Tag Archives: law

THE “PRESTIGE” TRIAL || Captain criticizes Spain

Ten years after one of Europe’s worst oil disasters, the captain of the Prestige tanker blamed Spain for sending his vessel away from the coast and into the stormy Atlantic.

Facing trial a decade to the day after his tanker sent an SOS that heralded the biggest oil spill in Spanish history, the 77-year-old Greek skipper criticised the decisions taken by the Spanish authorities.

“The ship was cracked and they sent it out to the ocean,” said the captain, Apostolos Mangouras. “It was the worst alternative. They sent us in a floating coffin … to drown.”

Mangouras said that on November 15, two days after sending a distress signal, the Prestige was expecting a storm.

“Where were we going? Eight souls were aboard,” he told the prosecutor.

The captain said he did not specifically ask to go into port because he believed the tanker was being sent to shelter.

But after passing the Galician peninsula of Cape Finisterre, he said: “I realised that they were sending the boat out to the ocean.”

Mangouras said he had visually checked the hull and ballast tanks before departing Saint Petersburg two months beforehand.

He and the Philippine crew held all the required qualifications, he said.

The ill-fated tanker’s skipper was the first of four accused to testify in the trial over the catastrophe in which tens of thousands of tonnes of thick, sticky oil oozed across the coasts of Spain, Portugal and France.

Prosecutors have charged the captain with criminal damage of the environment and a protected nature reserve and are seeking a combined jail term of 12 years.

They are also demanding more than 4bn euros ($5.0bn) in damages.

Outside the exhibition centre where the trial is being held in the northern port city of A Coruna, Greenpeace activists hung a huge yellow banner asking “Where are the guilty?” along with photographs of various politicians.

Among the photographs was one of right-leaning Prime Minister Mariano Rajoy, who at the time was deputy prime minister and initially downplayed the gravity of the accident, repeatedly describing the black spots that appeared in the sea where the tanker went down as “small threads of clay”.

The Prestige, a Bahamas-flagged Liberian tanker, was carrying 77,000 tonnes of fuel when it sent a distress call in the midst of a storm off the northwestern Spanish coast on November 13, 2002.

The conservative government in power at the time ordered the Prestige out to sea away from the Spanish coast instead of following an emergency contingency plan prepared by experts that called for it to be brought to port where the leaking oil could be confined.

For six days the tanker drifted in the Atlantic, its hull torn by a leak, before breaking up and foundering 250km off the coast into waters some 4,000m deep, spilling some 50,000 tonnes of oil into the ocean and coastline.

Others charged are Greek chief engineer Nikolaos Argyropoulos and first mate Irineo Maloto, a Filipino whose whereabouts are unknown, and Jose Luis Lopez-Sors, head of the Spanish merchant navy at the time, who ordered the ship out to sea when it was losing fuel.

The trial is due to last until May and hear testimony from 133 witnesses and 100 experts.

Source: http://www.gulf-times.com/site/topics/article.asp?cu_no=2&item_no=543743&version=1&template_id=39&parent_id=21

 

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RENA AGROUND | Second officer in court

[The] second officer from the MV Rena has appeared in the Tauranga District Court this morning.

The navigation officer faced the same charges as the captain under section 65 of the Maritime Transport Act which relates to operating a vessel causing unnecessary danger or risk to a person or property.

The charge carries a maximum penalty of $10,000, or a maximum term of imprisonment of 12 months.

The officer was remanded on bail with the same conditions as the ship’s captain, who appeared in the same court yesterday.

The officer’s country of origin and his age were not specified.

The man, who appeared glum as he entered the court, appeared to be of Filipino origin.

He’s been ordered to surrender his passport, granted name suppression and ordered to reappear in court on the 19th of October.

He was also bailed to unknown address and must appear daily to a nominated police station.

Judge Robert Wolff also ordered him not to associate with the skipper, other than for salvage operations.

Keith Catran, a lawyer representing TV3, challenged the suppression orders for the navigation officer.

He said “the public is entitled to openness of reporting, unless there are very clear reasons why that should not be the case.”

Mr Catran said “it’s a unique case where the victims of the defendant are the whole public and the whole community of this area. The result of the incident is in the face of everyone in this town.”

