FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INSTITUTE OF CETACEAN RESEARCH,

a Japanese research foundation;

KYODO SENPAKU KAISHA, LTD., a

Japanese corporation; TOMOYUKI

OGAWA, an individual; TOSHIYUKI

MIURA, an individual,

Plaintiffs-Appellants,

v.

SEA SHEPHERD CONSERVATION

SOCIETY, an Oregon nonprofit

corporation; PAUL WATSON, an

individual,

Defendants-Appellees.

No. 12-35266

D.C. No.

2:11-cv-02043-

RAJ

OPINION

On a Motion for Contempt

Argued and Submitted

October 27, 2014—Pasadena, California

Filed December 19, 2014

Before: Alex Kozinski, A. Wallace Tashima, and Milan D.

Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

SUMMARY*

Contempt

The panel held defendant Sea Shepherd Conservation

Society, its founder Paul Watson, and Sea Shepherd’s

volunteer board members in contempt for violating the

panel’s injunction prohibiting Sea Shepherd, Watson, and

“any party acting in concert with them” from physically

attacking or coming within 500 yards of the whaling and

fueling vessels of the Institute of Cetacean Research and

other plaintiffs on the open sea.

Declining to adopt the report and recommendation of the

Appellate Commissioner, issued following a contempt

hearing, the panel held that the defendants violated the

injunction when they adopted a “separation strategy” under

which they ceded control of their “Operation Zero Tolerance”

campaign, designed to thwart the plaintiffs’ whaling activities

in the Southern Ocean, to foreign Sea Shepherd entities. 

The panel held Sea Shepherd US in contempt on the basis

that its separation strategy aided and abetted Sea Shepherd

Australia and other Sea Shepherd entities to perform acts that

would have violated the injunction if done by parties bound

by it. In addition, Sea Shepherd US continued to provide

material support to the OZT campaign after the injunction

issued, confident that the entities it assisted would likely

violate the injunction.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 3

The panel held Sea Shepherd US’s volunteer board

members in contempt based on their ratification of the

separation strategy, and their approval of transfers of

ownership of valuable property, for no consideration, to Sea

Shepherd entities participating in OZT.

The panel held Watson in contempt as the Executive

Director of Sea Shepherd US, as well as for personally

violating the injunction by coming within 500 yards of one of

the plaintiffs’ vessels.

The panel held that against Sea Shepherd US and Watson,

the plaintiffs were entitled to recover attorney’s fees and costs

incurred in bringing and prosecuting the contempt

proceedings and to compensation for any actual damages

suffered. The panel re-referred the matter to the Appellate

Commissioner to determine the appropriate amount of

attorney’s fees and costs, as well as compensatory damages

to award, and to determine the liability of the volunteer

directors. The panel stated that the plaintiffs’ requests for

coercive sanctions and an order to compel compliance should

be directed to the district court.

COUNSEL

John F. Neupert (argued), M. Christie Helmer, Sharae M.

Wheeler, Miller Nash LLP, Portland, Oregon; James L.

Phillips, Miller Nash LLP, Seattle,Washington,for PlaintiffsAppellants.

Daniel P. Harris, Charles P. Moure, Rebecca Millican, Harris

& Moure, PLLC, Seattle, Washington, for DefendantAppellee Sea Shepherd Conservation Society.
4 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

Timothy G. Leyh (argued), Michelle Buhler, Charles S.

Jordan, Calfo Harrigan Leyh & Eakes, LLP, Seattle,

Washington, for Defendant-Appellant Paul Watson.

David F. Taylor (argued), Kathleen M. O’Sullivan, Zachary

P. Jones, Perkins Coie, Seattle, Washington, for non-party

respondents Lani Blazier, Marnie Gaede, Bob Talbot, Robert

Wintner, and Ben Zuckerman.

Clare Loebs Davis, Katie Smith Matison, Lane Powell PC,

Seattle, Washington, for non-party respondent Susan

Hartland.

Kristina S. Bennard, Julia D. Woog, Yarmuth Wilsdon PLLC,

Seattle, Washington, for non-party respondent Peter Rieman.

OPINION

M. SMITH, Circuit Judge:

Institute of Cetacean Research (Cetacean), Kyodo

Senpaku Kaisha, Ltd., Tomoyuki Ogawa, and Toshiyuki

Miura (collectively, Plaintiffs) filed this contempt proceeding

against Sea Shepherd Conservation Society (Sea Shepherd

US), its founder Paul Watson, its administrative director

Susan Hartland, and six volunteer members of the Sea

Shepherd US board (collectively, Defendants). The Plaintiffs

allege that the Defendants violated our injunction prohibiting

Sea Shepherd US, Watson, and “any party acting in concert

with them” from physically attacking or coming within 500

yards of the Plaintiffs’ whaling and fueling vessels on the

open sea.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 5

After we handed down our injunction, the Defendants

adopted what they called the “separation strategy.” Pursuant

to the strategy, they ceded control of the Operation Zero

Tolerance (OZT) campaign, designed to thwart the Plaintiffs’

whaling activities in the Southern Ocean, to foreign Sea

Shepherd entities. The Defendants knew those entities would

use assets transferred to them by the Defendants in the OZT

campaign, and that there was a “very high risk” the entities

would violate our injunction. It is undisputed that these

foreign entities repeatedly committed acts against the

Plaintiffs’ whaling ships during the OZT campaign that

would have violated the injunction if performed by the

Defendants.

In this opinion, we consider whether the Defendants

violated our injunction when they implemented the

“separation strategy.” The Plaintiffs contend that the strategy

was aimed at evading our injunction and ensuring that the

OZT campaign proceeded unabated, despite the issuance of

the injunction. In support of their contention, the Plaintiffs

point to undisputed evidence that the Defendants provided

substantial assistance to the OZT campaign after our

injunction issued. The Defendants contend, on various

grounds, that they should not be held liable for the acts of

entities they did not control and whose violations they could

not prevent.

Our thorough review of the record in this case, and the

concessions of counsel at oral argument, compel us to hold

Sea Shepherd US, Watson, and Sea Shepherd US’s volunteer

board members in contempt for violating our injunction.
6 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Cetacean is a Japanese research foundation that

has for many years received permits from the Japanese

government authorizing it to take whales for research

purposes. The International Convention for the Regulation of

Whaling, to which the United States, Japan, and 87 other

nations are signatories, authorizes whale hunting when

conducted in compliance with a research permit issued by a

signatory. See Int’l Conv. for the Regulation of Whaling, art.

VIII, § 1, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74. 

Japan issued such a permit to Cetacean that authorized it to

take whales in the Southern Ocean during the period

December 20, 2012 to March 31, 2013.

For several years, Sea Shepherd US and its founder,

Watson, have opposed Cetacean’s whale hunting efforts in

the Southern Ocean. Sea Shepherd US is organized as an

Oregon nonprofit corporation with tax-exempt status under

section 501(c)(3) of the Internal Revenue Code. It is

governed by an unpaid board of volunteer directors. Several

current and former directors of the organization are

respondents in this contempt proceeding.

In addition to Sea Shepherd US, there exist a number of

foreign Sea Shepherd entities, including those organized and

governed under the laws of Australia, Belgium, France,

Germany, the Netherlands, and the United Kingdom. We

sometimes refer to Sea Shepherd US and the other Sea

Shepherd entities collectively as “Sea Shepherd.”

Since 2004, Sea Shepherd has mounted a yearlycampaign

to prevent Cetacean from killing whales in the Southern

Ocean. Sea Shepherd’s tactics have included throwing smoke
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 7

bombs and glass containers of acid at the Plaintiffs’ vessels;

dragging metal-reinforced ropes in the water to damage the

vessels’ propellers and rudders; throwing safety flares with

metal hooks at nets hung from the Plaintiffs’ vessels in the

hope that they will set fire to the vessels; and shining highpowered lasers at the Plaintiffs’ vessels to annoy the crew.

