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Divided Verdicts in U.S. Over Piracy Laws

A split verdict has emerged in the U.S. on the issue of bringing defendants involved in acts of piracy to justice under the law that governs piracy rather than the law that governs attempted piracy.

Judge Mark Davis of the federal court in Virginia last week denied a motion brought by five Somali men accused of an unsuccessful attack on the U.S. Navy craft Nicholas in March to dismiss the piracy count from their five-count indictment.

The upshot is that the five men, having pled not guilty, will now stand trial on all five counts.

Judge Davis’ ruling is at odds with a ruling in September in the same court. Judge Raymond James, a contemporary of Judge Davis, held in a very similar case involving an unsuccessful attack on the U.S. Navy vessel Ashland that six Somali men up for trial in that case could not be tried under the piracy law, but their cases could go forward under the lesser law that governs attempted piracy.

The mitigating factor is that the accused pirates never attempted to board either Ashland or Nicholas, unlike last year’s criminal case involving Maersk Alabama where the piracy statute was used without a hitch.

Judge James’ ruling in the Ashland matter was seen as potentially important case law. Just as punishment for attempted but unsuccessful murder is less than that for a proper murder, the accused Ashland pirates, too, were eligible for a lesser standard of judgement, he held. However, U.S. government prosecutors appealed Judge James’ verdict, and the Ashland trial is on hold until the appellate court disposes of this appeal.

In the Nicholas case, Judge Davis held that the definition of piracy should be determined not just as a matter of interpreting a U.S. statute, but by reference to customary international law. According to Judge Davis, persons who fire upon a U.S. Navy frigate on the high seas with AK-47s or other weapons can rightly be charged with piracy.

Legal circles said the clear split between two equally ranking judges from the same federal court makes this a development to follow over the coming months.

Blank Rome partner John Kimball expects the Nicholas defendants to be convicted under the count of piracy, even as the industry awaits the appellate verdict in the Ashland case.

“Like any criminal trial, the burden is on the government to prove the guilt of the defendants. But the [Nicholas] trial will begin with a legal ruling favourable to the U.S. government’s position,” Mr. Kimball said.

Since the Ashland trial was put on hold before it began, and the Maersk Alabama trial in New York never took place because the defendant pleaded guilty, the Nicholas trial becomes the first courtroom action of this sort in modern history that involves pirates.

Mr. Kimball expects the Nicholas verdict to be appealed, no matter which side wins. This makes it likely that the issue of whether the statute that governs piracy is deemed an appropriate law to convict pirates that do not actually commandeer a ship would not be settled for quite a while.

Regardless of how the piracy issue turns out, the 11 accused men in both cases were likely to go to jail, possibly for decades, Mr. Kimball said.

"Divided Verdicts in U.S. Over Piracy Laws," by Rajesh Joshi first appeared in Lloyd's List on November 9, 2010. www.lloydslist.com.

Reprinted with permission from Lloyd's List.