuit Court held that the vessel was not subject to forfeiture under the piracy statute because of the Spanish royal commission.
The case went to the Supreme Court which divided evenly on the piracy issue and the vessel went free.
In the next case (The Brief Malek Adhel 43 U.S. 210, 1844), the vessel was seized for “piratical aggressions and condemned, with the owners protesting and claiming they had no knowledge the acts of piracy; there was no royal commission to justify the acts of the vessel.”
The Supreme Court through Justice Story held: “The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offense has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof.”
Now, to the anomalies presented in the current acts of piracy off the coast of Somalia. The case of the “Maersk Alabaman” involved citizens of Somalia attacking a U.S. flagged, owned and operated cargo vessel in international waters of the Indian Ocean. A legal anomaly arises because Somali has no real operating government and presumably has no anti-piracy treaty with the United States. If a country has an anti-piracy treaty with the United States, its citizens or subjects conducting piracy are subject to the same life imprisonment penalty under 18 United States Code Section 1653.
In recent reports of piracy attempts of the coast of Somalia where the piracy has been thwarted the vessel has been saved and the crew members/hostages have been freed. But, then paradoxically the pirates are released. This seems to fly in the face of the Law of Nations and universal condemnation of the Somali pirates.
On April 18, Dutch commandos from a Dutch frigate with NATO forces rescued 20 Yeminni fishermen whose boat had been seized by pirates. Then the Dutch released the Somali hijackers “because they had no authority to arrest them. Recently a Belgian flagged vessel was seized by pirates near the Seychelles Islands, a NATO patrolling warship came to the rescue, freed the foreign crew, disarmed the pirates and then released them because they had “no jurisdiction to try them. The NATO reports patrolling forces do so because “NATO does not have any detainment policy. In the case of the Dutch frigate the Dutch authorities stated they could not arrest the pirates because none of the hijack victims or the vessel or the pirates were Dutch.
On April 19, a similar result occurred when U.S. and Canadian warships and helicopters thwarted the attack on a Norwegian tanker by Somali pirates. The Canadian ship a part of the NATO force interrogated, disarmed, and then released the pirates “because they could not be prosecuted under Canadian law.”
Obviously the problem of the current Somali pirates is complicated by NATO policy. It is further complicated by the fact of multiple jurisdictional aspect of international shipping. It is common for vessels to be flagged by countries where the licensing is easy, cheap and taxes are low, such a Liberia, Cyprus, Panama, Togo, etc. The vessel is normally owned by a corporation headquartered in another country, it is chartered by a company from another country, and the crew is made of other foreign nationals.
Many vessels have their officer staffs from one country (for example England, Greece, Norway, etc.) and the remainder of the crew are from other countries, such as the Philippines, Indonesia, Croatia, Romania, Greece, etc. The jurisdictional aspects are mind boggling, and most of the countries either have no piracy laws or conflicting laws. The shipping company elects to negotiate and pay the ransom for the vessel and crew. Last year reportedly $1 million was paid for the release of a Saudi supertanker.
As a result, the piracy is rewarded, the pirates become rich and the hijacking goes on. The government of Somalia, if any, does nothing, and the pirates are local heroes. This, of course, encourages the pirates, and in Somali it is reported that pirates are on the highly favored list of Somali women for marriage, because of the easy money and their rich life style. Until there is some agreement and enforceable international policy and law against piracy the paradoxical situation of interception of hijacking, rescue of the vessel and crew and subsequent release of the pirates will simply go on.
There are exceptions, the French have an absolute policy of deterring piracy and eliminating pirates by force. They board the hijacked vessels when they approach the coast of Somalia, a red line status. French commando units board the vessels and attack the pirates. This has of course lead to loss of life for hostages as well as the pirates. In one case the pirates escaped ashore in Somalia, and the French pursued them into the desert. There are currently 12 captured pirates in French custody being returned to France for prosecution.
The U.S. policy was defined when the order came to permit the Navy seal snipers to fire when Capt. Phillips’ life was in imminent danger from a pirate aiming an AK-47 at his back. Before that the U.S. negotiation terms were no ransom, surrender by the four pirates, they be arrested and tried in a U.S. court. Of course theywould not agree to these terms, and three of them paid the ultimate price.
On the subject, President Barack Obama has stated: “We are resolved to halt the rise of piracy in that region. We’re going to have to continue to work with our partners to prevent future attacks. We have to continue to be prepared to confront them when they arise.”
— Edward White is a Florida Bar Board Certified attorney in Admirality Law