Judge Wolff said it would’ve been unfair to grant suppression for one of the crew members and not the other.

The judge said he could see “no harm in upholding the suppression order for a further week”.

Source: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10758718

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ARTICLES | Iran, sanctions, and a disaster waiting to happen

Luke Hunt | The Diplomat, 2011.08.22

International sanctions against Iran’s national shipping line in response to Tehran’s nuclear ambitions are intensifying. The world’s largest container carrier, Maersk, has suspended operations at three Iranian ports, while the US Treasury Department has launched legal action against 121 companies and individuals affiliated with the Islamic Republic of Iran Shipping (IRISL).

The latest round of measures, aimed at Iran’s ballistic missile and nuclear programmes, came after IRISL was ostracized by the international maritime community with mortgage foreclosures on its ships and saw access to insurance greatly limited, prompting speculation IRISL is facing its own death knell.

However, as IRISL limps on, a new and potentially deadly risk has emerged – particularly in East Asia, where the monitoring of IRISL’s fleet has improved dramatically, but surveillance still remains patchy.

‘Any Iranian ship in Asian waters should send alarm bells ringing as Iran tries by all means to escape sanctions imposed for its involvement in nuclear weapons proliferation,’ says Carl Thayer, Emeritus Professor with the University of New South Wales. ‘The effect of the sanctions led IRISL to put unsafe ships to sea, where they pose a potential environmental hazard. Who will foot the bill if an IRISL ship is involved in an accident and spills its fuel? Asia states that allow IRISL ships into their ports should have second thoughts.’

Doing business with Iran and IRISL has become increasingly difficult in recent years with United Nations, European and US sanctions making even the most awkward operator cautious about trading with the country.

Tehran insists the sanctions are unjust and that its nuclear programme is purely for peaceful purposes; IRISL has echoed those sentiments and says its operations remain profitable and sound.

‘We don’t want nuclear arms, nor are we seeking to possess them,’ Iranian President Mahmoud Ahmadinejad said Tuesday. ‘These weapons are directed against people. We oppose them because of our religious beliefs – our religion says that they are prohibited. We are religious.’

While maintaining this stance, IRISL has also been accused of attempting to evade sanctions through a complex network of front companies to take advantage of loopholes in maritime security. But maritime law now poses a problem for IRISL and the waters that its ships ply.

Under the International Convention on Civil Liability for Bunker Oil Pollution Damage (2001), ship owners are required to hold insurance or other financial security to cover the liability for pollution damage in an amount equal to the limits of liability. This limit is usually up to $1 billion.

A well-documented cat and mouse game has therefore been played out as IRISL tries to buy adequate insurance for its operations. Of one specific class of insurance – protection and Indemnity, or P&I – the potential consequences could be felt well beyond the United States, Europe and Iran.

When goods are shipped around the world, the owners of the goods and vessels usually take out marine insurance. This cover, however, doesn’t generally extend to third party liability in the event of an accident.

‘P&I cover is third party liability insurance, which provides compensation to third party victims of maritime incidents,’ says Andrew Bardot, Secretary-General of the International Group of P&I Insurers.

It is essential to reassure port authorities that should a vessel run aground, collide with another ship, or become involved in an oil spill or other serious incident, that insurance cover is in place to pay for damage to ships, ports or the environment.

The enormous costs associated with the Deep Horizon spill in the Gulf of Mexico of between $2 billion and $5 billion, or the still evolving Fukushima disaster in Japan, have driven home the potential cost of nightmarish accidents. The Exxon Valdez showed litigation and reparations could take decades to resolve.

IRISL’s P&I cover was withdrawn by Lloyds of London in 2009 following UK sanctions against the shipping line. IRISL then found cover from a P&I provider operating out of Bermuda. In 2010, Bermuda passed legislation, bringing the country in line with the UK.

‘EU regulations have resulted in cover being terminated or not renewed for a number of designated Iranian shipping companies including IRISL and the NITC (National Iranian Tanker Company),’ Bardot says.

IRISL then approached the Islamic P&I club, which refused to provide cover.

