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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-30122                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
UNITED STATES OF AMERICA,                                        March 11, 2015
                                                                 Lyle W. Cayce
                                           Plaintiff - Appellant      Clerk
v.

ROBERT KALUZA; DONALD VIDRINE,

                                           Defendants - Appellees




            Appeals 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
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                                      No. 14-30122
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 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



       1In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mex., on April 20,
2010, 808 F. Supp. 2d 943, 950 (E.D. La. 2011) (citations omitted).
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                                     No. 14-30122
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




       2 There was also a “support crew” and other personnel not relevant to this appeal.
       3 1 U.S. Coast Guard, Report of Investigation into the Circumstances Surrounding the
Explosion, Fire, Sinking and Loss of Eleven Crew Members Aboard the Mobile Offshore
Drilling Unit Deepwater Horizon in the Gulf of Mexico, April 20–22, 2010 app. D, D-4 (2011)
[hereafter Coast Guard Rep.].
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                                       No. 14-30122
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 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



        Although the offshore installation manager is listed as a member of the marine crew,
his duties were more related to the drill crew. The master was in charge of the rig when it
was moving from location to location. Once the rig arrived at a site and began drilling-related
operations, the offshore installation manager took over, and the members of the drill crew
provided by Transocean reported to him. Nat’l Comm’n on the BP Deepwater Horizon Oil
Spill and Offshore Drilling, Macondo: The Gulf Oil Disaster, Chief Counsel’s Report 33 (2011)
[hereafter Chief Counsel’s Rep.].
        4 Coast Guard Rep. app. D, D-5 to D-8; Chief Counsel’s Rep. at 30-34.

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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
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                                      No. 14-30122
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, 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 the territorial jurisdiction of the United States,
and that § 1115 does not apply extraterritorially. 5 Second, Defendants argued
that Counts 12-22 did not charge an offense—that they were not persons
covered under 18 U.S.C. § 1115. Defendants also moved to dismiss all counts,


       5Defendants also moved to dismiss Counts 1-11 (involuntary manslaughter), arguing
that the Deepwater Horizon was outside the special maritime and territorial jurisdiction of
the United States and thus that § 1112 did not apply on the rig by its terms. See § 1112(b).
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arguing that the underlying statutes were unconstitutionally vague as applied.
The district court denied the motions to dismiss related to the Deepwater
Horizon’s extraterritorial location, finding that the Outer Continental Shelf
Lands Act (OCSLA) “extends federal law and political jurisdiction” to the rig,
but dismissed Counts 12-22 for failure to charge an offense. The district court
then denied the motion to dismiss for unconstitutional vagueness.
       The government now appeals the dismissal of Counts 12-22, arguing that
Defendants are persons covered under § 1115. Defendants urge alternatively
that § 1115 did not apply on the Deepwater Horizon because it lacks
extraterritorial reach, and the OCSLA did not apply federal law generally to
the rig.
                                             II
       We review the district court’s legal determination regarding subject
matter jurisdiction de novo. 6 We also review the district court’s interpretation
and application of a federal statute de novo. 7
                                            III
       We begin by examining subject matter jurisdiction. “Federal subject
matter jurisdiction is limited and must be conferred by Congress within the
bounds of the Constitution.” 8 Subject matter jurisdiction involves “the courts’
statutory or constitutional power to adjudicate the case,” 9 and it can “never be
forfeited or waived.” 10 “The objection that a federal court lacks subject-matter




       6 United States v. Urrabazo, 234 F.3d 904, 906 (5th Cir. 2000).
       7 United States v. Gore, 636 F.3d 728, 730 (5th Cir. 2011).
       8 Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 802 (5th Cir. 2011).
       9 United States v. Cotton, 535 U.S. 625, 630 (2002) (quoting Steel Co. v. Citizens for

Better Env’t, 523 U.S. 83, 89 (1998)).
       10 Id.

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                                       No. 14-30122
jurisdiction may be raised by a party, or by a court on its own initiative, at any
stage in the litigation, even after trial and the entry of judgment.” 11
       In the criminal context, subject matter jurisdiction is straightforward. 12
Here, the district court had subject matter jurisdiction under 18 U.S.C. § 3231,
which provides that “[t]he district courts of the United States shall have
original jurisdiction, exclusive of the courts of the States, of all offenses against
the laws of the United States.” As this is an appeal by the United States, we
have jurisdiction pursuant to 18 U.S.C. § 3731.
                                              IV
       We find no occasion to address Defendants’ argument that 18 U.S.C.
§ 1115 did not extend to the Deepwater Horizon because this issue does not
concern subject matter jurisdiction and was not properly appealed.
       Defendants argued below that the district court did not have
“jurisdiction” because § 1115 did not extend to the Deepwater Horizon. The
argument was that neither territorial nor extraterritorial jurisdiction existed.
First, territorial jurisdiction did not obtain because the Deepwater Horizon was
a foreign-flag vessel and operated in international waters 48 nautical miles
from the coastline. 13 Second, extraterritorial jurisdiction did not obtain
because the government had not overcome the presumption against
extraterritorial application of federal law. 14 In response, the government relied


       11 Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) (citation omitted); see also Fed.
R. Crim. P. 12(b)(2) (“A motion that the court lacks jurisdiction may be made at any time
while the case is pending.”) (previously at 12(b)(3)(B)).
       12 United States v. Scruggs, 714 F.3d 258, 262 (5th Cir. 2013).
       13 See United States v. Jho, 534 F.3d 398, 405-06 (5th Cir. 2008) (noting that under

international law a ship is subject to the territorial jurisdiction of its flag state);
Antiterrorism & Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 901(a), 110 Stat.
1214, 1317 (extending territorial jurisdiction to the territorial sea of the United States, i.e,
12 nautical miles from the coastline).
       14 See Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010) (“It is a

longstanding principle of American law that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction of the United States.”)
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solely on the Outer Continental Shelf Lands Act (“OCSLA”), which explicitly
extends federal law to the OCS and certain attachments to it. The district court
agreed with the government, holding that the OCSLA extended federal law
including § 1115 to the rig.
       The provision of the OCSLA that the district court relied on was 43
U.S.C. § 1333(a)(1), which provides that:
              The Constitution and laws and civil and political
              jurisdiction of the United States are extended to the
              subsoil and seabed of the outer Continental Shelf and
              to all artificial islands, and all installations and other
              devices permanently or temporarily attached to the
              seabed, which may be erected thereon for the purpose
              of exploring for, developing, or producing resources
              therefrom, or any such installation or other device
              (other than a ship or vessel) for the purpose of
              transporting such resources, to the same extent as if
              the outer Continental Shelf were an area of exclusive
              Federal jurisdiction located within a State. 15

