‘Cosco Busan’ Setting the Scene for Modernisation

1. ‘Cosco Busan’Setting the Scene for Modernisation Australasian Maritime Pilots Institute Workshop Sydney 23 October 2009

2. Acknowledgement Assistance from Captain John Cota (‘Cosco Busan’ Pilot) and Captain Alex Amos in securing relevant court documents for this workshop. Documents provided by Captain Cota to enable us in Australasia to learn the right lessons from the unfortunate accident.

3. Modernisation Involves shift from the traditional ‘pilot centred’ approach to: • a proactive sophisticated human factors based ‘systems’ approach to safety in pilotage incorporating error management principles • application of available technology

4. Rationale • Reduction in safety margins and increase in risk through larger and larger ships being accepted to achieve greater efficiencies (refer next slide) • Ongoing development and availability of advanced technologies at lower and lower cost that have the potential to improve safety in pilotage (GPS, GLONASS, Electronic Charts, AIS, VDR, e-nav etc)

5. Similar situation in other ports

6. Rationale • Availability of sophisticated safety management systems for managing critical high risk tasks such as pilotage (Safety Case – Jens Rasmussen & James Reason Model; slides 7-11) • Expectation that sophisticated safety management systems will be applied in all high risk industries including shipping/pilotage • Very high cost of marine accidents - Sea Empress grounding (total liability of Milford Haven Port Authority $75 million) - SA Fortius in Port Kembla (claims close to $16 million) - Cosco Busan San Francisco (total claims close to $200 million)

7. Reason Swiss Cheese Model Basis of IMO Accident Investigation Code & also widely used in other high risk industries from Aviation to HealthCare

8. Reason Swiss Cheese Model Defenses

10. Reason Model of Accident Causation Organization Task/Environment Individuals Defenses • Organizational • Factors • Communications • Management Structure • Incompatible Goals • Local Factors • Morale • Fatigue • Equipment • Training • BRM, Procedures, etc. • Active Failures • Mistakes • Slips • Lapses • Violations Accidents Latent Failures

11. History off unsafe acts? Knowingly violating safe operations procedures? Pass substitution test? Were the actions as intended? Unauthorized substance? No No No Yes No No Yes Yes Deficiencies selection & training or in experience Yes Yes No Were procedures available, workable, intelligible and correct Were consequences as intended? Medical condition Yes Blameless error but corrective training or counseling indicated No Blameless error No Yes Yes System induced error No Possible negligent error Yes System induced error Possible reckless violation Substance abuse with mitigation Substance abuse without mitigation Sabotage, malevolent damage, suicide. etc Culpability Diagram James Reason

12. Rasmussen Human Performance Model(Professional Dynamic Decision Making) Situations Routine Trained-for problems Novel Problems Modes of Control Conscious Mixed Automatic Skill-Based Rule-Based Knowledge-based

13. Rationale Increasing demands and very high levels of accountability of professionals. What were previously seen as errors of judgment increasingly being viewed as criminal negligence Altered public perception of ‘acceptable risk’ Widespread awareness that major accidents in confined waters can cause severe threats not only to ships, crews and cargoes but also to the public, environment, property, and local and regional economies Zero tolerance for marine accidents but especially those that involve loss of life and/or environmental pollution manifested by the introduction of ‘strict liability’ criminal laws to shipping accidents Criminalization of seafarers including pilots

14. Our Changing View of Environmental Pollution Petriana, Port Phillip Bay, 28 November 1903 The pilot boarded at 6am and proceeded towards the Rip. The fog was thick and the shoreline was obscured but the pilot hoped the fog would clear by the time the leading lights could be seen. Unfortunately the fog did not clear and the Petriana went aground on Portsea Back Beach at 7am. The strategy was to lighten the vessel by releasing the cargo of 1300 tons of oil into the sea. The spill was described as: “a film of great beauty, radiating all the colours of the rainbow, spread from Sorrento Back Beach to Point Nepean”. The pilot had 20 years experience and was held in high esteem; nonetheless his certificate was suspended for 12 months for carelessly navigating a vessel to cause its stranding Chris Wighton MSV

