Prisoners of the Cosco Busan

When Liang Xian Zheng took a job working as the boatswain on the
Cosco Busan, the seasoned seaman knew the $29.50-a-day gig would
send him out to sea for six to ten months. He also knew it meant
undertaking a wearisome 1,000-mile journey from his home in Beijing,
China to the port of Busan in South Korea, where the container ship was
based. But what Zheng couldn’t have known was that, two weeks after
boarding the cargo ship and ably performing his duties as a lookout
during a crisis, he would be trapped in a foreign land on an exotic
legal warrant, in misery and legal purgatory, until months after his
seafaring expedition was supposed to have ended.

During the foggy morning of November 7, 2007, the Cosco
Busan‘s port side scraped for sixteen seconds against a protective
fender that buffered one tower of the Bay Bridge. The fender sliced a
212-foot gash in the ship’s hull, tearing open two fuel tanks and
producing an environmental disaster. Most of the two tanks’ 60,000
gallons of fuel, which made up a small portion of the 1 million gallons
pumped into the ship’s bunkers to power its journey back to South
Korea, gushed into San Francisco Bay. The cheap, black bunker fuel
— heavier than water and cut with diesel to make it runny enough
for engines — closed beaches; halted crabbing and fishing; killed
fish eggs, seals, and thousands of birds; and raised cancer-causing
polycyclic aromatic hydrocarbons to unsafe levels in shellfish. After
initially underestimating the size of the spill, the Coast Guard waited
until dusk before it called in its oil-spill cleanup specialists. More
than half of the spilled fuel sank, evaporated, washed out to sea, or
became buried beneath shoreline sand. Cleanup efforts cost more than
$70 million, and the environmental impacts are still being
calculated.

The ship’s operator, Fleet Management, quickly lawyered up. Today,
it faces criminal charges and civil lawsuits related to allegations
that its crew contributed to the crash, was inadequately trained, and
doctored documents to mislead investigators. But Zheng and his fellow
sailors also soon discovered that they too needed legal
representation.

Fleet Management’s attorneys brought three downtown San Francisco
lawyers into the case to represent Zheng and five other crew members
whose testimony was sought by the government. The attorneys instructed
the men to not talk to the media or cooperate with preliminary
investigations. They secured the men immunity from prosecution in
exchange for their testimony, and struck a deal that kept the sailors
out of incarceration but trapped in Northern California until long
after the ship and their eighteen colleagues had left US waters.

Immunity was valuable for some of the sailors, who clearly failed to
fulfill their duties. Master Mao Cai Sun meekly abdicated control of
his ship to a pilot who was affected by pharmaceuticals. First Mate
Kongxiang Hu left his post as lookout to eat breakfast. Second Mate
Shun Biao Zhao failed to plan the ship’s course out of the bay and then
forged his colleagues’ signatures on a plan drafted after the accident.
And Third Mate Hong Zhi Wang failed to monitor the ship’s path using
GPS.

But there was no evidence of wrongdoing by the lower-ranking Zheng,
who was detained as a witness because he was serving as lookout and
first spotted the bridge, or against his underling, Helmsman Zong Bin
Li, who was dutifully operating the rudder under direction of the pilot
on the morning of the accident.

Nonetheless, for the year that followed the crash, all six men,
including the blameless Zheng and Li, were shuttled between San
Francisco hotel rooms and an apartment by an employer charged with
crimes for which the crew members were held as witnesses, not suspects.
They were kept in Northern California on so-called material witness
warrants.

Such warrants became popular several centuries ago, to secure needed
evidence when prosecutions were delayed and there was no alternative to
in-court testimony. In the 20th century, they became useful for
obtaining the testimony of foreign citizens or people smuggled into the
United States. Under President George W. Bush, use of the warrants
against seafarers involved in pollution-related trials rose, according
to Douglas Stevenson, the policy and advocacy director at the
175-year-old Seamen’s Church Institute. “There’s really not any
mechanism, once a foreign citizen goes home, for being sure they’ll
come back when they’re needed for a trial,” Stevenson noted.

Attorneys for the Cosco Busan crew argued in court that their
clients’ constitutional rights were being violated. However, the
Supreme Court has never ruled on the constitutionality of this obscure
legal tool. “Initially, they didn’t get lawyers,” noted Ricardo
Bascuas, a University of Miami law professor who has written on the
subject and who once represented a material witness arrested after
9/11, when the Bush administration used such warrants to detain Muslims
suspected of having links to radical groups and jihadists. “It was a
group of people that had no incentive to complain, so there are not a
lot of cases on it.”