As we have explained, this provision imposes a situs test for the extension of
federal law. “The OCSLA applies to all of the following locations”:
              (1) the subsoil and seabed of the OCS;
              (2) any artificial island, installation, or other device if
                     (a) it is permanently or temporarily attached to
                     the seabed of the OCS, and
                     (b) it has been erected on the seabed of the OCS,
                     and
                     (c) its presence on the OCS is to explore for,
                     develop, or produce resources from the OCS;
              (3) any artificial island, installation, or other device if
                     (a) it is permanently or temporarily attached to
                     the seabed of the OCS, and

(citations omitted) (internal quotation marks omitted); see also Kiobel v. Royal Dutch Petrol.
Co., 133 S. Ct. 1659, 1664 (2013) (“[The presumption against extraterritorial application]
provides that [w]hen a statute gives no clear indication of an extraterritorial application, it
has none.”) (citations omitted) (internal quotation marks omitted).
        15 43 U.S.C. § 1333(a)(1) (emphasis added).

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                                         No. 14-30122
                      (b) it is not a ship or vessel, and
                      (c) its presence on the OCS is to transport
                      resources from the OCS. 16

There is no question that the Deepwater Horizon could not qualify as an
OCSLA situs under either the first or third categories. The first category does
not apply by its terms; the third category does not apply because the Deepwater
Horizon was a vessel. 17 For the Deepwater Horizon to be an OCSLA situs—so
extending federal law, including § 1115, to the rig—it had to qualify within the
second category. At the district court level, Defendants argued that the rig did
not qualify as an OCSLA situs because it was not “erected on the seabed of the
OCS.” The government argued the square opposite, and the district court
agreed with the government.
       Defendants now try to renew this argument. However, we do not address
it. To begin, the issue of whether the rig was an OCSLA situs does not implicate
subject matter jurisdiction. We have previously explained that there are
different provisions within the OCSLA for subject matter jurisdiction and
choice of law. Through 43 U.S.C. § 1349(b)(1), the OCSLA grants subject
matter jurisdiction to federal district courts. 18 By contrast, § 1333 is a choice-
of-law provision that defines the applicable law on the OCS—whether federal,



       16  Demette v. Falcon Drilling Co., 280 F.3d 492, 497 (5th Cir. 2002), overruled in part,
on other grounds, by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir.
2009) (en banc).
       17 Neither party contested the district court’s assessment that the Deepwater Horizon

was a vessel. In addition, we have previously treated the rig as a vessel. In re Deepwater
Horizon, 745 F.3d 157, 164-66 (5th Cir. 2014); In re Deepwater Horizon, 753 F.3d 570, 571-
74 (5th Cir. 2014); see also 33 C.F.R. § 140.10 (“Mobile offshore drilling unit or MODU means
a vessel . . . capable of engaging in drilling operations for exploration or exploitation of subsea
resources.”).
       18 Section 1349(b)(1) grants district courts “jurisdiction of cases and controversies

arising out of, or in connection with (A) any operation conducted on the outer Continental
Shelf which involves exploration, development, or production of the minerals, of the subsoil
and seabed of the outer Continental Shelf, or which involves rights to such minerals.”
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maritime or state. We have held that this subject matter jurisdiction inquiry
should not be conflated with the choice-of-law inquiry. 19 Although the district
court was exercising subject matter jurisdiction on a different basis—namely
§ 3231, not § 1349(b)(1)—the principle is the same; the inquiry regarding
§ 1333(a)(1)’s applicability does not raise subject matter jurisdiction issues.
Defendants’ argument instead goes to whether an offense is charged. 20 The
question of whether the government has charged an offense goes to “the merits
of the case,” 21 and the district court has the power to determine “whether the
offense charged is a true offense.” 22 Therefore, we are not obligated to examine
this issue unless it has been properly appealed.
       But this issue has not been properly appealed. While the United States
appealed the district court’s determination that Defendants did not fall within
the meaning of § 1115, Defendants failed to cross-appeal the district court’s
determination that the Deepwater Horizon was erected on the seabed of the



       19  In re Deepwater Horizon, 745 F.3d at 164 (“[The] attempt to intertwine the Section
1349 jurisdictional inquiry with OCSLA’s choice of law provision, 43 U.S.C. § 1333, fails
because the provisions and the issues they raise are distinct.”).
        20 See Morrison, 561 U.S. at 254 (“But to ask what conduct § 10(b) reaches is to ask

what conduct § 10(b) prohibits, which is a merits question. Subject-matter jurisdiction, by
contrast, refers to a tribunal's power to hear a case.”) (internal quotation marks omitted);
United States v. Yousef, 750 F.3d 254, 261-62 (2d Cir. 2014) (“In the criminal context, 18
U.S.C. § 3231 is all that is necessary to establish a court’s power to hear a case involving a
federal offense, whether or not the conduct charged proves beyond the scope of Congress’
concern or authority in enacting the statute at issue.”); United States v. Delgado-Garcia, 374
F.3d 1337, 1340-43 (D.C. Cir. 2004) (finding that defendants’ argument that the statute of
conviction did not apply extraterritorially, and thus that no offense had been stated against
them, did not deprive the district court of subject matter jurisdiction); see also United States
v. Baker, 609 F.2d 134, 135 (5th Cir. 1980) (in case hinging on whether possession with intent
to distribute statute applied outside the territorial United States, framing the issue as
whether or not the conduct “is a crime under 21 U.S.C.A. s 841(a)(1)”).
        21 Cotton, 535 U.S. at 631; see also Scruggs, 714 F.3d at 262; United States v. Longoria,

298 F.3d 367, 372 (5th Cir. 2002) (en banc) (recognizing that the Supreme Court in Cotton
overruled Fifth Circuit cases which had stated that failure to charge an offense was a
“jurisdictional” error).
        22 Delgado-Garcia, 374 F.3d at 1342 (quoting Lamar v. United States, 240 U.S. 60, 65

(1916)).
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OCS and OCSLA applied. “It is settled that an appellee may urge any ground
available in support of a judgment even if that ground was earlier and
erroneously rejected by the trial court.” 23 But where the defendant fails to
cross-appeal, his “failure to file a notice of appeal precludes him from receiving
affirmative relief in this court.” 24 In other words, if the government appeals
and the defendant fails to cross-appeal, the defendant’s rights under the
judgment cannot be expanded. 25 Were we to reach the OCSLA situs issue and
rule in Defendants’ favor, that ruling would not only preserve the rights of
Defendants, but would expand their rights. This because Defendants’ liability
under 18 U.S.C. § 1112—an issue not before us—also hinges on the OCSLA’s
extension of federal law to the Deepwater Horizon. Finally, Defendants
themselves urge that we reach this issue only in the alternative, in case they
do not prevail on the merits.
       For all these reasons, we decline to decide whether the district court
erred in deciding that the Deepwater Horizon qualified as an OCSLA situs
because the issue is not properly before us.
                                             V
       We next turn to the merits of this appeal. Known as the “seaman’s
manslaughter” or “ship officer manslaughter” provision, § 1115 is currently
titled “Misconduct or neglect of ship officers” and provides that:
              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,

