As mentioned in my editorial, shore authorities nvestigating maritime incidents are seemingly blurring the delineation between civil & criminal law in seeking to condemn seafarers. Although this case hasn’t led to any criminal proceedings the following article, which has been collated from several press reports of this incident, suggests that pilots need to be very alert to this worrying trend.

In December 2008 a pilot was on board the APL Sydney when the decision was made to abort the berthing and the vessel was instructed to anchor in the Port Phillip Bay anchorage within the Melbourne compulsory pilotage district. With the weather deteriorating, the pilot left the ship before the vessel was fully brought up to the anchor and proceeded ashore. Shortly after anchoring, the APL Sydney started dragging the anchor towards a gas pipeline and, realising the danger, the Captain requested permission from the harbour authority to weigh anchor and move to a safer location in the anchorage.

The harbour authority refused to permit the ship to move without a pilot on board and instructed the Captain to wait for the pilot to return to the ship. By this time the pilot cutter was 45 minutes away from the vessel but turned round and returned to the anchorage with the pilot.

The vessel continued to drag anchor towards the gas pipeline but the harbour authority took no action. Shortly before the pilot re-boarded, the anchor fouled the pipeline and parts of the windlass shattered rendering it unusable. Once he boarded the vessel, the pilot ordered an ahead movement and suggested that the cable be cut. The ahead movement ruptured the pipeline which cut of the ethane supply from Esso’s Bass Strait gas field for four months.

Naturally, the lawyers are having a field day and at the time of writing the claims are approaching $70M and rising. With such a large claim it is inevitable that the actions of all involved are subjected to scrutiny. Referring to the ports actions, the judge criticised the port authority for not having an emergency plan to deal with a gas leak and, despite having been alerted to the risk by the Captain, stated that,  ”…the evidence does not reveal that harbour control took any active step for about 25 minutes to deal with the situation, far less to assist or facilitate the master taking steps to prevent the ship getting too close to the pipeline”.

With respect to the Captain, the judge has sympathised with his predicament at having been placed in a seemingly impossible position without support but hasn’t exonerated him stating that he should have ”ignored the refusal of harbour control at 15:07 to allow him to move the ship  and begun lifting anchor  then and there. It was the time to act. His instinctual reaction to the situation was correct. His primary responsibility was to ensure the safety of his ship, her crew and cargo and to prevent the anchor damaging the pipeline. I do not accept that he was absolved of his right and duty to exercise that responsibility by the unhelpful refusal of harbour control to give its permission”.

With respect to the pilot, the judge considered that his decision to leave the vessel before it was safely at anchor amounted to a breach of his obligations.

‘‘If anything went wrong with the anchoring, as it did in this case, the master [Xu] would be in the invidious position of potentially breaching the compulsory pilotage requirements of the Port of Melbourne were he to use the engines to manoeuvre the ship or attempt to re-anchor her,.

The judge found that when the pilot returned to the vessel his advice to put the engine ahead ”had no justification in the circumstances’‘ and he ”did not provide the master with the level of advice that a seafarer was entitled to expect from a person with an unlimited pilot’s licence for Port Phillip Bay”. The judge said both the pilot and Captain were ”negligent”.

These judgements are not final and will be subject to appeal and the case is still a civil rather than a criminal one. However, the case again highlights a worrying blurring of the difference between civil and criminal cases when it comes to shipping incidents.

In my opinion the harbour authority have been let off lightly by the judge because since this disaster happened in an area under their jurisdiction, the port control should have noticed that the ship was dragging, immediately recognised the potential risk and instructed the Captain to weigh anchor and move clear of the pipeline. Their decisions on that day are seemingly irresponsible as well as illogical! Despite this, the judge seemingly hasn’t found the port “negligent” along with the pilot and Captain! Whatever the reasoning behind the judgement, the fact that the pilot has been criminalised cannot now be ignored.  The actions of the pilot that day are recognisable as common practice in many ports and therefore serve as a warning that we must carefully review our procedures.

JCB

PS: since writing the original article the Australian Transport Safety Bureau (ATSB) have published their full report into the incident which can be accessed by clicking here

As the UKMPA gears up for Continuous professional development (CPD) it is motivating to see the number of works being contributed by pilots and their districts into professional research in the different areas of pilotage.

MV Pacific Dawn Photo: Unknown from web

All in a day’s work

With shipping and seafarers generally being associated with negative press reports it is extremely rare for a positive shipping report to appear in any of the mainstream press. It is therefore with pleasure that I came across the following press report from Brisbane.Pilots face similar “challenges” on a daily basis so it’s good to see at least one pilot being praised for his skills in averting a disaster. However what is most alarming is the cause. A fuse affected by a salt water leak?? JCB

PASSENGERS on a cruise ship that stopped just 70m from the Gateway Bridge in Brisbane have paid tribute to the pilot and captain who saved them from disaster. Brisbane Pilot Captain Peter Liley was the pilot on board the 245m Pacific Dawn when the liner lost all power and steering just 700m away from the six-lane bridge over the Brisbane River. Two tugs got the vessel under control, bringing her to a complete standstill 70m short of the bridge. A passenger observed that “The situation was handled very well by Captain Turnbull and his crew, and passengers were informed of all developments.” Captain Liley said he managed to stop the ship before it got to the Gateway. “I was piloting the ship and we lost all propulsion. It’s unusual, but we are trained for these sorts of things. If it was under the Gateway we could have drifted clear but it was before the Gateway.”

