It is no secret that there is a long, well-publicized history of sexual assaults and sexual harassment (SASH) within the maritime industry. In fact, in 2016 and again in November 2021, due to widespread incidents of SASH aboard maritime vessels, the U.S. Merchant Marine Academy (USMMA) temporarily halted its Sea Year program – a program in which students are placed aboard commercial ships for several months as a requirement for graduation.[1] After allegations of rape and sexual harassment of USMMA cadets surfaced, Peter DeFazio (D-OR), chair of the House Committee on Transportation and Infrastructure, issued a statement in October 2021 that there must be “zero tolerance when it comes to sexual assault.”[2] Rep. DeFazio noted that the “pattern of abuse in the maritime industry and the Sea Year program in particular has gone on far too long – we must reform the toxic culture that has allowed this problem to fester, and not stop until our seas are safe for everyone.”[3]
Shortly following his statement, Rep. DeFazio introduced the Stop Sexual Assault and Harassment in Transportation Act in the House of Representatives, which was passed in the House in March.[4] The proposed legislation seeks to “protect personnel and passengers during passenger transportation by air, motor carrier, commuter and intercity rail, transit, vessel, and rideshare from sexual assault and harassment by improving the response to, and facilitate the reporting of, such incidents.”[5] For example, transportation carriers would be required to establish formal policies and reporting structures regarding SASH, offenders would be liable for civil penalties, and individuals’ privacy and confidentiality would be protected when they report any incidents.[6]
One day before the passage of the Stop Sexual Assault and Harassment in Transportation Act in the House, the Don Young Coast Guard Authorization Act, which includes provisions that aim to protect maritime workers from sexual violence, was also passed in the House. [7] The anti-SASH provisions were taken from another bill that was introduced in the House in late February, known as the Safer Seas Act.
The Safer Seas Act aims to combat SASH within the maritime industry through various measures, including:
- Strengthening protection from discrimination for victims and witnesses who report SASH incidents.
- Clarifying the Coast Guard’s ability to deny, suspend, or revoke a merchant marine’s credentials based on past convictions of SASH.
- Implementing surveillance requirements.
- Limiting the number of personnel who have access to private spaces.
- Extending the statute of limitations for civil actions pursuing SASH claims.
- Providing potential waiver of mandatory sea days for U.S. Merchant Marine Academy students who express reasonable safety concerns when obtaining their license.[8]
Legal Recourse for Current SASH Maritime Survivors
For an industry that is currently dealing with tremendous pressure on how to protect its members from sexual assault, these pieces of legislation have the potential to effectuate change that can make the seas a safer place for seamen. However, while these bills mark the first step toward preventing further SASH incidents, it is important to note that existing victims within the industry are not without recourse. For seamen who experienced SASH, there are numerous claims that can be brought to recover for injuries suffered aboard a maritime vessel.
Three important legal avenues that allow SASH maritime victims to seek justice are:
- The Jones Act: Also known as the Merchant Marine Act of 1920, the Jones Act provides a seaman the right to compensation if they are injured or sexually assaulted while working aboard a vessel. To bring a claim under the Jones Act, the plaintiff (1) must be a seaman (2) who suffered an injury in the course of employment, (3) whose employer was negligent, and (4) the negligence was the cause, at least in part, of the plaintiff’s injury.[9] Compared to standard negligence cases where plaintiffs must prove that the defendant’s negligence was the main cause of the injury, under the Jones Act, so long as the plaintiff can prove that the employer’s negligence played any part, even if it is “featherweight,” causation can be established.[10] In other words, under the Jones Act, the plaintiff’s burden of proving causation is much lower than that of standard negligence. Even if the injury was caused by another employee’s negligence, the employer can still be held liable under the Jones Act if the negligent employee was acting within the course of his/her employment.[11]
- Unseaworthiness claims: An injured seamen can also seek to recover damages from the vessel owner if the vessel was “unseaworthy”. Under the theory of unseaworthiness, a vessel owner is required “to furnish a vessel and appurtenances reasonably fit for their intended use.”[12] Part of this duty is the shipowner’s non-delegable duty to provide a competent master and crew, and unseaworthiness can be caused by an incompetent crew.[13] For example, a mariner who is sexually assaulted by another crew member could assert a cause of action for “unseaworthiness” because the ship contained a dangerous crew.
- Maintenance and cure benefits: A seaman who is injured at sea while employed on a ship is entitled to receive “maintenance and cure” benefits from the employer. “Maintenance” refers to an employer’s obligation to provide a seaman’s daily living expenses such as food and lodging. In contrast, “cure” requires an employer to cover a seaman’s medical expenses.[14] When a seaman is injured aboard a ship – including as a result of a sexual assault – the employer must provide sufficient maintenance and cure. Failure to provide maintenance and cure is a legal cause of action, which can include punitive damages as well.[15]
The aforementioned causes of action, among others, can potentially provide victims who are sexually assaulted or sexually harassed while serving aboard a vessel with some measure of justice. While these claims can help remedy past incidents, it is of utmost importance that bills such as the Safer Seas Act are signed into law and enforced so that future incidents can be prevented. As always, the legal landscape is constantly changing to potentially offer more protections for vulnerable groups, and the maritime industry is in dire need of a change.
If you were sexually assaulted or harassed as a cadet, mariner, or seaman, the victims’ rights lawyers at Sanford Heisler Sharp can help you navigate through your options and obtain the justice that you deserve. We can assist clients nationwide who work in all types of maritime industries. Contact us online for more information about your rights and how to start a claim.
Resources
[1] Information on Sea Year Stand Down, United States Merchant Marine Academy (June 19, 2016) https://www.usmma.edu/about/communications/information-sea-year-stand-down; Letter to Midshipmen – November 2, 2021, U.S. Department of Transportation Maritime Administration (Nov. 2, 2021), https://www.maritime.dot.gov/education/sea-year-training-program-criteria/letter-midshipmen-november-2-2021.
[2] Press Release, House Committee on Transportation and Infrastructure, Chairs DeFazio and Carbajal Statement on Sexual Assault Allegations at the United States Merchant Marine Academy and Aboard Training Vessels (Oct. 13, 2021), https://transportation.house.gov/news/press-releases/chairs-defazio-and-carbajal-statement-on-sexual-assault-allegations-at-the-united-states-merchant-marine-academy-and-aboard-training-vessels-.
[3] Id.
[4] H.R. 5706, 117th Cong. (2021).
[5] Press Release, House Committee on Transportation and Infrastructure, House of Representatives Passes Transportation and Infrastructure Bills Cleared by T&I Committee, Including Legislation to Prevent Sexual Violence in Transportation (Mar. 30, 2022), https://transportation.house.gov/news/press-releases/house-of-representatives-passes-transportation-and-infrastructure-bills-cleared-by-tandi-committee-including-legislation-to-prevent-sexual-violence-in-transportation.
[6] H.R. 5706, 117th Cong. (2021).
[7] H.R. 6865, 117th Cong. (2022).
[8] Id.
[9] Jackson v. NCL America, LLC, No. 14-23460-CIV-WILLIAMS, 2016 WL 9488717 at *2 (S.D. Fl. Jan. 26, 2016).
[10] McClow v. Warrior & Gulf Nav. Co., 842 F.2d 1250, 1251 (11th Cir. 1988).
[11] Herrera, 447 F.2d at 823 (citing Moore v. Associated Pipeline Contractors, 468 F.2d 815, 815 (5th Cir. 1972)).
[12] Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960).
[13] Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1565-66 (11th Cir. 1985).
[14] Id. at 528.
[15] Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 413 (2009).