February 27, 2013

"You don't need a peg leg or an eye patch"

Charlene recommends this opinion, by her favorite federal judge I love that last paragraph:

KOZINSKI, Chief Judge:

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 page 3 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..

...The district court held that Cetacean's hands are unclean because, "[i]n flouting the Australian injunction, the whalers demonstrate their disrespect for a judgment of a domestic court." Because neither the United States nor Japan recognizes Australia's jurisdiction over any portion of the Southern Ocean, Cetacean owes no respect to the Australian order. Moreover, the unclean hands doctrine requires that the plaintiff have "dirtied [his hands] in acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant." Republic Molding Corp. v. B.W. Photo Utils., 319 F.2d 347, 349 (9th Cir. 1963). Cetacean has done nothing to acquire the rights to safe navigation and protection from pirate attacks; they flow automatically from 
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customary international law and treaties. Nor is there anything remotely inequitable in seeking to navigate the sea lanes without interference from pirates.
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The district court's orders denying Cetacean's preliminary injunction and dismissing its piracy claims are REVERSED. The preliminary injunction we issued on December 17, 2012, Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 702 F.3d 573 (9th Cir. 2012), will remain in effect until further order of this court. The district judge's numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington. The panel retains jurisdiction over any further appeals or writs involving this case.
Posted by John Weidner at February 27, 2013 7:18 AM
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