MarEx Mailbag:
The Mailbag is heavy this week as readers respond to last week’s editorial.
Last week, our lead piece centered on the COSCO BUSAN allision, and specifically, the DOJ’s announcement of a guilty plea in the case. The editorial, entitled “COSCO BUSAN (almost) in the Rearview Mirror”, struck a chord with more than one reader. In the piece we lamented certain things and expressed an opinion that the case might have far reaching consequences for harbor pilots everywhere. More importantly, the (apparent) immediate assumption of criminal behavior might give others pause who are thinking about going to sea. Not everyone agreed with the premise, however.
You can read the editorial, first put online on March 12th, by clicking HERE. You can also see what our readers had to say about it below:
Joe,
I am not unsympathetic with complaints over the use of criminal statutes, such as the migratory bird act, to punish what is arguably simple negligence.
But what some people advance as being simple human errors are not that at all. Rather, they are egregious failures to behave in a responsible manner.
On land we have long had criminal prosecutions for driving behavior that causes serious accidents and all too often needless deaths. Criminal negligence, vehicular manslaughter, reckless endangerment, and other similar charges are widely accepted as being proper. It was not always thus and we can both remember when drunk driving was a rite of passage and something that “real men do.” Now we know better. Unfortunately, it took the deaths of far too many innocents and some angry mothers to change our thinking about driving after having had one too many.
A careful reading of the COSCO BUSAN accident investigation reveals something far worse than simple negligence. Any effort to curtail the “misuse” of the migratory birds act is going to need a far more sympathetic poster boy. I am sure there is one out there, or that one will someday be found. But the pilot of the COSCO BUSAN isn’t the guy.
Regards,
Bob
Robert G. Ross
Chief, Risk Sciences Branch
Special Programs Division
Science & Technology Directorate
Department of Homeland Security
MarEx Editor’s Remarks: Mr. Ross writes in from time to time with his perspective. And, his letter this week certainly brought out another side of the equation. It deserves to be read by MarEx readers, too. Thanks for weighing in, Bob. Another reader perhaps gives a similar slant on things:
I came away from your article feeling "poor Cota, it really was not his fault" and by saying it was would diminish the ranks of those who want to be pilots.
However, I would like to think you were NOT really trying to defend this:
As part of the plea agreement with Cota, the government agreed to dismiss pending false statement charges relating to allegations that Cota failed to disclose his medications on required Coast Guard forms in 2006 and 2007 necessary to maintain his license, and which the court ruled would be tried separately from the case involving the Cosco Busan incident. Cota admits in the plea papers filed today that his 2006 physical exam form failed to disclose some of the medications he was prescribed including Provigil (a medication prescribed to treat sleep apnea), Lorazepam (an anti-anxiety medication that had been prescribed as a sleeping aid), Vicodin (a pain medication), Tylenol 4 (a pain medication), Darvon 65 (a pain medication), Zoloft (an anti-depressant prescribed for an off-brand purpose) and Ambien (a sleeping aid). Regarding the form he signed in 2007, Cota admits that three medications, Vicodin, Zoloft and Tylenol 4 were not disclosed to the Coast Guard. According to the plea papers, while Cota reported taking various other drugs "occasionally" on the 2007 form, he now admits that he "refilled many of these prescriptions regularly."
Regards,
Jerry
MarEx Editor’s Remarks: Not at all. What I wanted to highlight was the ramped up effort on the part of the government to prosecute anyone on a boat using the most creative of methods and what this could well mean for the business down the road. Your referenced paragraph above sure sounds pretty bad. And so, in this case, you bring up the same point as Bob Ross, who says, “Any effort to curtail the “misuse” of the migratory birds act is going to need a far more sympathetic poster boy. I am sure there is one out there, or that one will someday be found. But the pilot of the COSCO BUSAN isn’t the guy.” Perhaps not.
Hi Joe,
Thanks for a good article on the fate of US pilotage (3-12-09). Since my retirement as a harbor pilot in Southwest Alaska, Pacific Maritime Institute has engaged me on a consulting basis to assist with pilot trainee evaluations for various pilot associations. These evaluations have attracted high quality candidates in sufficient numbers to replace retiring pilots. The question going forward will be whether the inclination by the DOJ to characterize “errors in judgment” as “criminal acts” will reduce the quantity or dilute the quality of prospective candidates for the pilotage profession.
All the best,
Capt. Jim Wright
Southwest Alaska Pilots Association (Retired)
MarEx Editor’s remarks: Another good letter that correctly points out that there is likely no solid evidence (yet) that people will not go to sea just because of the heightened legal risks. Captain Wright reports that he is getting sufficient high quality candidates to replace retiring pilots. Fair enough. Here’s another:
Dear Joe,
Have not written lately, but I always read your articles with great interest. I had to respond to your last article "COSCO BUSAN (almost) in the Rearview Mirror". Once again you have nailed down why mariners are becoming more scarce even with excellent pay and benefits. I have no idea what is in store for the Master of the Cosco Busan, but based on what happened to the pilot, I imagine it will not be very pleasant. To be involved in a collision is difficult enough, but now it will be exasperated by adding criminal charges to an already unfortunate situation. How well do you think this would go over with motorist if they were charged criminally for every car accident they were involved with. After all that is why we call them accidents, we did not start the day out thinking "Gee who can I plow my car into today?" Conversely the master of the Cosco Busan did not leave the docking thinking "Gee I wonder if I can plow my ship into a bridge today!" Conceptually it is very similar. Yes there are times where criminal charges should be levied, i.e. drug use, dereliction of duties, improper professional licensure, etc. Unfortunately every mariner, especially the master of a vessel, will be concerned that a minor mishap may turn into a criminal event of epic proportions. I can think of a few incidents in my 20+ year carrier that under today’s climate would have qualified as criminal negligence even though the events were completely out of my hands. This ruling does not bode well for the maritime industry.
Sincerely,
Dean Kalmukos
PS: My last command was on board a very nice car carrier with swimming pool, squash court, exercise room and a bar (no liquor). Trust me when I say they did very little for the day to day stress of bringing that ship in and out of port in 30kts winds. Technically, 30kts was the cut off point and 29kts was a go - riiight!
MarEx Editor’s Remarks: Mr. Kalmukos has indeed written in before. IN this case, I think he articulates very well the fears of many mariners in today’s regulatory climate. I still want a whack at that job on the car carrier. I imagine myself phoning the bridge and asking them to change course slightly so as to make my afternoon squash match go a little smoother. Here’s one more letter:
Capt. Keefe,
Well written and spot on. Human error or error in judgement has been criminalized for mariners. Perhaps I simply overlooked the case, but when was the last time the US AGO went after an airline pilot for crashing his airliner? Never mind causing multiple deaths. Like the airline pilot that crashes his airliner, Cota did not step onto the bridge of the Busan thinking he'd crash into the Oakland Bay Bridge.
Apparently if you deliberately steal $50 billion and destroy the financial future of thousands, you get an ankle bracelet in your penthouse and 15 years in jail (no legal expert believes Madoff will serve the full sentence). While your wife and family keep millions to "survive" on.
But if you don't kill anyone, accidentally cause $50 million damages instead of $50 billion, the US Attorney General will take everything you and your wife have.
Thank you for a well articulated article.
Grant Livingstone
Author “Tug Use Offshore" Nautical Institute, London
Pilot, US West Coast
MarEx Editor’s Remarks: I can’t think of anything to add to this one. It is a strong opinion. Thanks to the writer for calling me “Captain.” On the strength of my Continuity (only) 1,600 ton Master’s ticket, I accept for the day, the honorary title.