Archive for category Letter Of Marque

History: Privateers Reenact Battle Of The War Of 1812 In Boston Harbor

Happy 4th of July and I thought this was a cool little deal to put out there. Private industry or privateers were very much a part of this country’s war for independence. It is great that we have such a strong military now, but it is equally great that private industry is able to contribute if need be…and our early days is proof of that. –Matt


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Books: The Privateering Stroke, By Capt. Michael Rustein

Henry Adams stated flatly that “the privateers contributed more than the regular navy to bring about a disposition for peace in the British classes most responsible for the war.”

For those of you that have been following along with the blog’s focus on privateering, letter of marque and reprisal, and offense industry, then you will know why this book would interest me. I have not had a chance to check it out yet, but from the sounds of it, it was written by a privateering ‘maven‘.

The author has actually built a schooner called the Fame, based on the first privateering vessel to capture a prize during the War of 1812. He has written several books on the subject and even has a business that teaches the public the history and the workings of a privateer vessel. I would say that would be defined as pretty passionate about the subject. lol

Probably the most interesting aspect of this book from the description below, is the author’s focus on how important privateers really were during the war. This was the ultimate in old school privatized warfare and offense industry in overdrive.

An entire industry focused on attacking the weakness of an enemy, and Britain’s weakness was their commerce/trade. There is no way our navy and privateers could have taken on the Royal Navy directly, so instead we did like most small disadvantaged forces would do in that situation, and attacked their poorly defended commerce/trade. Check this quote out.

Deprived of customs duties, the United States government was in dire straits by the end of 1814. Had the conflict continued, the nation would have been incapable of defending itself without a central bank, new taxes, and conscription. Meanwhile, America’s privateers were waging a highly effective war against British trade. They captured an estimated 2,000 prizes worth $40 million, sent insurance rates to unprecedented levels, and drove up prices at a time when Britain’s economy was groaning under the strain of two decades of warfare. The British public was outraged; merchants bombarded the government with protests and appeals. With the United States incapable of maintaining the initiative in Canada, privateering became the nation’s last, best, and only offensive weapon. 

Pretty neat and this book would be another good one to check out. Especially if you are a student of ‘offense industry’ or are interested in the letter of marque concept. This would also be a good read for those of you interested in naval history and guerrilla warfare. –Matt

The Privateering Stroke

By Capt. Michael Rustein
Book Description
Publication Date: March 25, 2012
High school and even college textbooks oversimplify the War of 1812 — when they don’t ignore it completely. Popular histories emphasize the military as opposed to the economic and political aspects of the war. The U.S. Navy’s role has been written about ad nauseum. Meanwhile, we are still waiting for a definitive work on the equally important contributions of American privateers. While the Navy’s outstanding performance in single-ship engagements remains a source of national pride, those victories did not change the course of the war one iota. Had Constitution defeated a dozen British frigates, the thousand-ship Royal Navy would still have blockaded our coasts, strangled our commerce, bottled up our warships, and hunted down those that escaped. Even her former commander, Tyrone Martin, conceded that Constitution’s victories were “no more than pin pricks” that “had no direct effect on the course of the war.”

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Quotes: Secretary William L Marcy On The Paris Declaration And Privateering, 1856

Lately I have been delving into privateering history, and Secretary of State William L Marcy comes up now and again. Even John Arquilla was quoting stuff about Marcy in some of his work, so I thought it would be cool to do some digging.

I was able to find an old article written about Marcy’s mission to the Congress of Paris, and the debates he was having with the other members of that congress about the terms of the Paris Declaration Respecting Maritime Law. This of course is the treaty that banned privateering.

With that said, Secretary Marcy is the reason why the US is ‘not’ a signatory of this treaty.  His reasons were pretty simple as the quote below says.  Privateering is a tool of warfare that smaller sovereigns can use, that lack the resources for creating navies that can compete with the larger countries with more powerful navies. It was the great equalizer of the time, and the US was not about to give up that tool of warfare.

