FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARRY BOWOTO; BASSEY JEJE; OLA 

OYINBO; BAYO OYINBO; DEJI

OYINBO; MARGARET IROWARINUN;

ROSELINE IROWARINUN; MARY

IROWARINUN; BOSUWO SEBI

IROWARINUN; CALEB IROWARINUN;

ORIOYE LALTU IROWARINUN;

TEMILOLA IROWARINUN; ADEGORYE

OLORUNTIMJEHUM IROWARINUN; No. 09-15641

AMINORA JAMES IROWARINUN; D.C. No.

ENIESORO IROWARINUN; GBENGA  3:99-cv-02506-SI

IROWARINUN; IBIMISAN IROWARINUN;

MONOTUTEGHA IROWARINUN; OPINION

OLAMISBODE IROWARINUN,

Plaintiffs-Appellants,

v.

CHEVRON CORPORATION; CHEVRON

INVESTMENTS, INC.; CHEVRON

U.S.A., INC.,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted

June 14, 2010—San Francisco, California

Filed September 10, 2010

13889
Before: Mary M. Schroeder and Jay S. Bybee,

Circuit Judges, and Owen M. Panner,*

District Judge.

Opinion by Judge Schroeder;

Concurrence by Judge Panner

*The Honorable Owen M. Panner, Senior United States District Judge

for the District of Oregon, sitting by designation. 

13890 BOWOTO v. CHEVRON CORPORATION
COUNSEL

Theresa M. Traber, Pasadena, California, for plaintiffsappellants Larry Bowoto, et al.

Craig E. Stewart, San Francisco, California, for defendantsappellees Chevron Corporation et al.

OPINION

SCHROEDER, Circuit Judge:

INTRODUCTION

This case arises from a violent episode that occurred on the

Parabe oil platform nine miles off the coast of Nigeria in

BOWOTO v. CHEVRON CORPORATION 13893
1998. The platform was operated by Chevron Nigeria Limited

(“CNL”), a subsidiary of the world oil giant. On May 25,

1998, over 100 native Nigerians took over the Parabe platform to protest CNL’s destruction of the environment and

refusal to provide jobs to the local population. The parties

here dispute whether the protest was peaceful. There is no dispute, however, that, after the protest entered its fourth day,

CNL sought the assistance of the Nigerian Government

Security Forces (“GSF”) to end the protest. When the GSF

soldiers arrived on the platform, they shot a number of the

protestors, killing two.

In 1999, the injured protestors and family of a deceased

protestor filed a lawsuit in the Northern District of California

against three American-based Chevron companies

(“Chevron”), raising a number of claims related to the GSF

raid of the Parabe platform. After ten years of pretrial litigation and discovery, the claims of Larry Bowoto, Bassey Jeje,

and the families of Arolika Irowarinun and Bola Oyinbo (collectively “Plaintiffs”) were tried before a jury. These plaintiffs

brought claims under the Alien Tort Statute (“ATS”), Nigerian law, and California law. The jury rendered a verdict in

favor of Chevron on all claims, and Plaintiffs now appeal.

This appeal raises challenges principally to the jury instructions and the district court’s evidentiary rulings. We find no

abuse of discretion in the district court’s decisions admitting

the pieces of challenged evidence. We also find no error in the

jury instructions provided.

There are only two legal issues in this appeal, both relating

to statutes Congress adopted to incorporate principles of international law. The first issue is whether the federal Death on

the High Seas Act (“DOHSA”) preempts wrongful death and

survival claims brought under the ATS. The other legal issue

is whether corporations can be found liable under the Torture

Victim Protection Act (“TVPA”). We affirm the dismissal of

the ATS wrongful death and survival claims and agree with

13894 BOWOTO v. CHEVRON CORPORATION
the district court that Congress did not intend the TVPA to

apply to corporations. 

We therefore affirm the district court’s judgment.

BACKGROUND

In 1961, the Nigerian government entered into a joint venture with Chevron to harness the resources of the oil-rich

Niger Delta. The resulting company, CNL, has since opened

a number of oil fields and offshore platforms, extracting billions of dollars worth of oil from Nigeria. According to Plaintiffs, CNL’s success has provided little or no benefit to most

Nigerians. Rather, CNL has allegedly shown total disregard

for the environment, with oil spills wreaking havoc on local

water supplies and fisheries. 

In the mid-1990s a number of Nigerian tribes, seeking to

provide a unified front against CNL, joined forces and formed

a group called the Concerned Ilaje Citizens (“CIC”). CIC

sought to have CNL curb its environmental abuses, and to

provide more jobs to Nigerians. CNL, however, refused to

recognize or negotiate with CIC, and as a result, tensions

between the two escalated. CIC sought to get CNL’s attention

by staging a large protest, and chose CNL’s Parabe oil platform as the site. Plaintiffs claim that the protest was to be a

peaceful one, effectively a sit-in that would force CNL to recognize CIC’s concerns.