Capt Liley said a ship without power was prone to drift, and there was a danger it could not be stopped before hitting the bridge’s pylons. “We used two tugs to pull the ship up, and we pulled up before the Gateway. We then waited on the chief engineer on what services he could provide, but he couldn’t provide any services so we devised a plan to take the `dead’ ship back to Hamilton.” He added that the ship’s captain had investigated what caused the fault and believed a fuse had been affected by a saltwater leak. A spokesman for Carnival Australia, which operates the Pacific Dawn, said the cruise liner had suffered power problems but the fault was not a major one. “It was a temporary loss of power,” the spokesman said. “It was a controlled situation. “The ship is OK and will set off for a South Pacific cruise.

In previous issues I have covered the alarming trend of criminalising seafarers and pilots and despite the protestations from IMO General Secretary Efthimios Mitropoulos, criminal prosecutions for maritime accidents, especially those involving pollution are on the increase. The following is a a paper on the issues relevant to pilots presented to IMPA by French pilot and Maritime lawyer, François Laffoucrière. Although it would appear from this paper that in the UK only the Captain & ship owner would be prosecuted for pollution, the 1991 Water Resources Act establishes offences of polluting controlled waters, the main offence being “to cause or knowingly permit any poisonous, noxious or polluting matter or any solid matter to enter any controlled waters”. There have been many reports of accidents during cargo operations resulting in minor pollution where the ship has been detained whilst the hapless Captain has been arrested and fast tracked into a local magistrate’s court and fined under the WRA prior to the vessel being released. Contrast this with the situation when a shore installation causes pollution where Company Directors are never arrested and the company may eventually face a token fine!

The UKMPA has been concerned for many years that in the case of an accident involving pollution the pilot, being the one who has conduct of  a vessel, could face criminal prosecution under the WRA for the same reasons that the French pilots are concerned over their Code de L’Environment. Pilots should therefore take careful note of this paper.

What does “criminalisation” mean?

It is a process consisting in transferring the qualification of damage from a different category to a criminal one. For the Pilot, it means that in the past another person was prosecuted – either the Captain or the Ship-owner – or no prosecution was carried out – minor offence or less pressure – or else the qualification upheld was civil – what mattered was repair. From civil liability requiring damage directly linked to a cause, criminalisation establishes penal liability for which a material fact, the actus reus – a law infringement even without any damage – must be accompanied in principle by a psychological element, the mens rea – intention or recklessness. Even in a criminal offence of “strict liability”, which is normally minor, some elements of the crime require mens rea.

A judgment of the Piraeus District Tribunal dated the 28th of January 2008, in the case of the “Grande Europa”, sentenced the Pilot and the Captain of the ship for the negligent infringement of the Collision Regulations. The ship had only hit an unchartered underwater obstacle, but the Tribunal, without having stated which rule was not complied with, decided that the men were guilty.

Why is criminalisation happening?

This is due to a general context resulting from a lesser level of acceptance by the general public when faced with maritime pollution. Since the accident of the “Exxon Valdez” in the USA in 1989, and the accidents in Europe of the “Erika” in 1999 and of the “Prestige” in 2000, polluters must be punished no matter what. Criminalisation is also the consequence of a political will to prevent such pollution from happening again by deterring unacceptable behaviour and by eliminating “rogue” operators. To this, the 9/11 syndrome has to be added.

What is the process leading to criminalisation?

It can be sighted at three different levels. The first one, international, involves the rules 4.2 – formerly 11(b) – of Annex I and 3.2 of Annex II of the MARPOL 73/78 Convention. These rules refer to the Captain or the Ship-owner only, and solely for pollution damage they wilfully caused, or due to “recklessness knowing that such damage will probably occur”. Article 230 of the Montego Bay Convention only allows for fines to be inflicted unless the pollution caused in the territorial waters is intentional and severe. Pollution, even a black tide, is not enough to be made a criminal offence and the Universal Declaration on Human Rights, as well as the European Convention on Human Rights and fundamental freedoms, ensures the principle that a person is innocent until proven guilty.

At the Community level, the European Directive 2005/35/EC transposes MARPOL into Community law, disregarding M. Mitropoulos’ remarks. The Directive clashes with International law on two accounts because it adds the gross negligence as a psychological element of the offence that can now be attributed to more people than just the Captain or the Ship-owner. A major change occurred with two judgments by the ECJ giving the EC legislative competence in criminal matters. The proposal for a directive, COD(2008)/0055, amending Directive 2005/35/EC, sets minimal sanctions and the EP’s 1st reading report even suggested amending the text from gross negligence to negligence. Simple negligence would suffice to be criminally sanctioned. In addition, with the proposal for a Directive COD(2007)/0022, Member States would have to impose criminal sanctions for certain acts causing serious damage to the environment.