Material witness laws can turn bystanders into prisoners. And they
add the prospect of in-country confinement to the other risks that must
be weighed by would-be whistleblowers. Four Filipino sailors aboard the
Rio Gold cargo ship learned that lesson last May, when they were
slapped with material witness warrants and held in Northern California
after reporting their boss and employer for offshore oil-dumping
crimes. The archaic warrants also provided rogue Bush administration
officials with a legal device with which to incarcerate Muslims without
proof of any wrongdoing. The sad case of Liang Xian Zheng and Zong Bin
Li shows how such warrants can be abused.

As boatswain, Zheng was the Cosco Busan‘s highest-ranking
unlicensed sailor. Although he lacked the English skills needed to
obtain a license, he was an experienced and well-trained seaman. After
graduating from a Beijing high school in 1988, he spent a year at
maritime academy. Among his lessons: How to serve as a lookout on a
ship’s bow. After graduation, Zheng scored a job as a cadet at China’s
COSCO Shipping Company. He had worked on nine ships when an agency
recruited him for a stint aboard the Cosco Busan.

Unlike better-certified colleagues on that fateful assignment, Zheng
didn’t speak English, apart from nautical words and basic commands
needed for his trade. When Fleet Management contracted to operate the
Cosco Busan, the Hong Kong-based company, which operates about
200 ships, decreed that English would be the working language for the
all-Chinese crew. That effectively barred Zheng and others from reading
onboard safety and operating procedures. The crew was trained in
company policies aboard the ship by fly-in fly-out Fleet Management
official Varminder Singh, an Indian who spoke English but not Mandarin.
Master Sun translated for non-English speakers during the crew’s
initiation, which lasted during the two-week-long trip from Busan to
Long Beach and then to Oakland.

At 6:15 a.m. on November 7, 2007, 45 minutes before its scheduled
departure from the Oakland Port, Singhan departed the Cosco
Busan, leaving its journey back to South Korea in the hands of
Master Sun and his crew. But the crew didn’t plot a course from Berth
56 out through the Golden Gate, which violated the policies in which
they had just been trained. The oversight may have seemed irrelevant
since an experienced local pilot would board the ship to take it out of
the bay.

The 59-year-old bar pilot assigned to the Cosco Busan, John
Cota, was a brusque, unhealthy man with a hot temper, an alcohol
problem, and a history of driving under the influence. It was his
seventh consecutive day on piloting duty, and he had managed just ten
hours of sleep over the prior two nights. At 4 a.m., the Petaluma man’s
alarm clock rang out, and by 6 a.m. he pulled over at the fog-draped
pier in the Port of Oakland. He boarded the ship just five minutes
after the instructor Singh disembarked; was greeted by the crew;
commented on the fog, which reduced visibility to one-eighth to
one-quarter of a mile; and turned down an offer of a coffee or a
soda.

Cota radioed the Vessel Traffic Service and said he would take the
ship through the Delta-Echo span of the Bay Bridge, which is on the San
Francisco side of Treasure Island. Two hours later, the Coast Guard-run
service, which acts like a flight control tower except that it spends
most of its time watching vessels and very little time controlling
them, failed to warn Cota that he was sailing the container ship into a
bridge tower instead of through the span.

Like other bar pilots in San Francisco Bay, but unlike pilots in
other harbors, Cota wasn’t required to carry a laptop computer laden
with navigation equipment. Instead, he relied on the Cosco
Busan‘s array of onboard electronic maps and radars. But he
struggled to use them. “It’s not plotting, Captain,” Cota told Sun
after readjusting and testing the radar for forty minutes. “I’ve tried
to plot this target five times but it never plots. It didn’t plot
— that’s not good for fog.” Eventually, he set sail. He later
abandoned the radar altogether after the display appeared to him to
grow distorted, and relied instead on the ship’s electronic map, which
marked hazards and safe passages with symbols. Investigators have
concluded that the radar was working properly, and recordings show that
its display did not become distorted.