On May 25, 1998, over 100 members of CIC, including

Plaintiffs, traveled via canoes to the platform. What happened

over the next days is a matter of dispute. According to Plaintiffs, they came to the platform peacefully and unarmed, holding signs and singing. They claim the CNL workers, most of

whom were not Nigerian, allowed them onto the platform

without resistance, and that there were no tensions between

them and the workers throughout the protest. 

BOWOTO v. CHEVRON CORPORATION 13895
According to Chevron, the protestors were violent and

boisterous; some had brought weapons and attacked CNL

workers. Chevron also disputes the contention that the protestors and workers had an amicable relationship. To the contrary, Chevron contends its workers were being held hostage

and were told they could not leave under threat of violence.

CNL convened a crisis management team (“CMT”) to

monitor the situation on the platform, and sent a company

representative there in hopes of brokering a peaceful end to

the protest. According to Chevron, these negotiations were

unsuccessful, and the situation steadily became more volatile

on the platform. Faced with the failed negotiations and the

deteriorating conditions on the platform, CNL determined that

it had to take action to protect the welfare of its workers. On

the fourth day of the protest, CNL sought the assistance of the

GSF to rescue the workers and stop the protest. 

The GSF arrived on the platform via helicopter, opening

fire on the protestors shortly after landing. Several protestors

were injured, including Plaintiffs Bowoto and Jeje. Two died

as a result of their injuries, including Irowarinun. The GSF

arrested a number of protestors, and transported them to land

where they were allegedly tortured. Oyinbo was one of the

protestors arrested and allegedly tortured by the GSF. Oyinbo

died prior to trial for reasons not relevant here. 

In 1999, a number of CIC protestors who were injured in

the Parabe protest filed a lawsuit against Chevron for injuries

sustained during the incident. Plaintiffs ultimately did not pursue claims against CNL or any of the individuals involved in

the Parabe incident. Over the next decade, a series of pre-trial

rulings reduced the number of claims. 

The district court issued three pre-trial rulings that are challenged on appeal. First, in a published decision, the district

court held that DOHSA preempts the summary execution

claim brought under the ATS. Bowoto v. Chevron Corp., 557

13896 BOWOTO v. CHEVRON CORPORATION
F. Supp. 2d 1080, 1086-88 (N.D. Cal. 2008) (Bowoto I). The

court pointed to Supreme Court decisions holding that

DOHSA preempts claims and remedies brought under state

law and general maritime law. Id. at 1087. Relying on these

opinions, the court reasoned that DOHSA provides the exclusive remedy for wrongful deaths that occur on the high seas.

Id. at 1087-88. In a later unpublished order, the district court

employed similar reasoning to hold that DOHSA also preempts survival actions under the ATS. Bowoto v. Chevron

Corp., No. C 99-02506 SI, 2008 WL 2872624 (N.D. Cal. July

23, 2008).

In the final pre-trial decision at issue, the district court held

that Plaintiffs could not bring claims against Chevron under

the TVPA. Bowoto v. Chevron Corp., No. C 99-02506 SI,

2006 WL 2604591 (N.D. Cal. Aug. 22, 2006). The district

court observed that the statute permitted claims to be brought

only against “an individual” who committed torture. The district court reasoned that because Congress used the term “individual,” it did not intend for the TVPA to apply to

corporations. 

The primary claims at trial were common law actions for

negligence and intentional torts under California and Nigerian

law, along with international law claims brought under the

ATS. The trial lasted over five weeks, with testimony from a

total of 73 witnesses. Plaintiffs’ theory at trial was that the

Parabe protest was peaceful, and that CNL sought GSF assistance knowing the soldiers would violently attack the protestors. Plaintiffs further sought to impute CNL’s wrongful

conduct to Defendant Chevron. 

Chevron countered these allegations by portraying the

protestors as violent and unpredictable, and argued CNL

sought the assistance of the GSF as a last resort. Chevron further argued that the GSF fired on protestors in self-defense.

The jury found in favor of Chevron on all claims. Plaintiffs

have appealed.

BOWOTO v. CHEVRON CORPORATION 13897
I. The Plaintiffs May Not Pursue Claims Under the

Alien Tort Statute

Of the four victim Plaintiffs in this case, one died as a

result of the injuries suffered on the Parabe platform. The

family of this Plaintiff sought to raise a claim under the ATS

for summary execution, and also several survival claims

rooted in the ATS. The district court barred Plaintiffs from

presenting the summary execution and survival claims to the

jury, finding that DOHSA preempts ATS wrongful death and

survival claims. See 557 F. Supp. 2d at 1086-88. We affirm

the district court’s dismissal of the ATS claims.