       23 Castellano v. Fragozo, 352 F.3d 939, 960 (5th Cir. 2003) (en banc).
       24 United States v. Coscarelli, 149 F.3d 342, 343 (5th Cir. 1998) (en banc).
       25 See id. at 342-44; Greenlaw v. United States, 554 U.S. 237, 244 (2008) (“Under [the

cross-appeal rule], an appellate court may not alter a judgment to benefit a nonappealing
party.”).
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                                       No. 14-30122
              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. 26

Unlike the common law definition of manslaughter and the companion
statutory definition for general manslaughter found in Section 1112, Section
1115 only requires the proof of any degree of negligence to meet the culpability
threshold. 27 Moreover, the statute holds liable three groups of individuals:
   (1) Every captain, engineer, pilot, or other person employed on any
       steamboat or vessel,
   (2) Every owner, charterer, inspector, or other public officer, and
   (3) 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. 28

Neither the second category (the owner provision) nor the third category (the
corporate officer provision) is at issue; it is only the first category with which
we are concerned. Specifically, the phrase “[e]very . . . other person employed
on any . . . vessel” is the only relevant one because Defendants are not captains,
engineers, or pilots and because the Deepwater Horizon was not a steamboat.


       26 18 U.S.C. § 1115 (emphasis added).
       27 United States v. O’Keefe (O’Keefe II), 426 F.3d 274, 278-79 (5th Cir. 2005). Compare
18 U.S.C. § 1112, with id. § 1115.
       28 See 18 U.S.C. § 1115.

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                                       No. 14-30122
       The government argued below that the phrase was not ambiguous, and
that the plain text included Defendants. The district court disagreed. It
reasoned that the statute was ambiguous, and applied the principle of ejusdem
generis 29 to define the phrase. The district court held that the phrase covered
only persons with responsibility for the “marine operations, maintenance, and
navigation of the vessel.” Since Defendants were not such persons, they did not
fall within the ambit of the statute.
                                               A
       On appeal, the government argues that the plain meaning of the statute
is not ambiguous. The ordinary meaning of the phrase “[e]very . . . other person
employed on any . . . vessel” easily encompasses Defendants. As confirmation
of this plain text interpretation, the government points to the plain text of the
other provisions in § 1115. It also points to others indicators—including
statutory development, drafting history, statutory context, title, statutory
purpose, and case law. The government argues that since the plain language
is unambiguous, it was error to invoke ejusdem generis. Finally, the
government points to the principle of ex abundanti cautela. 30
       In response, Defendants argue that ejusdem generis is not a canon of last
resort, but rather a fundamental canon of statutory construction. There is no
need to find ambiguity in the statute to apply the canon. Rather, Defendants
argue that the government’s position would lead to making the words “captain,
engineer, [and] pilot” superfluous, and that ejusdem generis has to be applied


       29  2A Norman Singer & J.D. Shambie Singer, Sutherland on Statutes and Statutory
Construction §47:17 (7th ed. 2014) (“Ejusdem generis means ‘of the same kind,’ and is a
variation of the maxim noscitur a sociis. Ejusdem generis instructs 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.” (footnotes omitted)).
        30 Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 140 (2001) (Souter, J., dissenting)

(defining ex abundanti cautela as the abundance of caution principle).
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                                       No. 14-30122
to give meaning to each word. Finally, Defendants argue that the principle of
noscitur a sociis 31 also applies.
       “The starting point in discerning congressional intent is the existing
statutory text . . . .” 32 “When faced with questions of statutory construction, ‘we
must first determine whether the statutory text is plain and unambiguous’
and, ‘[i]f it is, we must apply the statute according to its terms.’” 33 The parties
disagree on whether the plain text of the statute needs to be found ambiguous
before a canon of construction, such as ejusdem generis, can be applied. 34
However, as we explain below, the plain text of the statute is ambiguous,
necessitating the use of canons of construction. In any case, there is no doubt
that legislative history can only be a guide after the application of canons of
construction. “Only after application of principles of statutory construction,
including the canons of construction, and after a conclusion that the statute is
ambiguous may the court turn to the legislative history. For the language to




       31  2A Singer & Singer, supra note 29, §47:16 (“Noscitur a sociis means literally ‘it is
known from its associates,’ and means practically that a word may be defined by an
accompanying word, and that, ordinarily, the coupling of words denotes an intention that
they should be understood in the same general sense.” (footnote omitted)).
       32 Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004).
       33 Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) (quoting

Carcieri v. Salazar, 555 U.S. 379, 387 (2009)).
       34 Precedent from the Supreme Court is not entirely clear on this point either.

Compare Garcia v. United States, 469 U.S. 70, 74-75 (1984) (refusing to apply ejusdem generis
because, among other things, the statute had a plain and unambiguous meaning), with
Circuit City Stores, 532 U.S. at 114-20 (majority opinion) (applying ejusdem generis before
concluding that the text was clear). Neither is precedent from our Court. Compare United
States v. Barlow, 41 F.3d 935, 942 (5th Cir. 1994) (suggesting that a statute has to be opaque,
translucent, or ambiguous before canons of statutory interpretation can be applied, including
a resort to the rule of lenity and legislative history), with Kornman & Assocs., Inc. v. United
States, 527 F.3d 443, 451 (5th Cir. 2008) (suggesting that statutory ambiguity can only be
established after application of the principles of statutory construction, including the canons
of construction).
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                                      No. 14-30122
be considered ambiguous, however, it must be susceptible to more than one
reasonable interpretation or more than one accepted meaning.” 35
       “When construing statutes and regulations, we begin with the
assumption that the words were meant to express their ordinary meaning.” 36
The government contends that the plain meaning of § 1115 is unambiguous as
it contains no complicated or technical language. The definitions of each word
in the phrase “[e]very . . . other person employed on any . . . vessel” are
straightforward.
       “Every” is defined as “[c]onstituting each and all members of a group
without exception” or “[b]eing all possible.” 37 “Other” is defined as “[b]eing the
remaining ones of several.” 38 “Person” is defined by the Dictionary Act to
include individuals. 39 “Employed” is defined as “engaged in work or occupation;
having employment; esp. [a person] that works for an employer under an
employment contract.” 40 “On” is “[u]sed to indicate position above and
supported by or in contact with” an object. 41 “Any” “has an expansive meaning,
that is, ‘one or some indiscriminately of whatever kind.’” 42 “Vessel” is also
defined by the Dictionary Act as “includ[ing] every description of watercraft or
other artificial contrivance used, or capable of being used, as a means of