See Inst. of Cetacean Research v. Sea Shepherd Conservation

Soc’y, 860 F. Supp. 2d 1216, 1223–24 (W.D. Wash. 2012),

rev’d, 725 F.3d 940 (9th Cir. 2013). Sea Shepherd has

piloted its vessels in ways that make collisions with the

Plaintiffs’ vessels highly likely; in fact, collisions have

occurred on several occasions. Id. Hoping to prevent Sea

Shepherd’s dangerous interference with its whaling activities,

the Plaintiffs brought an action for injunctive relief in the

United States District Court for the Western District of

Washington. After the district court denied their request for

a preliminary injunction, 860 F. Supp. 2d 1216, rev’d,

725 F.3d 940, the Plaintiffs appealed. We reversed. Inst. of

Cetacean Research v. Sea Shepherd Conservation Soc’y,

725 F.3d 940 (9th Cir. 2013).

We issued an injunction pending appeal against Sea

Shepherd US and Watson on December 17, 2012. The

injunction provided in relevant part:

Defendants Sea Shepherd Conservation

Society and Paul Watson, and any party acting

in concert with them (collectively

“defendants”), 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 (collectively
8 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

“plaintiffs”), 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.

This injunction remains in effect pending further order of

court. Inst. of Cetacean Research, 725 F.3d at 947.

At the time our injunction was handed down, Sea

Shepherd US was organizing and preparing in earnest for

OZT, its ninth annual whale defense campaign against the

Plaintiffs. Prior to the issuance of our injunction, Sea

Shepherd US, as in previous years, had taken the lead

administrative role in preparing for the campaign. It recruited

both volunteer and paid crew, and outfitted and fueled four

vessels for the campaign: the Bob Barker, Steve Irwin, Sam

Simon, and Brigitte Bardot. Sea Shepherd US had already

spent over 2 million dollars on the campaign when our

injunction issued.

Watson received a copy of our injunction on December

18, 2012, the day after it issued. At that time, Watson was in

the Southern Ocean serving as campaign leader, just as he

had in previous years. Over the next several days, Watson

and other members of Sea Shepherd devised a plan that

would come to be known as the “separation strategy.” 

Pursuant to the strategy, Sea Shepherd US would turn over

control of OZT and transfer assets it owned to foreign Sea

Shepherd entities, including Sea Shepherd Australia. Sea

Shepherd Australia is an Australian public company limited

by guarantee and registered under the laws of Australia. For

each of the previous whale defense campaigns, Sea Shepherd
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 9

Australia has provided an operations base for the four vessels

as well as logistical support. Watson was a member of the

boards of both Sea Shepherd US and Sea Shepherd Australia

when the injunction issued. As part of the separation

strategy, Watson would step down from the boards of both

entities, and a new OZT campaign leader would assume

Watson’s responsibilities. Watson, however, would remain

on board the Steve Irwin as an “observer” during the

campaign.

The members of Sea Shepherd US’s board learned of the

injunction by email on December 18, 2012. When the

injunction was handed down, the board was composed of

Watson, who was also the paid Executive Director of Sea

Shepherd US, and volunteer members Lani Blazier, Marnie

Gaede, Bob Talbot, Robert Wintner, Ben Zuckerman, and

Peter Rieman, all of whom are respondents in this

proceeding.

Gaede, the board’s vice president, called a telephonic

board meeting for December 20, 2012, during which Sea

Shepherd US’s attorneys discussed the significance of the

injunction and advised the board members on how to respond. 

All of the board members were present, along with another

respondent in this proceeding, Susan Hartland, Sea Shepherd

US’s Administrative Director. The board discussed the

separation strategy and agreed to implement it. Shortly after

the board meeting, members of Sea Shepherd US and Sea

Shepherd Australia began working together to facilitate the

transfer of operational control of OZT to Sea Shepherd

Australia. On December 22, 2012, Jeff Hansen, a board

member of Sea Shepherd Australia, emailed Watson and

Hartland regarding plans for Sea Shepherd Australia to “take
10 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

over,” and for Bob Brown, a former Australian senator and

decorated environmentalist, to lead the campaign.

Watson chaired a telephonic board meeting of Sea

Shepherd Australia on December 27, 2012, in which the

board unanimously resolved to assume responsibility for

running OZT. Thereafter, Watson submitted his resignation

from the Sea Shepherd Australia board and Brown became a

member. On December 31, 2012, the Sea Shepherd Australia

board resolved that Brown and Hansen would be the new

leaders of OZT.

Despite its plan to separate from OZT, Sea Shepherd US’s

financial support for the campaign did not end immediately

after the injunction was issued. Sea Shepherd US paid

$163,405 in OZT-related expenses that were invoiced after

the injunction was handed down. The majority of this money

was spent to refuel the Steve Irwin and pay the credit card

expenses of OZT ship captains.

On or about December 27, 2012, several of the Plaintiffs’

whaling ships departed Japan for the Southern Ocean. 

Watson informed the Sea Shepherd US board of this

development by email on December 27, 2012. Watson’s

email stated: “All four Sea Shepherd ships and their crew will

be ready to greet the Japanese whalers when they arrive. 

They intend to kill whales and Sea Shepherd’s objective is to

see that not a single whale is slain. . . . It appears that the hunt

is on and we intend to hunt whalers.”

On December 28, 2012, Watson formally resigned from

his various roles in Sea Shepherd US and as campaign leader

for OZT, effective December 31, 2012. He surrendered

command of the Steve Irwin to Siddharth Chakravarty, a
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 11

citizen of India, but remained on board the ship. Other Sea

Shepherd US employees participating in OZT also tendered

their resignations to the board. Although Sea Shepherd US

stopped paying independent contractors serving as captains

and crew members of OZT, Watson helped arrange for the

crew to be paid by foreign Sea Shepherd entities.

There is evidence that Watson was not a mere passive

participant in OZT after he resigned his leadership positions. 

During the OZT campaign, Watson appeared by phone on a

radio show in March of 2013. His answers to questions posed

during the show indicate that he believed himself to be a

participant in OZT, not just an observer. He said, for

instance, “we’re chasing the Japanese factory ship Nisshin

Maru and keeping it from killing whales.” When asked about

the atmosphere aboard the ship, Watson said, “Oh,

everybody’s very upbeat on our ship because we’ve managed

to make sure they don’t kill many whales this year.”

(emphases added).

Watson was also consulted for guidance on how to

proceed with certain aspects of the campaign. For instance,

on December 28, 2012, Chakravarty emailed a New Zealand

customs official seeking permission to anchor the Brigitte

Bardot off the New Zealand coast. He learned that the ship

would require a hull inspection. Peter Hammarstedt, the

captain of the Bob Barker, emailed Chakravarty that “[t]his

will have to be Paul’s decision. Sid, please check with him

and let us know ASAP.” After being asked by email for his

“decision,” Watson replied “[y]es proceed with this option.” 

Watson was consulted for advice about logistical aspects of

the campaign on several other occasions after the injunction

was issued.
12 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

In a December 30, 2012 meeting, the Sea Shepherd US

board accepted Watson’s resignation and elected new board

leadership consisting of Gaede as president, Wintner as vice

president, Blazier as secretary, and Rieman as treasurer. The

board formally voted to sever all financial and other forms of

support to OZT in a series of emails exchanged between

January 8 and 9, 2013. The board also voted to ratify a series

of grants of property for no consideration to Sea Shepherd

entities participating in OZT. Specifically, Sea Shepherd US

granted ownership of the Bob Barker to Sea Shepherd

Netherlands, and gave equipment to both Sea Shepherd

Australia and Sea Shepherd Netherlands. The vessel and the

equipment Sea Shepherd US granted had original purchase

prices totaling over two million dollars.

On January 29, 2013, in violation of our injunction, the

Brigitte Bardot approached within 20.25 yards of the Yushin

Maru 3, one of the Plaintiffs’ ships, while it was navigating

on the open sea. Several additional violations of our

injunction occurred on February 15, 17, 18, 19, 20, 24, 25, 27,

and 28. Most violations involved incursions of the 500-yard

safety perimeter established by the injunction, but collisions

occurred on February 20 and 25 in the course of efforts by

Sea Shepherd to prevent one of the Plaintiffs’ ships from

refueling. Watson was on board the Steve Irwin when these

collisions occurred.

