COSCO BUSAN: CRIMINALISATION OF PILOTS IS CONFIRMED!

September 10th, 2009 by JCB
Posted in Articles, Features, Incidents & Investigations | No Comments »

In the April issue’s editorial I expressed concern over the fact that the pilot of the Cosco Busan, John cota, had been charged with and had pleaded guilty to causing pollution. In pleading guilty to the pollution charge, John Cota’s case was used as a test case for the Oil Spill Act passed following the 1989 Exxon Valdez disaster and the prosecutors were therefore determined to ensure that John cota received the maximum penalty of 10 month’s in prison.

In contrast, The National Transportation Safety Board (NTSB) report, which has now been published, provides a very detailed account (161 pages!) of the events leading up to the incident and reveals that John Cota’s error was compounded by failures of the bridge team and the failure of the VTS to provide support at a critical time. Although the report catalogues “Human element” failures, in my opinion it doesn’t identify any actions which could be identified as criminally negligent. It is therefore all the more worrying that in sentencing John Cota to prison, the prosecutors have set a precedent that will encourage other legal teams around the world to criminalise the pilot.

The following analysis is extracted from the NTSB report and press reports from the trial but the opinions expressed in it are my personal views.

Cosco Busan pic

The Cosco Busan after the allision with the Bay Bridge. Photo: NTSB

SUMMARY

On Wednesday, November 7, 2007, about 0830 Pacific standard time, the Hong Kong registered, 901-foot-long containership M/V Cosco Busan allided with the fendering system at the base of the Delta tower of the San Francisco–Oakland Bay Bridge. The ship was outbound from berth 56 in the Port of Oakland, California, and was destined for Busan, South Korea. Contact with the bridge tower created a 212-foot-long by 10-foot-high by 8-foot-deep gash in the forward port side of the ship and breached the Nos. 3 and 4 port fuel tanks and the No. 2 port ballast tank. As a result of the breached fuel tanks, about 53,500 gallons of fuel oil were released into San Francisco Bay. No injuries or fatalities resulted from the accident, but the fuel spill contaminated about 26 miles of shoreline, killed more than 2,500 birds of about 50 species, temporarily closed a fishery on the bay, and delayed the start of the crab-fishing season. Total monetary damages were estimated to be $2.1 million for the ship, $1.5 million for the bridge, and more than $70 million for environmental cleanup. The National Transportation Safety Board determines that the probable cause of the allision of the Cosco Busan with the San Francisco–Oakland Bay Bridge was the failure to safely navigate the vessel in restricted visibility as a result of (1) the pilot’s degraded cognitive performance from his use of impairing prescription medications, (2) the absence of a comprehensive pre-departure master/pilot exchange and a lack of effective communication between the pilot and the master during the accident voyage, and (3) the master’s ineffective oversight of the pilot’s performance and the vessel’s progress. Contributing to the accident was the failure of Fleet Management Ltd. to adequately train the Cosco Busan crewmembers before their initial voyage on the vessel, which included a failure to ensure that the crew understood and complied with the company’s safety management system. Also contributing to the accident was the U.S. Coast Guard’s failure to provide adequate medical oversight of the pilot in view of the medical and medication information that the pilot had reported to the Coast Guard.

NTSB CONCLUSIONS

1. The following were neither causal nor contributory to the accident: wind and current; the vessel propulsion and steering systems; the bridge navigation systems; bridge team response to orders; vessel harbor traffic; navigation aids, including the RACON at the center of the Delta–Echo span; maintenance of a proper lookout; pilot training and experience; and vessel traffic service equipment and operational capability.

2. The California Department of Transportation’s assessment of damage to the San Francisco– Oakland Bay Bridge following the allision was timely and appropriate.

3. The California Department of Transportation’s decision to allow the bridge to remain open to traffic after the allision was appropriate.

4. In this accident, the bridge tower fendering system worked as intended to protect the pier structure and to limit damage to the striking vessel to the area above the waterline.

5. The pilot’s order for hard port rudder at the time of the allision was appropriate and possibly limited the damage to the vessel and the bridge fendering system.

6. Although the pilot had been diagnosed with sleep apnea, he was being treated for the condition, and there was no evidence that he was sleep-deprived at the time of the accident.