       35 Carrieri v. Jobs.com Inc., 393 F.3d 508, 518-19 (5th Cir. 2004) (internal citation
quotation marks, and footnote omitted).
       36 Bouchikhi v. Holder, 676 F.3d 173, 177 (5th Cir. 2012).
       37 The American Heritage Dictionary of the English Language (5th ed. 2014), available

at http://www.ahdictionary.com (accessed online).
       38 Id.
       39 1 U.S.C. § 1.
       40 Oxford English Dictionary (3d ed. 2014), available at http://www.oed.com (accessed

online); see also The American Heritage Dictionary of the English Language (defining
“employ” as “[t]o provide work to (someone) for pay”).
       41 The American Heritage Dictionary of the English Language.
       42 United States v. Gonzalez, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New

International Dictionary 97 (1976)).
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                                        No. 14-30122
transportation on water.” 43 There is no question that the Deepwater Horizon
was a vessel. 44
      Looking to these definitions, the government contends that the plain text
of the phrase “[e]very . . . other person employed on any . . . vessel” is clear and
unambiguous, bringing within its ambit every person employed on the
Deepwater Horizon. Defendants, however, argue that the plain text is
ambiguous because it is not clear whether the phrase does incorporate every
person employed on the rig. Indeed, such an interpretation would render
“captain,” “engineer,” and “pilot” superfluous. We agree. Both interpretations
of the statute are reasonable. On the one hand, the phrase could be read to
include everyone employed on the vessel. On the other hand, because such a
reading would render certain terms superfluous, the phrase could be read to
include a smaller group of those employed on the vessel. This ambiguity
necessitates the use the canon of construction of ejusdem generis.
      The government’s argument that this Court has previously held § 1115
unambiguous fails. In United States v. O’Keefe (O’Keefe II), we held that certain
“terms [of § 1115] are unambiguous and therefore must be given their plain
meaning.” 45 In that case, this Court was dealing with Defendants’ argument
that the phrase “misconduct, negligence, or inattention” in § 1115 required the
proof of either gross negligence or heat of passion. 46 Reading the plain text of
the phrase “misconduct, negligence, or inattention,” this Court found no
ambiguity and affirmed that any degree of negligence was sufficient to obtain
a conviction. 47 But that holding has no bearing on the meaning of “[e]very . . .
other person employed on any . . . vessel.”


      43 1 U.S.C. § 3.
      44 See supra note 17.
      45 O’Keefe II, 426 F.3d at 279.
      46 Id.
      47 Id. at 278-79.

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                                        No. 14-30122
       The government also argues that the invocation of ejusdem generis is
improper for other reasons. First, the government argues that the term “every
other person” is already qualified by the requirement that they be “employed
on any steamboat or vessel.” Pointing to this limitation, the governments urges
against further limitation. However, this argument does not answer the
question of ambiguity inherent in the phrase “every other person.” Second, the
government argues there is no meaningful way to define the common
attributes between “captain,” “engineer,” and “pilot,” rendering the canon
ineffectual. 48 To our eyes, however, the common attribute can be defined and
applied to exclude Defendants. Third, the government argues that the
“textbook” grammatical structure of the phrase is not enough to justify the use
of ejusdem generis. The government points to cases where the Supreme Court
and our Court have refused to read a statute using this canon of construction
because the narrow reading was not “supported by evidence of congressional
intent over and above the language of the statute.” 49 We do not disagree with
this accent, but emphasize below that the narrow reading using ejusdem
generis comports with the statute’s context, history, and purpose. Fourth, the
government argues for the application of the principle of abundance of caution,
which recognizes that Congress sometimes includes certain categories, though
redundant, to ensure their inclusion in a list. 50 However, as explained below,
ejusdem generis is the most appropriate canon of application in this case



       48 See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008); In re Dale, 582 F.3d 568,
574-75 (5th Cir. 2009); United States v. Amato, 540 F.3d 153, 160-61 (2d Cir. 2008).
       49 United States v. Powell, 423 U.S. 87, 90 (1975); see also United States v. Alpers, 338

U.S. 680, 682-83 (1950); United States v. Silva-Chavez, 888 F.2d 1481, 1483-84 (5th Cir.
1989).
       50 See Ali, 552 U.S. at 226 (“Congress may have simply have intended to remove any

doubt that officers of customs or excise were included in ‘law enforcement officer[s].’”); Alpers,
338 U.S. at 684 (holding that Congress added a superfluous term because it “was preoccupied
with making doubly sure” that the term was included within the coverage of the statute).
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                                       No. 14-30122
because it comports with the statute’s text wherein three specific terms are
followed by a general term. By contrast, the abundance of caution principle is
more appropriate when the “[t]he phrase is disjunctive, with one specific and
one general category, not . . . a list of specific items separated by commas and
followed by a general or collective term.” 51 Therefore, the district court’s
invocation of ejusdem generis was entirely proper.
                                              B
       Under the principle of ejusdem generis, “where general words follow an
enumeration of specific terms, the general words are read to apply only to other
items like those specifically enumerated.” 52 “The rule of ejusdem generis, while
firmly established, is only an instrumentality for ascertaining the correct
meaning of words when there is uncertainty.” 53 Importantly, the rule cannot
be used to “obscure and defeat the intent and purpose of Congress” or “render
general words meaningless.” 54 “Canons of construction need not be conclusive
and are often countered, of course, by some maxim pointing in a different
direction.” 55 “The limiting principle of ejusdem generis has particular force with
respect to criminal statutes, which courts are compelled to construe rigorously
in order to protect unsuspecting citizens from being ensnared by ambiguous
statutory language.” 56




       51  Ali, 552 U.S. at 225.
       52  Garcia, 469 U.S. at 74; see also Hilton v. Sw. Bell Tel. Co., 936 F.2d 823, 828 (5th
Cir. 1991) (“When general words follow an enumeration of persons or things, such general
words are not to be construed in their widest extent, but are to be held as applying only to
persons or things of the same general kind or class as those specifically mentioned. The rule
is one of limitation, restricting general terms, such as ‘any other’ and ‘and the like,’ which
follow specific terms, to matters similar to those specified.”).
        53 Powell, 423 U.S. at 91 (quoting Gooch v. United States, 297 U.S. 124, 128 (1936)).
        54 Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2171 (2012) (quoting

Alpers, 338 U.S. at 682).
        55 Circuit City Stores, 532 U.S. at 115.
        56 United States v. Insco, 496 F.2d 204, 206 (5th Cir. 1974).

