July 30, 2009

Sympathy with the Devil

By all accounts, Capt. John Cota, the pilot on board the Cosco Busan sentenced to a ten month jail term last week, is an irascible and hot tempered man. Whatever, in the foggy morning of November 7, 2007, he boarded the outbound Cosco Busan at Oakland Port, a mere five minutes after a Company Superintendent had departed after a voyage with the crew where they were briefed on company policies, amongst other things. The Superintendent was Indian and had language difficulties with many of the Chinese crew, so the Master translated for him. One of the policies that the crew was told about, as it came out at John Cota’s trial, was the requirement of ‘berth to berth’ planning.

Nevertheless, no outbound passage was planned from the berth at Oakland by the Master Even worse, there was no proper Master/Pilot exchange of information and the Bridge Team had clear communication issues with Cota as many spoke Mandarin or broken English. To add to what would become a series of coincidental events resulting in catastrophe, the 59 year old Cota had just ten hours of sleep over the previous two nights and was on his seventh consecutive day of pilotage duty. In addition, he boarded under the influence of performance inhibiting prescription medication at a time when fog had reduced visibility to about a couple of hundred metres at best.

Capt. Sun of the Busan and the pilot unberthed the 65,131 ton Hong Kong registered ship container ship in thick fog even as six other ships (or their pilots) in the Oakland/San Francisco area refused to do so for safety reasons. Cota, a veteran pilot with twenty seven years experience in the area, planned to take the Busan through the Delta Echo span of the Bay Bridge.

This pilotage would be marked by a noteworthy tragedy of synchronous errors, as the investigation found. The crew were tired, having spent hours checking container lashings just before departure. The Chief Officer and the Bosun were on lookout at the foc’le, but the Mate left for breakfast just before the accident without informing the Master. Cota had repeated problems with the Radar. Though later investigations proved it was working normally, he was so frustrated with the Radars that he gave up looking at them and relied only on the electronic chart on the Busan. A major lack of understanding of the symbols on the electronic chart and language difficulties with the Master and the Third Mate on the bridge ensured that conical buoy symbols were mistaken for bridge spans. No paper charts were consulted or positions marked for the two hours or so it took the Busan to make its way to the Bay Bridge, and, eventually, crash into it. The VTIS monitoring the Busan called up Capt. Cota on the VHF a minute before the accident, confirming his intention to use the Delta Echo Span, but failed to warn him even when they saw the vessel was off course.

In the end, Cota thought he was going under the bridge when he was heading straight for one of the towers, doing ten knots in thick fog. Capt. Sun, the ship’s Master, seems to have been a not so innocent bystander throughout this disastrous piece of navigation.

Much was made, later, of the fact that Cota was on medication at the time, medication that had been prescribed after dental treatment. The medicines apparently contained drugs that effected performance. In addition, Cota’s alleged alcoholism was repeatedly brought up by the media leading up to the trial.

Back to the Busan. By the time the Bosun saw the tower ahead and screamed a warning into his walkie talkie, more than two hours after unberthing, it was already too late. Last minute attempts by the pilot to sheer the vessel away from the tower were only partly successful. The 900 foot Cosco Busan scraped past the tower for sixteen seconds, gouging a 200 foot gash in her hull and rupturing two fuel tanks. The discharge of about 53,000 gallons of heavy fuel oil from the ship fouled 26 miles of shoreline and killed more than 2,400 birds of about 50 species, some protected. Inexplicably, the Coast Guard waited until dusk to activate its complete contingency plan, by which time much of the oil had sunk or dispersed. They then spent $70 million cleaning up what was left.

Inevitably, as any mariner will tell you, the circus kicked in immediately thereafter. American media vilified the pilot, mocking his almost three decades of experience and pointing to the sixteen other accidents he had been allegedly involved in. One said he was “tripping on drugs” at the time of the disaster. The Master and some crew of the Busan were detained: later, six would spend more than a year in the US, kept back on draconian ‘material witness’ warrants with passports impounded (serving a sentence longer than Cota’s ten month jail term handed down recently). The crew would be later granted immunity in exchange for their testimonies. As for the VTIS officers who silently watched as the tragedy unfolded, they were sent for ‘retraining’.

The operators of the Busan, Fleet Management, were in the line of fire as well. Today the company faces criminal and civil lawsuits related to allegations that its crew were inadequately trained, contributed to the accident and doctored documents later to mislead authorities. It may be liable for hundreds of thousands of dollars in fines after offering to plead guilty to environmental misdemeanors. If found guilty on felony charges that its officials forged documents to mislead spill investigators, it could be liable for fines of millions of dollars more. In addition, it may also be billed hundreds of millions of dollars for cleanup and environmental restoration costs.

