When the Deepwater Horizon exploded, it took the lives of 11 people and discharged millions of barrels of oil into the Gulf of Mexico. On the rig at the time of the explosion, BP had two supervisors (or “well site leaders”) who were indicted by a federal grand jury on 23 counts. Those charges included 11 counts of “seaman’s manslaughter,” also known as “ship officer manslaughter,” under 18 U.S.C. § 1115. The district court dismissed the seaman’s manslaughter charges, however, finding that Section 1115 did not apply to BP’s well site leaders. The government appealed.
In United States v. Kaluza, a recently published opinion out of the U.S. Fifth Circuit, the court affirmed the district court’s ruling that BP’s two well site leaders did not fall within the ambit of the seaman’s manslaughter statute. As such, the well site leaders could not be prosecuted under Section 1115.
The Seaman’s Manslaughter Statute:
Section 1115, the criminal statute at issue in Kaluza, states:
Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
When the owner or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct, or violation of law, by which the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
18 U.S.C. § 1115 (emphasis added).
On the one hand, criminal liability under Section 1115 is broad—the statute criminalizes mere “misconduct, negligence, or inattention” that results in death. The critical question, then, was whether Congress intended the phrase “every . . . other person employed on any . . . vessel” (bolded in statute above), to criminalize the negligent conduct of every individual employed on a vessel—which would therefore include BP’s well site leaders.
The Fifth Circuit engaged in a thorough statutory analysis of Section 1115, and found that the statute expressly applied only to certain classes of individuals:
- “Every captain, engineer, pilot, or other person employed on any steamboat or vessel”;
- “Every owner, charterer, inspector, or other public officer”; and
- “When the owner or charterer of any steamboat or vessels is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel”.
Because BP’s two drilling supervisors were not captains, engineers, or pilots and the Deepwater Horizon was not a steamboat, the Fifth Circuit was asked to determine whether Section 1115 applied to persons employed on a vessel as well site leaders.
Simply put, the government argued for an expansive interpretation of “other person”; the defense argued that the district court had gotten it right—that a narrow interpretation of the statute was proper.
What Does a “Well Site Leader” Do?
The job duties of a “well site leader” were exceptionally important to the Fifth Circuit’s determination of whether a well site leader should be considered an “other person” under Section 1115. The court described a well site leader’s jobs as follows:
Specifically, the two well site leaders were BP employees who were on the vessel at all times, splitting responsibility by 12-hours shifts, to direct the drill crew and contractors in their work while maintaining regular contact with the BP engineers on shore. The well site leaders were “the top BP employees” on the rig, and were known as “the company men.” They were “the company’s eyes and ears,” making “important decisions regarding the course of drilling operations.” According to BP’s Drilling and Wells Operation Practice manual, the well site leaders were accountable for the execution of drilling and well operations in compliance with BP’s health, safety, security and environmental requirements. Under a different BP guide, in case of a well control incident, the well site leader was “responsible for ensuring all activities are carried out in a safe and efficient manner at the location, and for proactively promoting the health, safety and welfare of all personnel on the Rig.” . . .
. . .
Well site leaders were responsible for conducting and assessing the validity of “negative pressure testing” or “negative testing,” a process which assessed whether the cement pumped to the bottom of the well had hardened, thus forming an effective barrier between the well and the oil and gas reservoir.
Statutory Interpretation—From Stem to Stern:
To resolve the statutory construction issue, the Fifth Circuit engaged in what may be the most thorough legal interpretation of any seven-word phrase—ever. One could say that the Fifth Circuit interpreted the phrase from stem to stern. The court separately defined each and every word of “every . . . other person employed on any . . . vessel.” Those definitions appear as follows:
- “Every” is defined as “construing each and all members of a group without exception” or “[b]eing all possible.”
- “Other” is defined as “[b]eing the remaining ones of several.”
- “Person” is defined by the Dictionary Act to include individuals.
- “Employed” is defined as “engaged in work or occupation; having employment; esp. [a person] that works for an employer under an employment contract.”
- “On” is “[u]sed to indicated position above and supported by or in contact with” an object.
- “Any” is “one or some indiscriminately of whatever kind.”
- “Vessel” includes “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”
So, with all of these definitions in mind, is “every . . . other person employed on any . . . vessel” ambiguous? Yes, reasoned the Fifth Circuit, because it was not clear whether “other person” was intended to mean every single person employed on the Deepwater Horizon—which would make Congress’s inclusion of the job titles, captain, engineer, and pilot, superfluous. Because the parties’ readings were both reasonable interpretations of the statute, the Fifth Circuit concluded that Section 1115 was ambiguous.
When a statute is ambiguous, courts turn to canons of statutory interpretation. In this case, the trial court and the Fifth Circuit invoked the canon known as ejusdem generis to interpret Section 1115. Ejusdem generis is a Latin phrase meaning “of the same kind.” The idea here is that “where general words follow specific words in an enumeration describing a statute’s legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” See 2A Norman Singer & J.D. Shambie Singer, Sutherland on Statutes and Statutory Construction § 47:17 (7th ed. 2014).
