BY DANIELLE T. GAUER – “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.”[1]
The Ninth Circuit in Inst. of Cetacean Research v. Sea Shepherd Conservation Society[2] articulated the above excerpt while addressing the issue of piracy with respect to a non-profit international organization’s conservation efforts and its attacks on a Japanese research foundation that has for many years been authorized to take whales for research purposes.
Article 101 of the Law of the Sea Convention defines “piracy” as “any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship…directed…against another ship…or against persons or property on board such ship.”[3] Excluded from this definition are actions taken for political motives such as terrorist attacks. They key here is that piracy must occur on the high seas.[4]
SSCS is a highly controversial group of anti-whaling activists whose mission is to end the “destruction of habitat and slaughter of wildlife in the world’s oceans in order to conserve and protect ecosystems and species”.[5] The group claims that its conservation efforts have saved hundreds of endangered and protected whales from Japanese whalers. As a non-profit international organization, SSCS’s funding comes from donations and fundraising.
The issue in Sea Shepherd Conservation Society was the definition of “private ends” and “violence” under the United Nations Convention on the Law of the Sea (UNCLOS) and more generally, whether SSCS’s environmental activism constitutes “piracy”. The plaintiffs, Japanese researchers, hunt whales in the Southern Ocean with a permit issued by Japan in compliance with the International Convention for the Regulation of Whaling (“Convention”).[6]
The Convention authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. The United States and Japan are both signatories to the Convention. The Ninth Circuit Court of appeals reviewed the district court’s dismissal of ICR’s piracy claims, and turned the analysis to the court’s erroneous interpretation of “private ends” and “violence”.[7] The Ninth Circuit held that the district court’s interpretation of “private ends” to mean “financial enrichment” was contrary to the common understanding of “private” which often refers to matters that are of a personal nature but not necessarily connected to finance.[8]
Similarly, the Ninth Circuit found the district court’s interpretation of “violence” to be problematic. Without citing any precedent, the district court held that SSCS’s conduct was not violent because its target wasn’t people, but rather ships and equipment.[9] The district court’s interpretation is contrary to the UNCLOS, which expressly prohibits violence against another ship, persons or property.[10] The Ninth Circuit criticizes the district court’s narrow reading of “violence” by stating that “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”.[11]
Despite the district court’s constricted definition of “violence”, the Ninth Circuit held that the fact that the projectiles can cause ICR’s vessel to sink, thereby jeopardizing the safety of the crew, is enough to answer in the affirmative whether the SSCS had engaged in piracy.
Of note, in 2012, the Ninth Circuit ordered an injunction pending the appeal against SSCS to stay away from Japanese whaling vessels. However, in December 2014 ICR filed a contempt proceeding against SSCS, its founder Paul Watson, its administrative director Susan Hartland, and six volunteer members of the SSCS U.S. board (collectively, Defendants). ICR alleged that SSCS had violated an injunction ordered against SSCS United States prohibiting it, Watson, and “any party acting in concert with them” from physically attacking or coming within 500 yards of the Plaintiffs’ whaling and fueling vessels on the open sea. The Ninth Circuit held SSCS U.S., Watson, and SSCS U.S.’s volunteer board members in contempt for violating the injunction for providing SSCS Australia and other entities millions of dollars in assets with the express intent they continue their conservation efforts.
The court held in favor of ICR and allowed the Institute to recover attorney’s fees and costs incurred in bringing and prosecuting these contempt proceedings. Further, the court noted that ICR should be able to recover its fees and costs against SSCS U.S. and Watson, as well as compensation for any actual damages suffered and resources (such as fuel and personnel costs) that were wasted as a result of the SSCS U.S.’s interference with ICR’s business. Lastly, the court stated that it would re-enter the matter to the Appellate Commissioner to determine the appropriate amount of attorney’s fees and costs as well as compensatory damages to award. The Commissioner shall determine whether the volunteer directors should also be held liable, and the extent to which each of them should be held liable, jointly and/or severally.[12]
This case is interesting in light of the recent news surrounding SSCS. Last month, SSCS was awarded $11.8 million at Amsterdam’s annual Good Money Gala, to build what they call their “dream ship”.[13] It is purported that this new custom-designed ship will be better capable of achieving greater speed to keep up with faster poachers.[14] As a maritime activist organization, SSCS as garnered huge support from environmental enthusiasts worldwide. However, despite its positive mission to protect the world’s marine environment, the Ninth Circuit has indirectly labeled SSCS as pirates and their efforts as piracy.
[1] Inst. Of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3d 940 (9th Cir. Wash. 2013) at 942.
[2] Going forward, Institute of Cetacean Research will be referred to as ICR and Sea Shepherd Conservation Society will be referred to as SSCS.
[3] United Nations Convention on the Law of the Sea (UNCLOS) 1833 UNTS 3; 21 ILM 1261 (1982) Art.101
[4] United Nations Convention on the Law of the Sea (UNCLOS) 1833 UNTS 3; 21 ILM 1261 (1982), Beyond the limits of the Exclusive Economic Zone Art.86 purports that the high seas extend to all parts of the sea that are not included within the Exclusive Economic Zone. Where a coastal state claims an EEZ of 200nm, the high seas will begin at that point.
[5] Sea Shepherd, http://www.seashepherd.org/who-we-are/ (last visited March 10, 2015).
[6] Art.VIII, Dec.2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74
[7] See Inst. Of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3d 940, 943 (9th Cir. Wash. 2013).
[8] Id.
[9] Id.
[10] See Inst. Of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3d 940, 943 (9th Cir. Wash. 2013); United Nations Convention on the Law of the Sea (UNCLOS) 1833 UNTS 3; 21 ILM 1261 (1982) Art.101.
[11] See Inst. Of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3d 940, 944 (9th Cir. Wash. 2013).
[12] Institute of Cetacean Research v. Sea Shepherd Conservation Society, 774 F.3d 935, 949 (9th Cir. 2014)
[13] Anthony Marcusa, Massive Donation to Help Sea Shepherd Create Perfect Anti-Whaling Ship, ecorazzi (Feb. 17, 2015), http://www.ecorazzi.com/2015/02/17/new-sea-shepherd-vessel-to-be-made-with-unprecedented-donation/
[14] Sea Shepherd to spend $12m award on ‘dream ship’ to patrol Southern Ocean, The Guardian (Jan. 26, 2015, 18:54), http://www.theguardian.com/environment/2015/jan/27/sea-shepherd-to-spend-12m-award-on-dream-ship-to-patrol-southern-ocean
