Wednesday 12 March 2014

- Seaworld v OSHA Appeal and more lies

SeaWorld's opening brief in appeal to the US Court of Appeals in Washington, DC. Eugene Scalia, son of Supreme Court Justice Antonin Scalia, will represent SeaWorld in its fight against a federal order that sharply criticized the marine park operator’s safety measures. Appeal proceedings scheduled for November 12, 2013.

This is an official court document, which you can read in its entirety on the link above. I would however like to pick out some of Seaworld's own statements presented to the court, which goes against the image and things they are recently trying to portray.

From the Introduction

This case concerns the interaction between humans and whales at SeaWorld of Florida (“SeaWorld”). SeaWorld is “‘the world leader in the caring for, display and showing for entertainment purposes’ of killer whales and other marine animals.” 

  This case stems from SeaWorld’s first and only employee fatality involving a killer whale—Dawn Brancheau’s tragic death on February 24, 2010, after the whale known as Tilikum pulled her into a pool from an area of ankle deep water. What about Keto, he is a Seaworld orca and was being supervised and trained by Seaworld employees. 

Despite the absence of prior relevant citations or agency or industry guidelines, the Secretary of Labor now uses Tilikum’s admittedly unexpected behavior to indict SeaWorld for conduct it has engaged in for the entirety of its  fifty-year history, and  to prohibit “close contact” between Sea World staff and killer whales. What about all the other near death incidents?? 
Right from your very first orca - Shamu and Annette Eckis 

8-year-old male Winston attacked trainer Greg Williams, who was treated at a hospital for several small puncture wounds. Winston took the trainer's legs in his mouth during a training session.

Seaworld have been here before - White paper report of 14 incidents made in 1987 which states - Many of the more experienced trainers have left in recent years, citing low pay, internal politics and the pressures that come with growth. Relatively inexperienced trainers were left to execute complicated tricks developed by trainers who had spent 10 to 20 years on the job. 'Jovanovich, at least in part, has blamed the training methods that psychologists and trainers say was one of Sea World's contributions to the field. In a press conference earlier this month, Jovanovich concluded that the so-called Sea World method had failed.' The basic principles were those of operant conditioning, in which desired behavior is "reinforced" with rewards. The reward was food and all good behavior was rewarded. Fish for tricks, some observers have called it. The report can be seen HERE, nothing much seems to have changed!

After the Nov. 21 accident, Jovanovich ordered his own investigation by a team of four HBJ executives. That group unearthed 14 injuries in the previous four months, including a number of neck and back injuries.
It also found that three of the five trainers conducting the show at the time of the accident had no more than three months' experience. Sillick, after a year and three quarters, was the most experienced person, and there was no supervisor nearby.
'A Shame for the Animals'
"The fact finding by our committee showed that there was negligence," Jovanovich said.

Broken neck Trainer Joanne Webber, 29, suffered a fractured neck when 9-year-old female Kandu 5 landed on top of her and pushed her to the bottom of the pool during a practice session. Webber had five years experience working with orcas.

Trainer John Sillick, 26, suffered fractured vertebrae (T1 to T12), a fractured femur, and a fractured pelvis after 19-year-old male Orky 2 breached on top of him while riding on another orca during a performance. Sillick had less than two years experience working with orcas.
Then there is the court case where Seaworld tried to lock away the evidence when Sillick took them to court. If they Orky couldn't see well and couldn't jump, why make him part of the show?

What about this one that was never documented?

There are many more incidents listed here

Ky and Steve Aibel 


The General Duty Clause cannot be used to force a company to change the very  product that it offers the public, and  the business it is in. Product??

Each employer—(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm    to     his    employees.       

Surely   working    with    the    oceans    top    predator    is    classed    as    a    recognized    hazard .  The    clue    is    in    the    name.

 incidents at SeaWorld have consistently declined over time, with no incidents whatsoever in a nearly five-year span preceding Ms. Brancheau’s death.

