The fundamental question of who owns Morgan lies in the Latin phrase “Res nullius” which literally translates to ‘nobody’s thing’. An example that is often quoted is wildlife, which is a category that Morgan clearly fell into when she was captured off the coast of the Netherlands, by Dolfinarium Harderwijk.
Sale of Morgan to SeaWorld
In November 2015, the Free Morgan Foundation (FMF) published its white paper on whale laundering. Throughout the white paper, we provided a detailed account of how Dolfinarium Harderwijk, SeaWorld and Loro Parque acted together and illicitly engaged in undisclosed commercial transactions which resulted in the transfer of ownership of Morgan to SeaWorld as part of a Loan Agreement between SeaWorld and Loro Parque.
Our proof came directly from SeaWorld, which made the following statement of fact concerning the Loan Agreement to the United States Government Securities and Exchange Commission (SEC), with respect to both SeaWorld’s ownership, purpose and the commercial nature for loaning the orca (killer whales) to Loro Parque:
“Six of these killer whales are presently on loan to a third party pursuant to an agreement entered into in February 2004. Pursuant to this agreement, we receive an annual fee, which is not material to our results of operations. In addition to generating incremental revenue for our business, the agreement provides for additional housing capacity for our killer whales. The agreement expires in 2031 and is renewable at the option of the parties.” (SeaWorld Form S-1/A SEC filing, 2 April 2014)
On 7 November 2017, SeaWorld filed new documents (10-Q Quarterly Report) with the SEC which revealed that SeaWorld had transferred ownership of the 6 killer whales held at Loro Parque (including Morgan), to Loro Parque:
“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.” (SeaWorld Form 8-K EX-99.1 SEC filing 7 November 2017)
In a series of subsequent statements and press releases by representatives of SeaWorld and Loro Parque, both parties confirmed that Loro Parque and SeaWorld had engaged in a ‘sale’ of orca Morgan ‘for primarily commercial purposes’ (as defined in Article 2 of Council Regulation (EC) 338/97).
Morgan Pregnant – prompting sale to Loro Parque
On 5 December 2017, Loro Parque issued a formal announcement that orca Morgan was pregnant.
In two separate news articles that followed (published in The Netherlands and USA) SeaWorld and Loro Parque representatives confirm the “sale” of orca Morgan (SeaWorld transfer of ownership) to Loro Parque. Morgan’s pregnancy as a result of unauthorized breeding is also confirmed by Dr. Javier Almunia, director for environmental affairs of Loro Parque Foundation.
Most notably. Dr. Almunia states that Morgan is believed to be 5 to 6 months pregnant:
National Geographic NL 9 December 2017
“De copulatie heeft buiten ons zicht plaatsgevonden, geheel spontaan. Een ongelukje dus. Pas na de bevalling kunnen we via DNA-onderzoek nagaan welke van de twee volwassen mannetjes (Keto en Tekoa) de vader van het kalf is. . . Morgan is inmiddels “vijf à zes maanden” drachtig, zegt Almunia.”
Translation: [The copulation took place out of our sight, entirely spontaneously. An accident. It is only after the delivery that we can check through DNA testing which of the two adult males (Keto and Tekoa) is the father of the calf. . . Morgan is now pregnant for “five to six months” says Almunia.]
Tampa Bay Times 19 December 2017
“On the Spanish island of Tenerife, SeaWorld last month surrendered six killer whales that had been on loan to Loro Parque after the zoo’s president, Wolfgang Kiessling, publicly opposed the breeding ban. SeaWorld vaguely referenced the transfer in its Nov. 7 financial report. . .
. . . Javier Almunia, director for environmental affairs of Loro Parque Foundation, confirmed to the Times on Wednesday that Morgan was impregnated by one of the two original SeaWorld males at the park.
SeaWorld spokesman Travis Claytor said the transfer decision was made “before anyone knew their orca was pregnant,” but declined to answer when Morgan was bred and when the transfer was effective . . .”
Although SeaWorld and Loro Parque publicly stated on 7 November 2017 that the Loan Agreement entered into in 2004 has been terminated and/or modified, neither party has specified the exact date. Furthermore, neither party has provided a definitive date for Morgan’s conception.
As part of the timeline of events, it is worth noting that in a court hearing held in Tenerife, Canary Islands, on 9th October 2017, Dr Javier Almunia, under oath, was asked if any of the orcas at Loro Parque were pregnant and he replied “No, not that I know of”. The head orca trainer, Rafael Sanchez, also under oath at the same hearing responded with a resounding “No”. Yet, four weeks later, as described above, Loro Parque announced the news of Morgan’s pregnancy , claiming the pregnancy was “five or six months” along (i.e., Morgan conceived in June or July 2017).
However, Morgan’s medical records, if properly kept, would reveal the date of conception which could then be measured against the date SeaWorld and Loro Parque allegedly ended their agreement and transferred ownership of the orca to Loro Parque.
The establishment of this timeline is crucial in order to ascertain the culpability of the parties at various stages of the infringements. It would also help to unravel the breakdown of the ‘res nullius‘ status for Morgan.