The U.S. Department of Justice and the governments of California, San Francisco, and Richmond, Calif., signed a consent decree with Regal Stone Ltd. and Fleet Management Ltd. that requires the vessel owners to pay $44.4 million to cover environmental damage and penalties associated with the oil spill.

The ship, called the M/V Cosco Busan, which is owned by Regal Stone and managed by Fleet Management, crashed into the Bay Bridge Nov. 7, 2007, on its way from the Port of Oakland to the Pacific Ocean. The ship’s fuel tank punctured and spilled the fuel oil into the bay, according to government reports.

The oil spill hurt birds, fish and their habitats and also impacted recreational and other uses of the bay, the government said.

Of the $44.4 million payment, about $23.5 million plus interest will go to the Interior Department; $7.3 million will go to the National Fish & Wildlife Foundation; $1.1 million will go to the city and county of San Francisco and $669,000 to the city of Richmond.

-By Cassandra Sweet, Dow Jones Newswire

In August 2009, Fleet Management agreed to pay a $10 million criminal penalty after pleading guilty to federal charges of water pollution and falsifying documents.

More on this story at the San Francisco Chronicle

Chinese operator of ship that caused 2007 San Francisco Bay oil spill fined $10M

SAN FRANCISCO February 19, 2010 (AP)

A federal judge has ordered a Hong Kong-based company to pay a $10 million fine after the cargo ship it operated caused a massive oil spill in San Francisco Bay.

U.S. District Court Judge Susan Illston also ordered Fleet Management Inc. to better train its officers in navigation and safety Friday.

The fine was expected after Fleet Management reached a deal with prosecutors in August. The company pleaded guilty to obstruction, making false statements and negligent oil discharge.

The 900-foot Cosco Busan spilled 53,000 gallons of oil in 2007 after sideswiping a San Francisco-Oakland Bay Bridge tower.

The pilot, John Cota, was sentenced to 10 months in prison after pleading guilty to two misdemeanor charges.

Company lawyers declined comment Friday, citing active lawsuits over the spill.

via abc News

Some more events unfolded yesterday in the case of the Cosco Busan allision with the San Francisco Bay Bridge.  Fleet Management Ltd., the vessels operating company, plead guilty to two misdemeanor criminal charges and admitted it was partly to blame for the spill of 53,000 gallons of oil into San Francisco Bay.

If accepted, the guilty plea would also expose Fleet Management Ltd. to damages for the costs of the November 2007 spill and cleanup.

Fleet Management has also been charged with six felonies for allegedly concealing its navigation plans for the Cosco Busan and fabricating documents after the spill to interfere with the investigation. Its trial is scheduled for Sept. 14.

Source: San Francisco Chronicle

Recently three ponderous documents have been published  that may eventually affect pilotage, ship management and hopefully bridge resources management (BRM): USCG report on the allision involving the COSCO BUSAN; NTSB report on the same and the public submission by John Meadows and K&L lawyers representing pilot John Cota.

In examining the reports I arrived at the conclusion that the author(s) are mostly legal people, and therefore compose legally but not nautically. In my up-bringing, I was exposed to a knowledgeable senior officer named that assigned me to review a collision report. “Normally,” he said, “I seek an officer with some personal experience in these thing, but they don’t seem to be around much, therefore as you seem to be somewhat involved. Look this over. Pick out the B.S.” He felt the best experts on accidents were those with actual experience. In three earlier published articles the conduct of bridge team management was presented, the procedures for handling pilots was discussed and the role of persons in command was explained. I have experienced all that and at times did not do too well. Since I have learned a lot from others’.

The NTSB and the USCG have compiled more data than an entire class at any law school could digest in a year; most is relevant, but in the attempt to present all the facts it’s thicker than the fog on 7 November 2007. And by the way, “49 USC section 1154(b) precludes the admission into evidence or use of Board reports related to an incident or accident in a civil action for damages resulting from a matter mentioned in the report.” I am impressed with the volume, but wonder how many trees were dropped to promulgate the pages of analysis, conclusions and findings which took almost  two years and may not be admissible.

