U.S. v. Muse

Re: Piracy/Captain Phillips (2013)

What is Piracy? Who has jurisdiction over the high seas?

Sources:

United Nations Convention on the Law of the Sea, Art. 100-110 (1982).

S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

United Nations Security Council. Resolution 1816, S /RES/1816 (2008). Adopted June 2, 2008.

U.S. Constitution, Art. III Sec. 2 and Amend. 6.

Fed. R. Crim. P. 18 (2024 ed.).

Piracy and Privateering, 18 U.S.C. §§1651, 1653 (1948).

Jurisdiction and Venue, 18 U.S.C. §3238 (1948).

Muse v. Daniels, 815 F.3d 265 (7th Cir. 2016).

Thomas J. Shaw. The Legal History of Pirates & Privateers. Thomas J. Shaw (2024).

Edmund Sanders and Julian E. Barnes. “U.S. ship captain held by Somali pirates.” LA Times. April 9, 2009. https://www.latimes.com/archives/la-xpm-2009-apr-09-fg-somali-pirates9-story.html

“Somalian pirate suspect arrives in New York to be tried in U.S. court.” CBC News.  April 20, 2009.  https://www.cbc.ca/news/world/somalian-pirate-suspect-arrives-in-new-york-to-be-tried-in-u-s-court-1.777441

Tim Besley, Thiemo Fetzer, and Hannes Mueller. “The Economic Costs of Piracy.” International Growth Centre. March 1, 2012. https://www.theigc.org/collections/economic-costs-piracy

Written, Researched, and Recorded by Céleste Young, 2023-2025.
Music: Out On My Skateboard - Mini Vandals

Waitisthatlegal@gmail.com

Transcript

There is an episode of South Park from a while back where Cartman goes to Somalia to become a Pirate.  When he gets there it does not live up to his Pirates of the Caribbean expectations.  Instead of peg legs, sword fights, and singing shanties while hoisting the sails on an old-timey Sloop; he gets a lot of dangerous African warlords controlling undernourished teens and young adults who use speed boats and AK-47s to take container ships hostage off the Somali coast.  It being South Park, Cartman attempts to shape the Somali pirates into his Treasure Island pirate mold; before eventually leaving in disappointment.  

The reality of piracy in Somalia is much grimmer than the young adult fiction of Robert Louis Stevenson and the Disney franchise.  It’s probably closer to an episode of Black Sails or the grittiest of HBO crime dramas.  Strangely, the real pirates of the Caribbean from the Golden Age of Piracy would likely be appalled by the state of piracy in Somalia.  Pirates like Blackbeard were actually part of an early experiment of social democracy, where each of the men on board a pirate ship negotiated and agreed to the terms of a contract that governed the expected behavior of the sailors on board and outlined the punishments for each category of infractions; the percentage of a prize that each sailor would receive; and the most social democratic scheme of payments for death or dismemberment which was essentially workers’ comp. and disability payments.  It was not all sunshine and roses, definitely wouldn’t have smelled like roses, the life of a pirate in the Golden Age was still brutal and violent, but it was often a nicer alternative to being a regular sailor in the Navy or on a merchant vessel, at least you had some say in the danger you faced and would actually get paid a decent amount for the work you put in.

Modern piracy in Somalia began as a private continuation of the Somali Navy’s effort to establish national control over the fishing rights in Somali waters.  After the government collapsed in 1990, the Navy disbanded.  The local fishermen then grouped together, occasionally using violence or commandeering of foreign fishing vessels, in order to protect their livelihoods.  As the civil war continued, various warlords and militias realized how lucrative ransoming cargo and crew on ships could be and forgot about fishing entirely.  

To fully understand how easy and lucrative being a pirate in Somalia would be you only need to know the geography of the region.  Somalia is located on the Eastern Coast of Africa in a region known as the Horn of Africa, due to the way it juts out into the ocean.  It has the longest coastline of any country in Africa, at more than 3,333 km or 2,071 miles.  The northern part of Somalia’s coastline is on the Gulf of Aden, while the Southern part is on the Indian Ocean.  Particularly in the North, Somalia’s coast is on a very important and very busy sea lane.  Ships travelling from the North Atlantic Ocean to the Indian Ocean, and vice-versa, typically sail though the Mediterranean Sea, pass through Egypt’s Suez Canal into the Red Sea, through a very narrow strait between Yemen and Djibouti, and into the Gulf of Aden, before entering the Indian Ocean.  To understand how crucial the Suez Canal is just remember back in 2021 when a massive container ship got wedged in the Canal for 6 days and virtually brought global shipping to a standstill.  An average of 50 ships pass through the Suez Canal every day with cargo estimated to be worth about $3 billion.  After 6 days, there was a backlog of 450 ships, with other ships opting to take the Cape of Good Hope route around Africa to avoid the chaos.  When the Canal is fully operational all these ships pass through Somali waters at some point on their journey.

