of complying with that they decided to turn it over to the what was the status quo at the time we should go injunction the status quo was that sea shepherd owned and controlled the ships all for no it did not own at all for it owned bob barker it owned steve irwin it had grant agreements for the two other ships that effectively gave it control of those ships didn't perform as they wanted and the ship's operation the employees the equipment all of which was used to violate the injunction was under the control or ownership of s upward and the sea shepherd australia passed a resolution in which watson attended the meeting sea shepherd's lawyer from the us attended the meeting by telephone and at that board meeting of sea shepherd australia they resolved to take you know you give me a lot of details about the not some bulls i didn't ask you that question you asked it was his choice at the time we should injunction you answer that question now you know months later what was a situation that i don't need to know the details i don't want to know the details what was a situation a month later when you when i want to focus things are changed question they separated in their view they separated that they took legal separation from you said look at one point of time you s later legal title was in another sea shepherd into t i'm sorry legal title was in and different sea shepherd interrupted was any consideration paid for the transfer none that we're aware in concert with you if you take the grant for the purpose of violating the injunction yes what is the evidence that was taken there for the purpose of violating the injunction that was the whole legal strategy that sea shepherd pursued which is which yes that they made a decision a calculated decision to evade the injunction by granting the ships to others because they wanted to separate themselves from the your project that supports that theory trans america on transamerica was a case that enjoined trans america from transferring banks to the bank of america they violated the order and park to rescind the order right yes it was and they didn't they didn't issue a recession order that's correct and they tended against contempt by saying all of these things were already in place and this court said america if the purpose of the transfer was to evade the courts orner that is contempt it is then again your only evidence of purpose is the is the scheme itself known the very words is not the same thing that no i don't know that's a fine line that the defendants tried to draw if you do that whose purpose is to evade the injunction that is a violation of the injunction otherwise courts will have wish i did i do not sure you came here to enforce an injunction you don't have the language of an in front of you i am shocked if you go to law school and the injunction you don't have it in some was paperless if i had the time to boot up my computer i could do so but i don't have a boot it up i do have it maybe perhaps one of the defendants has it available but the injunction itself says do not engage in acts of dangerous vessels there's no language that says do not transfer the vessels i will go i have news for you if you can find language of violates you're going to have a hard time getting in contempt or the like for something a little different with the council i take your theory to be more of an aider and abettor concept is a fair statement that is one way to approach it yes ok so here you want to go forward with ozi t and they proceed to do under the advice of counsel they transfer ship they pay for this that you're kind of your approach right yes ok now as i understand your position you don't contend that in order to violate an injunction any intent is required right you the transfer of the bob barker doesn't do that well we really have to do is to determine whether this was aiding and abetting knowing full well what was going to happen when it got transferred right ye and what's the level of proof that we require here the the special master that we appointed our appellate commissioner determine that there was not clear and convincing evidence that this was done what what eight or you interpret ing it based on real fifty three as some applied to forty eight that's the clearest way to do it well forty eight doesn't say one way or another but is it only three was amended after rule forty eight was last amended in fifty three did did it no and but forty eight doesn't have a standard of review in it ok just the case law interpretation but the case law goes back to rule fifty three and so it's circular like this case  bottom line is from your perspective we review the facts and of course the law did no vote here yes and in your view if if the result of the transfer of the ship and the equipment and the payment of those by the sailors mr watson's being on board when the ship i forget which one was a early one that was within five hundred yards then that's enough for your perspective right to show that contention i gather and the case law seems to bury you out the good faith doesn't matter though it does right now consulting council doesn't matter no consulting council does not do that so basically the only real clue i found is that if there's ticks or whatever you call it there's language in the injunction itself that is confusing that that may play a role in terms of interpretation but that other clarification from these defendants came before this court and sought reconsideration of the injunction and never once told this court that they were separating in order to comply or asking this court whether or not separation would be compliance and had they done that i am confident this court would have said no you may not transfer the bob barker in order to evade our injunction that would make the injunction pointless and that's fair to say it from your perspective if if the and i'm going to use what i assume would be your language is if the defendants can get