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Institute of Cetacean Research, A Japanese Research Foundation; Kyodo v. Sea Shepherd Conservation Society

February 25, 2013

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.



Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding D.C. No. 2:11-cv-02043-RAJ

The opinion of the court was delivered by: Kozinski, Chief Judge:

FOR PUBLICATION

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

OPINION

Argued and Submitted October 9, 2012

Seattle, Washington Before: KOZINSKI, Chief Judge, TASHIMA and M. SMITH, Circuit Judges.

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).

I. 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 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) ("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 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 ...


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