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                                         No. 14-30122
      The district court considered what “common attribute” or “class of
persons” the statutory phrase implied. It concluded that in the context of the
phrase, the terms “captain,” “engineer,” and “pilot” suggested a class of persons
dealing with the operation and navigation of the vessel. Thus “every . . . other
person” includes only those persons responsible for the “marine operations,
maintenance, or navigation of the vessel.” As a result, Defendants were
excluded. The district court then consulted the legislative history and case law
to confirm that Congress intended such a limitation. It noted that that the
predecessor to § 1115 was enacted in 1838 to “provide for the better security of
the lives of passengers on board of vessels propelled in whole or in part by
steam,” 57 at a time when “steamboat collisions and boiler explosions were
regular occurrences.” The district court inferred that Congress intended “to
hold those persons responsible for navigating the vessel accountable for their
actions.” Next, it noted that § 1115 had never been applied to employees on a
drilling rig.
      The government argues that even if the district court did not err in
invoking ejusdem generis, it defined the common attribute incorrectly.
According to the government, there are several other ways of defining the
common attributes of “captain, engineer, [and] pilot.” First, the government
argues that “captain,” “engineer,” and “pilot” all denote individuals who work
in service of the vessel. Second, that each is a person in a position of authority
or with a substantial degree of responsibility for the safety of the vessel. Third,
that each is responsible for the “operation, equipment, or navigation” of the
vessel. By contrast, the government contends that the common attribute found
by the district court has no purchase in the statutory text. Defendants argue
that the district court correctly found that the common attribute involved


      57   See Act of July 7, 1838, ch. 191, 5 Stat. 304.
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                                          No. 14-30122
persons responsible for the “marine operations, maintenance, or navigation of
the vessel.”
       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 of any kind of vessel.” 58
“Engineer” is defined as “[t]he operator of a steam engine, esp. on board a
ship.” 59 “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.” 60
All three terms refer to individuals involved in the “marine operations,
maintenance, or navigation of the vessel.” 61 In other words, all three are
persons in positions 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.
       The government’s alternative common attributes do not persuade. As to
the first one, defining the common attribute as someone “in service of the
vessel” is too broad. For instance, a nanny employed by the vessel operator
would fall under this definition. Congress did not intend to bring such a person
within the scope of the statute. As to the second proffered definition, defining


       58  Oxford English Dictionary.
       59  Id.
        60 Id.
        61 All three also refer to persons in positions of authority, i.e., ship officers. The district

court decided that the “persons in positions of authority” qualifier did not constitute an
additional limiting common attribute. We need not decide whether the district court erred
in this conclusion because, in any case, Defendants do not fall within the meaning of persons
responsible for “marine operations, maintenance, or navigation of the vessel.”
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                                  No. 14-30122
the common attribute as someone in a position of authority or with a
substantial degree of responsibility for the safety of the vessel sweeps too
broadly. This because it fails to take into account that the “captain,” “engineer,”
and “pilot” are all required for the transportation function of the vessel.
Suppose a vessel had an armed guard officer to protect against pirates and
other assailants. Under the government’s definition, such a person would be
within the statutory meaning. But based on the statutory text and purpose, we
are not persuaded that the statute was drafted to include such a person. As to
the third proffered definition, characterizing the common attribute as
responsibility for the “operation, equipment, or navigation” of the vessel has
some appeal. This phrase is derived from the corporate officer provision of
§ 1115, and it does have purchase in the text. But this formulation likewise
fails to account for the transportation-related duties conspicuously common to
“captain,” “engineer,” and “pilot.”
      The government argues that even if the common attribute is persons in
positions of responsibility who are involved in the “marine operations,
maintenance, or navigation of the vessel,” Defendants still fall within that
definition. First, the government argues that the term “marine” cannot
exclusively mean navigational activities or transporting passengers over
water. Such a definition would be too restrictive. A captain has non-
navigational duties because he is responsible for the entire vessel; an
engineer’s duties extend beyond propelling the vessel because the engineer also
is responsible for the entire physical plant on the vessel, including air
conditioning and refrigeration systems. To wit, the government argues that
certain drilling engineers could also be held responsible under the statute. This
argument echoes another argument of the government in support of the plain
text interpretation: that the statute on its face does not limit the liability of
“captain,” “engineer,” and “pilot” to only their failure in “marine” duties. There
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                                      No. 14-30122
is a certain tension here. If Defendants were “captains,” “engineers,” and
“pilots,” they could be responsible under § 1115 for failure in their non-marine
duties. Nevertheless, ejusdem generis mandates that the general phrase ought
to be limited to persons who are at least sometimes involved in the “marine
operations, maintenance, or navigation of the vessel.” Indeed, to say that
engineers solely responsible for drilling were meant to be within the ambit of
the statute takes the argument too far.
       Second, the government argues that drilling could also be characterized
as a “marine” function. In its eyes, a certain activity is “marine” simply because
it is performed on water. Thus, Defendants were responsible for “marine
operations” at the least. It is true that drilling might be characterized as a
“marine” activity. But as we explained above, here, the “marine” limitation has
to do with the vessel functioning as a vessel, i.e., in the transportation of people
and things. This limitation is mandated by ejusdem generis, and the district
court did not err in understanding “marine” this way.
       Our reading of § 1115 is also supported by the other textual provisions
within the statute. “In reading a statute, we must not look merely to a
particular clause, but consider in connection with it the whole statute.” 62
Although these provisions were added later by different sessions of Congress,
they must be read consistently with earlier parts of the statute. 63 The owner
provision—the second category of persons liable under § 1115—provides
liability for “every owner, charterer, inspector, or other public official,” and it
is consistent with the exclusion of Defendants from the first category. While
the owner provision does not have a similar limitation to “marine operations,



