Institute of Cetacean Research, et al v. Sea Shepherd Conservation Soci, et al
FILED OPINION (ALEX KOZINSKI, A. WALLACE TASHIMA and MILAN D. SMITH, JR.) REVERSED. Judge: AK Authoring, Judge: MDS Concurring & dissenting. The district court s orders denying Cetacean s preliminary injunction and dismissing its piracy claims are REVERSED. The preliminary injunction we issued on December 17, 2012, Inst. of Cetacean Research v. Sea Shepherd Conservation Soc y, 702 F.3d 573 (9th Cir. 2012), will remain in effect until further order of this court. The district judge s numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington. The panel retains jurisdiction over any further appeals or writs involving this case. FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FEB 25 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
INSTITUTE OF CETACEAN
RESEARCH, a Japanese research
foundation; KYODO SENPAKU
KAISHA, LTD., a Japanese
corporation; TOMOYUKI OGAWA, an
individual; TOSHIYUKI MIURA, an
D.C. No. 2:11-cv-02043-RAJ
Plaintiffs - Appellants,
SEA SHEPHERD CONSERVATION
SOCIETY, an Oregon nonprofit
corporation; PAUL WATSON, an
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted October 9, 2012
KOZINSKI, Chief Judge, TASHIMA and M. SMITH, Circuit
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KOZINSKI, Chief Judge:
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
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
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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).
DISMISSAL OF THE PIRACY CLAIMS
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
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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-
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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)
(“The law looks to [piracy] as an act of hostility . . . being committed by a vessel
not commissioned and engaged in lawful warfare.”). 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
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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 acid-filled 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
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.
“A plaintiff seeking a preliminary injunction must establish  that he is
likely to succeed on the merits,  that he is likely to suffer irreparable harm in the
absence of preliminary relief,  that the balance of equities tips in his favor, and
 that an injunction is in the public interest.” Winter v. Natural Res. Def.
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Council, Inc., 555 U.S. 7, 20 (2008). We review the district court’s denial of the
preliminary injunction for abuse of discretion. Harris v. Bd. of Supervisors, L.A.
Cnty., 366 F.3d 754, 760 (9th Cir. 2004). “A district court would necessarily
abuse its discretion if it based its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990).
Likelihood of Success
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
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
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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 “endager[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. See Appendix.
The district court also erred by failing to recognize that Sea Shepherd, at the
very least, attempted to endanger the navigation of Cetacean’s ships. An attempt is
sufficient to invoke the SUA Convention, even if unsuccessful. Sea Shepherd’s
repeated claims that its efforts are merely “symbolic” and “employed so as to
ensure maximum safety” are disingenuous. How else can it explain that it has
switched to metal-reinforced prop-fouling ropes? Reinforced ropes carry the same
symbolic meaning as normal ropes, but they are far more destructive. Nor does
symbolism require Sea Shepherd to bring its ships dangerously close to
Cetacean’s. 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
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and an erroneous application of law; it was an abuse of discretion. United States v.
Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).
For the reasons explained above, Part I, supra, the district court erred in its
assessment of Cetacean’s UNCLOS piracy claims, and consequently abused its
discretion in assessing the likelihood of success on these claims. See Cooter &
Gell, 496 U.S. at 405.
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. Crowley Marine Services, Inc.
v. Maritrans, Inc., 530 F.3d 1169, 1172–73 (9th Cir. 2008). 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. See Hinkson. 585 F.3d at 1251.
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LIKELIHOOD OF IRREPARABLE HARM
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. See Appendix. The district
court’s observation that Cetacean hasn’t yet suffered these injuries is beside the
point. See Helling v. McKinney, 509 U.S. 25, 33 (1993). 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. Harris, 366 F.3d at 766.
BALANCE OF EQUITIES
The district court correctly found that the balance of equities favors
Cetacean. As it noted, “[a]bsent an injunction, the whalers will continue to be the
victims of Sea Shepherd’s harassment,” but “Sea Shepherd . . . points to no
hardship that it will suffer if the court imposes an injunction.”
