Colourful US judge Alex Kozinski was on the button this week declaring the so-called Sea Shepherd anti-whaling group and its eccentric founder Paul Watson pirates.
“You don’t need a peg leg or an eye patch," says Judge Kozinski.
"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.”
Judge Kozinski, the chief judge of the US Court of Appeals Ninth Circuit, does not mince words.
In a unanimous decision with two other judges he overturned a Seattle trial judge’s earlier decision siding with the whaling protesters and tossing out a lawsuit filed by the Japanese Institute of Cetacean Research seeking a court-ordered halt to the aggressive tactics.
The Appeal Court also said the injunction should go back to the lower court and – because of the numerous, serious and obvious errors of the original hearing judge – be heard by a different judge.
US District Court judge Richard Jones sided with Sea Shepherd on several grounds, rejecting the whalers’ piracy accusations and refusing to stop the group’s protests which Judge Jones figured were not violent.
Much of the case hinged around the definition of Sea Shepherd’s “private ends”.
In totally disagreeing with the lower court judge, the appeal judges concluded “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.”
Judge Kozinski says 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.”
He said this ran afoul of the United Nations Convention on the Law of the Sea (UNCLOS), which prohibits “violence ... against another ship” and “violence ... against persons or property.”
The Court likened violence to an inanimate object as when a man violently pounds a table with his fist.
“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,” the Court found.
Judge Kozinski says that regardless, Sea Shepherd’s acts fit even the district court’s constricted definition.
“The projectiles directly endangered Cetacean’s crew, as the district court itself recognised.
"And damaging Cetacean’s ships could cause them to sink or become stranded in glacier-filled, Antarctic waters, jeopardizing the safety of the crew.
"The activities that Cetacean alleges Sea Shepherd has engaged in are clear instances of violent acts for private ends, the very embodiment of piracy.
"The district court erred in dismissing Cetacean’s piracy claims.”
The Appeal Court found Judge Jones failed to recognise that Sea Shepherd – which has rammed and sunk several other whaling ships in the past – at the very least attempted to endanger the navigation of Cetacean’s ships.
Sea Shepherd adorns the hulls of its ships with the names and national flags of the numerous whaling vessels it has rammed and sunk.
By violating UNCLOS and other conventions Sea Shepherd was at loggerheads with the public interest of the United States and all other seafaring nations in safe navigation of the high seas, Judge Kozinski says.
Enjoining piracy sends no message about whaling: “It sends the message that we will not tolerate piracy,” the judge says.
“This is hardly a controversial view, as evidenced by a joint statement from the United States, Australia, the Netherlands and New Zealand condemning dangerous activities in the Southern Oceans.”
Refusing the Cetacean injunction, Judge Koxinski says “sends a far more troublesome message that we condone violent vigilantism by US nationals in international waters”.
Ronald Reagan-appointed and Romanian-born Judge Kozinski – praised for plain language commonsense decisions – visited New Zealand briefly in September 2011 on his way to Sydney as keynote speaker at the 25th annual conference of the Intellectual Property Society of Australia and New Zealand.
In an exclusive interview on that occasion he told the National Business Review American judges faced the same dilemma as New Zealand judges with the amount of civil court work lost to mediation in “private courts”.