United States v. Kaluza, No. 14–30122.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPATRICK E. HIGGINBOTHAM
Citation780 F.3d 647
PartiesUNITED STATES of America, Plaintiff–Appellant v. Robert KALUZA; Donald Vidrine, Defendants–Appellees.
Docket NumberNo. 14–30122.
Decision Date11 March 2015

?780 F.3d 647

UNITED STATES of America, Plaintiff–Appellant
v.
Robert KALUZA; Donald Vidrine, Defendants–Appellees.

No. 14–30122.

United States Court of Appeals, Fifth Circuit.

March 11, 2015


Affirmed.

[780 F.3d 650]

Sangita Katikineni Rao, William Charles Pericak, Rohan Arun Virginkar, Trial Attorney, U.S. Department of Justice, Washington, DC, for Plaintiff–Appellant.

Shaun G. Clarke, Esq., Smyser Kaplan & Veselka, L.L.P., David Benjamin Gerger, Gerger & Clarke, Houston, TX, Robert N. Habans, Jr., Habans & Carriere, Baton Rouge, LA, Jan K. Frankowski, Barkley & Thompson, L.C., New Orleans, LA, for Defendants–Appellees.


Appeal from the United States District Court for the Eastern District of Louisiana.
Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge:

On April 20, 2010, a blowout of oil, natural gas, and mud occurred during deepwater drilling operations at the Macondo well, located on the Outer Continental Shelf (“OCS”) in the waters of the Gulf of Mexico. At the time of the blowout, the Deepwater Horizon, a drilling rig chartered by BP plc (“BP”) from Transocean Ltd. (“Transocean”), was attached to the Macondo well. Eleven men died from the resulting explosions and fires on the Deepwater Horizon. The blowout resulted in the discharge of millions of barrels of oil into the Gulf of Mexico.

Robert Kaluza and Donald Vidrine (“Defendants”) were “well site leaders,” the highest ranking BP employees working on the rig. Defendants were indicted by a federal grand jury in the Eastern District of Louisiana on 23 counts, including 11 counts of seaman's manslaughter in violation of 18 U.S.C. § 1115. The district court granted Defendants' motion to dismiss for failure to charge an offense because neither defendant fell within the meaning of the criminal statute. The government appeals this determination. Because we agree that neither defendant falls within the meaning of the phrase “[e]very ... other person employed on any ... vessel,” we AFFIRM.

I
A

In May 2008, BP, through one of its affiliated companies, obtained a lease from the United States to the oil and natural gas reservoirs at a site on the OCS in the Gulf of Mexico. The first well drilled by BP at this site was referred to as the Macondo well, approximately 48 miles from the Louisiana shoreline. The seabed was approximately 5,000 feet below sea level, and the potential reservoirs were located more than 13,000 feet below the seabed. BP and its affiliates entered into contracts with Transocean, whereby Transocean provided, inter alia, a drilling rig and crews to drill the Macondo well under BP's supervision. BP began drilling the Macondo well in October 2009 using Transocean's Marianas drilling rig and crew, but that work was halted in November 2009 due to a hurricane. In April 2010, BP resumed drilling the Macondo well using Transocean's Deepwater Horizon drilling vessel and crew.

The Deepwater Horizon was a mobile offshore drilling rig. It was “a dynamically-positioned semi-submersible deepwater

[780 F.3d 651]

drilling vessel.” 1 The rig floated on two enormous pontoons extending 30 feet below the ocean's surface that acted as the vessel's hull, provided stability to the rig, kept the rig afloat, and allowed the drilling floor and other work areas to remain safely above the water's surface. The Deepwater Horizon employed dynamic satellite positioning technology connected to directional thrusters that allowed the vessel to maintain its place over the wellhead. The rig had no legs or anchors connecting it to the seabed.

