Environment & The Green Beat

SAN FRANCISCO (CBS 5 / AP / BCN) ― The attorney for the pilot of the freighter that spilled 53,000 gallons of oil into San Francisco Bay is blaming the U.S. Coast Guard and others for the mishap and said Friday his client will refuse to testify next week at a government hearing investigating the crash.

Federal prosecutors charged Capt. John Cota last month with environmental crimes stemming from the Nov. 7 incident, when the 900-foot Cosco Busan sideswiped a support tower of the Bay Bridge in heavy fog. The crash fouled the fragile bay with sludgelike fuel, killing or injuring thousands of birds and temporarily closing dozens of beaches.

Cota's lawyer Jeff Bornstein said that Cota, who has pleaded not guilty to the charges, is being unfairly scapegoated by prosecutors and that the Coast Guard "could have prevented this accident." 

The attorney maintained the Coast Guard had the responsibility to track the ship and warn the pilot that a crash was imminent.

"They had the last clear chance to avoid the accident," Bornstein said outside court Friday after a May 27 trial date was set by Magistrate Judge Joseph Spero for his client. "To put all the blame on Captain Cota is unfair and unjust."

Cota also has said the radar on the Cosco Busan was unreliable and there was confusion about symbols on at least one of the navigational charts.

Bornstein said Cota would refuse to answer questions from the National Transportation Safety Board at a two-day hearing on Tuesday and Wednesday in Washington because of the pending charges. He has written a letter to the board saying Cota will invoke his 5th Amendment right against self incrimination.
 
"Unfortunately, because the DOJ (Department of Justice) has reached its own conclusions before the NTSB has finished its investigation and has focused exclusively on Captain Cota's role in this unfortunate incident, Captain Cota is therefore compelled to exercise his Constitutional rights to decline to testify at the NTSB hearing," the letter stated.

"This is not to suggest that Captain Cota has 'anything to hide' and his cooperation up to now clearly demonstrates that is not the case," Bornstein wrote.

Cosco Busan's master Capt. Mao Cai Sun and a "handful" of crew members are also refusing to testify, said NTSB spokesman Peter Knudson.

Knudson said the ship's operator, Fleet Management Ltd., will testify.

Cota is the only person charged in the incident. He is accused of killing migratory birds and illegal dumping, and faces up to 18 months in jail and more than $100,000 in fines if convicted.

Prosecutors have suggested they may revise or add charges, which would delay Cota's trial. Assistant U.S. attorney Stacey Geis declined to elaborate outside court Friday.

Bornstein also indicated the possibility that a settlement with prosecutors may be reached.

"We asked for a referral to a magistrate judge to talk about the possibility of resolving the case," he told reporters outside the courtroom.

Also on Friday, the judge unsealed court documents that prosecutors filed to bar six Chinese crew members dubbed "material witnesses" from leaving San Francisco, including master captain Sun. Cota's job was to pilot the ship out of San Francisco Bay, where Sun would take over.

Sun told investigators that on the morning of Nov. 7 the fog was so thick he could not see the bow of the ship and that "in other countries, the port would have been closed," according to the court documents.

Sun also told investigators that Cota stopped using the ship's radar system and instead relied on an electronic chart viewer to navigate under the Bay Bridge.

"The ship's radar is the primary tool of navigation," the documents state.

Crew members also said the ship was traveling too fast, and prosecutors allege that Cota forgot that the tugboat Revolution was tied to his boat. Then Cota ordered a sharp turn before crashing into the bridge.

"As a result of the sudden and sharp turn, the ship created five to six foot waves in its wake," the documents state. "The tugboat Revolution had to release all of its lines as an emergency measure to avoid being capsized by the speed and height of the waves."

The documents further state that the "government has evidence that the pilot has taken certain prescription drugs" and that the crew members can testify about Cota's 'physical appearance and condition."

The ship's owners have been paying the six crew members' salaries and hotel bills since the seamen were ordered held in town.

In Bornstein's letter to the NTSB, the attorney raised eight issues that investigators should look into, including the Coast Guard's failure to issue a fog warning.

Bornstein also contended that the Coast Guard's Vessel Traffic Service could have prevented the ship from leaving the Port of Oakland and could have advised the ship of its proximity to the bridge tower.

"It they see a ship heading towards a Bay Bridge tower and they don't say anything about it, to me, that's reprehensible," said Bornstein.

Coast Guard officials have adamantly defended their traffic officials, who questioned Cota about his course but didn't advise him of danger as he steered parallel to the bridge instead of toward the appropriate span opening. The Coast Guard said their VTS is an advisory system unlike air traffic control and that their officers fulfilled their duty.

Coast Guard spokesman Dan Dewell said that it was customary for the ship's master and the pilot to make their own determinations on weather conditions and other issues.

"It's the captain and, in the case where a pilot's required, the pilot who are responsible for knowing where they are, knowing where they're going, and safely navigating the ship," Dewell said. "The VTS is an advisory system. We provide information to ships and did so in this case."

The letter from Cota's attorneys also raised a series of questions about the Cosco Busan's master and officers, including whether they were properly trained and sufficiently skilled in use of instruments on board the ship. A spokesman for Cosco Busan's owner, Hong Kong-based Regal Stone Ltd., did not immediately respond to a request for comment.

Several Chinese crew members have remained in the Bay Area under court order "as material witnesses." Their attorneys have filed court documents seeking their release. A judge will consider that issue May 5.

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