/>iAs part of the National Defense Authorization Act for Fiscal Year 2023, Congress enacted into law the Safer Seas Act (SSA)[1] in December 2022. The bill was originally introduced as H.R. 6866 on February 28, 2022, by Rep. Peter DeFazio. As the maritime industry is well aware (or should be), the SSA responded to the September 28, 2021 anonymous blog post of “Midshipman X” in which a US Merchant Marine Academy cadet shared her story of sexual assault aboard a US-flagged ship at sea during her Sea Year training.[2]
The SSA directly addresses the prevalence of sexual assault and sexual harassment (SASH) in the maritime industry and contains several provisions intended to combat these issues. In pertinent part, the SSA requires the US 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[3] 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.[4] In addition, the SSA specifically contemplates that the USCG take a more active role in the investigation of SASH aboard commercial vessels, as it 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.”[5] Note that this finding imposes a lesser burden than one of criminality, i.e., beyond a reasonable doubt.
Likewise, the SSA included provisions requiring owners and operators of US flagged commercial service vessels to report complaints and incidents of SASH to the USCG. Those requirements are now codified at 46 U.S.C. § 10104. Under this provision, the “responsible entity of a vessel” must comply with these reporting requirements. A responsible entity is then further defined as either “the owner, master, or managing operator of a documented vessel engaged in commercial service” or “the employer of a seafarer on such a vessel.”[6] In tandem, federal law broadly defines a commercial service as “any type of trade or business involving the transportation of goods or individuals ….”[7] As such, the SSA and its reporting requirements broadly apply to any documented commercial vessel, regardless of its size, type, tonnage, etc.
On February 9, 2023, the USCG issued a Marine Safety Information Bulletin (MSIB) providing guidance on these new reporting requirements and to facilitate same. 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, operators and masters and employers of seafarers must report complaints and incidents of “harassment, sexual harassment and sexual assault ‘that violate’ any law or company policy.”[8] In terms of timing, the report must be made “immediately” after the vessel owner or operator gains knowledge of the incident and should include: (1) the name, role, and contact information of the person making the report; (2) the name and official number of the documented vessel; (3) the time and date of the incident; (4) the geographic position or location of the vessel when the incident occurred; and (5) a brief description of the sexual assault or harassment being reported. After receiving this report, the USCG is then 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. After making this initial immediate report, a vessel owner or operator then must submit a more detailed report within 10 days to the USCG. The potential civil penalty for failing to report such incidents in this manner to the USCG has now risen from $5,000 to $55,000 per violation.
The February 9, 2023 MSIB provided the details as to where such reports should be submitted. As noted in the MSIB, reporting options include the Coast Guard Investigative Service (CGIS) TIPS app and/or the email address CGISTIPS@uscg.mil, which can be used by all reporting sources, including bystanders and survivors, who have access to a smartphone or the internet. The reports, which can be anonymous or for attribution, will be received and 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. The USCG also maintains a 24/7 watch, which can field reports of sexual misconduct via the National Command Center phone number, 202.327.2100.
One of the main questions with the new rule stems from the use of the solo term “harassment” in 46 U.S.C. § 10104 and the USCG’s MSIB. There is no indication as to whether this includes harassment outside sexual harassment. All prior commentary related to the change in the law centers on SASH. Employers may want to err on the side of caution and report any type of internal race, religious, national origin, or age harassment to the USCG and then gauge the USCG’s response.
All employers should be very cognizant of the need to identify and report harassment complaints. In addition, all employers should make sure their harassment and discrimination policies are up to date. Indeed, 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). Specifically, a vessel owner’s or operator’s SMS must include annual training on SASH, which includes prevention, bystander intervention, reporting, response, and investigation.[9] Likewise, employers should make sure that their policies include sexual orientation and gender identity per the US Supreme Court’s unanimous 2020 decision, wherein it found that discrimination on the basis of sexual orientation and gender identity constitutes gender discrimination under the Civil Rights Act of 1964. In compliance with the SSA, all employers should concentrate on training 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.