On February 11, 2013, the Plaintiffs filed a motion to find

Sea Shepherd US in contempt and asked us to appoint a

special master to conduct contempt proceedings. The basis

of the motion was the January 29 incident in which the

Brigitte Bardot approached within 500 yards of one of the

Plaintiffs’ vessels. On February 21, 2013, we referred the

contempt motion to the Appellate Commissioner. The
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 13

Plaintiffs later amended their motion to allege additional acts

of contempt, and to include Watson, the six volunteer

directors, and Hartland as respondents to the contempt

proceedings. The Appellate Commissioner held a contempt

hearing in Seattle from October 28, 2013 to November 6,

2013. The parties stipulated that actions had occurred at sea

that, if performed by enjoined parties, would violate our

injunction, and testimony about those events was limited. 

The hearing focused on how Sea Shepherd US, Watson, the

volunteer directors, and Hartland responded to our injunction,

and their relationship to the persons and entities leading OZT

after Sea Shepherd US’s withdrawal from the campaign.

The Appellate Commissioner issued his Report and

Recommendation on January 31, 2014. He recommended we

find that none of the Defendants had committed an act of

contempt, as he believed they had “adopted a ‘separation’

strategy and took reasonable steps to carry out that strategy in

order to guarantee their own compliance with the injunction.” 

The Commissioner determined that the Defendants had not

directly violated the injunction and could not be held in

contempt for the actions of the non-parties leading OZT.

The Plaintiffs and the Defendants each filed objections to

the Commissioner’s Report and Recommendation.

JURISDICTION AND STANDARD OF REVIEW

In our February 25, 2013 order, we retained jurisdiction

over “any further appeals or writs” in this case. Inst. of

Cetacean Research, 725 F.3d at 948. We have “inherent

power” to initiate contempt proceedings. See Young v.

United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795

(1987) (citing Michaelson v. United States ex rel. Chicago,
14 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

St. P., M., &O.R. Co., 266 U.S. 42, 45 (1924)). We also have

statutory authority to punish both civil and criminal contempt

pursuant to 18 U.S.C. § 401.

The parties disagree regarding the standard of review

applicable to the Appellate Commissioner’s findings of fact

in his Report and Recommendation. The Defendants argue

that the Commissioner acted as a special master, and thus that

we should review his findings of fact for clear error. The

Plaintiffs, however, maintain that we should review the

Commissioner’s findings of fact de novo.

We need not resolve which standard of review applies to

the Commissioner’s findings of fact because our decision

rests on grounds the Commissioner incorrectly rejected

because of errors of law. Specifically, the Commissioner

wrongly concluded that the Defendants could not be held

liable for aiding and abetting others to violate the injunction. 

The Commissioner also wrongly concluded that the volunteer

directors’ purported good faith reliance on advice of counsel

was relevant to whether they violated the injunction. Even if

clear error review applied, it would still be appropriate to

correct factual findings predicated on a misunderstanding of

the governing rules of law. See Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 501 (1984) (citing

Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982);

Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 n.15

(1982)).

DISCUSSION

The Plaintiffs contend that the Defendants violated our

injunction by aiding and abetting non-parties, including Sea

Shepherd Australia, to commit acts prohibited by the
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 15

injunction. The Plaintiffs argue that the purpose of the

“separation strategy” was not to ensure compliance with our

injunction, but to ensure that OZT proceeded unabated. In

addition, the Plaintiffs contend that Watson violated the

injunction by personally coming within 500 yards of one of

the Plaintiffs’ ships.

The Defendants argue that they implemented the

separation strategy in a good faith effort to comply with the

injunction. They further contend that they lacked control

over the other Sea Shepherd entities and cannot be held

accountable for the actions of these entities.

The volunteer board members point to their reliance on

the advice of counsel as proof of their good faith in

responding to the injunction, and argue that even if they

would otherwise be liable for contempt, they are protected

from liability by the Volunteer Protection Act, 42 U.S.C.

§ 14503. Rieman argues that he should not be held in

contempt because he resigned from the Sea Shepherd US

board shortly after learning that a Sea Shepherd vessel had

come within 500 yards of one of the Plaintiffs’ ships. 

Hartland, Sea Shepherd US’s Administrative Director, argues

that she should not be held in contempt because she was not

a member of the board and did not vote to ratify the

separation strategy.

We address these arguments in turn.

I. Sea Shepherd US’s Contempt Liability

“Civil contempt . . . consists of a party’s disobedience to

a specific and definite court order by failure to take all

reasonable steps within the party’s power to comply.” In re
16 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d

693, 695 (9th Cir. 1993). A party may also be held liable for

knowingly aiding and abetting another to violate a court

order. See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14

(1945) (“defendants may not nullify a decree by carrying out

prohibited acts through aiders and abettors, although they

were not parties to the original proceeding”). “The party

alleging civil contempt must demonstrate that the alleged

contemnor violated the court’s order by ‘clear and convincing

evidence,’ not merely a preponderance of the evidence.” 

Dual-Deck, 10 F.3d at 695 (citing Vertex Distrib., Inc. v.

Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir.

1982)).

The Plaintiffs argue that Sea Shepherd US’s separation

strategy aided and abetted Sea Shepherd Australia and other

Sea Shepherd entities to perform acts that would have

violated the injunction if done by parties bound by it. We

agree, and hold Sea Shepherd US in contempt on this basis.

Sea Shepherd US’s separation strategy effectively

nullified our injunction by ensuring that OZT proceeded

unimpeded, in part by using former Sea Shepherd US assets. 

Sea Shepherd US ceded control over OZT to Sea Shepherd

Australia and other Sea Shepherd entities it believed to be

beyond the injunction’s reach, knowing these entities were

virtually certain to violate the injunction. At the same time,

Sea Shepherd US continued to provide financial and other

support for OZT after the injunction by, among other things,

transferring for no consideration a vessel and equipment

worth millions of dollars to Sea Shepherd Australia and other

entities.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 17

A. Sea Shepherd US’s Withdrawal from OZT

Sea Shepherd US chose to implement the separation

strategy because it believed that doing so would allow OZT

to proceed. There was clear and convincing evidence that

Sea Shepherd US was highly motivated to see the OZT

campaign completed. Shortly after the injunction issued,

Watson emailed the captains of various Sea Shepherd vessels

and Hartland. He wrote: “The Japanese whalers are coming.

There is no doubt about that. The question is how do we stop

them now? If we back down to the 9th [Circuit] Court, the

whales will die.” The same day, Watson emailed his attorney

a proposed press release stating, in part:

The Sea Shepherd position is clear: Our ships,

officers and crew are 100% committed to

achieving a zero kill quota on whales. This is

Operation Zero Tolerance and the 120 crew

from 26 nations are prepared to risk their lives

to defend endangered and protected whales in

the Southern Ocean Whale Sanctuary.

Both Sea Shepherd US and Sea Shepherd Australia

recognized that the injunction would hinder Sea Shepherd

US’s ability to lead OZT. Shortly after the injunction was

issued, Hansen, a board member of Sea Shepherd Australia,

emailed Watson and Hartland stating: “As the injunction that

has been put in place by the US Federal court impedes

SSCS’s ability to save the lives of whales, we need another

body other than SSCS to step in and take over for whales.”

Sea Shepherd US ceded control of OZT to Sea Shepherd

Australia on the belief that Sea Shepherd Australia was not

bound by the injunction. Shortly after the injunction issued,
18 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

Watson wrote a proposal to Sea Shepherd US’s board stating

in part:

The decision by the other organizations to

comply with the injunction rests with the

Board of Directors of the Sea Shepherd

organizations registered under the laws of

their respective nations. The orders of the 9th

U.S. [Circuit] Court cannot possibly restrict

them and this especially so with Sea Shepherd

Australia where the Japanese fleet is seen to

be operating in direct defiance of the

Australian Federal Court and is presently in

contempt of this court ruling.

Sea Shepherd Australia also believed that it was not

bound by the injunction. In the weeks following the issuance

of the injunction, Sea Shepherd Australia board member John

McMullan, an attorney, and Melbourne barrister Debbie

Mortimer, with whom he consulted, concluded that the

injunction did not bind the organization. Both believed that

Australian courts were unlikely to enforce the injunction

because of an Australian federal court order enjoining the

Plaintiffs from conductingwhaling operations in the Southern

Ocean Whale Sanctuary. In the early days after the

injunction was handed down, Bob Brown, who would soon

assume leadership over OZT, visited one of the OZT ships to

reassure the crew that the injunction would not impede Sea

Shepherd Australia’s ability to proceed with OZT.

