To Fight Sexual Assault and Harassment, Vessel Owners and Operators Must Comply with Heightened Reporting Requirements

In response to increased awareness of the prevalence of sexual assault and sexual harassment (SASH) in the maritime industry — and following a widely reported account by a U.S. Merchant Marine Academy cadet of sexual assault aboard a U.S.-flagged ship during her Sea Year training — Congress enacted into law the Safer Seas Act (SSA) in December 2022.

Intended as a direct effort to prevent and punish SASH, the SSA, among other provisions:

• Requires the U.S. Coast Guard (USCG) to revoke the license, certificate of registry, or merchant mariner’s credential of an individual who has been the subject of an “official finding” of sexual assault within the previous 10 years and to revoke or suspend any such credential of any individual who has been the subject of an official finding of sexual harassment within the previous five years.
• Tasks the USCG with taking a more active role in the investigation of SASH aboard commercial vessels.
• Defines an official finding of SASH as including “a determination after an investigation by the Coast Guard that, by a preponderance of the evidence, the individual committed sexual harassment or sexual assault if the investigation affords appropriate due process rights to the subject of the investigation” (46 U.S.C. § 7704a). Of note is this phrasing: “by a preponderance of the evidence.” This requires the USCG to meet a lesser burden of proof as compared with the “beyond a reasonable doubt” standard required to demonstrate criminality.

Of significant importance to owners and operators of U.S.-flagged commercial service vessels, the SSA requires them to report complaints and incidents of SASH directly to the USCG. Specifically, the SSA notes that the “responsible entity of a vessel” must comply with these reporting requirements and further defines a responsible entity as “the owner, master, or managing operator of a documented vessel engaged in commercial service” or “the employer of a seafarer on such a vessel” (46 U.S.C. § 10104(g)).

Because the SSA defines a commercial service as “any type of trade or business involving the transportation of goods or individuals” (46 U.S.C. § 2101(4)), its reporting requirements broadly apply to any documented commercial vessel, regardless of its size, type, tonnage, or other factor.

In the following, we provide answers to key questions about the impact of the SSA on owners and operators of U.S.-flagged vessels and identify several as-yet unresolved issues.

What types of misconduct must be reported?
On February 9, the USCG issued a Marine Safety Information Bulletin (MSIB) providing guidance on these new reporting requirements. Prior to the enactment of the SSA, reporting was limited to a certain class of sexual abuse crimes occurring within the special maritime and territorial jurisdiction of the United States.

Under the SSA, the scope of what needs to be reported has expanded significantly. Commercial vessel owners and operators as well as masters and employers of seafarers now must report complaints and incidents of “harassment, sexual harassment, and sexual assault ‘that violate’ any law or company policy” (46 U.S.C. § 10104(a)(1)).

When and how must reports of SASH be made?
Reports of SASH must be made “immediately” after the vessel owner or operator gains knowledge of the incident. Options for making such reports include the Coast Guard Investigative Service (CGIS) TIPS app and/or the email address [email protected], which can be used by all reporting sources, including bystanders and survivors. The USCG also maintains a 24/7 watch that can field reports of sexual misconduct via the National Command Center (at 1 202.372.2100).

Reports can be made anonymously or with attribution and should include:

• The name, role, and contact information of the person making the report
• The name and official number of the documented vessel
• The time and date of the incident
• The geographic position or location of the vessel when the incident occurred
• A brief description of the SASH being reported

After a report is received, it will be reviewed by the CGIS. An investigation will be initiated for all reports received, and the USCG will provide follow-up communications with all reporting sources who provide contact information.

As part of an investigation, the USCG is required to collect additional information related to the identity of the victim, the perpetrator, and any witnesses, while taking practicable steps to protect the identity of such individuals. To this end, after making the initial immediate report, a vessel owner or operator then must, within 10 days, submit a more detailed report to the USCG.

What are the penalties for failing to report?
The potential civil penalty for failing to report SASH incidents to the USCG has been increased, from $5,000 to $55,000 per violation.

Jones Act and other implications
In addition to a Title VII action against an employer for a failure to address or prevent workplace assault and harassment, vessel owners, operators, and employers can also face liability under the Jones Act and the General Maritime Law doctrine of unseaworthiness.

Under the Jones Act, an employer owes a duty to provide a reasonably safe place to work, which includes the prevention of SASH. This duty to provide a safe workplace does not, however, impose strict liability on the Jones Act employer for every injury or incident. Rather, the employer must have notice or knowledge of a condition and an opportunity to correct it.

As for a claim of unseaworthiness, the law requires a vessel owner or operator to provide a vessel reasonably fit for its intended use. A vessel may be rendered unseaworthy for any number of reasons, including a violent crewmember. To recover under this theory, the plaintiff-seaman must show that the crewmember had a “wicked disposition, a propensity to evil conduct, a savage and vicious nature” that would make the ship “perilous” (Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 340 (1955)).

Unlike a Jones Act negligence claim, a claim of unseaworthiness is akin to one of strict liability. In other words, the seaman need not show that the vessel owner or operator knew or should have known of the perpetrator’s “vicious nature” — the vessel owner or operator can be held liable regardless of any such knowledge.

Additional issues
All harassment, or just sexual harassment? One of the leading questions about the new rule stems from the use of the stand-alone term “harassment” in 46 U.S.C. § 10104 and the USCG’s MSIB. There is no indication as to whether this includes forms of harassment outside sexual harassment; in fact, all prior commentary related to the passage and implementation of the SSA centers on SASH.

It is likely that further guidance on this issue will be received from the USCG. In the meantime, employers may want to err on the side of caution and report to the USCG any type of internal harassment based on race, religion, national origin, age, or other protected factors.

Updated harassment and discrimination policies and training. All marine employers should ensure that their harassment and discrimination policies reflect the latest guidance. In fact, the SSA also amended 46 U.S.C. § 3203, which now specifically requires vessel owners and operators to include policies and procedures on SASH in their safety management system (SMS).

Under the SSA, a vessel owner’s or operator’s SMS must include annual training on SASH, which should include information on prevention, bystander intervention, reporting, response, and investigation (46 U.S.C. § 3203(a)(5)).

Employers also should ensure that their policies forbid discrimination and harassment based on sexual orientation and gender identity. Such language comports with the unanimous 2020 decision of the U.S. Supreme Court wherein it found that discrimination on the basis of sexual orientation and gender identity constitutes gender discrimination under the Civil Rights Act of 1964.

Maritime industry employers should train their supervisors and management on recognizing and stopping harassment in the workplace as well as on the proper procedures for documenting and reporting harassment complaints.

Installation of closed-circuit television technology. The SSA requires that video and audio equipment and surveillance systems be installed on certain commercial vessels, primarily oceangoing ships (46 U.S.C. § 4901). Such systems must be installed no later than December 23, 2024, or during the vessel’s next scheduled drydock (whichever is later) and must be placed “in passageways on to which doors from staterooms open” and in a manner to ensure the visibility of every door in each passageway. Once the surveillance system is installed, the vessel owner or operator must display clear and conspicuous signs on board the vessel notifying the crew of its presence.

The SSA states that video and audio surveillance records must be retained for not less than one year after the footage is obtained. If the surveillance footage is associated with an alleged incident, it must be preserved for not less than five years from the date of the alleged incident.

Take steps now to avoid exposure
Focus on the prevention, investigation, and punishment of SASH will continue to increase. Given the more stringent provisions of the SSA and the likelihood of increased enforcement, employers should take all reasonable steps to ensure their workplace policies are up to date and that they take swift action in investigating and preventing SASH of any form aboard their vessels.