At the national level, according to a 2006 BIMCO study, France, with its “Code de l’Environnement”, has the most severe regime in Europe. Pilots in that country are concerned with the possibility that its Article L218-19 could be applied to them. Should the pilots in France be considered as actually having the conduct of the ship, they would be criminally sanctioned as direct actors of the damage if accidental pollution occurred. If not, the pilot could still be considered as an indirect actor, but then in order to establish guilt it would be necessary to prove that he/she deliberately violated a specific obligation of prudence or safety provided by a related act, or that he/she committed a legally defined error which put others at a particularly serious risk that he/she could not ignore.

In the UK, where MARPOL is strictly adhered to, it seems that only the Captain or the Ship-owner can be criminally prosecuted for pollution, and only if it is intentional.

What are the effects of criminalisation?

One of the possible effects mentioned by Mr. Mitropoulos is the deterrent effect on people wanting to embrace a maritime career. It would be catastrophic as the industry is already facing a shortage of officers. The maritime world is basically unanimous on this aspect. Another devastating effect is the impossibility for the offender to be insured for the consequences of criminal liability when this possibility is offered in the case of civil liability. P&I Clubs usually pay the fines inflicted on Captains when there is an absence of will in the offence, but there is little chance to see this happening for pilots. This could lead to over cautiousness with a damaging effect on the fluidity of the traffic which in turn would have negative economic consequences.

One solution: legal protection cover.

The only realistic solution for pilots at present, since they are faced with this wave of criminalisation, is to recourse to legal protection insurance. The possibility to gain access to a renowned and efficient lawyer is becoming the only way for him to get out of a situation where he should have never been put in the first place. The funds required to enable him to get proper defence are not of the kind an uninsured pilot can afford. Therefore, legal protection cover becomes the pilot’s lifeboat.

The view of the UKMPA is that the pilot must have the “conduct” of the ship, although the Master retains command. The following identifies the key factors relevant to the “tripping” situation and is edited from an opinion provided to the UKMPA by Barrie Youde.

Can a Competent Harbour Authority legally instruct an authorised pilot to lend out the conduct of the navigation to an underdraught or unlicensed pilot or any other person at any time?

• The powers of a Competent Harbour Authority (CHA) are created by the 1987 Pilotage Act. By Section 2 of the Act a CHA has the duty to provide pilotage services which it considers necessary, including the power to impose compulsory pilotage. The duty of a CHA in pilotage is limited to that of providing a duly authorised and qualified pilot.
• Although the CHA has both the statutory duty and the power to provide an authorised pilot, it has neither the duty nor the power to provide an unauthorised pilot.
• In previous cases the Courts have identified the principle that a pilot is an independent professional who serves as a principal, identified also the principle that no man can serve two masters. Thus, when a pilot is engaged by a shipmaster to serve a ship, there is nobody who has the power to relieve the pilot against his will, save only the shipmaster who has engaged him.
• Section 17(3) provides that If an unauthorised person pilots a ship within a harbour knowing that an authorised pilot has offered to pilot it, he shall be guilty of an offence. It follows that if a CHA were to order/arrange/suggest/propose to an unauthorised person that he should conduct the pilotage of any ship which an authorised pilot has offered to serve, then the CHA would be inciting a criminal offence. This provision applies in any harbour, whether pilotage might be compulsory or not.
• For all of those reasons, a CHA has no power whatsoever to order an authorised pilot to “lend out” the conduct of the navigation to an under-qualified, under-draught or unlicensed pilot or any other person.

Would an authorised pilot be acting outside the law if he were to give the conduct to somebody else without the agreement of the Master?

• During the course of training it is common practice for an authorised pilot to hand over the conduct to a trainee pilot. The basis on which he does so is one of supervision so the authorised pilot retains the conduct the whole time. In those circumstances it is a matter of courtesy for a pilot to mention the matter to the master.
• If, however, the authorised pilot were to hand the conduct to the unqualified trainee and then to absent himself from the navigation altogether without the master’s permission, then he almost certainly would be acting unlawfully.
• The legality or otherwise of handing the con to a trainee depends, therefore, upon the extent to which the authorised pilot in fact maintains a proper supervisory role. Provided, that the pilot retains a proper supervisory role over the trainee, ready instantly to intervene, then it cannot be said that the authorised pilot acts unlawfully.
• A point to note is, however, that if damage might be done or if an incident might arise at a time when a trainee has the con, under proper supervision or not, it would be the authorised pilot who would be answerable both to his CHA and to the shipowner.

A second meeting was held in the afternoon and UKMPA Chairman, Joe Wilson, was joined by Don for a one to one meeting with the Ian Timpson. This constructive meeting, again relevant to the DMNB, brought the DfT up to date with the appalling lack of progress over the last 10 years in properly utilising the National Occupation Standards (NOS) and progressing towards the desired national Pilotage Competence Certificate which was supposed to have come into being on 1st January 2010.  Joe and Don provided Ian with anecdotal evidence from members that a Class 1 Certificate of Competency combined with a Pilotage Authorisation is considered to be broadly equivalent to a Master’s degree and emphasised that a pilot’s qualification should therefore be at least equivalent to that standard. It was a pleasure to be able to advise the Dft that last month our Training and Technical committee had completed a review of the NOS. The new team at Port Skills and Safety (PSS) are keen to progress the matter (as we have heard more than once before over the years) but as a result of this meeting with Ian Timpson, the UKMPA should be meeting with PSS soon to determine the specific strategy to be adopted in order to finally bring this outstanding, post Sea Empress, goal to fruition.

