Sea Shepherds to pay Japanese whalers $2.55 million in damages

U.S. animal charities have now paid circa $28 million in damages to animal use industries in 31 months

The Institute of Cetacean Research, the umbrella for Japanese whaling, on February 26, 2013 released this photo and a video clip which ICR claimed showed the Sea Shepherd vessel Bob Barker ramming the refueling tanker Sun Laurel. But a longer Sea Shepherd video clip, appearing to show the same incident, shows that the Bob Barker was about the width of a third vessel, the whale chaser Nisshin Maru, from either the Nisshin Maru or the Sun Laurel. The Bob Barker held a straight and steady course between the Nisshin Maru and the Sun Laurel, obstructing the Sun Laurel from refueling the Nisshin Maru for the last ten days of the 2013 ICR whaling campaign. Five times the Nisshin Maru closed the gap, hit the Bob Barker broadside with multiple water cannon blasting the Bob Barker’s decks, and eventually pushed the Bob Barker against the Sun Laurel. (ICR photo)

FRIDAY HARBOR, Washington––The Sea Shepherd Conservation Society has agreed to pay at least $2.55 million in damages to the Institute of Cetacean Research and Kyodo Senpaku, the entities operating the Japanese “research” whaling industry.

“In exchange,” the Sea Shepherd Conservation Society said in a June 8, 2015 prepared statement, “ICR will dismiss its action for more than $4.1 million in damages related to contempt [of court], and drop all claims against the former Sea Shepherd board of directors.  Funding for the settlement will come from money from other legal actions and settlements, and will not include donor funds,” the announcement stipulated.

May pay more

ABC News reported late on June 10, 2015 that the amount to be paid will actually be $3.32 million, but did not say where the higher figure came from.  The larger sum may include legal fees as well as damages.

Regardless of the total to be paid by the Sea Shepherds, the sum exceeds the total Sea Shepherd annual budget as recently as 2006, according to IRS Form 990 filings.

The payment also raises to circa $28 million the sum paid by animal advocacy organizations over the past 31 months to animal use industries in settlement of claims upheld by courts––and some individual judges––who were formerly friendly toward pro-animal cases.

Elephants were front-and-center in this mid-20th century Ringling poster.

Settlement echoes Ringling case

Earlier, the Humane Society of the U.S. and American SPCA paid more than $25 million to Feld Entertainment, owner of the Ringling Bros. & Barnum and Bailey Circus.

The verdicts, from the Ninth U.S. Circuit Court of Appeals in the case of the Sea Shepherds, and the U.S. District Court for the District of Columbia in the cases of HSUS and the ASPCA, appear to signal increasing judicial concern about campaign tactics which may do more for fundraising than to expedite accomplishing advocacy goals.

The Sea Shepherd case focused on some of the high seas skirmishes that have made a hit of the ongoing Animal Planet TV series Whale Wars, while the HSUS and ASPCA case involved 10 years of litigation which never even got to a ruling on the basis of the advocacy claims, but was supported by many fundraising solicitations.

Why Sea Shepherd settled

Said Sea Shepherd legal counsel Claire Loebs Davis, “Sea Shepherd does not agree with the Ninth Circuit’s holding that it was in contempt, but after more than two years of litigation, we are very pleased to be putting the contempt action behind us. We look forward to focusing on the continuing litigation in the district court,” filed by the Sea Shepherds in U.S. District Court in Seattle on May 27, 2015, “which provides Sea Shepherd with the opportunity to expose ICR’s dangerous and illegal activities in the Southern Ocean – including the violent actions taken against those who have tried to stop it from killing whales in violation of international law.”

The Sea Shepherd Conservation Society vessel Bob Barker on February 26, 2013 survived being repeatedly crunched between the much larger Japanese whaling factory ship Nisshin Maru and the Sun Laurel, a Panamanian-flagged fuel oil tanker reportedly carrying a South Korean crew. (Sea Shepherd Conservation Society photo)

Pending litigation also includes an amended complaint filed by the Institute of Cetacean Research and Kyodo Senpaku on May 1, 2015, seeking a permanent injunction against Sea Shepherd and Watson, and counterclaims to the amended complaint filed by Sea Shepherd on May 15, 2015.