In 2008, it was estimated that 122 vessels were attacked near the Horn of Africa region, 42 of which were seized.  The ransom payments from those seizures were around $50 million.  One study put the cost to the shipping industry and the end consumer at about .9 to 3.3 billion dollars for every 120 billion dollars seized by Somali Pirates.  The cost of a multi-national Joint task force naval presence in the area is also significant.

Piracy off the Somali coast mostly went under the radar of ordinary Americans until the real life events from the movie, Captain Phillips which came out in 2013 and starred Tom Hanks as the titular captain, brought the issue of Somali piracy into American’s consciousness. The movie focuses on the 2009 hijacking of the MV Maersk Alabama, a 17,000-ton U.S. flagged container ship owned and operated by Maersk Line, Limited, a U.S. based shipping company.  At the time of the hijacking of the Alabama, a crew of 20 Americans was en route to Kenya with cargo containing World Food Programme supplies. The ship was taken by 4 Somali pirates armed with AK-47s.  The crew of the Alabama resisted the hijackers, who then escaped the ship on the Alabama’s life boat with Captain Richard Phillips as their hostage.  The USS Bainbridge, a U.S. Navy destroyer, and the USS Halyburton, U.S. Navy frigate, were dispatched to the area to assist with a U.S. Navy Seals team sent to resolve the hostage incident.  One of the pirates, Abduwali Muse, was on board the Bainbridge to negotiate the release of Phillips, when the Seal team’s snipers took out the other 3 pirates and rescued Phillips.  Muse surrendered and was taken into custody.  This is where the movie ends, but in real life the saga continued with Muse being tried and convicted of piracy in U.S. Federal District Court for the Southern District of New York.  He is currently serving a 33 year sentence in Federal prison.  So, the main issues that need discussing here are: what is a pirate and what laws apply?

Piracy has existed for as long as people have shipped goods on boats.  The Roman Empire recorded numerous instances of piracy in the Mediterranean Sea.  The laws against Piracy in the United States have their origins in the laws passed during the reign of King Henry the eighth back in the 1500s up until the Revolutionary War.  Mainly, the Offenses at Sea Act of 1536, which replaced the previous impracticable county-based Admiralty Courts, with the ability to try crimes committed on the High Seas wherever it was most convenient.  Under the Acts of Henry the eighth, piracy was defined, as quoted by a Justice in the trial of a crew member of the Fancy, the pirate ship Captained by Henry Every, as [quote] “Piracy is only a sea term for Robbery, Piracy being a Robbery committed within the Jurisdiction of the Admiralty; if any man be assaulted within that Jurisdiction, and his Ship or Goods violently taken away without legal authority, this is Robbery and Piracy. If the mariners of any Ship shall violently dispossess the Master and afterwards carry away the Ship itself, or any of the Goods, or Tackle, Apparel, or Furniture, with a felonious Intention, in any place where the Lord Admiral hath, or pretends to have Jurisdiction; this is also Robbery and Piracy.” [end quote]  The Justice then explains that the Admiralty’s jurisdiction as, [quote] “extended throughout all Seas, and the Ports, Havens, Creeks, and Rivers beneath the first Bridges next to the Sea, even unto higher Water-mark… also an undoubted Jurisdiction, and Power, in concurrency with other Princes, and States, for the punishment of all Piracies and Robberies at Sea, in the most remote parts of the World.” [end quote]  As described by author Thomas J. Shaw in his book The Legal History of Pirates and Privateers, from which the aforementioned quotes were taken, [quote] “This meant that the court could hear cases on acts by pirates of any nationality that took place all over the world, including for attacks on ships of countries with which it was at peace…Pirates were described as hostis humani generi, literally, enemies of the human race.” [end quote]  And this is the determination that still underpins the laws against piracy to this day.

In furtherance of the Common Law, the Suppression of Piracy Act of 1698, passed during the reign of William the third, extended jurisdiction over trials of piracy to English colonies, forts, and even on board English ships, if it was necessary.  Creating a court of Admiralty required the agreement of any 3 Admirals, ship commanders, or colonial governors.  The Act of 1698 also expanded the definition of piracy to basically include any acts that were detrimental to English shipping, including non-action.  A crew of a merchant ship were to be considered pirates if they failed to defend the ship against attacks.  And anyone that had anything to do with pirates or the stolen goods were also to be treated as pirates.