Sea Shepherd US’s board knew it was highly likely that

Sea Shepherd Australia and other entities would commit acts

that violated the injunction during OZT. This was conceded

by counsel at oral argument when he stated that Sea Shepherd
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 19

US board members “knew [the Bob Barker, which the board

granted to Sea Shepherd Netherlands for no consideration,]

would be used in OZT, and there was a very high risk it

would violate the injunction.”

When the injunction issued on December 17, 2012, Sea

Shepherd US was leading OZT with Watson serving as the

campaign leader and captain of the Steve Irwin. Yet, Sea

Shepherd US did not respond to the injunction by attempting

to prevent people and equipment under its control from

participating in the campaign. Watson, as Executive Director

of Sea Shepherd US, did not use his authority to withdraw the

Steve Irwin from OZT after the injunction issued. Instead, he

remained in charge of the campaign and captain of the Steve

Irwin until late December, when he turned the campaign over

to Sea Shepherd Australia. In his testimony before the

Appellate Commissioner, Watson conceded that he could

have remained in control of the OZT vessels after the

injunction and tried to make sure that they complied. Sea

Shepherd US had a number of employees working on OZT

when the injunction issued, including Peter Hammarstedt, the

Director of Marine Operations and captain of the Bob Barker.

Sea Shepherd US did not order these employees to leave the

ships. Nor did it order them to withdraw the ships from the

OZT campaign. It would have been perfectly reasonable for

Sea Shepherd US to do so in order to ensure that these vessels

and employees did not subsequently violate the injunction. 

Cf. In re Transamerica Corp., 184 F.2d 319 (9th Cir. 1950)

(bank held in contempt for failing to countermand

instructions to acquire bank branches, even though all

necessary steps had been taken prior to injunction); see also

2 James L. High & Shirley T. High, A Treatise on the Law of

Injunctions 1448 (4th ed. 1905) (“It is the clear duty of one

who is enjoined from the commission of a particular act not
20 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

only to refrain from doing the act in person, but also to

restrain his employees from doing the thing forbidden, and a

mere passive and personal obedience to the order will not

suffice.”).

Sea Shepherd US eventually stopped paying the salaries

of crew members participating in OZT, but many of them,

including Hammarstedt, continued to participate in the OZT

campaign. Sea Shepherd US gave Hammarstedt and two

other former employees participating in OZT three months of

“severance” pay after they resigned. Importantly, after

Watson resigned from his roles with Sea Shepherd US, he

requested that arrangements be made for the crew aboard the

ships to be paid by other Sea Shepherd entities. Rather than

instruct its employees to help prevent OZT, Sea Shepherd US

effectively shifted these employees to its affiliates’ payrolls

to ensure continued participation in a campaign it knew was

very likely to result in violations of the injunction.

In sum, Sea Shepherd US wanted OZT to continue; knew

that the injunction would prevent it from leading the OZT

campaign effectively; believed that Sea Shepherd Australia

was beyond the reach of the injunction; and knew that Sea

Shepherd Australia held the same belief. It also knew that

there was a high risk that other Sea Shepherd entities would

violate the terms of the injunction if OZT proceeded as

planned. Sea Shepherd US’s decision to withdraw from OZT,

relinquishing any ability to take reasonable steps to prevent

other Sea Shepherd entities from violating the injunction,

must be viewed with these background facts in mind. Sea

Shepherd US did not so much withdraw from OZT as turn the

campaign and millions of dollars of assets over to entities it

knew would do what the injunction forbade Sea Shepherd US

and Watson from doing directly.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 21

B. Sea Shepherd US’s Post-Injunction Assistance to

OZT

Despite the ample evidence that Sea Shepherd US

withdrew from OZT to ensure that it proceeded unhindered,

our decision to hold Sea Shepherd US in contempt does not

rest solely on its failure to take steps to prevent violations of

our injunction. Our decision is primarily compelled instead

by the undisputed evidence noted infra that Sea Shepherd US

continued to provide material support to OZT after the

injunction issued, confident that the entities it assisted would

likely violate the injunction.

A party “may not nullify a decree by carrying out

prohibited acts through aiders and abettors, although they

were not parties to the original proceeding.” Regal Knitwear

Co., 324 U.S. at 14. As a result, a party to an injunction who

assists others in performing forbidden conduct may be held

in contempt, even if the court’s order did not explicitly forbid

his specific acts of assistance. See NLRB v. Deena Artware,

Inc., 361 U.S. 398, 413 (1960) (Frankfurter, J., concurring)

(observing that “[e]very affirmative order in equity carries

with it the implicit command to refrain from action designed

to defeat it”); United States v. Shipp, 214 U.S. 386, 422–23

(1909) (holding sheriff in contempt for failing to prevent

lynching and observing that he “in effect aided and abetted

it”); Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir.

1990) (“The law does not permit the instigator of

contemptuous conduct to absolve himself of contempt

liability by leaving the physical performance of the forbidden

conduct to others. As a result, those who have knowledge of

a valid court order and abet others in violating it are subject

to the court’s contempt powers.”); NLRB v. Laborers’ Int’l

Union of N. Am., AFL-CIO, 882 F.2d 949, 954 (5th Cir. 1989)
22 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

(“One need not commit an unlawful act in order to be liable

for conspiring to evade a judgment of a court: it is contempt

to act solely for the purpose of evading a judgment.”).

1. Post-Injunction Payments for OZT Expenses

Sea Shepherd US incurred substantial expenses related to

OZT after the injunction issued. $348,565 of those expenses

were for orders placed before the injunction was issued, but

paid afterwards. Sea Shepherd US took no steps to rescind

the orders, divert delivery to a third party, or charge for their

use. Moreover, other OZT-related expenses were both

ordered and paid for after the injunction issued on December

17, 2012. For instance, an order of $106,830 in fuel for the

Steve Irwin was invoiced on December 31, 2012, paid for by

Sea Shepherd US that day, and delivered in January of 2013. 

Between January 1 and 16, 2013, Sea Shepherd US paid

$16,373 in credit card charges of the captains of vessels

involved in OZT. In all, Sea Shepherd US paid $163,405 in

OZT- related expenses that were invoiced and paid for by Sea

Shepherd US after the issuance of the injunction. Sea

Shepherd US and the individual board members confirmed

through their counsel at oral argument the accuracy of the

$163,405 figure.

2. Donations to OZT

Watson helped facilitate donations to OZT after the

injunction issued. On December 28, 2012, Watson wrote an

email to a Sea Shepherd US fundraiser, stating:

You can continue to fund raise for Sea

Shepherd USA but not to ask for funds for

Operation Zero Tolerance. If people wish to
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 23

restrict a donation to Operation Zero

Tolerance they can do so but it will have to be

made out to Sea Shepherd Australia and there

can be no tax receipt.

Rob Holden has a 501(c)(3) organization

called Blue Rage and if need be donations can

be made to Blue Rage and Blue Rage can

send it on toe [sic] Sea Shepherd Australia.

Thus, even though Sea Shepherd US was unable to collect

tax-deductible charitable donations for use in OZT, Watson

proposed routing such donations to OZT through a separate

501(c)(3) nonprofit entity.

3. Asset Grants to OZT for No Consideration

SeaShepherd US’s most troubling post-injunction support

for OZT came in a series of substantial grants of property it

made to various Sea Shepherd entities participating in the

OZT campaign. In January of 2013, the Sea Shepherd US

board authorized a series of grants to Sea Shepherd Australia

and Sea Shepherd Netherlands. Specifically, Sea Shepherd

US gave equipment aboard the Brigitte Bardot to Sea

Shepherd Australia for no consideration. This equipment had

an original purchase price of more than $175,000. Sea

Shepherd US also gave equipment aboard the Steve Irwin to

Sea Shepherd Netherlands, again for no consideration. This

equipment had an original purchase price of several hundreds

of thousands of dollars. Most significantly, Sea Shepherd US

also transferred ownership of its vessel, the Bob Barker, to

Sea Shepherd Netherlands for no consideration. As noted

earlier, the Bob Barker and the transferred equipment had a

total original purchase price of nearly two million dollars. 
24 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

The Brigitte Bardot, Steve Irwin, and Bob Barker all

participated in OZT. Each vessel was involved in at least one

violation of the injunction; the Bob Barker was involved in

several.