[1] The Supreme Court more than a century ago held in

The Harrisburg, 119 U.S. 199 (1886), that maritime law did

not recognize a cause of action for wrongful death. Congress

repudiated this holding in 1920 with the passage of DOHSA,

in order to provide a remedy in admiralty “for wrongful

deaths more than three miles from shore.” Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618, 620 (1978). DOHSA creates the

cause of action for the decedent’s immediate family; it limits

recovery to pecuniary damages, eliminates any contributory

negligence bar to recovery, and preserves the ability to bring

claims under the law of another country. See 46 U.S.C.

§§ 30301-30308; see also Higginbotham, 436 U.S. at 620

(describing provisions of DOHSA). 

[2] Due to DOHSA’s comprehensive scope, the Supreme

Court has determined the Act displaces other remedies and

causes of action. In Higginbotham, the Court held that

DOHSA bars recovery of damages for loss of society under

maritime law. Id. at 623-24. The Court recognized that

DOSHA “does not address every issue of wrongful-death

law,” but stated that where the Act does speak to a topic,

courts were not free to “supplement” the remedies already

provided for in the statute. Id. at 625. The Court thus found

that because DOHSA does speak to the issue of damages by

13898 BOWOTO v. CHEVRON CORPORATION
limiting recovery to pecuniary loss, plaintiffs could not obtain

damages for loss of society under maritime law. Id. at 622-25.

In Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 232-

33 (1986), the Court held that DOHSA preempts state law

wrongful death statutes. The Court noted that in passing

DOHSA, Congress sought to create a uniform remedy for

deaths on the high seas, “an area where the federal interests

are primary,” and found that permitting concurrent state law

wrongful death suits would jeopardize that uniformity. Id. at

233. 

The Court later determined that DOHSA also preempts

maritime law survival claims. See Dooley v. Korean Air Lines

Co., Ltd., 524 U.S. 116, 122-24 (1998). The plaintiffs there

contended that DOHSA does not preempt such claims, arguing that the statute, which authorizes recovery for losses suffered by the decedent’s family, says nothing that would

preclude raising survival claims on the decedent’s behalf. Id.

at 123. The Court rejected this distinction, finding that by “authorizing only certain surviving relatives to recover damages,

and by limiting damages to the pecuniary losses sustained by

those relatives, Congress provided the exclusive recovery for

deaths that occur on the high seas.” Id. The Court went on to

hold that “[b]ecause Congress has chosen not to authorize a

survival action for a decedent’s pre-death pain and suffering,

there can be no general maritime survival action for such

damages.” Id. at 124. The Court has thus, in a series of cases,

determined that DOHSA should be construed according to its

terms to provide the remedy under United States law for

deaths occurring more than three miles from shore. 

[3] Against that backdrop, we first examine the district

court’s determination that DOHSA preempts all ATS wrongful death claims. We do not necessarily agree with the district

court’s determination that Higginbotham, Tallentire, and

Dooley foreclose the possibility of there ever being a cognizable ATS claim invoking principles of international law to

BOWOTO v. CHEVRON CORPORATION 13899
recover for a death at sea. As the Court stated in Higginbotham, DOHSA “does not address every issue of wrongfuldeath law.” 436 U.S. at 625. There may then be situations

where a plaintiff can simultaneously pursue claims under both

DOHSA and the ATS. See Sosa v. Alvarez-Machain, 542 U.S.

692, 720 (2004) (noting that claims arising out of acts of

piracy are recognized under the ATS). 

[4] With respect to Plaintiffs’ summary execution claim

under the ATS, however, whether and to what extent the district court may have erred is immaterial so long as the error

did not prejudice Plaintiffs. There could have been no prejudice if the jury would have found against Plaintiffs on this

claim in any event. See Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 691 (9th Cir. 2001) (finding that

a jury’s rejection of a sexual harassment claim made any error

in failing to instruct on intentional infliction of emotional distress harmless). The jury in this case squarely rejected a

wrongful death claim brought under Nigerian law that was

nearly identical to the summary execution claim Plaintiffs

contend the district court erroneously dismissed. The wrongful death claim under Nigerian law required Plaintiffs to

prove that “Irowarinun’s death was caused by a battery or

negligent act by Chevron Nigeria Ltd. and/or the Nigerian

Government Security Forces.” Summary execution would

have required, in material part, Plaintiffs to show that CNL

and/or GSF “committ[ed] a wrongful, tortious act in excess of

[their] authority over” Irowarinun that resulted in his death.