It was during the reign of Henry the eighth’s daughter, Elizabeth the first that we see the first wide spread uses of piracy as a political tool.  Elizabeth saw the benefit of allowing English pirates, like Sir Francis Drake, to steal gold and silver from Spanish ships which had the dual purpose of taking money out of Spanish coffers, while replenishing the English treasury.  This system of state-sponsored piracy, called Privateering, played a major part in all naval wars fought in the centuries to come.  In fact, most of the Golden Age piracy is a direct result of privateering, which was so incredibly lucrative for the individual privateer ships that they just continued without letters of mark after the War of Spanish Succession ended.  Privateering continued to play an important part in the American Revolutionary War and in the War of 1812.  Side note: my undergraduate degree was earned at a Canadian university built using money earned by Lord Dalhousie’s privateering during the War of 1812, so I have a certain fondness for the construct.  Despite the support that privateers might get from the flag that sanctioned them, to the larger community of nations they were still treated as pirates.  A letter of mark would only protect privateers from the authorities of the government that issued the letter; to everyone else it was not worth the paper it was printed on.  In the modern world, privateering is essentially extinct, although it is separately defined under U.S. law and is given a less severe punishment.

With the historical context taken care of; what exactly makes a pirate a pirate? At least in the legal sense; existentially, that is for the individual pirate to explore on their own.  By the time the League of Nations was created after World War I, the international community had arrived at a universal definition of piracy which was adopted by the United Nations after World War II.  The United Nations Convention on the Law of the Sea, or UNCLOS for short, defines piracy as consisting of any of the following: [quote] “a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; b) any act of voluntary participation in the operation of a ship or aircraft with knowledge of facts making it a pirate ship or aircraft; c) any act of inciting or of intentionally facilitating an act described” above. [end quote]  This definition is meant to help further the goals of UNCLOS, which is to allow freedom of navigation on the high seas.

The “private ends” requirement includes the obvious examples of acts of maritime robbery and hijacking ships for ransoms, but Courts of both U.S. and International jurisdiction have also found that acts of environmental protest are also private ends.  The two biggest offenders in this arena are Greenpeace and the Sea Shepherd Conservation Society.  Though, arguably, unlike the violent and economically motivated attacks of Somali-style pirates, the environmental groups are essentially policing international waters, where there are laws, but not always the means of enforcing them.  This makes them vigilantes, as much as they are pirates, and it definitely sits in very grey area of legality.  To their credit, the Sea Shepherd fully plays into being considered pirates and their ships fly their own variation of the Jolly Roger flag.

Jurisdiction under UNCLOS is also dependent on the act of piracy occurring on the High Seas, or outside the jurisdiction of any one State.  The High Seas are international waters, the parts of the oceans that are outside of the control of any individual country.  UNCLOS defines international waters as any ocean beyond the 200 nautical mile zone that makes up a country’s exclusive economic zone. The zone is measured from the baseline, which is the low water mark on the coast, out to sea.  A nautical mile is equal to 1.15 miles or 1,852 meters; the nautical mile is also equal to one minute of Earth’s latitude.

So, under international law, we are dealing with 4 Somali nationals that hijacked a private ship owned by a U.S. company and registered to the U.S. with a crew of 20 Americans.  The Somalis boarded the Alabama and used violence to illegally detain the crew and control the ship for their own private ends.  The Somalis boarded the Alabama from their own small private vessel aproximately 240 nmi Southeast of Eyl, Somalia.  Eyl is on the opposite side of the Horn from the Gulf of Aden which is north.  This puts the Maersk Alabama in international waters when she was boarded because Somalia’s exclusive economic zone ends 200 nmi off the same coast as Eyl.  So, by definition, this was an act of piracy on the high seas. 

Even if the hijacking had occurred within the 200 nmi zone, Somalia did not have a functioning government at the time, so the UN Security Council had enacted a resolution in 2008 that essentially relaxed territorial sovereignty of Somali waters for the purposes of deterring piracy and to better protect and aid vessels attacked by pirates in both territorial waters and the high seas off the coast of Somalia.  This also why the Captain of the Bainbridge in the movie keeps saying they can’t let the pirates make it to land.  U.S. jurisdiction in this instance only extended into Somali waters because they were chasing a U.S. lifeboat with an American hostage and 4 suspected pirates.  Once the pirates were on Somali land, then there would be a whole new set of UN regulations and international laws to follow.

