.Prisoners of the Cosco Busan

As a judge prepares to sentence the chief culprit in the 2007 oil spill, his detention will still be briefer than that of the innocent witnesses who helped prevent a much greater catastrophe.

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.


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