The plaintiffs are Japanese researchers who hunt whales in the Southern Ocean. The defendants are environmentalists who oppose whaling. Both parties sought damages and injunctive relief related to past, present, and future actions of allegedly perpetrating and funding piracy and unsafe navigation in the Southern Ocean. The defendants alleged that the plaintiffs committed acts of piracy in furtherance of the 'private end' of 'illegal, private commercial whaling activities'. The plaintiffs moved to dismiss on the grounds that the defendants' counterclaim was barred by the act of state doctrine. According to art 8 of the International Convention for the Regulation of Whaling 1946, Japan has issued the plaintiffs a 'special permit', which authorises a limited amount of lethal whaling for purposes of scientific research. The plaintiffs construed the defendants' piracy counterclaim as implicitly challenging the validity of Japanese special permit by positing that the plaintiffs' whaling was illegal and commercial.

Held: Motion denied.

The United Nations Convention on the Law of the Sea 1982 (UNCLOS) defines 'piracy' as '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 ... and directed ... on the high seas, against another ship ... or against persons or property on board such ship'.

In the context of a piracy claim, an act undertaken for 'private ends' is one 'not taken on behalf of a state'. The 'private ends' element of piracy was intended to carve out acts of warfare, the archetypal 'public end', and analogous behaviour; not to limit piracy's applicability to ends 'pursued for financial enrichment'. The mere issuance of a special permit by the Japanese government to the plaintiffs did not convert the plaintiffs' whaling into an act taken on behalf of Japan in the sense that a warship acts 'on behalf of' its country. Therefore, the defendants' piracy counterclaim was not barred by the act of state doctrine.