The Sea Shepherd US board knew that these items would

be used in OZT when it voted to grant them to Sea Shepherd

Australia and Sea Shepherd Netherlands. The email asking

the board members to vote on the grants stated “[p]lease

consider this grant in conjunction with Operation Zero

Tolerance.” Sea Shepherd US board member Robert Wintner

testified that he understood this email to mean that the

granted items would be used for OZT. And, if this evidence

leaves any doubt, Sea Shepherd US and the individual board

members conceded at oral argument through their counsel

that the board knew that the equipment would be used in

OZT, and that there was a “very high risk” that the Bob

Barker would violate the injunction.

In light of this undisputed evidence, we hold that Sea

Shepherd US violated the injunction by giving others it knew

were highly likely to violate the injunction the means to do

so. The fact that the injunction’s terms did not specifically

forbid Sea Shepherd US’s acts of assistance does not

immunize Sea Shepherd US from liability. “In deciding

whether an injunction has been violated it is proper to observe

the objects for which the relief was granted and to find a

breach of the decree in a violation of the spirit of the

injunction, even though its strict letter may not have been

disregarded.” John B. Stetson Co. v. Stephen L. Stetson Co.,

128 F.2d 981, 983 (2d Cir. 1942); see Prang Co. v. Am.

Crayon Co., 58 F.2d 715 (3d Cir. 1932); Cal. Fruit Growers

Exch. v. Sunkist Drinks, Inc., 25 F. Supp. 401 (S.D.N.Y.

1938); see also Salazar v. Buono, 559 U.S. 700, 762 (2010)
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 25

(Breyer, J., dissenting) (citing Stetson Co., 128 F.2d at 983). 

Our objective in issuing the injunction was to stop Sea

Shepherd from attacking the Plaintiffs’ vessels. Sea

Shepherd US thwarted that objective by furnishing other Sea

Shepherd entities with the means to do what it could not after

the issuance of the injunction.

It has long been settled law that a person with notice of an

injunction may be held in contempt for aiding and abetting a

party in violating it. See Peterson v. Highland Music, Inc.,

140 F.3d 1313, 1323–24 (9th Cir. 1998) (citing NLRB v.

Sequoia Dist. Council of Carpenters, 568 F.2d 628, 633 (9th

Cir. 1977)); Laborers’ Int’l Union of N. Am., AFL-CIO,

882 F.2d at 954; Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v.

Quinteros, 176 F.3d 669, 674 (3d Cir. 1999). Much of the

applicable case law addresses the issue of when it is fair to

hold non-parties to an injunction liable for aiding and abetting

a party’s violation of the injunction. See, e.g., Regal

Knitwear Co., 324 U.S. at 14; Levin v. Tiber Holding Corp.,

277 F.3d 243, 250–51 (2d Cir. 2002); Goya Foods, Inc. v

Wallack Mgmt. Co., 290 F.3d 63, 75 (1st Cir. 2002);

Highland Music, 140 F.3d at 1323–24; Illinois v. U.S. Dep’t

of Health & Human Servs., 772 F.2d 329, 332 (7th Cir.

1985); Waffenschmidt v. MacKay, 763 F.2d 711, 717 (5th Cir.

1985); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832–33 (2d

Cir. 1930). It is clear to us that if a non-party to an injunction

may be held in contempt for aiding and abetting violations of

an injunction, a party to an injunction may be as well. We

therefore hold that a partymay be held in contempt for giving

a non-party the means to violate an injunction, if the party

knows it is highly likely the non-party will use those means

to violate the injunction.
26 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

Under such circumstances, the party giving assistance

need not affirmatively desire to cause a violation of the

injunction; it is enough that the party know a violation is

highly likely to occur. In so ruling, we are guided by

common law rules of fault-based liability. “Tort law

ordinarily imputes to an actor the intention to cause the

natural and probable consequences of his conduct.” DeVoto

v. Pacific Fidelity Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir.

1980) (citing Restatement (Second) of Torts § 8A (1965)). 

“Intent is not . . . limited to consequences which are desired. 

If the actor knows that the consequences are certain, or

substantially certain, to result from his act, and still goes

ahead, he is treated by the law as if he had in fact desired to

produce the result.” Restatement (Second) of Torts § 8A(b)

(1965). We have adopted a similar definition of intent

outside the common law tort context. For instance, we

employed it when we defined the elements of contributory

infringement of copyright in Perfect 10, Inc. v. Amazon.com,

Inc., 508 F.3d 1146, 1170–71 (9th Cir. 2007), where we

observed that “common law principles establish that intent

may be imputed.” See also Metro-Goldwyn-Mayer Studios

Inc. v. Grokster Ltd., 545 U.S. 913, 934–35 (2005) (endorsing

the use of “rules of fault-based liability derived from the

common law” in assessing liability for contributory

infringement). Under these circumstances, we find it

appropriate to impute to Sea Shepherd US an intent to cause

a violation of the injunction, regardless of whether Sea

Shepherd US affirmatively desired that a violation occur.

We also find it relevant that Sea Shepherd US’s acts of

assistance proximately caused violations of the injunction. 

We are once again guided by principles derived from

common law rules of fault-based liability. The Supreme

Court recently summarized the principles of proximate
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 27

causation in Paroline v. United States, 134 S. Ct. 1710, 1719

(2014). “As a general matter, to say one event proximately

caused another is a way of making two separate but related

assertions. First, it means the former event caused the latter. 

This is known as actual cause or cause in fact.” Id. Second,

it means the former event was “not just any cause, but one

with a sufficient connection to the result.” Id.

We begin this portion of our analysis by asking whether

Sea Shepherd US’s assistance actually caused violations of

the injunction. “The concept of actual cause ‘is not a

metaphysical one but an ordinary, matter-of-fact inquiry into

the existence . . . of a causal relation as laypeople would view

it.’” Id. (quoting 4 F. Harper, F. James, & O. Gray, Torts

§ 20.2, p. 100 (3d ed. 2007)). We need not assess whether

Sea Shepherd US’s acts caused each and every violation of

the injunction. At a minimum its transfer of ownership and

control of the Bob Barker to Sea Shepherd Netherlands

caused the violations involving the Bob Barker. The foreign

Sea Shepherd entities could not have used the vessel to

violate the injunction if they did not control it.

We next inquire whether Sea Shepherd US’s conduct had

a “sufficient connection to” violations of the injunction. See

Paroline, 134 S. Ct. at 1719. In applying this “flexible

concept,” id. (internal quotation marks omitted), we are

mindful of its purpose: “A requirement of proximate cause

. . . serves, inter alia, to preclude liability in situations where

the causal link between conduct and result is so attenuated

that the consequence is more aptly described as mere

fortuity.” Id. (citing Exxon Co., U.S.A. v. Sofec, Inc.,

517 U.S. 830, 838–39 (1996)). For this reason, “[p]roximate

cause is often explicated in terms of foreseeability or the

scope of the risk created by the predicate conduct.” Paroline,
28 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

134 S. Ct. at 1719 (citing 1 Restatement (Third) of Torts:

Liability for Physical and Emotional Harm § 29, p. 493

(2005)).

We have no trouble finding a sufficient causal connection

between Sea Shepherd US’s intentional conduct and

violations of the injunction. Sea Shepherd US knew that

there was a very high risk that foreign Sea Shepherd entities

would use the Bob Barker to violate the injunction. It was

clearlyforeseeable that transferringthe ownership and control

of the vessel to Sea Shepherd Netherlands in order that it

participate in OZT would result in violations of our

injunction.

The fact that the foreign Sea Shepherd entities had a more

direct role in causing the violations than Sea Shepherd US

does not negate the causal connection between Sea Shepherd

US’s acts and the violations of our injunction. An event may

have multiple proximate causes. See id. (“Every event has

many causes . . . and only some of them are proximate, as the

law uses that term.”); Sheridan v. United States, 487 U.S.

392, 406 (1988) (Kennedy, J., concurring) (“It is standard tort

doctrine that a reasonably foreseeable injury can arise from

multiple causes, each arising from a breach of a different duty

and each imposing liability accordingly.”); see also Lillie v.

Thompson, 332 U.S. 459, 461–62 (1947) (per curiam). As we

have observed in applying California tort law, “the fact that

the actor’s conduct becomes effective in harm only through

the intervention of new and independent forces for which the

actor is not responsible is of no importance.” Bank of N.Y. v.