Here, the government argued against the applicability of the ejusdem generis canon—and it did so with smart arguments. The government argued that the district court had erred in applying the ejusdem generis canon and additionally, in determining the “common attribute” between the specific statutory categories and the more general categories of “other person” for purposes of the ejusdem generis rule. But the Fifth Circuit disagreed with the broad reading that the government advocated. Not only must the “seaman’s manslaughter” statute be read narrowly because it is a criminal statute, but the ejusdem generis rule also resulted in a narrow interpretation of the statute.
By treating the general term—“other person”—similar to the more specific terms—“captain, engineer, [or] pilot”—the Fifth Circuit concluded that “other person” was limited to “those persons responsible for the ‘marine operations, maintenance, or navigation of the vessel.’” In so finding, the Fifth Circuit agreed with the district court’s “common attribute” analysis in determining Section 1115’s scope:
We find that the district court’s definition of the common attribute was correct. The three specific words define a general class of people, specifically those involved in the “marine operations, maintenance, or navigation of the vessel.” This conclusion is bolstered by examining the meaning of the terms “captain,” “engineer,” and “pilot.” As relevant here, “Captain” is defined as “[t]he master or commander of a merchant ship or any kind of vessel.” “Engineer” is defined as “[t]he operator of a steam engine, esp. on board a ship.” “Pilot” is defined as “[a] person who steers or directs the course of a ship; a helmsman or navigator, spec. a qualified coastal navigator taken on board temporarily to steer a ship into or out of a port, through a channel, etc.” All three terms refer to individuals involved in the “marine operations, maintenance, or navigation of the vessel.” In other words, all three are persons in position of authority responsible for the success of a vessel qua vessel, i.e., in its function as something used or capable of being used as a means of transportation on water. Defendants do not fall within this definition.
Was the Fifth Circuit Right?
The Fifth Circuit got it right. The government’s “back and fill” reading of Section 1115 was much too broad. In a detailed and carefully reasoned opinion, the Fifth Circuit rejected the government’s more expansive interpretation of a “common attribute” between the statutory categories. The court found that all three persons in the specific categories (captain, engineer, and pilot) had positions of responsibility for the vehicle’s success in being used, or the vessel’s capability of being used, “as a means of transportation on water.” And the government’s reliance on the “maritime” nature of BP’s drilling activity was rejected because the maritime limitation, the Fifth Circuit explained, focused on “the vessel functioning as a vessel, i.e., in the transportation of people and things.”
The Fifth Circuit was correct in concluding that the well site leaders’ maritime drilling activities simply did not fall within the transportation-related positions of authority denoted in Section 1115’s specific categories. The expansive nature of the government’s proposed “other person” definition would include individuals who were never contemplated by Congress when it enacted Section 1115—i.e., the court noted that an expansive interpretation of Section 1115 could reach even a nanny on a vessel.
The Rigors of Statutory Interpretation:
Finally, Kaluza is a good example of the leg work that a court must engage in to construe a statute. The Fifth Circuit (pictured above) defined ten words just to divine what Congress meant when it extended liability for seaman’s manslaughter to include “other persons.” The ten words were:
- Every
- Other
- Person
- Employed
- On
- Any
- Vessel
- Captain
- Engineer
- Pilot
The Fifth Circuit also referenced or applied several canons of statutory interpretation, including:
- Ejusdem generis: discussed above.
- Ex abundanti cautela: the abundance of caution principle. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 140 (2001) (Souter, J., dissenting).
- Noscitur a sociis: “[A] word may be defined by an accompanying word, and . . . ordinarily, the coupling of words denotes an intention that they should be understood in the same general sense.”
Moreover, the Fifth Circuit addressed the lengthy history of the seaman’s manslaughter statute, addressing acts from 1838, 1864, 1871, 1905, and 1948—plus several recodifications. The court noted the “remarkable continuity for the phrase ‘[e]very . . . other person employed on any . . . vessel.’”
Conclusion:
Continuing in a maritime vein, there was nothing “adrift” about the Fifth Circuit’s analysis. By the numbers alone—ten definitions, three canons, five acts—the Fifth Circuit engaged in a rigorous statutory analysis.
The Fifth Circuit’s analytical approach in interpreting Section 1115 narrowly—i.e., rejecting the government’s more aggressive interpretation—tracks to a great extent the U.S. Supreme Court’s recent interpretation of the criminal statute at issue in Yates v. United States. See 135 S. Ct. 1074 (2015) (plurality) (holding that destruction of a “tangible object,” as that term is used in Section 1519 of the Sarbanes-Oxley Act of 2002, meant an object “used to record or preserve information,” not the undersized fish that the defendant had thrown overboard after federal authorities caught him with the illegally harvested catch). The facts in Kaluza are certainly more compelling than those in Yates. The fatal explosion of the Deepwater Horizon was due, at least in part, to the negligence of BP’s well site leaders—culpable conduct that is clearly criminalized in Section 1115. And the explosion arose out of maritime drilling activity. Therefore, the government prosecution of BP’s well site leaders had a factual connectedness that was arguably lacking in Yates—applying a post-Enron anti-corruption statute to discarded fish. Arriving at the correct outcome in Kaluza, within the context of a catastrophic event that has produced so much angst to the families involved and the Gulf South region, could not have been easy. The Fifth Circuit’s future-looking opinion in Kaluza is to be commended.
Deepwater Horizon photo courtesy of Flickr user EPI2oh.
Dictionary photo courtesy of Flickr user Dave Worley.
Fifth Circuit photo courtesy of Flickr user Billy Metcalf Photography.