Privateering is also an ‘offense industry’ that creates an industry that attacks weakness with strength (Sun Tzu). That ‘weakness’ is a poorly defended and dispersed commerce (and logistics/source of wealth) of an enemy, and the ‘strength’ is an industry that only grows with each prize that it captures. (today’s piracy is a prime example)

The strength does not come from one vessel, but of thousands of vessels, all hunting and canvassing the seas, looking for their prey. And all of these vessels are competing with each other over enemy prizes. The successful privateers grow their fleets and expand upon their winning strategies, while the competitors of these successful privateers watch and learn and try to mimic what they are doing to be equally successful.

This system of free market warfare also works well with The New Rules of War that John Arquilla and David Ronfeldt put together.(watch this video about the concept) That privateers are the ‘small and many’, that go up against the enemy’s ‘large and few’.  Privateers also fit well within the concept of ‘swarming’, because privateers do not set out in large battle groups or flotillas–they attack from all and any directions in small groups, and at the time and choosing of each individual privateer. There is no large navy, for a large navy to attack….

Although under the swarming concept, this industry kind of shuns large companies to do this.  A swarm has to be cost effective, if it is to be done by a single privateer company. Most would prefer to go after low hanging fruit or easy prizes. But if the money was there, swarming could easily be cost effective. Today’s pirates are experimenting with swarming and the market will determine if this is a profitable venture.

On the other hand, an industry of thousands of privateers versus the commerce of an enemy totally presents itself as a swarm. No one controls it’s actions, it attacks when and where it wants. There is no admiral directing the attacks of all of these vessels, and that is what makes it a unique attack group. The only controls in this type of industry, are a simple Letter of Marque.

Most of all, the concept of ‘finding’ works really well with privateers, because each private vessel is purely focused on ‘finding’ prizes. Their livelihood depends upon it, and those captains that are best at finding prizes, wins. Investors hire them specifically because of their success rates, and they depend upon these captains for profit. An example would be commercial fishermen, and how important a good captain is for finding fish and to covering the costs of investment–both internal and external.

All of these attributes combined, is what makes privateering an asset for nations. Secretary Marcy knew this as well, and our leaders knew this when they decided not to be a signatory to the Paris Declaration.

Finally, I mentioned before that private industry was important during times of war, because this nation uses an All Volunteer Military system. The problem with this system is that during the post war era, a citizenry demands a peace dividend, and their politicians give it to them. The military is then reduced in size and cost, and everyone is happy–until another ‘9/11’ happens.  And then we must go to war with the military we have, and not the one we wished we had.

Or during that war, it becomes unpopular for whatever reason–like it drags on and on, or there is an uptick in deaths, or the economy is doing well.  Finding volunteers during those times is tough. Or when a nation’s war plans becomes a victim of politics, with changing leadership or alliances crumbling because of issues in their home countries, and manpower issues arise during those time periods.

Man power requirements are always changing during a war, and war planners and politicians need tools to meet the needs of those changing man power requirements. Using privateers and private industry during times of war is a tool that gives our leaders the means to deal with the ups and downs, beginnings and ends of war or multiple wars. Private industry is what makes an All Volunteer Military work in this kind of environment, pure and simple. I think Secretary Marcy and others realized this back then about privateering, and today’s leaders realize how important private industry is for our current and future wars. –Matt

*For an excellent history about the Paris Declaration and why the US did not sign it, check out this downloadable book.  It is called “The Abolition of Privateering and the Declaration of Paris”, written in 1887 by Francis Raymond Stark.



They tell us, “reserving the right to make what havoc our overgrown navies may choose to inflict upon your tempting commerce, we demand that you exempt our commerce from the only means of retaliation you possess, the system of privateering.”
We reply, “The terms are unfair. Equalize them by declaring your public and our private armed vessels under the same prohibitory rule, and we are with you. Otherwise, we are constrained to deny that privateering is or ought to be abolished.”


quote of Secretary William L. Marcy, about the Congress of Paris and terms of treaty, August 12, 1856.