7. As evidenced by his prescription history and duty schedule, the pilot was most likely taking a number of medications, the types and dosages of which would be expected to degrade cognitive performance, and these effects were present while the pilot was performing piloting duties, including on the day of the accident.

8. The Cosco Busan pilot, at the time of the allision, experienced reduced cognitive function that affected his ability to interpret data and that degraded his ability to safely pilot the ship under the prevailing conditions, as evidenced by a number of navigational errors that he committed.

9. The pilot and the master of the Cosco Busan failed to engage in a comprehensive master/pilot information exchange before the ship departed the dock and failed to establish and maintain effective communication during the accident voyage, with the result that they were unable to effectively carry out their respective navigation and command responsibilities.

10. The master of the Cosco Busan did not implement several procedures found in the company safety management system related to safe vessel operations, which placed the vessel, the crew, and the environment at risk.

11. The interactions between the pilot and the master on the day of the allision were likely influenced by a disparity in experience between the pilot and the master in navigating the San Francisco Bay and by cultural differences that made the master reluctant to assert authority over the pilot.

12. Because the Cosco Busan master was the only crewmember to have been drug tested in a timely manner, no conclusive evidence exists as to whether the use of illegal drugs by the other crewmembers played a role in the accident.

13. Vessel Traffic Service San Francisco personnel, in the minutes before the allision, provided the pilot with incorrect navigational information that may have confused him about the vessel’s heading.

14. Vessel traffic service communications that identify the vessel, not only the pilot, would enhance the ability of vessel masters and crew to monitor and comprehend vessel traffic service communications.

15. Although Vessel Traffic Service San Francisco personnel should have provided the pilot and the master with unambiguous information about the vessel’s proximity to the Delta tower, the Safety Board could not determine whether such information, had it been provided, would have prevented the allision.

16. The lack of U.S. Coast Guard guidance on the use of vessel traffic service authority limited the ability of Vessel Traffic Service San Francisco personnel to exercise their authority to control or direct vessel movement to minimize risk.

17. Even though the pilot’s personal physician, who prescribed the majority of medications to the pilot, was aware of the pilot’s occupation and his medical history, including his documented history of alcohol dependence, he continued to inappropriately prescribe medications that, either individually or in concert, had a high likelihood of adversely affecting the pilot’s job performance.

18. Although the pilot did not disclose to the physician who conducted his January 2007 medical evaluation all of his medical conditions or medication use, as he was required to do, the physician exercised poor medical oversight on behalf of the California Board of Pilot Commissioners by finding the pilot fit for duty despite having collected sufficient information regarding his multiple medical conditions and medications to call into question his ability to perform his piloting duties safely.

19. Although the pilot did not disclose to the U.S. Coast Guard and the California Board of Pilot Commissioners all of his medical conditions or medication use, as he was required to do, the information he did provide should have been sufficient to prompt the Coast Guard, at a minimum, to conduct additional review of the pilot’s fitness for duty.

20. The U.S. Coast Guard, which had the ultimate responsibility for determining the pilot’s medical qualification for retaining his merchant mariner’s license, should not have allowed the pilot to continue his duties because the pilot was not medically fit.

21. The U.S. Coast Guard’s system of medical oversight of mariners continues to be deficient in that it lacks a requirement for mariners to report changes in their medical status between medical evaluations.

22. Fleet Management Ltd. had failed to adequately train the Cosco Busan crewmembers, who were new to the vessel, who had not worked together previously, and who for the most part were new to the company, and this failure contributed to deficient bridge team performance on the day of the accident.

23. Providing a safety management system manual to the Cosco Busan crew only in English and not also in the vessel’s working language limited the crewmembers’ ability to review and follow the SMS.

24. Fleet Management had not successfully instilled in the Cosco Busan master and crew the importance of following all company safety management system procedures.

25. The failure of the U.S. Coast Guard and the California Department of Fish and Game’s Office of Spill Prevention and Response to quickly quantify and relay an accurate estimate of the quantity of oil spilled to the Unified Command did not affect the overall on-water recovery effort in this accident.

26. The Federal on-scene coordinator failed to aggressively use the resources available to him to obtain timely and accurate information about the extent of the spill in order to fulfill his responsibilities.

