John Cota sentenced to 10 mo.

[Mikey]

via SFGate.com

(07-17) 13:28 PDT SAN FRANCISCO -- The pilot of the container ship that hit the Bay Bridge in 2007 and spilled more than 53,000 gallons of fuel oil was sentenced to 10 months in federal prison today.

Capt. John Cota, 61, pleaded guilty in March to misdemeanor charges of negligently polluting the waters and killing more than 2,000 migratory sea birds that were caught in the oil slick from the Cosco Busan.

At today's hearing in San Francisco, defense lawyer Jeffrey Bornstein asked the judge to sentence Cota to two months, the minimum provided by his plea agreement. Bornstein said Cota had admitted responsibility for the accident but that many others were also at fault, including the ship's crew and the Coast Guard, which failed to order the ship to change course before hitting the bridge in a thick fog the morning of Nov. 7, 2007.

U.S. District Judge Susan Illston agreed that "there's plenty of blame to go around." But she said Cota's negligence was the type of conduct that Congress intended to punish when it stiffened maritime criminal laws after the 1989 Exxon Valdez oil spill.

Illston imposed the maximum prison term in Cota's plea agreement but did not fine him, noting that he is still a defendant in several lawsuits.

Fleet Management Ltd., which operated the Cosco Busan, also faces criminal charges of negligently casing the spill and destroying documents to interfere with a federal investigation. The company is scheduled to go to trial in September.

[c.captain]

I'm shocked nobody has started to talk about this!

Here is an editorial from Joseph O'Keefe at Maritime Executive that says volumes!

Game Changer: Reflecting on the COSCO BUSAN Debacle

Thursday, July 30th, 2009
<O</O
Impact of Cota’s jail term goes far beyond liability issues.

The wide-reaching implications were not lost on me last week when Captain John Cota was sentenced to 10 months in prison for his part in the Cosco Busan disaster in San Francisco Bay. The sentence, whether or not it was severe enough for the crimes that Cota pled guilty to, first served to remind mariners everywhere that the U.S. Department of Justice is not messing around. Not withstanding what may or may not happen to the operators and crew of the ill-fated ship, mariners everywhere now know – if they didn’t already get the message – that mistakes made on the water will be prosecuted to the full extent of the law. And this goes far beyond the liabilities inherent in honest mistakes, blatant negligence, or anything in between.

I report on all sorts of pilot issues on a regular basis through this vehicle, as well as in our print editions. That coverage extends to pilot rates, equipment, safety and a host of other subjects. The important thing to take away from last week’s DOJ announcement, however, is that no aspect of pilot business – at least in this country – escaped unscathed. Guiding deep draft marine traffic in and out of America’s harbors has changed forever. And, there is little in the way of good news for anyone in any of that metric. Cosco Busan was a game changer.

Nothing passes for a minor incident anymore on board any ship in U.S. waters. And, for those who are unclear on the concept, the final DOT rule on “Direct Observation” is now out and is official (see elsewhere in this e-newsletter). Rest assured: they are going to watch you pee. And, that’s not the worst of it. The seemingly weekly DOJ announcements that we research, pick up and put on line are ample evidence to all of that. Mariners are liable for everything, everywhere and every time. Get used to it. In the meantime, however, those of us hanging around watching from the cheap seats in the office ought to start paying attention, too.

With the liability issue settled and behind us, it is time to look at this issue from the perspective of the “maritime executive.” That’s our demographic – or at least, I hope that’s the case. The typical reaction of most maritime businesses to the cost of pilotage is to complain about the high and ever-increasing cost of this service. I suppose that you could count me as one who has expressed that opinion once or twice, as well. The latest surveys that I have seen have the average pilot making about $400,000 annually; some more, some less. Looking at the current situation, however, I might have to someday reconsider my position.

A while back, I was chastised by some MarEx readers for taking exception to the NTSB’s handling of the Cosco Busan allision investigation. The readers (a.) didn’t necessarily think that Captain Cota would qualify as the “poster child” for that sort of argument and/or (b.) bemoaned the fact that the vessel in question could have probably been driven sideways under the bridge without hitting it, had the job been handled correctly. Fair enough. But, these arguments are beside the point, now.

Highly trained and skilled marine pilots are also highly paid professionals. And if the reasons why weren’t evident before, then they certainly are now, at least to me. The people who guide deep draft traffic in and out of port have to get it right, every time. If not, then they are probably going to jail. That sort of risk deserves to be appropriately compensated. At what level those rates should be set is another question altogether and, a job for someone else.

