ORLANDO, Fla. – In a 2-1 ruling, the U.S. Court of Appeals denied SeaWorld's appeal of citations issued by the Occupational Safety and Health Administration following the death of trainer Dawn Brancheau in Orlando.
Months after the killer whale Tilikum drowned Brancheau in February 2010, OSHA cited the company for endangering the safety of its killer whale trainers. In June 2012, an administrative law judge upheld the citation and ordered SeaWorld to pay a $7,000 fine. The judge also sided with OSHA's recommendation that SeaWorld keep its trainers behind barriers or a safe distance away when working with killer whales.
SeaWorld appealed that ruling, but the court ruled Friday that the company's petition for review was denied. It wasn't immediately known if SeaWorld would now petition the U.S. Supreme Court.
OSHA believes the best way for SeaWorld to protect its employees is to keep them behind barriers or a safe distance away from its killer whales.
"There will still be human interactions and performances with killer whales," the jusitces wrote. "The remedy will simply require that they continue with increased safety measures."
In written briefs filed ahead of November's hearing, attorneys for both sides focused on the "General Duty Clause" of the Occupational Safety Health Act, which requires employers to provide a place of employment "free from recognized hazards" that are likely to cause death of physical harm.
OSHA lawyers said SeaWorld violated the General Duty Clause by exposing trainers to the recognized hazards of working in close contact with killer whales. OSHA cites SeaWorld's own internal reports documenting around 100 incidents of killer whale aggression, including "biting, hitting, lunging toward, pulling on, pinning, dragging, and aggressively swimming over SeaWorld trainers." The agency believes those incident reports establish a pattern of unpredictable and dangerous working conditions.
OSHA argues SeaWorld's attempts to reduce the risk have failed, leading to multiple injuries and the deaths of two trainers (Besides Brancheau, OSHA includes the death of Alexis Martinez, a trainer employed by a marine park in Spain who was killed by a SeaWorld-owned orca two months earlier.).
SeaWorld acknowledged in written legal briefs that there is a risk working with killer whales, but the company believes it has adequately minimized that risk through a comprehensive animal training program and other safety protocols. SeaWorld's attorney argues that the OSH Act does not require an employer to provide a risk-free workplace, but rather reduce significant risks. As for those incident reports detailing aggressive whale behavior, SeaWorld asserts the documents "do not show recognition of ongoing hazards. Instead they show resolution of potential problems."
SeaWorld says having close contact with killer whales is integral to their business of attracting, inspiring and educating audiences, while also being necessary to provide the whales with proper veterinary care.
Oral arguments weren't at the U.S. Court of Appeals for the D.C. Circuit, where SeaWorld's appeal was filed. Instead, for the first time ever, the chief judge decided to move the proceedings to an auditorium at Georgetown University Law Center so students can witness the debate.
In their written briefs, SeaWorld argued that OSHA's general duty clause is unconstitutionally vague and violates employers' due process rights by not providing notice of prohibited working conditions. OSHA contends that SeaWorld's prior knowledge of killer whale aggression towards employees causing injury and death is adequate warning.
SeaWorld released a statement on Friday following OSHA ruling, which read:
"We are obviously disappointed with today's decision from the U.S. Court of Appeals.Following the tragic death of Dawn Brancheau in 2010, we voluntarily deployed several new safety measures, including removing trainers from the water during shows. In so noting in its opinion, the Court acknowledged that there will still be human interactions and performances with killer whales and, according to the Court, the decision simply requires that we continue with increased safety measures during our shows.
SeaWorld remains committed to providing a safe workplace for employees, healthy environments for the animals in our care, and inspirational and educational experiences with killer whales for our guests. We are still reviewing the opinion and no decision has been made on whether we will appeal."