See Forti v. Suarez-Mason, 672 F. Supp. 1531, 1543 (N.D.

Cal. 1987) (describing a summary execution claim). Both

summary execution and wrongful death under Nigerian law

therefore require a showing that the decedent died due to the

wrongful conduct of the defendant. 

[5] We therefore conclude that even assuming the district

court erred in dismissing the summary execution claim, there

was no prejudice. This is because summary execution and

Nigerian wrongful death law “are predicated on the same

13900 BOWOTO v. CHEVRON CORPORATION
facts and similar legal inquiries,” so that the jury’s rejection

of the Nigerian law claim makes it “highly unlikely” that it

would have found in favor of Plaintiffs on a summary execution claim. See Tennison, 244 F.3d at 691. We further find

that any difference in the burden of proof between the ATS,

preponderance, and Nigerian law, beyond a reasonable doubt

standards, is immaterial under the circumstances of this case.

The jury rejected a total of 20 common law claims brought by

Plaintiffs under a variety of burdens of proof. There is no reason to believe the jury would have found a summary execution claim meritorious under any standard. We therefore

affirm the district court’s dismissal of the ATS claim for summary execution.

With respect to Plaintiffs’ ATS survival claims, we will not

similarly infer that the jury would have rejected these claims,

because Chevron has not shown that any claim presented to

and rejected by the jury was materially similar to the survival

claims. We must therefore decide whether DOHSA preempts

ATS survival claims, and for the following reasons we conclude it does.

The Supreme Court in Dooley held that DOHSA preempts

survival claims brought under maritime law. See 524 U.S. at

124. Plaintiffs do not dispute this point, but they argue Dooley

does not bar survival claims brought under other federal statutes such as the ATS. To resolve the issue, we look to the reasoning underlying Dooley’s holding. 

[6] The Court in Dooley looked to the precision with

which Congress defined the DOHSA remedy and to the legal

principle that a specific statute usually preempts more general

remedies. See id.; see also Hinck v. United States, 550 U.S.

501, 506 (2007) (stating that it is a “well-established principle, that in most contexts, a precisely drawn, detailed statute

pre-empts more general remedies”) (internal quotation marks

omitted). The Court described DOHSA as a “comprehensive”

statute that “expresses Congress’ considered judgment . . . on

BOWOTO v. CHEVRON CORPORATION 13901
the availability and contours of a survival action in cases of

death on the high seas.” Id. (internal quotation marks omitted). Dooley thus held that DOHSA preempts all survival

claims for deaths on the high seas unless there is clear indication that Congress intended otherwise. 

[7] There is no evidence that Congress intended ATS survival claims to remain viable after the passage of DOHSA. In

contrast to the comprehensive scope of DOHSA, the ATS is

only “a jurisdictional statute creating no new causes of

action.” See Sosa, 542 U.S. at 724. Unlike DOHSA, the ATS

does not speak to the issue of survival claims. This court did

not even recognize that survival claims were cognizable under

the ATS until 70 years after DOHSA’s passage. See Hilao v.

Estate of Marcos, 25 F.3d 1467, 1476 (9th Cir. 1994). We

thus hold that DOHSA provides Plaintiffs’ only available

means for raising survival claims. 

Plaintiffs point to the Jones Act and contend it undercuts

our conclusion. The Jones Act, as relevant here, allows the

family of a deceased seaman to pursue survival claims on his

behalf. See 46 U.S.C. § 30104. Both the Supreme Court and

this court have suggested that DOHSA does not preempt these

survival claims. See Dooley, 524 U.S. at 124; Davis v. Bender

Shipbuilding and Repair Co., Inc., 27 F.3d 426, 428 n.1 (9th

Cir. 1994) (“The heirs of a seaman who has died on the high

seas may pursue a claim under DOHSA or the Jones Act.”).

The distinction between the Jones Act and the ATS, however,

is that the Jones Act is itself a comprehensive statute that

addresses a specific issue in maritime law. See Miles v. Apex

Marine Corp., 498 U.S. 19, 29 (1990) (stating “the Jones Act

establishes a uniform system of seaman’s tort law”). Congress

passed DOHSA and the Jones Act in the same year in order

to provide parallel remedies for the damages a death caused

to the seaman’s family and to the estate. The statutes were

intended to repudiate totally the rule of The Harrisburg. See

Dooley, 524 U.S. at 124. It is evident that Congress intended

DOHSA and the Jones Act to work together. See Miles, 498

13902 BOWOTO v. CHEVRON CORPORATION
U.S. at 29 (referring to the Jones Act as DOHSA’s “companion statute”). There was no such intent with respect to

DOHSA and the ATS, enacted more than a century apart.

