State of Texas, Counties of Jefferson and Orange, Board of Pilot Commissioners
-From William Scott, Chairman, Jefferson and Orange County Pilot Commission:
The Jefferson and Orange County Board of Pilot Commissioners (the "Commission") submits this response to the National Transportation Safety Board's (''NTSB'') recommendation M-11-17 arising out of the above referenced incident and the NTSB's final report on the incident.
As discussed further below, the Commission, in conjunction with the Sabine Pilots Association, has responded to the recommendations from the NTSB.
As an initial matter, the Commission is well acquainted with the facts and circumstances surrounding this incident. In fact, the Commission appointed an incident review committee, with members of the Commission as chairpersons, to investigate the facts and circumstances of the incident. As parties in interest to the incident, the Commission and the incident review committee were provided with practically all pertinent evidence from the Coast Guard's investigation into the incident. This evidence included photographs, witness statements, ship data, drug and alcohol testing repOl1s and personal interviews with many of the crew persons involved in the incident.
The incident review committee also held a public hearing with the involved pilots to further develop the facts and circumstances of the incident. A copy of the incident review committee's findings and recommendations have been provided to the NTSB.
As a result of its investigation, the incident review committee reached findings related to the cause of the incident and issued letters of caution to the individual pilots involved. However, the findings by the incident review committee are somewhat at variance with the findings by the NTSB. As such, the Commission offers the following comments for further consideration.
A. Cause of Incident - Pilot Fatigue
The NTSB's finding that the failure of the first pilot, who had navigational control of the Eagle Otome, to correct the shearing motions that began as a result of the late initiation of a tum at a mild bend in the waterway is clearly supported by the evidence. In fact, the incident review committee found essentially the same thing when it determined that the first pilot failed to take proper corrective action as the vessel experienced bank effects. However, the NTSB goes on to note that a contributing factor to the accident was "the first pilot's fatigue, caused by his unobstructed sleep apnea and his work schedule, which did not permit adequate rest. The Commission submits that this conclusion is not supported by the evidence from the Coast Guard investigation. In fact, the credible evidence from the Coast Guard's investigation of the incident, the Coast Guard public hearing on the matter and the incident review committee's investigation of this incident heavily supports the opposite conclusion - that pilot fatigue was not a contributing factor to the incident.
1. Evidence of Pilot Fatigue - initial interviews
Immediate1y following the incident, Coast Guard members from the Coast Guard Marine Safety Unit in Port Arthur, Texas began their investigation of the incident. One of the first things to be accomplished was to obtain transcribed interviews of the pilots on board at the time of the incident. Toward that end, the first pilot gave a transcribed statement to the Coast Guard on January 27, 2010 at 1445 pm. In that statement, the first pilot described in detail his work/rest schedule for the 96 hours prior to the incident. In summary, the first pilot had more than 40 hours off before one extended duty assignment and more than 18 hours of rest before the Eagle Otome assignment. During those 18 hours of rest, the first pilot confirmed that he obtained over 12 hours of sleep. The first pilot concluded his testimony on the work/rest issue by stating that he felt well rested prior to his call for the Eagle Otome job.
In addition to the interview of the first pilot, the Coast Guard obtained no less than 20 statements from persons who had knowledge of the incident. Of this number at least five statements were taken from persons who had personal interaction with the first pilot on the day of the incident. In all of those statements, there was not one statement or observation that the first pilot appeared fatigued. In fact, the statements from the second pilot, from the Eagle Otome master and from members of the vessel deck crew were that the first pilot was actively engaged in the operation and navigation of the vessel and that he took all actions consistent with the safe operation of the ship. During this initial investigation into the incident, there was simply no evidence supporting a conclusion that the first pilot was fatigued.
2. Evidence of Pilot Fatigue - Coast Guard hearing
After approximately six weeks of accident investigation, the Coast Guard held a public hearing into the Eagle Otome incident on March 9, 2010. The first pilot was called to testify at the public hearing. His testimony confirmed that he usually obtains six and a half to seven hours of sleep each night, whether he is working or not. He confirmed that on the date of the Eagle Otome incident, he had risen from a dead sleep and did not recall waking up tired. He confirmed that he never experienced fatigue or sleepiness associated with any of his medication and that he did not have insomnia. He acknowledged a diagnosis of sleep apnea and confirmed that he did not use his CPAP machine during the days before the Eagle Otome incident, but also confirmed that even without the machine, he sleeps normally in the middle of the night and that he falls asleep quickly. There was no testimony from the first pilot that indicated he was suffering from fatigue at the time of the incident.
The public hearing was conducted over three days and included live or telephonic testimony from 15 witnesses. The transcript runs in excess of 600 pages. Several of the witnesses from whom testimony was taken would have had personal interaction with the first pilot on the day of the incident. From all of the testimony adduced at the public hearing there was no credible evidence to support a conclusion that the first pilot suffered from fatigue at the time of the incident. It should be noted that the Coast Guard also took testimony from the chief of the medical evaluations branch, Captain Matthew Hall. Capt. Hall testified in generalities about the use of a CPAP machine for persons with sleep apnea, but none of that testimony was specific as to the first pilot aboard the Eagle Otome. Because the testimony was general in nature, and not specifically related to the facts of this incident, the testimony of Capt. Hall provided no evidence from which one could infer that fatigue played a part in the first pilot's actions on the day of the incident.
