Environment & The Green Beat

SAN FRANCISCO (CBS 5 / AP / BCN) ― The pilot of a ship that spilled thousands of gallons of oil into San Francisco Bay last November was charged by federal prosecutors Monday with criminal negligence and breaking environmental laws.

Capt. John Cota faces up to 18 months in jail and more than $115,000 in fines if convicted of the two misdemeanor charges, which involve harming migrant birds protected by the government and violating the Clean Water Act. Cota was not taken into custody, according to court papers.

Cota was at the helm of the 65,131-ton, 900-foot container ship Cosco Busan when it struck a fender protecting a support tower beneath the Bay Bridge on its way to South Korea on Nov. 7. The ship emptied 53,000 gallons of oil into the fragile bay, closing more than a dozen beaches, killing thousands of birds and damaging the area's fishing industry.

The charges, filed in U.S. District Court in San Francisco, accuse Cota of ignoring heavy fog to pilot the ship without designating or reviewing a safe course through the bay with the ship's crew.

According to prosecutors, Cota "failed to pilot a collision-free course and failed to adequately review the proposed course with the Captain and crew on official navigational charts."

The government also alleged Cota "failed to use the ship's radar as he approached the Bay Bridge" or rely on any other navigational devices that might have helped him steer clear of disaster.

"These failures led to the Cosco Busan striking the bridge and spilling the oil," the U.S. Justice Department said in a statement.

Cota has disputed some of those allegations.

He told investigators with the National Transportation Safety Board, for example, that he relied upon his radar when fog closed in on the ship that morning. But, he said, the radar became "distorted" and "unreliable" as he attempted to navigate the bay, so he switched to the ship's electronic charting system.

Cota also told investigators he reviewed the electronic charts with the Chinese captain before departing.

U.S. Attorney Joseph Russoniello said Monday he would not rule out the possibility that others will be charged, but declined to name any individuals.

A handful of Chinese citizens who were members of the Cosco Busan crew remain under court order not to leave the region while several investigations unfold because they are "material witnesses," Russoniello said.

That court order, which keeps the unidentified Chinese men here more than four months after the incident, is in part what prompted prosecutors to file their charges Monday, he said.

"The court which issued the material witness orders was directing us basically to get on with this, get on with the process of (obtaining) the testimony, that it wasn't prepared to give us further continuances while we did all the things we think are necessary to do to complete the investigation," Russoniello said.

"We believe that the proper balance was struck here by filing charges that we knew we could sustain so that we had 'process' before the court which would demonstrate we were now able to move ahead with the process," he said.

Several weeks after the crash, the Justice Department filed a lawsuit accusing Cota and the ship's owners of violating the National Marine Sanctuary Act, the Oil Pollution Act of 1990 and the Park System Resource Protection Act. The suit accuses the defendants of "fault, negligence and breach of federal safety and operating regulations."

The lawsuit seeks unspecified damages to compensate taxpayers for the federal response to the spill. It said the sum of those damages "is not known and shall be established according to proof at the time of trial."

As a result of the Cosco Busan spill, an estimated 2,000 birds died, including federally endangered brown pelicans and federally threatened marbled murrelet, which are endangered under California law. The losses also included Western grebes.
 
Cota's attorney Jeff Bornstein blasted Monday's charges as "regrettable and unfortunate."

Bornstein accused the government of bringing charges before the NTSB concluded its investigation of the crash.

The NTSB has not yet identified the "chain of errors and causes" of the spill, so "charging anyone at this time is premature," Bornstein argued. 

He said the NTSB's final report containing a "probable cause" is not expected until the end of this year.

"Their decision to bring the charges at this time surprises us given the fact that the NTSB is still continuing to really focus on exactly what happened and all the factors that are involved in that," Bornstein said.

Bornstein said he was not aware of any similar prosecutions that came "before a finding of exactly what occurred."

"This is something that concerns us," he said. "Why is the government criminalizing this incident?" 

Bornstein described his client as "a qualified, experienced pilot" who grew up in San Francisco, and who "cares deeply about the San Francisco Bay and its ecosystem and is deeply distressed about what happened."
 
He added that Cota is cooperating fully with the federal investigation.

"We are hopeful that our dialogue with the government will continue, but we are prepared to vigorously defend against these criminal allegations. We strongly believe that once all of the evidence is heard, a jury will find in Capt. Cota's favor," Bornstein stated.

Cota has sleep apnea and to ward off drowsiness was taking a prescription drug whose known side effects include impaired judgment, officials with knowledge of the investigations told the Associated Press in January. There is no mention of the drug issue in the criminal information, and Russoniello declined to comment on the matter.

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