Piracy and arming crews

Wouldn't it be an OSHA violation to send employees into an extremely dangerous situation without proper safety equipment(arms) because the employer is more concerned about the value of the equipment and merchandise than the value of the employees lives?

Rich Harris's attorney, in my seamen's opinion, chose the wrong court for this case, (Richard E. Hicks v. Waterman Steamship Corp., and Maersk Line, Ltd, Harris County District Court, Houston, Texas, No. 2009-26129; Filed April 27, 2009(a personal injury case under the Jones Act (46 U.S.C. § 688) and general maritime and common laws.

The case is a diversity case and is probably should have been filed in the U.S. District Court for the District of Columbia and filed as an Admiralty case, even if it is a personal injury case.

The armament of either vessels or crew may not a be a liability matter for the United States alone to decide but more aptly an international liability matter under Admiralty law because the International Maritime Organization sets the "anti-gun" policy for the global maritime nations. See Paragraphs 44 and 45 of the International Maritime Commission, Maritime Safety Commission’s Circular 623/Rev.2, dated June 20, 2001, titled, Piracy and Armed Robbery Against Ships: Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships, even though the United States can unilaterally arm merchant vessels and crew under federal law: 10 U.S.C. § 351. During war or Threat to National Security [(a) The President, through any agency of the Department of Defense designated by him, may arm, have armed, or allow to be armed, any watercraft or aircraft that is capable of being used as a means of transportation on, over, or under water, and is documented, registered, or licensed under the laws of the United States. (b) This section applies during a war and at any other time when the President determines that the security of the United States is threatened by the application, or the imminent danger of application, of physical force by any foreign government or agency against the United States, its citizens, the property of its citizens, or their commercial interests.].

I am researching jus cognes, and international norms, customary international laws, under the Vienna Convention on the Law of Treaties, 1969, and the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations, 1986.

My theory is to hell with IMO and the United Nations! The United States can resurrect the international human right of armed self-defense as a new jus cogens even if the United States hasn't signed the two Vienna Conventions.

Read the excerpt from the following law review article (available on Lexis Nexis at any university):

Niels Petersen, Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation, 23 Am. U. Int'l L. Rev. 275, 300-301 (2008)

The Role of State Practice

The insight that state practice is a constituent element of customary law because the corresponding rule of recognition requires it to be does not explain the normative reason for a requirement of state practice.[1] If we want to analyze the distinctive characteristics of custom and general principles, we have to determine the function of state practice as an element for proving the existence of the law. As we have seen, the classical theory of international custom perceived state practice not as a normative requirement, but only as a means of proving the existence of consent between the states.

The inductive method for determining customary law can be traced back to the sociological positivism of Auguste Comte.[2] According to this school, science had to be based on facts.[3] Awareness could only be attained through experience.[4] The prevailing method was thus an inductive one, deriving patterns of behavior by an abstraction from facts. However, as law is per definition not descriptive, but always prescriptive,[5] the sociological methodology cannot be transferred to the legal sciences without reflection. The reason for introducing practice as a constituent element of customary law is rather a more modest one: law should not consist of abstract, utopian norms, but rather be affiliated with social reality.[6] Behavior is thus not a normative reason itself. Its consideration is just a means to reconcile law and reality.

The reconciliation of law and reality by consideration of state practice is particularly important for norms that have a coordinative function in bilateral situations.[7] Such norms are of a directly reciprocal character; in other words, any state can react to non-compliance by denying the fulfillment of the corresponding obligation.[8] n134 If coordinative norms are thus not supported by a basically consistent state practice, they would lose their conduct guiding function.[9] n135 State practice is thus a formal requirement that encourages the stability of norms.

FOOTNOTES:

[1] See Guzman, supra note 8, at 122 (denigrating state practice as having no direct contribution to the existence of customary norms, while conceding that it may influence state conduct).

[2] See Oscar Schachter, International Law in Theory and Practice, in 178 Recueil des Cours 9, 60 (1982) (Fr.) (noting the influence of Comte's sociological positivism on legal thinkers).

[3] Auguste Comte, Discours sur l'esprit Positif [Discourse on the Positive Spirit] (1844).

[4] Id.

[5] See Craig Haney, Psychological and Legal Change: On the Limits of a Factual Jurisprudence, 4 L. & Hum. Behav. 147, 163 (1980) (distinguishing between prescriptive and descriptive disciplines).

[6] See id. at 148 (describing the emergence in the nineteenth century of a concept of law whereby the law was viewed as an instrument for achieving positive goals).

[7] See Joost Pauwelyn, A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?, 14 Eur. J. Int'l L. 907, 908 (2003) (suggesting that multilateral, as contrasted with bilateral, obligations presuppose a collective interest of states above and beyond the particular interests of each state participating in the obligation).

[8] See id. (introducing the concept of suspending obligations as a countermeasure for breach).

[9] See Kirgis, Jr., supra note 32, at 148-49 (discussing the relationship between conduct, consistency, and state practice); see also Daniel Bodansky, Customary (and Not so Customary) International Environmental Law, 3 Ind. J. Global Legal Stud. 105, 111 (1995) (discussing transboundary pollution and claiming that consistent, uniform state practice is emphasized in traditional customary law).

I hope that now you realize that it all boils down to the old addage, "Use it or lose it!" You either use your constitutional right and your human right to armed self-defense or you will lose it by the self-fulling prophecy that non-use (regardless of it is by choice or by force of law) is evidence that there is no right to armed self defence.

