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The case for derating risk
The captain of an aircraft would never have found himself in the position of a master or pilot in these marginal conditions because he would have had the decision taken by others
Michael Grey – Monday 3 August 2009

AS HAD long been expected, John Cota, the San Francisco Bar pilot who was on the bridge of the Cosco Busan when it collided with the Bay Bridge on November 7, 2007, has been sentenced to 10 months in a US federal prison.
He is, of course, no longer licensed and cannot pilot any other ship, while his professional and personal ruin is self-evident. The custodial sentence might be thought of as the icing on the cake by those in California who have been loudly demanding societal vengeance for this man’s environmental crimes. Many of them will consider the term ridiculously lenient. The managers of the ship, Fleet Management (Hong Kong), are yet to stand trial under the same environmental indictments, along with charges of false statements and obstructing justice. They will have their time in court in September.
Capt Cota, whose long piloting and seafaring career has ended in such an inglorious fashion, might be thought of as just one of the many people who have seen their careers and lives blighted by this marine accident, a word which has ceased to have much meaning these days. The clear and perfect wisdom of hindsight granted to all sorts of seers, experts, environmental groups and politicians after the incident on that fog-shrouded day distributed the blame widely. From the bridge team aboard the containership to the US Coast Guard officers responsible for the reaction and clean-up, all saw their actions publicly condemned.
It is always dangerous to comment on these cases from a distance, but with all the remarks by prosecutors and lawyers emphasising the depth and degree of the pilot’s guilt, there appears to be a certain lack of understanding of what it is actually like to be involved in the acute balance of risk that is part and parcel of many maritime manoeuvres.
I would like to be assured that the lawyers, who are not involved themselves in a risky profession, can actually comprehend something of what passes through the minds of pilots and shipmasters as they weigh up commercial against actual risk on a daily basis. There is clearly little or no understanding in the wider world, from the aggrieved Bay inhabitants who fail to make any connection between the ships that come through the Golden Gate and the goods that they buy in their malls. They think that ships handle like cars and anyone who threatens the life of a Brown Pelican should be in Alcatraz for life. Politicians pontificate and greens rage.
I would like to think that there was rather more understanding in the minds of judges and prosecutors about the sort of consensual processes involved in the master/pilot relationship, which is often really quite complex. I sailed with masters who were determined to be old rather than be bold, but that was another age, when the decision of the master was never questioned by some young twit in an office, wanting to know when he was going to sail, and possibly even uttering threats against the master’s continued employment. When a decision to slow down in fog was accepted completely, regardless of how many gangs of dockers were going to be idle, or the number of disappointed consignees waiting anxiously for their cargo might be. Life regrettably has moved on from that halcyon age.
Capt Cota and the master of the ship, it is revealed from the transcripts of their conversations (which I did read), agreed to sail that ship on that foggy morning. Capt Cota may have made incorrect judgements about the fog, but the two of them seemed to agree that the risk was an acceptable one. They made this judgement in good faith; after all, the pilot had operated in the Bay since 1981 and knew his harbour like the back of his hand, so any sensible modern-day master, burdened with 21st century pressures, would have judged.
I guess we will have to wait until the trial of the managers to get their side of the story. Certainly the official accident investigation seems to distribute the blame rather wider than the pilot, with issues of language and communication, equipment unfamiliarity and the adequacy of the bridge team all being regarded as contributors. But we don’t need to go there today.
My over-arching question after the conviction of the pilot, and which is not unassociated with the widespread enthusiasm for criminal proceedings in such accidents, is that if individuals are to suffer so greatly for taking operational risks once considered normal, isn’t it high time that these risks were de-rated?
Turning to aviation as a comparator, the captain of an aircraft would never ever have found himself in the position of a shipmaster or pilot in these marginal conditions, because, quite simply, he would have had the decision taken by others. Fixed criteria would have determined the opening or closure of an airfield for that particular aircraft, and there would have been no argument, no matter how angry the airline or passengers were.
You might say that harbourmasters are already given wide powers to close their ports in conditions that they believe to be dangerous. But where in the case of aviation, the control tower makes the decision and brooks no interference, the harbourmaster is in not such a happy situation.
Perhaps it is the culture of the risk-taking shipping industry, but if a harbourmaster takes the decision to close a port, you can guarantee all sorts of people who know better than he will be demanding that a special case is made for their ship. I am not exaggerating either. I have chapter and verse from a harbourmaster friend who relayed to me the actual threats made to him by some important customer who was outraged when he closed the port because of very severe weather. If he did not open the port, he was likely to lose the not insignificant amount of business from this important owner. And if you read this, chum, I know who you are!
So perhaps harbourmasters, pilots and shipmasters all need unequivocal protection against those who would apply both overt and insidiously implied pressure to the judgement of professionals. Whatever else it did, such would enable them to derate the risk and increase safety margins. Let’s face it, we are surely in less of a rush than we were in November 2007. But I fear that we would have to make it a crime to apply such pressure, to stop the people putting on the squeeze in accordance with the prevailing industry culture.
BUT there are other issues that come to the fore in the aftermath of the prosecution of Capt Cota. There are ports elsewhere in the world which would routinely provide rather more positive advice about the wisdom of setting sail, and which have Vessel Traffic Services able to provide ongoing assistance in a poor visibility passage, working in a co-operative advisory stance with the moving ship, the identity of which is made happily clear by AIS.
There are ports where the pilots carry their own lightweight, self-contained navigational systems, with dynamic traffic and tidal conditions not perhaps available to the ship’s equipment. This equipment has come a long way since the enormous and heavy navigation systems that were helicoptered out with the pilots to the very large cruise carriers arriving at Rotterdam.
There has been a lot of argument about liabilities and whether the ship’s team is disenfranchised by the pilot’s laptop, but I suggest that the balance is heavily weighted in its use. Such is the variety and complexity of ship systems, made infinitely harder by the wide variety of electronic charts and integrated navigational systems in use, that the pilot’s box of tricks, which he is able usually to check by looking out the window, is surely preferable to a confused conversation with an officer over whether the radar is tuned properly, or the identity of the symbols on an electronic chart that the pilot has never seen before.
So there are possibly things that can be done to make ships safer in hazardous situations, and help to reduce the risk to the individuals who will suffer if things go wrong. But until those things are in place I don’t think that people like Capt Cota ought to go to prison for their mistakes. A pilot, swinging a gigantic ship off a berth in a wind and a tide, is making dozens of judgement calls every minute, just as is a master feeling his way into a crowded anchorage. They are in the risk business and it is a bold prosecutor who would suggest that their actions have been negligent or irresponsible.
The trouble is that there are indeed legions of bold prosecutors, fired up by greens and politicians, who are anxious to demonstrate their zeal at bringing these maritime malefactors to book. They see these prosecutions as a duty, but are really reflecting the changing mores of society, which mariners badly need to realise and adjust their behaviour accordingly.
“The court’s sentence of John Cota should serve as a deterrent to shipping companies and mariners who think violating the environmental laws that protect our nation’s waterways will go undetected or unpunished,” said US Attorney for the Northern District of California, Joseph Russoniello. Did Capt Cota and the master of the Cosco Busan really consider whether they were violating the environmental laws when they took the decision to leave the safety of the berth? I would venture to suggest that they thought the risk of getting the big ship to sea without bumping into anything was reasonable. As for a deterrent, I would suggest that many professionals would merely agree that the custodial sentence is both pointless and cruel. Nice soundbite, but pull the other one, Joseph.