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“The public interest inquiry primarily addresses impact on non-parties rather
than parties.” Bernhardt v. L.A. Cnty., 339 F.3d 920, 931 (9th Cir. 2003) (internal
quotation marks omitted). This is particularly the case where “the impact of an
injunction reaches beyond the parties, carrying with it a potential for public
consequences.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009).
The primary public interests at issue here are the health of the marine ecosystem,
Winter, 555 U.S. at 25–26; see also Earth Island Inst. v. U.S. Forest Serv., 442
F.3d 1147, 1177 (9th Cir. 2006), and the safety of international waterways.
Where a valid law speaks to the proper level of deference to a particular
public interest, it controls. See Golden Gate Rest. Ass’n v. City & Cnty. of S.F.,
512 F.3d 1112, 1126–27 (9th Cir. 2008). 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. § 1372; 16 U.S.C. § 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,
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the SUA Convention and the COLREGS. See Part II.A, supra. 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 considered the interest in keeping U.S. courts out of
the international political controversy surrounding whaling. But enjoining piracy
sends no message about whaling; it sends the message that we will not tolerate
piracy. This is hardly a controversial view, as evidenced by a joint statement from
the United States, Australia, the Netherlands and New Zealand condemning
dangerous activities in the Southern Ocean. Joint Statement on Whaling and
Safety at Sea from the Governments of Australia, the Netherlands, New Zealand,
and the United States: Call for Responsible Behavior in the Southern Ocean Whale
Sanctuary (Dec. 13, 2011), available at
http://www.state.gov/r/pa/prs/ps/2011/12/178704.htm. Refusing the injunction
sends the far more troublesome message that we condone violent vigilantism by
U.S. nationals in international waters.
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
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over which Australia claims sovereignty. The district court’s deference to
Australia’s judgment in that case was an abuse of discretion. Asvesta v.
Petroutsas, 580 F.3d 1000, 1009 (9th Cir. 2009). 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. Id. at 1011. 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, see United States v. Hooker, 607 F.2d
286, 289 (9th Cir. 1979), and we must defer to its views, see Willams v. Suffolk
Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839); cf. Mingtai Fire Ins. Co. v. United
Parcel Serv., 177 F.3d 1142, 1147 (9th Cir. 1999).
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An injunction is an equitable remedy. Winter, 555 U.S. at 32. While the
Winter factors “are pertinent in assessing the propriety of any injunctive relief,”
id., traditional equitable considerations such as laches, duress and unclean hands
may militate against issuing an injunction that otherwise meets Winter’s
requirements. Here, however, the district court abused its discretion in denying the
injunction based on unclean hands. Seller Agency Council, Inc. v. Kennedy Ctr.
for Real Estate Educ., Inc., 621 F.3d 981, 986 (9th Cir. 2010).
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.” Republic Molding Corp. v. B.W. Photo Utils., 319
F.2d 347, 349 (9th Cir. 1963). Cetacean has done nothing to acquire the rights to
safe navigation and protection from pirate attacks; they flow automatically from
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customary international law and treaties. Nor is there anything remotely
inequitable in seeking to navigate the sea lanes without interference from pirates.
The district court’s orders denying Cetacean’s preliminary injunction and
dismissing its piracy claims are REVERSED. The preliminary injunction we
issued on December 17, 2012, Inst. of Cetacean Research v. Sea Shepherd
Conservation Soc’y, 702 F.3d 573 (9th Cir. 2012), will remain in effect until
further order of this court. The district judge’s numerous, serious and obvious
errors identified in our opinion raise doubts as to whether he will be perceived as
impartial in presiding over this high-profile case. The appearance of justice would
be served if the case were transferred to another district judge, drawn at random,
and we so order in accordance with the standing orders of the Western District of
Washington. The panel retains jurisdiction over any further appeals or writs
involving this case.
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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.
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