Federal District Court Judge Richard Jones in March 2012 denied a request for a preliminary injunction sought in 2011 by the Institute of Cetacean Research, but Martin was reversed by the Ninth Circuit Court of Appeals in December 2012.

“Pirates”

Ordered the Ninth Circuit Court of Appeals, “Defendants Sea Shepherd Conservation Society and Paul Watson,  and any party acting in concert with them,  are enjoined from physically attacking any vessel engaged by Plaintiffs the Institute of Cetacean Research,  Kyodo Senpaku Kaisha,  Ltd.,  Tomoyuki Ogawa or Toshiyuki Miura in the Southern Ocean or any person on any such vessel,  or from navigating in a manner that is likely to endanger the safe navigation of any such vessel.  In no event shall defendants approach plaintiffs any closer than 500 yards when defendants are navigating on the open sea.”

The Ninth Circuit Court of Appeals followed up the injunction on February 27,  2013 by formally designating the Sea Shepherds “pirates.”

Wrote chief judge Alex 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.”

Relocated from U.S.

Moving to thwart the injunction, by moving Sea Shepherd operations beyond the jurisdiction of U.S. courts, Sea Shepherd Conservation Society founder Paul Watson on January 8,  2013 “resigned” from all leadership roles within the organization,  officially turning the helm over to former Australian Green Party leader Bob Brown, who relocated the Sea Shepherd international headquarters from Friday Harbor,  Washington,  where the U.S. headquarters remained,  to Williamstown,  Victoria state,  Australia.  Brown resigned in April 2014.

Sea Shepherd’s M/Y Steve Irwin (foreground) collides with Japanese harpoon whaling ship the Yushin Maru No. 3, during an engagement in Antarctica’s Ross Sea on Friday, Feb. 6, 2009. Sea Shepherd attempted to block the harpoon ship from offloading a newly caught minke whale to factory ship, the NIsshin Maru (background). (Photo by Adam Lau/Sea Shepherd Conservation Society)

The U.S. Sea Shepherd chapter withdrew from participating in the Sea Shepherd Conservation Society International whale defense campaigns, which continued with little change in tactics. The Institute of Cetacean Research responded in early 2013 with a lawsuit accusing the Sea Shepherds of contempt of court.

“After an eight-day trial,” summarized the June 9, 2015 Sea Shepherd media release, “an Appellate Commissioner recommended that neither Sea Shepherd nor any of its affiliates be found in contempt. In December 2014, the Ninth Circuit disregarded this recommendation and found Sea Shepherd, Watson, and former members of the Sea Shepherd board of directors in contempt of the injunction based on the actions of the independent foreign groups. The Ninth Circuit also ordered the payment of damages resulting from this ‘contempt.’”

The Ady Gii when first acquired by the Sea Shepherd Conservation Society in 2009. Launched as Earthrace, the bio-diesel-fueled Ady Gil circumnavigated the world in just under 61 days in 2007, breaking
the previous record for powered vessels by 13 days, but falling 11 days short of the overall record set in 2005 by the sail-powered catamaran Orange II. A series of breakdowns and a collision with a
fishing vessel off Guatemala that killed a member of the fishing crew may have cost Earthrace the overall record. A 10-day investigation determined that the fishing vessel was at fault.

U.S. Supreme Court declined to review

Said current Sea Shepherd (U.S.) board president Ethan Wolf, “Although we believe we abided by the injunction, and the Appellate Commissioner agreed, we must accept that the Ninth Circuit found Sea Shepherd and its former board of directors to be in contempt, and it is time to put this dispute behind us.”

Added the Sea Shepherd release, “In a case set for trial in the fall of 2016, Sea Shepherd is seeking a declaration that ICR’s whaling in the Southern Ocean is illegal under international law, as well as an injunction preventing ICR from using violent and dangerous tactics to protect its illegal activities.  Ady Gil lawsuits pending

Sea Shepherd is also asking the district court to award damages for ICR’s deliberate ramming of the Sea Shepherd vessel Ady Gil in 2010.”