away with this than the injunction is worthless and there's really not a whole lot you can do about it absolutely that's the bottom line because you can just you know conjure up a scheme to evade it and the law doesn't mean anything yes thank watson's testimony and i'm reading from the transcript eighteen page eight hundred fifty four you were master and commander of the  the injunction agree right and you were master and commander of all of the vessels prior to the injunction agreed right and you could have remained master and commander of all of the vessels after the injunction right and as master and commander you would have control of vessels right and you could have made sure that all of those vessels fully complied with the injunction by remaining more than five hundred yards away right right watson did was it was finally made by see that is the meat of the coconut page fifty four mr identified rightly or wrongly defendants adopted their separation strategy to avoid the risk that they would be held accountable for failing to control the other participants and holds the key rightly or wrongly he didn't answer the question he put before this court the question of whether or not a firm out of apple required by the courts and i don't know what he did i this is the only finding the commissioner has on the question of their intent or their state of mind when they when they transfer the vessels there's language your honor in the order that says they acted in good faith on advice of counsel to yes he says that all the time anyway i and tell me where the seventy plus page that's why i'm asking you that's why i'm asking us why i have a lawyer you know i cannot just be sure i understand counseling just to clarify i think you indicated previously that your position is that the law intent doesn't matter good faith there is no good faith exception and there is no exception for relying on  y council i gather that would be your answer to the chief's question even if it is or is not in the record correct yes if we just a loaded gun you enjoined the defendant  shooting a loaded gun you know you can only want if they have taken the vessels and sold them on the market said look we can do this operation will have any use for these vessels and they had sold them at auction may please the court could morning my name is david taylor i represent five of the volunteer directors of sea shepherd conservation society with the court's permission the defendants proposed that i take the first fourteen minutes allotted to the defense of the mr lay on behalf of mr watson take the last six minutes who is representing the corporation i am going to address the issues common to all of the defendants the corporation was represented by harrison moray charles moore and dan harris and mr maurice here in the courtroom it there are there is no counsel here but dress in the court on behalf of the corporation correct we thought would be more efficient for me to handle all of the issues common to the defendants you know otherwise to speak on behalf of the corporation i don't know that i'm authorized to speak on behalf of the corporation mr mori is here in the courtroom if there isn't and need to speak on behalf of the corporation i can speak for my colleagues but i find it absurd when you can speak  i find it absurd that when one of the primary defendants is charged with violating and an injunction that his counsel or its counsel is in the courtroom is not here to respond to questions i appreciate the fact you're representing these directors but are we to assume that the that the corporation is defaulting is that your position now absolutely i'm going to get a counsel here ok somebody has to represent the corporation i have some question for the corporation if you can't answer them then i will assume that the answer is what you don't want to be what do you do but i will do my best to answer the question based on the record your honor the question for you if you give the answer oh you all have to decide i mean their reality is i for one want to know we counsel for the corporation right now understand that you are and i ask him questions for you but you're speaking for the corporation and as things thank you i'm going to give you full time at the plaintiff's request this court appointed commissioner shot to determine the issues of fact in iraq blah raised by the plaintiff's motion for contempt after six months of discovery during which the plaintiffs took more than twenty depositions commissioner shah held an eight day trial during which he heard testimony from fifteen witnesses every one of the individual defendants appeared at that trial let me let me tell you why palm was commission what do we do that well you know this is wholly a sideshow well i think the commissioners report also addresses a number of issues which clearly are at the crux of this matter one the commissioner found th netherlands arm of the sea shepherd correct yes why was that done so the fundamental problem that sea shepherd and the board faced on the day the injunction came down was that operation zero tolerance was underway the ships were already in the hands of the captains in the cruise they were already near australia and new zealand awaiting the whaling ships they were for the most part provision for the most part fueled for the most part ready to go and the board understood that as a practical matter they did not have control over the ships so that they will have control in the sense they weren't piloting the ships i mean and even more than that they understood that since the operation was already underway the captains were committed to going forward with the operation sea shepherd australia a separate and independent organisation was ready had been involved in well thought of some more and had some around and get away we're going to revoke the grant that they do that they did not and there wasn't there are lots of things like that they could have