15. Protection of the environment • An increasing public perception that protection and preservation of the environment is an issue which is of crucial importance to the future of the human race • International bodies, governments and other public bodies are pushing through legislation* designed to achieve the objective of protecting the environment • A widely held belief that the introduction of ‘strict liability’ offences is necessary to achieve the objective despite the undesirable consequences for a particular industry such as shipping Source: SEA EMPRESS PROSECUTION by Nick Greensmith Partner, Clyde & Co London *Oil Pollution Act 1990 (OPA 90)

16. Protection of the Environment “As the world’s population becomes more environmentally aware and sensitive, tolerance for marine accidents resulting in pollution of the seas and environs… becomes less and less. As a result and because of enormous popular demand and support, prosecution of pollution incidents and polluters, even innocent ones does not appear to offend anyone’s sensibilities, other than those in the maritime industry” Michael G. Chalos

17. Traditional ‘Pilot Centred’ Approach • This approach has a good record but is not adequate to meet present day demands of safety • Safety depends upon unrealistic notion of ‘unvarying error proof’ performance by the pilot • Research and experience has shown that human error is inevitable – in the nature of things • ‘Pilot centred’ approach is susceptible to ‘one person error’ accident

18. Traditional Pilot Centred Approach • Average of 2.6 errors on a Qantas flight - No accident because of ‘defences’ and ‘safeguards in depth’ against the inevitable human error. - Safety depends on human factors based ‘systems’ approach • Pressure on other high risk industries in Australia to adopt a similar approach to human error and safety • ‘Single person error’ accident is no longer acceptable in any high risk industry in Australia and increasingly in other countries The issue is not why an error occurred, but how it failed to be corrected

19. ‘Cosco Busan’ ( 07 November 2007) High Profile Pilotage Accident highlighting vulnerability of ‘pilot centred’ approach to ‘single person error’ accident and consequences

20. ‘Cosco Busan’ allision with Bay Bridge The container ship M/V Cosco Busan struck the Bay Bridge in San Francisco Bay at 08:30 on 07 November 2007. An approximate 100' gash in the hull of the vessel resulted, and 58,000 gallons (approx 200 tonnes) of fuel oil was released into the water.

21. Impact Governor of California, Mayors of Berkley and San Francisco declared a state of emergency in the Bay Area About 200 miles of coastline was affected by spill, 26 miles seriously contaminated More than 1,854 birds of 45 species killed Large numbers of the public involved as volunteers in the cleanup and rescue and rehabilitation of wildlife

22. San Francisco Bay Bridge Tower D

23. Container Ship ‘Cosco Busan’ Length 275m, Breadth 40m, Draft 12.20 m Crew 23

24. M/V COSCO BUSAN Navigation Equipment - 3 cm Radar - 10 cm Radar - Electronic Chart System (ECS) - Conning Information Display - Automatic Identification System (AIS)

25. NTSB

27. NTSB

28. NTSB

29. NTSB

30. Relative Experience • Pilot - Bar Pilot for 27 years - A few thousand trips under the Bay Bridge - Not uncommon to operate in fog - Recurrent training for ship-handling in simulators and manned scale model vessels • Master - Master for 10 years - 2 weeks with company, vessel and crew - 1st time in San Francisco Harbour - 1st time under way on ‘Cosco Busan’ without company supervisors

31. Timeline 0620 Pilot on board, heavy fog 0810 Ship leaves berth 0820 In bar channel, turn to port 0822 Discussion about red triangles 0823 Turn to port 0826 Turn to starboard 0827 VTS contacts ship 0830 Allision with D Tower

