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Marine Log

March 18, 2008

Cosco Busan pilot charged

John Joseph Cota, the pilot of the Cosco Busan, the 65,131-ton containership that collided with the San Francisco Bay Bridge last November, has been charged with violations of the Clean Water Act and the Migratory Bird Treaty Act, according to Ronald J. Tenpas, Assistant Attorney General for the Environment and Natural Resources Division and Joseph P. Russoniello, U.S. Attorney for the Northern District of California.

The incident resulted in the discharge of approximately 58,000 gallons of oil.

According to the criminal information filed in U.S. District Court in San Francisco, Cota was licensed by the U.S. Coast Guard and the State of California as a Bar Pilot. He was a member of the San Francisco Bar Pilots and had been employed in the San Francisco Bay since 1981.

The criminal information alleges that on Nov. 7, 2007, Cota negligently caused the discharge of approximately 58,000 gallons of heavy fuel oil from the Cosco Busan in violation of the Clean Water Act, as amended by the Oil Pollution Act of 1990. According to the charges, while piloting the ship from port in heavy fog, he failed to pilot a collision free course and failed to adequately review the proposed course with the Captain and crew on official navigational charts. Further, he failed to use the ship's radar as he approached the Bay Bridge, use positional fixes or verify the ship's position using official aids of navigation, throughout the voyage. According to the criminal information, these failures led to the Cosco Busan striking the bridge and spilling the oil.

As a result of the discharge of heavy fuel oil from the Cosco Busan, approximately 2,000 birds died, including Brown Pelicans, Marbled Murrelets and Western Grebes. The Brown Pelican is a federally endangered species and the Marbled Murrelet is a federally threatened species and an endangered species under California law.

Cota is charged with one count of violating the CWA and one count of violating the MBTA.

The maximum penalty for a misdemeanor violation of the CWA is one year in prison and a $100,000 fine, and the maximum penalty for a misdemeanor violation of the MBTA is 6 months in prison and a $15,000 fine.

A criminal information is merely an accusation. All defendants are presumed innocent until proven guilty at trial beyond a reasonable doubt.

The investigation is ongoing and is being conducted by the Coast Guard Investigative Service, the EPA Criminal Investigation Division, the Federal Bureau of Investigation, the U.S. Fish and Wildlife Service and the California Department of Fish and Game, Office of Spill Prevention and Response.

The case is being prosecuted by Assistant U.S. Attorney Stacey Geis of the U.S. Attorney's Office for the Northern District of California, and David Joyce, Trial Attorney with the Justice Department's Environmental and Natural Resources Division with the assistance of Ana Guerra.

What the Department of Justice announcement does not say, comments Dennis Bryant of the law firm Holland and Knight is that "under a controversial decision of the U.S. Court of Appeals for the Ninth Circuit, the government need only prove simple negligence in order to obtain a conviction under the Clean Water Act. In addition, convictions for violations of the MBTA are based on strict liability, meaning that the government need only prove that the pilot was involved in the navigation of the ship when the oil spill occurred and that oil from that spill killed some migratory birds."

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