done that they did the question is did it have the duty to do it right and what the commissioner found with respect to all of those activities that the and that's really the key that to my question which is pretty much the same i think is that we all have made it clear that at the time the injunction issued these vessels were already out there so when when the board transferred the bob barker to start with  injunction they knew since it was already out there that when they turned it over to the netherlands operation that it would be used in the not they yes they did ok all right so what about what about the provisions as i understand three of the four ships were already owned by other organizations but bob barker was the one that was still owned on paper by sea shepherd conservation society what you shepherd has some interest in the other ship right not in two of them in one of them there was language in the grant agreement from sea shepherd united kingdom to sea shepherd netherlands saying there was some kind of beneficial ownership written in c up to us and what the commissioner found was there was no showing that that really gave any legal rights to sea shepherd when you're talking about the ships i'm talking about the equipment there was a side from the ownership of the vessels yes there was a quick note that was transferred rights and again the board knew that that equipment on those ships would be used as part of those e t s i correct correct ok now let's talk about the payments that were made after the issuance of the injunction according to my records in the aggregate s bible c three nonprofit organization if the injunction which wrote encouraging people to contribute to a five a one c three organization to help fund the operation is that correct i think you are referring to the situation where a mailing act and i think it's fair to say he was a spokesman for a corporation i think that's fair he was the executive director and it was elizabeth some of us on behalf of the group yes and what the commissioner found with respect to all of these activities was several things first of all and most importantly he found that the affirmative action plan have said should have been taken all would have been futile that but board of directors of sea shepherd conservation accurately and in good faith believe that whatever they did they were not going to be able to stop operations zero tolerance from going forward but as part of that they granted all of this the bar bark and all this equipment to the energy that were running all of the right in what the commissioner found sea shepherd that sufficient to find content not at all your honor and as the commissioner found there was no attempt to evade the injunction on the part of seems that that's an attempt to eva position today if they had said stop don't do it and the bob barker had gone ahead and done it anyway you know you're going to different position right and again that's it that's a question of the record and there was extensive testimony on this much of the trial was was devoted to this very issue by the way speaking of the record in the flame so that your position is that our review on faith of the faction before clear are correct who forty eight says play nice or to be made by a special master and then the cases that we cited were matters that involved the alleged contempt the courts of appeal had referred to special masters well they say we didn't refer this to a special master do we and so many words well we understood it at the very least isn't the order ambiguous in that regard and like other provisions of the order it was certainly the promise on which both sides went forward with the case your honor so that's the way we understood  misses i agree with you the most cases that's probably true but you have just confirmed on behalf of the corporation that it knew that by giving the bob barker to the australian entity that it would be used you know c t you have confirmed that the board knew that when he gave the equipment worth hundreds of thousands of dollars to o c few that would be used and i think for ships in o c you've confirmed that about one hundred sixty eight thousand dollars worth of expenses for equipment supplies used in  were paid by the corporation after the injunction issued and we'll get to mr watson later but the reality is arguably don't those admissions obviate virtually everything that the commissioner did not not at all consistent with what the commissioner found the point of what the commissioner found was all of those other actions all the actions that were taken were done because there was a recognition that the board did not control operations zero tolerance and could not ensure that the ships were operating in accordance with this court's injunction so as a question became so i gave it to do entities relevant to our legal question which is what we're talking about here so the can you answer what the question was please was i as i understand it there were two issues one is those ships were under the defacto control of the captains of sea shepherd zealand the two countries that he was closest to were new zealand and australia and he believed that he would have been extradited to japan from either of those nations had he gone ashore and he believed that he could see a realistic possibility well  fip well mr watson stayed at sea for over a year in response to that interpol red notice and so i don't know whether in fact he would have been extradited from australia but what the point is that he believed he would and the other part of it  series of events is described the thought process that i just described was what mr watson did and that he acted reasonably and more to the point what's your best case for the idea that this was an impossibility for him to get get off the ship that was the crux of the trial your honor was that point so why why the why then for example when getting to the question to you when