Finally, IRISL secured P&I cover from Moallem, an Iranian insurer with no record of providing this type of insurance. NITC was faced with a similar issue with regards to P&I cover and has publicly stated it is using an ‘Asian P&I provider’ with cover that’s reliable, but more expensive than that secured through London. However, the lack of transparency on the identity of the provider does nothing to reassure on the reliability of the cover. Either way, on December 21, the US Treasury sanctioned Moallem.

All P&I providers re-insure against catastrophic losses, which kicks in for large exposures, but it isn’t clear who Moallem uses for re-insurance. Major European insurance houses wouldn’t be in a legal position to offer cover, leaving the Peoples Insurance Company of China (PICC) being touted as a possibility.

But analysts say that given its ongoing negotiations over access to Lloyds of London, it was highly unlikely that PICC would risk its international standing by being associated with a controversial and sanctioned client like IRISL.

Within maritime circles, the presumption is the Iranian government is the reinsurer of Moallem. But analysts say that given the doubts over Moallem and the severe restrictions on the Iranian government, banks and other institutions, the key question is how IRISL and Tehran would react to a shipping and environmental calamity, and what options would be open for redress and compensation.

It’s an issue that Greenpeace says must be addressed by the 10-nation Association of South East Asian Nations (ASEAN) given the threats to livelihoods and food security – and it says that any legal loopholes should be closed, while uninsured ships should be barred from entering regional ports.

Keith Loveard, a regional security analyst with Jakarta-based Concord Consulting, says an Iranian shipping disaster off the coast of Indonesia would likely cause a rift within government, as was seen with the leak from a Thai rig off the northern Australian coast last year.

‘The government would be caught between different currents, with the Foreign Ministry attempting to maintain smooth relations, while the Environment Ministry would be hopping mad and local communities would be left to deal with the mess,’ he says. ‘This is all very hypothetical. But the longer rogue ships operate without any insurance cover, the likelihood of something going wrong obviously increases.’

Others suggest one means of recovering costs incurred in dealing with an environmental incident would be to sequester any Iranian state-owned property or assets within the affected country, such as aircraft operated by state-owned Iran Air.

Gavin Greenwood, a risk analyst with Hong Kong-based Allan & Associates, says the recent seizure of a Thai aircraft used by the country’s crown prince in Germany to try and resolve a long standing dispute over money was one example over how this could work.

‘The International Court of Justice could also be involved, though this is a long term proposition,’ he says, adding that ‘Iran used the ICJ to claim restitution from the US after a US Navy warship shot down an Iran Air Airbus in July 1988.’

Mohan Malik, Professor of Asian Security at the Asian-Pacific Center for Security Studies in Honolulu, says the location of an accident involving the Iranian shipping line would also be important.

‘If it happens in the busy Malacca Straits or in the South China Sea, most littoral and major powers will be forced to contribute to the clean-up in order to facilitate an uninterrupted flow of energy and goods,’ he says.

‘Of course, there will be law suits against the Iranian government too, but the Islamic clerics can be expected to invoke Allah’s wrath on those who do so. Also, the International Maritime Organization (IMO) and other UN agencies would be called upon to play a greater role in ensuring that uninsured shipping lines aren’t allowed to operate in international waters.’

The IMO declined to comment on IRISL. However, sources close to the organisation say it has been undertaking amendments to its strategic direction in regards to liability and compensation claims in the wake of the Deep Horizon disaster.

Most maritime authorities demand a Blue Card from the P&I insurer as evidence that sufficient insurance is in place to meet liability requirements under the Bunker convention. But in Asia it’s not clear how routinely this is enforced or checked. If a maritime agency had doubts about the owners or operators ability to meet a liability it is able to deny a vessel entry or exit from ports or waters under its control.

Thayer says that lack of clarity in Asia demonstrates ‘yet again’ the weakness of the region’s security architecture and the reluctance of many Asian states to support sanctions.

‘By allowing the IRISL to continue in the face of sanctions, they are undermining not only good order at sea but inviting a disaster for which they will have to assume responsibility,’ Thayer says. ‘Banning IRISL ships from Asian ports would be a good first step in supporting the non-proliferation regime and protecting the marine environment against an accidental fuel spill.’

