Judge Rules SeaWorld Committed ‘Serious’ Violation in Death of Trainer

By Michael Mountain, May 31, 2012

Tilikum in isolation after killing his trainer

SeaWorld claims it can stop its enraged, depressed, captive orcas from killing their trainers by slapping the water to distract them. But a judge has decided to slap SeaWorld instead.

Yesterday, Judge Ken Welsch upheld most of the charges that OSHA (the Occupational Safety and Health Administration) has leveled against SeaWorld, concerning violations of safety standards when Tilikum dragged trainer Dawn Brancheau to a prolonged, grisly death in front of a hapless audience at the “Dine with Shamu” show at its Orlando circus last year.

“There are no known cases of killer whales killing humans in the wild,” Welsch wrote. “As far as the court can tell, all known injuries to humans have occurred from interactions with killer whales in pools.”

He ruled that OSHA was justified in its recommendation that trainers be separated from killer whales by a physical barrier if the two are near each other in the water. It’s a change that will severely limit what are considered the most exciting parts of its “Shamu” shows.

In his 42-page decision, the judge began by noting how orcas live in the wild:

They live in long-term social groups, called pods. Killer whales are highly intelligent and their social system is organized in a complex female-dominant hierarchy. Killer whales are “apex predators,” at the top of the food chain … [They] are not known to prey on humans in the wild.

He noted that Tilikum is “the largest killer whale in the collection of SeaWorld Parks and Entertainment.”

While SeaWorld claimed that Tilikum had grabbed Brancheau by her ponytail – which could imply that she was at fault by distracting the orca – the judge noted that that’s not what security officer Fredy Herrara said he saw.

In his statement, Mr. Herrara wrote that he observed Tilikum grab Ms. Branchheau by the arm and pull her into the water.

Alarms were immediately sounded, and staff did their well-rehearsed maneuvers, but the angry whale, who had already killed two humans since being taken from his mother off the coast of Iceland when he was just two years old, continued to drag Brancheau, ram her, dismember her and scalp her:

Tilikum did not respond to the call-back tone, nor did he respond to the trainers slapping the water as he held on to her underwater and proceeded to dismember her. … She had sustained grievous injuries. Tilikum had kept Ms. Brancheau in the G Pool for approximately 45 minutes.

Tilikum with one of the trainers

OSHA’s case against SeaWorld focused exclusively on the danger posed to employees. Much of the testimony, therefore, was about safety standards, including details like rails on stairways. SeaWorld argued that certain safety rules didn’t apply in this case because technically Tilikum did not attack Brancheau during a performance but during a “guest show” and that the announcer had said the “Dine with Shamu” show was over. The judge didn’t buy that line at all:

The court determines that “Dine with Shamu” was a performance that was still in progress when Tilikum seized Ms. Brancheau. … Performance indicates some sort of presentation before an audience. … “Dine with Shamu” customers were still in attendance at that point, watching Ms. Brancheau interact with Tilikum and commenting on the activity.

The judge devoted several pages to the fact that SeaWorld knew very well that there have been other deaths and injuries to trainers at  other marine circuses over the years, and that while the company tried to distance itself from those circuses, “The record establishes, however, that the operations of all of the parks are intertwined.” Just for starters:

On December 24, 2009, exactly two months before Tilikum killed Dawn Brancheau, Loro Parque [a marine circus in the Canary Islands] trainer A.M. was working with Keto, a killer whale owned by SeaWorld Parks and Entertainment. During a training session, Keto pulled A.M.  under water and then rammed him in his chest. A.M. died of massive internal bleeding.

The judge also noted testimony about how a trainer at SeaWorld San Diego was almost killed by orca Kasatka in November 2006.

The video is chilling. Approximately 8 minutes elapse from the time Kasatka grabs K.P.’s foot until she lets him go. A lot of that time is spent underwater. … K.P. sustained puncture wounds to both feet and a broken metatarsal in his left foot.

The judge poured scorn over “SeaWorld’s contention that it was unaware working with killer whales presents a recognized hazard” and listed 14 specific statements that SeaWorld had circulated to its staff. For example: “We have seen an onset of inconsistency that appears to increase as the whales approach adolescence.”

The judge writes that SeaWorld clearly relies on its trainers to prevent unpredictable behavior, but that the law says that that’s not good enough:

“The duty to comply with section 5(a)(1), however, rests with the employer. An employer cannot shift this responsibility to its employees by relying on them to, in effect, determine whether the conditions under which they are working are unsafe.” …

Although SeaWorld’s official stance is that trainers have the option to end a show if they feel uncomfortable with the situation, the reality is SeaWorld discourages such action.

Judge Welsch notes that SeaWorld expert Jeffrey Andrews “ultimately placed responsibility on Ms. Brancheau [for her death].”

Tilikum performs for the crowds

The judge’s decision concludes that OSHA has indeed established that “SeaWorld’s safety training program, both for killer whales and its trainers, is inadequate as a means of feasible abatement.”

He adds that:

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

The one bone he throws to the circus company is, on a technicality, to reduce the charge of “willful” negligence to “serious” since the company didn’t manifest “plain indifference”, and to reduce the fines accordingly.

The main sanction that OSHA wanted to place on SeaWorld is upheld: that trainers be separated from killer whales by a physical barrier if the two are near each other in the water. It’s a change that will likely alter the entire dynamic that SeaWorld has sought to maintain between the orcas and their trainers.

SeaWorld may decide to appeal the ruling. If it does so, this will mean yet another round of bad publicity for the company.

Of course, since OSHA’s brief is exclusively to do with the safety of human employees, the ethics and legality of keeping orcas in captivity was not addressed in these proceedings.

You can read or download the judge’s decision here.