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The interesting and disturbing news that the “COSCO BUSAN CREW DETAINED WITHOUT CHARGES” raises the concern that it can happen to U.S. mariners too. Asian jails are not comfortable.The fact the Captain and six crew members are available for testimony is encouraging as they may be able to fill in the blanks (Who was directing the navigation of the vessel when it allided with D tower, etc?), but the process is deplored. Regardless of nationality, innocent mariners should not be detained without proper process.

The need for facts is recognized and the availability of the COSCO BUSAN’s Captain and some crew members is necessary to obtain their statements, although the validity may be questioned. It would appear the accusers were unable to obtain legal process to depose key persons and therefore resorted to processes that are not appropriate and certainly not acceptable by international standards.

However, sometimes there is more than the printed story. Is it possible that the detention is mutually agreeable? Is it possible the Captain and his mates agree to this? ( A trip to Disney Land would sway me) Or maybe the PRC has more pressing business (Tibet), or the owners find it cheaper to let the U.S. pickup the food and berthing rather than transport them back and forth for hearings and trials?

John Denham is a retired USN Captain, Licensed unlimited Master and Pilot, maritime academy teacher,and author with extensive experience as a marine consultant. He is also author of The Assistant and DD 891.

The Department of Justice has submitted “information relative to a criminal action ” in U.S. District Court in San Francisco, California; an accusation against a mariner for violating The Clean Water Act and The Migratory Bird Treaty Act. As a criminal case it will be processed not in Admiralty, but in criminal court, where there is a more relaxed and lesser general acceptance for technical qualification and terminology. The urgency in this priority matter may be a limitation in the Statutes or they are not very busy at DOJ. However it should be noted this an accusation for violating two acts, not an allision between a ship and a fixed object. Shaft alley lawyers, don your caps and peruse.

The defendant, JOHN JOSEPH COTA, did negligently (failed to act as a reasonable person might do in similar circumstances) cause (personally did) the discharge of oil in such quantities as may be harmful from a vessel, the M/V Cosco Busan, into and upon the navigable waters of the United States, without a permit. (Can one discharge oil with a permit?) Specifically, on or about November 7, 2007, Defendant Cota, while piloting the M/V Cosco Busan,(it has not been proven that at the time he was directing the navigation and movement of the vessel) caused approximately 58,000 gallons of heavy fuel oil to be discharged from the vessel into San Francisco Bay by acting in a negligent manner,(Supra) that included the following: (a) failing to pilot a collision free course (Supra; made it safely from Oakland to buoy #1); (b) failing to adequately review with the Captain and crew (all of them?) of the M/V Cosco Busan prior to departure the official navigational charts of the proposed course, (only one route out of Oakland) the location of the San Francisco Bay aids to navigation,( not reported as yet; only 18 aids not including bridge) and the operation of the vessel’s navigational equipment; (c) departing port in heavy fog ( term has no professional meaning: although reported as .1 mile) and then failing to proceed at a safe speed (too may variables and special circumstances involved) during the voyage despite limited visibility; (d) then failing to use the vessel’s radar (operational ability unresolved) while making the final approach to the Bay Bridge; (e) failing to use positional fixes during the voyage; and (f) failing to verify the vessel’s position vis-a-vis other established and recognized aids to navigation throughout the voyage. 33CFR164.11 “The owner master or person in charge shall ensure that: (a) the wheelhouse is constantly manned by persons who: (2)Fix the vessel’s position.”

All alleged in violation of Title 33, United States Code, Sections 1319(c)(1)(A) and 1321(b)(3), a Class A misdemeanor. Reviewing the above it is obvious that owners, masters and person in charge of vessels should make all employees aware of the possibility of enforcement by government of these acts, The media has correctly expressed, “they intend to make examples.” The courts, including those selected as jurors , under instruction, will expect a high professional standard of performance of licensed and documented mariners, seafarers and private boaters. It is possible with a proper defense, one may escape penalty, but the experience is devastating and costly.

This article was written by Captain John Denham, a veteran of 66 years maritime experience in seamanship, ship handling, navigation, piloting, and education. He is also author of The Assistant and DD 891.

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The following is the documented federal charges against Cosco Busan pilot John Cota. [Continue Reading →]

AP Photo: The damaged Cosco Busan is seen in Oakland, Calif., on Saturday, Nov. 10, 2007

The Associated Press is reporting that criminal charges were filed today against Capt. John Coda in the Cosco Busan allision with the San Fransisco Bay Bridge, back in November 10, 2007.

Here’s an excerpt:

Capt. John Cota could face up to 18 months in jail and more than $100,000 in fines if convicted of the misdemeanor charges, which include harming migrant birds protected by the government and violating the Clean Water Act. Cota was not taken into custody, according to court papers.

The complete post is HERE.

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This post was written by Richard Rodriguez, Rescue Tug Captain, and US Coast Guard approved instructor for License Training. You can read more of his articles at the BitterEnd of the net.

