COSCO BUSAN (almost) in the Rearview Mirror

Is there a bottom line?

In the early 1990’s, and only a few years after I had been unceremoniously forced into retirement by a declining U.S. merchant fleet, I learned of a casualty aboard a U.S.-flag oil tanker in the Gulf of Mexico. A seemingly minor event; the cook had sliced his hand in the galley as the vessel was making fast at a Texas refinery. In this case, and in the increasingly regulated aftermath of the EXXON VALDEZ accident, the incident also triggered a drug & alcohol screening of the entire crew. As it turned out, the steward was clean, but one of the Mates, located more than 600 feet forward on the bow during the time of the accident, was not.

Apparently, and unlike a certain ex-president, the mate had inhaled. Although this event had occurred as much as thirty days prior while on vacation only, the individual was fired. He was, by all accounts given to me, otherwise a very good officer. Nevertheless, rules are rules and the event served to provide an important lesson for all those mariners still employed at sea: If you are on board the vessel, and something happens completely unrelated to what you are doing, you can still somehow get blamed for it. On the other hand, if you do make a mistake, it is almost certain that punishment will be swift and severe. And that punishment will sometimes be meted out in some of the most creative ways possible.

Last week, John Cota, the California ship pilot who was on the bridge of the COSCO BUSAN when it hit the San Francisco Bay Bridge in November of 2007 pled guilty to negligently causing the discharge of approximately 53,000 gallons of oil into the bay, as well as “violation of the Migratory Bird Treaty Act for the death of protected migratory birds.” The latter charge has become an increasingly popular arrow in the quiver of federal prosecutors as they pursue bad guys on the water. I’m pretty sure that the original intent of the Migratory Bird Treaty Act wasn’t to provide this sort of vehicle for lawyers, but it sure has come in handy for the Department of Justice in recent years.

According to the DOJ press release, Cota could be sentenced to serve between two and ten months in prison and be fined as much as $30,000. And, to anyone who still thinks that the pilot is “merely an advisor to the Master,” the U.S. Government has news for you. In fact, the Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division characterized the allision as “a criminal act.” And one has to suppose that Cota was guilty of something, especially if he agreed to the plea deal. The trial date for the remaining defendant in the case, the ship’s manager, Fleet Management Ltd. (Hong Kong), has been set for September 14, 2009. It remains to be seen what their collective guilt and associated liabilities – company, officers and crew – will be.

Ship pilots, at least in this hemisphere, have always been well compensated for what the DOJ characterizes as “their special knowledge of ships and expertise in local waters”. And, I think that this appropriate. At this point, the heavy burden of liability is now, without a doubt, squarely on their shoulders, as well. You can argue that it always was, but the Rules of the Road examination that I sat for in 1980 sure didn’t word it that way. My guess? Look for marine pilots to begin to seek, and insurers to write, comprehensive liability insurance policies that closely resemble that which physicians have carried for years. It won’t be cheap.

This week, Joseph Russoniello, U.S. Attorney for the Northern District of California, said in a prepared statement, “This case should sound an alert to those in the maritime industry that safety rules and procedures are meant to be followed, safety equipment is expected to be used, and that those who act otherwise and despoil our natural wonders will be prosecuted to the full extent of the law.” My interpretation of that statement goes one step further: No longer will any incident at sea or on the waterfront be treated first as a mistake or accident. Instead, these are now “criminal acts.”

A life spent at sea has never been considered particularly easy. On the other hand, I sure would like a shot at a mate’s berth on that RO-RO / Car Carrier with the squash court and swimming pool. For everyone else, however, a difficult profession that still involves extended periods away from home now comes complete with the assumption of criminal activity when something goes wrong. Couple that with the risk of piracy in certain waters and it gets even less appealing. Certainly, there are serious responsibilities that come with that fat paycheck, but I for one would not want to go to sea in this environment.

The COSCO BUSAN case, thus far, has chiefly centered on the well-paid pilot of the unlucky vessel. His fate, now in the hands of the legal system, will arguably have far reaching consequences for harbor pilots everywhere. In my mind, however, the choppy wake of this disaster will mean much, much more. And if anyone is wondering why there is still a shortage of qualified mariners – the current global financial crisis notwithstanding – they need to look no further than the federal courtrooms of the Northern District of California. - MarEx

Read the Coast Guard’s COSCO BUSAN Investigation Report by clicking HERE.

Joseph Keefe is the Editor-in-Chief of THE MARITME EXECUTIVE. He can be reached with comments or questions on this editorial and/or any other article in this e-newsletter at [email protected].