The Supreme Court’s decision in Kernan v. American

Dredging Co., 355 U.S. 426 (1958), forty years before Dooley, does not provide Plaintiffs much assistance. Kernan did

not involve DOHSA at all. It involved the relationship

between the Federal Employer’s Liability Act and the Jones

Act. See id. at 439. The Court there assumed, in passing, that

DOHSA would not preempt a state law survival claim. See id.

at 430 n.4 (“Presumably any claims, based on unseaworthiness, for damages accrued prior to the decedent’s death would

survive, at least if a pertinent state statute is effective to bring

about a survival of the seaman’s right.”). Dooley, however,

later squarely held that DOHSA provides the Plaintiffs’ sole

recourse for survival claims. 

[8] We therefore affirm the district court’s ruling dismissing the ATS claims arising from Irowarinun’s death.

II. The Torture Victim Protection Act Does Not Apply to

Corporations

[9] Congress passed the TVPA in 1992 “to carry out obligations of the United States under the United Nations Charter

and other international agreements pertaining to the protection

of human rights by establishing a civil action for recovery of

damages from an individual who engages in torture or extrajudicial killing.” Pub. L. No. 102-256, 106 Stat. 73 (1992)

(codified at 28 U.S.C. § 1350). The question in this appeal is

whether Congress intended to permit such civil actions

against corporations. We agree with the district court that it

did not, and hold that the plain language of the TVPA does

not allow for suits against a corporation. 

[10] We begin with the statutory language of the TVPA.

The TVPA’s liability provision provides that only an “individual” may be held liable under the Act; it states:

BOWOTO v. CHEVRON CORPORATION 13903
(a) Liability.—An individual who, under actual or

apparent authority, or color of law, of any foreign

nation—

(1) subjects an individual to torture shall, in

a civil action, be liable for damages to that

individual; or 

(2) subjects an individual to extrajudicial

killing shall, in a civil action, be liable for

damages to the individual’s legal representative, or to any person who may be a

claimant in an action for wrongful death. 

28 U.S.C. § 1350, note § 2(a). The district court here reasoned

that by extending liability only to “[a]n individual,” Congress

intended that only natural persons, and not corporations, could

be found liable under the Act. In so doing, the district court

adopted a position consistent with the majority of district

courts that have considered the issue. See, e.g., Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1026 (W.D. Wash.

2005); Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 28

(D.D.C. 2005); Mujica v. Occidental Petroleum Corp., 381 F.

Supp. 2d 1164, 1175-76 (C.D. Cal. 2005). But see Estate of

Rodriquez v. Drummond Co. Inc., 256 F. Supp. 2d 1250,

1266-67 (N.D. Ala. 2003) (finding corporations can be liable

under TVPA); Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d

1345, 1358-59 (S.D. Fla. 2003) (same). 

The district court’s decision did conflict with the one Circuit court to mention the issue. The 11th Circuit has said that

corporations can be found liable under the TVPA. See Aldana

v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250-

52 (11th Cir. 2005). It does not appear the defendants in that

case ever challenged the notion of corporate liability, however, and the Eleventh Circuit did not explain its reasoning on

the issue. See, e.g., Romero v. Drummond Co., Inc., 552 F.3d

1303, 1315 (11th Cir. 2008). 

13904 BOWOTO v. CHEVRON CORPORATION
[11] We agree with the district court that Congress’s use of

the word “individual” throughout the statute indicates that it

did not intend for the TVPA to apply to corporations. Indeed,

Congress has directed courts to presume the word “individual” in a statute refers to natural persons and not corporations.

In the Dictionary Act, Congress provided definitions for a

number of common statutory terms that courts are to apply

“unless the context indicates otherwise.” See 1 U.S.C. § 1.

One term defined is “person,” which the Dictionary Act

defines as being broader than a reference to an individual. The

Act defines “person” to include “corporations, companies,

associations, firms, partnerships, societies, and joint stock

companies, as well as individuals.” 1 U.S.C. § 1. The Dictionary Act therefore speaks of “corporations” and “individuals”

as distinct terms, and we must therefore presume those terms

have different meanings. See id.

Despite the presumption of the Dictionary Act, our court

has recognized that the use of the word individual in a statute

“does not necessarily exclude corporations.” See United

States v. Middleton, 231 F.3d 1207, 1210 (9th Cir. 2000). In

Middleton, this court looked to a statute that criminalized

hacking into the computer system of “one or more individuals.” Id. The court found that “individual” encompassed corporations because the statute used the words “individual” and

“person” interchangeably throughout, thus indicating that

Congress did not intend for the presumption of the Dictionary

Act to apply. Id. at 1211 (“Congress used ‘individuals’ and

‘person’ in a non-technical manner, without reference to the

Dictionary Act.”); see also Clinton v. City of New York, 524

U.S. 417, 429 (1998) (finding that “individual” as used in the

Line Item Veto Act included both natural persons and corporations).

