Justice Breyer takes on Pirates, Inc.

Blackbeard, before his head was chopped off

The question, Justice Stephen Breyer said, is not whether Blackbeard himself could be sued, but whether the holding company that oversaw the whole operation, Pirates, Incorporated, was liable for various nefarious acts on the high seas.

Once again, Breyer had unleashed one of his famous hypothetical question (and, no, in raising pirate-related corporate entities, he wasn’t referring to either Johnny Depp or a now sadly departed local hostelry). He brought up the issue during today’s argument in Kiobel v. Shell over whether oil company Royal Dutch Shell PLC (and other corporations) could be held liable in U.S. courts for aiding and abetting human rights abuses overseas.

The statute under the microscope is the Alien Tort Statute, which Congress enacted in 1789 at a time when piracy was a major issue, hence Breyer’s question to Kathleen Sullivan, Shell’s attorney:

Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn’t me; it’s the corporation — do you think that they would have then said: Oh, I see, it’s a corporation.Good-bye. Go home.

Sullivan wasn’t budging:

You could seize the ship with which the piracy was committed, as you could later slave trading ships. But you could not seize another ship, and you could not seize the assets of the corporation.

If only Blackbeard had such lawyers, perhaps he could have avoided his ultimate fate at the hands of the Royal Navy: He was shot at least five times and stabbed 20 times before his head was hacked off, according to his Wikipedia entry.