Jurisdiction for apprehending and trying pirates is dictated by the “Lotus principle” which comes from a League of Nations case involving a fatal collision between a French ship, the S.S. Lotus, and a Turkish ship, the S.S. Bozkourt.  The Turks took the French captain of the Lotus into custody for his part in the fatal collision and he was tried in a Turkish court.  The French argued that because the Captain and the Lotus were both French, the Turks had no jurisdiction over them.  The Permanent Court of International Justice, the predecessor of the International Court of Justice, ruled that in the absence of international laws or treaties expressly prohibiting the action, the actions taken by the Turks were legal.  Of course, since the Lotus case was decided the UN and its member states have enacted the exact law that France was essentially trying to argue.  Under UNCLOS, jurisdiction over pirates now follows the “flag state principle” where a pirate on the high seas is subject only to the jurisdiction of the flag state, the country in which a vessel is registered, or the state where the pirate is a national.

Under the flag state principle, the U.S., as the flag state where the Maersk Alabama was registered, had jurisdiction over the persons that attacked an American flagged ship.  In other cases, the country where the perpetrators are nationals would also have jurisdiction, but in this case Somalia did not have a functioning government or navy to intervene.  And because the U.S. had the jurisdiction under UNCLOS, the remaining suspected pirate, Muse, was taken into U.S. custody and tried under U.S. law.

Piracy is contained within the United States Criminal Code Chapter 81.  U.S. Code section 1651, titled Piracy under law of nations states: [quote] “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” [end quote]  The law of nations is considered international customary law which are the laws and agreements that the world at-large has agreed to be bound by.  UNCLOS is, mostly, some of it is disputed, one example of customary law that has been codified.  In particular, the metrics used to determine boundaries within the world’s oceans and the overall definition of piracy are two of the parts that the United States has incorporated into federal statutes and regulations.  The definitions of piracy, discussed previously, would be the law of nations within the statute.  So to be charged as a pirate under Sec. 1651 requires the crime of piracy to be proven based on the UNCLOS definition and that the crime was committed on the high seas again under the law of nations UNCLOS definition.  

Muse would be considered a pirate under the UNCLOS definition, which means that he is also considered one under the U.S. law.  Knowing that the U.S. had the jurisdiction to try Muse under its own laws is only part of the question; the other part is where the trial would actually take place.  This is a question of venue.  Article 3 of the U.S. Constitution states: [quote] “such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by law have directed.” [end quote]  In order for the venue to be proper, it must also be able to accommodate the requirements of the 6th Amend; mainly the right of the accused to confront witnesses against them and to compel witnesses to testify in the accused favor.  This is to say that the place where the trial takes place must have access to the witnesses and evidence required for a fair trial.  The Federal Rules of Criminal Procedure further elaborate on this requirement under Rule 18. Place of Prosecution and Trial which states: [quote] Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.  The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice. [end quote]  Of course, the actual crime committed here happened off the coast of Africa so we need to find a Statute that directs venue otherwise.  Luckily, Congress has our back here; the U.S. Criminal Code has a chapter for jurisdiction and venue.  Section 3238 provides that [quote] “the trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender …is arrested or first brought...” [end] It also provides that if the offender is not arrested or brought into a district then the trial can be held at the offender’s last known address, and if that is also un-workable then the case may be filed in the District of Columbia. 

So here, there was a violation of federal law that occurred on the high seas, the accused was originally arrested on a U.S. Navy ship, and is a foreign national with no address in the U.S.  Ultimately, the Justice Department decided to bring Muse to the Southern District of New York because that district had experience with cases involving crimes committed against Americans in Africa.  In particular, that was the district that handled the East Africa embassy bombings that occurred in 1998.  Venue does not seem to have been disputed in this case.  And there wasn’t a trial in the end because Muse pled guilty.

The issues that were brought up before trial involved whether there was a lawful arrest because Muse had boarded the Bainbridge under a flag of truce and whether Muse was an adult at the time of the piracy offense.  Later there would be appeals dealing with the issue of Muse’s age.  The age question is a common problem when it comes to places that have little or no government control because there is no official record of birth or citizenship, and there are no documents or passports issued.  In this case, the FBI and the federal judges had to rely on Muse’s own recollection of his age, which changed a couple of times.  In the end, the guilty plea included a clause addressing the age issue and subsequent attempts to appeal based on his age have been dismissed.  The truce question doesn’t seem to come up again.  While it is true that an enemy negotiating a truce would be protected by international law; there was no truce to negotiate because the U.S. was not at war with Somalia.  Muse boarded the Bainbridge to negotiate a hostage release where he was one of the hostage takers.  He essentially turned himself in for the crime of piracy.  It was this surrender that saved his life, the other 3 pirates were executed by Navy SEALS snipers.

In the end, Captain Phillips was rescued; the crew of the Maersk Alabama survived and are one of the few civilian crews to have successfully fought off a pirate attack in modern history; and 3 pirates are dead and one is in prison.  But, best of all, we all had an opportunity to learn about Pirate Law.