COSCO BUSAN: Pilot pleads guilty to criminal charges!

June 25th, 2009 by JCB
Posted in Articles, Incidents & Investigations | 1 Comment »

Although it occurred in the USA, the Cosco Busan allision with the Bay Bridge in San Francisco will inevitably have relevance to pilotage over here. There is also relevance to this quarter’s feature on piloting in fog.

At the time of writing the official National Transportation Safety Board (NTSB)  which is the USA’s equivalent of the MAIB, had still to publish the full results of their enquiry into the incident but they have issued a preliminary report which identified failures in procedures and communication similar to those identified by the MAIB in the feature.  The key findings are as follows:

M/V Cosco Busan left its berth in the Port of Oakland in thick fog. The San Francisco Bay pilot issued directions that resulted in the ship striking the fendering system at the base of the Delta tower, which created a 212-foot-long gash in the ship’s forward port side and breached two fuel tanks and a ballast tank.

As a result of the allision, over 53,000 (US) gallons (approx. 220 tonnes) of fuel oil were released into the Bay, contaminating about 26 miles of shoreline and killing more than 2,500 birds of about 50 species. Total monetary damages were estimated to be $2 million for the ship, $1.5 million for the bridge, and more than $70 million for environmental cleanup.

In its determination of probable cause, the NTSB cited three factors:

1) The pilot’s degraded cognitive performance due to his use of impairing prescription medications.

2) The lack of a comprehensive pre-departure master/pilot exchange and a lack of effective communication between the pilot and the master during the short voyage; and

3) The master’s ineffective oversight of the pilot’s performance and the vessel’s progress.

The NTSB recommended that the U.S. Coast Guard:

1) Ask the International Maritime Organization to address cultural and language differences in its bridge resource management curricula.

2) Revise policies to ensure that, in its radio communications, the Vessel Traffic Service (VTS) identifies the vessel, not only the pilot.

3) Provide guidance to VTS personnel that defines when their authority to direct or control vessel movement should be exercised.

4) Require mariners to report any substantive changes in their health or medication use that occur between required medical evaluations.

5) Ensure that pilot oversight organizations share relevant performance and safety data with each other, including best practices.

The NTSB also recommended that the American Pilots’ Association remind its members of the value and importance of a verbal master/pilot exchange, and encourage its pilots to include the master in all discussions involving the navigation through pilotage waters.

What is different in this case and potentially of most concern to all pilots is that in response to the media (supposedly representing public opinion) outcry someone has had to be identified to take the blame and so the hapless pilot has had, not just his actions on that day, but also his whole career and personal lifestyle examined in microscopic detail in a search for culpability. This detailed examination of one individual discovered that the pilot had been involved in previous incidents and that at the time of the allision with the bridge he had been taking medication, which may have affected his performance as a pilot. With all this attention upon him it is hardly surprising that the pilot voluntarily surrendered his authorisations at an early stage.

Despite this prompt action pending the outcome of the enquiry the pilot faced two criminal charges under the “Clean Water and the Oil Pollution Act” (CWOPA) and the “Migratory Bird Treaty Act” (MBTA).  All pilots should carefully note the following charges levelled against him:

That the pilot, John Cota under the CWOPA:  “did negligently cause the discharge of oil in such quantities as may be harmful from a vessel, the Cosco Busan, into and upon the navigable waters of the United States, without a permit. Specifically, on or about November 7,2007, Defendant Cota, while piloting the Cosco Busan, caused approximately 58,000 gallons of heavy fuel oil to be discharged from the vessel into San Francisco Bay by acting in a negligent manner, that included the following:

(a) Failing to pilot a collision free course.

(b) Failing to adequately review with the Captain and crew of the Cosco Busan prior to departure the official navigational charts of the proposed course, the location of the San Francisco Bay aids to navigation, and the operation of the vessel’s navigational equipment.

(c) Departing port in heavy fog and then failing to proceed at a safe speed during the voyage despite limited visibility.

(d) Failing to use the vessel’s radar while making the final approach to the Bay Bridge.

(e) Failing to use positional fixes during the voyage; and failing to verify the vessel’s position vis-a-vis other established and recognized aids to navigation throughout the voyage”.

And under the MBTA: “without being permitted to do so by regulation as required by law, did take migratory Birds, including at least one Brown Pelican, Marbled Murrelet and Western Grebe.”

At the trial John Cota pleaded guilty to the charge of negligence admitting one count of negligently discharging a pollutant and one count of violating a federal law against killing migratory birds and will receive a sentence of two to 10 months in prison and a fine from $3,000 to $30,000.

Is this case relevant to the UK?

So far I as can ascertain the answer is yes and all pilots should remember that the £1,000 limitation of liability under S22 of the 1987 Act is not applicable to criminal charges. In similar circumstances over here a pilot involved in a Cosco Busan type incident could face similar pollution charges by the Environment Agency under the UK’s “Water Resources Act” & also under Section 21 of the 1987 Act.

I am an employed pilot so aren’t I covered by my employer’s insurance?

The answer here is most probably not because once on board and piloting any pilot, regardless of employment status is “an independent professional man who navigates the ship as a principal and not as a servant of his general employer” (Esso Bernica and Cavendish).

Am I covered for such an incident by the UKMPA insurance?

The answer here is that although we are covered for legal defence costs, which includes pollution, nobody can insure against a criminal act and the exclusion clause states: “the accident did not result from the insured’s intentional and willful violation of any Government statute, rule or regulation” ie if excessive speed in fog was proven?

You have been warned!

JCB