The Sea Shepherds announced the settlement with the Institute of Cetacean Research one day after disclosing that the U.S. Supreme Court had on June 4, 2015 declined to review the Ninth Circuit ruling.

Ady Gil and dog. (VeganStar photo)

The Ady Gil incident is also before the courts in three actions brought by multimillionaire investor Ady Gil himself.

Reported Caty Enders of The Guardian on June 5, 2015, “Gil claims Sea Shepherd founder Paul Watson ordered Ady Gil captain Pete Bethune to scuttle the boat and make it look like the work of the Japanese. Gil and his own conservation group, Ady Gil World Conservation, are bringing lawsuits against Sea Shepherd and founder Paul Watson for damages, defamation and fraud––the first of which, concerning the loss of the ship, will likely be decided this summer.

“The first suit alone,” Enders said, “could cost the Sea Shepherd Conservation Society as much as $50 million, according to court documents.”

However, Enders noted, “Gil’s lawsuit was sent to arbitration in 2014, meaning that witness testimony and the plaintiff’s findings will not be made available to the public.”

The Ady Gil after it was rammed. (Sea Shepherd Conservation Society photo)

What made the Ady Gil sink?

The case originated, Enders said, when Bethune told Gil in late 2010 that “after the [Japanese whale catcher] Shonan Maru 2 rammed his boat, Watson gave the order for Bethune and his crew to open the hatches and sink the vessel in the middle of the night, making it appear as though the collision had caused it to founder.

“An investigation by the New Zealand government almost a year after the sinking determined that both Bethune and the captain of the Shonan Maru 2 were to blame for the close-quarters situation and subsequent collision,” Enders continued. “It did not offer an opinion on what prompted the sinking of the Ady Gil, except to say that the boat’s engineers indicated it should not have sunk on its own. The investigation found that the system that tracked the boat’s vitals had been thrown into the sea, and the data destroyed.”

Second view of Ady Gil after ramming. (Sea Shepherd Conservation Society photo)

Bethune billed whalers

The collision and sinking both occurred on January 6, 2010. Bethune on February 14, 2010 boarded the Shonan Maru #2 from a Jet Ski and handed the captain a bill for the loss of the Ady Gil.  Taken to Japan,  Bethune was in July 2010 convicted in Tokyo District Court of illegally interfering with the whale hunt.  Given a two-year suspended sentence, Bethune was deported to New Zealand.

The Sea Shepherds paid much of the cost of Bethune’s legal defense,  but expelled him in June 2010, just before his trial in Tokyo, after learning that he had taken a bow and arrows aboard the Ady Gil,  violating Watson’s then-33-year-old policy that Sea Shepherd ships and volunteers must not carry deadly weapons.

Other prominent former Sea Shepherds had been expelled in the past for violating the no-weapons policy.

Bethune & book

According to an e-mail transcript released by Watson on October 5,  2010, Bethune on October 3, 2010 alleged that,  “When I met with Paul Watson in July 2009, he gave me permission to take a bow and arrow to Antarctica, with the idea of pasting a poison on the arrow tips (or fake poison),  and firing them into dead whales while they were being transferred from harpoon vessel to processing ship.”

However, this was a tactic that Watson had rejected, years earlier,  as a proposed method of protecting whales and African elephants and rhinos.

Bethune also alleged that the Sea Shepherds had reneged on a pledge to buy 800 copies of his book about the 2009-2010 anti-whaling campaign.

Watson responded, also on October 3, 2010, by telling Bethune that because Bethune “blamed all of your actions on me. I am on the Interpol Blue List,”  inhibiting his freedom of movement. Therefore, Watson said, “We cannot promote your book or allow you to be involved in Sea Shepherd activities.”

Concluded Watson,  “What I would like to suggest is that you continue to do your thing independent of Sea Shepherd.  We will say nothing publicly about you, if you say nothing publicly about us.”

Former Sea Shepherds move on

Wrote Enders, “In the wake of the Ady Gil controversy, at least half a dozen employees or high-ranking volunteers have left.”