In an exhaustive accident report published more than a year later,
investigators for the National Transportation Safety Board concluded
there was another reason for the bar pilot’s difficulties. A urine
sample subsequently provided by Cota, who had already been involved in
thirteen shipping accidents, including nine where he was counseled or
blamed afterward, tested clean for cocaine, marijuana, and other
illegal drugs. But it was destroyed without being tested for any of the
legal pharmaceuticals that prescription records show that he had
possessed, such as traces of any of the 124 hydrocodone tablets, better
known as Vicodin, which he obtained from two pharmacists following
dental surgery a month earlier. In the two months before he swaggered
onto the Cosco Busan, Cota filled prescriptions for Darvon,
Valium, Talwin, Imitrex, Ativan, Provigil, Zoloft, Lomotil, and
Compazine, or their equivalents. Many of those drugs are addictive, and
at least six degrade cognitive performance.

When the ship pulled out of its dock an hour behind schedule, Zheng,
the boatswain, had already spent more than four hours checking and
fixing lashings that local longshoremen had sloppily strapped around
the containers. He joined the Chief Mate, Kongxiang Hu, on the bow to
help him serve as lookout. He soon grew alarmed by the ship’s fast
speed in thick fog.

In China, the Cosco Busan would not have sailed in such fog,
Hu told Zheng in Mandarin. Yet in a failing that investigators later
blamed on the Chinese crewmembers’ cultural reluctance to challenge
authority, none of them, including Master Sun, complained to the brash
American pilot about his speed in heavy fog. Nor did they ask where he
was taking their ship. At 8:13 a.m., Sun radioed Zheng and Hu to
confirm that they were serving as lookouts. Seven minutes later, Hu
abandoned his lookout duties and, without telling Sun, went inside to
eat breakfast, leaving the lower-ranking boatswain Zheng alone as the
ship’s only lookout.

Zheng peered nervously into the thick fog. Inside, Cota didn’t
realize that he was lost. The northwest-bound ship was drifting too far
west across the face of the bridge as Cota tried to line it up to pass
through the Delta-Echo span. Disregarding the radar and unable to see
through the fog, the pilot relied on the ship’s electronic map. He
started directing the ship, as it appeared on the map, toward a pair of
red triangles that he thought marked the center of the 2,200-foot span
between the Delta and Echo towers.

If Cota had moved the mouse cursor over one of the triangles, he
would have learned its meaning.

To figure out that each of the red triangles symbolized a floating
buoy, rather than a bridge span, he also could have been expected to
call upon his 26 years of piloting experience. Each triangle was a
familiar electronic representation of the hand-drawn fin that was
long-ago adopted by mariners as the symbol for a conical buoy. Instead,
at 8:22 a.m., Cota asked Master Sun what the triangles meant.

In accounting for Cota’s perplexing confusion, NTSB investigators
eventually concluded that “the higher-level cognitive effort and
perceptual skills” needed to interpret the Cosco Busan‘s
standardized radars and maps “were precisely those capabilities that
would have been degraded” by the drugs that Cota had possessed. None of
Cota’s difficulties using the radar or reading the map would have been
expected of any pilot with sober and effective cognitive functions, the
investigators concluded. In other words, they concluded, he was
tripping on prescription meds.

Sun told Cota that the triangles were symbols for the bridge, which
Cota took to mean the center of the bridge span. Neither of the men
turned around to ask Third Mate Wang, the ship’s navigational systems
expert, to interpret the symbols. Wang says the pair spoke English too
quickly for him to catch their conversation.

Blinded by fog and by his inability to use the ship’s working radar,
Cota began turning the ship in an apparent effort to navigate between
the two red triangles, thinking they marked the center of the bridge
span. In fact, the triangles marked buoys that were bobbing fifty feet
apart on the north and south sides of the concrete Delta tower. The
tower was directly between them.

At 8:27 a.m., when the ship was one-third of a mile from the bridge
and moving quickly at ten knots, the four-person Vessel Traffic Service
team on Yerba Buena Island noticed Cota was off course.

“Our initial thought,” Watch Supervisor Mark Perez later told
accident investigators, was “that he had aborted his approach or
possibly he had changed to an alternate span.”

Sector Controller Frank Sheppard radioed Cota. “Uh, AIS shows you on
a two-three-five heading,” he said. A heading refers to the direction
in which a ship’s bow is pointed, where north is expressed as zero
degrees and south is 180. The service’s automatic identification system
updates the direction of a turning ship every six seconds or so. “What
are your intentions?” Sheppard asked.

“Um,” Cota replied, “I’m coming around and steering 280 right
now.”

“Roger,” Sheppard replied. “Understand you still intend the Delta
Echo span?”

Before replying, Cota double-checked with Sun to be sure that the
pair of red triangles on the electronic map marked the center of the
bridge. “Yeah, yeah,” Sun replied.

