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 He does a great job in calling upon historical reference to support his modern day applications, and what kind of tweaking it would take to make it work.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.