There was a time starting in the 1960s, and lasting for four decades, when the great marine life parks of the world were overseen by a group of powerful men – some even called them Manly Men. Men with names like Millay, Jovanovich, Hertz, Holer, Kiessling, Lavia, and Busch.
These men knew what kinds of animals they wanted and they did what they needed to get them. They were showmen. If they wanted to have a chimp ride dolphins around a lagoon, that was what they were going to do, and doggonit, the audience would suck it in like heroin. Back then, obstructions were few and far between. They had the right connections – in political and government circles – and could easily cut through red tape.
Going on fifty years later and things have changed. Pedro Lavia has for years been out of the Latin American orca business and recently sold his Italian dolphinarium to a Mexican concern. He still owns and operates Zoomarine in Portugal. Arthur Hertz sold his Miami Seaquarium to the Spanish theme park operator Parques Reunidos, then passed away a few years later.
In Canada, John Holer’s Marineland is one of two Canadian institutions that would be effected by a proposed national prohibition on cetacean captivity. Recently, Ontario Captive Animal Watch acquired a copy of a C$21 million civil lawsuit filed by Marineland against the Ontario SPCA, a non-profit engaged by provincial law to act as Ontario’s animal welfare law enforcement agency.
Marineland makes a number of allegations against the OSPCA, chief among them that the OSPCA was working with animal rights activists in a joint attempt to to shut down all zoos and aquariums in the province, and that the timing of OSPCA charges against Marineland were intentional so as to negatively affect the perception of Marineland during federal hearings on the cetacean captivity bill.
At Sea World, George Millay was fired as President in the 1970s, years after he took a chance and leased a killer whale nobody else wanted – a young female captured in the waters of Washington State and named Shamu – a whale that would turn around the company’s disastrous losses from its first year of operation into extravagant profits for the next few decades. Millay would also be responsible for expanding Sea World from one to three parks (four if you include the more traditional theme park just north of Los Angeles known as Magic Mountain).
Shortly after Millay’s departure from the company he loved so much, Sea World was sold to book publisher Harcourt Brace Jovanovich for $46 million. Leading the company was William Jovanovich, who had worked his way up to CEO from being a textbook salesman in just seven years. Jovanovich wanted more killer whales. He had plans to build a new Sea World park in Texas and to expand overseas. When captures started to end in Iceland, Jovanovich and his Sea World executives received a permit from the National Marine Fisheries Service to capture up to 100 killer whales in Alaska for research, keeping ten at the Sea World parks. The permit (which will be covered in an upcoming post) was overturned in court and larger tanks that had been planned for San Diego and Orlando to house the additional ten whales were modified to promote breeding and nursing. This was the start of the Baby Shamu era.
Over the years, Harcourt amounted a huge debt and decided to sell off its most valuable assets – the theme parks. Companies that early on investigated buying Sea World, Cypress Gardens, and Boardwalk & Baseball included Disney and MCA, the parent company of Universal Studios. Eventually, it would be sold to brewer Anheuser Busch, which already operated its own Busch Gardens branded parks, for $1.1 billion. Busch would consolidate the park name from Sea World to SeaWorld as part of an agreement surrounding a trademark infringement case with Sea World Gold Coast in Australia.
MORGAN AND THE LOAN
This story begins in 1970, when Wolfgang Kiessling, a German airline manager, first arrived in the Canary Islands city of Tenerife. He fell in love with the town and, inspired by Miami’s Parrot Jungle (now known as Jungle Island), decided he wanted to open a bird park there. Spanish law prohibited foreign nationals from owning parks without a Spanish partner, so in 1972, instead of a park, he opened a six room luxury hotel. It just so happened that it was a very small hotel with a large bird park attached, called Loro Parque. This loophole in the law allowed him full control of the new park.
Adolphus Busch III opened the first Busch Gardens in Tampa in 1959, followed by another in 1966 in Van Nuys, CA, just north of downtown Los Angeles. The central attraction of each park, much like Loro Parque, was a bird park. As such, Busch and Kiessling established a good working relationship surrounding exchange of husbandry and conservation knowledge and of animals. The relationship grew even stronger when Loro Parque was confronted by animal rights activists over its acquisition of penguin eggs from Antarctica, an experience SeaWorld had encountered.
Busch had a problem and Kiessling could offer the solution. The breeding strategy that had been implemented by Jovanovich had proven so successful that the SeaWorld parks were running out of room to store their whales. Would Kiessling be willing to build a facility at Loro Parque to house a few of them? Indeed he would, and in February 2004, the Loro Parque Facility Service and Loan Agreement was signed. In 2006, four orcas, two from Orlando and two from San Antonio found their way to the Canary Islands. Two calves would be born there, with one passing away at less than a year old. In November 2011, the rescued orca Morgan was transported from the Netherlands to Loro Parque’s Orca Ocean facility.
Busch sold his company in 2008 and SeaWorld has gone through a number of ownership and management transitions since then. On Tuesday November 7 of this year, SeaWorld issued an earnings press release which stated in one small paragraph:
During the three months ended September 30, 2017, the company amended its existing agreement with Loro Parque concerning the orcas at that park. The agreement was amended in order to end its business relationship due to a contractual dispute. As a result, the company recognized an impairment loss of approximately $7.8 million during the third quarter of 2017.
