Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 11, 1990 TAG: 9003112843
SECTION: HORIZON PAGE: F-1 EDITION: METRO
SOURCE: WILLIAM C. REMPEL LOS ANGELES TIMES
DATELINE: ANCHORAGE, ALASKA LENGTH: Long
But Trooper Fox did not find what he expected on the bridge of the crippled ship.
"I expected a brawl," he testified at the criminal trial of fired tanker Capt. Joseph Hazelwood. "But it was kind of quiet and dark and everyone was gazing out the windows."
In fact, Fox said, the skipper did not appear at all drunk or disoriented.
"He had bloodshot eyes and was smoking cigarettes. I didn't notice any alcohol. He had morning breath, bad breath. . . . He seemed unimpaired," the trooper said.
Neither did the crew think Hazelwood was drunk. The chief mate described him as "calm, cool and in command" in the critical moments after the grounding.
The port pilot testified that the captain was not impaired. Even a Coast Guard investigator who said he smelled alcohol on Hazelwood's breath said he noticed no signs of drunkenness.
It was Hazelwood's breath that prompted Coast Guard officials to call Fox, but the trooper did not bring along a sobriety test kit.
Hazelwood was not tested for about 10 hours, at which time his blood alcohol level was .06 percent - higher than the Coast Guard limit of .04 percent, but well below the state drunk driving maximum of .10 percent.
To convict the captain of operating a vehicle while under the influence of alcohol, one of the charges against him, the jury will have to believe a state expert witness who has told investigators that Hazelwood could have had a reading in excess of .22 percent if he had been tested when he boarded the ship in Valdez the night before.
Significantly, as the prosecution finished last week its month-long presentation here, the drunk driving allegations - the very heart of the state's case against Hazelwood - rest entirely on disputed circumstantial evidence.
"The only thing they've proven beyond a reasonable doubt is that Hazelwood had bad breath," insists defense lawyer Thomas Russo.
Even if defense lawyers can persuade the jury that is true, the prosecution has presented a battery of expert witnesses who have criticized virtually everything Hazelwood did from boarding the ship late to failing to sound the general alarm after the grounding.
"We're not in trouble," said a state official involved in the case.
But even as the federal government launches a separate criminal case against Exxon Corp. based on similar underlying allegations of negligence, there are problem signs in the state's case against Hazelwood, especially on some of the key issues.
For example:
Was the captain's performance impaired by alcohol consumption? The state's own eyewitnesses dispute that.
Was the captain reckless in leaving the bridge for 15 minutes in control of a third mate without a pilot's license? A number of witnesses said he was reckless, including experts hired by the state to analyze the accident, but other state witnesses blamed an incompetent helmsman for failing to follow simple steering orders.
Did the captain risk sinking the ship by recklessly trying to drive it off Bligh Reef? That testimony was conflicting, and the state's experts agreed that "it was absolutely impossible" to move the ship no matter what the captain's intent.
It looked like such an open-and-shut case when it began: The ill-fated Exxon Valdez had strayed far off course and spilled nearly 11 million gallons of crude oil on Bligh Reef; the captain, whose car operator's license in New York had been revoked over previous drunk driving convictions, had failed the Coast Guard sobriety test.
In his opening statements five weeks ago prosecutor Brent Cole painted a picture for the jury of a supertanker under the command of a drunken and reckless captain, an image already well established by early news accounts, T-shirt vendors and talk show comedians.
However, many of Cole's own witnesses, especially members of the crew, have not supported his case. Many of the conflicts have been brought out by aggressive defense cross-examination, and now lawyers for Hazelwood are about to launch their own case.
Following are some of the issues and contradictions evident in the prosecution's case against Hazelwood.
\ The drinking allegations: According to testimony, Hazelwood went into Valdez for lunch with port pilot Ed Murphy and two crew members while the Exxon Valdez was being loaded. At the time he left, the posted sailing time was 10 p.m.
After lunch, during which Hazelwood sipped iced tea, the crew members went separate ways for a while and met back at the Pipeline Club, a popular Valdez tavern.
Crew members and a tavern patron - the wife of the chief Coast Guard investigator who first noticed alcohol on the captain's breath - said that Hazelwood drank vodka. The woman said that he drank much of the afternoon. Crewmen said that he was not even in the bar when they arrived and that he had two or three drinks.