This is not true - 

#93   2005/04/01 Sea World Florida, USA  Taku
A SeaWorld Orlando trainer is expected to return to work soon after being injured by an "overly excited" killer whale, a theme-park spokeswoman said Sunday. 11-year-old male Taku, one of nine at the park that go by the stage name Shamu, swam rapidly past the trainer and circled back, bumping him repeatedly during the Shamu Adventure show at 12:30 p.m. Friday, spokeswoman Becca Bides said. "The trainer maintained control of the animal," Bides said, and the show continued uninterrupted. The trainer, supervisor Sam Davis, was taken to Sand Lake Hospital for unspecified minor injuries and released the same day, she said.
Additional eyewitness account: "The trainer and Taku were about to slide on the slide out at the end of the show when Taku completly stopped and started "bumping" the trainer. The trainer was male and he finally swam out of the tank. I knew something was wrong because non of the whale except Kalina wanted to perform. Then they finally got Taku out to splash people at the end of the show, when this incident took place."

Christopher Sherman, Killer whale jolts trainer, Orlando Sentinel, April 4, 2005.
#94 2005/04/14 Sea World California, USA Orkid During a two whale - one trainer interaction, 16-year-old female Orkid initially responded to a stage call but quickly reached back and pulled a trainer by her ankle to the bottom of "A" pool. Orkid responded to the call back tone. Sea World Animal Profiles, Revision June 2010
#95 2005/05/06 Sea World California, USA Orkid 16-year-old female Orkid grabbed a trainer's foot and dunked the trainer. Sea World Animal Profiles, Revision June 2010
#96 2006 Sea World California, USA Corky 2 After a good playtime session including waterwork in "A" pool, while sitting at stage with a few trainers next to her, 40-year-old female Corky 2 began to mouth a trainer's ponytail. She corrected quickly once asked by a trainer on stage to sit "heads up". Sea World Animal Profiles, Revision September 2010
#97 October 2006 Sea World Texas, USA Kayla After performing a sequence in the show, 17-year-old female Kayla was in the stage slide out with her trainer receiving secondary reinforcement. As the trainer attempted to point her back in the water, Kayla lunged at thim with her mouth open, contacting him and throwing him several feet. She immediately came back to control, separated to the back pool perfectly, and was very good behaviourally the rest of the day. Sea World Animal Profiles, Revision June 2010
#98 November 2006 Sea World Texas, USA Kayla After performing a med pool separation well, 17-year-old female Kayla was receiving various secondary reinforcers while the gate closed when she pulled away from the wall. She was asked to come back to control, which she did. After a whistle bridge, the trainer went to feed her. Kayla lunged at her, knocking a bucket off the wall. No injury occurred. Sea World Animal Profiles, Revision June 2010
#99 2006/11/15 Sea World California, USA Orkid A SeaWorld trainer was injured, when 18-year-old female Orkid grabbed senior trainer Brian Rokeach by the leg, pulled him to the bottom of the pool and held him under water for about 26 seconds. Orkid released Rokeach after Peters repeatedly slapped the water, the signal for the animals to return to the front of the Shamu Stadium stage. Rokeach suffered a torn ankle ligament but was not hospitalized. In response to the incident, SeaWorld increased to five the number of trainers who must be available during live performances and other times when trainers are in the water with the whales. Sea World Animal Profiles; Terry Rodgers, Marine park cited after whale attack, San Diego Union-Tribune, March 4, 2007; Video.
#100 2006/11/29 Sea World California, USA Kasatka 30-year-old female Kasatka attacked Kenneth Peters, SeaWorld San Diego's most experienced trainer, during a show at Shamu Stadium. Kasatka grabbed the trainer's foot and dove to the bottom of the 36-foot tank. They surfaced less than a minute later, but she ignored other trainers' signals to draw her to the side. The orca dove a second time with the trainer for about a minute. Peters only escaped after other trainers worked a large safety net between the two. He suffered puncture wounds and a broken left foot. That's the second reported attack by Kasatka on Peters. Sea World Animal Profiles; Pauline Repard, Killer whale bites trainer, takes him to tank bottom, San Diego Union-Tribune, November 30, 2006;Killer whale attacks Sea World trainer, CNN, November 30, 2006; Tony Perry, Killer whales endanger park staff, state says, Los Angeles Times, March 2, 2007; OHAS report; 10 News video; Death at SeaWorld.
#101 2007/04/06 Sea World Texas, USA Tuar 7-year-old male Tuar opened and closed his mouth around a trainer's leg after a dive in prior to the ballet sequence of the show. No injury occurred. Sea World Animal Profiles, Revision June 2010
