Alien Tort Statute: Litigation

Ninth Circuit Calls Sea Shepherd Actions "Piracy"

By Kenneth Anderson
Wednesday, February 27, 2013, 2:24 PM

Not all news today is the secret meeting of the Lawfare cabal in plain sight - at the House Judiciary Committee hearing on drones and targeted killing.  There is, for example, the opinion just issued in the Sea Shepherd case by the Ninth Circuit, with these opening sentences from Chief Judge Kozinski:

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.

The Sea Shepherd is the ship helmed by controversial environmental activist Paul Watson (made famous on the reality TV show Whale Wars) that attempts to prevent Japanese whaling ships from taking whales.  The case is an Alien Tort Statute case brought by the whalers' association in US courts against the US-based organization that operates the Sea Shepherd.  There are two principal issues here.  One is whether the activities of the Sea Shepherd constitute "piracy"; the Ninth Circuit's view is clear from the quote above. The other is whether this constitutes a cause of action cognizable under the Alien Tort Statute; the language of Sosa, the Supreme Court's last outing on the ATS, would seem to treat piracy as a paradigmatic case for the ATS.  But piracy law expert Eugene Kontorovich, writing at Volokh Conspiracy, raises some questions about that, along with other comments on whether the acts meet the definition of piracy.  Over at Opinio Juris, Julian Ku and Kevin Jon Heller also debate the holding.  The ATS issue is particularly interesting, of course, given that the SCOTUS should be releasing its new ATS opinion in the Kiobel case, which might well have implications for this suit.  For my part, I encourage everyone to watch South Park.