When the Deepwater Horizon arrived at the Macondo well, the crew assembled a drilling structure that attached the rig to the wellhead: the structure consisted of the Blow Out Preventer stack (“BOP”) and the marine riser. The BOP, attached directly to the wellhead, was a five-story, 300–ton stack of components designed to close the well in case of an emergency. The BOP was attached to the marine riser, a pipe that was approximately 5,000 feet long and made primarily out of steel, twenty inches in diameter. The marine riser, in turn, was attached to the drill floor on the rig. In order to assemble this drilling structure, a section of the marine riser was joined to the BOP and then, as additional riser sections were added, the BOP was lowered to the seabed; remotely operated vehicles latched the BOP to the wellhead. All materials necessary to drill the well—the drilling tools, drilling mud, and other fluids—passed from the rig through the marine riser down to the wellhead.

The Deepwater Horizon maintained separate crews for different tasks, such as the “marine crew” and the “drill crew.” 2 The marine crew was provided in its entirety by Transocean, and consisted of the master (i.e., the captain), the chief mate, the chief engineer, assistant engineers, dynamic positioning officers, able bodied seamen, the boatswain, and the offshore installation manager.3 During the time that the vessel was attached to the well, certain marine crew members were responsible for maintaining the location of the vessel over the wellhead. The drill crew was provided in part by BP, Transocean, and other companies, and consisted of the well site leaders, toolpushers (i.e., drilling managers), the chief engineer, other engineers, drillers, assistant drillers, floorhands, roustabouts, mudloggers, and various other personnel.4

Although BP did not own the rig nor operate it in the normal sense of the word because daily production involved few BP employees, BP's engineering team designed the well and oversaw the implementation of the design. Most of BP's team for the Deepwater Horizon were based on

[780 F.3d 652]

shore. However, there were seven BP employees on the rig on the day of the explosion. Specifically, the two well site leaders were BP employees who were on the vessel at all times, splitting responsibility by 12–hour 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.” Kaluza and Vidrine were the two well site leaders aboard the Deepwater Horizon on the day of the explosion.

Kaluza and Vidrine were industry veterans. Kaluza has a degree in petroleum engineering and 35 years' experience in the oil and gas industry, including more than eight years as a well site leader. He was ordinarily assigned to another rig, but was serving on the Deepwater Horizon on the day of the explosion. Vidrine had been a well site leader for more than 30 years. He had been working on the Deepwater Horizon since January 2010, and had previously worked on the Macondo well as a well site leader onboard another 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. During the negative testing, the well was monitored for pressure increases and fluid flows. Either condition would indicate that the well was not secure and that oil and natural gas could be entering the well. An uncontrolled influx of fluids and gas from the surrounding rock into the well—known as a “kick”—could cause a catastrophic blowout up the well and onto the rig with the potential for ignition, explosions, casualties, death, and environmental damage. Competent negative testing was critical.

On April 20, 2010, the Deepwater Horizon crew was engaged in procedures to temporarily abandon the Macondo well, sealing it with cement so that a different vessel could later retrieve the oil and natural gas reserves. As part of this procedure, they attempted to perform negative tests multiple times to assess whether the well was properly sealed. Both defendants participated in the negative testing. The indictment alleges that Defendants negligently or grossly negligently:

failed to phone engineers onshore to advise them during the negative testing of the multiple indications that the well was not secure; failed to adequately account for the abnormal readings during the testing; accepted a nonsensical explanation for the abnormal readings, again without calling engineers onshore to consult; eventually decided to stop investigating the abnormal readings any further; and deemed the negative testing a success, which caused displacement of the well to proceed and blowout of the well to later occur.

After the failed negative testing, the well blew out within hours, the vessel exploded,

[780 F.3d 653]

eleven men died, and others were severely injured.

B

A federal grand jury in the Eastern District of Louisiana returned a 23–count superseding indictment charging Defendants with 11 counts of involuntary manslaughter in violation of 18 U.S.C. § 1112 (Counts 1–11); 11 counts of seaman's manslaughter in violation of 18 U.S.C. § 1115 (Counts 12–22); and 1 count of negligent discharge under the Clean Water Act in violation of 33 U.S.C. §§ 1319(c)(1)(A) and 1321(b)(3) (Count 23).

Defendants filed motions to dismiss based on several theories. With regard to Counts 12–22 (seaman's manslaughter), they first argued that the Deepwater Horizon was outside...

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