Having perused (I actually read all three), I noted what I call a land-man conception about the role, duties, and responsibilities of ships’ pilots and the relationship with ship captains. Pilot liability is not mentioned as it scares the pilot, because most persons working as pilots favor the understanding that a pilot is usually not held liable because something goes amiss. In the past the accepted ruling was a pilot is responsible only for his personal negligence and that must be affirmatively shown. To hold the pilot liable, he or she must be shown to have been negligent and since negligence is the cause (sine qua non) of the liability the burden is upon the one alleging it. Therefore in the reports the word negligent (ence)  is sprinkled freely.

California regulations affirm for the SFBP “While the pilot is on board the navigation of the vessel devolves on him.” And,

When a pilot goes aboard a vessel, the pilot becomes a servant of the vessel and its owner and operator. Nothing in this division exempts the vessel or its owner or operator from liability to persons or property for damage or loss caused by the vessel or its operation on the ground that (1) the vessel was piloted by a pilot, or (2) the damage or loss was incurred as a result of the error, omission, fault, or neglect of a pilot.

U.S. Regulation 33CFR Section 164.11. lays the conduct of the navigation and management of the vessel on the  Master and assigns a less onerous responsibility to the person directing the movement of the vessel, however that person can not be expected to fix the vessel’s position and plot it on a chart and conn the ship.(1) [a]. Foreign flagged vessels are exempt, therefore, Cota by California regulation is it.

The USCG and NTSB both agree the pre-departure exchange is essential in this case.  NTSB: “ (2) the absence of a comprehensive pre-departure master/pilot exchange  and a lack of effective communications sailing conference during the accident voyage”. USCG: “2. Contributing to the cause of this casualty was the failure of the pilot and master to conduct a proper pilot-master exchange  prior to getting underway —“. Included in the alleged “accident preventing exchange”  the USCG added that (Cota) “arrived at the vessel more than one hour before departure and had plenty of time to discuss his own  plans with the master.”  As there is only one route to the sea it would appear a plan would be redundant, but the visibility and equipment operations were  discussed as was the exchange of ship-pilot and pilot-ship information.

The departure of COSCO BUSAN from berth 56 in Oakland can not be accomplished without the explicit approval of the Master, regardless of weather. Only the ship talks to the crew; the pilot may mouth the words, but the Captain authorizes them.

Restricted visibility, near-zero visibility, foggy, fog, heavy/dense fog or safe speed  have no specific dimension, and are interpretative. 1/4 mile visibility at Oakland can be greater or less elsewhere. Being able to see both sides of the Oakland Estuary is not  restricted visibility for an experienced pilot, but most pilots  know that it may worsen , or improve as time and distance change.  The USCG  states, “ Prior to, and at the time of the casualty, participants in the VTS reported visibility in the Bay as low of 350 feet. And, while waiting to undock, COSCO BUSAN delayed for an inbound tug and barge to pass. Fog is a weather condition, not a restriction. It is a common view amongst pilots, based on cumulative experiences, that fog is manageable but an undisciplined foreign crew lacking language understanding is a hazard.

COSCO BUSAN’s full sea speed is rated at 25 knots. In-port maneuvering  RPM are limited to 65 ahead and astern and the maximum speed recorded  prior to the allision was 10 knots by an electronic source. It’s not understood how a conclusion on safe speed was achieved without the availability of the maneuvering characteristics for  a deep loaded COSCO BUSAN in shallow water.

The  USCG report indicates the COSCO BUSAN did not have a BRM in place from the time underway until the allision. ”The Master, third officer and an able seaman were on the bridge with the pilot.”. A minimum of three ships officers are needed to accomplish the BRM duties while navigating in congested waters.(1)[a]. Once underway the Chief Mate or Second Mate were available.