The Sea Shepherd vessel Bob Barker during the 2014 Antarctic campaign against Japanese whaling.

Said former Sea Shepherd Conservation Society deputy chief executive officer Chuck Swift, who captained the Sea Shepherd vessel Bob Barker during the 2010 Antarctic campaign, and was involved with the Sea Shepherds for more than 20 years, “To have an effective win for the whales or for the environment, and to be able to stand proudly in front of our donors or the public, we need to have accomplished that victory in an ethical way.”

Summarized Enders, “Swift, who left in November 2011, now works as a conservation consultant for, among others, Ocean Defenders Alliance, a volunteer-based organization devoted to reporting and cleaning up ocean pollution. Former CEO Steve Roest left the organization in 2011, followed by Laurens de Groot in 2012, with whom Roest founded Skycap and ShadowView, which deploy drones to assist with anti-poaching missions. As for Bethune, he is now running Earthrace, a group that intervenes in poaching and deforestation and which has its own TV show,  The Operatives, airing in nine countries. He said five of his volunteers are Sea Shepherd veterans.”

Artist’s concept of the Sea Shepherd ship now under construction.

“Banner year worldwide”

“Despite all this,” Enders observed, “Sea Shepherd is having a banner year worldwide. The organization has experienced record fundraising and announced in January 2015 that it will spend a $12 million award from a Dutch national charity on a new custom-built, super fast “dream ship”. [Also] in January, the North American branch purchased two decommissioned Coast Guard cutters, and Whale Wars is slated to continue filming with Sea Shepherd Australia.”

The original Sea Shepherd vessel Farley Mowat. (Sea Shepherd Conservation Society photo)

The former USCG Block Island and USCG Pea Island are now renamed the Jules Verne and the Farley Mowat.

New Farley Mowat

“The new Farley Mowat replaces the first vessel Farley Mowat that Sea Shepherd purchased in 1997 and retired in 2008,” said a Sea Shepherd media release. “The new vessel was purchased with a bequest left by former Sea Shepherd International chair and Canadian writer Farley Mowat. The Jules Verne is named in honor of the French writer who gave the world the inspiring story of Captain Nemo,” the anti-war and anti-imperial antihero of the novels Twenty Thousand Leagues Under the Sea (1870) and The Mysterious Island (1874).

Captain Nemo, from first edition of 20,000 Leagues Under The Sea.

“The Jules Verne is partially sponsored by supporter John Paul DeJoria’s Peace, Love & Happiness Foundation,” the Sea Shepherd announcement said.

“Whales’ navy”

Said Paul Watson, “We have already offered the Jules Verne to assist the rangers at Cocos Island National Park Marine Reserve [Costa Rica] with anti-poaching interventions, and the Farley Mowat has been offered to patrol the Sea of Cortez in partnership with the government of Mexico to protect the endangered vaquita,” a Sea Shepherd mission most recently handled by the sailing ketch RV Martin Sheen.

The Sea Shepherd “whales’ navy” now includes eight vessels altogether. Another former U.S. Coast Guard patrol boat, operated from 1990 to 1999 as the Edward Abbey, was renamed the Sirenian and since 1999 has been on permanent assignment to patrolling the Galapagos National Park Marine Reserve off Ecuador.

The former Coast Guard patrol boats Block Island and Pea Island, recently acquired by the Sea Shepherd Conservation Society. (Sea Shepherd photo)

“Sea Shepherd Global, based in Amsterdam, operates the vessels Steve Irwin,  Bob Barker, Sam Simon, Brigitte Bardot and the Jairo Mora Sandoval,” the Sea Shepherd release said. “A sixth ship, as yet unnamed, is currently being constructed and will be launched in September 2016.”

19 minke whales killed

While celebrating the concession in the contempt case against the Sea Shepherds, the Japanese whaling industry more quietly acknowledged killing 19 minke whales off the coast of Miyagi Prefecture in April and May 2015, “the lowest number since the whaling for research purposes started there in 2003,” according to the Japan Times, of Tokyo.

Whaling team leader Toshihiro Mogoe said the Association for Community-Based Whaling fleet saw only 33 whales during 23 days at sea.

