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Saturday, May 26, 2012

It is intent and not act - attempts of armed hijacking is piracy

Often one gets confused with a simple Question – is it the Crime that is worse, or its intention, or its severity i.e., based on what happened.  In a simple analogy, when a dog chases a man, you fear its ferocity and try to hit it with a stone or club with a stick – would not wait to be bitten, to find out how worse it is and then punish the dog accordingly.  

Sec  378 of Indian Penal  code states “ -Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.”  The common law burglary as defined by Sir Matthew Hale is :  “ The breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not.”

Thus it would appear that it is intent and not what actually transpired that would make it a crime !!.  In April 2010, a small gang of Somali pirates fired on the USS Nicholas.  It was no ordinary vessel, a frigate of US, the third ship of the United States Navy to be named  after Major Samuel Nicholas, the first commanding officer of the United States Marines. A third-generation guided missile frigate, she was  launched 23 April 1983.   On April 1, 2010, Nicholas  lit to look like a merchant vessel,  came under fire from Somali pirates while deployed in the waters off of East Africa near the coast of Kenya and Somalia conducting anti-piracy operations. Nicholas seized five pirates, sank their skiff and captured a pirate mother ship.  The pirates were tried in the U.S. and convicted of piracy, which carries a mandatory life sentence.  

The group of men on a skiff fired AK-47s at the ship and launched rocket-propelled grenades into the air, but they never managed to board capture or seize the Navy frigate.On appeal, the men argued that their actions did not meet  the definition of piracy under the law. They pointed to the  Supreme Court's 1820 decision in United States v. Smith, which  defined piracy as robbery at sea.  The crime of piracy is defined by the law of nations with reasonable certainty. Robbery or forcible depredation upon the sea, anima furandi*, is piracy by the law of nations and by the act of Congress.  It was argued that Piracy was only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the admiralty.

  • Animus furandi is a Latin term which means the ‘intention to steal.’ In order to constitute a crime of larceny, the thief must take the property animo furandi.

There is news from UAE quoting  ‘Iran and an American-led naval coalition’ each said Thursday they responded to a distress call by a U.S.-flagged cargo ship that came under fire from gunmen in the Gulf of Oman a day earlier.  Armed guards aboard the 488-foot (148-meter) Maersk Texas thwarted the attack northeast of the Emirati port of Fujairah, Danish shipper A.P. Moller-Maersk said. The attack  is reported to have happened not far from the tense waters of the Strait of Hormuz, a key transit point for a fifth of the world's oil.  A.P. Moller-Maersk is reported as stating that armed attackers in "multiple pirate skiffs" raced straight toward the ship around noon Wednesday despite clear warning signals from the Texas. Guards on board fired warning shots, but the suspected pirates opened fire, prompting ship guards to shoot back at them, according to the shipping line.  No one on the Texas were reported to have been  injured in the incident.  Meantime, Iranian news agencies reported that the suspected pirates fled when Iran's navy intervened after responding to an emergency call from the American ship.

It is reported that the full facts of the event have yet to be fully ascertained and  Piracy has to be judged according to a number of factors.  The spokesperson declined to say who the attackers might have been if not pirates, though he noted that fishermen and smugglers frequent the area. The Combined Maritime Forces is a naval partnership including more than two dozen nations that operates in and around the Middle East. It is commanded by a U.S. Navy admiral.  While the Iranian aid to the Texas is not acknowledged to have been real, reports suggest that such assistance would not necessarily be out of the ordinary.  It is claimed that when a vessel is in distress and its distress call is heard, the immediate response is to help.  It is further stated that American ships have occasionally come to the aid of Iranian merchant vessels in similar circumstances.

That is recent news – getting  back to Apr 2010 incident when small gang of Somali pirates fired on the USS Nicholas. After a pursuit, naval forces captured the pirates and transported them back to the United States to face piracy and related charges. The men were found guilty and convicted to life in prison, the punishment for piracy, plus 80 years. On appeal, the men argued that their actions did not meet the definition of piracy under the law.  In a latest pronounced verdict,  U.S. federal appeals court made clear that the definition of piracy includes violent attempts to hijack a ship, even if unsuccessful, and upheld convictions against five Somali pirates.  The 4th U.S. Circuit Court of Appeals, based in Richmond, Virginia, upheld what federal prosecutors described as the first U.S. piracy convictions in 190 years, finding that an individual does not have to seize or rob a ship to commit piracy.  The court rejected a bid by five Somali men to overturn their convictions for attacking a U.S. Navy ship they mistook for a merchant vessel in 2010.

On 23rd May 12, the Three-judge panel  of the 4th Circuit unanimously stated that piracy would include violent unsuccessful attempts.   The  Fourth Circuit made clear that anyone who attempts an armed hijacking of another vessel on the high seas is a pirate under U.S. law.

With regards – S. Sampathkumar.

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