       62Dada v. Mukasey, 554 U.S. 1, 16 (2008) (internal quotation marks omitted).
       63Ali, 552 U.S. at 222 (“Nonetheless, the [later] amendment is relevant because our
construction of [the term] must, to the extent possible, ensure that the statutory scheme is
coherent and consistent.”).
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                                       No. 14-30122
maintenance, or navigation of the vessel,” it also lacks a general phrase. Next,
the corporate officer provision—the third category—provides liability for “any
executive officer” of the corporate owner or charterer of a vessel “for the time
being actually charged with the control and management of the operation,
equipment, or navigation” of such 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.” Again, there is no limitation
in this provision to “marine operations, maintenance, or navigation of the
vessel.” But this is consistent with the text because the corporate officer
provision has a stricter mens rea requirement: knowingly and willfully causing
or allowing.
       We find some guidance in the current title of § 1115: “Misconduct or
neglect of ship officers.” “[T]he title of a statute and the heading of a section
are tools available for the resolution of a doubt about the meaning of a
statute.” 64 First, the reference to “ship officers” suggests that our focus on the
“marine” nature of the common attribute is not misplaced. Second, the title
suggests that only persons in positions of authority are liable. 65 As we explain
below, however, the title was added long after the enactment of the
manslaughter provision, and thus can offer only limited help.
       Therefore, the text and context of § 1115 supports the conclusion that
Defendants do not fall within the meaning of the statute. 66




       64 Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (internal quotation
marks omitted).
       65 See supra note 60.
       66 We agree with the district court that the application of noscitur a sociis is

unnecessary here. Under that canon, “a term is interpreted by considering the meaning of
the terms associated with it.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 218 (5th Cir.
2007). Here, since the general term follows specific terms, ejusdem generis is the proper canon
of construction.
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                                        No. 14-30122
                                               C
       As the conclusion that Defendants are outside the scope of coverage is
reached by the text of § 1115, we need not reach the legislative history. We
note quickly, however, that even the legislative history supports our
conclusion.
                                                1
       Section 1115 was originally enacted as part of an 1838 act, whose title
clarified that the act was intended “[t]o provide for the better security of the
lives of passengers on board of vessels propelled in whole or in part by steam.” 67
At the time, travel by steamboat was commonplace, but so were steamboat
collisions and boiler explosions resulting in the deaths of hundreds of
passengers and crewmembers. 68 The 1838 Act aimed to rectify these safety
problems 69 by, inter alia, imposing steamboat licensing and inspection
requirements and placing various obligations or liabilities upon vessel owners,
masters, inspectors, captains, pilots, engineers, and others. 70 Section 12 of the
1838 Act was the first predecessor to today’s § 1115, providing that
               every captain, engineer, pilot, or other person
               employed on board of any steamboat or vessel
               propelled in whole or in part by steam, by whose


       67 Act of July 7, 1838, ch. 191, 5 Stat. 304.
       68 United States v. O’Keefe (O’Keefe I), No. 03-137, 2004 WL 224574, at *1 (E.D. La.
Feb. 3, 2004); United States v. Holmes, 104 F. 884, 885 (N.D. Ohio 1900) (“[T]he purpose of
the lawmakers was to prevent the constant recurrence of the serious accidents then
prevailing in the navigation of the waters of the United States by vessels using steam.”);
United States v. Warner, 28 F. Cas. 404, 408 (C.C.D. Ohio 1848) (“It is a matter of public
notoriety, and constitutes a part of the history of the times, that within a short period anterior
to the date of this statute, numerous steamboat disasters had occurred in our country,
attended with a melancholy loss of human life, under circumstances justifying the conclusion
that there was gross negligence, yet without the possibility of proving, either positively or
inferentially, a malicious intent.”); In re Charge to Grand Jury, 30 F. Cas. 990, 990 (E.D. La.
1846) (noting “[t]he frequent loss of human life in consequence of explosions of the boilers of
steamboats, of collisions and the burning of steamboats”).
       69 United States v. Ryan, 365 F. Supp. 2d 338, 344 (E.D.N.Y. 2005).
       70 Act of July 7, 1838, §§ 1-13, 5 Stat. at 304-06.

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                                      No. 14-30122
              misconduct, negligence, or inattention to his or their
              respective duties, the life or lives of any person or
              persons on board said vessel may be destroyed, shall
              be deemed guilty of manslaughter . . . . 71

Section 12 had a lower degree of culpability than that required by other
manslaughter       statutes. 72 In     1864,      Congress    amended      the   seaman’s
manslaughter statute by adding the predecessor of the owner provision, the
second category of persons liable under § 1115. 73
       Unfortunately, horrible steamboat accidents continued to occur. 74 “In
1871, Congress significantly overhauled the regulatory regime governing
steam-powered vessels, adding provisions for watchmen, safety equipment,
vessel design standards, inspection and testing of equipment, and licensing of
captains, chief mates, engineers, and pilots.” 75 The 1838 Act was repealed, 76
and the seaman’s manslaughter provision was reenacted as § 57 of the 1871
Act. 77 Section 57 made minor changes to the seaman’s manslaughter statute:
it made the first category applicable to those “employed on any steamboat or
vessel” 78 and it made the owner provision, the second category, applicable to
“any owner or inspector, or other public officer.” 79



       71  Id. § 12, 5 Stat. at 306.
       72   William Pitard Wynne & Brian Michael Ballay, Seaman’s Manslaughter: A
Potential Sea of Troubles for the Maritime Defendant and a Clever Mechanism for Taking
Arms Against the Slings and Arrows of Maritime Plaintiffs, 50 Loy. L. Rev. 869, 895-96
(2004).
        73 Act of July 4, 1864, ch. 249, § 6, 13 Stat. 390, 391 (making “the owner or owners”

liable). When Congress initially enacted the owner provision, it did not include ordinary
negligence but only “fraud, connivance, misconduct, or violation of law” as the required
conduct, unlike the current version of the statute. Compare id., with 18 U.S.C. § 1115.
        74 Ryan, 365 F. Supp. 2d at 345.
        75 Wynne & Ballay, supra note 72, at 889; see also Act of Feb. 28, 1871, ch. 100, 16

Stat. 440.
        76 Id. § 71, 16 Stat. at 459.
        77 Id. § 57, 16 Stat. at 456.
        78 Thus removing the requirement that the vessel be steam-propelled.
        79 Id. § 57, 16 Stat. at 456.