While the United States, EU and UK have taken the lead against Iran in regards to its declared and undeclared nuclear weapons ambitions, the real world impact of those sanctions are now being seen well beyond the Iranian interests that have been targeted.

IRISL continues to operate in Asian waters, with untested and unproven insurance. The responsibility for ensuring Asia doesn’t become a victim of events in Iran now rests squarely on the shoulders of Asian governments and their maritime authorities.

Source: http://the-diplomat.com/2011/08/22/maritime-disaster-waiting-to-happen/

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MARITIME OPINION | Not so chilly at the North Pole

Michael Byers | Khaleej Times, 2011.08.22
No country will ever “own” the North Pole, which is located roughly 400 miles to the north of any land. The central Arctic Ocean belongs to humanity; its challenges are the responsibility of all nations.

Those challenges – of life-threatening accidents, oil spills and over-fishing – are increasing as the sea-ice melts and ships of all kinds gain access.

The 1959 Antarctic Treaty is sometimes advanced as a model for Arctic governance. But the Antarctic Treaty was concluded before nations had developed vested interests there.

The Arctic has already seen more activity than the Antarctic. Fully 20 per cent of Russia’s GDP comes from its Arctic territories, mostly as revenue from oil and gas. And unlike the Antarctic, the Arctic is home to indigenous peoples.

The Arctic is also already substantially regulated by domestic and international laws. For while the Antarctic is a continent surrounded by oceans, the Arctic is an ocean surrounded by continents. All of the land belongs incontestably to one or another Arctic nation, with the insignificant exception of Hans Island, a rocky islet halfway between Greenland and Canada.

The Arctic Ocean itself is governed by the law of the sea, which all nations accept as customary international law. Developed through centuries of diplomatic practice, these rules have been codified in the UN Convention on the Law of the Sea, which most nations – though not yet the United States – have ratified.

As in the rest of the world, the territorial seas of Arctic nations extend 12 nautical miles from shore. Within that band, coastal states have extensive powers over foreign shipping and absolute rights over fish and seabed resources such as oil and gas. Between 12 and 200 miles, in the so-called exclusive economic zone, coastal states have no powers over foreign shipping but absolute rights to fish, oil and gas.

The crucial issues in the central Arctic Ocean concern ship safety and fisheries management. For this reason, the United States recently led the negotiation of a search-and-rescue treaty involving all Arctic nations, including Russia. The treaty designates zones of coastal state responsibility for search-and-rescue that extend into international waters all the way to the North Pole.

As the Arctic Ocean warms, commercially valuable fish species such as Pacific Sockeye Salmon and Atlantic Cod are moving north. Those species that exist within the high seas, or move between the high seas and the exclusive economic zones of coastal states, are acutely vulnerable to long-range fishing fleets from non-Arctic countries.

In 2008, Senators Ted Stevens and Lisa Murkowski of Alaska co-sponsored a Senate resolution directing the US government to negotiate the establishment of an international fisheries management organisation for the Arctic Ocean. Similar organisations already exist and are effective in the North Atlantic and elsewhere.

Setting up such an organisation would require the support of other Arctic nations, and membership would have to be open to non-Arctic nations also. These countries would thus have access to the fisheries beyond 200 nautical miles from shore, but only if science-based consensus on quotas was achieved.

But again, it’s often easier to achieve international agreement before the interests of nations become entrenched. For this reason, speed is of the essence. The high seas north of the Bering Strait are already ice-free in late summer – and closer to South Korea, Japan and China than many of the places where their long-range fishing boats currently operate.

The Arctic is not the Wild West zone of popular imagination, but neither is it a region where international cooperation is complete. As the ice melts, new rules for shipping and fishing are needed, quickly.

Michael Byers is a professor of global politics and international law at the University of British Columbia in Vancouver

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SECURITY | Accused Somali pirates headed for US trial

THE ASSOCIATED PRESS | 2010.11.06

Five Somali men accused of firing assault rifles at a Navy ship off the coast of Africa are set to face the first U.S. piracy trial in more than 100 years.

