On April 20, 2010, just before 10 p.m., the Deepwater Horizon drilling rig suddenly exploded in the Gulf of Mexico, 48 miles off the Louisiana coast. Tragically, eleven men on the vessel died. Oil ultimately flowed from the well into the Gulf of Mexico for 87 days. In response, the United States Attorney General announced a “criminal task force” of prosecutors and agents to find and prosecute those responsible. While the companies involved ultimately pled guilty, the government also charged individuals, who have fought their cases and won. Quinn Emanuel represents BP’s “well site leader” on the rig. Representing that individual, we defeated 22 felony charges. As this goes to press, we are fighting the final charge, a misdemeanor, at trial.
First, the companies. Transocean is a Swiss based company that owned the rig and provided most of the staff. It pled guilty to the misdemeanor crime of “negligent” water pollution. BP pled guilty to felony crimes—chiefly ”seaman’s manslaughter” under 18 U.S.C. § 1115, based on the alleged “simple negligence” of its two representatives on the rig, who supposedly misinterpreted a pressure reading before the explosion.
Given the mass publicity surrounding the Deepwater Horizon explosion, BP understandably felt pressure to settle these charges, notwithstanding its defenses. As part of its plea agreement, BP paid a $1.25 billion criminal fine and penalties of $2.75 billion to the National Fish and Wildlife Foundation and the National Academy of Sciences, along with other civil penalties and damages.
The Manslaughter Case. BP’s well site leaders on the Deepwater Horizon also were charged with eleven counts (one for each man who died) of “seaman’s manslaughter” but challenged the indictment. The Seaman’s Manslaughter Statute was passed in the 1850s to control crashes on rivers after the advent of the steamship. It establishes criminal liability for any “captain, pilot, engineer or other person employed” on a vessel who negligently causes death. The statue was passed, at least in part, as a response to deaths that resulted from steamships racing one another to pick up passengers.
Although the Deepwater Horizon had both a “captain” and an “engineer,” they were Transocean employees, not BP employees. These Transocean employees controlled the navigation and operation of the Deepwater Horizon as a vessel. In contrast, the well site leaders were on board as BP’s representatives responsible for implementing the drilling plan. By analogy, the well site leaders were like doctors on a hospital ship, serving a specialized, non-marine purpose. Quinn Emanuel moved to dismiss the seaman’s manslaughter charges on the grounds that the statute did not apply to them.
The U.S. District Court agreed with the firm, citing the rule of statutory construction called “ejusdem generis.” United States v. Kaluza, 2013 WL 6490341 at *18-23 (E.D. La. Dec. 10, 2013). According to the court, “[c]aptain, pilot, engineer, or other person employed” does not mean “any person employed” on a vessel but rather only those serving a marine function, like the specifically listed employees. Id. A unanimous Fifth Circuit panel later affirmed this ruling. United States v. Kaluza, 780 F.3d 647 (5th Cir. 2015).
That dismissal still left 11 additional felony charges—for what is called “involuntary” or “reckless” homicide—for the same conduct and same 11 men who died. Quinn Emanuel raised various challenges to these counts as well, concerning jurisdiction as well as factual defenses. Based on these challenges, the DOJ reconsidered the charges and voluntarily dismissed them.
And that leaves one more count, which charges that the alleged misinterpretation constitutes “negligent” water pollution under the Clean Water Act. That case is scheduled to proceed to trial in New Orleans federal court on February 16, 2016. Among other issues, this trial will question how to assign “causation” for tragic accidents that are “caused” by many independent and unforeseen factors.
Lying to Congress by “Under-Stating” the Size of the Spill. In another prosecution arising out of the tragedy, BP Vice President David Rainey was charged with lying to Congress about the size of the spill. He went to trial on June 1, 2015. Rainey challenged whether his statements—in a letter responding to then-Congressman Ed Markey of Massachusetts—actually constituted a statement to “Congress.” As the trial began, the U.S. District Court called on the government to prove that Congress had “authorized” Markey’s inquiry. When the necessary members of Congress refused to travel to New Orleans to testify, citing their immunity under the “speech and debate clause” of Article I, Section 6 of the U.S. Constitution, the court dismissed the charge.
Although the charges against Rainey ultimately did fail, his indictment is a caution to any company that must report on the size of any environmental release. Often it is difficult, if not impossible, to quantify a release accurately as it is occurring. Company spokespersons should be cognizant of this when public reports must be made, whether to the government or anyone else.