[12] Here, in contrast, it is evident that Congress drafted

the TVPA in such a manner as to limit liability to natural persons. The TVPA consistently uses “individual” throughout the

statute to refer both to the torturer and the victim of torture.

BOWOTO v. CHEVRON CORPORATION 13905
See, e.g., 28 U.S.C. § 1350, note § 2(a) (“An individual who

. . . subjects an individual to torture.”). Corporations, of

course, cannot be tortured. See Middleton, 231 F.3d at 1211

(noting that “[c]orporations . . . cannot suffer physical injury”)

(internal quotation marks omitted). Plaintiffs ask us to give

the same word different meanings in the same statute. They

ask us to interpret “individual” to mean a natural person when

referring to the victim, but to mean either a natural person or

a corporation when referring to the torturer. This interpretation of the statute runs counter to the “normal rule of statutory

construction that identical words used in different parts of the

same act are intended to have the same meaning.” Commissioner v. Lundy, 516 U.S. 235, 250 (1996) (citation omitted).

There is no indication Congress intended “individual” to have

a variety of meanings throughout the TVPA.

Indeed, the legislative history demonstrates that Congress

rejected the notion of corporate liability. When first introduced in 1987, the TVPA imposed liability on any “person”

who subjected another to torture. See The Torture Victim Protection Act: Hearing and Markup before the H. Comm. on

Foreign Affairs on H.R. 1417, 100th Cong. 82, 85 (1988). The

House Foreign Affairs Committee amended the bill to substitute “individual” for “person” in order to “make it clear [they

were] applying [the Act] to individuals and not to corporations.” Id. When introduced five years later, the TVPA still

spoke of liability for individuals. 

[13] Neither the Senate nor House report, moreover, even

hint at corporate liability. See The Torture Victim Protection

Act of 1991, S. Rep. 102-249 (1991); Torture Victim Protection Act of 1991, H.R. Rep. 102-367 (1991). Had Congress

intended for the court to interpret the term “individual” so

broadly as to include corporations, it would have included

some evidence of this intent in the legislative history. See In

re Goodman, 991 F.2d 613, 619 (9th Cir. 1993) (finding “individual” as used in a statute did not include corporations

because there was “no legislative history showing that the

13906 BOWOTO v. CHEVRON CORPORATION
section was meant to apply to” corporations) (citation omitted). We thus conclude that both the text and legislative history indicate Congress did not intend to allow suits against

corporations under the TVPA. 

Plaintiffs offer an alternative argument that they may sue

Chevron under the TVPA upon a theory of “aiding and abetting.” Plaintiffs contend that corporations can be found vicariously liable for torture they direct individuals to commit. The

TVPA, however, does not contemplate such liability. It limits

liability to “[a]n individual” who subjects another to torture.

See 28 U.S.C. § 1350, note § 2(a). Even assuming the TVPA

permits some form of vicarious liability, the text limits such

liability to individuals, meaning in this statute, natural persons. The language of the statute thus does not permit corporate liability under any theory. 

[14] We therefore affirm the district court’s ruling that the

TVPA does not apply to corporations.

III. Challenges to Jury Instructions

Plaintiffs raise a series of challenges to the jury instructions, arguing first that the battery instruction incorrectly allocated the burden of proof on a key element, and second that

the instructions pertaining to affirmative defenses misstated

the law. We review each argument in turn and affirm.

Battery

Plaintiffs tried their battery claims to the jury under both

Nigerian and California law. The district court provided a

single jury instruction for battery after determining that Nigerian and California law on this tort was the same. This instruction required Plaintiffs to prove the elements of common law

battery, and additionally gave them the burden of demonstrating the GSF used unreasonable force. Plaintiffs here challenge

this instruction and argue that under both Nigerian and CaliBOWOTO v. CHEVRON CORPORATION 13907
fornia law, Chevron should have had to prove reasonable

force as an affirmative defense. 

To support their challenge under Nigerian law, Plaintiffs

would have us rely on the English Court of Appeal’s decision

in Ashley v. The Chief Constable of Sussex Police, [2006]

EWCA (Civ) 1085, [20]-[28], for the proposition that plaintiffs trying a civil battery claim are never required to show

unreasonable force as a part of their prima facie case. But

even if we were to agree with Plaintiffs that Ashley supports

their position, Plaintiffs concede that English cases carry only

persuasive weight in Nigerian courts. 

