Environmental Crimes Blog

The Cosco Busan

On Friday, July 17, 2009, the USDOJ announced that John Joseph Cota, the pilot of the Cosco Busan was sentenced to serve ten (10) months in federal prison.  The Cosco Busan, a 900-foot long container ship, collided with the San Francisco Bay Bridge and discharged approximately 53,000 gallons of oil into San Francisco Bay on November 7, 2007. 

 

Cota was sentenced according to the plea agreement in which he pleaded guilty to negligently causing discharge in violation of the CWA and of a violation of the Migratory Bird Treaty Act. 

 

The USDOJ sought incarceration because Cota was “guilty of far more than a mere slip-up or an otherwise innocuous mistake that yielded unforeseeably grave damage.  Rather, he made a series of intentional and negligent acts and omissions, both before and leading up to the incident that produced a disaster that, as widespread as it was, could have had even worse consequences.”   

 

Prosecutors provided the court with a list of Cota’s errors that included the following:

 

• Captain Cota left in extreme fog that was so thick that the bow of the vessel was not visible from the bridge.  Captain Cota made the decision to leave in the fog while the pilots of six other large commercial vessels decided not to depart in the heavy fog which was less than 0.5 nautical miles.
• Having made the decision to leave port in impenetrable fog, Captain Cota took no action to assure the fortification of the bridge or bow watch or review the passage plan with the master and crew of the Cosco Busan.  In particular, Cota failed to have a master-pilot exchange to review the transit plan.
• Captain Cota has subsequently claimed that he found both radar unreliable, but he did not notify the master or the Coast Guard that a required piece of equipment needed to safely navigate the ship had failed.  Meanwhile, the captured images of the radar retained on the ship’s computer show that the radar was fully operational.
• The tape recorded conversations from the ship’s bridge show that Captain Cota was confused regarding the operation of the electronic chart system upon which he chose to rely including the meaning of 2 red triangles that marked buoys marking the tower of the bridge that he eventually hit.
• At no time during the voyage after leaving the berth at 8:07 a.m. and prior to 8:30 a.m. did Captain Cota, or any of the ship’s crew, consult the ship’s official paper navigational chart or take a single positional fix.  Captain Cota did not ask any crew member to take any fixes or verify the ship’s position despite the lack of visibility.  After the incident, Cota told the Coast Guard he did not request fixes because it is like “driving your car out of a driveway.”

Prosecutors also filed papers showing that Captain Cota had failed to disclose his medical conditions and prescription drug use on required annual forms submitted to the Coast Guard. 

 

The clean-up costs have been estimated to exceed $70,000,000.00. 

 

The grand jury indictment also charged Fleet Management Limited (Hong Kong), a ship management firm, with the same alleged offenses as well as false statements and obstruction of justice charges.  Trial in that case is set for September 14, 2009.  The case is being prosecuted, in part by Richard Udell, a senior trial attorney with the Environmental Crimes Section of the USDOJ.  He is a VERY capable prosecutor, so the trial should be interesting. 

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

Not an Environmental Crime, but a Crime Nonetheless

I recently returned from a long weekend trip to San Diego, California with my wife to escape the 100º heat in the Dallas/Fort Worth area.  I got in some great golf at Torrey Pines and the wife got in some great spa time (a good trade-off).  Anyway, I digress.  Once we got back from San Diego, I left my golf bag – still fully packed – in my living room.  A couple of days later, I unpacked my golf bag and discovered that my Maui Jim sunglasses (cost me about $125.00) were missing.  Upon further examination, the nylon webbing that attached to the case (which was not there) appeared to be cut (straight edge, no fraying).  They were there when I was in San Diego (I wore them there) but they were not there when I got back to Dallas.  Only two entities had access to my bag other than me – TSA and American Airlines.     

 

I then got on line to see about notifying the TSA and AA about my suspected theft from my golf bag.  I have traveled with my clubs various locations around the world for the last twenty years or so with no incident.  After rooting around on the TSA website, I finally found the complaint submission link and I submitted a complaint.  I also submitted a complaint to AA. 

 

The response I got from the TSA was essentially, “Thanks for writing; however, you need to contact the TSA San Diego and ask for lost and found.”  The sunglasses were not lost – they were stolen.  I do not think a call to “lost and found” would have been helpful.  The response I got from AA was a little different.  Here is the response from AA:

Thank you for contacting Customer Relations via AA.com. We are as concerned as you are about the circumstances you described. Personnel in our Security Department use a program of surveillance and other means to prevent property loss -- especially in this era of heightened security. Our statistical measures reflect that our efforts are highly successful but I realize this is of little solace to you since you are reportedly missing some of your belongings.

While we work very hard to avoid these mishaps, unfortunately, they do sometimes occur. When this kind of difficulty happens, every effort is made to make amends in a reasonable manner. However, our conditions of liability exclude any claim not initially reported in person within 24 hours after the arrival of your checked items.
Still,we have documented your concerns and have shared your experience with key personnel at the both the SAN and DFW Airports for internal review purposes.

Mr. James, our position in no way suggests that we are insensitive to what happened. Again, we are genuinely sorry for the reported loss of your sunglasses. Please be assured that we will work harder than ever to restore your confidence in our ability to provide good service. We realize we must earn back your respect.    

 

The response by TSA was pure BS.  The response by AA was worthless; however, it made me feel better that they were at least sharing the experience for “internal review purposes.”

 

While I doubt I will ever see my sunglasses again, I hope that the SOB that took them gets caught.

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

W.R. Grace Redux

The National Law Journal sat down with David Krakoff, wh represented Harry Eschenbach, the former director of health and safety for W.R. Grace’s industrial chemicals group.  The interview is an interesting read on how the case turned in favor of the defense.  You can read the interview here:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202431910746&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20090701NLJ&kw=The%20anatomy%20of%20an%20acquittal%20in%20the%20W.R.%20Grace%20asbestos%20trial&slreturn=1

 

There is no doubt that the current administration will continue to bring cases alleging environmental crimes; however, based upon the events during and the outcome of the Grace case, one can only hope that the government will be a little more careful in how it indicts and then how its lawyers act duringthe pre-trial and trial stages.

 

One can only hope.

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii