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Alien Tort Statute: in case brought by licensed whalers against environmental activists who interfere with whaling operations, Ninth Circuit reverses district court and finds that environmental activism can amount to piracy and be a "private end".

The Plaintiff-Appellants ("Cetacean") in the following case are Japanese researchers who hunt whales based on a permit. Many nations, including the U.S. and Japan, are parties to the International Convention for the Regulation of Whaling (December 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74). The Convention, article VIII, authorizes whale hunting when based on a research permit issued by a signatory nation. Cetacean holds such a permit from Japan.

The Sea Shepherd Conservation Society ("Sea Shepherd") has tried its best to make Cetacean miserable through aggressive "direct action" tactics that are sometimes called "eco-terrorism." Sea Shepherd's methods include damaging vessels, as well as throwing acid containers and smoke bombs onto vessels.

Cetacean sued Sea Shepherd under the Alien Tort Statute, 28 U.S.C. Section 1350 [cause of action for "a tort ... committed in violation of the law of nations or a treaty of the United States."]. Cetacean claims that Sea Shepherd's actions constitute piracy and violate international agreements. The U.S. District Court for the Western District of Washington denied Cetacean's motion for a preliminary injunction and dismissed the piracy claims.

The U.S. Court of Appeals for the Ninth Circuit reverses the District Court's denial of the preliminary injunction. Also, the Court finds that Cetacean did state a claim for piracy.

Cetacean's allegations of piracy meet the UNCLOS definition. Even environmental activism can be a "private end":

"We review the district court's dismissal of Cetacean's piracy claims de novo. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008). '[The definition of piracy under the law of nations ... [is] spelled out in the UNCLOS, as well as the High Seas Convention,' which provide almost identical definitions. United States v. Dire, 680 F.3d 446, 469 (4th Cir. 2012); see United Nations Convention on the Law of the Sea ('UNCLOS'), art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397; Convention on the High Seas, art. 15, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82. The UNCLOS defines 'piracy' as '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 ... and directed ... on the high seas, against another ship ... or against persons or property on board such ship.' UNCLOS art. 101 ... ; see also Convention on the High Seas art. 15."

"The district court's analysis turns on an erroneous interpretation of 'private ends' and 'violence.' The district court construed 'private ends' as limited to those pursued for 'financial enrichment.' But the common understanding of 'private' is far broader. The term is normally used as an antonym to 'public' (e.g., private attorney general) and often refers to matters of a personal nature that are not necessarily connected to finance (e.g., private property, private entrance, private understanding and invasion of privacy). See Webster's New Int'l Dictionary 1969 (2d. ed. 1939) (defining 'private' to mean '[b]elonging to, or concerning, an individual person, company, or interest')."

"We give words their ordinary meaning unless the context requires otherwise. ... The context here is provided by the rich history of piracy law, which defines acts taken for private ends as those not taken on behalf of a state. ... Belgian courts, perhaps the only ones to have previously considered the issue, have held that environmental activism qualifies as a private end. See Cour de Cassation [Cass.] [Court of Cassation] Castle John v. NV Mabeco, Dec. 19, 1986, 77 I.L.R. 537 (Belg.). This interpretation is 'entitled to considerable weight.' Abbott v. Abbott, 130 S. Ct. 1983, 1993 (2010) (internal quotation marks omitted). We conclude that 'private ends' include those pursued on personal, moral or philosophical grounds, such as Sea Shepherd's professed environmental goals. That the perpetrators believe themselves to be serving the public good does not render their ends public."

"The district court's interpretation of 'violence' was equally off-base. Citing no precedent, it held that Sea Shepherd's conduct is not violent because it targets ships and equipment rather than people. This runs afoul of the UNCLOS itself, which prohibits 'violence ... against another ship' and 'violence ... against persons or property.' UNCLOS art. 101. Reading 'violence' as extending to malicious acts against inanimate objects also comports with the commonsense understanding of the term, see Webster's New Int'l Dictionary 2846, as when a man violently pounds a table with his fist. Ramming ships, fouling propellers and hurling fiery and acidfilled projectiles easily qualify as violent activities, even if they could somehow be directed only at inanimate objects."

"Regardless, Sea Shepherd's acts fit even the district court's constricted definition. The projectiles directly endanger Cetacean's crew, as the district court itself recognized. And damaging Cetacean's ships could cause them to sink or become stranded in glacier-filled, Antarctic waters, jeopardizing the safety of the crew."

"The activities that Cetacean alleges Sea Shepherd has engaged in are clear instances of violent acts for private ends, the very embodiment of piracy. The district court erred in dismissing Cetacean's piracy claims." [Slip op. 5-7]

The Court also reverses the denial of a preliminary injunction.

"Cetacean sought its injunction pursuant to three international agreements: the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation ('SUA Convention'), art. 3, Mar. 10, 1988, S. Treaty Doc. No. 101-1, 1678 U.N.T.S. 222, the UNCLOS and the Convention on the International Regulations for Preventing Collisions at Sea ('COLREGS'), Oct. 20, 1972, 28 U.S.T. 3459, 1050 U.N.T.S. 18." [...]