3. Evidence of Pilot Fatigue - Incident Review Committee hearing
The Commission's incident review committee held a public hearing on the Eagle Otome incident on August 10, 2010. The incident review committee was composed of members of the commission serving as chairpersons, members of the local pilot association and at large members selected by the Commission. The hearing was transcribed and the first pilot was placed under oath prior to his testimony. During the incident review committee hearing, there was again no discussion about the first pilot being fatigued or not having adequate rest on the day of the accident.
By this point in time, the first pilot had been questioned by members of the Coast Guard's investigative team immediately after the accident. He had been questioned, under oath, by the Coast Guard's lead investigator into this matter and by a representative of the NTSB during the Coast Guard public hearing regarding his work/rest schedule and whether he was fatigued at the time of the incident. He had also been questioned, again under oath, by members of the incident review committee. Whenever questioned about work/rest periods or about whether he was fatigued, the first pilot gave clear and unequivocal responses indicating that he was well rested and that fatigue played no part in the incident. At the same time, throughout all of the Coast Guard investigation, the public hearing and the hearing by the incident review committee, there was no credible evidence adduced to support a conclusion that fatigue played any role in this incident.
4. Evidence of Pilot Fatigue - Additional Observations
In addition to the testimony of the first pilot and the other persons involved in the incident, there is additional circumstantial evidence that mitigates against fatigue as a cause of the accident. As noted above, the first pilot had over 12 hours of sleep prior to his assignment to the Eagle Otome. The first pilot had awoken for duty at 02:30 am on the morning of the incident. As such, he had been awake for only seven hours at the time of the incident. Furthermore, in the minutes leading up to the allision, the pilot was actively engaged in the operation of the ship as it experienced shearing events in the channel. The NTSB report notes that, during a span of 12 minutes from 09:23 am to 09:35 am, the first pilot gave no less than 23 rudder and engine commands. During this same timeframe, the first pilot also had discussions with the second pilot, the vessel master and other crew members regarding the most effective way to regain control of the ship as it experienced the shearing events. He also requested that the second pilot contact other vessels on the waterway to warn them of their situation. He ordered that the anchor be readied and eventually dropped and that ship personnel be readied for that purpose. After determining that an allision was inevitable, the first pilot sounded 12 blasts of the air whistle to alert other vessels on the waterway. Taken together, these are not the acts of a pilot suffering fatigue. While the first pilot's actions did not ultimately prevent the incident, he clearly did all that he could to regain control of the ship. The engine order commands and rudder adjustments, while again ultimately unsuccessful, were well reasoned and appropriate given the circumstances. The first pilot had experienced shearing events on prior occasions and used similar tactics to regain control of the vessel he was operating. Reviewing the totality of the evidence, there is simply no basis to support a conclusion that fatigue played any role in this incident.
Notwithstanding all of these facts, the NTSB found that fatigue did play a role in the Eagle Otome incident. With all due respect to the NTSB and the work it does to promote maritime safety, the Commission strenuously disagrees with this finding. The overwhelming weight of the credible evidence, adduced in separate hearings by both the U.S. Coast Guard and the Commission's own incident review committee, supports the opposite conclusion - that pilot fatigue was not a contributing factor in this incident.
B. NTSB Recommendations
The NTSB has provided recommendations (M-l1-17) to the Commission related to its interaction with the local pilot association. Specifically, the NTSB recommends that the Commission: Develop and implement (1) a system to monitor your state licensed pilots so that your commission can verify the execution of policies, procedures and/or guidelines to necessary for safe navigation and (2) a fatigue mitigation and prevention program among the Sabine pilots.
Prior to stating its response to the recommendation, the Commission feels a brief recitation of its legislative mandate is appropriate.
1. The Jefferson and Orange County Board of Pilot Commissioners
The Commission was established by the Texas legislature, with the approval and consent of the Texas governor, for the purpose of providing licensing and regulation of pilots and pilotage rates in Jefferson and Orange County, Texas. The authoring legislation, found at Chapter 69 of the Texas Transportation Code, gives the Commission exclusive jurisdiction over the pilotage services in Jefferson and Orange County.3 The non-discretionary duties of the Commission are legislatively mandated and consist of the following:
1. Establish the number of pilots necessary to provide adequate pilot services for each Jefferson or Orange County port
2. Establish pilotage rates;
3. Hear and determine complaints relating to the conduct of pilots,
4. Make recommendations to the governor regarding any pilot whose license or certificate should not be renewed or should be revoked;
5. Adopt rules and issue orders to pilots and vessels to secure efficient pilot services;
6. Institute investigations or hearings or both to consider casualties, accidents, or other actions that violate this chapter;
7. Provide penalties to be imposed on a person who is not a pilot for a Jefferson or Orange County port and who pilots a vessel into or out of the port if the person offered pilot services to the vessel;
8. Establish times during which pilot services will be available;
9. Accept applications for pilot licenses and certificates and determine whether each applicant meets the qualifications for a pilot;
