The plaintiffs (the Institute of Cetacean Research) are Japanese researchers who perform lethal whaling in the Southern Ocean. Article 3 of the International Convention for the Regulation of Whaling 1946 (Whaling Convention) allows whale hunting conducted in accordance with a 'special permit' granted for purposes of scientific research by a signatory State. Japan is a signatory to the Whaling Convention and has issued special permits to the plaintiffs on an annual basis. The defendants (Sea Shepherd Conservation Society) are environmentalists who oppose whaling by following the plaintiffs' whaling ships and frustrating their whale hunting. The defendants' campaigns led to several nautical confrontations between the plaintiffs and the defendants. Accordingly, the plaintiffs commenced an action against the defendants. The defendants asserted counterclaims. 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. These claims and counterclaims relied on several international agreements, including the United Nations Convention on the Law of the Sea 1982 (UNCLOS), the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 (SUA Convention 1988), the United Nations International Convention for the Suppression of the Financing of Terrorism 1999 (Financing Convention), the Convention on the International Regulations for Preventing Collisions 1972 (COLREGS), and the Whaling Convention.

The Court of Appeals for the Ninth Circuit granted a preliminary injunction in favour of the plaintiffs in Institute of Cetacean Research v Sea Shepherd Conservation Society (CMI389). Based on the international norms expressed in the SUA Convention 1988, UNCLOS and COLREGS, the Court concluded that the defendants' acts qualified as piracy. The plaintiffs then moved to dismiss the defendants' counterclaims, or alternatively, moved for partial summary judgment; whereas the defendants moved for judgment on the plaintiffs' claims.

The plaintiffs claimed that the defendants' acts violated the freedom of safe navigation and constituted piracy. The defendants contended that there was no enforceable international norm against endangering safe navigation. The plaintiffs responded that the Ninth Circuit conclusively determined this question in Cetacean, where the Ninth Circuit stated that the rights to safe navigation and protection from pirate attacks 'flow automatically from customary international law and treaties'.

In addition, the plaintiffs claimed that the defendants violated art 2.1.a of the Financing Convention by providing funding, ships, and other assets to entities, with the intent that those assets be used to commit piracy and unsafe navigation in violation of the SUA Convention 1988. The defendants disputed whether the Financing Convention supported a private right of action under the Alien Tort Statute, either on its own or as a manifestation of an enforceable international norm.

The defendants counterclaimed to characterise the plaintiffs' whaling as piracy, which constituted acts of violence, detention and depredation in furtherance of 'private ends'.

Held: 'Freedom of safe navigation' is an enforceable international norm. The defendants' motion for judgment on the pleading as to the plaintiffs' claim for funding piracy and unsafe navigation is denied. The defendants' counterclaim for 'pirate whaling' is dismissed.

Regarding the plaintiffs' claim for 'freedom of safe navigation', the Ninth Circuit in Cetacean expressly analysed the relevant provisions of the SUA Convention 1988, UNCLOS, and COLREGS, and concluded that those international agreements supported the plaintiffs' claims for piracy and unsafe navigation. Thus, this Court is bound by Cetacean’s conclusion that the defendants' actions qualified as piracy and endangered safe navigation.

Regarding the plaintiffs' claim for 'funding piracy and unsafe navigation', the Ninth Circuit has concluded, based upon the international norms expressed in the SUA Convention 1988, UNCLOS, and COLREGS, that the plaintiffs' allegations of piracy and endangering safe navigation were sufficient to sustain a private action under the Alien Tort Statute. The Financing Convention expressly prohibits intentionally or knowingly funding such activities, with specific reference to violations of the SUA Convention 1988. In addition, art 3.2.b of the SUA Convention 1988 provides for aiding and abetting liability, which bolsters this inference and evidences acceptance of a norm against funding piracy and unsafe navigation. Therefore, the international norm against financing piracy and unsafe navigation is sufficiently specific, universal, and obligatory to sustain a cause of action. The defendants' motion for judgment on the pleading as to the plaintiffs' claim for funding piracy and unsafe navigation is denied.

Regarding defendants' counterclaim for 'pirate whaling', the plaintiffs' whaling does not constitute piracy. The defendants' definition omitted the requirement under art 101 of UNCLOS that such acts must be committed 'against another ship or aircraft, or against persons or property on board such ship or aircraft'. Accordingly, the defendants failed to state a claim for 'pirate whaling', and its counterclaim is dismissed.