The business of running a safe, compliant and efficient pilot organization is not an inexpensive proposition. Those costs are about to go up again. This could involve any number of line items, but I’m guessing that insurance will be a prime contributor to that spiraling bottom line cost. Whatever you may think of marine pilots in general, the stakes got a lot higher last week for all of them.

If, in the past, the pilot was “merely an advisor to the Master,” then those days are over for good. That said, the grand jury indictment also charges Fleet Management Limited (Hong Kong), a ship management firm, with the same alleged offenses as well as false statements and obstruction of justice charges. Trial in that case is set for Sept. 14, 2009. The DOJ says that all defendants are presumed innocent until proven guilty at trial beyond a reasonable doubt. Still, it will be interesting to see what level of liability is eventually decided for the ship and its crew in this case. Clearly, the bar was set pretty high for the pilot.

Some time prior to next week’s e-newsletter, I wonder if someone couldn’t tell me the answer to the (mock) sample Coast Guard question that I’ve inserted at the end of this column. I think that I used to know the answer, but now, I am not so sure. The one thing that I do know is that the game has changed, forever. – MarEx.

1. What is the relationship of the Pilot and his responsibilities to the vessel and the Master?

a.) The Pilot is in command of the ship;
b.) The Captain and the Pilot share responsibility;
c.) The Pilot is an advisor to the Vessel and Master; or
d.) None of the above.

I've already made my opinions on this very clear before...pilots have been for decades an overpaid yet underscrutinized mafiosi who have always cowardly ducked responsibility for their stupid blunders under the "I'm only an advisor" claim.

Time now that their feet are held to the fire, I'll be waiting to see how many howl and run away!

[CampbellsChunkySoupra]

Wow, i remember hearing about that. Interesting to see how it all played out! Unfortunate, but we are talking about thousands of marine life at stake...not to mention millions of dollars of assets and products on board a ship like that.

[c.captain]

I’ve given some thought to the potential fallout from Cota getting sentenced in criminal court and having to do time in prison. I have to believe that as Joseph O’Keefe speculated that this will likely be a game changer to the established order maintained by pilots associations around the country. Suddenly one is no longer able to hide behind the “only an advisor to the master” defense and the liability only being limited to civil court. I cannot help but believe that just about any pilot now who has time enough to retire will head for exit and the endless days spent on the golf course lifestyle. Better now to leave it all to the young fresh fish to take on all the grief and potential fallout from making even a minor mistake because that is what this means. From now on even a minor error made by a pilot which results in pollution, significant damage or injury is not only going to end that pilot’s career but will lead him into years of court battles unless he rolls over like Cota and just takes a plea bargain and then could likely put that person behind bars. Pilots are now faced with a lose/lose situation and only the money can make it worth accepting that Faustian bargain. It’s a great job unless you screw up so don’t screw up or God help your pathetic soul! Will it now be best to weed out the old and less that competent (as was Cota on both counts) and replace them with a new breed who will hopefully not fall victim the “good old boy” secret society ways where the lousy, hapless and arrogant were protected by their own. Can the whole business of pilotage in this country be run with a new model or will it forever be stuck where it has been for over a century now? According to O’Keefe the old days and old ways are gone now but I think the jury is still out on that one…

If this comes to pass, there will be a sudden shortage of pilots all around the country and obviously a great recruiting effort to bring in the new blood which has been lacking in the business up until now. How many will accept the old practice of being an unpaid apprentice for two or more years before starting to earn a living again? Who are they going to find? STCW and medical standards are already reducing the number of senior deck officers out there. I’m one of the lucky who earned a big tonnage ticket before the rules changed but I know many younger officers who are hoping to upgrade to unlimited chief mate and then master but are faced with a fortune in time and money to attend schools to teach them what they already have been taught at the academies they attended. For myself, I am willing to put myself in legal harm’s way to be a pilot because I am already in legal harm’s way as a master so what is the difference except for the pay? I myself just cannot accept selling my soul for the two or more years without compensation and if there is an association ready to pony up and pay me for the training time then I’ll make the leap but not until then.

Yup, there might well be some very interesting times ahead!

[stevefoster]

"Nothing passes for a minor incident anymore on board any ship in U.S waters." From Joseph O'Keefe's article.......

Um.........Bullshit, I know of a recent grounding on the SP Pass Jetties in which the licensed mate that ignored calls from numerous other vessels advising him that his course was about to put his SATURATION DIVING VESSEL on the rocks still has his license........