The Master of COSCO BUSAN accepted the “compulsary” pilot on board with the expectation of utilizing his experience, knowledge and skill as a ship handler and expert in local waters. The pilot was justified in expecting the owners, master and crew of COSCO BUSAN to provide professional, reliable performance and support including navigation, equipment operation and ship management as per 33CFR Section 164.11. The exchange between master and pilot as described in section 2.1 of the USCG report is not uncommon and happens often without ill effect.  Many pilots and masters have indicated they are not impressed with BRM and officious ship’s personnel. The court cases relating to ship captain’s responsibility vs pilot duty is replete with controvers.

An important challenge by K&L lawyers refers to 33CFR Section 95.045 General operating rules for vessels inspected, or subject to inspection, under Chapter 33 of Title 46 United States Code:

While on board a vessel inspected, or subject to inspection, under Chapter 33 of Title 46 United States Code, a crewmember (including a licensed individual),  pilot, or watchstander not a regular member of the crew:

(a) Shall not perform or attempt to perform any scheduled duties within four hours of consuming any alcohol;

(b) Shall not be intoxicated at any time;

(c) Shall not consume any intoxicant while on watch or duty; and

(d) May consume a legal non-prescription or prescription drug provided the drug does not cause the individual to be intoxicated

The USCG report infers the San Francisco VTS did not  fulfill its stated mission:

To coordinate the safe and efficient transit of vessels in San Francisco Bay in an effort to prevent accidents and the associated loss of life and damage to property and the environment. We execute our mission by:

MONITORING vessel 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

Further, “The VTS does not routinely direct  and control  the  movements of  vessels. In normal, conditions  the VTS notifies participants of—contacts deemed to be a hazard, and information about safety —in areas of restricted visibility.  When visibility decreases  to less than 1.0 mile VTS reports all vessel radar contacts that may affect another vessels transit. The VTS can , when necessary, issue measures or directive to vessels to enhance navigation and vessel safety—:”(1)[d]

The lookout is a person, instructed, and stationed where he or she can best fulfill that duty, it appears the Bos’un and the Chief Mate were maintaining a lookout, but were not the lookout. It is prescribed that  maintaining a proper lookout by all available means appropriate includes all person in a duty status, but does not replace the lookout.

The report states,” At the time of departure, the bridge management team was composed  of”The Master, third officer and an able seaman were on the bridge with the pilot,” and  the pilot (who had the conn. 15). Addendum 15 states:: The person with the “conn” is the person giving the engine and helm commands.  —the Master—-had the ultimate  authority and responsibility for the vessel.” It appears that California and the U.S. are not in sync, whereas the . The IMO STCW Section B affirms:

The master of every ship is bound to ensure that watch keeping arrangements are adequate for maintaining a safe navigational watch, keeping in mind the bridge resource management principles stated in part 3-1 of section B-VIII/2 of the STCW code. Under the master’s general direction, the officers of the navigational watch are responsible for navigating the ship safely during their periods of duty, when they will be particularly concerned with avoiding collision and stranding (1)[a]

The media has been less than accurate whereas it was reported Cota was the pilot, “at the helm,” “steering the vessel” and Captain of the COSCO BUSAN.

Among the several missing items considered  germane to the investigation is:

1. a statement or reported observations  whereas Cota showed any signs of intoxication or drug impairment;

2. as the vessel recently departed the LA/LB area it would seem appropriate to inquire into the ships performance in that port;

3. a copy of the COSCO BUSAN maneuvering characteristic data in shallow water and in a loaded condition

4. a copy of SFBP Harbor pilot card.