27. Effective communication regarding response activities was established and maintained between the oil spill response organizations, the qualified individual, the U.S. Coast Guard, and the Unified Command on the day of the accident.

28. The designated oil spill response organizations’ level of response to the Cosco Busan fuel oil spill was timely and effective.

29. A mechanism for the collection and regular communication among pilot oversight organizations of pilot-related performance data and information regarding pilot oversight and best practices would enhance the ability of those organizations to effectively oversee pilots.

30. Recently implemented international regulations with regard to the protection of fuel oil tanks on nontank vessels will, over time, reduce the likelihood of oil spills in mishaps such as occurred with the Cosco Busan.

Probable Cause

The National Transportation Safety Board determines that the probable cause of the allision of the Cosco Busan with the San Francisco–Oakland Bay Bridge was the failure to safely navigate the vessel in restricted visibility as a result of (1) the pilot’s degraded cognitive performance from his use of impairing prescription medications, (2) the absence of a comprehensive pre-departure master/pilot exchange and a lack of effective communication between the pilot and the master during the accident voyage, and (3) the master’s ineffective oversight of the pilot’s performance and the vessel’s progress. Contributing to the accident was the failure of Fleet Management Ltd. to adequately train the Cosco Busan crewmembers before the accident voyage, which included a failure to ensure that the crew understood and complied with the company’s safety management system. Also contributing to the accident was the U.S. Coast Guard’s failure to provide adequate medical oversight of the pilot in view of the medical and medication information that the pilot had reported to the Coast Guard.

NTSB Recommendations

To the U.S. Coast Guard:
Propose to the International Maritime Organization that it include a segment on cultural and language differences and their possible influence on mariner performance in its bridge resource management curricula.
Revise your vessel traffic service policies to ensure that vessel traffic service communications identify the vessel, not only the pilot, when vessels operate in pilotage waters.
Provide Coast Guard-wide guidance to vessel traffic service personnel that clearly defines expectations for the use of existing authority to direct or control vessel movement when such action is justified in the interest of safety.
Require mariners to report to the Coast Guard, in a timely manner, any substantive changes in their medical status or medication use that occur between required medical evaluations.
Establish a mechanism through which representatives of pilot oversight organisations collect and regularly communicate pilot performance data and information regarding pilot oversight and best practices.

To Fleet Management Ltd.:

When assigning a new crew to a vessel, ensure that all crewmembers are thoroughly familiar with vessel operations and company safety procedures before the vessel departs the port.
Provide safety management system manuals that are in the working language of a vessel’s crew.

To the American Pilots’ Association:

Inform your members of the circumstances of this accident, remind them that a pilot card is only a supplement to a verbal master/pilot exchange, and encourage your pilots to include vessel masters and/or the officer in charge of the navigational watch in all discussions and decisions regarding vessel navigation in pilotage waters.

In view of all the factors analysed in the report it is a seriously alarming development that the pilot has been held solely responsible and condemned as a criminal. As a pilot with 27 years experience some factor evidently caused him to lose situational awareness at a critical point. The medication that he was taking seems to have been a factor in the loss of situational awareness but did this represent a criminal act? I am no legal expert but I don’t believe that this case should ever have come anywhere near a criminal court. Compare John Cota’s actions with that of a driver of an HGV in Alaska in 2002 whose vehicle collided with a car and killed the two occupants because the driver was watching a film on a DVD player mounted in his cab. That driver faced manslaughter charges but he was acquitted because no law existed prohibiting a driver from operating a DVD in the view of a driver and there are many other cases of road drivers causing death and destruction and walking away unpunished.

In frightening contrast (and I mean to be alarmist here!), the prosecutors in John Cota’s trial were determined to condemn the pilot and this now has set a precedent for any pilot who may be unfortunate enough to have the conduct of a vessel which is involved in an incident that results in pollution or death. An exaggeration? Take careful note of these accounts from the trial:

In papers filed in court, prosecutors told the judge that Captain Cota should receive a sentence of incarceration because he was “guilty of far more than a mere slip-up or an otherwise innocuous mistake that yielded unforeseeably grave damage. Rather, he made a series of intentional and negligent acts and omissions, both before and leading up to the incident that produced a disaster that, as widespread as it was, could have had even worse consequences.”