The Maritime Executive Magazine :: Game Changer: Reflecting on the COSCO BUSAN Debacle ::

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UK minister weighs in on pilotage standards
Sandra Speares, Lloyds List- Wednesday 29 July 2009
HARBOUR authorities have no legal requirement to provide pilotage services to the “highest possible standard” at all times, according to UK shipping minister Paul Clark, writes Sandra Speares .
Responding to concerns raised on the issue of safe pilotage by Barrie Youde of solicitors RA Wilkinson & Co, Mr Clark said the Department for Transport “does not accept that there is a legal requirement for all competent harbour authorities — a harbour authority that runs a pilotage services — to provide this service to the highest possible standard at all time, with no exemptions or scope for compromise”.
The minister made his remarks in a letter to shadow shipping minister Julian Brazier.
The phrase “highest possible standard” was used by Mr Justice David Steel in his judgment in the Sea Empress trial in Cardiff Crown Court in 1999.
The minister said that given the context, it “seems unlikely” that the phrase was “intended to set a common law precedent for all harbour authorities, in the way that Mr Youde suggests”.
In his 1999 judgment, Mr Justice Steel identified a particular obligation to compulsory pilotage, Mr Youde said in his reply to Mr Clark’s letter.
The judge said: “The significance of these matters is all the greater in the context of a scheme of compulsory pilotage. Shipowners and masters must engage a pilot. They have to take the training, experience and expertise of the pilot provided at face value.
“While the master remains nominally in command, it has to be recognised that the pilot had the ‘con’ and a master can only intervene when a situation of danger has clearly arisen. The port authority imposes a charge for pilotage but in the same breath has the added advantage of the pilot being treated for the purposes of civil liability as an employee of the shipowner.
“All this calls for the highest possible standards on the part of the port authority.”
According to Mr Youde, breach of the obligation was identified by the judge as “the primary aggravating factor in assessing the penalty, as a matter of strict liability, in the criminal prosecution of the port authority”.
Milford Haven Port Authority was fined £4m ($6.6m) after the Sea Empress spill, although this amount was reduced on appeal.
Mr Youde maintains the judge’s observations “identified a general rule of common law, in specific terms and with reasons fully and clearly explained. It obviously cannot be said that the same principle should not apply with equal effect in other pilotage areas.”
In his letter, the minister said that while maintaining high standards should be the goal of all harbour authorities, “these can only be determined given the variety of the ports that employ pilots on a case-by-case basis”.

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