Court of Appeals Holds That Group Using Aggressive Tactics at Sea to Interfere with a Whaling Vessel Can Be Held Liable for Piracy under Alien Tort Statute

The World in U.S. Courts: Summer 2013 - Alien Tort Statute | February.25.2013

Institute of Cetacean Research, a Japanese Research Foundation v. Sea Shepherd Conservation Society (U.S. Court of Appeals 9th Circuit, Feb. 25, 2013)

An anti-whaling group calling itself Sea Shepherd Conservation Society (“Sea Shepherd”) used its ships to interfere with Japanese vessels hunting whales on the high seas. Japanese whaling ships operated by the Institute of Cetacean Research (“Cetacean”) sued Sea Shepherd and its leader for piracy under the Alien Tort Statute, seeking damages and injunctive relief. The district court dismissed the action. Assessing the claim under the United Nations Convention on the Law of the Sea's definition of "piracy" ("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 . . . on the high seas, against another ship . . . or against persons or property on board such ship”), the district court found that the Sea Shepherd was not acting out of “private interest,” but rather out of altruistic motives. Further, the court found it did not use “violence,” as defined by the international treaty, because its members were not trying to hurt anyone.

On appeal, the court reversed and enjoined the activities of the Sea Shepherd. The court of appeals held that, notwithstanding the group’s alleged good motives, they were still acting out of private interests. The court explained that “private interest” simply distinguishes the acts of private parties from the acts attributable to a state. Further, the court of appeals held that Sea Shepherd used violent tactics to stop the whaling and in doing so endangered the lives of those on the Cetacean whaling vessels. Thus, the court concluded that Sea Shepherd was guilty of piracy. Finally, the court of appeals rejected the argument that relief should be denied because the Cetacean ships were allegedly acting in violation of an Australian injunction in conducting their whaling in the Southern Ocean. The court explained that the claimed violation of the Australian order provided no basis for denying Cetacean relief under the Alien Tort Statute in U.S. courts.

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