Cota ordered two hard starboard turns and radioed, “Yeah, we’re
still Delta Echo,” and kept his dangerous course.

“Uh, roger, captain,” Sheppard concluded, then stared with his
colleagues at monitors in horror for more than a minute as the
container ship barreled toward the tower.

Zheng had been staring, alone, through the cold, gray mass for ten
minutes, when a terrifying specter emerged. The ghostly silhouette of a
gray bridge tower appeared fifty yards ahead.

“The bridge tower,” the panicked Zheng cried in Chinese into his
walkie-talkie. “The bridge tower!”

Cota and Sun looked and said they saw the tower, which was slightly
on the ship’s port side. Then the bar pilot’s lifetime of maritime
experience kicked in. He had the helmsman continue to hold the rudder
at hard starboard, which wheeled the ship’s bow around clockwise to the
right of the Delta tower. But that swung its port side around to smash
directly into it. Ten seconds later, Cota ordered the helmsman to
straighten the rudder. Five seconds after that, he ordered him to turn
it hard to port.

The seemingly counterintuitive port turn angled the bow back toward
the tower as an eight-foot-deep gash was gouged along the ship’s
single-layered metal hull by the crumpling timber-and-plastic fender
system. Two fuel tanks and a ballast tank ripped open as the ship
grazed past the fender, leading to a 53,500-gallon oil spill. But the
port turn pirouetted the hulking rear of the fully-laden 901-foot ship
away from the tower just in time to avoid bulldozing into it.

Zheng’s watchfulness had helped prevent a catastrophic collision
between the soft steel ship and the solid concrete bridge tower that
could have ruptured the ship and sent hundreds of thousands of gallons
of its fuel into the bay. And what was his reward? As a witness to
alleged crimes, he was ordered to surrender his passport and report to
a US court. If he entered another state or country, he risked becoming
the unemployed target of an international arrest warrant.

After the crash, Zheng stayed with the other 23 crewmembers on the
ship, which was docked at an anchorage before being shifted for repairs
in a San Francisco shipyard. Acting on the advice of attorneys hired by
their employer, the crew initially refused to cooperate with the
investigators who clambered aboard. The investigators eventually
identified six of the men, including Zheng, Li and the four most senior
sailors, as targets of material witness warrants. An attorney appointed
by Fleet Management’s legal team to represent Zheng, Li, and two of the
other men accepted service of their arrest warrants. That helped keep
the seamen out of jail, but required them to disembark from the
Cosco Busan and remain in the United States, even after their
colleagues had taken the repaired boat back out of the bay in late
December.

Attorneys for Fleet Management hired Douglas Schwartz, a chipper
maritime lawyer with experience representing crew members served with
material witness warrants, to represent Master Sun. Schwartz took the
leadership role in arguing on behalf of all six crew members, including
Zheng and Li. He says he believes the men were “functionally
detained.”

The Chinese nationals were squirreled away, out of the media
spotlight, in hotels and an apartment around Nob Hill, downtown, and
the Marina, as deals for their accommodations were secured. Fleet
Management and its staffing contractors were required to pay the
crewmembers’ salaries, living expenses, and cover their health care
costs. The seamen were free to roam about the Bay Area, provided with
work visas, and paid witness fees of $35 to $40 per day. But they
received no counseling services to help them through the confusing,
lonely ordeal.

When a material witness is stuck in the United States, they are not
generally incarcerated. But it’s common for depression to set in,
according to Stevenson of the Seamen’s Church Institute. “They’ve got
to sit in a strange place and eat fried food for six months,” he said.
“They don’t get told exactly what’s going on. Their diet changes and
they get bored. They’re trained to be seafarers — not to be
sitting around waiting to testify in a case.”

When the Oakland-based chapter of the Seamen’s Church heard that
witness warrants had been issued for the men from the Cosco
Busan, it tried to invite them to their center to use the Internet,
receive pastoral and emotional support, and hang out and play pool with
other seamen. But their offer was ignored, church officials say. And
church officials already had their hands full supporting seven Filipino
seamen who were being held as material witnesses in a separate case.
Those men were stuck in Northern California after some of them reported
that their chief engineer, a Greek national, had ordered waste oil
dumped from the engine room of their ship, the 626-foot Rio
Gold, as it sailed to Oakland from Hawaii. As a reward for
reporting the crime, the four whistleblowers jeopardized their careers
and lost their freedom for months, but eventually they were rewarded by
the US government with more than $60,000 apiece following the
successful prosecution of their employer, Malta-based Casilda Shipping
Ltd., which was fined $750,000.