It is clear to this mariner, at least that Capt. John Cota seems to have exhibited an appalling amount of negligence in the saga of the Cosco Busan. Nonetheless, this tragedy could not have occurred without contributory negligence from almost all parties involved. Therefore, I cannot help but wonder:

• If Capt. Cota was so incompetent, and if he had a history of involvement in accidents, why was he still allowed to pilot ships in the Bay? Why was his licence not revoked?

• Was Capt. Sun as incompetent as the pilot was? It certainly appears so. Why, then, was he spared? Why were he and some of the other officers and crew granted immunity when at least some exhibited abysmal standards of competence and discipline? The Captain clearly left everything to Capt. Cota, not even bothering to monitor the ship’s movement in thick fog for a couple of hours after unberthing. The Third Mate did not put down a single position. They failed to communicate properly with the pilot. The Chief Mate deserted his station at a critical juncture. There was no plan, no Master/Pilot exchange of information and, effectively, no Bridge Team.

• Why were so many of the officers and crew unable to comprehend English, the working language of the ship and one in which all the manuals were written? More importantly, why is this shortcoming, common and universal as it is, ignored by Owners, regulators, auditors and managers at sea? The entire industry is in the dock on this one, as far as I am concerned. Is it really all that expensive to fix this problem? Is it easier to imprison a seafarer or two and go back to sticking our heads in the sand?

• Why were the VTIS officers not implicated for failure to warn Capt. Cota that he was dangerously off course?

• Was the pilot sufficiently rested when he boarded the Cosco Busan? There is a question mark on this one.

• Why was the Coast Guard not held culpable for contributory negligence in not tackling the spill with overwhelming resources immediately? Why did they wait until dusk?

• Why, to begin with, did the port not declare that it was closed to all navigation because of thick fog?

• Why does the port not give laptops laden with charts and GPS connected, as many do, to Bay pilots? The single most important cause of the crash seems to be Capt. Cota’s failure (along with Capt. Sun’s contribution, of course) to realise that the symbols on the charts represented buoys and not the bridge span. Familiarity with his own system would have pre empted this glaring and tragic error.

• Why were laws meant to detain terrorists and such used against the crew? ‘Material witness’ laws have been criticised as being against human rights by many in this case; the crew could have very easily deposed and gone home. Material witness laws can turn bystanders into prisoners. Why is this allowed? By many accounts, lawyers for the Owners and managers are as much to blame for this as are the prosecutors in the case. Would the US accept similar treatment of its own citizens in, say, China?

• It seems that at least some of the deck crew were fatigued in port. Did they have sufficient rest as mandated when they went for their departure stations?

• We need to consider the wider implications of seafarer medical treatment if taking prescription medicines can lead to a situation where a crewmember’s performance is seriously impaired. Besides causing an accident, there is precedent now for him to be jailed as a direct result of this. So what happens, if, for example, I visit a Company approved dentist while in Command and later am involved in an accident? Am I a criminal now regardless of whether or not I had criminal intent and just because I took prescription medicines? If so, this is a truly abhorrent and unacceptable state of affairs for any seafarer. And so is being called ‘a junkie tripping on drugs’ in such circumstances.

• Where does the Cota trial and imprisonment leave the already nuanced legal division of responsibility that exists between a Master and a pilot? The verdict against Cota rubbishes the notion that the pilot is just an “advisor”. Therefore, after the Cota trial, I ask: who is in charge in US waters? The Captain or the Pilot? This is a huge question, and, like Pontius Pilate, I am not expecting any worthwhile answers anytime soon.

This circus will continue for a while yet; Fleet Management is to go on trial in September. No doubt, many issues will be raised and precedents set at that circus.

Nevertheless, for me, the biggest issue will still be this: Outdated and over the hill regulators make laws in shipping without, usually, a clue to the real situation on the ground. Owners and managers protect themselves the best they can and blindly pass on instructions and procedures to crews, many of whom do not even have a working knowledge of the language they are written in. No attempt is made to ensure that the crew can even understand the language the ship’s operating manuals are written in. Crews, pilots, port navigational authorities and other key personnel are often not familiar with English, the international language of communication. Crew training in basic communication, understanding and language is abysmal across the board. It becomes very clear to everybody in the industry that this is a game in which the only objective is not to be caught. Because if it were not, people would take their own rules, and their own manuals, more seriously.

In any event, accidents at sea become much more likely because of the manner in which regulations are made and implemented. When catastrophes inevitably occur, everybody lawyers up the best they can. The hapless seafarer (or the pilot in this case) with the least protection at the end of the food chain, is then the convenient villain. In Capt. Cota’s case, he is also the only one. He is drawn, quartered, and fed to the lions. The curtain comes down on the circus and the show ends, at least until the next disaster. The blind return to leading the blind in our industry, content that the law has taken its course.

Maybe it has, but this isn’t justice.