Fremont Gen. Corp., 523 F.3d 902, 910 (9th Cir. 2008)

(quoting Tate v. Canonica, 180 Cal. App. 2d 898, 907

(1960)). “[N]o consideration is given to the fact that . . . the

actor’s conduct has created a situation harmless unless acted
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 29

upon by other forces for which the actor is not responsible.” 

Tate, 180 Cal. App. 2d at 907 (internal quotation marks

omitted). By analogy, a party who acts knowing that his

conduct is highly likely to cause a violation of an injunction

may not avoid liability simply because another person outside

his immediate control actually carried out the violation.

We are mindful that the contempt power, like other

“inherent powers” of the judiciary, “must be exercised with

restraint and discretion.” See Roadway Express, Inc. v. Piper,

447 U.S. 752, 764–65 (1980) (citing Gompers v. Bucks Stove

& Range Co., 221 U.S. 418, 450–51 (1911); Green v. United

States, 365 U.S. 165, 193–94 (1958) (Black, J., dissenting)). 

Nevertheless, “[t]he purpose of contempt proceedings is to

uphold the power of the court,” Bessette v. W.B. Conkey Co.,

194 U.S. 324, 327 (1904), and to ensure that the court’s

vindication of litigants’ rights is not merely symbolic. Our

orders would have little practical force, and would be

rendered essentially meaningless, if we were unable to

prevent parties bound by them from flagrantly and materially

assisting others to do what they themselves are forbidden to

do.

The Defendants argue that to hold them in contempt for

aiding and abetting we must find them “indirectly liable,”

because “[t]he alleged acts of contempt were committed by

third parties.” The Defendants contend that this requires a

clear and convincing showing that they “incited” or

“controlled” the third-party acts of contempt. This argument

is without merit.

While the record amply supports the inference that Sea

Shepherd US, and Watson in particular (discussed infra),

“incited” others to violate the injunction, a showing of
30 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

incitement or control is not required to hold Sea Shepherd US

in contempt. It is not necessary to impute the acts of others

to Sea Shepherd US to hold it in contempt; we hold Sea

Shepherd US in contempt for the acts it committed after the

injunction issued. See Laborers’ Int’l Union of N. Am., AFLCIO, 882 F.2d at 954 (“One need not commit an unlawful act

in order to be liable for conspiring to evade a judgment of a

court: it is contempt to act solely for the purpose of evading

a judgment.”); John B. Stetson Co., 128 F.2d at 983 (holding

that courts may “find a breach of the decree in a violation of

the spirit of the injunction, even though its strict letter may

not have been disregarded”). As a party to the injunction, Sea

Shepherd US is liable because it intentionally furnished cash

payments, and a vessel and equipment worth millions of

dollars, to individuals and entities it knew would likely

violate the injunction.

The out-of-circuit cases Sea Shepherd US cites in support

of its incitement and control argument are plainly irrelevant

to the issues presented here. Sea Shepherd US cites a Federal

Circuit patent case, Tegal Corp. v. Tokyo Electron Co., Ltd.,

248 F.3d 1376, 1378 (Fed. Cir. 2001). But Tegal held only

that a party enjoined from “facilitating” infringement of a

patent cannot be held in contempt merely for failing to

prevent another’s infringement, absent an affirmative act of

facilitation. Id. at 1378–80. This holding is not relevant to

our facts, which do involve affirmative acts.

Sea Shepherd US’s citation to National Organization for

Women, Inc. v. Scheidler, 267 F.3d 687 (7th Cir. 2001), rev’d

on other grounds, 537 U.S. 393 (2003), is also unavailing. 

The injunction in Scheidler explicitly prohibited the

defendants from “aiding, abetting, inducing, directing, or

inciting” others to violate the injunction. Id. at 705. The
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 31

Scheidler defendants argued that the injunction exposed them

to liability for the conduct of persons they did not control, and

whose actions they did not authorize. Id. at 706. The

Seventh Circuit disagreed, finding that “[n]othing in the order

purports to hold the defendants liable for actions they do not

direct, incite, or control.” Id. at 707. Even if Scheidler’s

narrow holding about the specific terms of one injunction

could be construed broadly as a holding about the general law

of contempt for aiding and abetting, and it clearly cannot, the

holding would not apply here. We do not purport to hold any

of the Defendants liable for actions they did not direct, incite,

or control. Rather, we hold them liable only for their own

intentional acts in furtherance of OZT. A party bound by an

injunction may not provide a non-party with the means to

violate it, knowing the non-party will be likely to do so.

Sea Shepherd US also argues that contempt for aiding and

abetting requires a showing that a third-party’s violations

were “for the benefit of, or to assist” Sea Shepherd US. But

the out-of-circuit case Sea Shepherd US cites in support of

this argument is clearly inapposite. See Goya Foods, Inc.,

290 F.3d at 75. Goya Foods addresses when a non-party to

an injunction may be held in contempt for conduct that would

violate the injunction if performed by a party bound by it. Id. 

The First Circuit held that, to be liable for civil contempt, a

non-party’s “challenged action must be taken for the benefit

of, or to assist, a party subject to the decree.” Id. This

requirement, like Rule 65’s requirement that a person cannot

be bound by an injunction unless he is in “active concert or

participation with” a party, is animated partly by due process

concerns raised when courts seek to bind a non-party. See

Fed R. Civ. P. 65(d)(2)(C); Max’s Seafood Cafe ex rel. LouAnn, Inc., 176 F.3d at 674. Holding Sea Shepherd US in

contempt for violating an injunction to which it is a party
32 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

raises no analogous due process concerns. Sea Shepherd

US’s liability for intentionally assisting non-parties to violate

an injunction by which it is clearly bound does not depend on

whether the non-parties violated the injunction for Sea

Shepherd US’s benefit, or their own, or for no reason at all.

The Defendants also argue that they should not be held in

contempt because the so-called “separation strategy” was

based on a reasonable and good faith interpretation of the

injunction. We reject this argument.

It is true that we have recognized a narrow “good faith”

exception to the general rule that intent is irrelevant in civil

contempt proceedings. See Vertex, 689 F.2d at 889. We held

in Vertex that “if a defendant’s action appears to be based on

a good faith and reasonable interpretation of (the court’s

order), he should not be held in contempt.” Id. (internal

quotation marks omitted). By its terms, the Vertex exception

only applies where a defendant’s interpretation is

“reasonable.” Parties who act on the unreasonable advice of

counsel risk being held in contempt if their actions violate a

court’s order.

The facts of this case, however, do not require a Vertex

inquiry into the reasonableness of the Defendants’

interpretation of our injunction. The principle announced in

Vertex was based on the well-established rule that a “vague”

order may not be enforced. See id. (citing Int’l

Longshoremen’s Ass’n, Local 1291 v. Phila. Marine Trade

Ass’n, 389 U.S. 64, 76 (1967) (reversing a civil contempt

judgment founded upon a decree too vague to be

understood)). In Vertex, the parties disputed whether the

words “includes” and “incorporating” in the consent

judgment were impermissibly vague. 689 F.2d at 890. The
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 33

case thus involved a “semantic battle” about the meaning of

allegedly vague terms in the language of the judgment. See

id.

No such “semantic battle” is at issue here. The meaning

of the text of the injunction is not disputed by any of the

parties. No one contends that the injunction’s text states, in

so many words, that Sea Shepherd US may not donate

millions of dollars of equipment to entities it knows are likely

to violate the injunction. And no one contends that the text

states that Sea Shepherd US may not continue to fund OZT,

knowing that violations of the injunction were likely to occur

if the campaign proceeded unabated. The language of the

injunction itself is not ambiguous. What the Defendants

claim is ambiguous, however, is whether they could avoid

liability by hewing to the narrow letter of the injunction while

simultaneously ignoring its spirit by giving substantial

assistance to OZT. Vertex is not relevant to resolving such an

“ambiguity.”

Even if the Vertex exception were applicable here, we

would find that the Defendants unreasonably resolved the

“ambiguity.” In making this determination, we are guided by

the Supreme Court’s commentary in McComb v. Jacksonville

Paper Co., 336 U.S. 187 (1949). In McComb, the Court

reversed a district court’s decision declining to enforce an

injunction that prohibited a party from violating the Fair

Labor Standards Act. Id. at 194. Both the district court and

the court of appeals found that the alleged contemnor’s

specific conduct did not violate the injunction’s general

prohibition against violations of the FLSA. Id. at 190–91. 