[15] Chevron relies on the Nigerian Supreme Court’s decision in Okuarume v. Obabokor, [1965] N.S.C.C. 286, 287

(S.C.), and we agree that it is more authoritative. In

Okuarume, the Nigerian court held that both civil and criminal battery require that the plaintiff/prosecution prove the

charge beyond a reasonable doubt. See id. In so doing, the

court stated there was a policy in Nigerian courts of applying

the same standard to civil and criminal battery in order to

avoid the situation where “a person who alleges that he was

assaulted might fail to prove the assault in a criminal prosecution and yet obtain judgment in civil proceedings.” Id. In

criminal battery cases under Nigerian law the prosecution has

the burden of proving unreasonable force. See Criminal Code

Act, (1990) Cap. 77, §§ 252-253 (Nigeria). Under Okuarume,

therefore, it remained Plaintiffs’ burden to prove that the GSF

used unreasonable force during the Parabe raid. We find no

error in the Nigerian law battery instruction.

With respect to the California law battery instruction,

Plaintiffs waived any claim of error because they never

offered an instruction on the key issue. Under California law,

a plaintiff bringing a battery claim against a law enforcement

official has the burden of proving the officer used unreasonable force. See Edson v. City of Anaheim, 74 Cal. Rptr. 2d

614, 615-17 (Ct. App. 1998); see also Saman v. Robbins, 173

13908 BOWOTO v. CHEVRON CORPORATION
F.3d 1150, 1157 n.6 (9th Cir. 1999) (“A prima facie case for

battery is not established under California law unless the

plaintiff proves that an officer used unreasonable force against

him to make a lawful arrest or detention.”). Therefore if the

GSF was acting in a law enforcement capacity, California law

would require that Plaintiffs show it used unreasonable force.

Plaintiffs contend the GSF did not act as a government sanctioned law enforcement organization in stopping the protest,

but rather as CNL’s private security company. Plaintiffs then

argue that it was for the jury — not the district court — to

decide the factual question of whether the GSF was a government or private force, and thus decide which party had the

burden on the reasonableness of force issue. 

Plaintiffs’ argument fails because in district court they

never offered any jury instruction on the issue. See EEOC v.

Pape Lift, Inc., 115 F.3d 676, 683 (9th Cir. 1997) (finding that

a party waived an argument for which it did not request a jury

instruction). Plaintiffs did argue to the district court that it was

inappropriate to assume the GSF acted in a law enforcement

capacity at Parabe, but they never proposed an instruction that

would have allowed the jury to decide this question. Plaintiffs

cannot now claim the district court erred by not providing an

instruction they never offered. See id. The argument they now

urge on appeal has been waived.

Affirmative Defenses

Plaintiffs raise several claims of error with respect to the

“Privileges, Duties, and Defenses” section in the jury instructions. These instructions listed a series of affirmative defenses

to Plaintiffs’ negligence claims that shielded Chevron from

liability if the jury determined that CNL sought GSF assistance because of a reasonable belief that the Parabe protestors

were engaged in criminal activity. 

[16] Plaintiffs first claim that, under Nigerian law, a party

reporting criminal activity is liable for any wrongful conduct

BOWOTO v. CHEVRON CORPORATION 13909
the government commits in stopping the alleged crime. This

argument, however, was rejected in Ezeadukwa v. Maduka,

[1997] 8 N.W.L.R. 635 (C.A.), where a Nigerian appellate

court stated that “liability does not attach to a private citizen

who merely names a suspect” to the police. Plaintiffs next

argue the wording of the affirmative defense instruction

allowed the jury to find in favor of Chevron even if CNL

played a “direct role” in the GSF’s alleged torts. But the challenged instruction made clear that Chevron could not “be liable merely for [CNL’s] reporting [criminal] activity to the

Nigerian authorities.” 

Finally, plaintiffs are finally incorrect that the affirmative

defense instruction suggested Plaintiffs had the burden to

negate certain elements of Chevron’s affirmative defenses.

The instruction clearly required Chevron to prove all of the

listed elements in order for the defenses to apply. 

[17] We find no error with any of the jury instructions. 

IV. Plaintiffs’ Evidentiary Challenges

Plaintiffs raise four evidentiary challenges, claiming the

district court admitted irrelevant and unfairly prejudicial evidence in violation of Federal Rules of Evidence 401 and 403.

Plaintiffs first challenge the admission of the testimony of

the captain of a CNL tugboat tethered to the Parabe platform

during the protest. He testified that after the GSF commenced

the raid on the platform, a group of CIC protestors kidnaped

him and his crew and held them hostage on shore for several

days. The district court overruled Plaintiffs’ objection to this

testimony, finding that it rebutted Plaintiffs’ position that the

protestors did not act violently towards CNL workers. 