Alerts have been issued to the involved parties: vessel owners, operators, mariners, pilots, port authorities and government. Accidents occur, and will continue, investigations will be conducted, evidence and testimony collected, meetings will be held and hopefully all parties can participate, followed by  analysis and conclusions and eventually, published findings. Do not expect any significant change to occur until the owners, operators, sea going folk, pilots and port authorities join and resolve the human errors factor. Non-compliance is slovenly seamanship. JGD

(1) [a] Organizing and Managing the Bridge team. USNIP, September 1994

[b]The Care and Feedign of Ship’s Pilots. USNIP, August 1993

[c]Why Ddin’t SlowDown. USNIP, January 1996

[d] : A Word on Vessel Traffic Service. . gCaptain.com. Feb 19, 2008

Earlier today, the National Transportation Safety Board released its final report on the allision of the M/V Cosco Busan with the Delta Tower of the San Francisco–Oakland Bay Bridge on November 7, 2007, resulting in the release of 53,500 gallons of fuel oil into San Francisco Bay.

The final report reflected sentiments expressed at the NTSB’s hearing on the accident in February as well as opinions reflected here on gCaptain.  This included determination of probable cause, in which the Safety Board cited three factors:

1. the pilot’s degraded cognitive performance from his use of impairing prescription medications;
2. the absence of a comprehensive pre-departure master/pilot exchange and a lack of effective communication between the pilot and the master during the accident voyage, and;
3. the master’s ineffective oversight of the pilot’s performance and the vessel’s progress.

Contributing to the cause of the accident, the Board cited:

1. the failure of Fleet Management Ltd. to adequately train the Cosco Busan crewmembers before the accident voyage, which included a failure to ensure that the crew understood and complied with the company’s safety management system, and
2. the U.S. Coast Guard’s failure to provide adequate medical oversight of the pilot in view of the medical and medication information that the pilot had reported to the Coast Guard

New Recommendations

As a result of the investigation, the Safety Board made the following safety recommendations.

To the U.S. Coast Guard:

1. Propose to the International Maritime Organization that it include a segment on cultural and language differences and their possible influence on mariner performance in its bridge resource management curricula. (M-09-1)
2. Revise your vessel traffic service policies to ensure that vessel traffic service communications identify the vessel, not only the pilot, when vessels operate in pilotage waters. (M-09-2)
3. Provide Coast Guard-wide guidance to vessel traffic service personnel that clearly defines expectations for the use of existing authority to direct or control vessel movement when such action is justified in the interest of safety. (M-09-3)
4. Require mariners to report to the Coast Guard, in a timely manner, any substantive changes in their medical status or medication use that occur between required medical evaluations. (M-09-4) Supersedes M-05-5
5. Establish a mechanism through which representatives of pilot oversight organizations collect and regularly communicate pilot performance data and information regarding pilot oversight and best practices. (M-09-5)

To Fleet Management Ltd.:

1. When assigning a new crew to a vessel, ensure that all crewmembers are thoroughly familiar with vessel operations and company safety procedures before the vessel departs the port. (M-09-6)
2. Provide safety management system manuals that are in the working language of a vessel’s crew. (M-09-7)

To the American Pilots’ Association:

1. Inform your members of the circumstances of this accident, remind them that a pilot card is only a supplement to a verbal master/pilot exchange, and encourage your pilots to include vessel masters and/or the officer in charge of the navigational watch in all discussions and decisions regarding vessel navigation in pilotage waters. (M-09-8)

Previously Issued Recommendations Reclassified in The Report

To the U.S. Coast Guard:

M-05-4
Revise regulation 46 CFR 10.709 to require that the results of all physical examinations be reported to the Coast Guard, and provide guidance to mariners, employers, and mariner medical examiners on the specific actions required to comply with these regulations.

Safety Recommendation M-05-4, previously classified “Open—Acceptable Response,” is reclassified “Closed—Acceptable Alternate Action” in the “Coast Guard Medical Oversight of Mariners” section of the report.

M-05-5
In formal consultation with experts in the field of occupational medicine, review your medical oversight process and take actions to address, at a minimum, the lack of tracking of performed examinations; the potential for inconsistent interpretations and evaluations between medical practitioners; deficiencies in the system of storing medical data; the absence of requirements for mariners or others to report changes in medical condition between examinations; and the limited ability of the Coast Guard to review medical evaluations made by personal health care providers.