"The SUA Convention prohibits acts that endanger, or attempt to endanger, the safe navigation of a ship. SUA Convention art. 3. Cetacean presented uncontradicted evidence that Sea Shepherd's tactics could seriously impair its ability to navigate. The district court nonetheless concluded that, since Sea Shepherd has not yet disabled any of Cetacean's ships, it's unlikely it would succeed in the future. This was clear error. The district court overlooked the actual language of the Convention, which prohibits 'endanger[ing]' safe navigation. Id. This requires only that Sea Shepherd create dangerous conditions, regardless of whether the harmful consequences ever come about. See Webster's New Int'l Dictionary 843. As to whether Sea Shepherd's tactics actually are dangerous, the record discloses that it has rammed and sunk several other whaling vessels in the past. ..."

"... The district court's conclusion that Cetacean wasn't likely to succeed on its SUA Convention claims rested on an implausible determination of the facts and an erroneous application of law; it was an abuse of discretion. ..."

"The district court did find that Cetacean is likely to succeed on the merits of its claims under the COLREGS. The COLREGS state obligatory and universal norms for navigating ships so as to avoid collision. ... Sea Shepherd deliberately navigates its ships dangerously close to Cetacean's ships. The district court's finding that this is likely a violation of the COLREGS is adequately supported by the record. ..."

"The district court determined that 'injury is possible, but not likely,' even though it found that the projectiles Sea Shepherd launches at Cetacean's ships 'are an obvious hazard to anyone who [sic] they might hit' and that Sea Shepherd navigates its ships 'in such a way that a collision is highly likely.' Sea Shepherd itself adorns the hulls of its ships with the names and national flags of the numerous whaling vessels it has rammed and sunk. ... The district court's observation that Cetacean hasn't yet suffered these injuries is beside the point. ... Cetacean's uncontradicted evidence is that Sea Shepherd's tactics could immobilize Cetacean's ships in treacherous Antarctic waters, and this is confirmed by common sense: A dangerous act, if committed often enough, will inevitably lead to harm, which could easily be irreparable." [Slip op. 8-10]

"... The primary public interests at issue here are the health of the marine ecosystem ..., and the safety of international waterways."

"Where a valid law speaks to the proper level of deference to a particular public interest, it controls. ... Our laws defining the public interest in regards to whaling are the Whaling Convention Act and the Marine Mammal Protection Act, both of which permit whaling pursuant to scientific permits issued under the Whaling Convention. 16 U.S.C. [section] 1372; 16 U.S.C. [section] 916c. Cetacean's activities are covered by such a permit and thus are consistent with congressional policy as to the marine ecosystem."

"Our laws also reflect a strong public interest in safe navigation on the high seas. As already discussed, Sea Shepherd's activities clearly violate the UNCLOS, the SUA Convention and the COLREGS. ... As such, they are at loggerheads with the public interest of the United States and all other seafaring nations in safe navigation of the high seas." [...]

"The district court also rejected Cetacean's claims on international comity grounds. While there is a public interest in maintaining harmonious international relations, it's not a factor here. An Australian court has entered default judgment against Cetacean, purporting to enjoin it from whaling in Antarctic coastal waters over which Australia claims sovereignty. The district court's deference to Australia's judgment in that case was an abuse of discretion. ... To begin, the district court misunderstood the Australian judgment, which addressed the legality of Cetacean's activities, not Sea Shepherd's. Whatever the status of Cetacean's whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia's court orders."

"Additionally, comity applies only if the foreign court has competent jurisdiction. ... But the United States doesn't recognize Australia's claims of sovereignty over Antarctic waters. See Note from U.S. Deputy Representative to the United Nations, to Secretary-General of the United Nations (Dec. 3, 2004); Note from Embassy of the United States, to Australian Department of Foreign Affairs and Trade (Mar. 31, 1995). By according comity to Australia's judgment, we would implicitly recognize Australia's jurisdiction, in contravention of the stated position of our government. The conduct of foreign affairs is within the exclusive province of the Executive ... and we must defer to its views ..." [...]

"The district court held that Cetacean's hands are unclean because, '[i]n flouting the Australian injunction, the whalers demonstrate their disrespect for a judgment of a domestic court.' Because neither the United States nor Japan recognizes Australia's jurisdiction over any portion of the Southern Ocean, Cetacean owes no respect to the Australian order. Moreover, the unclean hands doctrine requires that the plaintiff have 'dirtied [his hands] in acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant.' ... . Cetacean has done nothing to acquire the rights to safe navigation and protection from pirate attacks; they flow automatically from customary international law and treaties. Nor is there anything remotely inequitable in seeking to navigate the sea lanes without interference from pirates." [Slip op. 11-14]

Therefore, the Court reverses and remands, and recommends the case be assigned to a different judge.

CITATION: Institute for Cetacean Research v. Sea Shepherd Conservation Society, No. 12-35266 (9th Circuit, February 25, 2013).
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Publication:International Law Update
Geographic Code:1USA
Date:Jan 1, 2013
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