Appeals Court Denies SeaWorld’s Attempt To Overturn OSHA Violation

The main reason that people nominated and voted for SeaWorld in our recently concluded Worst Company In America tournament was the controversy — highlighted in the documentary Blackfish — over its treatment of orca whales and, more precisely, the multiple deaths that have been tied to one particular whale. SeaWorld has been fighting workplace safety citations issued following the 2010 death of a trainer, but today a federal appeals court ruled against the park.

In Feb. 2010, SeaWorld trainer Dawn Brancheau was killed during a live performance at the park when an orca named Tilikum, who had been involved in two previous fatalities, pulled her into the water and refused to release her before she drowned.

Following this tragic incident OSHA issued three workplace safety violations against SeaWorld, two of them directly related to the death of Brancheau.

One of the citations alleged two instances of a “willful” violation for exposing animal trainers to the recognized hazards of drowning or injury when working with orcas. Specifically, the park was called out for, among other things, allowing the trainers to work with the whales without a protective barrier.

SeaWorld had tried to argue that it was unaware that working with so-called killer whales presented a recognized hazard, but in 2012 an administrative law judge cited not only the previous deaths involving orcas at SeaWorld but also the park’s own safety manuals and training literature in ruling that the park did indeed know that this sort of up-close work presents a real risk to trainers.

That judge said SeaWorld’s safety program related to orcas relied too heavily on trainers to “recognize precursors and prevent unpredictable behavior by the killer whales.”

Added the judge, “SeaWorld holds trainers to a near-impossible standard set by upper management, who engage in a form of Monday morning quarterbacking.”

SeaWorld took its argument up the legal ladder to the U.S. Court of Appeals for the D.C. Circuit, which heard from both sides last November.

Today, the appeals panel issued its ruling, once again siding with OSHA.

“SeaWorld suggests that close contact with these whales was not a recognized hazard because all whales behave differently… But SeaWorld’s incident reports
demonstrate that it recognized the danger its killer whales posed to trainers notwithstanding its protocols,” wrote the court in today’s ruling [PDF]

The court points out that, of the seven orcas at the Orlando SeaWorld at the time of Ms. Brancheau’s death, “a substantial portion of SeaWorld’s killer
whale population had at least one reported incident… Killer whales bit trainers’ body parts on several occasions (although not generally
puncturing skin) and in 2006 a killer whale pulled a trainer underwater by the foot and submerged him repeatedly for approximately 10 minutes.”

There were also numerous instances of trainers being pulled into to water by whales, and of whales lunging out of the water at trainers.

“These incidents constitute substantial evidence to support the [administrative law judge]’s finding that “drywork” [work performed by trainers on dry surfaces around the whale tanks or in shallow water along the edges of the tanks] was also a recognized hazard,” writes the court.

The court also took issue with SeaWorld’s argument that the whales were safe to work with because they were trained to behave in a desirable manner and trainers were taught to identify precursors of aggressive behavior so they could preemptively remove themselves from a bad situation.

“On multiple occasions, including the death of Ms. Brancheau, SeaWorld’s incident reports indicated that the killer whales showed no immediate precursors of aggressive behavior or ignored SeaWorld’s emergency procedures designed to make them cease aggressive behavior,” writes the court.

Rather than the park’s safety and training protocols demonstrating — as SeaWorld claimed they do — that conditions were not unsafe, the court contended that “they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous and unpredictable and that even senior trainers can make mistakes during performances.”

Animal rights groups and others that have voiced concern about SeaWorld’s treatment of orcas and their trainers are applauding today’s decision.

“This ruling supports our contention that, from a common sense perspective, it is simply not safe to work in close contact with an intelligent, multi-ton marine predator,” said Dr. Naomi Rose, marine mammal scientist for the Animal Welfare Institute. “The relationship trainers have with these whales is important to the whales, who are social animals, but it’s not safe for the trainers. The fact is orcas don’t belong in captivity in the first place.”