Noting that the respondents “acted at their peril” when they

“undertook to make their own determination of what the

decree meant,” id. at 192, the Court reasoned:
34 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

It does not lie in their mouths to say that they

have an immunity from civil contempt

because the plan or scheme which they

adopted was not specifically enjoined. Such

a rule would give tremendous impetus to the

program of experimentation with

disobedience of the law which we condemned

in Maggio v. Zeitz[

1

] . . . . The instant case is

an excellent illustration of how it could

operate to prevent accountabilityfor persistent

contumacy. Civil contempt is avoided today

by showing that the specific plan adopted by

respondents was not enjoined. Hence a new

decree is entered enjoining that particular

plan. Thereafter the defendants work out a

plan that was not specifically enjoined.

Immunity is once more obtained because the

new plan was not specifically enjoined. And

so a whole series of wrongs is perpetrated and

a decree of enforcement goes for naught.

Id. at 192–93.

To find the Defendants’self-serving interpretation of their

obligations under our injunction reasonable would be to invite

“experimentation with disobedience.” The schemes available

to those determined to evade injunctions are many and varied,

see, e.g., Deena Artware, Inc., 361 U.S. at 398; Laborers’

Int’l Union of N. Am., AFL-CIO, 882 F.2d at 954; Parker v.

1

333 U.S. 56, 69 (1948) (observing in different context that “[t]he

procedure to enforce a court’s order commanding or forbidding an act

should not be so inconclusive as to foster experimentation with

disobedience”).
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 35

United States, 126 F.2d 370 (1st Cir. 1942), and no injunction

can explicitly prohibit every conceivable plan designed to

defeat it. Though they had every opportunity, the Defendants

did not seek clarification of their obligations. See McComb,

336 U.S. at 192 (noting that the respondents could have

avoided appeal by simply petitioning for “modification,

clarification or construction of the order”). By construing

their obligations narrowly to include only refraining from acts

specifically enumerated in the injunction, and not acts likely

to nullify the injunction, the Defendants assumed the risk that

their attempts at technical compliance would prove wanting. 

We accordingly reject the Defendants’ good faith argument,

and hold Sea Shepherd US in civil contempt.

II. Volunteer Board Members

The Plaintiffs have also moved for contempt against Sea

Shepherd US’s volunteer board members based on their

ratification of the separation strategy, and their approval of

transfers of ownership of valuable property, for no

consideration, to Sea Shepherd entities participating in OZT. 

At the time the injunction issued, the volunteer board

members were Lani Blazier, Marnie Gaede, Bob Talbot,

Robert Wintner, Ben Zuckerman, and Peter Rieman. Having

found Sea Shepherd US liable for civil contempt, we also

hold the board members just named in civil contempt.

The law is clear that those who control an organization

may be held liable if they fail to take appropriate action to

ensure compliance with an injunction:

A command to the corporation is in effect a

command to those who are officially

responsible for the conduct of its affairs. If
36 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

they, apprised of the writ directed to the

corporation, prevent compliance or fail to take

appropriate action within their power for the

performance of the corporate duty, they, no

less than the corporation itself, are guilty of

disobedience, and may be punished for

contempt.

Wilson v. United States, 221 U.S. 361, 376 (1911). There is

no dispute that the individual board members knew of the

injunction and voted to implement the separation strategy,

including the transfer of property for no consideration to Sea

Shepherd Australia and Sea Shepherd Netherlands.

The Appellate Commissioner made much of the volunteer

directors’ reliance on the advice of counsel, and the

Defendants urge us to do the same. But the Commissioner’s

conclusion that the volunteer directors intended to comply

with the injunction is at odds with Sea Shepherd US’s

subsequent concession at oral argument that the board knew

there was a “very high risk” the vessel and equipment it

provided would be used to violate the injunction. Under the

circumstances, it is simply not credible that the volunteer

directors believed they were complying with the injunction

when they agreed to grant, for no consideration, millions of

dollars of equipment and materials needed to carry out OZT

to entities they believed would be highly likely to use those

materials to violate the injunction.

Moreover, even if we were to assume, arguendo, that the

volunteer directors trulyacted in reliance on counsel’s advice,

that reliance is largely irrelevant. There is “no basis in law”

for a “‘good faith’ exception to the requirement of obedience

to a court order.” In re Crystal Palace Gambling Hall, Inc.,
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 37

817 F.2d 1361, 1365 (9th Cir. 1987). A party’s good faith

reliance on the advice of counsel does not excuse the

violation of a court’s order. See Steinert v. United States, 571

F.2d 1105, 1108 (9th Cir. 1978) (holding that “[d]isobedience

of a valid court order does not cease to be willful when done

in good faith reliance on the advice of a tax accountant”);

Eustace v. Lynch, 80 F.2d 652, 656 (9th Cir. 1935) (holding

that the “advice of an attorney is not a defense to an act of

contempt”); see also United States v. Asay, 614 F.2d 655, 661

(9th Cir. 1980) (holding that defiance of summonses was

“willful despite the advice of counsel” (citing Steinert,

571 F.2d at 1108)). As we observed in Steinert, “[t]o hold

otherwise would make stultification of a court order

impermissibly easy. In litigation frequently the client must

assume the risks of his advisor’s errors.” 571 F.2d at 1108. 

Accordingly, the volunteer directors may be held liable for

contempt.

A. Peter Rieman

Peter Rieman stands in a somewhat different position than

the other named board members. Rieman resigned from the

board on February 11, 2013, following the first alleged

violation of the injunction on January 29, 2013. Rieman was

concerned that he had no control over the actions of those

involved in OZT and was worried that he faced personal

exposure for subsequent violations of the injunction.

The Appellate Commissioner concluded correctly that

“[i]f SSCS’s actions (and inactions) put it in contempt, then

[Rieman] is as liable as the other Volunteer Directors.” It is

true that Rieman lacked control over Sea Shepherd US after

he resigned in February 2013. But by that time, he had

already voted to ratify and implement the separation strategy,
38 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

and an OZT vessel had already breached the safety perimeter

imposed by our injunction. Rieman’s resignation therefore

does not immunize him from liability for contempt.2

B. Volunteer Protection Act

The volunteer directors argue that the provisions of the

Volunteer Protection Act (VPA), 42 U.S.C. § 14503,

immunize them from a finding of contempt. We reject this

argument, and hold that the VPA does not affect the power of

federal courts to impose civil fines to redress contempt.

Under some circumstances, the VPA immunizes

volunteers from liability for harm caused by actions taken

within the scope of their volunteer responsibilities. The VPA

provides in relevant part:

[N]o volunteer of a nonprofit organization or

governmental entity shall be liable for harm

caused by an act or omission of the volunteer

on behalf of the organization or entity if–

(1) the volunteer was acting within the scope

of the volunteer’s responsibilities in the

nonprofit organization or governmental entity

at the time of the act or omission;

[and] . . .

2 This finding of contempt as to Rieman does not, however, preclude the

taking into account of his early resignation by way of mitigation when

appropriate remedial sanctions are considered under Part V, below.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 39

(3) the harm was not caused by willful or

criminal misconduct, gross negligence,

reckless misconduct, or a conscious, flagrant

indifference to the rights or safety of the

individual harmed by the volunteer . . . .

42 U.S.C. § 14503(a).

The Plaintiffs raise a host of arguments why the volunteer

directors do not qualify for immunity under the VPA. The

Plaintiffs contend that the attorney’s fees they seek are not

“harm” under § 14503(a); that the board members’

misconduct was willful under § 14503(a)(3); and that theydid

not act within the scope of their responsibilities under

§ 14503(a)(1) when they ratified the separation strategy. We

need not address these arguments, for we hold that the VPA

does not affect our power to hold those bound by our

injunction in contempt.