Moreover, the SSA contains various other new requirements, including the requirement to install video and audio equipment on certain vessels. Primarily geared toward oceangoing ships, 46 U.S.C. § 4901 mandates that certain commercial vessels must maintain a video surveillance system. This system must be installed no later than December 23, 2024, or during the vessel’s next scheduled drydock, whichever is later.[10] The SSA requires that a video and audio surveillance system be placed “in passageways on to which doors from staterooms open,” and that such equipment be placed in a manner to ensure the visibility of every door in each passageway. Once installed, the vessel owner and operator must display clear and conspicuous signs on board the vessel notifying the crew of the presence of the surveillance system. Vessel owners and operators should also be mindful that the SSA requires retention of video and audio surveillance records for not less than one year after the footage is obtained; and if the surveillance footage is associated with an alleged incident, it must then be preserved for not less than five years from the date of the alleged incident.
In sum, Congress has enacted the SSA to address the pervasiveness of SASH occurring in the maritime industry. Vessel owners, operators, and employers must and should be mindful of this new law and take action to comply with the SSA’s new reporting, training, and surveillance requirements. Furthermore, besides the possibility of 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 is tantamount but does not impose strict liability on the Jones Act employer for every injury or every incident. Rather, the employer must have notice or knowledge of a condition and an opportunity to correct it.
Although a developing area of the law, courts within the US Court of Appeals for the Fifth Circuit have recognized that a seaman can have a cognizable action for Jones Act negligence for claims arising from sexual assault or sexual harassment.[11] Generally speaking, the seaman must prove either a physical injury or physical manifestations of an emotional injury.[12] Likewise, the seaman must show they were in a “zone of danger.” Again, the law in this respect is nuanced and esoteric, but if a seaman has been the victim of harassment or assault aboard a vessel, the seaman can bring a cause of action against the Jones Act employer separate and apart from any claim under Title VII.[13] Again, employers should take all reasonable steps to ensure their policies are up to date and up to par, and that they take swift action in investigating and preventing SASH (of any nature) aboard their vessels.
As for a claim for unseaworthiness, the law requires a vessel owner/operator to provide a vessel reasonably fit for its intended use. The standard is not perfection, but a vessel may be rendered unseaworthy for any numbers 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.”[14] Of particular note, unlike a Jones Act negligence claim, a claim for unseaworthiness is akin to one of strict liability. In other words, the seaman need not show that the vessel owner/operator knew or should have known of the perpetrator’s “vicious nature.” Rather, the vessel owner/operator can be held liable regardless of any such knowledge.
Jones Walker routinely advises clients on labor and employment issues as well as on personal injury claims by seamen arising under the Jones Act or General Maritime Law. In addition, our Labor & Employment Practice Group frequently provides training and advice on proper workplace policies and procedures.
[1] The SSA amended and/or added various provisions to Title 46 of the United States Code.
[2] Please see MaritimeLegalAid.com. Midshipman X has since revealed her identity.
[3] See 46 U.S.C. § 7704a.
[4] Id.
[5] Id.
[6] 46 U.S.C. § 10104(g).
[7] 46 U.S.C. § 2101(4).
[8] 46 U.S.C. § 10104(a)(1).
[9] 46 U.S.C. § 3203(a)(5).
[10] 46 U.S.C. § 4901(c)(1).
[11] See Martinez v. Bally’s La., Inc., 244 F.3d 474, 478 (5th Cir. 2001).
[12] See Jones v. Pride Int’l Inc., No. 11-3140, 2012 U.S. Dist. LEXIS 164877 (E.D. La. Nov. 19, 2012) (Africk, J.).
[13] See Christie v. Ingram Barge Co., LLC, No. 3:22-171, 2023 U.S. Dist. LEXIS 75197, at *12–13 (M.D. Tenn. May 1, 2023) (holding that Title VII did not preempt a Jones Act negligence claim).
[14] Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 340 (1955).