 

The suspected pirates are accused of shooting at the USS Nicholas in an attempt to plunder what they thought was a merchant ship. Instead, they fired on a battle-tested, 453-foot [138-m long] ship patrolling the pirate-infested waters, which shot back, forcing the men to flee in their small skiff, prosecutors said.

The men, along with other suspected pirates, were eventually captured and brought back to the U.S. to stand trial. Yet, until now, no case has actually gone to a jury. The federal trial will begin Tuesday and is expected to last about a month.

The most infamous pirate captured in the spring was Abdiwali Abdiqadir Muse. The Somali suspect who staged a brazen high-seas attack on the U.S.-flagged Maersk Alabama pleaded guilty in New York to charges he hijacked the ship and kidnapped its captain. He faces a minimum of 27 years in prison.

The group of men accused in the USS Nicholas attack April 1 face a much stiffer punishment if convicted of piracy, which carries a mandatory life sentence. Yet the charge may be difficult to prove for prosecutors, in part because the suspected pirates never actually boarded the vessel.

The government acknowledges the five defendants did not take control of the Navy frigate with a crew of 100 highly-trained sailors, which defense attorneys argue is necessary to prosecute the piracy count.

“They fired on a Navy ship. That’s the whole case,” said David Bouchard, an attorney for the Somali men. “The didn’t go on the boat. They didn’t shoot anybody. They didn’t rob it.”

In a similar, but separate case involving a group of alleged pirates who are suspected of firing at the USS Ashland on April 10, a federal judge has thrown out the piracy charge, ruling there was not enough evidence to prove the charge. Prosecutors are appealing the judge’s decision.

Prosecutors say an 1820 Supreme Court decision and contemporary international law show that the alleged actions of the Somali nationals constituted piracy.

U.S. District Judge Mark S. Davis has allowed the piracy charge in the USS Nicholas case to go ahead in Norfolk, home to the world’s largest naval base and homeport to the Nicholas.

Ken Randall, dean of the University of Alabama School of Law and a piracy law scholar, said the two judges have different views, but he thinks the government’s prosecution will ultimately prevail because U.S. vessels were involved.

“From what I’ve seen, no, I don’t think the piracy count is particularly challenging as a matter of law,” Randall said. “Because the definition of piracy really has existed along similar lines for three, four centuries, and the alleged conduct seems to clearly fit that definition.”

The USS Nicholas piracy trial would be the first in the U.S. in at least a century, according to legal and maritime scholars. Other countries have recently held piracy trials, but one of the last in the U.S. was in 1861, when 13 Southern privateers aboard the Savannah were prosecuted in New York City. The jury deadlocked and the men were later exchanged with the South.

The defendants in the USS Nicholas case are also charged with plundering, firearms counts, assault and other charges.

These cases are part of a larger U.S. policy debate over how best to deal with the insurgents and criminals in Somalia, a poor and barely functioning nation that is suspected of harboring al-Qaida-linked terrorists.

Somalia-based piracy continues despite an international flotilla that has reduced the number of hijackings in the Gulf of Aden and forced pirates farther south. Somalia has not had an effective government for 19 years, one of the reasons piracy has been able to flourish.

Somalia’s first secretary to the U.N. mission has called the international prosecution of Somali pirates “vigilante justice.”

“I find it difficult to believe that the international community is rendered helpless by a bunch of teenagers, chewing khat (a narcotic), and armed with AK47s and RPGs,” Omar Jamal said.

 

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MARITIME | In Defense of Environmental Regulations

Dennis Bryant | marinelink.com | 2010.10.12

While it may be an unpopular opinion, I support marine environmental regulation – so long as it is sensible, fair, well-researched, and structured so as to result in minimal unintended consequences.  Knee-jerk regulation, on the other hand, is invariably counterproductive.

Examples illustrate these points.