We find it highly improbable that when Congress passed

the VPA, it intended to prohibit federal courts from finding

volunteer board members liable for their acts of contempt.3

The text of the VPA does not specifically mention courts’

equity jurisdiction or their contempt powers. Nor does the

VPA’s legislative history provide support for the conclusion

that Congress’s purposes included curbing the judicial power

3 The parties largely focus their arguments on whether the VPA applies

to federal causes of action, in addition to state causes of action. But

whether the VPA applies to federal causes of action is not directly relevant

to whether the VPAcircumscribes federal courts’ contempt power, and the

cases cited are inapposite. See Armendarez v. Glendale Youth Ctr., Inc.,

265 F. Supp. 2d 1136, 1140 (D. Ariz. 2003); Nunez v. Duncan, 2004 WL

1274402, at *1 (D. Or. June 9, 2004); Am. Produce, LLC v. Harvest

Sharing, Inc., 2013 WL 1164403, at *3 (D. Colo. Mar. 20, 2013).
40 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

to enforce orders through contempt. The Committee on the

Judiciary’s report observed that “H.R. 911, as amended,

immunizes a volunteer from liability for harm caused by

ordinary negligence.” H.R. Rep. 105-101(I) at 5 (emphasis

added). The committee report also speaks of the “litigation

craze” and “[o]ur ‘sue happy’ culture.” Id. It explains that

the VPA is “intended to remove a significant barrier—the

fear of unreasonable legal liability—to inducing individuals

to volunteer their time to charitable endeavors.” Id.

(emphasis added). These references indicate that the VPA’s

purpose was to curb lawsuits against volunteers, not to curb

courts’ contempt power.

The importance of the power of courts to punish for

contempt makes it highly unlikely that Congress would

curtail that power without explicitly indicating its intention. 

“[T]he power of courts to punish for contempts is a necessary

and integral part of the independence of the judiciary, and is

absolutely essential to the performance of the duties imposed

on them by law.” Gompers v. Buck’s Stove & Range Co.,

221 U.S. 418, 450 (1911). This power is “inherent in all

courts.” Michaelson, 266 U.S. at 65. We acknowledge that

Congress may limit lower federal courts’ exercise of the

contempt power. See, e.g., Bessette v. W. B. Conkey Co.,

194 U.S. 324 (1904); Ex Parte Robinson, 86 U.S. 505 (1873). 

“Nevertheless, ‘we do not lightly assume that Congress has

intended to depart from established principles’ such as the

scope of a court’s inherent power.” Chambers v. NASCO,

Inc., 501 U.S. 32, 47 (1991) (quoting Weinberger v.

Romero–Barcelo, 456 U.S. 305, 313 (1982)); see also Link v.

Wabash R.R. Co., 370 U.S. 626, 631–32 (1962). Absent a

“much clearer expression of purpose,” see Link, 370 U.S. at

631–32, we will not assume that Congress intended to limit

our inherent power to punish contempt.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 41

We accordingly hold that the VPA does not reach federal

courts’ power to find volunteer board members in contempt

of their orders. Accordingly, the VPA does not immunize

Sea Shepherd US’s volunteer board members from liability

for contempt.

III. Watson

In addition to holding Watson in contempt as the

Executive Director of Sea Shepherd US, we hold him in

contempt for personally violating the injunction by coming

within 500 yards of one of the Plaintiffs’ vessels.

Unlike the other individual respondents, Watson was

present in the Southern Ocean aboard the Steve Irwin during

the entire OZT campaign. Watson claimed to believe that he

could stay on the Steve Irwin, acting as an observer, and

remain in compliance with the injunction. Chakravarty, the

captain of the Steve Irwin, assured Watson that the ship

would not approach within 500 yards of the whaling vessels. 

The two developed a contingency plan in the event that the

Steve Irwin looked like it might breach the 500-yard safety

perimeter. Under the plan, Chakravarty would transfer

Watson to the Brigitte Bardot prior to any encounter. This

plan proved unworkable in practice. Chakravarty abandoned

the plan to transfer Watson in mid-February when he and the

other captains attempted a blockade to prevent one of the

Plaintiffs’ vessels from refueling. As a result, Watson

personally came within 500 yards of the Plaintiffs’ whaling

vessel while on board the Steve Irwin.

Watson testified that he did not disembark the Steve Irwin

because he believed that he risked detention or extradition if

he did so in Australia or New Zealand, the only two countries
42 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

within 1000 miles of the Steve Irwin’s position. When the

injunction issued, Watson was subject to an INTERPOL red

notice for criminal charges he faced in Japan. But there was

strong evidence that Watson was unlikely to be extradited

from Australia, and that he knew it. Sea Shepherd was very

popular in Australia, and Watson’s Australian attorney had

advised him that the risk of arrest and extradition byAustralia

was remote.

We find that Watson failed to take all reasonable steps

within his power to comply with the injunction. A reasonable

person in Watson’s position would not have tried to evade a

warrant for his arrest while also risking being held in

contempt. To hold otherwise would be to condone as

reasonable Watson’s attempt to evade the criminal charges he

was facing. We accordingly hold Watson in civil contempt

for coming within 500 yards of Plaintiffs’ vessels.

IV. Hartland

The Plaintiffs also request that Hartland, Sea Shepherd

US’s Administrative Director, be held in contempt. Hartland

is in a different position than the other individual

respondents. She was not a member of Sea Shepherd US’s

board, and accordingly did not vote to ratify the separation

strategy. As the Appellate Commissioner found, “[t]here is

no evidence that Hartland took any action in response to the

injunction that was not authorized by the SSCS board.” This

alone does not immunize Hartland from contempt, for our

injunction explicitly bound not just Sea Shepherd US and

Watson, but those acting “in concert” with them. However,

unlike the volunteer board members, Hartland could only

have complied with the injunction by resigning from her paid

employment. Under the specific circumstances of this case,
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 43

we conclude that it would not be equitable to hold Hartland

in contempt.

V. Appropriate Remedial Sanctions

The Plaintiffs request three forms of relief to redress the

Defendants’ contempt: (1) attorney’s fees and costs as

compensation for bringing the Defendants’ acts of contempt

to the attention of the court; (2) bonded, suspended sanctions

in the amount of $2 million or such amount the court deems

appropriate; and (3) an order directing that the Defendants

may purge themselves of contempt by seeking in good faith

to revoke their grants of property to Sea Shepherd entities.

We hold that the Plaintiffs are entitled to recover

attorney’s fees and costs incurred in bringing and prosecuting

these contempt proceedings. “[T]he cost of bringing the

violation to the attention of the court is part of the damages

suffered by the prevailing party and those costs would reduce

any benefits gained by the prevailing party from the court’s

violated order.” Perry v. O’Donnell, 759 F.2d 702, 705 (9th

Cir. 1985). At a minimum, the Plaintiffs shall recover their

fees and costs against Sea Shepherd US and Watson. The

Plaintiffs are also entitled to compensation for any actual

damages suffered and resources (such as fuel and personnel

costs) that were wasted as a result of the Defendants’

contumacious acts interfering with the Plaintiffs’ mission. 

We will re-refer this matter to the Appellate Commissioner to

determine the appropriate amount of attorney’s fees and costs

as well as compensatory damages to award. The

Commissioner shall determine whether the volunteer

directors should also be held liable, and the extent to which

each of them should be held liable, jointly and/or severally.
44 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD

The Plaintiffs’ requests for coercive sanctions and an

order to compel compliance should be directed to the district

court. Our opinion of February 25, 2013, as amended May

24, 2013, provided that the preliminary injunction “will

remain in effect until further order of this court.” Inst. of

Cetacean Research, 725 F.3d at 947. However, we issued

our mandate on June 7, 2013, at which time the district court

assumed supervision over the Defendants’ present

compliance with the preliminary injunction. While we retain

jurisdiction to order remedial relief for acts of contempt that

took place prior to the issuance of our mandate, because these

coercive sanctions are forward-looking, we believe that

policing the Defendants’ continuing compliance with the

preliminary injunction is better left to the district court,

subject to our review on appeal. This panel retains

jurisdiction over all appeals in this case.

CONCLUSION

We hold Sea Shepherd Conservation Society, Paul

Watson, Lani Blazier, Marnie Gaede, Bob Talbot, Robert

Wintner, Ben Zuckerman, and Peter Rieman in civil

contempt. We do not hold Susan Hartland in contempt. We

re-refer this matter to the Appellate Commissioner for further

proceedings in a separate order filed contemporaneously.

IT IS SO ORDERED.