#102 2007/04/10 Sea World California, USA Orkid 18-year-old female Orkid was doing an Artificial Insemination session. She had been a bit vocal but was asked for the roll over behaviour for an ultrasound. The trainer then asked Orkid to perform a slide-out behaviour. She refused this behaviour and then swiped her head making contact with the trainer which resulted in the trainer falling over the wall. She did perform the slide-out behaviour after this. The 35-year-old trainer was taken to a hospital for examination and was found to have suffered minor injuries after the bump from the 5,900-pound whale. Sea World Animal Profiles, Revision June 2010; KFMB-CBS, San Diego, April 11, 2007.
#103 2007/10/06 Loro Parque Tenerife, Spain Tekoa A trainer at the Loro Parque theme park on Tenerife is in hospital after she was injured this weekend during a training session with 6-year-old male Tekoa at the centre in Puerto de la Cruz. The Canarias 7 newspaper says the incident happened at the pre-show warm up on Saturday, when the orca crashed into the trainer, injuring her right lung and breaking her forearm in two places. She was rescued by two colleagues after the marine mammal dragged her down to the bottom of the pool. The trainer is now said to be stable after surgery on Saturday. Later it becomes know that the injured trainer is 29-year-old biologist Claudia Vollhardt from Germany, who has worked at the park since 2003. OME News write that it was a male orca that hit the trainer and dragged her down after the impact. Then that same animal grabbed the trainer by the arm and brought her back up to the surface. Trainer attacked by killer whale at Loro Parque theme park on Tenerife, Typically Spanish, October 7, 2007.
#104 January 2008 Sea World Florida, USA Takara 16-year-old female Takara hit a trainer with her tail fluke, who was smacked off the slide-out. Video.
#105 2008/03/18 Sea World California, USA Kasatka 32-year-old female Kasatka came out at a trainer. Sea World Animal Profiles, Revision June 2010
#106 July 2008 Marineland Antibes, France Valentin Not further detailed incident between 12-year-old male Valentin and trainer Nico, not officially reported. Story on internet sites but no original source known.
#107 2008/09/09 Marineland Antibes, France Freya 27-year-old female Freya pushed a trainer through and under water (not as part of the training or show). Video.
#108 2008/09/10 Sea World California, USA Kasatka 32-year-old female Kasatka came out at a trainer. Sea World Animal Profiles, Revision June 2010
#109 Spring 2009 Loro Parque Tenerife, Spain Skyla In the spring of 2009, during a public show, 5-year-old female Skyla started pushing her trainer around the pool and up against the pool wall. Shortly thereafter, special protocols (limits on water work and a mandate that only senior trainers work with her) that had been standard practice for Tekoa after the incident in 2007 were enacted for Skyla as well. Tim Zimmermann, Blood in the Water, Outside Magazine, July 18, 2011.
#110 2009/07/17 Marineland Antibes, France Wikie 8-year-old female Wikie pushed a trainer through and under water (not as part of the training or show). Eyewitness account on internet site.
#111 September 2009 Loro Parque Tenerife, Spain Keto Not further detailed incident between 14-year-old male Keto and trainer Brian Rokeach, noted by fellow trainer Alexis Martinez. Tim Zimmermann, Blood in the Water, Outside Magazine, July 18, 2011.
#112 2009/12/24 Loro Parque Tenerife, Spain Keto A Loro Parque trainer has been killed by one of the whales during a training session. The trainer was 29-year-old Alexis Martínez, and the accident occurred at 10.30 am this morning during the first training session for the Christmas Special planned for the New Year. The other 7 trainers were also present in the training session. As far as can be determined right now, Alexis was hit by 14-year-old male killer whale Keto, and his death was caused by drowning because he was under the water unconscious for several minutes before he could be rescued. The autopsy report on Martínez was telling and states bluntly that his was a "violent death." It describes multiple cuts and bruises, the collapse of both lungs, fractures of the ribs and sternum, a lacerated liver, severely damaged vital organs, and puncture marks "consistent with the teeth of an orca." It concludes that the immediate cause of death was fluid in the lungs (i.e., drowning) but that the fundamental cause was "mechanical asphyxiation due to compression and crushing of the thoracic abdomen with injuries to the vital organs." In other words, at some point Keto probably slammed into Martínez with such force that he caved in his chest. Trainer dies in accident at Killer Whale park in Tenerife, Typically Spanish, December 24, 2009;Tim Zimmermann, Blood in the Water, Outside Magazine, July 18, 2011.
#113 2010 Sea World California, USA Orkid 21-year-old female Orkid has been sliding out in various slide-out areas on her free time which has resulted in possibly dangerous scenarios for guests at the Dine with Shamu area. Changes are (were?) being made to the areas to help decrease the frequency of this behaviour in areas where person might be injured.