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Letter Of Marque: Title 33, Chapter 7 Of The US Code–Regulations For The Suppression Of Piracy

Yep, this exists, along with Article 1, Section 8, Paragraph 11 of the US Constitution. I thought this was pretty cool, because we definitely have laws on the books for getting private industry involved with the suppression of piracy.

I also liked these laws, because they defined captures. That the US can authorize private industry for capture of pirates. This is important to note, because at this time, there is only a Defense Industry in place for the suppression of piracy. Meaning, companies are only providing guards to defend vessels with the possible use of force. No one has the authority to arrest or capture pirates.  So basically we have a system in place that only allows for the ‘killing’ of pirates in the course of the defense, but god help us if private industry actually arrested folks?

By arresting pirates, we can find out information about pirate operations and we can keep these thugs out of the business of piracy by letting them rot in a prison. It would also give companies some authority for when pirates surrender. An effective Offense Industry could profit from the capture (or killing if pirates fail to surrender and become violent), and thus removing those threats from the seas. I should also note that the US congress used to pay privateers for the capture of British sailors and seamen during the War of 1812 using a bounty system. In other words, companies must be compensated if you want them to actually arrest and detain pirates. Without incentive and and well defined legal authority, ship owners and security guards on these boats will want nothing to do with capturing anyone.

Or we can continue to promote this current Defense Industry where companies either kill or wound pirates in fire fights and then allow pirates to escape–so they can go attack some other vessel. Hell, why would companies be compelled to kill pirates in the first place with such a system?  Killing pirates or arresting them, would eliminate the sweet deal ‘Defense Industry’ we have that benefits from having active pirates.  Something to think about when talking about when dealing with today’s piracy issues. –Matt


Title 33, Chapter 7 Of The US Code– Regulations For The Suppression Of Piracy

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Maritime Security: The Insanity Of ‘Catch And Release’

A EU NAVFOR spokesman was unable to provide Sky News with a figure for how many suspected pirates had been returned to Somalia without charge.
“I don’t have the number for those returned to Somalia – a number of reasons but largely because it was not initially considered important to maintain the number,” the spokesman told Sky News. -Link to quote here.

This is the part of our global anti-piracy campaign that absolutely kills me. It’s as if these navies are sport fishermen, and they are releasing their catch so it can grow bigger, and spawn more fish, so they have more fish to ‘catch and release’ in the future.

Now of course we are dealing with the legal mechanisms, or lack there of, of each country that has laws that deal with piracy.  So when a navy captures a pirate or suspected pirate, those navies are operating under the guidelines of those laws. Because these countries have not implemented sound anti-piracy laws, we unfortunately see pirates captured and then release because of some legal mistake or loophole. Or, those that did the arresting of the pirates did not capture and detain properly, or properly document or obtain witnesses, etc.

So who are the worst offenders of ‘catch and release’?  That is a good question and I tried to do a little search for any comprehensive reports on this problem. Below, I have found a few recent articles on Canada and the UK, and their deficient legal mechanisms in place for prosecuting pirates. Here is a sample for the UK.

Fewer than one in every five suspects picked up around the Horn of Africa over the past four years have been prosecuted for piracy-related offences, the Ministry of Defence has admitted. The figures will fuel growing criticism of Britain’s involvement in the anti-piracy operation.
Official MoD figures obtained by The Independent on Sunday show the Royal Navy has boarded 34 vessels suspected of piracy in the Indian Ocean since volunteering to lead Operation Atalanta, the EU’s first naval mission, in 2008. However, on all but six occasions, the gangs rounded up were taken to the nearest beach and released – despite often being caught with equipment including guns and ladders. A list of boardings since November 2008 shows that the navy has detained a total of 279 likely pirates but allowed 229 of them to go free, some in groups of up to 17 at a time. Fifty more were sent on for prosecution in Kenya, the Seychelles or Italy.

Amazing. This is just insane, and this practice of catch and release must end.  Also, I wanted to mention that all the nations involved have had similar catch and release stories, so the UK or Canada are not the only ones. I have been documenting this for awhile now, and it is very frustrating.