The Pilotage History

In order to better understand the role of the Bristol Channel skiff it is useful to understand the pilotage area that they covered since the pilots also served vessels trading to ports in S Wales as well as Bristol. The picture however is not as clear cut as the name suggests because due to the competition between pilots in those days there are records in the Welsh ports of their own pilots and in a further complication, the Bristol Channel pilots were not based in Bristol at all but at the small village of Pill at the mouth of the river Avon.

The records of pilotage out of Pill go back to 1497 when barge master James Ray was appointed by the Mayor and Corporation of Bristol to pilot John Cabot’s Mathew on its historic voyage to the New World. Pill subsequently became the centre for Bristol Channel pilots but the relationship between Pill and Bristol was not a happy one and this strained relationship could probably fill a book of its own so suffice to note for period covered by this article that the pilots operated under the Bristol Channel Pilotage Act of 1807 from which the following extract defines the pilotage area as;

from a certain Place about Four Miles Eastward of King Road and so down the River Severn and Bristol Channel to the two small islands called the Stipe Holmes and the Flat Holmes … (and their authority shall) be extended to the Appointment of Pilots for the conducting of Ships and Vessels into and out of and upon the whole of the Bristol Channel, and the several Ports, Harbours and Creeks belonging to and issuing from the same … (that is) all Vessels passing up and down and upon the Bristol Channel to and from the Eastward of Lundy Island, and in or upon the several creeks of the said Channels.

The fact that theirs was a tough life can appreciated by the photo of Pill pilots and “Westernmen” taken around 1880!

Pill Pilots & “Westernmen c 1880

The Sailing Skiffs

There are no historical records of skiffs and their construction prior to the early 19th century but like many craft the evolution would have been gradual over the centuries to met the three main requirements of speed, seaworthiness and ease of handling. The very nature of pilotage in those days where pilots were in direct competition with each other would have meant that any design element which gave a new boat the edge over existing boats would have been incorporated by others and there is no doubt that this constant drive to gain advantage over others is what caused these remarkable vessels to not only become the best sailing craft of their day but also for the design to be still one that is world renowned as one of the best blue water sailing craft in the 21st Century.

The earliest reliable record is from the 1795 Register of Ships which was instigated by the Corporation of Bristol that year and lists 12 Skiffs and provides their tonnage which ranged between 14 and 24 tons but no other details. Other records from the early 19th Century provide more details of some skiffs still surviving from the 1780’s & 90’s and the lengths of the craft ranged between 33 ft (10m) and 40 ft (12.2m). The sail plans weren’t recorded but the skiff James and Samuel which is listed in the 1795 register was sold in 1812 and the equipment included 1 mainsail, 2 foresails, 4 jibs, 1 squaresail, 1 gaff topsail and 1 topmast steering sail.

The earliest photograph of a skiff is that of the Trial which belonged to pilot T Vowles (1847 -78). and shows the squaresail yard which was seemingly a common feature on the early skiffs..

The Trial : An early skiff

It may be thought that detailed plans would exist for the cutters, especially those built in the late 19th and early 20th century, but such plans are virtually non existent because the construction lines were either taken from existing hulls or from half hull models. Also there was no “standard” model with lengths generally varying between 40ft ( 2.2m) and 50 ft (15.2m). Despite the variation in length the method of construction and timber used was fairly standard and the construction was usually of English oak, English elm and pitch pine with interior fittings of teak. Despite the lack of detailed drawings there is the following specification for the Kindly Light, a cutter built for Barry pilot Lewis Alexander dated1911:

General Dimensions: 52ft overall, 141/2 ft. beam, about 81/2 ft. draught. Length of keel, 38ft. Vessel to be built with round forefoot and elliptic stem. Cabin to be fitted with 2 berths and usual lockers. Forecastle fitted with 2 berths, lockers and racks for sails. Materials to be the best of their respective description and to be fitted in a workmanlike manner.

Keel: To be of English elm. (Generally the elm keels were in one length and about 18 inches deep and 6 inches wide)

Stem & Stem Posts: Of English oak.

Floors, frames, stanchions and beams: Of oak.

Keelson: Of pitch pine.

Planking: 1 oak plank round top, pitch pine to bilge, stout elm bilge 21/2 inch, remainder of plank of elm or pitch pine l1/2inch.

Rails: To be of elm or oak with greenheart capping.

Decks: Best yellow pine.

Fastenings: To be galvanized iron.

Masts: To be cutter-rigged with pole size as required.

Bowsprit, boom, gaff, topsail yard, two oars, boat hook. Booming out spar. Ironwork on Keel: Ballast iron.

Rigging: Three shrouds each side of 2in wire, forestay 31/2 inch wire running tackle.

Sails: One mainsail, one foresail, two topsails, three jibs, one balloon foresail, one spinnaker.

Painting: Vessel to be scraped, cemented and concreted up to bilge, to have two coats oil paint, two coats paint on bottom and top sides. Cabin to be varnished, forecastle to be grained.