an holland special was required the purported captain said you better i'm just quoting  directly i can find the exact thing if you want but in fact you know you better ask paul he's in charge i don't i don't know specifically and i apologize what you're referring to but let me say this there are a number of e mails  throughout this period of time that mr watson had withdrawn that he intended to resign that he intended entirely to comply and there you know that message didn't filter immediately to all of the members and individuals of sea shepherd counsel he went before the board of directors of the australian and an almost like a cheerleader according to what we saw saying you know if you can move forward let's do gets on the radio and said let's do i'm not follow these humanitarian instincts we're talking straight law here right i'm just i'm i don't know what you're pointing to that says that we can give any credibility to the idea that he figurehead out there that you quote observer and quote well how that we can we give credence to that your honor that was the that was the entire issue of the trial the plaintiff's theory was it's all a facade this was a scheme to evade watson actually had control we had a long trial about it the commissioner looked the witnesses in the eye the commissioner cross examined fourteen out of fifteen of the witnesses and he made those fact findings and the fact finding he made that i believe controls this whole thing was the finding that it was inevitable that sea shepherd australia was going to take take over operations or zero tolerance and that that was going to happen regardless of o assets and your kind continues on board continues to be treated as a captain from the evidence i know that i must disagree about any evidence the evidence was unambiguous to the contrary there was and there was uniform testimony from the from the captains that they were going to go down regardless of what watson said and that was the pivotal point that's why you gave him the ship right now that the grant of the bob barker was as the testimony actual ownership they have yes they had they had actually so so when the owner of the vessel directs the master of the captain to turn the ship when the ship doesn't pickpocket on board i mean somebody who actually steals the ship becomes a pirate the i think that's the way it works and the way to end your corporation had the power to turn these captains missed mission one of the one of your honors earlier made the point that continuation of o c d did not necessarily mean a byelection of the injunction what we're here for today what this issue is whether the injunction was right that's what we're focusing and what the commission if if the turning over of the ships is in furtherance of a scheme to violate the injunction then it doesn't matter that we know that at that point at skeptical you're honored so was the commissioner and the point is that after hearing the evidence and looking the witnesses in the eye and cross examining them he came to the opposite conclusion as a fact conclusion based on demeanor credibility type to follow to comply with the injunction and we say the ship stopped the ship stop and then why do they not have a sponsibility to tell the ships stop whether they believe they would follow the orders or not because with all due respect your honor the injunction said don't do three specific things it was not stop and so the the board concluded that it was inevitable that sea shepherd australia was going to go forward with with operations their zero tolerance of a five part me on one on their history of dealing with australia on the fact that australia australia is has is and has been the focus of this operation for the last several years the whales sorry swim up and down the coast of australia and the australian people are very committed to this and so the board concluded then the commissioner concluded having heard the evidence that this could that it was a reasonable conclusion that sea shepherd auster it was inevitable that sea shepherd australia would go forward with operations or zero tolerance that did not mean that there would be violations of the injunction and it's that gap in council if i understand the meaning of two preceding campaigns what had happened was the sea shepherd vessels would find the japanese vessels the japanese vessels would stop whaling and take off and so that in the prior in operation divine wind which was a one year immediately preceding two operations or zero tolerance they the sea shepherd vessels basically chase them around the globe never coming within five hundred yards and the testimony at the trial was that that's that's what everybody thought could shepherd us knew with highly likely that injunction would be violated going beyond just conducting those e t the right they knew that you agree with that no well i don't know i don't agree with that and i actually don't think that's what mr mr taylor said i think that what he said was that we knew that it was going to go forward and that they expect that they anticipated a risk that that would be that there would be by they were as a high risk high enough risk that that the board and mr watson concluded that we need to be away from this thing because we don't want to be down in front of your honor's saying you know well we tried to stop them and i stayed on as leader of sea shepherd but i couldn't stop them because that would be an even more difficult situation and so one of your board members resigned after the first notice went out why was that he resigned because he realized that he could not control the actions of the captains but it but he was concerned was he not that because of what what the board had done that he might indeed be dragged into it based upon the fact that these people were going to do exactly what the judge said should not be done well i think it was closer to what i said a moment ago another your honor in other