Feral Jundi

Sunday, April 18, 2010

Letter Of Marque: Reconsidering The Letter Of Marque–Utilizing Private Security Providers Against Piracy

   A big thanks to Cannoneer #4 for posting this in the comments of yesterday’s post on piracy. Other folks sent me the same link to this publication and I was very interested in what Theodore Richard had to say.  To say the least, I was impressed and this paper was well researched and footnoted. (as a good legal type paper should be)

   This was also published in a contract law journal, which tells me that the guy writing this believed it could survive the scrutiny of his peers.  This should be of particular interest to any legal specialists in other countries who would like a source to draw from for exploring how the LoM could help your nation.

   What surprised me is the listing of all the companies that were involved with maritime security in Somalia.  I learned a bunch, and he started out with Hart’s operations there.  Theodore talked about the various politics and financing issues that either contributed to the success or failure of these companies, and I found that to be very informative.

   The author also went over how a modern day LoM would look, and all the various uses for the LoM.  He does a great job in calling upon historical reference to support his modern day applications, and what kind of tweaking it would take to make it work.

   Probably my favorite part of the paper is the way he was able to confront the Max Weber argument, and define exactly how the LoM fits into that discussion.

   The other part of this paper that he goes over, that I continue to forget to talk about in my discussions about the LoM, is the license and bonding aspect of modern day privateering. The author uses the example of America’s modern day bail enforcement officers or ‘bounty hunters’, and discusses how this could be a model.  The point of a license is to ensure you know what you are doing, and bonding puts your money where your mouth is. In this case, a surety bond industry for privateers would be needed if the start up company did not have it’s own financing for such a thing. It would also depend upon what the congress wants, because they are the ones who issue the LoM, pay the bounties and run the Prize Courts.      Let me know what you guys think and check it out. –Matt

Edit: 5/31/2010 -David Isenberg posted a deal that discussed this paper and how the LoM could be used for today’s issues with piracy.  Check it out here.

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Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy

Theodore Richard

Public Contract Law Journal, Vol. 39, No. 3, pp. 411-464, Spring 2010

Abstract:

This article examines how letters of marque could be revived to effectively empower the private sector to assist governments in dealing with modern piracy. It examines Somali piracy, the development and different uses of letters of marque and privateers, the current legal framework relating to piracy, Somalia’s decade-long experience with maritime security contractors, the use of maritime contractors outside of Somalia, and addresses concerns involving private maritime security. The article concludes that unless governments provide security everywhere and all the time, the market will demand private security. Governments can effectively manage and control this security in the maritime environment without inventing a new legal scheme out of whole cloth: letters of marque can provide authorization, regulation, and accountability.

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(From the paper)

As privateering matured, privateers faced signi?cant regulations, including highly detailed and precise requirements for legal captures that were, in turn, subject to rigid enforcement in specialized prize courts.  Serious transgressions, like murder, rape, or mutiny, could result in imprisonment or death.

For example, a British privateer captain was executed for robbery constituting piracy in 1759. Improper privateer conduct resulted in the loss of the commission, the bond, and, if applicable, the prize. Thus most British and American privateers in the eighteen and nineteenth centuries were neither dishonorable nor piratical. Importantly privateers played a signi?cant role in ending piracy.

*****

 The western world’s “Golden Age of Piracy” began in 1715, following the 1713 Peace of Utrecht, which brought an end to a decade of European warfare involving all the continent’s major powers. The upsurge in piracy was caused by the unemployment of signi?cant numbers of sailors: the English navy alone discharged 54,000 sailors and privateers could no longer obtain commissions to attack European commerce. This “Golden Age of Piracy” peaked around 1720 and reached an abrupt end in 1725. More than anyone else, the man responsible for bringing this age of piracy to an end was Woodes Rogers.

  In an early example of the “revolving door” between the private and public sector employment, Rogers was a privateer before being appointed  as the Governor of Bahamas, then the pirate capital of the Americas. In order to reform this territory, Rogers dispersed the pirates of the Caribbean with privateers.

  The piracy problem during this era was solved through a combination of tactics:

(1) the British Parliament passed legislation allowing overseas piracy trials, rather than requiring suspected pirates to be brought to England;

(2) captured pirates were publicly tried and executed;

(3) pirates who turned themselves in were pardoned;

(4) naval patrols were increased;

(5) rewards or bounties were promised for the capture of pirates; and

(6) private ships were licensed to attack and capture pirates.

  Of these methods, the last is the most relevant here.

Link to paper here.

Saturday, April 17, 2010

Maritime Security: Top Admiral Says Navy Can’t Sustain Level Of Operations Forever, Shipping Should Think About Armed Guards

Filed under: Maritime Security,Military News — Tags: , , , , — Matt @ 2:37 AM

    “I don’t think we can sustain the level of operation we’ve got down there forever,” said Fitzgerald.

Fitzgerald did not indicate the Navy would abandon the mission any time soon. Instead, his remarks suggest that the answer to piracy may lie elsewhere – especially if it becomes a more violent activity. He says the shipping industry should ensure it is doing everything to deter attacks, including hiring armed security guards, as well as taking other nonlethal actions to thwart pirates.

    “The maritime industry has got to make a decision about how seriously they want to take this on,” he said, in a roundtable discussion with reporters at the Pentagon this week.

***** 

    Could this be a planned strategic communications, to coincide with the Executive Order on piracy?  Because if it is, I am hearing the message loud and clear.  The Navy is getting the memo from DC that chasing pirates costs money, and Destroyers chasing after pirates armed with RPGs in little motorized rowboats is not the most cost effective or best long term solution to the problem.