Brasses for rudder head and collar for trunk and head of stem post.

Sundries and Utensils: Four plates, four mugs, cooking stove, knives, forks and spoons, saucepans etc. Foghorn, bulb flashlight, Morse lamp, combination lamp, water tank 60 gallons, table in forecastle. A

As an interesting note, I understand that Kindly Light still exists and is currently being fully restored in time for her centenary.

The performance of any sailing vessel is as dependent upon the cut and set of her sails but especially for pilots since their livelihood depended upon getting out to the boarding ground ahead of the competition.

The mainsail was of cotton in summer and flax in winter and they were fitted with four sets of reef points and were loose footed.  An indication of the extreme conditions that these craft had to work in, when set to the fourth set, the gaff jaws were almost down to the boom gooseneck. Later, some cutters were fitted with roller-reefing and so were laced to a wooden jackstay or ‘combe’ along the boom. The disadvantage of this reefing was that as the sail was rolled the leech exerted a load on the boom between the gooseneck and mainsheet and the stronger the wind the greater the stress. However, the risk of a broken boom was more than offset by the ease of handling.

The number of headsails carried depended largely on the affluence of the owner, but in all boats it was usual to have a working foresail, which had two sets of reef-points, a balloon foresail and three jibs, namely the large jib or ‘spinnaker’, working or ‘slave’ jib and storm or ‘spitfire’ jib. One or more topsails were also carried

Pilots didn’t normally tan or ‘cutch’ their sails as it was essential that their number or port initial should stand out clearly, but one Welsh pilot apparently carried a tanned jackyard topsail for reasons of strategy. When cruising amongst the numerous tan-sailed fishing craft, he would set this tanned topsail to disguise himself as one of them, and work out to the westward of a rival cutter, resetting his normal sail when the advantage had been gained. Some pilots made their own sails using skills gained on deep-water sailing ships during their required ‘sea-time’ .

When steamships made their appearance the pilots rapidly exploited the possibility of using the ship to tow the skiff back to port in order for it to be available immediately for the next job! This resulted in the unique structural fitting of heavy towing bits being added to the foredeck of the craft.  Somewhat understandably, the crews apparently hated being towed because with the ship steaming at full speed it was exhausting to keep the skiff under control with the foredeck awash!! Pilot Frank Trott actually fitted a proper tug’s towing hook to the fore side of his cutter Marguerite.  Marguerite is also still sailing today.

The cutter Cymro under tow!  photo N Alexander

The Skiffs at Work

The other important aspect of the skiffs was that handling should be manageable by a cox’n and deck hand so the deck fittings, rigging and layout were designed with the same eye for efficiency as the hull and sail plan.

The mainmast was a stout spar wire shrouds but no backstays, and was usually surmounted by a short fidded topmast which was supported by a topmast forestay and a pair of wire shrouds, but often no spreaders and, again, no topmast backstays. The spars were of pine and very heavy in order to eliminate as much supporting rigging as possible, as in the case of the bowsprit which, although sometimes fitted with an adjustable bobstay wasn’t fitted with shrouds in order to facilitate the frequent adjustments necessary to change jibs or reef jib. The bowsprit was normally shipped through a hole in the bulwark to starboard of the stem post.

Just abaft of the aforementioned bitts was the fore-hatch which gave access to the foc’s'le and forepeak and aft of that a little forward of amidships was the mast. Spare spars and sweeps were stowed fore-and-aft in two vertically mounted iron hoops. Aft of the mast a companion hatch was situated at the fore end of the self draining cockpit.  There was usually just one seat athwart-ships at the after end of the cockpit and as additional useful feature, the cutter Pet had a lavatory pan built into one comer of the cockpit seat!

Behind the cockpit coaming was the mainsheet horse and rudder post. The lower mainsheet block was not on a running traveller but was located at the centre of the horse by two very heavy flanking coil springs, or buffers. These buffers were highly necessary as the cutters were frequently gybed all standing as a standard manoeuvre when working and there was seldom time -or hands -to spare for the refinement of overhauling the sheet to ease the load. Generally speaking, the horse was about 2ft to 2ft 6in in length and was mounted between two very strong iron uprights, just high enough to allow clearance for the tiller arm.

The pilot’s boarding punt was kept on the port side, abaft the main rigging, stowed in chocks right way up. This was usually a clinker-built boat about 13ft length  often painted white so as to be easily identified at night.

Skiffs generally had fairly high bulwarks, of about 1ft 6in to 2ft, with a removable section through which the punt was launched to be rowed to and from the ship, Many punts had a standing wire strop fastened between the inside of the stem and transom at the point of balance, and to get the punt back on board the cutter a burton from the masthead was made fast to the eye in the strop, thus making it comparatively easy to hoist it inboard.

There were a few deadlights flush mounted into the deck to provide daylight below and there were rarely any ventilators ( they got enough fresh air!) fitted so the decks were clear  of obstructions for working.

