April 2009

The Hawaii State Bar Association’s Admiralty Section was pleased to host two speakers from the State of Hawaii’s Department of Land and Natural Resources, Kamaile Nichols and Bin Li. 

They discussed civil penalties or assessments for natural resource damages for injury to coral reefs.  The pertinent legal authorities are set forth in a handout here…

The criminal complaint outlining the charges against Somali pirate, Abduwali Abdukhadir Muse is available here.  Based on the charges, he faces life imprisonment.

The four charges he faces are:

1.  Piracy, 18 U.S.C. 1651, related to the seizure and robbery of the Maersk Alabama.

2.  Violence against maritime navigation, 18 U.S.C. 2280(e), which criminalizes acts which, among other things, destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship.

3. Use and carriage of a firearm in the commission of a crime of violence (specifically, violence against maritime navigation), 18 U.S.C. 924.  This carries a mandatory minimum sentence of 10 years if the firearm is discharged.

4. Hostage taking, 18 U.S.C. 1203.

5.  Use of a firearm during the hostage taking in violation of 18 U.S.C. 924.

Because piratical acts in U.S. waters are unheard of, this case will be the first piracy prosecution in a long time.  I would be cautious about saying that it is the first piracy case in 100 years because the crime could have been charged as murder or robbery or the crime may have not been reported on or decided in a published opinion. 

The exercise of criminal jurisdiction over extraterritorial crimes is not unprecedented.  As the complaint notes, the United States successfully asserted jurisdiction over Ramzi Yousef, Osama Bin Laden (tried in absentia) and Shi Lei.  The Ninth Circuit decision in Shi Lei is the only reported case interpreting the Violence Against Maritime Navigation statute.  [Disclosure: while serving as a Coast Guard JAG, I was a Special Assistant U.S. Attorney and worked on the Shi Lei case]. 

Per the Ninth Circuit in Shi Lei:

Article I, Section 8, Clause 10 of the United States Constitution (the “Offense Clause”) empowers Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Because the high seas, by definition, lie outside United States territory, see United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990), the Offense Clause grants Congress the authority to apply federal law beyond the borders of the United States, see EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).

Section 2280 is an exercise of Congress’s constitutional authority to define and punish “Felonies on the high Seas” because it proscribes felony offenses and expressly applies to international waters. See 18 U.S.C. § 2280(e). In addition, § 2280(a)(1)(A) and (B), the provisions under which Shi was charged, proscribe offenses which meet the definition of piracy. “Piracy” traditionally has been defined as “robbery, or forcible depredations upon the sea.” United States v. Smith, 18 U.S. 153, 161 (1820). “Depredation” is “the act of plundering, robbing, or pillaging.” Black’s Law Dictionary 397 (5th ed. 1979).

All three acts require the use of force.3 Section 2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof,” and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship.” Because such offenses involve interference with property on the open sea through the use of force, they are within Congress’s power to define and to punish crimes of piracy. See Smith, 18 U.S. at 158-59 (treating “Piracies,” “Felonies on the high Seas,” and “Offenses against the Laws of Nations” as three separate offenses).

My earlier posts on Somali piracy are: here, here, here, here, here, here.  This list is getting long, I’ll put together a resource page later.

I was fortunate to attend a lecture by Professor Andrew Jameson at Honolulu's Pacific Club on April 22.

Professor Jameson is a renowned expert on Near Asia. With a Harvard PhD, he was a longtime professor at the University of California-Berkeley and has consulted throughout the world.

He traced the history of piracy from its…

More resources on the Maersk Alabama piratical attack and hostage-taking incident. 

  • Admiral Thad Allen, Commandant of the U.S. Coast Guard was interviewed on ABC's This Week (transcript here).  At issue is his call for an international framework to address Somali piracy.  This appears to call for a need to address the "endgame" or what-do-we-do-with-the pirates we

…

The State of Hawaii has provided notice to the U.S. Navy that it will be seeking natural resource damages for coral reefs harmed by the grounding of the USS Port Royal, news here.