Harpoon gunner, in photo distributed by the pro-whaling High North Alliance.

The Institute of Cetacean Research did not send ships to the Antarctic in 2014-2015, after the International Court of Justice in March 2014 ruled that the annual “research” hunt was illegal because it was conducted chiefly to obtain and sell whale meat.

Still hunting whales

But the “research” whaling fleet is now in the northwestern Pacific pursuing quotas of 90 sei whales and 25 Bryde’s whales assigned by the Japanese Fisheries Agency.

Summarized Agence France-Presse, “The International Whaling Commission banned commercial whaling in 1986. But Japan has largely ignored the ban, citing an exemption that allows for whale hunts to continue as long as they are done for ‘scientific research.’”

Whale meat. (High North Alliance photo)

Japan also subsidizes the Icelandic whaling industry, also continuing in defiance of the IWC. The Icelandic cargo ship Winter Bay sailed for Japan on June 4, 2015 with 1,700 metric tons of whale meat, even though Japan has already stockpiled more whale meat than the industry has sold to consumers in several years.

Tactical debate

Meanwhile, the Sea Shepherd Conservation Society payments to the Institute of Cetacean Research and Kyodo Senpaku, following the HSUS and ASPCA payments to Ringling, have rekindled tactical debate among animal advocacy organization executives and fundraisers.

At issue is how far animal charities can push campaigns which have high emotional appeal to donors, but little chance of immediate success, without courting the risk of losses that undercut donor enthusiasm.

The Japanese whalers’ case against the Sea Shepherd Conservation Society likely could not have succeeded if the Sea Shepherds had limited their tactics to documentation and non-confrontational obstruction, rather than engaging in the “pirate” tactics denounced by Ninth Circuit judge Kozinksi, none of which were demonstrably effective in saving whales, but were popular parts of the Whale Wars reality drama.

Novel legal theory

Somewhat comparably, HSUS and the ASPCA had long pursued litigation against the Ringling Bros. and Barnum & Bailey Circus based on the novel legal theory that Ringling use of Asian elephants might violate the Endangered Species Act. While there was little legal precedent for this view, the notion was favored by donors, including some high donors, and by some private foundations.

Ringling has announced plans to end elephant acts by 2018. Already the elephant has a diminished place in the Ringling Bros. Barnum & Bailey web logo.

HSUS and codefendants in May 2014 paid Feld Entertainment, Inc. $15.75 million to settle countersuits resulting from the attempt to sue Ringling.

This payment was in addition to $9.3 million paid to Ringling by the American SPCA in December 2012.

The combined Ringling settlements of just over $25 million exceeded the annual budgets of all but about a dozen of the approximately 10,000 active U.S. animal advocacy and rescue societies.

The co-plaintiffs in the original Ringling case were the ASPCA,  the Fund for Animals,  and the Animal Welfare Institute,  with former Ringling elephant barn worker Tom Rider as an individual plaintiff.  Their initial complaint was dismissed in 2001 after a judicial ruling that they lacked legal standing to proceed,  but was reinstated on appeal in 2003.

The appellate verdict required Rider,  who worked for Ringling in 1997-1999,  to establish that he was injured in some manner by Ringling treatment of elephants.

U.S. District Judge Emmet G. Sullivan.

Judge slammed plaintiffs

Presiding over seven other major Endangered Species Act cases since 2002,  U.S. District Judge Emmet G. Sullivan had always before ruled for the plaintiffs,  including HSUS and AWI.  But,  after a six-week trial in 2009,  Sullivan in a 57-page verdict slammed the plaintiffs––especially Rider,  who had been paid at least $190,000 by the ASPCA while the case proceeded.

Beth & Merritt Clifton.
(Geoff Geiger photo)

“The court finds that Mr. Rider is essentially a paid plaintiff and fact witness who is not credible,  and therefore affords no weight to his testimony,”  Sullivan wrote.

HSUS had become involved, and liable for damages to Ringling, after absorbing the Fund for Animals in 2005.

The Animal Protection Institute joined the case in 2006,  bringing the Born Free Foundation into it when Born Free absorbed API at the end of 2007.

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