[c.captain]

After COSCO BUSAN I don't think a pilot would get that same break which btw, is staggering to realize. How in the name of God did that clown manage to not lose his license when he ran the SEALION on the rocks like that?!?

[stevefoster]

After COSCO BUSAN I don't think a pilot would get that same break which btw, is staggering to realize. How in the name of God did that clown manage to not lose his license when he ran the SEALION on the rocks like that?!?

My information is that he quit right away as soon as docked and was not heard of since. I don't know of any proceedings against his license even though the Coast Guard was thouroghly involved in the monitoring of the incident from the time of the grounding, the rescue of the Sat. Divers onto the Pioneer, and the monitoring of the towing of the vessel off the rocks. The Sea Lion has been decomed and no longer usable as a diving vessel.

[Mikey]

Joe Keefe has issued a follow up to last weeks article titled "“Game Changer: Reflecting Back on the COSCO BUSAN Debacle,” (posted above by c.captain) in this weeks edition of the MAREX Newsletter. For those of you who haven't already, you can sign-up for the MAREX newsletter to be delivered to you inbox every Thursday, HERE

(Still) Reflecting: COSCO BUSAN Debate Rages On

Thursday, August 6th, 2009
Maritime Industry and Regulatory Bodies weigh in on the ultimate consequences – if any – of the COSCO BUSAN Allision.

Last week’s lead editorial entitled, “Game Changer: Reflecting Back on the COSCO BUSAN Debacle,” was, far and away, the most widely opened article in this e-newsletter in more than two years. Not surprisingly, the article also triggered a flood of mail in similar volumes. To say that the legal aftermath of the COSCO BUSAN incident is one of the most closely watched maritime stories since the EXXON VALDEZ and the advent of OPA-90 would probably not be overstating the case. There are good reasons for that. But don’t take my word for it; our readers prove this point far better than I could ever hope to put it into words.

This week, I thought long and hard about what to focus on in this column. In the end, I knew that I couldn’t hope to top last week’s effort in terms of reader interest and response. So, I’m not even going to try. Instead, I will point your attention elsewhere to see what industry leaders, pilots and just plain-old-observers had to say about the changing landscape of the business of marine pilots – here and around the globe. Not everyone is in agreement as to what, if anything, will be the most significant impact of COSCO BUSAN. You should know, however, that the United States Coast Guard has advised me that, as far as they are concerned, nothing has changed. This week, they said in an E-mail to MarEx, “The simple answer is there has been no change in the relationship between the pilot and the master.” (*)

The virtual flood of mail that came in this week also included a .pdf file (access it HERE) that outlines a July 15th letter (reportedly) sent to agents in the Gulf Coast area. The letter, dated July 15, 2009 and sent by the Pascagoula Bar Pilots Association LLC, lays out the (Tariff and Pilot Liability) conditions under which these pilots will provide service in the future. The letter included a form whereby agents are being asked to indicate by their signature that they agree to these conditions. It would be fair to say that this development, if deemed legal, will impact pilot matters here and elsewhere.

If you don’t always open our regular MarEx Mailbag feature, then this week would be a good time to change that habit. Usually the second article in any one of our MarEx e-newsletters, this feature allows MarEx readers the opportunity to provide feedback and insight on our articles and the hot-button issues of the day. This week’s entries come from a wide range of experts who tell it like it is. As such, they can do the talking this week. We’ll hit the ground running with another hard-hitting editorial in next week’s MarEx e-newsletter. Until then, check out the MarEx Mailbag feature that immediately follows this entry. – MarEx.

(*) Good tip for those of you getting ready to take your Rules of the Road license exams.

[auxiliaryComms]

Pardon my ignorance but since when was a Coast Guard radar operators job to order the master of a ship to change his course? The details I remember said that they warned him of the danger several times and he ignored them. I was always under the impression that those kids are there to give information, if the guy driving ignores it, what are they supposed to do?

[Jeffrox]

Pardon my ignorance but since when was a Coast Guard radar operators job to order the master of a ship to change his course? The details I remember said that they warned him of the danger several times and he ignored them. I was always under the impression that those kids are there to give information, if the guy driving ignores it, what are they supposed to do?

Our impressions are certainly different on this issue; what "kids" are you referring to? If you are referring to Coast Guardsmen the first point I wrap my mind around is that they are Federal Law Enforcement Agents, they have authority in the USA, as do VTS folks elsewhere in the world.

