Uncharted Waters: Criminalizing the Cosco Busan Incident

The March 17th DOJ press release that announced that John Joseph Cota, the pilot of the Cosco Busan, had been charged with violations of the Clean Water Act and the Migratory Bird Treaty Act was, perhaps, not unexpected. The aftermath of the November 7th 2007 oil spill as a result of the allision of the Cosco Busan with the San Francisco Bay Bridge will, after all, probably reverberate through the maritime community for decades to come. Like the EXXON VALDEZ incident, which spawned the Oil Pollution Act of 1990, the Cosco Busan allision will ultimately change certain aspects of how we do business on the water here in the United States. But for different reasons.

Well beyond the obvious implications of federal and state prosecutors who seemingly seek to criminalize every aspect of every incident that occurs in U.S. waters, the charges against Cota signal the end of an era for U.S. marine pilots. Even those of us who are not attorneys can see the handwriting on the wall: the time-honored tenet which says that the pilot is merely an “advisor” to the vessel is almost at an end. The ramifications of that concept are only now becoming evident.

Long after the profession of admiralty law had almost slipped (no pun intended) quietly into the primary business of personal injury law, a new facet of this fascinating specialty has emerged. Collisions, allisions and oil spills are no longer simply cause for dismissal or in more serious cases, reason to initiate the dreaded Coast Guard RS-4450 procedure (leading to the suspension or revocation of one’s marine license). And the methods with which the government proceeds against mariners in these cases are becoming increasingly creative -- and obscure.

Arguably, the statutes and oversight that govern the conduct of merchant mariners have always lagged behind that imposed on the trucking, airline and rail industries. If that is true, then it is also safe to say that this era is clearly over. And, this metric is not limited to marine pilots. As one (Captain) Wolfgang Schroeder found out in the port of Mobile, Alabama, a simple allision with a shore-based crane -- one which also tragically cost the life of a shore-based worker -- can result in a lengthy trial and house arrest. Eventually, Captain Schröder, the Master of the Zim Mexico III was convicted of a violation of US Code. Later, he was freed by a U.S. District Judge who sentenced him to "time served" and then ordered him to leave the country. Beyond this, the plethora of cases involving stiff penalties for those who would pollute the environment -- deliberately or otherwise -- should give mariners everywhere real pause.

In the case of marine harbor pilots, however, the assumption that these professionals are merely advisors to the Captain, especially in times of casualty or disaster, can no longer be relied upon. There may be good basis for this change in attitude. With pilot salaries, at least here in the United States, reaching $500,000 or more in terms of annual compensation, there are those who say that, with the pay, there should also come the responsibilities commensurate with those numbers. Fair enough.

With the responsibilities implied by the charges against Cota, however, also comes the duty to stop commerce when it is deemed necessary. And shippers, regulatory players and the consumers themselves may yet come to regret what they wish for. Pilots should now be justified in refraining from any risk when it comes to the guidance of large, deep draft traffic in our domestic ports. Who could blame them if they do? The pressures to expeditiously move cargo have always been significant but the willingness of marine pilots to bend to this particular force will now go away. With that reality, we may very well see safer ports and fewer accidents but we are also going to see a markedly slower supply chain. Count on it.

I don’t know who made the decision to move the Cosco Busan (or why) on that fateful day. Perhaps we’ll never know. What I do know is that last week’s announcement by the Department of Justice changes the rules of the game forever. And, the Coast Guard is very soon going to have to change the answer to a certain multiple choice question on the Rules of the Road Exam, which asks, "What is the role of the pilot on the bridge of a large cargo vessel?" Hint: the answer is no longer “c.” -- MarEx

Joseph Keefe is the Managing Editor of The Maritime Executive. He can be reached with comments on this or any other article in this e-newsletter at [email protected].