The issue of whether oil tankers should be constructed with double hulls was debated within the maritime industry for years.  Only a few shipowners were sufficiently intrepid to actually build such ships on an experimental basis – and they operated at a financial handicap as compared with their competitors who operated cheaper, simpler vessels.  Immediately after the Exxon Valdez oil spill, the United States Congress enacted the Oil Pollution Act of 1990 (OPA 90), which, among other things, mandated that in order to trade to the US, new tankers had to be constructed with double hulls and single-hull tankers had to be phased out.  Some in the industry proclaimed the end of the US oil trade.  Instead, ship builders and naval architects got to work.  OPA 90 did not define what constituted a double hull.  The International Maritime Organization (IMO) had been studying the issue for some time and had developed guidelines.  The various classification societies had modest experience in such work.  In developing its regulations to implement OPA 90, the US Coast Guard worked with the IMO, the class societies, and the maritime industry to forge a set of standards that were acceptable to the principal players.  The IMO eventually amended the MARPOL Convention in a consistent manner.  Single-hull tankers are now almost all retired and the world’s tanker fleet is the safest ever.  If this process had been left solely to the commercial sector, the transition from single-hull to double-hull tankers might never have occurred.  Once the new requirement became universal so that everyone was in the same boat, opposition to the double-hull largely (but not entirely) faded.  Some (including myself) contend that the requirement should have recognized the possibility of alternative hull designs.  The important factor, though, is that the requirement got the argument off top-dead-center and the tanker industry is better for it.

A recent example of regulation run amok is provided by the Environmental Protection Agency (EPA) proposal to prohibit ocean-going vessels from discharging treated sewage within the marine waters of California.  While this action has met with wide approval from environmental advocacy groups and from the State of California, it does not seem sensible, fair, well-researched, or structured to as to minimize unintended consequences.  While reducing the volume of sewage (treated or untreated) entering the marine waters of California is certainly a good concept, it is unclear how ocean-going vessels got singled out to bear this burden.  These ships are not the largest source of sewage discharges into California waters.  Various municipalities, residences, and facilities dump raw or partially treated sewage into these waters on a routine basis.  The majority of vessels operating in California marine waters are not ocean-going.  While there are a handful of cruise ships operating out of California ports that carry several thousand passengers each, the average merchant vessel has a crew of about twenty, less than many charter fishing boats.  These non-ocean-going vessels will not be subject to the “No Discharge Zone” proposed by the EPA.  Unlike the ballast water management regulations, the EPA sewage proposal has no exceptions for emergencies.  If an ocean-going vessel is unable to discharge its processed sewage ashore before the storage tank reaches full capacity, the master will have two choices: either violate the regulation by discharging into the surrounding waters, or put the vessel and its crew at risk by overloading the sewage treatment system.  If the sewage discharge prohibition is appropriate, then all should participate.  It is unfair to play favorites and impose a regulatory and economic burden on one party while exempting all others.  At a minimum, the EPA should analyze the situation and clearly identify the entities discharging sewage into the marine waters and the steps that can reasonably be taken to reduce or eliminate that impact.

There are numerous additional examples that can be identified on both sides of this divide.

The oily water separator (OWS) is an excellent tool for reducing operational discharges of oil from ships.  The IMO several years ago upgraded the standards for new OWSs to account for technological advances.  Unfortunately, it failed to adopt a phase-out schedule for older OWSs.  Thus, existing ships can continue to carry decrepit equipment that not only doesn’t work well, but forces chief engineers to adopt practices that may violate other laws.  On a different note, both Michigan and California adopted outlandish standards for ballast water discharges for which there is no existing technology.  California has been forced to extend the deadlines for its standards, hoping that its requirements and reality will eventually coincide.  This is not a responsible approach for lawmakers and regulators.  The defenses of legal and factual impossibility come to mind.

The bottom line is that regulation can be invaluable in protecting the marine environment.  It is a powerful tool which, if employed wisely, can achieve improvements otherwise unobtainable.  If wielded unwisely, environmental regulations can result in wasted monies, counterproductive bureaucracies, and disrespect for the law.  The major responsibility for wise environmental regulation lies with legislators and regulators, but environmental advocacy groups and the marine industry have important roles also.

Environmental advocacy groups should avoid pushing for new rules that are unwise, unfair, and unattainable.  The marine industry should avoid opposing every new proposal without regard to its benefits.  All parties must work together to make reasonable progress in improving the marine environment.