   But telling the shipping industry to hire security is a solution, and that is exactly what Admiral Fitzgerald said.  So the U.S. administration signs an executive order, and the U.S. Navy is wanting to reduce their pirate hunting operations do to cost or practicality? I guess this means that the Navy will stop playing those ‘Master and Commander’ themed commercials on AFN?  lol –Matt

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Navy looks for ways other than armed patrols to fight Somali pirates

A top admiral says US Navy armed patrols can’t chase Somali pirates indefinitely. Other ways must be found to get to the source of piracy off the coast of Somalia.

By Gordon LuboldApril 16, 2010

The US Navy will be unable to continue long-term operations against pirates off the coast of Somalia, and it’s looking for other ways to solve the growing problem, according to a top admiral.

As Somali pirates continue to find attacking cargo ships in the West Indian Ocean profitable, they have become more and more aggressive, forcing the international community to send naval ships from more than a dozen countries to help patrol the vast waters off Somalia.

(more…)

Maritime Security: The Catch And Release Saga Continues–Kenya Falters On Prisoner Deal

   Thanks to Gary for sending me this.  I read this and laughed, and then I wanted to pull my hair out.  How incredibly frustrating this must be for the navies out there that continue to capture these pirates, and then let them go?  At this point, the only real options available are either to kill these pirates, or let them go back home with a full tank of gas and some food so they can come back and do it all over again.  It is the ultimate criminal venture, because there is no punishment.

    All you have to do is survive the assault on your target, and collect your pirates salary in the form of a ransom.  If the Obama administration wanted to provide some leadership in an area of this issue, squaring away the legal mechanism for dealing with these thugs would have been an excellent move. –Matt

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Diplomatic eruption over piracy aid

April 17, 2010

Kenya’s U-turn over a deal to try Somali pirate suspects is based on Nairobi’s conviction that the European Union has been slow to hand over cash promised months ago, according to people close to the situation.

Diplomatic row erupts over piracy aid payments

Kenya’s U-turn over a deal to try Somali pirate suspects is based on Nairobi”s conviction that the European Union has been slow to hand over cash promised months ago, according to people close to the situation.

The EU is now seeking a meeting with the Kenyan government to find out where it stands, and is actively looking for other countries in the region willing to undertake prosecutions. EU sources insist that Kenya has not made any formal complaints over the issue.

(more…)

Friday, April 16, 2010

Legal News: ‘To Deny Hostage Takers The Benefits Of Ransom’–W.H. Somali Piracy Policy

    U.S. government policy is “to deny hostage takers the benefits of ransom, prisoner releases, policy changes, or other acts of concession,” the White House said in a statement today.

***** 

   This is the only article I could find that listed the administration’s follow up statement on the matter.  This quote was also added as an update to this article. I have not seen a lot of stuff written on this, primarily because it is still kind of new and vague.  A reporter needs to nail down the White House on this, because I am sure there are shipping companies out there just scratching their head.  Does this new order expressly prohibit paying ransoms to pirates or not?

   If a lawyer (in the article below) states that this is vague and could be interpreted one way or the other, I tend to think that the American shipping industry is pretty confused right now.

   It could also mean that this is a hint that the administration is dropping on the US shipping industry.  A hint that says ‘you guys should probably think about doing something other than paying the salaries of Somali pirates with 3 to 5 million dollar ransoms’. Who knows, and we will see how this turns out. –Matt

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Obama Order May Block Ransoms Paid to Somali Pirates

April 15, 2010 (updated)

More From Businessweek

(Adds White House comment in fifth paragraph.)

By Gregory Viscusi

President Barack Obama signed an executive order freezing the assets of Somali militias that could also make it illegal for U.S. ship owners to pay ransoms to pirates.

The executive order signed late yesterday bars any U.S. citizens and companies, as well as their overseas branches, from having financial dealings with a list of 11 militia leaders and the Islamic guerrilla group al-Shabaab, as well anyone that has “engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia.”

While never using the word “ransom,” the order includes “acts of piracy and armed robbery at sea” among those acts.

“The wording could definitely be construed to make payments of ransoms illegal,” Bruce Paulsen, a partner at Seward & Kissel in New York, who negotiated a ransom payment with Somali pirates for a U.S. owned ship hijacked in 2008, said in a telephone interview.

(more…)

Thursday, April 15, 2010

Maritime Security: Obama’s Piracy Executive Order Prohibits ‘Donations’ And Maybe Ransoms?

   Wow, if this is interpreted this way, this would be very significant.  If in fact ransoms were considered ‘donations’, well then private security is now the only option that shipping companies would have.  Stand by for more on this one, and already the companies are jumping on this.  Check out the Marque Star’s press release in support of this new order. –Matt

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Obama’s Pirate Executive Order Sparks Concerns With Shipping Lines

15 April 2010

USA / SOMALIA – Late last night President Barak Obama signed an executive order that forbids American corporations and their overseas subsidiaries from having financial dealings with groups that “…directly or indirectly threaten the peace, security, or stability of Somalia.”

President Obama’s order specifically highlights the problems of piracy in the Indian Ocean, stating that: “I hereby determine…acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia. I…determine that…the making of donations…would seriously impair my ability to deal with the national emergency declared in this order, and I hereby prohibit such donations…”

Though specifically aimed at certain individuals and groups, principally the Islamists and warlords fighting against the Somali government and African Union peacekeeping forces, the order has sparked concern amongst shipping lines that it could be construed as applicable to companies that pay ransoms’ to pirates who hijack their vessels, making them culpable.

Though there is some confusion, companies with US interests who are the victims of Somali piracy are now advised to consult with the Office of Foreign Assets Control (OFAC) of the US Treasury Department before making any payments to hijackers.

You can see the full Presidential Order here.

Link to story here.

 

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