“Captain Cota abandoned ship by not following required safety procedures which then resulted in an environmental disaster”

“The court’s sentence of John Cota should serve as a deterrent to shipping companies and mariners who think violating the environmental laws that protect our nation’s waterways will go undetected or unpunished,” said Joseph P. Russoniello, U.S. Attorney for the Northern District of California. “They will be vigorously prosecuted.”

Imposing a prison sentence rather than a fine, U.S. District Judge Susan Illston said, “I know there is a lot of blame to go around and there were a lot of authors in this tragedy, but I think Captain Cota was right in the middle of that.”

She stated that Congress had made it a crime to engage in negligence resulting in an oil spill “in order to protect the environment against the very kinds of things that have happened here.”

John Cota’s legal team are of the opinion that, by criminalising the pilot, the lessons of the Cosco Busan accident will not be learnt and have identified the following failures that contributed to the disaster:

The Cosco Busan’s master, Captain Sun, failed to adequately supervise his crew and exercise any responsibility for ensuring the safe navigation of the vessel even though under well-established international law, the master is always in charge of his ship and the pilot acts only as his advisor;

The Cosco Busan’s master ultimately gave the final approval to sail;
The crew failed to take fixes at frequent intervals as required by international law, and at least every 5 minutes as required by Fleet Management’s policies, to ensure the safe navigation of the vessel in a congested area such as the San Francisco Bay;
No one told Captain Cota that the electronic chart on the Cosco Busan was not IMO certified, and therefore should not be used in place of the paper chart;
The fog signals on the Delta and Echo Towers were not working and cannot be heard at any time on the ship’s bridge recorder;
The master did not know how to operate his ship’s electronic chart system and failed to either admit his ignorance or ask for help. As a result, when Captain Cota twice asked him for assistance, the master “guessed” at the meaning of the red symbols, first telling Captain Cota they were “lights on . . . bridge” and later, after VTS called, confirmed they marked the “center of the bridge”;
The crew falsified various checklists and work logs (i.e., the work logs reflected that the crew was getting more rest than was actually the case);
At the master’s direction, the crew collaborated on their “story,” and continued to be less than forthcoming even though the government gave them immunity from prosecution. The master in particular made statements under oath at various times that he later repudiated during his Rule 15 deposition.
The master never told Captain Cota that he did not know or understand the symbols on his electronic chart or that he could have “queried” the symbols and learned that they were the red/green/red buoys in front of the Delta Tower;
At the direction of Fleet Management’s Superintendents, the crew falsified documents after the accident to make it appear that the ship’s records were “complete” for the upcoming audit and/or government investigation;
The Chief Officer abandoned his post at the bow of the ship and went to the mess hall to have a “meal and a smoke” shortly before the accident and later lied about this fact to the Coast Guard;
The crew aboard the vessel, including the master, failed to adequately perform its duties in violation of international law—in particular, there was no pre-departure passage planning and none of the mandatory bridge team management procedures were followed
The master failed to direct his crew to prepare a berth-to-berth passage plan prior to departing the Port of Oakland even though Fleet Management’s own policies required such a plan;
The master failed to place a dedicated lookout on the bridge on the morning of November 7, 2007;
The radars aboard the Cosco Busan were not properly tuned: the gain had been turned up considerably to compensate for the anti-clutter device that was mistakenly left in auto-mode by the master while his ship was in the Bay;
The master also violated international law when he claimed not to know that the Cosco Busan’s intended route to sea was through the Delta-Echo span of the Bay Bridge or that the course drawn by his crew on his ship’s paper chart was not through the center of the span but was much closer to the Delta bridge tower
Fleet Management’s Superintendents, who were on board the ship on November 7, 2007 before the ship sailed, and the ship’s master, failed to recognize the need to take any extra precautions or even consider delaying the ship’s departure given the foggy conditions that morning
The master claimed not to know that his ship was headed in the direction of the Delta Tower because he allegedly did not know how the pilot intended to direct the ship through the Bay Bridge as it departed its berth in Oakland
VTS failed to give a warning that the Cosco Busan was heading toward the Delta Tower of the Bay Bridge. Had a warning been given even within the last minute or so, the ship could have safely traveled through the Charlie-Delta span;
VTS failed to follow its standing orders and mission statement to “coordinate the safe and efficient transit of vessels in San Francisco Bay in an effort to prevent accidents” by either making recommendations or issuing directions “to control the movement of vessels in order to [protect] . . . the environment

A STATEMENT FROM JOHN COTA

Following sentencing, John Cota issued the following statement through his legal team:

Today marks the first time in over 200 years of maritime history of the United States that the government has sent a Bar Pilot to prison for an accident.