Throughout the sojourns of the Cosco Busan crew, prosecutors
and attorneys for Fleet Management and Cota repeatedly asked US
Magistrate Joseph Spero to extend the witness warrants — or
agreed to such requests from other lawyers — to keep the men in
the country long enough to testify in the trial of their employer and
pilot.

The men’s ordeal was prolonged because of tardiness by prosecutors,
who took four months to bring charges against Cota and more than eight
months to file an indictment against Fleet Management. Delays also
occurred because aggressive Fleet Management defense attorneys demanded
their right to gather every scrap of evidence, Schwartz said, and
because of intense public interest in the case. All of those factors
helped repeatedly postpone the federal trial of Cota and Fleet
Management.

Attorneys for the crew claimed in court that the US government would
never accept such treatment of Americans by a foreign government. They
argued that their clients’ long stays violated their Fourth Amendment
protections against unreasonable detention and their Fifth Amendment
due-process rights. The Supreme Court has never considered this issue,
although it has ruled that material witnesses have a right to witness
fees. US Magistrate Spero replied that the men were “stuck” in Northern
California, but ruled that they were not “detained” because they were
not incarcerated.

“The reason, as far as we can tell, that there’s almost no case law
on the subject of ‘detention’ versus ‘functional detention’ is that
normally it doesn’t last long enough,” Schwartz said. “By the time you
get it in front of the Ninth Circuit [Court of Appeals], it’s moot. If
we had realized back in the spring how long this would have dragged
out, we would have tried to have teed it up to get it in front of the
Ninth Circuit.”

When US Judge Susan Illston pushed back the trial until after the
one-year anniversary of the oil spill, however, Spero said the crew
members could return home after the lawyers took their depositions.
During the depositions, which were videotaped in a judge-free federal
courtroom, the crewmembers answered questions about their backgrounds
and recalled year-old memories through translators. They had already
shared the same information multiple times during interviews with
accident investigators.

Spero allowed Zheng and Li, the two lowest-ranking and apparently
blameless crewmembers, to give their evidence and return home before
the other men. The depositions lasted for between three and fourteen
days and revealed Fleet Management’s role in the accident, according to
Cota’s attorney. “From all of the crew members’ depositions, it became
clear that there were significant issues regarding the training they
received from Fleet,” Jeffrey Bornstein said.

Zheng, who first spotted the bridge, grew miserable and depressed in
San Francisco, according to his attorney and others involved in the
case. While his colleagues took classes to improve their English and
found work at a cramped sushi restaurant in a Japanese mall, Zheng
spent his time bored, moping, and sad, resigned to an unfair fate.

Meanwhile, the younger Li, who was held as a witness because he had
been controlling the Cosco Busan‘s rudder when an aggressive,
drug-dependent, fully-licensed California superior piloted it into the
bridge, grew deeply resentful at times, the attorneys say. His
frustration was palpable; his demeanor made fierce by the obviousness
of the injustice.

In September, Spero allowed Li to return home briefly so that he
could visit his dying 88-year-old grandmother. Spero said the ruling
was made because all of the lawyers involved in the multi-party case
supported his desperate plea. Li paid a $1,800 bond, agreed to keep
close phone contact with the court, and provided his girlfriend’s phone
number in China.

Zheng and Li returned home to China for good on the same day in late
November. At that time, more than one year after the accident, Li’s
grandmother’s ailing heart was still ticking, and she was still alive
to welcome her grandson back home to Henan Province.

Today, Fleet Management faces hundreds of thousands of dollars in
fines after offering to plead guilty to environmental misdemeanors. If
found guilty on felony charges that its officials forged documents to
mislead spill investigators, it faces fines of millions of dollars
more. And it also will be billed hundreds of millions of dollars for
cleanup and environmental restoration costs.

The Vessel Traffic Service officials who silently watched the crash
unfold were retrained by the Coast Guard in the rudimentary art of
giving orders to pilots to avoid accidents.

John Cota will be fined and sentenced June 19 to up to ten months in
prison, after he pleaded guilty to a pair of environmental misdemeanors
under a deal with prosecutors. But his incarceration will be briefer
than the Kafkaesque odysseys of Zheng and Li, who were trapped in
Northern California for more than twelve months because of the
drugstore junkie’s wildly errant orders.