 The second incident involved a man who was found dead in Tilikum’s pool after apparently having snuck into the park after closing. It is unclear what role, if any, Tilikum  played in his death.

Daniel P Dukes medical examiners report shows role Tilikum played in his death, with both pre and post mortem injuries, so why have Seaworld never updated this information and continued with this statement. 

 Here too, the ALJ determined that “physical barrier[s]” and “minimum distance[s]” were feasible means of abatement because he concluded (without citing any evidence) that SeaWorld had “banned waterwork” and “perform[ed] drywork from behind barriers,” and “there was no evidence adduced that the elimination of waterwork or the implementation of barriers for drywork has had a negative impact on SeaWorld’s profits.”

 Seaworld    and    their    supporters    repeatedly    state    there    is    no    Blackfish    effect    and    they    have    record    numbers    and    profits.

  Although the citations drew no clear distinction between “shows” and other SeaWorld activities, the ALJ limited his decision to “show performances” and indicated that it should not affect “other activities during which trainers are in close contact with killer whales.” Order 43-45.
The ALJ declined to restrict contact during   husbandry   activities   for example, because   he   found that, “as the custodian of its killer whales, SeaWorld had an ethical duty to provide health and medical care to them.” 
Where Seaworld keep saying they need to be in contact with the whales, this hasn't actually been prohibited

The ALJ’s conclusion that close contact is a recognized hazard when conducted to educate and entertain the public and develop a rapport with a whale, but is not  a   recognized   hazard   when   performed for husbandry and   medical  purposes, is arbitrary, capricious, and grounded in nothing but the ALJ’s own personal cost-benefit analysis of the relative “worth” of different parts of SeaWorld’s mission. That conclusion, moreover, is flatly contradicted by undisputed record evidence that “close contact” in these different contexts cannot be separated; rather, effective husbandry and medical care require close contact in other settings.
So Seaworld are arguing that in order to do husbandry, AI, etc, they need to perform shows. How ridiculous that is, saying then,  that the animals have had no care since 2010. 

 Instead of acknowledging SeaWorld’s understanding that its drywork protocols  for   Tilikum   properly
controlled  the risk that killer whales can present, the  ALJ  relied almost exclusively on those protocols to establish  recognition of a hazard.
  Obviously    the    dry    work    protocols    did    not    properly    control    the    risk,    as    Dawn    was    very    safety    conscious.

(“We never had an incident with [Tilikum] that would have showed us any type of aggression with anybody in a land situation”)

This is also not true Tilikums own animal profile shows this stating 'During times of frustration due to social stress in the environment. Tilikum has shown aggression by mouthing the stage, vocalisations, tight body posture, deep fast swims, banging gates and sometimes lunging towards the control trainer'

  Third and finally, the ALJ’s finding is patently flawed because the “close contact” that he found to be impermissibly hazardous is, at one and the same time, conduct that he deemed acceptable so long as it is to care for the whales, i.e., husbandry and other medical care. This demonstrates that the ALJ's decision was  based on proper application of the “recognized hazard” requirement of the General Duty Clause, but on his own cost-benefit theorizing about the relative value of SeaWorld’s public display of the interaction between whales and humans on the one  hand, and   its   care   for   the   whales    on   the   other.

That   is   a   really   unfair   statement   as   the  ALJ   has   acknowledged   that   the   whales   need   care   and   invariably the   trainers   would   need    to  touch   them   in   order   to   provide   that   care. Surely providing medical care is nothing   to   do   with   waterworks   and   circus   tricks .

 With respect to whales other than Tilikum, the ALJ found the recognized hazard to be “working in close contact” with these whales during “water-work” or “dry work.” Order 32. That finding was also arbitrary, capricious, and unsupported by substantial evidence for two reasons. First, the evidence is undisputed that different whales have different characteristics and respond in different ways to different stimuli, presenting different challenges and different remote types of risk. And yet, based largely on the single unanticipated incident involving Tilikum,  the ALJ   barred   close   contact   with   all whales. That was clear error.