The following post is written by Fred Fry:

This is from the 13 December 07 Haight’s Maritime Items email newsletter:

San Francisco sues everyone re oil spill - The Office of the City Attorney issued a press release stating that it filed suit under state law against parties allegedly responsible for the November 7 oil spill in San Francisco Bay. In addition to financial compensation, the suit seeks an injunction requiring defendants to implement a plan to assess, monitor, and remediate all damages caused by the spill. Defendants include the owner, operator, manager, pilot, and John Does 1-100. (12/10/07). - Dennis Bryant

You can find a copy of the lawsuit here. (Direct Pdf link here)

He’s not kidding when he says that they are suing everyone. Of note is this comment about 100 John Does who the City of San Francisco also named as defendants:

14. The true names or capacities, whether individual, corporate, associate, or otherwise, of DOE I through DOE 100 are unknown to plaintiffs, who therefore sue such defendants by such fictitious names, and who will amend this complaint to show their true names and capacities when ascertained. Plaintiffs are is informed and believe and thereon allege that each of the defendants designated as a DOE is responsible in some manner for the wrongs herein referred to and thereby proximately caused injuries and damages as alleged herein. - Link (page 7)

Do they really think there are over 100 people responsible for this spill? Who knows, at least the lawyers think that it is possible. You can bet that they will target specific shoreside support staff in addition to members of the crew with that many empty spots to fill. It will be interesting to see who they name, considering the international call not to criminalize seafarers. The pilot so far is the only person named in the suit.

NOTE: As of the time of posting, the City has yet to name any of the 100 John Does. So there are a good number of people out there who are being sued, they just don’t know it yet, for sure.

This was originally posted on my Blog Fred Fry International on 13 December 2007.

The Anatomy of Allisions

By Captain John G. Denham.

The recent accidents on the waters of San Francisco Bay has triggered the attention of maritime afficiando and many others. 7 November 2007 the COSCO BUSAN allided with the San Francisco Bay Bridge and spilled thousands of gallons of fuel oil in the bay. On 11 January 2008 the barge CASCADE allided with the bridge at Point San Quentin and in the early morning hours of Wednesday 16 January the tug TRIG LIND with a barge carrying sand navigated its way into a bridge on the Petaluma River. On 14 February an inbound container ship lost power near Fisherman’s Wharf and drifted until tugs arrived.

COSCO BUSAN was piloted by a San Francisco Bar Pilot. The oil barge CASCADE was being towed by PACIFIC WOLF and the DELTA DEANNE and was exempt from mandatory pilotage; one of the tug captains was in charge of the navigation and movement of the flotilla. In the early morning hours the 71 foot tug TRIG LIND with a 206 foot loaded barge allided with the railroad bridge and caused minor damage.

The COSCO BUSAN allision investigation is reported complete as far as the state is concerned. 1 of 2 USCG Incident Specific Preparedness Review (ISPR) reports has been published. A California state Administrative Law Judge hearing has been set for 28 April 2008.That hearing will attempt to determine the cause, find fault and make recommendation to the governing agency, the SF Bar Pilot Commission. Thereafter, state and federal agencies will determine the parties considered negligent and or responsible and will undertake appropriate action as permitted by law. Later the state of California et al, will sue the COSCO BUSAN and the bar pilot for damages etc. Monetary awards will be adjudicated. Politicians will make rules. The cause, human error, will be announced but the reasons may never be fully explained, however there are plausible explanation for all the reported alleged facts.

The CASCADE’s allision with the bridge at Point San Quentin (San Rafael-Richmond Bridge) presents a different situation. The tug PACIFIC WOLF, an 111 foot, 4100 horsepower tug and the CASCADE an OPA 90 double hull 300 foot barge are reported to be owned and operated by K-Sea Transportation. The tug DELTA DEANNE a tractor tug,108 feet in length with 4400 horsepower is owned by BayDelta Maritime. The grieved appears to be the bridge i.e., the state of California. Responsibility and fault will have to be determined. Courts have defined the duties and responsibilities of tug masters and therefore the question of who was in charge will be of primary concern.

The number of recent accidents involving petroleum product is unquestionably going to generate political rhetoric and probably some unnecessary rule making unless [Continue Reading →]

A Word On Vessel Traffic Service

by Captain John Denham

The purpose of a Vessel Traffic Service (VTS) is to provide active monitoring and navigational advice for vessels in particularly confined and busy waterways. There are two main types of VTS, surveilled and non-surveilled. Surveilled systems consist of one or more land-based sensors (i.e. radar, and closed circuit television sites), which output their signals to a central location where operators monitor and manage vessel traffic movement. Non-surveilled systems consist of one or more reporting points at which ships are required to report their identity, course, speed, and other data to the monitoring authority. They encompass a wide range of techniques and capabilities aimed at preventing vessel collisions, rammings, and groundings in the harbor, harbor approach and inland waterway phase of navigation. They are also designed to expedite ship movements, increase transportation system efficiency, and improve all-weather operating capability.”