words he that his testimony was that he resigned because he he realized that he had no control over peter hamish that the captain of the bob barker in particular or mr watson or mr watson  but you know and so mr reiman decided to to to resign he you know he made the same sort of decision that the others did including mr watson which is we need to cut our ties now watson situation was made more difficult by his physical presence agree that mr watson situation was more difficult then you know had he been off the vessel the sequence of events was as i described it and he the commissioner found that he acted in good faith and reasonably and so the test again is taking all reasonable steps within one's one's control and you know a series of events occurred that led led to mr watson being personally aboard a vessel over which he had no control and no way to get off when it crossed the perimeter and  you know the commissioner concluded having heard it all that that was not a violation of the contempt on the assumption that there is a good faith exception to know your rights not at all your honor the test is the do all that test reasonable steps within  control and if it's not in your control because he had given up his captaincy in reliance on track of already he no longer had any ability to control there was evidence that on at least two occasions he tried to exert control over the other captains and they were they ignored he he directed the other captains to stay outside of the five hundred yard perimeter and after the first incursion by the brigitte bardot that if you did very well  that was the dilemma he found himself in in other words had right no he he had resigned prior to when it but but given the order he thought he thought they would listen to him he hoped they would listen to him he saw that the risk that sea shepherd y wanted to be sure that he had both of those goals your honor in other words he he recognized that sea shepherd was was facing the barrel of a gun to corrupt mr new parts analogy and could be and could and would be imperiled by violating this that's why he backed out that's why the organization backed out and it has it has ruined the organization the organization is a shell of what it used to be thank you opportunity to disembark the steve irwin because they were concerned about while ations with the injunction watson could have gotten off then he didn't know what or where new zealand is in new zealand and watson's warrior had given him an opinion that the risk of detention in australia was remote this was before the injunction issued and even mr watson himself testified that the balance of whether or not he was detained should not be weighed contrary to compliance with the injunction so watson himself had a legal opinion saying the risk of detention was remote he said it doesn't make any difference whether i'm going to get the taint in order to comply with  he remained on board when it violated the injunction three separate occasions this notion that all reasonable steps within one's power not that is within one's power the rule for requiring all reasonable steps be taken is because if you do then it's likely that the harm to be averted by the injunction will be averted if there's a mutiny you're the captain and you say we're not going to approach within five hundred yards and there's a mutiny you've taken all reasonable steps within your power if you are a board member and you can issue instructions that the ships remain and three of them were tied to dock after this court's injunction they didn't depart until january so the ships were piped to a dock if the japanese had come aboard the ship and tried to take them i'm sure the board of sea shepherd would have stopped the japanese from taking the ship what right what role if any should the fact that mr watson encourage these other entities other than america to pay the salaries of the sailors who remained on the four ships would previously been  on i guess the bob barker but i may be mistaken on which ship it was on and that that was done what role if any does the play well that was evidence that we submitted that showed that watson and sea shepherd were still in control our proposed findings of fact which are at the record of two ninety seven lay out all of those facts which happened after the course injunction issued watson made arrangements for payment of the crew and the court was interested in how much  fuel had been purchased after the injunction finding proposed finding a fact fifty three which is a documentary to ninety seven they paid one hundred six thousand for fuel for steve irwin under simba thirty one one hundred and ninety thousand for the sam simon on december twenty one and five thousand dollars for fuel for of the sea shepherd us speech of america yes is that the hundred sixty eight thousand i made reference to that were those debt is not to some part of what gets to that i think the math would make it more than one hundred sixty and that's why i made the notation which is our proposed finding of fact fifty three ok there was substantial aid given to ensure that operation zero tolerance could go forward unimpeded by this court's injunction they had the power they did not exercise their power or rather they did exactly the volunteer protection act yes why is that not correct it's not correct for two reasons first there's a case that says that it doesn't immunize from federal liability that the purpose of the statute was to preempt state law doesn't have anything to do with federal law and then there's also the fact that i don't think congress can enact a statute which would curb this court's powers of contempt to enforce its own order because of separation of powers because of separation of powers but i think the court doesn't need to go that far i think if you just look at the american products case that you can reach the conclusion that the volunteer protection that it's not a defense if you