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Article: Marauders in the Courts: Why the Federal Courts Have Got the Problem of Maritime Priacy (Partly) Wrong

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In December 2004, Los Angeles couple Jean and Scott Adam embarked on a round-the-world voyage on their yacht, the s/v Quest.1  They hoped to spend their retirement on the seas, engaging in, as they put it, “friendship evangelism—that is, finding homes for thousands of Bibles, which have been donated through grants and gifts, as we travel from place to place.”2  In February 2011, their vessel was boarded by Somali pirates almost 200 nautical miles off the coast of Oman.3  The U.S. Navy responded immediately, sending an aircraft carrier, a guided-missile cruiser, and two guided-missile destroyers to the Quest’s rescue.4  The Navy made contact with the pirates by bridge-to-bridge radio, and two pirates boarded the U.S.S. Sterett to engage in direct negotiations for the hostages’ release.5  But at 8 AM on February 23rd, a rocket-propelled grenade was fired from the Quest at the Sterett and gunfire erupted aboard the yacht.6  A Special Forces Team arrived moments later to find all four members of the Quest’s crew shot by their captors.7  All four perished.8  Fourteen of the Quest’s assailants—thirteen Somalis and one Yemeni—were transferred to federal custody and brought to Norfolk, Virginia, where federal criminal proceedings were initiated against them.9

The pirating of the Quest was but one of a record 163 attacks by Somali pirates in the first six months of 2011;10 yet it captured the nation’s attention unlike any of the others.10  The human drama that unfolded during the four-day standoff was the stuff of Hollywood movies.  But a courtroom drama is about to unfold in the wake of the Quest that might well prove a tragicomedy.  Notwithstanding the ubiquity of maritime piracy as a fixture of popular culture and the antiquity of piracy as an international and municipal legal offense, a debate is presently underway over what, exactly, piracy means.

The District Court of the Eastern District of Virginia offered two conflicting definitions of piracy in as many months. In United States v. Said, Judge Raymond A. Jackson held that robbery is an essential element of piracy.11.))  Judge Mark Davis adopted a far more expansive definition of piracy in United States v. Hasan.12  Under the Said decision, the attack on the Quest would not likely qualify as a pirating, a proposition that calls to mind a 1934 ruling of the House of Lords:

When it is sought to be contended . . . that armed men sailing the seas on board a vessel, without any commission from any State, could attack and kill everybody on board another vessel, sailing under a national flag, without committing the crime of piracy unless they stole, say, an article worth sixpence, their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.13

This article yields to the temptation of common sense in demonstrating, with scholarly rigor, that the Said court got its definition of piracy terribly wrong.  Part I offers an account of the dual nature of maritime piracy as both an offense under customary international law and an offense under the municipal law of the United States. It shows how these two legal approaches to maritime piracy have been integrated over time through successive acts of Congress, and also explains the jurisdictional implications of early American piracy cases.  Part II examines the Said and Hasan cases as part of that juridical tradition.  It argues that the Said ruling was predicated on a myopic view of the treatment of maritime piracy by U.S. law and policy, and must therefore be rejected. The article concludes with an assessment of the implications of the Somali piracy cases from the standpoint of judicial policy, both domestic and international.

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Tara Helfman: Assistant Professor, Syracuse University College of Law; Yale Law School, J.D.; University of Cambridge, M.Phil., Political Thought & Intellectual History; University College London, M.A., Legal & Political Theory.  The author wishes to thank Dean Hannah Arterian of the Syracuse University College of Law for the generous research grant that made this article possible.  She also wishes to thank Rakesh Anand, David Crane, Evan Criddle, Isaac Kfir, Kevin Maillard, Edgar J. McManus, Matteo Taussig Rubbo, and Terry L. Turnipseed for their invaluable comments as the article took shape.  Any faults are attributable solely to the author.

  1. Jean Adam, Welcome to s/v Quest Adventure Log, S/V QUEST, http://www.svquest.com (last updated Dec. 21, 2010). [↩]
  2. Id. [↩]
  3. Department of Defense News Briefing with Vice Admiral Fox via Telephone from Bahrain on Somali Piracy Aboard the S/V Quest, U.S. DEP’T OF DEF. (Feb. 22, 2011), available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4774. [↩]
  4. Id. [↩]
  5. Id. [↩]
  6. Id. [↩]
  7. Id. [↩]
  8. U.S. DEPARTMENT OF DEF., supra note 3. [↩]
  9. Indictment, United States v. Salad, Case 2:11-cr-00034-MSD-DEM (E.D. Va. Mar. 8, 2011), available at http://www.haguejusticeportal.net/Docs/NLP/US/Saladndictment.pdf. Two of the defendants pled guilty to charges of piracy under the law of nations and hostage-taking resulting in death. One pled guilty to having fired the rocket-propelled grenade launcher at the U.S.S. Sterett. Three Somalis Plead Guilty to Charges Relating to Piracy of Quest, NEWSROOM MAG. (May 20, 2011, 6:00 AM), http://newsroom-magazine.com/2011/executive-branch/justice-department/fbi/three-somalis-plead-guilty-to-sv-quest-piracy/. [↩]
  10. See, e.g., Americans slain by captors on hijacked yacht; pirates killed, arrested, CNNWORLD (Feb. 22, 2011), http://articles.cnn.com/2011-02-22/world/somalia.us.yacht_1_maersk-alabama-somali-coast-somali-pirates?_s=PM:WORLD; Four Americans Killed on Yacht Hijacked by Somali Pirates, FOXNEWS.COM (Feb. 22, 2011), http://www.foxnews.com/world/2011/02/22/americans-aboard-yacht-captured-pirates-reportedly-killed/; Four American hostages killed by Somali pirates, MSNBC.COM (Feb. 22, 2011, 3:15:02 PM), http://www.msnbc.msn.com/id/41715530/ns/world_news-africa/t/four-american-hostages-killed-somali-pirates/. [↩]
  11. 757 F. Supp. 2d 554, 560 (E.D. Va. 2010) (citing United States v. Madera-Lopez, 190 Fed. Appx. 832, 836 (11th Cir. 2006 [↩]
  12. See generally 747 F. Supp. 2d 642 (E.D. Va. 2010). [↩]
  13. In re Piracy Jure Gentium, [1934] A.C. 586 (P.C.) 594 (U.K.). [↩]
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