The crewmen also testified that they stopped to order pizzas on their way back to the ship and they drank beers while they waited.
In a tape-recorded statement to Trooper Fox the morning after the grounding, Hazelwood denied drinking at the Pipeline Club. He said that he had "a real beer" with a piece of pizza in town and "one of those phony beers, `Moussy,' " (a very low alcohol drink) on the ship.
Investigators found about 100 empty bottles of Moussy in the ship's garbage, and two more in Hazelwood's cabin.
\ Allegations of reckless navigation: Reacting to reports of glacial ice floating in the outbound traffic lane, Hazelwood radioed the Coast Guard traffic center for permission to change course and go around the ice between Busby Island and Bligh Reef.
He told his watch officer, Cousins, to turn back to the normal course when the ship was abeam the Busby Island light.
During that maneuver to avoid ice, testimony showed, Hazelwood also ordered his engines to begin building toward full "sea speed" of 16 knots. The Exxon Valdez was only doing about 12 knots at the time it ran aground, however, experts testified.
He also put the ship briefly on autopilot and left the bridge in the sole control of third mate Gregory T. Cousins.
The prosecution and its hired industry consultants contend that departing the shipping lanes in that area was reckless, as was the order to increase speed.
The jury was told, however, that the Exxon Valdez was still at "maneuvering speed," about 12 knots, when it ran aground; that the autopilot was only engaged for a few minutes and had been turned off for about 15 minutes before the accident occurred; and that Hazelwood's course was very similar to those used by two ships that preceded his out of Valdez.
Under defense questioning, a prosecution expert witness conceded that those preceding tankers - the Arco Juneau and the Brooklyn - both came within about a half mile of Bligh Reef. Both ships also were going faster than the Exxon Valdez at the time (the Arco Juneau was at 16 knots).
Furthermore, testimony disclosed that for at least a portion of their trips through Prince William Sound, both of the other tankers had been operated by captains who lacked pilot certificates for the waters in which they were sailing.
\ The unqualified third mate: There is no question that Third Mate Cousins lacked a Coast Guard pilotage certificate for Prince William Sound.
But testimony also disclosed that Cousins, 39, and a licensed second mate, had considerable experience sailing in the Sound (about 30 transits, half of which were on watch in the bridge).
\ Hazelwood's absence from the bridge: Prosecutors are most critical of Hazelwood for leaving the bridge while the Exxon Valdez was changing course outside the normal shipping lanes, in an area with icebergs and rocky shoals and when he was the only crew member with a valid pilotage certificate.
But Cousins said that he was gone only a few minutes and that he called the captain, as he had been ordered, when the command to turn back to the shipping lanes was given.
\ Endangering ship and crew after the grounding: The state's shipping and salvage experts said that engine and rudder commands given by Hazelwood after the grounding represented reckless efforts to get the ship free of the reef.
They testified that Hazelwood risked further damage to his ship and that had it come free, the Exxon Valdez probably would have capsized and sunk.
But other prosecution witnesses, including another Exxon captain who took over the stranded tanker after Hazelwood was fired, said that the accused skipper's actions after the grounding may have saved the ship.
Capt. William Deppe was just one of a number of prosecution witnesses who supported key defense arguments, in this case that Hazelwood was trying to be certain that the tanker stayed hard aground as the tide was rising.
And even the prosecution's staunchest critics of Hazelwood's post-accident decisions conceded that in the end the risk of capsizing was only theoretical because it was physically impossible for the ship to move.
"There's absolutely no way this ship could move no matter what" Hazelwood did with the engines and rudders, said prosecution salvage expert William Milwee of Portland, Ore.
"He's charged with the crime of causing a risk of something that couldn't happen, by their own evidence," defense lawyer Russo said.
Still, Milwee called Hazelwood reckless because he said that the captain could not have known how hard aground he was when he kept the engine running and changed the rudder angle several times, an assertion challenged by defense attorneys who questioned how Milwee could assess Hazelwood's knowledge.
Milwee also faulted Hazelwood for not sounding the general alarm. But crew members testified that Hazelwood decided against that so as not to panic the crew and, instead, sent Cousins to knock on the cabin doors.
Chief Mate James Kunkel, a 20-year veteran who testified that he was afraid for his life as oil boiled out of cargo tanks into the sea, said that Hazelwood's calm presence on the bridge put him at ease and helped him carry out his emergency duties.
by CNB