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                                      No. 14-30122
       By 1905, the statute was Section 5344 of the Revised Statutes of the
United States. It was broadened again in response to another steamboat
accident. 80 The owner provision, the second category, was broadened to apply
to “every owner, charterer, inspector, or other public officer” and the word
“neglect” was added to the list of acts or omissions which would lead to
liability. 81 Additionally, the corporate officer provision, the third category, was
added. 82
       Congress then recodified the statute several times, first placing it at
§ 282 of the new Criminal Code, 83 then, in 1948, at its current location at 18
U.S.C. § 1115. 84 A title was also introduced to the section: “Misconduct or
Neglect of Ship Officers.” 85 The current version of § 1115 is substantively
identical to the 1905 version. 86
                                             2
       This legislative history shows a remarkable continuity for the phrase
“[e]very . . . other person employed on any . . . vessel.” While the other
provisions—such as the owner provision and the corporate officer provision—
have been amended several times, this general phrase has remained more or
less the same.
       The government points to several features of the legislative and drafting
history in support of its plain text interpretation. We do not find any
convincing. First, the government argues that the 1838 Act and the 1871 Act



       80 Ryan, 365 F. Supp. 2d at 346; see also Act of Mar. 3, 1905, ch. 1454. § 5, 33 Stat.
1023, 1025-26.
       81 Ryan, 365 F. Supp. 2d at 346.
       82 Id.
       83 Act of Mar. 4, 1909, ch. 321, § 282, 35 Stat. 1088, 1144.
       84 Act of June 25, 1948, ch. 645, § 1115, 62 Stat. 683, 757.
       85 Id.
       86 The statute is now in two paragraphs and the explicit reference to “manslaughter”

has been deleted.
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                                       No. 14-30122
demonstrate that Congress knows how to choose its words carefully and
deliberately. The 1838 Act included different provisions imposing liability on
different classes of people. Section 1 was applicable to “owners”; § 2 to “owner,
master, or captain”; § 7 to “the master of any boat or vessel, or the person or
persons charged with navigating said boat or vessel” propelled by steam. 87 The
1871 Act similarly included different provision imposing liability on different
classes of people, such as owners, masters, captains, chief mates, mates, chief
engineers, engineers, pilots, watchmen, “persons in command,” and “the officer
in charge of the vessel for the time being.” 88 We agree that Congress can choose
its words carefully and deliberately. Indeed, it is for that very reason that the
catchall phrase cannot mean everyone employed on the ship. Congress could
have easily used the word “everyone” or “all persons” or “all.” But it did not do
so, and we must give meaning to its words.
       Second, the government argues that Congress surely did not mean to
include a “navigation” limitation on the general phrase. To begin, it points to
§ 7 of the 1838 Act which places a duty on a “master” of a vessel powered by
steam “or the person or persons charged with navigating said boat or vessel.”
This express limitation, the government contends, shows that the “navigating”
limit was not mean to apply to the first category in § 1115. 89 Next, the
government points to the drafting history of § 12 of the 1838 Act. When first
introduced in the Senate in December 1837, the provision was limited to “every
captain, engineer, pilot, or other person employed in navigating any steamboat



       87  Act of July 7, 1838, §§ 1-13, 5 Stat. at 304-06.
       88  Act of Feb. 28, 1871, §§ 1-71, 16 Stat. at 440-59.
        89 See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes

particular language in one section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.
1972)).
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                                       No. 14-30122
or vessel propelled in whole or in part by steam.” 90 The bill was referred to a
select committee and reported out with amendment; the provision remained
the same except for the addition of a comma between “person” and
“employed.” 91 The bill was then debated in the Senate and amended in various
respects. 92 When the bill was engrossed for a third reading, the “navigating”
limitation had been eliminated. 93 The provision now reached “every captain,
engineer, pilot, or other person, employed on board of any steamboat or vessel
propelled in whole or in part by steam.” 94 This was the state of the provision
when it was enacted into law as § 12 of the 1838 Act, except that the comma
between “person” and “employed” was again removed. 95 The removal of the
“navigating” language, the government contends, shows that Congress
intended no such limitation. 96 Finally, the government also points to some of
the Senate debates, though it concedes that none of the debates explained why
the “navigating” language had been removed. 97 To our eyes, however, the
common attribute required by ejusdem generis is not the equivalent of
importing the “navigating” term back into the statute. The common attribute
is much broader: those individuals involved in the “marine operations,



       90  S. 1, 25th Cong., 2d Sess. § 13 (introduced by Sen. Grundy on Dec. 6, 1837)
(emphasis added).
       91 S. 1, 25th Cong., 2d Sess. (as reported out of the Senate select committee on Jan. 9,

1838).
       92 Cong. Globe, 25th Cong., 2d Sess. 123-25 (Jan. 22, 1838); id. at 128-29 (Jan. 23,

1838).
       93 Id. at 129 (Jan. 23, 1838).
       94 Id. (emphasis added).
       95 Act of July 7, 1838, § 12, 5 Stat. at 306.
       96 Russello, 464 U.S. at 23-24 (“Where Congress includes limiting language in an

earlier version of a bill but deletes it prior to enactment, it may be presumed that the
limitation was not intended.”).
       97 See Cong. Globe, 25th Cong., 2d Sess. 125 (Jan. 22, 1838) (Senator Sevier expressing

concern of the broad sweep of the manslaughter provision); id. at 124 (Jan. 22, 1838) (Senator
Smith speaking of provision as applying to “captain, pilot, engineer, or other person employed
in navigating the boat”).
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                                         No. 14-30122
maintenance, or navigation of the vessel.” Therefore, we are satisfied that our
reading of the statute is proper.
       Third, the government points to other statutes passed around the same
time to argue for its plain text interpretation. The government argues that
Congress could have used the word “seamen,” but did not do so. The logic of
the argument is that “seamen” had a broad meaning, and Congress chose to
use an even broader phrase than “seamen.” However, this argument fails
because “seamen” has nothing to do with the phrase, and the phrase must be
read within the context of the statute. The government also points to the
committee report of a failed 1840 bill that was meant to amend the 1838 Act. 98
We do not find much meaning in this amendment precisely because Congress
did not enact it. Similarly, the government points to two other statutes arguing
that they have similar phraseology and their broad scope compels a broad
reading of § 1115. 99 We disagree because the government fails to point to any
case law holding as such, simply pointing to the plain statutory text.
       The legislative history, then, supports a narrow reading of the statute
that excludes Defendants from coverage.




       98  S. 247, 26th Cong., 1st Sess. (reported by the Senate Committee on Commerce on
Mar. 2, 1840); S. Rep. No. 241, 26th Cong., 1st Sess., at 13 (Mar. 2, 1840) (“Any person
employed on board of steamboats by whose negligence or misconduct the life of any passenger
shall be destroyed, [is] to be considered guilty of manslaughter, and punished by
imprisonment.”).
        99 Act of Mar. 24, 1860, ch. 8, § 1, 12 Stat. 3, 3 (“[E]very master or other officer, seaman

