In an interesting case regarding the definition of piracy, the U.S. District Court for the eastern District of Virginia dismissed charges against a number of accused who approached the USS ASHLAND aboard a small skiff in the Gulf of Aden. At least one person on the skiff allegedly shot at the American ship with an AK-47 rifle, resulting in return fire that killed one of the skiff's passengers. The defendants did not attempt to board the ASHLAND. They were later arrested and charged with the crime of "piracy as defined by the law of nations", in violation of 18 U.S.C. 1651, enacted in 1819. The Government argued that "piracy as defined by the law of nations" did not require the actual taking of property, but included any unauthorized armed assault or directed violent act on the high seas.

The defendants contended that the offence of "piracy" had not been committed in this case, as they did not board or take control of the ASHLAND and did not obtain anything of value from it.

The Court sided with the defendants. It found that "piracy", as understood in the law of nations (i.e. customary international law) in 1819, and as proscribed by 18 U.S.C. 1651, contemplated only sea robbery. It referred to the seminal case of United States v. Smith, 18 U.S. 153, 5 Wheat. 153 (1820), the definitive judgment on point and was the only one directly examining the definition in question. The decision had

been repeatedly referred to in subsequent judgments for over 190 years. Other U.S. legislation, dealing with "piratical aggression" or "piratical undertakings", had a wider meaning, embracing acts of violence other than robbery or forcible depredation, but "piracy" in 18 U.S.C. 1651 was restricted to robbery or seizure of a ship. Nor, the court held, did the term "forcible depredation" include acts of violence unaccompanied by plunder or pillaging, as the dictionary definition of "depredation" made clear.

Accordingly, the District Court concluded that "... the Supreme Court in Smith set forth the authoritative definition of piracy as robbery or forcible depredations on the high seas, i.e., sea robbery." Legislative reform proposals and Congressional legislation since 1820 had reflected that same understanding of 18 U.S.C. 1651. The District Court refused the U.S. Government's invitation to widen the definition, notwithstanding the more expansive meaning given to the term "piracy" by the International Maritime Bureau ,the Geneva Convention on the High Seas 1958, or in art. 101 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) To the District Court, these definitions were "unsettled", while the Smith judgment of 1820 was "... the only clear, undisputed precedent that interprets the statute at issue". There was no authoritative definition and much debate, and the U.S. had not ratified UNCLOS. Nor was there a single court having authority to bring order to the various interpretations and adopt a common definition. Due process considerations also militated against a novel construction of 18 U.S.C. 1651.