On station the cutters were required to display a pilot flag which in 1849 became the white over red flag still in use today. At night an all round white light was displayed supplemented by a kerosene flare every 15 minutes with each port having a sequence code for displaying the flare. For example the flare code for Bristol was two shorts and a long. After 1858 the cutters were required to display sidelights at night when underway but contemporary accounts indicate that this was frequently ignored, especially in calms when it was not unusual for cutters to extinguish all their lights and get the sweeps out and row the cutter to gain a Westerly advantage over other cutters. Once a ship was encountered that required the services of the pilot, the ship would heave to while the cutter would work into the lee of the ship and “out punt” to transfer the pilot across for boarding. One man and the pilot would do the rowing whilst the man remaining on board would sail clear single handed and once the pilot had shipped return close under the lee of the ship to  recover the punt and other man. The cutter would then either sail or be towed back to the home port ready for the next run out. Occasionally more than one pilot would be on board so the cutter would remain out on station looking for other work. I refer to both the cutter hands as “men” but it was normally the case that these cutter hands were related to the pilots and were pilot apprentices themselves so there was no on board distinction of cox’n and deck hand

“Out Punt”    Painting by Peter Stuckey

There are some today who question whether the skiffs were actually sailed by two men but  this was definitely the case. Peter Stuckey wrote the book when some of the old sailing pilots were still alive and he undertook interviews which has left us a valuable records of those days. These first hand accounts reveal not just a life of hardship and danger but almost unbelievable accounts of seamanship skills.

The following are extracts from the story of Captain George Buck who served his apprenticeship skiffs in the early 1900’s.

Once we were hove to about 5 miles SW of the Wolf Rock, the wind had died away to a flat calm, the sea like a mirror, very dark without a cloud in the sky and the stars shining in the water the same as in the sky, all the lighthouses showing their lights all around the horizon and the Lizard light flashing in the sky. I was on 12 to 4 watch when a ship’s masthead light came in sight. I took a bearing and saw she would pass a long way to the north of us and, having no wind, the only thing I could do was show the Bristol signal on the flashlight, though as the flashlight was usually used by fishing boats in this area ships generally gave it a wide berth. We were expecting one of Pyman’s ships along, called the Cober, she being five days out from Gibraltar. I decided to call one of the pilots (we had two on board) and when he came on deck I suggested calling the other pilot, launching the punt and pulling as far as possible to get as close as we could, then to show the flashlight and hail her with the megaphone. We pulled until she was abreast of us, still more than a mile away, showed the flashlight and started to hail her, but eventually had to give up and had started to pull back to the skiff when we saw her port light come in sight and she came towards us, and sure enough it was the Cober bound for Bristol. I put the pilot on board and he towed me back to the skiff. The next night we still a flat calm. In the 12 to 4 watch I heard my mate come below and tell the other pilot a ship was in sight a long way to the north. I turned out and suggested another pull, the pilot agreed and this time he took an oar and we made the punt fly through the water, stopping now and again to show the flashlight. We were just deciding to give up when she went hard-a-starboard and steamed towards us. She was bound for Bristol and of course I expected to be towed back to the skiff, but when the pilot suggested this to the captain he told him had lost a blade and a half of his propeller and wanted to make sure of his tide. The pilot looked over the bridge and told me but I did not care, being happy to think we had another ship, and started to row back. After pulling for some time I stopped to see if I could pick up the skiff’s light but with so many stars reflected in the water I could not find it but I could see the Wolf light and knew if I pulled in that direction I was bound to find her. It seemed I had been rowing for hours alone in the world and I started singing to keep myself company. Then I stopped rowing, looked around and saw a light and was close to the skiff. My mate was pleased to see me back and I often wonder how many miles I rowed that night.

….It was very dark as we were approaching Barry entrance when suddenly a blue light (a signal for a pilot), was shown from a large ship at anchor in the roads. We sailed off to her and she was the Everton Grange (twin-screw) bound for Avonmouth. We hailed her, told them to put a ladder over and we would put a pilot on board.

The weather had by now got worse with a strong west wind and confused sea, with the tide ebbing west. The ship was lying across the tide, with the tide running on her lee side at about three knots. This meant we had to keep well to leeward, drop the punt with the pilot and myself, and the man in the skiff would have to get back into the wind, then come back and pick me up. If he lost the wind under her lee the tide would set the skiff down on the ship and do some damage. Everything went along fine. I put the pilot on the ladder and the skiff was coming back to pick me up with sufficient way to take her in to the wind again. I was about to jump aboard with the painter when the pilot hailed us to come back and take the Liverpool pilot in as he wished to catch the first train back to Liverpool in the morning. I rowed back to the ladder and then saw that the skiff had lost the wind and was setting down on the ship and we could do nothing to stop her going alongside. We managed to get a couple of fenders over and she brought up on the ship’s starboard quarter close to the propeller, the tide pinning her there. I made the punt fast to the skiff and asked them to pass us down a rope to heave us clear of the ship’s quarter as every time she rolled she smashed our bulwarks and the propeller was very close. But before we got the rope the propeller started to revolve and we yelled for them to stop it. The engines were stopped right away, they passed us down a rope and as they hove us amidships the pilot looked over the ship’s side and asked what all the shouting was about. I told him we had been close to the propeller and felt sure it had touched our bottom. The pilot, using the ship’s engines, then brought her head to tide and we were able to sail away from her.