I also wanted to mention that we are missing opportunities of detention by not allowing private security companies to detain and arrest these pirates. Every engagement could turn into an arrest and a removal of these criminals off of the high seas. By issuing Letters of Marque to PSC’s or the captain on these boats, nations could give them the same arresting powers that their navies currently have.

Within the terms of the LoM, you can define exactly how arrests are to be done and the specific rules for detention and transportation of prisoners. A country can also offer bounties for each pirate that was legally detained and prosecuted. We have GPS and video filming capability, and these can all be tools required under the terms of the LoM in these modern times.

As it stands now, security companies are executing the ultimate in extreme justice on the high seas. That would be actually killing pirates during the defense. So the question I have is why is killing pirates more appropriate than detaining them? If anything, a security company should have the option of capturing those pirates instead of just killing them. It would also take a load off of the larger navies who are tasked with anti-piracy.

So why capture them alive? Well, for intelligence purposes, a pirate that is alive and talking, is far better than a dead one. Also, by capturing them, we take them out of the game.  Of course killing them takes them out of the game permanently, but sometimes killing these pirates is not feasible within the course of current rules of engagement.

In one scenario, what if the pirates attacking the ship decided to stop their attack and just give up for whatever reason? Or during their attack, their engine fails and they get within killing range–so they raise their white flag right there. Does an armed guard execute these pirates who are trying to give up, or do they detain them? Or do we just let them go?  And also, if that pirate vessel is no longer sea worthy because armed guards made it so, and now pirates are sinking, is there any obligation at all to save and detain those pirates? These are all questions that could be answered with an effective Letter of Marque regime and bounty program, that makes capturing pirates something of interest to security companies on these vessels.

I mention bounty, because even with a LoM, security companies will not be entirely motivated to detain. An effective bounty or reimbursement program would be necessary to make up for the costs of such an offense industry. You must also incentivize the process in order to create a vibrant offense industry. A company would be risking life and limb to go that extra mile to capture a pirate crew, so companies must have some mechanism in place for compensation.

So those are my thoughts on the whole thing. The laws dealing with piracy need to catch up, and we also must look at legal mechanisms that will help to make the elimination of piracy more efficient and effective. –Matt


Navy frees four out of five suspected Somali pirates
Britain criticised for ‘particularly poor record’ in international crackdown on Indian Ocean piracy
Brian Brady
Sunday, 8 April 2012
Hundreds of suspected pirates arrested by the Royal Navy off the coast of East Africa have been immediately set free – to continue threatening merchant vessels in one of the world’s busiest shipping lanes. Fewer than one in every five suspects picked up around the Horn of Africa over the past four years have been prosecuted for piracy-related offences, the Ministry of Defence has admitted. The figures will fuel growing criticism of Britain’s involvement in the anti-piracy operation.
Official MoD figures obtained by The Independent on Sunday show the Royal Navy has boarded 34 vessels suspected of piracy in the Indian Ocean since volunteering to lead Operation Atalanta, the EU’s first naval mission, in 2008. However, on all but six occasions, the gangs rounded up were taken to the nearest beach and released – despite often being caught with equipment including guns and ladders. A list of boardings since November 2008 shows that the navy has detained a total of 279 likely pirates but allowed 229 of them to go free, some in groups of up to 17 at a time. Fifty more were sent on for prosecution in Kenya, the Seychelles or Italy.
The Government has acknowledged the “catch and release” strategy is often an “unsatisfactory outcome”, although ministers also maintain it helps to disrupt pirate networks.

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Publications: Structuring A Sustainable Letters Of Marque Regime, By Lieutenant Todd Hutchins

A big hat tip to David Isenberg for finding this paper and writing an excellent article about it. Also bravo to the California Law Review for publishing this paper and hopefully between this site and David’s, we can really promote this thing. I am always on the lookout for modern legal interpretations of, and the possible uses for the LoM.

It is also cool that the author of this paper is an officer in the US Navy and a current JAG student. Maybe he can come up and talk a little about any feedback he has received for this paper, and the reason why he chose this particular topic.

