Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y
| Decision Date | 25 February 2013 |
| Docket Number | D.C. No. 2:11-cv-02043- RAJ,No. 12-35266,12-35266 |
| Parties | INSTITUTE OF CETACEAN RESEARCH, a Japanese research foundation; KYODO SENPAKU KAISHA, LTD, a Japanese corporation; TOMOYUKI OGAWA, AN INDIVIDUAL; TOSHIYUKI MIURA, an individual, Plaintiffs-Appellants, v. SEA SHEPHERD CONSERVATION SOCIETY an Oregon nonprofit corporation; PAUL WATSON, an individual, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
FOR PUBLICATION
ORDER ANDAMENDED
OPINIONAppeal from the United States District Court
for the Western District of Washington
Argued and Submitted
October 9, 2012—Seattle, Washington
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges.
Order;
Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent
by Judge Milan D. Smith, Jr.
SUMMARY*
Maritime Law
The panel reversed the district court's orders denying a preliminary injunction and dismissing certain claims in an action under the Alien Tort Statute brought against environmental activists by Japanese researchers who hunt whales in the Southern Ocean pursuant to a permit issued under the International Convention for the Regulation of Whaling, art. VIII.
The panel held that the whalers stated claims for piracy, defined under the United Nations Convention on the Law of the Sea and the High Seas Convention 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." The panel held that "private ends" are not limited to those pursued for financial enrichment and that "violence" extends to malicious acts against inanimate objects.
Reversing the denial of the whalers' motion for a preliminary injunction, the panel held that they were likely to succeed on the merits of their claims under three international agreements: the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the United Nations Convention on the Law of the Sea, and the Convention on the International Regulations for Preventing Collisions at Sea. The panel held that there was a likelihood of irreparable harm, and the balance of the equities and the public interest favored the whalers. The panel held that the district court abused its discretion in deferring to the judgment of an Australian court because the United States does not recognize Australia's claims of sovereignty over Antarctic waters. In addition, the unclean hands doctrine did not apply. The panel remanded the case with instructions that it be transferred to another district judge.
Concurring in part and dissenting in part, Judge Smith concurred in both the reasoning and the judgment of the panel opinion, reversing the district court's dismissal of the whalers' piracy claims, and its failure to grant them a preliminary injunction. He dissented from the majority's decision to reassign the case to a different district judge.
Martha Christie Helmer, John Neupert (argued) and James L. Phillips, Miller Nash, LLP, Portland Oregon, for Appellants.
Rachel Eve Buker, Daniel P. Harris (argued) and Charles Philip Moure, Harris & Moure, PLLC, Seattle, Washington, for Appellees.
The opinion is amended as follows:
Defendants-Appellees' petition for rehearing en banc is denied. See Fed. R. App. P. 35.
Paul Watson's petition for rehearing en banc of our April 1, 2013, order denying him leave to file a late supplemental petition for rehearing en banc is also denied. See id. We are unpersuaded by Watson's belated claim that he and co-defendant-appellee Sea Shepherd developed "divergent interests." Watson had months to consider whether his interests diverge from Sea Shepherd's, yet claims to have discovered only recently that they do. He does notexplain how or why. His bald assurance that "serious grounds exist[]" is too little, too late.
No further petitions for panel rehearing or rehearing en banc may be filed.
You don't need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.
Plaintiffs-Appellants (collectively, "Cetacean") are Japanese researchers who hunt whales in the Southern Ocean. The United States, Japan and many other nations are signatories to the International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74, which authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. Cetacean has such a permit from Japan. Nonetheless, it has been hounded on the high seas for years by a group calling itself Sea Shepherd Conservation Society and its eccentric founder, Paul Watson (collectively "Sea Shepherd"). Sea Shepherd's tactics include all of those listed in the previous paragraph.
Cetacean sued under the Alien Tort Statute, 28 U.S.C. § 1350, for injunctive and declaratory relief. The statute provides a cause of action for "a tort . . . committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. Cetacean argues that Sea Shepherd's acts amount to piracy and violate international agreements regulating conduct on the high seas. The district court denied Cetacean's request for a preliminary injunction and dismissed its piracy claims. We have jurisdiction over the order denying the injunction pursuant to 28 U.S.C. § 1292(a). We also have jurisdiction to review the dismissal of the piracy claims because the district court's reasoning for dismissing them is "inextricably intertwined with" its reasons for denying the preliminary injunction. Smith v. Arthur Andersen LLP, 421 F.3d 989, 998 (9th Cir. 2005) (internal quotation marks omitted).
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). "[T]he 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 (emphasis added); 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. See Leocal v. Ashcroft, 543 U.S. 1, 8-9 (2004); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). 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. See Douglas Guilfoyle, Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts, 57 Int'l & Comp. L. Q. 690, 693 (2008) (discussing the High Seas Convention); Michael Bahar, Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations, 40 Vand. J. Transnat'l L. 1, 32 (2007); see also Harmony v. United States, 43 U.S. (2 How.) 210, 232 (1844) (). Belgian courts, perhaps the only ones to have previously considered the issue, have held that environmental activism qualifies asa 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...
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