[18] The district court did not abuse its discretion in admitting this testimony because Plaintiffs opened the door to evidence of the tug kidnaping incident. During opening

13910 BOWOTO v. CHEVRON CORPORATION
statement, counsel for Plaintiffs referred to the tug kidnaping,

characterizing the event as a desperate attempt of some protestors to elude the GSF violence. This reference, likely

designed to “pull the sting” of the captain’s anticipated testimony, provided a non-sinister motive for the actions of the

protestors for the jury to consider as it heard Chevron’s version of the incident. The present challenge is therefore precluded because “a party introducing evidence cannot

complain on appeal that the evidence was erroneously admitted.” Ohler v. United States, 529 U.S. 753, 755 (2000); see

also United States v. Chavez, 229 F.3d 946, 952 (10th Cir.

2000) (“It is widely recognized that a party who raises a subject in an opening statement ‘opens the door’ to admission of

evidence on that same subject by the opposing party.”). 

[19] Plaintiffs next claim the admission of a series of photographs showing a CIC protestor using a machete to kill a

sea turtle at some point during the protest was irrelevant and

unfairly prejudicial. Yet, plaintiffs put a number of witnesses

on the stand who consistently testified that they saw no weapons or other indications that the CIC protestors were violent.

These photographs of a protestor holding a large machete

were relevant in that they undercut Plaintiffs’ version of

events. See United States v. Terry, 760 F.2d 939, 943-44 (9th

Cir. 1985) (noting that evidence is relevant if it undercuts the

testimony of a witness from the opposing side). The district

court did not abuse its discretion in allowing Chevron to rebut

Plaintiffs’ story on a key issue.

Plaintiffs’ third evidentiary challenge pertains to the testimony of CNL employees John Stapleton and Randall Hervey.

Hervey testified to information about the protesters’ conduct

that he obtained from Stapleton and then conveyed to the

Chevron CMT. The district court admitted this testimony subject to the limiting instruction that the jury was to consider

this evidence only to show what information CNL decision

makers had when CNL decided to call in the GSF. 

BOWOTO v. CHEVRON CORPORATION 13911
[20] Plaintiffs contend the testimony was irrelevant

because there was no evidence that the CNL employee who

made the final decision to call in the GSF relied on information from either witness. This argument is not supported by

the record. Stapleton indicated at several points in his testimony that he passed to Hervey information he received from

the platform. Hervey in turn testified that he discussed this

information at CMT meetings that Davis attended. Davis, for

his part, testified that he considered Hervey one of his “principal sources” of information during the protest. The testimony

at trial demonstrates that the information Stapleton obtained

from the platform was relied on to some extent by Davis

when he called in the GSF. There was no abuse of discretion.

[21] Plaintiffs additionally challenge the admission of a

portion of the testimony of the CNL employee who was sent

to negotiate with CIC leaders and whose testimony referred to

four instances where local Nigerians had kidnaped CNL

employees. The district court issued a limiting instruction

stating that the reference to the four kidnapings could only be

considered to show the employee’s state of mind during negotiations. The testimony was relevant because his determination that negotiations had failed was instrumental in CNL’s

decision to seek GSF assistance. The testimony that he was

afraid that he would be kidnaped provided context for his

assessment of the status of negotiations. The district court was

within its discretion in admitting this testimony.

[22] Plaintiffs finally argue that the district court erred by

failing to provide a detailed explanation as part of each challenged ruling, of why the evidence was not unfairly prejudicial. The district court, however, was not required to engage

“in a mechanical recitation of Rule 403’s formula on the

record . . . [a]s long as it appears from the record as a whole

that the trial judge adequately weighed the probative value

and prejudicial effect of proffered evidence before its admission.” United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir.

1978). The record here indicates the district court was well

13912 BOWOTO v. CHEVRON CORPORATION
aware of Rule 403 and the factors it requires to be weighed.

Plaintiffs’ objections in district court to the challenged evidence all raised the issue of prejudice. For that reason, Rule

403 must have “figured crucially in the court’s mind.” United

States v. Verduzco, 373 F.3d 1022, 1030 n.2 (9th Cir. 2004)

(finding district court did not err in admitting evidence even

though it did not explicitly balance Rule 403 factors). We

cannot accept Plaintiffs’ argument that the experienced trial

judge in this case overlooked the Federal Rules of Evidence.

CONCLUSION

The judgment of the district court is AFFIRMED.

PANNER, District Judge, concurring:

I am pleased to concur in the excellent, well-reasoned opinion of the court. I write separately to express the view that we

are deciding only DOHSA’s preemptive effect on the survival

claims brought here under the ATS. 

BOWOTO v. CHEVRON CORPORATION 13913