I pulled up the floorboards in the steerage to make sure we were not making water as the blades of the propeller had been whizzing round abreast our cockpit. When we found everything was all right we asked if the Liverpool pilot still wanted us to land him. The reply being ‘Yes’, I rowed back to the ladder and took him off. We got alongside the skiff and having hauled the punt on board, set more sail and as we shaped course for Avonmouth I made a pot of tea.The next day the pilot came on board to survey the damage. It was not serious, about six feet of bulwark damaged. We pulled up the floorboards over the pump-well and found she had not made any water. The pilot then asked me why I had been shouting and I told him if he had been on board the skiff with that propeller churning round alongside he also would have done some shouting and I was still of the opinion that the propeller had touched our bottom. About three weeks later we put her on Ilfracombe Strand to scrub and tar her bottom and we found the bottom scored to to a depth of about 1/2 inch over a 3 foot length! It was the only time I was really frightened.

..We were cruising about 30 miles west of Lundy Island in a strong westerly wind and rough sea, expecting the Dominion liner, Manxman. We knew there were no skiffs to the westward of us and if she came along she would be ours. We had three rolls in the mainsail, reefed foresail and storm jib. About midday the pilot decided to run towards the island as the wind was increasing, as sometimes, when blowing hard, the wind would decrease to leeward, but when we got abreast the north end of Lundy the wind increased, so, putting another roll in the mainsail, we decided to run farther up Channel. About 8 pm we rolled the mainsail down with the jaws of the gaff on the mainboom, double reefed the foresail and hove-to, being now between the Nash and Foreland Point.

We never cared to give up the chance of a ship and we were certain if the Manxman came along she would be ours and, being a large ship and loaded, we should manage to board her. At 10 pm the pilot came on deck and the wind seemed to be increasing, with heavy squalls and confused sea, so he told me to put the helm up and run for Barry Roads. This skiff was the old Glance and she would run in any sea and never take any water over the stern. Just before midnight the pilot came on deck again and told me to make a pot of tea and call my mate. This I did and was on my way to the cockpit with a cup for the pilot when I heard a crash and when I got to the cockpit I found that the mainboom had snapped like a carrot. The mainsheet and the end of the boom were towing in the water and the mainsail was in ribbons. We had a difficult job getting the broken piece of boom on board and were afraid it might hit the side and break a plank} but we finally got everything secured and again running before the wind. I thought we should go to Barry but the pilot said we would go to Pill as we would require a new mainsail and mainboom.

Lowering the foresail and jib, we put a spare foresail fore side of the mast, hoisted it up and were away like a scalded cat. When we reached the river we hoisted the reaching foresail aft side of the mast for a mainsail, set the foresail and arrived at Pill just before high water. While we were mooring, the havenmaster’s office hailed the boatman’s shelter to say that the Manxman was in King Road and had asked for a pilot. We had not only lost a mainsail and mainboom but also a good paying ship. That was just the luck of the draw in the days of competitive piloting

This is just a small selection of accounts from George Buck and others in the book but provides a valuable insight into the life of pilots who earned their livelihood from the skiffs. Although several pilots and boatmen lost their lives in this service their losses were remarkably low considering the conditions they suffered and were probably no more than those of other occupations in those times. The testimony as to the seaworthiness of of the skiffs and the relationship between the men and their craft is summed up by George Buck as follows:

….when boarding ships at night during dirty weather, we were always glad when we had the punt back on board. In the daytime we took little notice of the weather and it had to be very bad when we could not board and it was not very often we had to run for shelter. The skiffs were fine craft and in bad weather would heave-to with the fore sheet to windward and the helm lashed a little down and they would work to windward off a lee shore.

Off Duty

The pilots relationship with their skiffs contnued even when they were off duty and racing “Reviews” were held at each port and were enthusiastically supported by the local community. Occasionally the skiffs raced against professional sailing yachts and frequently beat them especially in windy conditions. When on service, speeds of 10 knots were frequently achieved and this speed was often exceeded during racing when the additional sails were set.

Off duty racing.

Ilfracombe was the popular holiday resort for the Bristol Channel and the flat firm sands provided a good place for repairs and sprucing up of the skiffs. The pilots andf crew’s families would be lodged ashore in boarding houses and carnivals and other entertainments were enjoyed by all.

The 21st Century

The remarkable sea keeping qualities of the Bristol Channel skiffs and cutters has ensured their survival, with many original craft having been fully restored and maintained. Although during the latter half of the 20th Century the advent of fibre glass cruising and racing yachts somewhat eclipsed these wonderful craft, in recent years there has been a revival of interest and as well as restorations, lines are being taken from original hulls for new builds. In particular they are increasingly popular for the charter market. In ocean races they continue to win trophies when competing against modern yachts and since 2006 an annual pilot cutter “Review” has been held at St Mawes in Cornwall which is seeing an increase in turnout, despite the economic downturn. Meanwhile the reputation of the design for serious “blue water” cruising remains unsurpassed. Such a legacy is a fitting tribute to those hard working pilots and men who earned their living from these legendary craft.

JCB. With thanks to Peter Stuckey for permission to use extracts from his book.