33. NTS NTSB

34. Track from undocking until impact - NTSB NT

35. Ground track prior to collision - NTSB

36. Cosco Busan – Specific Charges 1.Clean Water Act – Negligent Discharge of a Pollutant JOHN JOSEPH COTA, did negligently cause 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. Specifically, on or about November 7, 2007, Defendant Cota, while piloting the M/VCosco Busan, caused approximately 58,000 gallons of heavy oil to be discharged from the vessel into San Francisco Bay by acting in a negligent manner, that included the following: • (a) failing to pilot a collision free course; • (b) failing to adequately review with the Captain and crew of the M/VCosco Busan prior to departure the official navigational charts of the proposed course, the location of the San Francisco Bay aids to navigation, and the operation of the vessel's navigational equipment; • (c) departing port in heavy fog and then failing to proceed at a safe speed during the voyage despite limited visibility; • (d) failing to use the vessel's radar 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-à-vis other established and recognized aids to navigation throughout the voyage. • All in violation of Title 33, United States Code, Sections 13 19(c)(l)(A) and 1321(b)(3), a Class A misdemeanor.

37. 2. Migratory Bird Treaty Act JOHN JOSEPH COTA, without being permitted to do so by regulation as required by law, did take migratory birds, including at least one Brown Pelican, (Pelecanus occidentalis), Marbled Murrelet, Brachyramphus marmoratus), and Western Grebe, (Aechmophorus occidentalis). All in violation of Title 16, United States Code, Sections 703 and 707(a), and Title 50, Code of Federal Regulations, Sections 21.1 1,20.71 and 20.72, a Class B misdemeanor.

38. CALIFORNIA BOARD OF PILOT COMMISSIONERS INVESTIGATION CITES PILOT ERROR IN COSCO BUSAN ACCIDENT October 23, 2008 The Board of Pilot Commissioners today issued a report of the investigation by its Incident Review Committee (“IRC”) of the accident on November 7, 2007. The Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun was established in 1850 to provide State oversight for the San Francisco bar pilots. The Commission licenses and regulates maritime pilots navigating San Francisco Bay and its tributaries as far inland as the Ports of Stockton and Sacramento, and In Monterey Bay. The Board's responsibilities include training, incident investigation and rate determination.

39. IRC – Report As a result of its investigation, the IRC concluded that pilot negligence was a factor in the accident. The IRC report summarized its conclusions as follows: (1) Captain Cota failed to utilize all available resources to determine visibility conditions along his intended route when it was obvious that he would have to make the transit to sea in significantly reduced visibility; (2) Captain Cota had exhibited significant concerns about the condition of the ship’s radar and a lack of familiarity with the ship’s electronic chart system, but failed to properly take those concerns into account in deciding to proceed; (3) That, considering the circumstances of reduced visibility and what Captain Cota did and did not know about the ship and the conditions along his intended route, he failed to exercise sound judgment in deciding to get underway;

40. IRC – Report (4) Captain Cota failed to ensure that his plans for the transit and how to deal with the conditions of reduced visibility had been clearly communicated and discussed with the master; (5) Once underway, Captain Cota proceeded at an unsafe speed for the conditions of visibility; (6) When Captain Cota began making his approach to the Bay Bridge, he noted further reduced visibility and then reportedly lost confidence with the ship’s radar. While he could have turned south to safe anchorage to await improved visibility or to determine what, if anything was wrong with the radar, Captain Cota failed to exercise sound judgment and instead continued on the intended transit of the M/V CoscoBusan, relying on an electronic chart system with which he was unfamiliar. (7) Captain Cota failed to utilize all available resources to determine his position before committing the ship to its transit under the Bay Bridge.