The matter of enforcement is the problem; if Cota was told he was standing into danger by VTS and he ignored them, he's the skunk not the VTS. The VTS folks should have ordered Cota, but he probably would have ignored that also.
That's my impression, I'll have to do some research on what EXACTLY the VTS' authority is. I would like to think someone in Cota's position would know the answer to this but he may have had arrogance in his way.

[auxiliaryComms]

Our impressions are certainly different on this issue; what "kids" are you referring to? If you are referring to Coast Guardsmen the first point I wrap my mind around is that they are Federal Law Enforcement Agents, they have authority in the USA, as do VTS folks elsewhere in the world.

I use "kids" because, typically, the people working the front lines in these types of Coast Guard centers are 18, 19, 20 year-old watchstanders.

As for enforcement, I asked a coworker (who will remain nameless as he finishes his Coast Guard career) if everyone, or specifically the VTS operators, in the USCG had enforcement ability. While he wasn't usre if VTS has that authority he did confirm that not everyone in the coast guard has enforcement authority. For example, a cook can go board a boat on a whim and issue citations.

When you look at the VTS page http://www.navcen.uscg.gov/mwv/vts/vts_home.htm they bill themselves as a service to provide advice to mariners. I doubt highly that they have any enforcement ability.

I agree that it probably wouldn't have made a difference if they could have ordered him, that's why I'm always surprised when I've seen blame placed on the CG for this? They told him he was headed for the bridge, what more should it take?

[Robert]

As for enforcement, I asked a coworker (who will remain nameless as he finishes his Coast Guard career) if everyone, or specifically the VTS operators, in the USCG had enforcement ability. While he wasn't usre if VTS has that authority he did confirm that not everyone in the coast guard has enforcement authority. For example, a cook can go board a boat on a whim and issue citations.

Your Coast Guard friend is apparently mistaken about the enforcement authority vested in members of the Coast Guard. First, it is correct that not everyone in the coast guard has enforcement authority. Second, no one, even those with enforcement authority, go aboard on a whim. Third, the cook, assuming she or he is a petty officer does indeed have enforcement authority by statute. That said however, not everyone who has enforcement authority in the Coast Guard is granted permission to use it.

[c.captain]

I'm going to raise something here...why is it that Cota had be be found guilty of violating a migratory bird protection statute? Is there no specific statute to protect the public from gross or willful negligence on the part of a pilot or other ship's officer in command of a vessel?

What if Cota had hit the bridge tower head on and caused cars to crash on it but not a drip of oil ending up being spilled? What crime would Cota have violated in that instance? I suppose endangering the public or something like that but nothing specific to ship operation?

I know that if I make a judgement mistake which leads to the death of a crewmember then as a master I can be held criminally liable. I have seen that happen in Alaska when the master allowed some crew to go off in a skiff and they never made it back. The captain was sent to jail over that for what I believe was gross negligence. Perhaps someone else here remembers the incident?

What I wonder is where does the line between what is a civil administrative and a criminal violation exist for a ship's pilot or ship's master?

[Jeffrox]

WRT the dead oil-soaked birds, I think they go after you with the quickest and esiest charge they can make stick. Like Capone going down for tax evasion but nothing else even though he "is susspected" of doing much worse.

[auxiliaryComms]

Your Coast Guard friend is apparently mistaken about the enforcement authority vested in members of the Coast Guard. First, it is correct that not everyone in the coast guard has enforcement authority. Second, no one, even those with enforcement authority, go aboard on a whim. Third, the cook, assuming she or he is a petty officer does indeed have enforcement authority by statute. That said however, not everyone who has enforcement authority in the Coast Guard is granted permission to use it.

Maybe that's the difference, I'm not much of a filter on the topic.

[Tankerchief]

He took a plea bargain. This allows the government to pursue only one lessor charge and not have to go to the expense of a trial and "proving guilt" on many others. He had many charges against him, but plead out to the misdemeanor charge. He is lucky in that this will not be a felony against him. That really screws up your life.

[Steamer]

What I wonder is where does the line between what is a civil administrative and a criminal violation exist for a ship's pilot or ship's master?

Damifino, but in the case of the bay pilots it didn't extend to one pilot attacking another with a fire axe on the pilot boat a few years ago. The CG found some reason why the normal laws don't apply to them and turned a blind eye.

Maybe that's why some smart prosecutor found a charge that plucked at the delicate sensibilities of the huge number of environmentalists in that area. Most people could care less if the pilots whack each other but they do care about seabirds.