The above quoted purpose of VTS is considered inaccurate based on the purposes state by two of California’s most involved VTS; San Francisco and Los Angeles. Contested are the words active and manage although included in its purpose, in fact these words are not factual. Active can infer real time or instantaneous and manage can be interpreted to mean supervisory and or directive by order or command.

The rules to prevent collisions require that all vessels shall maintain a proper lookout by all available means as appropriate. The Federal Code of Regulations and the U,S. Code require if radar is installed it should be operational and operated by qualified observers. And, the ordinary practice of seaman implies that mariners should use common sense, professional skill and apply lawfully mandated procedures in a seamanly manner. Therefore, as per the ordinary practice of seaman, if VTS is available, one should accept its assistance as it fulfills the requirements of proper seamanship.

The missing ingredient for VTS fulfillment is local knowledge, skill and experience; the primary traits of pilotage. Unquestionably an experienced pilot is a great asset to help complete or commence a successful voyage. The public relies on pilots to protect them from marine catastrophes caused by wayward ships. The history of ocean transportation is replete with testimony where nations have invoked strict rules to control ill prepared ship masters from causing calamities in peaceful harbors. Mandatory pilotage is a business, a profession and a public safety measure. VTS was conceived as a tool to increase that safety measure.

All VTS are not the same although the purpose is. San Francisco and Los Angeles California are in the same state and yet the two VTS operate and are managed differently.

San Francisco

“We (USCG) execute our mission by MONITORING vessels movements, INFORMING mariners of other vessels and potential hazards, RECOMMENDING courses of action when we see a situation that the mariner may not have seen, and DIRECTING the outcome of situations when necessary to prevent disasters.”

Los Angeles-Long Beach

The goal of the Los Angeles/Long Beach VTS is to provide seamless navigational information to improve vessel transit safety. The USCG/Marine Exchange/Los Angeles and Long Beach pilot organizations have worked together to create a unique system. It is a cooperative effort of the State of California, the USCG, Marine Exchange of Southern California and the Ports of Los Angeles and Long Beach under the authority of the California Code, Harbor and Navigation sections.

Using one recent example: M/V Cosco Busan allision with the fender on “D” tower of the San Francisco-Okland Bay Bridge on November 7, 2007, a casual reader can determine by the mission statement alone, the San Francisco VTS was not oriented to fulfill the needed leadership and coordination role of a VTS.

San Francisco VTS is a government facility operated as a service and not a system. Its function is authoritative and not cooperative and it exists within its own environment, rules and controls. Although participating in community maters there is no functional capability to provide local knowledge, skill or experience in a seamless manner to increase harbor safety. The lack of those needed traits, local knowledge, skill and experience in preventing accidents was confirmed on 7 November 2007. However, readily available a short distance away is an abundance of such traits. The state of California supports the San Francisco Bar Pilots and provides a franchise to guarantee a proper life with regular employment and benefits. Whereas the SF VTS relies on relatively young persons lacking in local knowledge, skill and experience to safe guard the waters of the bay and region .It seems that some arrangement could be reached whereby those traits were constantly available in the VTS in San Francisco.

Captain John Denham is a veteran of 66 years maritime experience in seamanship, ship handling, navigation, piloting, and education. he is also author of The Assistant and DD 891 .

OPA 90, the legislation enacted after the Exxon Valdez incident mandated double hull technology, essentially wrapping a second hull around the first, on all newly built tankers. While this has been mostly effective and (had it been mandated for use on container ships) would have prevented last year’s San Francisco Oil Spill, it fails to protect the environment during catastrophic groundings. Mo Husain of MH Systems, Inc. has recently worked on perfecting alternative means of “loss of containment” prevention. He tells us:

CONCEPT MADE SIMPLE
Imagine a Straw…

The underpressure concept is best understood by making an analogy with which most people can identify. Imagine sipping water half-way up through a straw and sealing off the top of the straw with your fingertip. A simple principle of hydraulics allows the water to be held in the straw at this level until the finger is released.

This same principle allows oil to be contained within the hull should a rupture occur in the tank. When a tanker is loaded, the oil level inside the tank is higher than the surrounding seawater level. This causes a higher pressure to exist inside the tanker due to hydrostatic pressure. Normally, when a hull is ruptured, the pressure inside forces oil to flow out up to the level of the surrounding seawater (discounting density). Using AUPS, this complete loss would not occur.

The system equalizes the pressure inside and outside the tanker at the rupture point by applying a slight underpressure of 2 to 4 psi in the ullage space of the tank. As oil flows out, it is replaced by seawater up to the rupture point only. Oil loss is held to a minimum as all oil above the rupture point will remain in the tanker. In the event of an accidental grounding bottom rupture, AUPS would prevent virtually all oil spillage from the tanker.

For a comprehensive look at this system click HERE and for the work Mo is doing on Ballast Water Treatment visit his company’s blog found HERE.