41. Pilot Sentencing 17 July 2009

42. Sentence Pilot received sentence of 10 months imprisonment for violating Clean Water Act and 6 months for violating Migratory Bird Act. (Both sentences to be served concurrently) Two hundred hours of community service Judge imposed no fine because of financial obligations and multiple civil suits faced by pilot Imprisonment to be followed by one year of supervised release during which time pilot cannot serve as a pilot or ship captain. Medical issues not taken into account in sentence

43. Pilots as environmental stewards “Today’s guilty plea is a reminder that the Cosco Busan crash was not just an accident but a criminal act. This is not a case involving a mere mistake. The lesson here is that environmental stewards*, who abandon ship, act negligently and cause environmental damage will be vigorously prosecuted” John C Cruden, Acting Assistant Attorney General for Justice Department’s Environment and Natural Resources Division * Steward in the biblical sense is someone who takes care of something. (Knowledge of environmental laws part of pilot licensing)

44. Alert to the Maritime Industry “John Cota was an experienced pilot that was handsomely compensated for his special knowledge of ships and expertise in local waters. ... This case should sound an alert to those in the maritime industry that safety rules and procedures are meant to be followed, safety equipment is meant to be used, and that those who act otherwise and despoil our natural wonders will be prosecuted to the full extent of the law” Joseph Russoniello U.S. Attorney for the Northern District of California

45. Plea Agreement Cota admitted that he: Failed to adequately discuss the intended route through San Francisco Bay with the Master or crew as is required; Failed to use the ship’s radar in the final approach to San Francisco Bay Bridge; Failed to recognise two red triangles on the ships electronic chart system that actually are the buoys marking the bridge tower; Failed to verify the meaning of the red triangles by using the ship’s paper chart or radar: Failed to inform the crew of his method of navigation that he relied on using a particular radar setting; and Failed to advise the crew of a radar beacon that marked the center of the Delta Echo span

46. Pilot/Fleet Management - Civil Lawsuits Class Action by 5 fishermen City of San Francisco State of California, Two individuals who claim that they were subsistence fishermen and it is in the Calif. constitution that they have a constitutional right to fish, Fleet Management suing John Cota and San Francisco Bay Pilot’s Association Continental Insurance  (Continental Insurance is suing John Cota to return approx. $ 2,000,000 or more paid for his criminal defense. Since no pilot had ever been criminally charged prior to this event criminal defense was not included in the policy. The policy simply states "legal defense." Continental Insurance is claiming foul and wants John Cota to return money. ) Also on all but the suit against John Cota by Fleet Management he is named as a secondary defendant with Fleet Management.  

47. Fleet Management Plea Agreement

48. Fleet Mgt. Ltd. Agrees to Pay $10 Million for Pollution and Obstruction Crimes WASHINGTON 13 August 2009 — Fleet Management Ltd., pleaded guilty today to a criminal violation of the Oil Pollution Act of 1990 for its role in negligently causing the discharge of more than 50,000 gallons of fuel oil into San Francisco Bay from the Cosco Busan when the vessel struck the San Francisco Bay Bridge in dense fog on Nov. 7, 2007. According to the factual statement signed by Fleet Management, the crew of the vessel: Was not adequately familiar with certain ship-specific navigational equipment, Did not engage in a berth-to-berth passage planning process or prepare written berth-to-berth passage plans, Did not conduct an adequate Master – Pilot exchange of information, Did not fully utilize or operate the ship’s radar and electronic chart system, and Did not take fixes during the voyage.

49. Fleet Plea Agreement Criminal fines are $8 million plus another $2 million in community service payments to the Fish and Wildlife Fund for a total of $10 million. Three Years Probation. During the term of probation Fleet will be subject to an enhanced compliance program with a number of strict requirements for various audits Guilty pleas part of a plea agreement with the government subject to approval by Judge Susan Illston of the U.S. District Court for the Northern District of California Sentencing has been set for December 11 2009

50. Fleet Management Fleet admitted that after the ship hit the Bay Bridge, it concealed ship records and created materially false, fictitious and forged documents with an intent to influence the Coast Guard’s investigation. In particular, a false berth-to-berth passage plan for the day of the crash was created after the incident at the direction of shore-side supervisors known as superintendents and with the knowledge of the ship’s master. Additionally, a ship officer falsified the ship’s official navigational chart to show fixes that were not actually recorded during the voyage. Other records including false passage planning checklists were also created after the fact.