The defendants set off from Somalia in a seagoing vessel in search of a merchant ship to attack and plunder. Shortly after midnight, somewhere on the high seas between Somalia and Seychelles, they sighted what they believed to be a merchant ship and thereafter set out to attack it. However, the ship revealed itself to be a US Navy frigate. The US Navy frigate captured the defendants' vessel, along with the defendants. The defendants were charged with the offence of piracy as defined by the law of nations in violation of 18 USC § 1651. The defendants filed a motion to dismiss the charge. The defendants argued that the offence of piracy required an actual robbery on the high seas, and that the US government failed to allege any 'taking of property' by the defendants that constituted robbery. The US government argued that the definition of piracy included an armed assault on another ship without an actual taking of property.

Held: Motion denied.

The US has not signed or ratified the United Nations Convention on the Law of the Sea 1982 (UNCLOS). Nevertheless, the US has accepted UNCLOS as customary international law, binding upon the US. Article 101 of UNCLOS provides that '[p]iracy consists of any of the following acts: (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 of an aircraft with knowledge of the facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).'

In addition, art 105 of UNCLOS provides that '[o]n the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.'

The defendants, while on the high seas, boarded an assault boat, cruised towards the US Navy frigate and opened fire upon it. Such facts constituted: (1) illegal acts of violence; (2) committed for private ends; (3) on the high seas; (4) by the crew of a private ship; (5) and directed against another ship, or against persons on board such ship. Thus, the actions of the defendants adequately constituted the offence of piracy.