As reported in the July issue, the DfT and MCA have effectively handed full control of pilot training and standards to the port run body : Port Skills & Safety (PSS).

The formal integration into the Port Marine Safety Code (PMSC) of the National Occupational Standards (NOS) for pilots that were produced nearly 10 years ago continues to be stalled by the ports and ship owner interests who “fail to see the need” for formalising any pilot standards!

It is therefore of great concern to the UKMPA that PSS has been handed responsibility for pilot training and standards. This concern has been enhanced by the departure of two key figures in the MCA  (ex Dover pilot, Geoff Stokes) and DfT (James Weedon) who recognised the importance of incorporating the NOS document into the PMSC.

When Gordon Brown became Prime Minister, Steve Ladyman, the most pro-active shipping minister in recent years, was given the boot and replaced by the

almost invisible Jim Fitzpatrick, so most of you will probably be unaware that in June he was moved to DEFRA and replaced by Paul Clark in a low key reshuffle. Paul Clark is the MP for Gillingham and Rainham and was previously parliamentary private secretary to Ed Balls at the Department for Children, Schools and Families.

Having been concerned that the Government was devolving too much power to the CHA’s (a concern enhanced by the recruitment and training policies of two CHA’s in particular), ex Liverpool pilot and solicitor Barrie Youde entered into correspondence with Paul Clark, bringing his attention to the Sea Empress case where Mr Justice Steel made the following observation:

“The significance of these matters is all the greater in the context of a scheme of compulsory pilotage. Shipowners and masters must needs engage a pilot. They have to take the training, experience and expertise of the pilot provided at face value. While the master remains nominally in command, it has to be recognised that the pilot had the ‘con’ and a master can only intervene when a situation of danger has clearly arisen. The port authority imposes a charge for pilotage but in the same breath has the added advantage of the pilot being treated for the purposes of civil liability as an employee of the shipowner. All this calls for the highest possible standards on the part of the port authority.”

This observation clearly places a legal obligation upon any harbour authority to maintain the highest possible standards in a compulsory pilotage area.

However, the reply from Paul Clark’s office was quite astounding in that it declared that “The Department does not accept that there is a legal requirement for all Competent Harbour Authorities to provide this service [i.e. pilotage] to ‘the highest possible standard’…………..”

Even more alarming is that the letter goes on to state “Such an interpretation would, I suspect, be unrealistic and unworkable. It would also leave no scope for the port authority in question to use their discretion or consider what factors they

consider to be most pertinent for the pilotage needs of their harbour, as

provided for in section 3 of the Act. Given that Competent Harbour

Authorities have the discretion to consider whether pilotage services are in

fact required at all or whether they need to be compulsory, it is a logical

consequence that they should be able to determine the skills, experience

and qualifications that they consider necessary to carry out such services”.

Subsequent exchanges go even further suggesting that the Government  considers that it no longer has  responsibility for a CHA’s policies with respect to pilotage!

At the time of writing, the exchanges are on-going with Barrie writing again to the Minister explaining the fact that by delegating powers to CHAs, under the 1987 Pilotage Act, Parliament couldn’t legally cede its own power of central oversight by ministers.

We await the outcome with interest. Watch this space!

JCB

Following the HA’s taking over rrsponsibility for aothorising pilots following the 1987 Pilotage Act, many districts retained the authorisation structure and wording from the Trinity House authorisations. In some areas this included a clause stating that the authorisation limits could be overruled if a pilot of the appropriate grade wasn’t available. This meant that if a pilot boarded, say a Class 4 vessel and discovered that, as a result of its draft, the vessel was in fact a Class 3 vessel then his authorisation would cover him.  Following a recent case whereby a pilot, finding himself in such a position, refused to pilot the vessel, the UKMPA has sought a legal opinion on this historical anomaly and the following are extracts from the response:

There has never been a test-case on the point, but it would be very difficult to defend any pilot who willingly undertakes pilotage beyond the limits of his authorisation.

The leading relevant case is the Sea-Empress, where of course there was compliance with the regulated limits, but the rationale of the observation that the highest possible standards need to be observed was that the Milford Haven rules were themselves inadequate at the time.

….A pilot who undertakes the pilotage of a ship the size of which is beyond the limits of his authorisation is not only not authorised for that ship (and is therefore acting unlawfully) : but , in relation to that ship , is not truly authorised at all. acting unlawfully) : but , in relation to that ship , is not truly authorised at all.

It follows, therefore, that the statutory protection provided by Section 22 of the Pilotage Act (the £1,000 limit) would not apply in such a case; because the protection  benefits only an “authorised pilot”.

In consequence, a pilot who pilots a ship whose size is greater than the regulated limits of his authorisation forfeits the statutory protection and exposes himself to liability for unlimited (and probably enormous) civil damages.

The message therefore is perfectly clear and with modern communications there is no excuse for the draft to be incorrectly declared prior to pilot boarding especially since such errors are inevirably caused by laziness on behalf of the agent to check with the Captain prior to making the pilot booking. Let him take the blame!!

JCB

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.

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.

JCB

The full NTSB report can be downloaded from:

www.ntsb.gov/publictn/2009/MAR0901.pdf