Redefining Liability: Who's Really to Blame in the COSCO BUSAN Case?

Ship's owner asserts plausible case to deflect blame and accuse others of negligence and misconduct

The owner of the COSCO BUSAN, the ill-fated vessel that allided with the San Francisco Bay Bridge, has finally come out swinging against those who would blame the operator for a major San Francisco Bay oil spill last year. Alleging negligence and misconduct by the U.S. government because the ship's pilot was granted a license despite a history of drug and alcohol abuse, the response of Hong Kong-based Regal Stone directly contradicts a lawsuit filed earlier by the Justice Department which claims the owner and the pilot of the COSCO BUSAN broke environmental laws when the ship struck a bridge support and spilled 53,000 gallons of oil in the bay. It may be years – in fact, decades – before this one is settled.

The counterclaim probably has some merit. A vessel's owner should have a reasonable expectation that competent service will be provided when its vessels arrive at strange ports. These ports, at least here in the United States, typically stipulate compulsory pilotage for registered traffic. The goal? To ensure a safe and environmentally transit of the vessel through waters that can include sharp turns, mysterious currents and shallow waters (insufficient draft) where you least expect it. In the case of the COSCO BUSAN, many have already made up their minds that – for one reason or another – the ship did not get what it paid for.

Notwithstanding the National Transportation Safety Board's recent, callous and casual disclosures of the most intimate details of pilot John Cota's life, the counterclaim alleges that the pilot was medically unfit and incompetent to perform the duties required by his United States Coast Guard license. If the ship owner can demonstrate this accusation to the satisfaction of judge or jury, then they also may be on their way to getting off the hook. The irony of this situation may rest in the fact that the NTSB has already done most of the hard work that will be necessary to do just that.

Marine pilots typically make a lot of money, commanding salaries that put them in the same league as top surgeons and successful attorneys. And, it is a difficult job; one that puts the fate of hundreds of millions of dollars of cargo and similar priced ships in the hands of one individual. That person is also tasked with ensuring the safety of those ashore and the protection of the environment, as well. And so, if they are burdened with those responsibilities, then they should be adequately compensated for the job. By the same token, that pilot has heavy liabilities if something goes wrong. The age-old tenet of a pilot being merely an advisor to the Master is all but gone. Unfortunately, that tradition may also be all the government has left to argue its position, in the wake of this week's counterclaim by the ship owner.

In Boston, Massachusetts – at this very minute – the state legislature is actually contemplating the licensing of docking masters who operate under specific conditions of employment (and want to continue that situation) as laid out HERE. And, while most of us would think it extremely unlikely that pilots will escape liability for errors in the future, the terms and conditions that you just read in the clickable link could become standard operating procedure in Massachusetts, and soon. Just imagine the basis for a future lawsuit in the Bay State when a maritime incident occurs and the pilot – mandated by law – cannot be held liable for anything.

Meanwhile, back in San Francisco, Cota has pleaded not guilty and a trial date has not been set. The Justice Department is predictably not saying much and supposedly has until early August to respond to the counterclaim. Pilots, regulatory personnel, federal and state governments everywhere are watching closely; and with good reason. There's only one thing that is very clear in all of this: there's plenty of blame to go around for everyone. And, when the fog finally lifts, I doubt there will be anyone – pilots, ship's operators or crew, regulators and governments alike, that will be happy with the final result. Somebody once told me that the mark of a good deal is one which leaves all parties somewhat unsatisfied. I'm betting that in the case of the COSCO BUSAN, this adage will hold especially true. - MarEx

Joseph Keefe is the Managing Editor of THE MARITIME EXECUTIVE. He can be reached with questions or comments on this or any article in this e-newsletter at jkeefe@maritime-executive.com.