The State’s letter can be downloaded here.  The letter is not a claim letter per se but rather implores the Navy to begin restoration and mitigation work on the corals damaged by the Port Royal grounding:

The State intends to seek both mitigation and restoration assistance from the U.S. Navy and damages for loss of natural resources.  At this time the State is only requesting assistance from the U.S. Navy for the purpose of minimizing the amount of primary damage resulting from the grounding incident and to prevent potentially devastating secondary damage that could be aggravated by the upcoming summer swells.

One to watch for sure.  The State has increased its use of natural resource damage assessments for damage to coral reefs and it will be interesting to see the State’s use of such assessments against the federal government.

In my role as co-chair of the Hawaii State Bar Association's Admiralty Section, we are putting on a lunchtime discussion on natural resource damage assessments by the State of Hawaii.  The title of the presentation is "Molokini Shoal Enforcement Action for Coarl Damage within the Marine Life Conservation District."  Two representatives of the State's Department…

Yesterday, the Supreme Court heard oral arguments in the Polar Tankers v. City of Valdez case.  The transcript is here.

In my earlier post, I suggested that the Court took the case not on the duty of tonnage issue but rather on discriminatory interstate tax schemes (think internet sales tax).  The amici briefs were virtually all in this camp.

Oral arguments, however, were ALL about the tonnage clause of the Constitution.  It suggests to me that the Court was NOT ready to wade into the interstate tax issue and the tonnage issue was a very, very clean way to strike down the tax, without creating precedent that would apply to the several states’ ability to tax internet sales, etc. 

One great moment in the transcript which confronts, perhaps, a shortcoming of the Original Intent doctrine.  In short (and admittedly superficial) fashion, this doctrine or judicial philosophy calls for the interpretation of the Constitution, at the time it was drafted.  So, to define terms like “cruel and unusual” or “arms,” Originalists will turn to the 1700’s for clues as to meaning. 

So, does the tonnage clause include air or rail, invented long after the drafting of the Constitution?

CHIEF JUSTICE ROBERTS:  Well, but just on a — maybe this doesn’t matter. I have seen the capacity of cargo planes described in terms of tonnage. Does this clause apply to those?

MR. ROTHFELD: That — that is an interesting question. It — it was written to apply to ships simply because in the late 18th century, the only way of moving substantial amounts of cargo was by — was by vessel. And I imagine that if the Framers had in mind airplanes and railroads –

CHIEF JUSTICE ROBERTS: It is that we have an evolving Constitution, after all.

MR. ROTHFELD: I will leave that one alone, Your Honor.

(Laughter.)

CHIEF JUSTICE ROBERTS: Well, then, do you know — it’s not an entirely frivolous point. I mean, do you know if States, localities where airports are located charge things that might be viewed as Tonnage Clauses on airplanes?

MR. ROTHFELD: I don’t know a definitive answer to that. ..

Side note: As posted here, Hawaii’s invasive species assessement fee does impose a tax on cargo, both on vessels and airplanes.  A per ton fee is tough to calculate on a parcel carried on an airplane for sure.

Background Materials on the case:

My posts: here, here.

The question presented is:

1. Whether a municipal personal property tax that falls exclusively on large vessels using the municipality’s harbor violates the Tonnage Clause of the Constitution, art. I, § 10, cl. 3.

2. Whether a municipal personal property tax that is apportioned to reach the value of property with an out-of-State domicile for periods when the property is on the high seas or otherwise outside the taxing jurisdiction of any State violates the Commerce and Due Process Clauses of the Constitution.

Polar Tankers Opening Brief is here.

City of Valdez Answering Brief is here.

Amici:  Broadband Tax Institute (brief here)(supporting the out-of-state tax argument); the Council on State Taxation (brief here)(out-of-state tax argument); Tropical Shipping and Construction Company, Ltd. (brief here)(tonnage argument); World Shipping Council and Cruise Lines International Assn. (brief here)(tonnage argument); the National Federation of Independent Business Small Business Legal Center (brief here)(out-of-state tax argument); Seventeen State Governments (brief here)(supporting Valdez); and the Multistate Tax Commission (brief here)(supporting Valdez). 

Polar Tankers Reply Brief here.