Safety Recommendation M-05-5, previously classified “Open—Acceptable Response,” is reclassified “Closed—Acceptable Action—Superseded” in the “Coast Guard Medical Oversight of Mariners” section of the report.

Download full report

To read the evidence click HERE.

First revealed on gCaptain’s Professional Mariner Forum (LINK) last week, the news is now official… John Cota, pilot of the Cosco Busan, has plead guilty to charges and faces jail time. The San Francisco Chronicle tells us:

The pilot of the container ship that struck the Bay Bridge in 2007 and spilled 53,000 gallons of fuel oil pleaded guilty today to federal water pollution charges in an agreement that calls for him to serve two to 10 months in prison.

Capt. John Cota, 61, admitted in a San Francisco courtroom that he acted negligently in piloting the 901-foot-long Cosco Busan in a heavy morning fog Nov. 7, 2007. He also admitted failing to disclose all the prescription drugs he was taking when he renewed his federal and state pilot’s licenses in 2006 and 2007.

But his negotiated plea agreement nearly fell apart when a prosecutor read a lengthy account of Cota’s alleged misdeeds and his lawyer protested that it was full of inaccuracies.

“An incompetent, untrained crew and mistakes by the Coast Guard” contributed to the accident, defense attorney Jeffrey Bornstein told U.S. District Judge Susan Illston.

Illston reproached Assistant U.S. Attorney Jonathan Schmidt for “arguing for the grandstand,” but accepted Cota’s guilty plea to misdemeanor charges of violating the Clean Water Act and the Migratory Bird Act. She scheduled sentencing for June 19.

Besides imprisonment, the plea agreement includes a fine of between $3,000 and $30,000. Cota, a vessel pilot for 26 years, has surrendered his license and said in his plea agreement that he would not reapply until January 2010. Read More…

The question remains… What are the implications for the maritime industry?

Read gCaptain’s series topic links:

• John Cota
• Cosco Busan Incident

Via NTSB.gov

Washington, DC – The National Transportation Safety Board determined today that a medically unfit pilot, an ineffective master, and poor communications between the two were the cause of an accident in which the Cosco Busan container ship spilled thousands of gallons of fuel oil into the San Francisco Bay after striking a bridge support tower.

On November 7, 2007, at about 8:00 a.m. PST, in heavy fog with visibility of less than a quarter mile, the Hong Kong- registered, 901-foot-long container ship M/V Cosco Busan left its berth in the Port of Oakland destined for South Korea. The San Francisco Bay pilot, who was attempting to navigate the ship between the Delta and Echo support towers of the San Francisco-Oakland Bay Bridge, issued directions that resulted in the ship heading directly toward the Delta support tower. While avoiding a direct hit, the side of the ship struck the fendering system at the base of the Delta tower, which created a 212-foot-long gash in the ship’s forward port side and breached two fuel tanks and a ballast tank.

As a result of striking the bridge, over 53,000 gallons of fuel oil were released into the Bay, contaminating about 26 miles of shoreline and killing more than 2,500 birds of about 50 species. Total monetary damages were estimated to be $2 million for the ship, $1.5 million for the bridge, and more than $70 million for environmental cleanup.

“How a man who was taking a half-dozen impairing prescription medications got to stand on the bridge of a 68,000-ton ship and give directions to guide the vessel through a foggy bay and under a busy highway bridge, is very troubling, and raises a great many questions about the adequacy of the medical oversight system for mariners,” said Acting Chairman Mark V. Rosenker.

In its determination of probable cause, the Safety Board cited three factors: 1) the pilot’s degraded cognitive performance due to his use of impairing prescription medications; 2) the lack of a comprehensive pre-departure master/pilot exchange and a lack of effective communication between the pilot and the master during the short voyage; and 3) the master’s ineffective oversight of the pilot’s performance and the vessel’s progress.