See Kopel, Gallant, Eisen, THE HUMAN RIGHT OF SELF-DEFENSE, 22 BYU J. Pub. L. 43, at 57 (No. 1, Fall, 2007-2008):

D. No Right of Self-Defense

The most startling of the claims in the Frey/HRC report is that there is no human right of self-defense. She states:

"No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles. While the right to life is recognized in virtually every major international human rights treaty, the principle of self-defence is expressly recognized in only one, the CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS (EUROPEAN CONVENTION ON HUMAN RIGHTS), article 2.57."

I am nearly finished preparing my newest lawsuit (after 7 years of litigation in the federal courts as an unrepresented civil plaintiff (seamen) on the same subject as Mr. Hicks above. Thanks to Mr. Hicks' complaint I am shoring up my newest lawsuit with new legal theories on duty and negligence at the international level.

Maybe now the NRA will sit up and take notice that seamen have a federal right to "National Open Carry Handgun (as was once the legal and social norm at the founding of this nation as it was always the constitutional norm, though the phobic may say otherwise.)

May now all those who figuratively burned me at the stake in the court of public opinion will be shamed by their ignorance and see, by the Grace of God, the errors of the sinful ways and stop casting their stones of ill repute. (Religious slant to the First Amendment right to speak freely).

Well, that's my 2 cents worth.

Hicks' case was assigned to Judge Brent Gamble. Contact info at
www.justex.net/courts/Civil/CivilCourt.aspx?crt=20

"The main resistance seems to be coming from the ship owners, who'd rather pay ransom than risk ... whatever they fear." Joe Cox, president of the Chamber of Shipping of America, cautioned that deploying armed guards aboard cargo ships could escalate violence if pirates expect a gunfight."

I would think that if US Flagged ships demonstrated to the pirates that they are armed. The pirates would seek out defenseless ships and not take the chance on Armed and protected ships. The same concept holds as allowing our citizens to own guns for self defense. After all Pirates are just another breed of criminals. They will go after easy prey and live to steal another day.

Why don't the shipping companies just hire Blackwater to protect these ships?

Why should our navy spend millions of dollars to protect shippers who will not not attempt to protect themselves? This is not a retorical question.

There is no such thing as a human 'right'. A man who is dying has no inalienable right to continue breathing.

To hell with convention, strike the pirate bases, kill them all and burn their shanties. Meet violence with violence and it will eventually end.

If the world's maritime nations will not do this, there are plenty of private armies that will do so for them.

OSHA has no jurisdiction on vessels. The Coast Guard provides workplace safety standards and inspections once you cross the gangway.

Looks like this suit is to establish the the seaman's claim to maintenance and cure to cover living expenses and medical for the injuries. Pretty much a lock since he was in service to the vessel at the time of the injury and that is really the only requirement. There is really no other way than to sue to establish a maritime personal injury claim, no Department of Labor or state worker's comp office to manage claims.

It will be interesting to see if they pursue an unseaworthiness claim, unlike the Jones act, it doesn't require negligence just failure to exercise ordinary care. I once read a case where an unseaworthiness claim was upheld where a sailor of known belligerent disposition attacked a shipmate. The ship owner/operator was held liable for having the belligerent guy on board thus not exercising ordinary care creating an unseaworthy condition.

CORRECTION ON OSHA!

Maritime Advisory Committee for Occupational Safety and Health (MACOSH)
http://www.osha.gov/dts/maritime/macosh/index.html

and

Merchant Marine Personnel Advisory Committee (MERPAC)
U.S. Coast Guard
www.uscg.mil/hq/cg5/cg522/cg5221/merpac.asp
AND
homeport.uscg.mil/mycg/portal/ep/browse.do?channelId=-18421&channelPage=%2Fep%2Fchannel%2Fdefault.jsp&pageTypeId=13489&BV_SessionID=@@@@0258320880.1240976606@@@@&BV_EngineID=cccdadehdlgffjecfjgcfgfdffhdghj.0

Let's see you're hundreds of miles out to sea with no one to witness pirates attempting to hijack your ship . . .

Sink 'em check there are no survivors keep your mouth shut and sail on.

There must be a limited number of pirates willing to ply that trade under those conditions - resolve is all it takes.

I heard an NPR story about arming merchant ships against pirates and one reason for not wanting arms aboard is that the ship might not be granted entry into many foreign ports (that prohibit armed ships from entering).

Not sure that a container ship with a dozen AR-15s and Glocks stored is what anyone's law would call "armed".
I was under the impression an armed ship is one with mounted guns, torpedo, depth charge, or missle launchers, and armed aircraft.
One has to admire the reliability of NPR, though, finding an angle without being daunted by common sense.

The base problem is that once again the westernised world has to defend itself against third world aggression.

With a lack of centralised secure government, we will see the increase of similar activities world wide, with an inherent increase in 'terrorist' activities thrown in.

Any technological advantage that the 'west' has is rendered ineffective by irrational rules of engagement, or a perception that we should not harm potentially non-involved persons.

It's about time the third world pulled its finger out and took responsibility for it's people, or learned to live without western products, like medicines, and aid, and aid workers.

Cut off the aid supplies, and in five years the african population will be so low as to be unable to sustain piracy.

I had a thought the other day that you could also outfit ships like that with navalized Predator drones for a cheap, quick & dirty "combat air patrol". Launch it from a rail, catch it with a huge-ass net of some kind. You'd also have to have a few crew members to be the joystick jockeys who know how to fly the damn things.

Sure, it's a big investment, but as oil resources get scarcer, supertanker owners just might go for it.

The powers that be are divided on arming merchant ships. During the time that the legal niceties are over-thought, there may be an interim solution.

The U.S. has contracted comercial carriers to move military personnel and materiel in the past. Why not contract U.S. flagged ships to transport "a few good men"? The Marines have a tradition of repelling boarders, and the ship, including its crew would not be armed. A heavy weapons section might be most appropriate and the leathernecks probably wouldn't mind losing the Iraqi dust.