In light of the facts that the majority of the whales have an attack history or incident of some description surely it is feasible to include all orca even though only the one has resulted in death, many have been near death.
 The ALJ also based his decision on the death of a trainer at a marine park in Spain. Order 40. SeaWorld did not operate that park, and was not responsible for selecting or managing its trainers or overseeing its care of the whales

 This  is   also   not   true.  It   is   true   they   did   not   operate   that   park   but   Seaworld   trainers   had   been   part   of Loro Parque for 4 years, Brian   Rokeach   was   supervising   at   the   time   of   Alex's   death.

Fred   Jacobs   statement   regarding   Loro   Parque   can   be   seen   here   .
Jacobs said ''Loro Parque trainers have been at SeaWorld in San Antonio for about the past year, learning to care for and train the big black-and-white sea mammals. A 7 million-gallon pool is under construction at Loro Parque to house the animals.''
Two juvenile killer whales from Orlando and two from San Antonio will be shipped to the park as soon as the work is complete, possibly in early February, Jacobs said.
''The killer whales are not being sold outright, but SeaWorld does have a "financial arrangement" with Loro Parque in the venture, Jacobs said. He would not provide details of the agreement.''

 SeaWorld not only arranged the transfer of the whales, but is fully aware of what goes on at Loro Parque and is and actively involved in the care and training of their animals there. Management has stressed that they are supervising the orca’s care in Spain. Former Curator of Animal Training, Julie Scardina, claimed that the orcas on loan “are monitored and supervised carefully.” Brad Andrews, director of zoological operations corroborated this, saying: ”We’ve been providing technical expertise [to Loro Parque], not only on the habitat requirements but also on the care and training of killer whales.”
SeaWorld is a consistent presence at Loro Parque and all important matters related to breeding, medications, housing of the whales, etc. would go through them first. They have staff and trainers on-site, management pops in every so often for “spot-checks” to make sure everything is going smoothly, and they even have videos set up at Loro Parque which feed back to the United States so that everything is monitored. It seems that SeaWorld is ultimately responsible for most everything that happens and has happened to the whales at Loro Parque.

  “submit evidence proving . . . that the methods under-taken by the employer to address the alleged hazard were inadequate.”  

The evidence speaks for itself, despite all Seaworld's training and safety protocols the unpredictability of the whales cannot be judged therefore they pose a permanent risk. No rising floors, spotters, nets etc can stop an orca that gets an intention of harm in its head. As we saw with Kasatka, she went over the net, with Tilikum, he had to have his jaw pried open despite being on a rising floor. The nature of what these animals are cannot always be predicted and that has been proved over and over again.

 Instead, his witnesses insisted that only SeaWorld had the “expertise” to define these measures. at 798. The Secretary’s expert witness testified that he was “pleasantly surprised” with SeaWorld’s protocols,id. at 66, 887, and that he would not “second guess” the instincts of “an experienced trainer” with respect to appropriate “proximity.”

Whether Seaworld are expert in working with killer whales or not, research has been ongoing both in captive and wild populations, so although the experts called to court may not be trainers they do have experience with killer whales and this is where the problem seems to lie.

The whole tone of this appeal comes across that Seaworld don't think anyone has a right to govern them as no one is experienced enough. Everyone has to answer to someone.

Recently Seaworld has said - the evidence is 30 years old - well there has been 36 incidents since 2000 

Seaworld  state  they  have  record  attendance, so that is either a lie, or proves that waterworks are not a contributing factor to their business. 

It   has   been   said   people   will   lose   jobs. That   I   believe    is  in   Seaworld's   hands. If   they   created   a  retirement and   rehabilitation   facility   for   their   cetaceans  it   would   create   more   revenue, more  jobs  and  rescue  their failing  reputation.

 Here, the trainers who have developed individual relationships with specific whales over many years are, indeed, the eyes and ears of SeaWorld, which can only act based on the knowledge   of      its    expert    trainers. 

Dawn    Brancheau    was   experienced
Ken   Peters   was   experienced
Brian    Rokeach    was    experienced

Despite   their   experience    it   didn't     stop   the    incidents    happening .

Seaworlds   new PR  is  to   push   forward   their   rescue, rehabilitate   and   release, so why can they not do that in their own tanks.

As   a   comparison   this   is   an   artist   impression   of   a   rehab   facility,   incorporating  everything   both   the orca  and Seaworld   would   need

This is Seaworld San Diego 

The £70   million   spent   on   their   tanks   could   give   them   some   sort  of   sanctuary.

How difficult would it be??

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