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.

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