10. Submit to the governor the names of persons who have qualified under this chapter to be a branch pilot; and
11. Approve any changes to the locations of pilot stations.
The Commission derives its existence and its authority from two branches of Texas state government: the legislative branch and the executive branch. As such, only those two branches of Texas state government may mandate the duties and obligations of the Commission. Absent express Texas legislative or executive direction, the Commission cannot and will not alter its legislative mandate or otherwise develop or implement any rules or guidelines not specifically provided to it by the legislature or the executive branch of Texas, no matter whether the impetus for the proposed rule or guideline is of local, federal or international origin.
2. The Sabine Pilots Association
The Commission is, however, mindful of the fact that state pilotage services are not provided in a vacuum. All of the pilots carry federal as well as state pilot licenses and many of the activities of the pilots are regulated by the U.S. Coast Guard and/or other federal regulatory agencies. In the discharge of its discretionary duties, the Commission may make any other provisions for proper, safe and efficient pilotage. In the exercise of that discretionary authority, the Commission has requested that the Sabine Pilots Association, in the exercise of its independent authority and discretion, develop a set of written guidelines for the safe navigation of the waterways and to develop a written fatigue management program that will govern its independent contractor pilots as they carry out their pilot duties.
The Commission is pleased to report that the Sabine Pilots Association has developed guidelines for pilotage operations aboard vessels requiring two pilots when transiting the Sabine Neches waterway. The guidelines define and allocate the division of responsibilities between the conning and off-conn pilots, while also preserving the pilot's ability to exercise his independent discretion and professional expertise during any particular vessel transit.
The Sabine Pilots Association has also developed and implemented mandatory and nondiscretionary rest period requirements for all of its members. The association requires all dispatchers to observe the rest period requirements before dispatching any Sabine Pilot to a work assignment. The rest period requirements are designed to assure that all pilots will receive adequate rest before being assigned their next job.
The Sabine Pilots Association is in the process of implementing a refined apprentice and deputy pilot training program designed to train and advance apprentice and deputy branch pilots. The mission statement of the training program recognizes that marine safety is of the utmost importance to the area's marine industry, the Golden Triangle community and the State of Texas at large. The program has very specific requirements for the apprentice program, including the appointment of a sponsoring pilot, a required number of transits, simulator and outside training and written and oral examinations. Through the implementation of the apprentice program, the Sabine Pilots Association is committed to improving safety and efficiency on the waterways. It must be made absolutely cleat• that the Commission does not oversee nor does it control the details of the individual pilot's activities in the exercise of their day to day duties. The Commission has confined its duties to fulfilling the legislative requirements of Chapter 69 of the Texas Transportation Code as noted above. It is the sole responsibility of the Sabine Pilots Association and its independent contractor pilots to enforce training policies and requirements, hours of service compliance and adherence to association guidelines and procedures.
In conjunction with the above-described efforts undertaken by the Sabine Pilots Association, the Commission will continue to fulfill its legislative mandate to assure safe and efficient pilotage in Jefferson and Orange County, Texas by requiring that, at each of its regularly scheduled quarterly meetings, the Sabine Pilot Association report that it is complying with its guidelines and rest period requirements. In conjunction with the efforts of the Sabine Pilots Association, the Commission believes that the training materials, revised guidelines and rest period policy effectively addresses the NTSB's safety recommendation (M-11-17) and all parties' goals of increased safety on the waterways.
The Jefferson and Orange County Board of Pilot Commissioners have an outstanding working relationship with the local pilot association, local industry and representatives of the local Coast Guard unit. The Commission firmly believes that it is only through the combined efforts of each of these groups that safety and efficiency on our waterways will continue to improve. The hard lessons of the Eagle Otome incident have brought increased awareness to all parties involved. As a result of the recommendations from the Commission's incident review committee, the pilots on board the Eagle Otome have undergone additional training in communications and emergency ship handling. It has been and continues to be the policy of the Sabine Pilots Association, including the two pilots on board the Eagle Otome, to attend recurring bridge resource management training to assure that all Sabine pilots are up to date on current bridge resource management principles. This is but one example of an ongoing process to assure that incidents such as the Eagle Otome never happen again.
The Commission takes its legislative mandate very seriously. Since the Eagle Otome incident, the Commission's incident review committee has investigated another marine casualty, also resulting in actions against the pilot involved. The committee has begun investigating a third incident as well. The Commission is aware that its mandate continues to evolve. The incident review committee and the increased interaction with the local pilot association are just two examples of recent efforts the Commission has made to improve safety and efficiency on the local waterways. The Commission will continue its efforts with that ultimate goal in mind.