or other person employed on board of any ship or vessel of the United States, who shall,
during the voyage of such ship or vessel, under promise of marriage, or by threats, or by the
exercise of his authority, or by solicitation, or the making of gifts or presents, seduce and
have illicit connexion with any female passenger, shall be guilty of a misdemeanor . . . .”); id.
at § 2, 12 Stat. at 3-4 (“[N]either the officers, seamen, or other persons employed on board of
any ship or vessel bringing emigrant passengers to the United States, or any of them, shall
visit or frequent any part of such ship or vessel assigned to emigrant passengers . . . .”).
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                                        No. 14-30122
                                               D
       We turn to some remaining arguments the government proposes in favor
of its plain text reading. First, the government points to the statutory purpose.
But as discussed above, the statutory purpose indicates that reading § 1115 in
light of ejusdem generis is appropriate. The statute was enacted to address the
dangers of travel by steamboat, and it is persons responsible for that travel
that should be held liable under the statute. Defendants were not responsible
for the travel of the Deepwater Horizon.
       Second, the government points to the case law in support of its reading.
The government contends that no court has limited the general phrase to apply
only to persons employed on a vessel in a “marine operations, maintenance, or
navigation” capacity. The government points to cases and their broad language
of liability as proof. 100 Defeating this argument is the fact that no case before
has dealt with the question before us today, i.e., whether someone on the drill
crew of a drilling rig is liable under § 1115. The government argues there have
been prosecutions under § 1115 for non-“marine” activities. 101 But these
prosecutions have been of persons with primarily “marine” functions: the
“captain,” “engineer,” and “pilot.” When defining the general term, ejusdem


       100  See United States v. LaBrecque, 419 F. Supp. 430, 435-36 (D.N.J. 1976) (“Section
1115 was, as noted, designed to punish persons employed on commercial vessels carrying
persons for hire.”); see also United States v. Holtzhauer, 40 F. 76, 78 (C.C.D.N.J. 1889); United
States v. Keller, 19 F. 633, 637 (C.C.D.W. Va. 1884); United States v. Collyer, 25 F. Cas. 554,
576 (C.C.S.D.N.Y. 1855); United States v. Taylor, 28 F. Cas. 25, 26 (C.C.D. Ohio 1851);
Warner, 28 F. Cas. at 407.
        101 See Van Shaick v. United States, 159 F. 847, 851 (2d Cir. 1908) (prosecution for

failure to “maintain an efficient fire drill, to see that the proper apparatus for extinguishing
fire was provided and maintained in efficient order and ready for immediate use and to
exercise at least ordinary care in seeing that the life-preservers were in a fit condition for
use”); United States v. Beacham, 29 F. 284, 284-85 (C.C.D. Md. 1886) (prosecution for absence
of a rail on a saloon deck, which led to a passenger slipping overboard and drowning).
        The government also points to cases involving prosecution under the owner provision
which we do not find compelling. See United States v. Fei, 225 F.3d 167, 169-71 (2d Cir. 2000);
United States v. Allied Towing Corp., 602 F.2d 612, 613 (4th Cir. 1979).
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generis strongly suggests that the common attribute is a person responsible for
the “marine operations, maintenance, or navigation of the vessel.” Moreover,
the case law actually seems to support Defendants; prosecutions under the first
category of § 1115 have been limited to “captains,” “engineers,” “pilots,” and
others with responsibilities relating to vessel transport functions. 102 Thus, our
focus on the “marine” identities of these actors is not misplaced.
       Finally, the government argues that the district court erred in invoking
the rule of lenity. “The rule of lenity requires ambiguous criminal laws to be
interpreted in favor of the defendants subjected to them.” 103 The rule
“vindicates the fundamental principle that no citizen should be held
accountable for a violation of a statute whose commands are uncertain, or
subjected to punishment that is not clearly prescribed.” 104 According to the
government, there is no ambiguity here in two ways. First, there is no
ambiguity in the plain text. Second, even if there were ambiguity in the plain
text, there is no ambiguity left after the application of ejusdem generis.



       102  See generally United States v. Oba, 317 F. App’x. 698 (9th Cir. 2009) (captain);
O’Keefe II, 426 F.3d 274 (captain); United States v. Thurston, 362 F.3d 1319 (11th Cir. 2004)
(chief officer); United States v. Hilger, 867 F.2d 566 (9th Cir. 1989) (captain); Hoopengarner
v. United States, 270 F.2d 465 (6th Cir. 1959) (speedboat owner and operator); United States
v. Abbott, 89 F.2d 166 (2d Cir. 1937) (master and chief engineer); Van Schaick v. United
States, 159 F. 847 (2d. Cir. 1908) (captain); Holtzhauer, 40 F. 76 (captain and pilot); Beacham,
29 F. 284 (captain); Keller, 19 F. 633 (pilot); In re Doig, 4 F. 193 (C.C.D. Cal. 1880) (pilot);
Collyer, 25 F. Cas. 554 (captain, pilot, engineer, captain’s clerk, and owner); United States v.
Farnham, 25 F. Cas. 1042 (C.C.S.D.N.Y. 1853) (captain); Taylor, 28 F. Cas. 25 (engineer);
Warner, 28 F. Cas. 404 (captain, first mate, second mate, and wheelsman); United States v.
Schröder, No. 06-0088, 2006 WL 1663663 (S.D. Ala. 2006) (captain); United States v. Mitlof,
165 F. Supp. 2d 558 (S.D.N.Y. 2001) (captain); LaBrecque, 419 F. Supp. 430 (captain of non-
commercial vessel); United States v. Vogt, 230 F. Supp. 607 (E.D. La. 1964) (pilot); United
States v. Meckling, 141 F. Supp. 608 (D. Md. 1956) (captain); United States v. Harvey, 54 F.
Supp. 910 (D. Or. 1943) (pilot); United States v. Knowles, 26 F. Cas. 800 (N.D. Cal. 1864)
(captain). Arguably, the prosecution of the captain’s clerk in Collyer seems to buck this trend.
But we do not put much stock in this one case as the clerk is also described as an “inferior
officer.” 25 F. Cas. at 564.
        103 United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion).
        104 Id.

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Therefore, the district court erred in applying the rule of lenity. The
government misapprehends the district court’s order. The district court clearly
understood that the rule of lenity is only applied as a last resort. It only held
that should there be any remaining ambiguity even after the application of
ejusdem generis, the rule of lenity dictated that it be resolved in Defendants’
favor.
         Counterarguments in favor of interpreting § 1115 to cover Defendants
have purchase. Yet we are left with textual indeterminacy, as well as the
incongruity of applying a statute originally developed to prevent steamboat
explosions and collisions on inland waters to offshore oil and gas operations—
all approaching a bridge too far. The primary thrust of legislative effect can
bring light to the shadows of uncertainty. 105 At some point, and we think it
here, the doctrine of lenity takes hold and dismissing this part of the
indictment was not error.
                                                  VI
         The judgment of the district court is AFFIRMED.




         105   See generally Yates v. United States, No. 13-7451 (U.S. Feb. 25, 2015).
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