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LAW | Piracy charge did not fit the facts

The dismissal of piracy charges against six Somalis has sparked outrage in some circles, but the judge was simply following the law

ON August 17 charges of piracy against six Somalis were dismissed in the US. The cry is universal outrage. They are pirates. How can this be? The sky is falling. The four horsemen are coming over the horizon.

However, Judge Jackson was exactly right, despite academic twittering and emotional handwringing. My good friend Dennis Bryant, an American observer, reminds us that this was a very narrow ruling on a very narrow question. The world will not end.

So avast chattering. Listen up. Jackson ruled neither knowing nor caring about the claque. He and the case were governed by law. He looked at the facts and the law of piracy. He protected the rights of all parties. He found no piracy by law.

The facts: The defendants, in a small craft in the Gulf of Aden, were approached by a US warship which took small arms fire and returned it with naval gunfire, killing one passenger, burning the craft and observing an AK-47 in it. The survivors were captured and held; they had not attempted to board the warship.

The defence asked for summary judgment on the law as misapplied. The law arose in 1819: “[W]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought to or found in the United States, shall be imprisoned for life.” Read that three times putting your finger under the words and moving your lips. The congress that wrote the law is the problem: not the ruling.

The law: congress is empowered to “define and punish piracies and felonies on the high seas”; international law — formerly the law of nations — is law separate from domestic US law and is customary law; in civil cases when customary international law is invoked “courts must proceed with extraordinary care and constraint” because there is no definitive source of that law; nations abide by its principles from legal obligation and mutual concern; there is an hierarchy of factors in interpreting customary international law; past decisions must be unambiguous and clear.

The criminal law is strongly protective: a defendant has benefit of due process; there are no snap judgments; a defendant cannot be criminally liable if he did not understand what acts were proscribed; a law cannot be enforced in court if it is so vague ordinary people must guess at its meaning; criminal statutes must be read and construed strictly; no novel or creative reading of a criminal statute is allowed as the government would have it.

A statute is interpreted as at the time enacted — 1819, not 2010. The US relies on prior law to refine and interpret statutes. There is one case in US law which has looked directly at the definition of piracy. It was appealed. The Supreme Court in 1820 defined piracy simply: “robbery” or “forcible depredation” at sea.

That is piracy in domestic law or in the law of nations. Subsequent law has agreed. Bales of hay have been made of “piracy as defined by the law of nations” by the chattering class. No deal. The government tried to use current definitions. It failed.

Even if it had not, the court found the current definition of piracy is unsettled law. Therefore Judge Jackson — as required by law — relied on the law of 1820 and applied it to the charge of piracy.

The government wanted to expand piracy to include forcible depredation as any act under the piracy statute, not simply robbery at sea. It provided no criminal cases for that.

In civil cases “piratical acts” require intent to plunder. However, there is no civil offence for attempted or intended piratical acts. Other law the government supplied was unclear. Therefore, the court concluded the government’s attempt was not persuasive. Further, its definition of “depredation” requiring assault or aggressions was not in the law dictionary. The court rejected the concept that any act at all was forcible depredation.

Another statute says it is an offence to attack a vessel with the intent to plunder. The case law says however, that just because attempt to plunder is law, the piracy statute is not necessarily the same thing. The government charged the defendants with offences under that law as well.

The Congress is presumed to know what the law is at the time it passes a statute. This implies in law that two statutes in the same code should not be read as to make superfluous another.

The upshot here: if you want to be a pirate, you must rob or be forcible and depraved aboard. Just because one is in a small craft in the Gulf of Aden wearing a pirate suit and looking like a pirate does not make one a pirate.

The court further looked at the provocation by the defendants. It simply did not merit life in prison for piracy when any provocation will do — even a slingshot or, one would think, a spat wad of gum.

So what do we have? A judge followed the law. A charge did not fit the facts. Each party was protected. A fair and impartial hearing was held. The rule of law works. These men could not be charged with piracy because as a matter of law they committed no piracy.

Hats off. Judge Jackson has furthered the rule of law.

John AC Cartner is a maritime lawyer practising in Washington, DC. He holds the US Coast Guard’s unrestricted master mariner certification and is the principal author of The International Law of the Shipmaster (2009) Informa/Lloyds. jacc@shipmasterlaw.com

Source: LLOYD’S LIST

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