Neither the press release nor the 10Q filed the following day with the SEC mentioned anything about a transfer of ownership to Loro Parque, but rather an amending of an existing agreement. The transfer of ownership was only determined through direct correspondence by myself and others with SeaWorld’s communications department. This leads to two questions:
- Since $7.8 million seems like a very low amount, did SeaWorld just end and write-off the agreement or did they sell the orcas to Loro Parque? The $7.8 million loss is actually the difference between what SeaWorld was paid as a fee under the agreement and its fair value. According to SeaWorld, those funds were donated to a research and conservation fund. I believe that if SeaWorld has sold the orcas themselves, the payment will be recorded after December 31, so that it shows up in the 2018 fiscal year for both SEC and IRS filings.
- Did the transfer of ownership on the orcas include Morgan? To come to an answer, it’s important to examine some misconceptions and determine if SeaWorld has ever claimed to owning her.
After two years of research scouring more than 4,000 pages of court documents, the entire public online database of the Free Morgan Foundation, four years of SeaWorld financial records, statements, and press releases and hundreds of mainstream media reports, and after interviewing dozens of people associated with the SeaWorld-Loro Parque relationship, I am ready to share my analysis of the Morgan situation here with you now:
One item that often leads to the “SeaWorld owns Morgan” theory as a conspiracy is that although some sources (see below) indicate that SeaWorld may have taken on ownership, she is never listed in the Marine Mammal Index Report, managed by NOAA Fisheries and required under the Marine Mammal Protection Act. An MMI filing is required whenever a marine mammal is either owned by a US entity, housed in a facility on US soil, transferred from a US facility, gives birth, or dies. The two offspring born at Loro Parque appear in the MMIR since both were the offspring of American owned orcas that had been transferred from American facilities, and, under the breeding stipulations of the agreement between the two parks, are both the property of the American company SeaWorld.
Morgan never appears in the Loro Parque MMIR for two simple reasons: 1. she has never been in a US facility, and 2. SeaWorld never actually claimed to own her.
THE SENTINEL ARTICLES
One of the biggest sources used to support the “SeaWorld owns Morgan” theory are a number of articles written by Jason Garcia for the Orlando Sentinel. In one, titled: “SeaWorld wants to acquire Dutch Killer Whale” (July 19, 2011), he writes:
SeaWorld Parks & Entertainment is attempting to acquire a young female killer whale rescued off the coast of the Netherlands last year.
The killer whale, nicknamed “Morgan,” was captured in June 2010 after a ship spotted her swimming alone and starving in the Wadden Sea. She has been living since in a Dutch marine park known as Dolfinarium, where, with SeaWorld’s assistance, she has been nursed back to health.SeaWorld is now seeking to have Morgan transferred to Loro Parque, a marine park in the Canary Islands that has five other SeaWorld-owned killer whales on display. Dolfinarium this month applied for a government transfer permit.
Orlando-based SeaWorld Parks said Tuesday that it has no plans to bring Morgan to the U.S., where the company operates SeaWorld marine parks in Orlando, San Diego and San Antonio.
“The plan is for her to join the group at Loro Parque and stay there long-term,” SeaWorld spokesman Fred Jacobs said.
SeaWorld would not say whether it will pay any compensation — in the form of money or other animals — to Dolfinarium in exchange for Morgan. The company said it has worked with the smaller Dutch park for many years, sharing animals and expertise, and that “assisting Dolfinarium with Morgan’s rehabilitation and helping them find a long-term home for her should be viewed in the context of our long-term partnership with them.”
Morgan, estimated to be about 2 years old, would become the 25th killer whale in SeaWorld’s corporate collection. There are only about 42 killer whales in captivity around the world, according to a database maintained by orca activists.
This is followed by “Rescued Dutch killer whale now part of SeaWorld’s corporate collection” (November 29, 2011)
Morgan, a young killer whale rescued off the Dutch coast in June 2010, joined SeaWorld Parks & Entertainment’s corporate collection on Tuesday.
The female whale was transferred from Dolfinarium, a park in the Netherlands where she had been since she was nursed back to health, to Loro Parque, a marine park in Tenerife, Spain, where SeaWorld currently keeps five other whales.SeaWorld has said it does not plan to bring Morgan to the U.S. She is the 27th killer whale in SeaWorld’s collection, including eight at SeaWorld San Diego, seven at SeaWorld Orlando, and six each at SeaWorld San Antonio and Loro Parque.
Although Garcia uses the term “corporate collection,” much confusion has arisen over the years as to what entails SeaWorld’s collection.
Throughout its financial filings with the SEC, SeaWorld refers to its “animal collection.” It never gives a monetary figure for the value of the collection nor an actual number of animals that it owns outright. In numerous places in its SEC filings and on its websites, it expands this term to “collection of animals in our care.” The total number of animals in SeaWorld’s “collection” will vary during any given time of year as it includes animals owned by the companies, animals on loan from other institutions, rescued animals undergoing rehabilitation at its and other facilities, and Morgan.