Now for a couple of points of interest. Lt. Hutchins is more focused on an international LoM system, as opposed to countries issuing LoM’s. You know, I don’t think this approach would work, just because personally speaking, I would rather answer to the laws and customs of my own country versus answering to an international court. What is to prohibit any biases towards me and my nationality in such a international court?  So personally, I would much rather have a LoM issued by a country whose legal system I trust and would give me the best odds in a trial of my peers–from my country.

I still think companies would seek an internationally issued LoM. Especially if the profit margin was there. If it is not, then the risk will definitely not equal the reward and this industry will not thrive. You really need to make the enemy into the ‘Blufin Tuna’ or ‘Buffalo’ of prizes.

Which brings me to my next point. Offense Industry requires a strong profit motive for the destruction or capture of a declared enemy. The reward must equal or be greater than the risk in this case. I tend to lean towards greater than the risk, just because we want extreme competition for this highly valuable enemy.

So the question with this is if the enemy has enough assets that can be seized and decided upon in a prize court. The guys with the money are on land or hiding out in Dubai or wherever. How will a company be able to seize their assets on the international stage?

Now privateers like Captain Morgan did do land raids to capture enemies and their assets. He was quite successful at it, and if we were to target Somali pirates, then allowing companies to raid wealthy Somali investors in Somalia or elsewhere would be key. But then that would require special agreements with those countries that these investors are hiding in. The LoM would have to be very specific and comprehensive in this regard.

Or, the issuing party could throw in bounties and create a false market out of the whole thing. To artificially attach value to these targets, as well as allow companies to seize assets. That to me would be optimum, just because you really have to sweeten the pot for companies to get involved with this thing. Perhaps the 10 percent that governments would receive via prize courts, would go back into the pot for bounties and costs of running prize courts?  Raising money for bounties is a factor when creating artificial values of targets.

I also applaud the author for identifying how expensive the current Defense Industry is for maritime security. I have mentioned in the past that DI’s are costly, and they do nothing to eliminate the problem. If anything, DI’s profit from the continuation of war or piracy, and it is against the best interest of these participants to remove the very thing that gives them their reason for existence. But DI’s have their place, and I believe that in order to reduce the costs of DI, you need to also implement an offensive capability. You will always need guards to protect that in which you love, but you must also have a force tasked with hunting the bad guys–to keep them off balance and put them on the defense. And ultimately, you would like to make piracy into a very unprofitable game for all parties thinking about getting into that business.

Finally, I would like to add one more deal to this review, just to emphasize the significance of profit and reward in warfare. This quote comes from Sun Tzu.

Now in order to kill the enemy, our men must be roused to anger; that there may be advantage from defeating the enemy, they must have their rewards…Therefore in chariot fighting, when ten or more chariots have been taken, those should be rewarded who took the first. Our own flags should be substituted for those of the enemy, and the chariots mingled and used in conjunction with ours. The captured soldiers should be kindly treated and kept….This is called, using the conquered foe to augment one’s own strength.- Paragraphs 16, 17, 18, Chapter 2, ‘Waging War’.

Even Sun Tzu understood the value of reward in war.  Might I add that the interpretation of ‘rewards’ refers to spoils, and not some ideological reward of just ‘winning’. Although that has it’s place for incentive, but feeling good about a win does not pay the bills as they say. lol

I should also note that Sun Tzu also delved into the concept of the cost of protracted war. It is expensive, and if there is no element of a strategy focused on eliminating an enemy, and industry is only used for defense, then the costs will continue to drain the treasures of those nations and companies with interest in the matter.

There is no instance of a country having benefited from prolonged warfare…It is only one who is thoroughly acquainted with the evils of war that can thoroughly understand the profitable way of carrying it on. –Paragraphs 6,7, Chapter 2, ‘Waging War’.

That pretty much sums up why wars should be fought as quickly as possible, and why there should be thought about creating an industry that profits from ending it, and not ‘carrying it on’. Something to give balance or even counter strong DI’s that come about from prolonged warfare. –Matt



Structuring A Sustainable Letters Of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pira…

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