Contributing to the cause of the accident, the Board cited 1) the ship’s operator, Fleet Management, Ltd., for failing to properly train and prepare crew members prior to the accident voyage, and for failing to adequately ensure that the crew understood and complied with the company’s safety management system; and 2) the U.S. Coast Guard for failing to provide adequate medical oversight of the pilot.

“Given the pilot’s medical condition, the Coast Guard should have revoked his license, but they didn’t; the pilot should have made the effort to provide a meaningful pre-departure briefing to the master, but he didn’t; and the master should have taken a more active role in ensuring the safety of his ship, but he didn’t,” said Rosenker.  “There was a lack of competence in so many areas that this accident seemed almost inevitable.”

As a result of its investigation, the Safety Board made a total of eight safety recommendations. In its five to the U.S. Coast Guard, the Board recommended that it 1) ask the International Maritime Organization to address cultural and language differences in its bridge resource management curricula; 2) revise policies to ensure that, in its radio communications, the Vessel Traffic Service (VTS) identifies the vessel, not only the pilot; 3) provide guidance to VTS  personnel that defines expectations for when their authority to direct or control vessel movement should be exercised; 4) require mariners to report any substantive changes in their health or medication use that occur between required medical evaluations; and 5) ensure that pilot oversight organizations share relevant performance and safety data with each other, including best practices.

The Board recommended that Fleet Management Limited 1) ensure that all new crewmembers are thoroughly familiar with vessel operations and company safety procedures; and 2) provide safety management system manuals in the working language of the crew.

The Safety Board also recommended that the American Pilots’ Association remind its members of the value and importance of a verbal master/pilot exchange, and encourage its pilots to include the master in all discussions involving the navigation through pilotage waters.

Two safety recommendations on medical oversight previously made to the U.S. Coast Guard as a result of an accident in 2005 were closed due to improvements the Coast Guard had made in its reporting procedures.

COSCO BUSAN. Captain Sun and Pilot Cota have created an awareness that bad thing can happen and that determining responsibility and fault(s) is evidently not simple. The suspects are government, officials, owners, managers, operators, public committees, associations and the primary target, ship board persons. How many errors were committed may not be known, but the probability that only Captain Sun and Pilot Cota are alone responsibile is suspect.

Since America was only a gathering of colonies, commerce has been the sustaining life blood of economic and political survival. To impede commerce with redundant and useless laws, a political solution, is to deny growth and deter competition. There is a need for the maritime community, local, regional, national and international to clean-up their respective acts. Pilotage, in general as a service, not just a business is in a universal state of confusion as to qualification, competency and what is acceptable seamanship. Money alone is not the panacea, personal dedication and skillfullness come to mind.

As an accepted process licensed pilots, in most cases are found competent by virtue of their tested local knowledge. Licensed officers are also examined and based on a percentage score, licensed. That process has been historically accepted , however reliability and proficiency in the myriad of tasks required to be performed is not. A master, acting as co-pilot may not be equally qualified or competent as the person directing the navigation of the vessel, and therefore errors in judgment may be overlooked. The public is unaware and yet public safety is of concern. How many similar errors are repeated before the law of averages kicks in?

The history of pilotage is replete with cases where mandated local licensed pilots were not considered competent to moor and undock vessels; a specialized skill. Not to say they were not, but owners and managers were concerned and cautious; and they pay the bills.

The comparison of the pilots role versus the masters alludes to the increased burden for masters while the duties of pilots has changed little. Both are presently compensated at their worth, but in any grouping there is an average. Each has undergone various forms of training and then turned lose to practice, essentially without evaluation. Although copious dollars are spent on training individuals, the bridge teams may not be. An untrained team lacking discipline is a gang. Although not specifically pronounced the role of owners, managers and operators must include responsibility for any failure to verify that employees are qualified and competent and perform in the manner required by rule. A vessel found undermanned, crewed with unqualified persons or lacking operational proficiency is unseaworthy and local authority, as a matter of public policy, should be responsible to detain it. – John Denham