Captain John Cota, a man who literally grew up on the San Francisco Bay, is devastated by the events of November 7, 2007. Having spent over 27 years as a Bar Pilot, and having worked on the waterfront since he was 12, Captain Cota is deeply tied to the Bay. For the rest of his life, Captain Cota will bear the stigma of his role in the November 7, 2007 oil spill.

Captain Cota apologizes for his actions.

Sending a hardworking man to prison, who was just trying to do his job, for errors in judgment, is a very tough life lesson that Captain Cota wishes on no one.

Captain Cota hopes people understand that many factors – not just his actions – contributed to the cause of this tragic event. Yet, he alone has been singled out for prosecution, and he alone will be going to prison.

Captain Cota accepts his share of responsibility. But for lessons to be learned and carried forward to prevent this type of incident from ever occurring again – the multiple errors of all involved must be recognized. To date, this has not been done. Even the NTSB investigation was woefully inadequate and missed key evidence and critical facts.

The ship’s managers share in the responsibility for this accident by having:

Allowed an unseaworthy ship to sail, with a vessel manned by a poorly-trained crew, supervised by an incompetent master; and
Generated false documents after the accident to cover up its misdeeds.

The United States Coast Guard Vessel Traffic Service (“VTS”) also shares in the responsibility for this accident. VTS made the conscious decision not to warn the Cosco Busan that it was heading straight for the Bay Bridge Tower in the fog.

It is baffling why these vessel traffic professionals sat silent in their control tower and did nothing to try to keep this tragic accident from happening. There is persuasive expert opinion that there was ample time for VTS to warn, and had it done so, even within the last minute or so, there was still time for the ship to avoid hitting the bridge. The government must review its own procedures, in addition to prosecuting others, to make sure we never have a similar incident in the future.

In the end, Captain Cota hopes that this process is not just about blaming and punishing one man, but about finding solutions to making the Bay a safer place. Captain Cota appreciates the support he has received from family and friends.

DOES ALL THIS AFFECT UK PILOTS?

What happens in the USA inevitably sets a precedent for court cases here in the UK so the answer is yes and the only way that any pilot can defend himself is to ensure that procedures, especially the Master / pilot exchange are as comprehensive as possible. Can’t be bothered? Take careful note of the following court statement:

Where it is possible to guard against a foreseeable risk, which, though perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means, which involves little difficulty or expense, the failure to adopt such means will in general be negligent.

As Australian pilot and senior IMPA Vice president observes:

The primary defence against negligence claims is “due diligence.” This really means that a reasonable person (in the eyes of a court) in the same position would have undertaken certain procedures and processes to ensure whatever it is that did happen, on the balance of probabilities, shouldn’t have happened.

This means that the courts could ask, “what could have guarded against the risk of the accident occurring?“. The answer is, “A proper Master / Pilot exchange including a passage plan with contingencies that would enable a shared mental model by the bridge team (what we all know as BRM).” To which the courts could then ask the following question, “how much does it cost to have a proper MPX and produce a passage plan?”…..to which the answer is, “two minutes of time and about 20 cents for a sheet of paper”

AND FINALLY….

Just in case you still doubt that criminalization of pilots is just something that happens in the USA, the following has been received from EMPA:

On 1st August 2004 Capt Calvi boarded the Cruise Ferry ‘Danielle Casanova’

to help the Captain berthing in Marseilles harbour. Due to sudden weather

changes and the constriction of the area the ship hit a pontoon with a

residual speed (less than ½ knot), after avoiding a collision with another

ferry and dropping an emergency anchor. Unfortunately there were passengers

boarding another ferry moored on the opposite side of the pontoon. During

the collision, the pontoon chains were broken and a car fell into the water

resulting in one fatality. After many years of investigation Captain Calvi

is facing charges for his conduct and he is now involved in a criminal

prosecution, together with the Ferry’s Captain, Gérard Bouvier.