Which is why in a 2014 discussion with Fred Jacobs, then SeaWorld’s Vice President of Corporate Communications, when I asked if SeaWorld owned Morgan, his response was, “We’ve been working very closely with Loro Parque as she’s now part of the collection of animals we care for there.”
THE SEC FILINGS
SeaWorld’s SEC filings, starting with its initial public offering in 2013, clearly indicate that the number of orcas “on loan” to Loro Parque includes Morgan. But one must not take this literally if one is to understand what it means. The agreement with Loro Parque is not just a loan, it’s a complete service agreement whereby SeaWorld oversaw all aspects of the orca operation at Loro Parque, including the design and construction of the Orca Ocean facility. Morgan would fall under the service portion of this agreement, with SeaWorld taking full responsibility for training, husbandry, and veterinary care, but she would not be considered a loaned animal as they did not claim ownership of her.
When compiling the SEC filings, SeaWorld’s accountants found it easier and simpler to state “SeaWorld has six orcas on loan with a third party” than “Six orcas are on display at a third party facility under a service and loan agreement.” The terminology required for an accounting report is not the same as required for a legal report.
SO WHO OWNS MORGAN?
Neither SeaWorld nor Loro Parque has ever claimed ownership of the whale. But the answer as to who actually owns her lies in plain sight within an April 19, 2017 article on the German website Zoosmedia-echo (“So lügt PETA über den Loro Parque” by Philipp J. Kroiß). In the article, both endorsed by Loro Parque and republished in Spanish on its park website under the title “Los 5 motivos que desenmascaran una campaña de soborno,” the piece states unequivocally:
„Orca-Mädchen Morgan wird nicht ausgewildert“
Das kann man nicht dem Loro Parque vorwerfen, denn das wurde von den höchsten gerichtlichen Instanzen der Niederlande, in deren Besitz Morgan ist, so entschieden.
Translated to English:
“The female orca Morgan cannot be reintroduced”
This cannot be blamed on Loro Parque, because that was decided by the highest judicial authorities in the Netherlands, which owns Morgan.
However, evidence to the contrary exists in a 2014 letter to Matthew Spiegl, attorney for the Free Morgan Foundation, from the then Minister of Agriculture for the Netherlands, Sharon A.M. Dijksma, which states:
I can inform you that . . . the Kingdom of the Netherlands is not the owner of orca Morgan, nor can I disclose to you who the owner is. In Dutch law the guiding principle is that the owner of a good is deemed to keep this private and as such is the owner. To determine who is the real owner of orca Morgan also depends on the intentions of and agreements made by the private parties involved in this case – Dolfinarium Harderwijk, Loro Parque and SeaWorld.
Can Morgan be bred at Loro Parque?
In documentation obtained by the Free Morgan Foundation, the only prohibitions specified in the cover letter are those related to commercial activity involving the whale. In fact, there are no prohibitions on breeding and the marked box on the EU permit specifically states that she is “to be used for the advancement of science/breeding or propagation/research or education or other non-detrimental purposes.”
How does one involve her in shows without having them considered commercial entertainment and how does one breed her? It could be argued that performances are a form of enrichment. It could also be argued that the attendance increase at Loro Parque was negligible upon the introduction of Morgan, so she would not have been used as a commercial draw to increase revenue.
As for breeding, it could certainly be done under the auspices of “research.” However, cross-breeding two distinct ecotypes in this day and age simply to research orca pregnancy makes as much sense as sticking a number of Icelandic orcas or Russian belugas in the earthquake, wildfire, tsunami, and toxic-spill prone coast of Western Canada (more on that in an upcoming blog post covering sanctuaries).
A number of people I spoke with alluded that the disagreement over the Service and Loan Agreement arose over SeaWorld’s decision to ban breeding. Had Morgan bred with a SeaWorld orca, by the original provisions of the agreement, the offspring would be the property of SeaWorld. Although there’s no indication the provisions of the agreement were altered over the years, it’s certainly possible that it was, especially when one considers the provision in the agreement of Anheuser Busch being the official beer supplier to Loro Parque, which no longer would need to be in effect once InBev (which had purchased AB) sold the parks to Blackstone.
There’s another potential precedent which, had it been applied to Loro Parque’s agreement, would allow the Spanish park to take ownership of every other calf. This was the final version of an arrangement that Augustus Busch III formulated with John Holer for a breeding loan between SeaWorld to Marineland.
Finally, Loro Parque’s recent blog post against the French government’s ban on breeding captive dolphins and orcas certainly fuels speculation that a breeding program may have been in the works between the Spanish park and Marineland Antibes.
Times are certainly changing and the era of the Manly Men is coming to an end in the West. But don’t fret. A new breed of Manly Men is emerging in Russia and China, taking their parks to extremes their Western counterparts couldn’t even imagine.
NOTE: All court documents linked to this blog post regarding SeaWorld have been made publicly available by the overseeing federal courts and were accessed legally and through proper channels via the US Courts PACER service. Sources for all other linked documentation to this blog have been properly credited.