Fourth Circuit Holds Piracy Means an Attack, not Just Seizing a Vessel

Yesterday, the U.S. Court of Appeals for the Fourth Circuit in Richmond, VA, upheld the first piracy convictions in a U.S. Court in nearly 200 years. In U.S. v. Abdi Wali Dire, the Court rejected the arguments by convicted Somali pirates that their life sentences should be overturned because their unsuccessful attack on a U.S. warship did not constitute piracy under the law.

Attached here is a press release about the decision from the U.S. Attorney's Office for the Eastern District of Virginia.

The cases arise from the April 1, 2010 attack by a group of Somali Pirates on the USS Nicholas in the Indian Ocean.

The legal issue before the Court was whether the Somalis' failed attack on the USS Nicholas constituted piracy under 18 U.S.C. sec. 1651, which states:

Whoever, on the high seas commits the crime of piracy as defined by the law of
nations, and is afterward brought into or found in the Unites States, shall
be imprisoned for life.

Under cases dating from the original enactment of sec. 1651's predecessor in 1819, piracy had been defined as "robbery upon the sea." United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820). Reasoning that piracy was defined by statute under the "law of nations" the Court looked to two international agreements, the Geneva Convention on the High Seas (1958, ratified by U.S. in 1961), and the United Nations Convention on the Law of the Sea (UNCLOS - 1982), which has not been ratified by the U.S. Both conventions define piracy to include "illegal acts of violence."

Ultimately, the Court found that the 1819 definition of piracy, requiring an act of robbery, was inconsistent with the evolution of the law of nations as to piracy since 1819, and that even in 1819, violent acts themselves were considered piracy.

The opinion, by Judge King (of W.Va. I might add) offers an interesting, and detailed history of the treatment of piracy in the U.S., and the international evolution of its prosecution.

Supreme Court Refuses Appeals In Treasure Hunter Cases

As a follow up to my post of September 21, 2011 detailing the 11th Circuit Court of Appeals' decision finding treasure found by Odyssey Marine Exploration was the property of the Spanish Goverment, the U.S. Supreme Court denied appeals from that decision yesterday (see page 12 of linked Order list).

Three separate appeals, or Petitions for Certiorari, for the U.S. Supreme Court to hear the appeals were denied on May 14, 2012. They included appeals by Odyssey Marine, the Government of Peru, and claimed descendants of owners of cargo from the shipwreck.

Contrary to conventional wisdom, it is not always "finders keepers" and possession is not 9/10ths of the law, at least when it comes to the spoils from a sunken warship.

Chesapeake-Built River Boat to Cruise Mississippi & Ohio Rivers

The 280 foot Riverboat Queen of the Mississippi is nearing completion at Chesapeake Shipbuilding in Salisbury, on Maryland's Eastern Shore. As explained in this article by Candus Thomson of the Baltimore Sun, the expected August 4, 2012 maiden voyage of the paddle-boat indicates a revival of inland river cruising on the Mississippi. The operator and builder of the Queen of Mississippi, American Cruise Lines, expects a growth market and has begun construction of another riverboat at its Salisbury shipyard.

In addition to routes on the lower and upper Mississippi, several cruises to Cincinnati and Pittsburgh are scheduled in the Fall of 2012. Various ports of call comprise each trip. For example the Ohio River trips will stop in Point Pleasant, WV, Marietta, OH, and Wheeling, WV among other destinations.

Maritime Transportation Advisory Council to Meet on Marine Highway Recommendations

The Marine Transportation System National Advisory Council (MTSNAC) has announced a meeting on May 8, 2012 at the USDOT in Washington, DC. The stated purpose of the meeting is to discuss recommendations the Council will make to the Secretary of Transportation "on the integration of marine highways into the national transportation system and the development of a steady and reliable funding mechanism for infrastructure development." The meeting announcement is attached here.

Public participation is available in the afternoon session and those wishing to speak must advise the Maritime Administration by May 1, 2012. The Council will accept written comments until May 11, 2012.

A Copy of the Council's Charter is attached here.

More information about the Marine Highway system is available here from the MARAD website.

Kentucky House Funds Dredging & Bridge Repairs

The Kentucky House of Representatives, in the recently passed House Bill 2 in the current special session, has appropriated $500,000 per year for the next two fiscal years for "Riverfront Improvement." The funds to "improve public riverports within Kentucky," are to be "limited to dredging and maintenace of access." According to the Bill, the Secretary of the Transportation Cabinet, in conjunction with the Kentucky Water Transportation Advisory Board, will determine how the funds are actually allocated. The Bill also commits two years of funding to the Louisville-Southern Indiana Ohio River Bridges Project. This project is part of the effort to replace Ohio River bridges recently found not structurally sound, as noted by this prior post. In total, the Kentucky Transportation Cabinet budget for the next two fiscal years is set at $2.38 to $2.400 billion dollars.

USDOT Offers Free App for Bus Safety

The USDOT's Federal Motor Carrier Safety Administration (FMCSA) has developed a free App(lication) for the iPhone and iPad. The SaferBus App permits allows users to view safety data for interstate bus carriers, as well determining if the carrier is licensed to operate. Safety data is available based on the carrier's USDOT number, or MC (motor carrier) number, which is physically displayed on vehicles.

For non iPhone/Pad users, the safety database is available online.

FRA Issues Locomotive Safety Standards - Clarifies Diesel Exposure Regulation/Alters Inspection Requirements

The Federal Railroad Administration published its final rule updating Locomotive Safety Standards on April 7, 2012. The Rule becomes effective June 8, 2012.

Among the items of interest is the Agency's interpretation of 49 CFR 229.43, covering diesel fumes in locomotive cabs, and FRA's extension of the time intervals for periodic locomotive inspections.

The previous 92-day interval for comprehensive locomotive inspection/maintenance has been doubled to 184 days for units with "microprocessor-based control systems with self-diagnostic capabilities." These more modern units are designed for 184-day maintenance, whereas the 92 day standard reflected the manufacturer-recommended maintenance interval in 1980.

Regarding diesel exhaust in cabs, the FRA did not alter section 229.43, which also dates from 1980. Under 229.43(a): "Products of combustion shall be released outside the cab and other compartments. Exhaust stacks shall be of sufficient height or other means provided to prevent entry of products of combustion into the cab or other compartments under usual operating conditions."

In its rule notice, the FRA interpreted 229.43 as such:

"However, FRA did not intend for sec. 229.43 to prevent any and all diesel exhaust from being present in an occupied locomotive cab. It would be impracticable to try to eliminate all diesel exhaust in the locomotive cab." 77 FR at pg. 21323.

and,

"... FRA does not believe that is is possible to prevent the re-entry of diesel exhaust into the locomotive cab through windows or ventilation system intakes, and has never enforced the existing regulation in such a manner." 77 FR at 21323.

This clarification that FRA does not enforce de minimus exhaust in cabs as a violation of section 229.43 is helpful, but, because the actual language of 229.43 has not been changed, it is still entirely possible that a railroad could be liable for the presence of exhaust in cabs, absent negligence by the railroad or a specific locomotive defect, because the regulation simply prohibits exhaust from cabs "under usual operating conditions."

The unanswered question is whether this new FRA interpretation of 49 CFR 229.43 has any impact on courts considering whether the presence of diesel exhaust in a locomotive cab, in and of itself, constitutes a violation of the Locomotive Inspection Act (LIA).