Institute of Cetacean Research v. Sea Shepherd Conservation Society
860 F. Supp. 2d 1216
W.D. Wash.2012Background
- Whalers sue Sea Shepherd and Mr. Watson seeking a preliminary injunction to keep Sea Shepherd 800 meters away and to stop attacks on the whaling fleet in the Southern Ocean.
- The court reviews substantial international-law and domestic-law bases, including the Alien Tort Statute (ATS) and admiralty jurisdiction, to assess injunctive relief viability.
- Sea Shepherd conducts aggressive tactics (bottles, paint, butyric acid, flares, lasers, lines to foul propellers) in a long-running Southern Ocean standoff with the Japanese whaling fleet.
- The whaling activities occur under Japan’s permit-based regime, with disputed legality of ‘scientific’ whaling permits and enforcement in AWS (Australian Whale Sanctuary).
- Australian court injunctions against whaling in AWS exist, and comity concerns arise because Australia asserts sovereignty in AWS and seeks to enforce its injunction.
- The court finds some factual risk of harm from Sea Shepherd’s tactics but determines the whalers lack sufficient likelihood of irreparable harm and that comity prevents granting relief for AWS conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ATS/admiralty law supports an injunction. | Whalers rely on AT S to enforce international norms against piracy and safe navigation. | ATS does not authorize injunctive relief; comity and extraterritoriality concerns limit relief; forums inappropriate. | ATS permits injunctive relief subject to limits; not categorically barred; here injunctive relief denied on merits and comity grounds. |
| Whether Sea Shepherd's conduct violates SUA or UNCLOS-based norms to support an ATS claim. | Sea Shepherd violates universal, obligatory norms protecting safe navigation and anti-piracy. | No clearly defined, universal private-end piracy norm; many acts fall short of actionable violence; SUA limited scope. | SUA COLREGS-based norms found specific, universal, and obligatory; some tactics may violate SUA; others do not show likelihood of endangering safe navigation. |
| Whether the court has subject-matter jurisdiction over the claims. | ATS/admiralty jurisdiction exists over international-law claims; diversity may support Washington claim. | Jurisdiction questionable for Washington claims and high-seas conduct; forum non conveniens defenses available. | Court has federal-question/admiralty jurisdiction; but Washington claims and other defenses not sufficient to warrant injunction; overall jurisdiction exists for ATS/admiralty. |
| Whether international comity bars relief for AWS conduct. | Relief against Sea Shepherd’s AWS conduct is necessary to protect whalers and is within court's powers. | Australian judgments and sovereignty should not be overridden by U.S. injunction; comity requires abstention from AWS-related relief. | International comity prevents granting relief for conduct within AWS; relief limited to non-AWS Southern Ocean conduct. |
| Whether unclean hands defeats the injunction. | Sea Shepherd’s tactics justify countermeasures; whalers themselves engaged in unlawful activity under AWS. | Whalers’ flouting of Australian injunction shows unclean hands and bars equitable relief. | Sea Shepherd likely has unclean hands; this independently bars the whalers from equitable relief. |
Key Cases Cited
- Winter v. NRDC, 555 U.S. 7 (U.S. 2008) (irreparable harm is required for preliminary injunctions)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (U.S. 2004) (ATS limits to recognizable norms of international law)
- Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (mutuality/obligatory nature of norms for ATS)
- Alvarez v. Doe, 331 F.3d 604 (9th Cir. 2003) (mutuality/universal acceptance and specificity of norms)
- Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2005) (examples of ATS norms (forced labor, etc.))